Full opinion text
INDEX Page I. Procedural History ...............1300 II. Parties.........................1300 III. Education, Training and Care (Habilitation) Afforded the Retarded at Pennhurst.....................1302 A. Staffing ....................1303 B. Habilitation at Pennhurst.......1304 C. Restraints at Pennhurst........1306 D. Deterioration and Abuse of the Residents at Pennhurst ........1308 E. Voluntariness ................1310 F. Community Services in the Five County Area.................1311 G. County Participation ..........1312 IV. The Merits ......................1313 A. Constitutional; Right to- Minimally Adequate Habilitation .........1314 B. Constitutional Right to be Free from Harm..................1320 C. Constitutional Right to NonDiscriminatory Habilitation......1321 D. Pennsylvania Statutory Right to Minimally Adequate Habilitation. . 1322 E. Federal Statutory Right to NonDiscriminatory Habilitation.....1323 V. Liability of the Individual Defendants ........................1324 VI. Conclusion.......................1325 OPINION RAYMOND J. BRODERICK, District Judge. This is a class action in which the named plaintiffs are either residents or former residents of Pennhurst State School and Hospital, now known as Pennhurst Center (“Pennhurst”), an institution owned and operated by the Commonwealth of Pennsylvania, located in Spring City, Pennsylvania. These plaintiffs are all retarded persons, or their representatives, who claim injury based on violations of certain state and federal statutes as well as violations of certain constitutional rights in connection with their institutionalization at Pennhurst. The plaintiffs seek both damages and broad equitable relief including the closing of Pennhurst, and mandating that the defendants provide them with education, training and care in their respective communities. “Habilitation” is the term of art used to refer to that education, training and care required by retarded individuals to reach their maximum development. This matter was tried before the Court, sitting without a jury, over a period of thirty-two days, testimony being limited solely to the issue of liability. In connection therewith, the Court makes the following findings of fact and conclusions of law: Mental retardation, by definition, is an impairment in learning capacity and adaptive behavior. (Roos, N.T. 1-86). Retardation is wholly distinct from mental illness. Retarded individuals, just as other members of society, may suffer from mental illness. Mental retardation is primarily an educational problem and not a disease which can be cured through drugs or treatment. However, with proper habilitation, the level of functioning of every retarded person may be improved. (Glenn, N.T. 5-186). The incidence of mental retardation is about 3% in the general population. There are four basic levels of mental retardation: (1) mild (I.Q. 52-69) which comprises 89% of the mentally retarded population; (2) moderate (I.Q. 36-51) which comprises 6% of the mentally retarded population; (3) severe (I.Q. 20-35) which in conjunction with (4) profound (I.Q. less than 20) comprises 5% of the mentally retarded population. (Roos, N.T. 1-89, 1-90). Pennhurst, as an institution for the retarded, was on trial. Recent years have witnessed an assault upon such institutions. At issue is whether the residents at Pennhurst have been the victims of violations of their statutory or constitutional rights; specifically whether Pennhurst as an institution has been violating the statutory or constitutional rights of its retarded residents in failing to provide them with minimally adequate education, training and care. History is replete with misunderstanding and mistreatment of the retarded. As Wolf Wolfensberger points out in The Origin and Nature of Our Institutional Models 3 (1975): It is chastening to recall that the retarded in American history were long grouped with other types of deviant groups. In early America, the Puritans looked with suspicion on any deviation from behavioral norms, and irregular conduct was often explained in terms of the supernatural, such as witchcraft. There is reason to believe that retarded individuals were hanged and burned on this suspicion. Later in New England, records show that lunatics, “distracted” persons, people who were non compos mentis, and those who had “fits” were all classed together, perhaps with vagabonds and paupers thrown in . . .. Connecticut’s first house of correction in 1722 was for rogues, vagabonds, the idle, beggars, fortune tellers, diviners, musicians, runaways, drunkards, prostitutes, pilferers, brawlers — and the mentally afflicted .. As late as about 1820, the retarded, together with other dependent deviant groups such as aged paupers, the sick poor, or the mentally distracted were publicly “sold” (“bid off”) to the lowest bidder, i. e., bound over to the person who offered to take responsibility for them for the lowest amount of public support The 10th (1880) U.S. census first combined “defectives,” “dependents,” and “delinquents” for reporting purposes. The Public Health Service combined “criminals, defectives, and delinquents” as late as the 1920’s. The National Conference on Charities and Correction, between about 1875 and 1920, often grouped the idiotic, imbecilic and feeble-minded with the deaf, dumb, blind, epileptic, insane, delinquent and offenders into one general class of “defectives.” Few of us today are aware of the fact that the more contemporary term “mental defective” was coined to distinguish the retarded from these other “defectives,” and it is no coincidence that many state institutions were for both the retarded and the epileptic. During the “indictment period,” discussed later, an incredible range of deviances were associated with retardation; indeed, they were seen to be caused by it: illness, physical impediments; poverty; vagrancy; unemployment; alcoholism; sex offenses of various types, including prostitution and illegitimacy; crime; mental illness; and epilepsy. All these were called the “degeneracies.” Institutions for a number of “deviant” groups were founded in the United States in the mid-nineteenth century for the purpose of making the deviant less deviant. They were originally relatively small centers, often located within the community, in which intensive training could be concentrated on the deviants. Their emphasis was on education; they were viewed as temporary boarding schools, geared toward returning the individuals to their family or living group once appropriate skills were learned. By the late nineteenth century, however, these schools were replaced by asylums isolated from the community, where instead of providing the individual with the education and training necessary to return to the community, they provided the protection and care it was thought that these individuals required. The asylum grew to be viewed as a permanent residential facility for the deviant. In the more progressive states, the retarded received their own facilities separated from other “deviant” groups. With this concept came increased isolation and increased size permitting little time for habilitation. See generally, W. Wolfensberger, supra at 24-56. Pennhurst was the product of this era. I. Procedural History This action was commenced in May, 1974. On November 26, 1976, it was certified by the Court as a class action, with the plaintiff class of retarded persons defined as: All persons who as of May 30, 1974, and at any time subsequent, have been or may become residents of Pennhurst State School and Hospital. The members of the class are persons resident at Pennhurst State School and Hospital, persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties who are on a waiting list for placement at Pennhurst State School and Hospital, and persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties, who, because of the unavailability of alternate services in the community, may be placed at the Pennhurst State School and Hospital. On February 4,1977, by agreement of the parties, we entered an Order trifurcating the trial. This Order reads, in pertinent, part, as follows: Said trial will be bifurcated — the first phase limited solely to the issue of liability. At such time as the Court issues its findings of fact and conclusions of law thereafter, a date shall be set for the second phase of the trial — to determine what relief, if any, a federal court can and should grant in this situation. At the conclusion of the second phase of the trial, a date shall be set for the third phase of the trial, if one is deemed necessary, — to determine damages due Plaintiffs. The first phase of this non-jury trial began on April 18, 1977 and ended on June 13, 1977, occupying thirty-two court days. II. The Parties The original complaint in this action was filed as a class action by Terri Lee Halderman, a retarded individual who had been admitted to Pennhurst on the application of her parents pursuant to 50 P.S. § 4402 in 1966. On July 29, 1974, the first amended complaint was filed, adding as name plaintiffs seven other retarded individuals who had been admitted to Pennhurst upon the application of their parents. The amended complaint also added as a plaintiff the Parents and Family Association of Pennhurst representing 200 parents of retarded residents at Pennhurst. The Association was organized in 1967 to protect the rights of retarded citizens at Pennhurst and other institutions. (First amended complaint at 4). On January 17, 1975, the Court granted the United States of America leave to intervene as a party plaintiff. On November 12, 1975, the Court, without opposition, granted leave to intervene to the Pennsylvania Association for Retarded Citizens (“PARC”) and four retarded individuals, three of whom were court committed to Pennhurst pursuant to 50 P.S. § 4406 or an earlier statute. PARC is a non-profit corporation which was founded in 1950 (Schmidt, N.T. 14-108) and has member chapters in fifty-seven of Pennsylvania’s sixty-seven counties; its purpose being to advance the interest of retarded persons in Pennsylvania. The members of PARC include parents, other relatives, guardians, and next friends of persons residing at Pennhurst, and those in jeopardy of residing there. Defendants are: Pennhurst; the Pennsylvania Department of Public Welfare; various state and county officials responsible for supervising the Commonwealth’s and the counties’ retardation programs; and the superintendent and various employees of Pennhurst. III. Education, Training and Care (Habilitation) Afforded the Retarded at Pennhurst Pennhurst, a residential institution for the retarded, was founded in 1908. It is owned and operated by the Commonwealth of Pennsylvania, and is located in Spring City, Pennsylvania about 30 miles from Philadelphia. Since its founding in 1908, the institution has been overcrowded and understaffed. (PARC Exhibit 40, R. Smilovitz, Pennhurst in Perspective; Purpose, Programs, Possibilities.) The present resident population is approximately 1,230, reduced from a . high of nearly 4,000 in the early 1960’s. (Youngberg, N.T. 22-123). Its staff numbers approximately 1,500. All parties concede that the institution has undergone tremendous improvement since the 1950’s when, at best, the residents’ treatment could be described as “warehousing”. Even with these improvements, it was admitted by the defendants that Pennhurst does not presently meet minimum standards for the habilitation of its residents. (Rice, N.T. 26-24; Youngberg, Deposition at 22-31). Approximately half of the residents at Pennhurst have been admitted upon application of their parents or guardians, while the other half have been committed by a court. (Youngberg, N.T. 22-122). No distinction is made in the services extended to either group. The average resident age at Pennhurst is 36, and the average stay at the institution is 21 years. Forty-three percent of the residents have had no family contact within the last three years. Seventy-four percent of the residents are severely to profoundly retarded. The average resident has had one psychological evaluation every three years and one vocational adjustment service report every 10 years. Those residents who have had more than one Vineland examination (measuring social quotient) during their residency at the institution, have, on the basis of this test, shown a decline rather than an increase in social skills while at Pennhurst (they declined an average of 7.542 points during their residence at Pennhurst, a loss of .596 points per year.) At its best, Pennhurst is typical of large residential state institutions for the retarded. These institutions are the most isolated and restrictive settings in which to treat the retarded. (Lancaster-Gaye, N.T. 4-79). Pennhurst is almost totally impersonal. (Id., N.T. 4-71). Its residents have no privacy (Roos, N.T. 1-149) — they sleep in large, overcrowded wards (Youngberg, Deposition at 22), spend their waking hours together in large day rooms and eat in a large group setting. (Clements, N.T. 2-57, 2-71, 2-72). They must conform to the schedule of the institution which allows for no individual flexibility. Thus, for example, all residents on Unit 7 go to bed between 8:00 and 8:30 p. m., are awakened and taken to the toilet at 12:00-12:30 a. m. and return to sleep until 5:30 a. m. when they are awakened for the day (Barton, Deposition at 21-26, 33-34; Roos, N.T. 1-50), which begins with being toileted and then having to wait for a 7:00 a. m. breakfast. A. Staffing On the whole, the staff at Pennhurst appears to be dedicated and trying hard to cope with the inadequacies of the institution. (Hersh, N.T. 13-130) Many of the problems at Pennhurst result from overcrowding and understaffing. As professionals leave the staff, they are often not replaced, their jobs being turned over to direct care staff; thus, in the last two years nineteen professionals have left the staff without being replaced. (Roos, N.T. 1-153). Nearly every witness who testified concerning Pennhurst stated that it was grossly understaffed to adequately habilitate the residents. None of the standard reference sources now generally used by professionals in the field of mental retardation define the qualifications and minimal numbers of mental retardation professionals necessary to provide minimally adequate programs of habilitation. (Clements Report at 6). However, the court in Wyatt v. Stickney, 344 F.Supp. 387 (N.D.Ala.1972), attempted to provide such guidelines. A comparison of the Wyatt ratios to those at Pennhurst in 1975 reveals: Wyatt Standards Pennhurst a. Psychologists 23 23 b. Social Workers 40 6 c. Vocational Therapists 5 4 d. Recreation Therapists 23 0 e. Occupational Therapists 18 10 f. Registered Nurses 95 54 g. Physicians 7 6 h. Physical Therapists 14 2 i. Speech and Hearing Therapists 14 9 j. Dentists 7 4 k. Chaplains 7 4 l. Teachers 51 8 (Clements, N.T. 2-26, 2-27). No psychologists are on duty at Pennhurst at night or over the weekend, thus, if a resident has an emotional crisis, he or she may go without treatment until the next morning or until the weekend is over. (Riznyk, N.T. 17-182). Moreover, routine housekeeping services are not available during evenings and weekends, thus it is common to find urine and feces on ward floors over these periods. (Smith, Deposition at 41; Roos, N.T. 1-158). B. Habilitation at Pennhurst All parties to this litigation are in agreement that Pennhurst as an institution is inappropriate and inadequate for the habilitation of the retarded. It is also admitted .that the inadequacies in programming at Pennhurst are directly attributable to staff shortages. Residents’ records commonly contain a notation that they would benefit from specific types of programming. However, such programming has, for the most part, been unavailable to the individual because of staff shortages. (Foster, Deposition at 42; DeAngelis, N.T. 16-49). The average resident receives only IV2 hours of programming per weekday and no programming on weekends. (Thurman, N.T. 14-60; DeAngelis, N.T. 16-31). No one, except those in school, gets more than 3V2 to 4 hours per day. If one factors out those programs which are not considered beneficial, the average drops to about fifteen minutes per day. (Thurman, N.T. 14-60). Some residents receive no programming due to their extreme hyperactivity, medical problems, or their own refusal of treatment. (DeAngelis, N.T. 16-32; Cooper, N.T. 29-46). Some individuals have not been accepted into occupational therapy, since only group programs are available and they require individual attention. Some Pennhurst residents have been dropped from existing programs due to lack of progress and motivation. The record indicates that the residents at Pennhurst are made to fit into existing programs, and that the programs are not altered to fit the needs of the individuals. Further, it appears that an individual’s motivation and not his or her needs determine whether the resident continues with the program. (Hare, N.T. 8-180, 8-181). Residents are referred to special programs at Pennhurst, but often, due to staff shortages, placements are not made. (DeAngelis, N.T. 16-40, 16-41). Almost every service offered at Pennhurst has a long waiting list. (Foster, Deposition at 42). For example, as of April 15, 1977, there were 511 residents on the referral list for occupational therapy. (Hilker, N.T. 20-43). While 50-60 Pennhurst residents have wheelchairs which have been individually adapted to meet the individual’s needs, 75-100 residents need such adaptions. (Fekula, N.T. 20-99). The consequences for the resident not having his or her wheelchair adapted are especially grave, including: (1) loss of vital functions; (2) severe muscular contractions; and (3) loss of ability to be programmed. (Id., N.T. 20-101). While over 300 residents at the institution have hearing impairments, only 51 have been fitted with hearing aids. There are 106 residents on the waiting list for speech therapy, and nearly every resident at Pennhurst could benefit from some type of communication programming. (Riggot, N.T. 20-155). Three to four hundred residents presently need physical therapy to prevent physical deterioration, however, only 143 are receiving this therapy. (Rossi, Deposition at 12, 22). Pennhurst has established a communication center for 22 non-verbal individuals, but the institution has approximately 300 non-verbal residents. In theory, the residents in the communication center spend their day in classes learning signing (i. e., sign language skills), academics, and self-care skills. However, when there is only minimal staff coverage, classes are not offered since the staff is totally occupied with custodial tasks. During the month of April, .1977, there were 5 days during which there was minimal coverage on the first shift (7:00 a. m. — 4:00 p. m.); 25 days of minimal coverage on the second shift (4:00 p. m.— 11:00 p. m.); and thirty days of minimal coverage on the third shift (11:00 p. m.— 7:00 a. m.) — on five of these days during the third shift, there was less than minimum staff coverage. (Nelson, N.T. 21-23, 21-24). Not only is the programming at Pennhurst inadequate to meet minimum professional standards (Rice, Deposition at 179, 180), but so are the evaluations performed on the residents to determine what is required to adequately habilitate the individual. None of the residents at Pennhurst had a full multi-discipline assessment as of January, 1977. (PARC Exhibit 53; Flueck, N.T. 4-9). Twenty and six-tenths percent of the residents have not received a limited multi-discipline assessment since January, 1975, and those assessments which have been made are generally limited to psychological, speech and hearing skills and are rarely concerned with vocational or self-care skills. (Hare, N.T. 8-165, 8-166). Proper habilitation cannot be provided to retarded persons unless those responsible for providing such programs are aware of the individual’s needs. Defendants have not made “full exit plans,” i. e., plans delineating: (1) a place for each individual to live outside of Pennhurst; (2) the daily activity necessary for each individual living outside Pennhurst; (3) necessary support services; and (4) the person who would be responsible, for any Pennhurst resident. Such plans are very important in planning for the resident’s eventual return to the community from the institution. Defendants have also failed to make full “program plans,” i. e., plans containing: (1) identification of long and short term goals; (2) specification of the conditions under which the individual might achieve these goals; and (3) specification of the criteria to evaluate the individual’s mastery of the goals, for Pennhurst residents. The record keeping at Pennhurst is also below acceptable minimum standards. (Clements, N.T. 2-22). Adequate record keeping is essential for proper habilitation of the residents. Without such records, the staff will not know what the individual is already able to do, what type of care he or she should be receiving, and how to evaluate progress made by the individual. (Id.) Pennsylvania’s immediate plans for Pennhurst call for a reduction of the population at the institution to 850 and to provide, by July 1, 1978, 21k hours of programming per resident per day. Dr. Rice, the Commissioner of Mental Retardation for Southeast Pennsylvania felt that such programming would fulfill the minimum requirements to qualify for medical assistance (i. e., federal financing). However, he knew of no other set of standards which would consider this level of programming minimally acceptable, and personally did not feel that it was adequate. (N.T. 27-78). As a matter of practice, the Department of Mental Retardation for the Southeast Region will not approve a community living arrangement for a mentally retarded individual unless it provides for programming of at least five and one-half hours per day. (Rice, N.T. 27-80). C. Restraints at Pennhurst At Pennhurst, restraints are used as control measures in lieu of adequate staffing. (Clements, N.T. 2-82, 2-84; Roos, N.T. 1-135; Sprague, N.T. 3-44; Hersh, N.T. 13-153, Foster, Deposition at 81). This is not to say that restraints should never be used in the habilitation of the retarded. When an individual’s aggressive behavior interferes with his or her ability to take advantage of other programming which the individual should receive, or poses a physical threat to him or herself and others it may be proper to restrain that person. Soon, it is hoped, once the individual has benefited from the other programming, the restraint will not be needed. (Clements, N.T. 2-86). It is generally conceded that most, if not all, outbursts of violence by the retarded can be prevented by adequate programming. Seclusion rooms have been used to punish aggressive behavior. One eighteen year old individual spent six consecutive days in seclusion in 1974 for assaulting a Down’s Syndrome resident. (Lowrie, N.T. 5-6, 5-7). In 1975, a committee was formed to investigate the use of seclusion rooms at Pennhurst. It recommended that seclusion rooms, if they were to be used at all, should be limited to medical emergencies and should not be utilized for punishment. (Lowrie, N.T. 5-5). Seclusion rooms are still in use at Pennhurst (M. Conley, N.T. 16-150; Boyle, N.T. 17-72, 17-73; L. Miller, N.T. 77-102; Malone, N.T. 17-140, 17-141; Lowrie, N.T. 5-71), though the incidence of their use is less than it was in years past. There is now a policy that seclusion rooms be used only for medical emergency, when a resident becomes extremely abusive, and no other alternative will control the individual. One-to-one interaction with staff members is often effective in calming the resident and stopping this maladaptive behavior. However, since normally the wards are, at best, minimally staffed, there frequently is not a staff person who can be spared to participate in this intensive interaction. (Lowrie, N.T. 5-9; Miller, N.T. 17-122). Thus, seclusion is often necessary only because there is insufficient staff. (Lowrie, N.T. 4-131). Often physical restraints are also used due to staff shortages. An extreme example is a female resident who, during the month of June 1976, was in a physical restraint for 651 hours 5 minutes; for the month of August, 1976, was in physical restraints for 720 hours; during September, 1976, was in physical restraints for 674 hours 20 minutes; and during the month of October, 1976, was in physical restraints for 647 hours 5 minutes. (Matthews, Deposition at 64-68). This resident was extremely self-destructive — she totally blinded herself. She was not enrolled in occupational therapy until early 1977. Once initiated, her programming has apparently been quite successful, and she is now able to be out of restraints for as much as four hours per day. (Foster, N.T. 23-43). Had this programming been initiated earlier, her self-inflicted injuries might have been avoided or at least lessened. Physical restraints are potentially physically harmful and can create conditions in which physical injuries are more likely to occur (Clements, N.T. 2-87; Hirst, N.T. 7-131; Roos, N.T. 1-166), and prevent residents from learning or exercising self-care skills. (Clements, N.T. 2-87). Psychotropic drugs at Pennhurst are often used for control and not for treatment, and the rate of drug use on some of the units is extraordinarily high. (Hersh, N.T. 13-153). Dr. Sprague, an expert in psychopharmacology, testifying on behalf of the United States, conducted a survey of 39 residents at Pennhurst, a group which he considered to be statistically representative of the residents at Pennhurst. He found that 51% of the group were receiving psychotropic drugs, 35% of the group were receiving anti-convulsant medication, and 40% were receiving two or more psychotropic drugs at one time. (N.T. 3-36). In comparison with similar institutions throughout the country, Dr. Sprague stated that these percentages were very high, though he said that some institutions administer comparable levels. Dr. Sprague also found that Pennhurst residents on drugs were inadequately monitored. Without monitoring, one cannot determine whether the drug has been effective and whether it should be continued. Dr. Sprague found that in only 29% of the cases in which a drug was administered were its effects on the individual evaluated. (N.T. 3-45). He further testified that the drug practice at Pennhurst does not meet minimally professional standards and is physically hazardous to the residents. (N.T. 3-55, 3-90). One of the side effects of the use of psychotropic medication is that it may make the individual receiving it lethargic — so much so that the recipient may fall asleep during school, or during other times when activities and/or programming are being attempted. (Lowrie, N.T. 5-22). Other hazardous side effects of these drugs include hypersensitivity to sunlight; ataxia (inability to maintain balance and gait); and gingival hyperplasia (gum tissue condition marked by inflammation, bleeding and increased growth). (Hedson, Deposition at 59-61). Thus, the administration of such drugs actually impedes the habilitation of the resident, especially when used as a control rather than a habilitation device. D. Deterioration and Abuse of the Residents at Pennhurst The physical environment at Pennhurst is hazardous to the residents, both physically and psychologically. (Clements, N.T. 2-59). There is often excrement and urine on ward floors (Roos, N.T. 1-158; Smith, Deposition at 41), and the living areas do not meet minimal professional standards for cleanliness. (Youngberg, Deposition at 24). Outbreaks of pinworms and infectious disease are common (M. Conley, N.T. 16-193; Lowrie, N.T. 4-153; Hedson, Deposition at 122). As Superintendent Youngberg noted: There is not adequate space for [the residents. The living areas do] not provide privacy for those persons who can handle privacy. There does not seem to be adequate activity areas or program areas or even general activity areas within the general living area or even adequate activity program areas away from the home living area. (Deposition at 23). The environment at Pennhurst is not only not conducive to learning new skills, but it is so poor that it contributes to losing skills already learned. (Clements, N.T. 2-59). For example, Pennhurst has a toilet training program, but one who has successfully completed the program may not be able to practice the newly learned skill, and is therefore likely to lose it. (Clement, N.T. 2-36, 2-37). Moreover, most toilet areas do not have towels, soap or toilet paper, and the bathroom facilities are often filthy and in a state of disrepair. Obnoxious odors and excessive noise permeate the atmosphere at Pennhurst. Such conditions are not conducive to habilitation. (Dybwad, N.T. 7-52). Moreover, the noise level in the day rooms is often so high that many residents simply' stop speaking. (Clements, N.T. 2-59). Meals are eaten in a large group setting. Staff supervision is at a minimum, and residents are often free to steal food from other residents — which results in some residents not getting enough to eat. (Clements, N.T. 2-73). Obviously, diet control in such an environment is almost impossible. Injuries to residents by other residents, and through self-abuse, are common. For example, on January 8, 1975, one individual bit off three-quarters of the earlobe and part of the outer ear of another resident while the second resident was asleep. (Matthews, Deposition at 83). About this same period, one resident pushed a second to the floor, resulting in the death of the second resident. (Barton, Deposition at 67, 68). Such resident abuse of residents continues. In January, 1977 alone, there were 833 minor and 25 major injuries reported. (Youngberg, Deposition at 83). In addition, there is some staff abuse of residents. In 1976, one resident was raped by a staff person (Ruddiek, N.T. 3-115 to 3-117); one resident was badly bruised when a staff person hit him with a set of keys (Barton, Deposition at 40); another resident was thrown several feet across a room by a staff person (Ruddiek, N.T. 3-113; Caranfa, N.T. 12-79); and one resident was hit by a staff person with a shackle belt (Bowman, N.T. 13-83; Pirmann, N.T. 19-94). On each occasion, an investigation was conducted and the staff person responsible was suspended and/or terminated (Ruddiek, N.T. 3-114; Bowman, N.T. 13-82, 13-83, 13-84; Pirmann, N.T. 19-94). Many of the residents have suffered physical deterioration and intellectual and behavioral regression during their residency at Pennhurst. Terri Lee Halderman, the original plaintiff in this action, was admitted to Pennhurst in 1966 when she was twelve years of age. During her eleven years at Pennhurst, as a result of attacks and accidents, she has lost several teeth and suffered a fractured jaw, fractured fingers, a fractured toe and numerous lacerations, cuts, scratches and bites. Prior to her admission to Pennhurst, Terri Lee could say “dadda”, “mamma”, “noynoy” (no), “baba” (goodby) and “nana” (grandmother). She no longer speaks. (Halderman, N.T. 9-69, 9-71, 9-78, 9-87, 9-88). Plaintiff Charles DiNolfi was admitted to Pennhurst when he was nine years old; he is now forty-five and has resided at the institution continually except for short stays at White Haven State School and Hospital. (Hunsicker, N.T. 9-39). Dorothy Hunsicker, his sister, testified that whenever she or her family visited him, Mr. DiNolfi had some type of bandage on. (Id.) Twenty-six years ago, while at Pennhurst, Mr. DiNolfi lost an eye. A Pennhurst physician told Ms. Hunsicker that Mr. DiNolfi slipped while taking a shower, and hit the spigot with his eye. The sight in his remaining eye has been impaired due to injury. (Id., N.T. 9-46, 9-47). He has only a few teeth remaining and his nose has been battered. (Id., N.T. 9-41). Plaintiffs Robert and Theresa Sobetsky were admitted to Pennhurst on November 29, 1971. They were placed on extremely overcrowded wards where beds were placed in the aisles. Robert was never assigned to a particular bed. (Sobetsky, N.T. 9-145, 9-146). During his residency at Pennhurst, Robert Sobetsky suffered from bruises, bites, scratches, welts and he smelled of urine. (Id., N.T. 9-147, 9-148). His record shows a number of reported injuries, some of which, though labeled minor injuries, represented bruises that were three to five inches in length. (Id., 9-151, 9-152). Theresa also suffered such injuries. (Id., N.T. 9-148). Plaintiff Robert Hight, born in 1965, was admitted to Pennhurst in September, 1974. He was placed on a ward with forty-five other residents. His parents visited him two and one-half weeks after his admission and found that he was badly bruised, his mouth was cut, he was heavily drugged and did not recognize his mother. On this visit, the Hights observed twenty-five residents walking the ward naked, others were only partially dressed. During this short period of time, Robert had lost skills that he had possessed prior to his admission. The Hights promptly removed Robert from the institution, Mrs. Hight commenting that she “wouldn’t leave a dog in conditions like that.” (N.T. 11-22, 11-23). Plaintiff George Sorotos entered Pennhurst in 1970 at the age of seven. In the seven years that George has been at Pennhurst, his former foster mother, Marion Caranfa, testified that in her weekly visits to Pennhurst there have been only four occasions when George was not injured. (N.T. 12-63). During this period, he has suffered from numerous reported injuries, including bites, scratches, black eyes and loss of teeth. In addition, Mrs. Caranfa testified that she recently observed what appeared to be cigarette burns on George’s chest. (N.T. 12-65). Plaintiffs Larry and Kenny Taylor entered Pennhurst on February 28, 1961. In the early 1970’s, Mrs. Taylor questioned the staff about the medication being given to Larry. He was very lethargic, falling asleep at school and barely able to walk. (Taylor, N.T. 13-24). The physician in charge of Larry’s unit, checked Larry’s medical record and found that he was on dilantin, a drug used to control epileptic seizures. Mrs. Taylor testified that Larry had had only one seizure that she knew of and that had been when he was a baby. Larry was removed from dilantin and placed on mellaril, a psychotropic drug. This, too, made him lethargic. (Id., N.T. 13-26 to 13-28). Larry and Kenny were transferred to Woodhaven in 1975 where Mrs. Taylor testified that Larry does not receive any psychotropic medication, and is able to walk independently. (Id., N.T. 13-32). Larry was often injured while at Pennhurst; on one occasion, he was hospitalized for two weeks because of head and face injuries he received as a result of a beating by another resident. (Id., N.T. 13-30). Kenny, too, suffered serious injuries while at Pennhurst. (Id., 13-29). Plaintiff Nancy Beth Bowman entered Pennhurst at the age of ten in 1961. She was placed on a large ward which had sixty-five residents and often only two childcare aides in attendance. (Bowman, N.T. 13-71; Pirmann, N.T. 19-89). During her residency at Pennhurst she developed maladaptive behavior, i. e., biting and pushing. (Bowman, Id.) As a result of this maladap- • tive behavior she has been placed in seclusion for days at a time. (Id., N.T. 13-71). While at Pennhurst, she has lost teeth, been badly bruised and has been abused by the staff. (Id., N.T. 13-72, 13-73, 13-81). When asked about her present physical condition Nancy Beth’s mother replied, “Nancy Beth will be scarred for the rest of her life.” (Id., N.T. 13-94). Plaintiff Linda Taub, who is blind in addition to being retarded, was admitted to Pennhurst in 1966 at the age of fifteen. According to her father, during her nine year residency at Pennhurst Linda received only custodial care and she experienced regression rather than growth. (Taub, N.T. 2-170). Time on the ward was spent sitting and rocking, with few activities. (Id., N.T. 2-155). During one of their visits in 1968, Linda’s parents found Linda, a person capable of walking, strapped to a wheelchair by a straightjacket. A staff member explained that by strapping her into the chair, they would know exactly where Linda was. (Id., N.T.-2-152, 2-153). While at the institution, Linda was badly bruised and scarred. (Id., N.T. 2-164). E. Voluntariness Approximately 21 of the 45 living units at Pennhurst are locked (Matthews, Deposition at 34) to prevent individuals from leaving their living units. (Uphold, Deposition at 139). Those individuals over the age of 18 who have been “voluntarily” admitted to Pennhurst are theoretically free to leave the institution' at any time. (Allen, N.T. 21-185). Those admitted on the petition of their parents are informed by their caseworker when they reach the age of 18 that they do not have to remain at Pennhurst. If the residents state that they wish to leave the institution and the staff determines that there is no place for them in the community, or believes that the individuals are not ready to go into the community, the staff will petition the courts to have the individuals committed to the institution by a court. (Id., N.T. 21-186, 21-205). Furthermore, those residents who either do not understand their alternatives, or are physically unable to indicate that they wish to leave Pennhurst, will be deemed to have consented to their continued placement at the institution. (Id., N.T. 21-210). Thus, the notion of voluntariness in connection with admission as well as in connection with the right to leave Pennhurst is an illusory concept. Few if any residents now have, nor did they have at the time of their admission, any adequate alternative to their institutionalization. As a practical matter, Pennhurst was and is their only alternative. F. Community Services in the Five County Area Since the early 1960’s there has been a distinct humanistic renaissance, replete with the acceptance of the theory of normalization for the habilitation of the retarded. Mason & Menolascino, supra note 6, at 136. The principles of normalization are an outgrowth of studies showing that those in large institutions suffered from apathy, stunted growth and loss in I. Q., and that the smaller the living unit on which the retarded individual lived, the higher the level of behavioral functioning shown by the individual. (Roos, N.T. 1-96 to 1-104). Under the principles of normalization, the retarded individual is treated as much like the non-retarded person as possible. (Id, N.T. 1-106, 1-107). The basic tenet of normalization is that a person responds according to the way he or she is treated. (Glenn, N.T. 5-186, 5-187). The thrust of habilitation through normalization is the remediation of the delayed learning process so as to develop the maximum growth potential by the acquisition of self-help, language, personal, social, educational, vocational and recreation skills. Mason & Menolascino, supra note 6, at 139-140. The older theories of habilitating the retarded stressed protecting the individual, and were characterized by little expectation of growth. Given this lack of expectation, the individual rarely exhibited growth. However, once removed from depressing, restrictive routines, the retarded have been able to accomplish a great deal. (Dybwad, N.T. 7-160). The environment at Pennhurst is not conducive to normalization. It does not reflect society. It is separate and isolated from society and represents group rather than family living. (Hirst, N.T. 7-124). The principles of normalization have been accepted by the administration of Pennhurst and by the Department of Public Welfare, which is responsible for the administration of programs for the retarded in the five county area (Youngberg, N.T. 22-171; Rice, N.T. 26-43 to 26-45; Bilyew, N.T. 24-13; Hirst, N.T. 7-120), and the current intention of the Department of Public Welfare is to transfer all residents from Pennhurst by the early 1980’s. (Rice, N.T. 28-48). The five county area (Bucks, Chester, Delaware, Montgomery and Philadelphia) has some community facilities providing for the education, training and care of the retarded covering all ages of retardation, including the profoundly retarded with multiple handicaps. (Girardeau, N.T. 4-140, 4-141). These community facilities have been an outgrowth of the acceptance of the principle of normalization and the rejection of institutions such as Pennhurst in connection with the habilitation of the retarded. Many individuals now living at Pennhurst could be moved immediately into the community and would be able to cope with little or no supervision. (Settle, N.T. 6-126; Hirst, N.T. 7-116). All the parties in this litigation are in agreement that given appropriate community facilities, all the residents at Pennhurst, even the most profoundly retarded with multiple handicaps, should be living in the community. (Dybwad, N.T. 7-68). The primary limiting factor in the transfer of Pennhurst residents to community facilities has been the failure of the Commonwealth and its subdivisions to provide sufficient living units, vocational and day care facilities and other support services at the community level. Since fiscal year 1972, only 186 Pennhurst residents have been transferred from the institution directly into community living units (Bilyew, N.T. 24-50); although 176 others were transferred from Pennhurst to other institutions during 1974 and 1975. (Clark, N.T. 21-170). In November, 1970, Act 256 was signed by the Governor of Pennsylvania. This legislation appropriated twenty-one million dollars for the purpose of planning, designing and constructing community facilities which would enable 900 Pennhurst residents to be transferred to the community. In 1971, the McDowell report was prepared at a cost of $68,000. It detailed the programs and services needed to support the 900 Pennhurst residents in the community and provided a blueprint for the implementation of the Act. (Samuels, N.T. 23-9, 23-10, 23-55). Though seven years have passed since the Act was signed, few of the facilities have become operational. The Department of Public Welfare now expects this program to be completed by 1980. (Id., N.T. 23-44). Over eighteen million dollars of this fund remains unspent but is allocated to building these facilities. (Stipulation, N.T. 7-97). As of April 25, 1977, however, only 37 Pennhurst residents have directly benefited from the Act. (Samuels, N.T. 23-80). Comparable facilities in the community are generally less expensive than large isolated state institutions. Services can be purchased at regular rates, rather than at rates which must be paid to attract individuals to work in a setting like Pennhurst. (Conley, N.T. 11-107). The cost of running Pennhurst in 1976 was $27.8 million dollars, or $60 per resident per day. (Id., N.T. 12-28). This does not include the fair rental value of the buildings at Pennhurst (estimated at $3-$4 per resident per day). (Id., N.T. 11-114). The statewide cost of community living arrangements in Pennsylvania for 1976 was $17.64 per individual per day. (PARC Exhibit 63, 64). Program services, which Vs of mentally retarded individuals would need, average approximately $10 per individual per day. (Conley, N.T. 11-116, 11-117). Moreover, keeping the retarded individual in the community makes it possible for him or her to get employment. Eighty-five percent of the mentally retarded can be employed, though not all are capable of competitive employment. (Settle, N.T. 7-4). The lifetime earnings of a mildly retarded individual often exceeds $500,000. (Conley, N.T. 12-21). For those with an I.Q. between 25 and 50, 45% of men and 12% of women earn about 20% of the average wage. (Id., N.T. 12-31). When the retarded can work, the amount of financial support which society must provide decreases and the individuals may benefit society with the taxes they pay. Furthermore, the investment per individual at Pennhurst is primarily for warehousing and not for the individual’s well-being or future planning, as is the case with community facilities. (Id., N.T. 11-23, 11-24). G. County Participation The counties presently have a financial incentive to send their retarded to Pennhurst rather than provide them with habilitation within the community. When a retarded individual is placed in a state institution, such as Pennhurst, the Commonwealth pays 100% of the costs incurred in the habilitation of the individual. However, if the individual receives services within the community, the county must provide 10% of the funds necessary to provide some of the services. Every mentally retarded individual within the Commonwealth is assigned to a Base Service Unit (BSU) which is the county unit responsible for arranging community and institutional placements and for coordinating services for the individual. (Rice, N.T. 25-67). Pennhurst residents are assigned to a BSU either on the basis of where they resided prior to admission to the institution, or where their family presently resides. Almost all of the parents of Pennhurst residents who testified stated that they had little or no contact with their child’s BSU. (Hunsicker, N.T. 9 — 49; Taylor, N.T. 13-30). The BSU’s are invited to attend their residents’ annual program review, but almost never do. (Roy, N.T. 15-134; Hare, N.T. 8-176). The BSU’s often fail to investigate the least restrictive alternative for the retarded individual under their charge. Placement at Pennhurst is often the only alternative presented to the committing judge at court commitment proceedings. The BSU’s have been doing little to prepare Pennhurst residents to leave Pennhurst. Although the Pennsylvania Department of Public Welfare, Pennhurst staff and county officials are in complete agreement that the residents of Pennhurst should be transferred as soon as practicable to appropriate community facilities, apparently no one has taken the initiative to accomplish this objective. (Hersh, N.T. 13-136). The five county defendants are not in compliance with the Commonwealth’s Community Living Arrangement (CLA) policy that at least 50% of the residents for these living facilities must be drawn from institutions. In contrast to other regions in the state, the counties which Pennhurst serves have a lower percentage of CLA residents drawn from institutions than from the community. (Knowlton, Deposition at 52). IV. The Merits This case concerns the constitutional and statutory rights of retarded persons institutionalized at Pennhurst. Our discussion herein pertains to the retarded, individuals who, because of circumstances beyond their control, are unable to function at the same educational and behavioral levels as the rest of society. It concerns solely the retarded and not persons who are mentally or emotionally ill. These are individuals who have not broken any laws, carry no contagious disease and are not in any way a danger to society. If anyone is in need of training, education and care, they are. At issue is whether the Commonwealth’s system of incarcerating the retarded in an institution known as Pennhurst in any way violates their constitutional or statutory rights. Having concluded the trial phase of the liability portion of this litigation, it has become apparent that by and large the parties share the same goals: all desire to improve the education, training and care provided the retarded in Pennsylvania and believe that Pennhurst should be closed and that all the residents should be educated, trained and cared for in the community. All agree that institutions such as Pennhurst are inappropriate and inadequate for the habilitation of the retarded. Defendants agree with plaintiffs’ contention that the habilitation provided Pennhurst residents does not meet minimally acceptable professional standards. The Commonwealth in recent years has been attempting to upgrade Pennhurst and the education, training and care provided therein to its retarded residents. Moreover, the Pennsylvania Department of Public Welfare’s current plans call for the transfer of all Pennhurst residents from the institution into the community (though perhaps temporarily into other institutions) by the early 1980’s. Defendants contend, however, that they are neither constitutionally nor statutorily mandated to make these transfers or to upgrade the care, education and training provided at Pennhurst. It is their position that no constitutional or statutory rights have been violated. We disagree. Moreover, defendants’ plans to upgrade and eventually close Pennhurst have little, if any, bearing on the issue of whether the statutory or constitutional rights of Pennhurst’s retarded residents have been, or are being, violated. As the court in Welsch v. Likins, 373 F.Supp. 487, 498 (D.Minn.1974), aff’d in part, vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977), stated: good faith is not at issue here. “[R]ather the issue is of the protection of the constitutional rights” of the residents. . It does not suffice, therefore, to show that conditions have been upgraded at [the institution], that the situation will continue to improve in the future, and that even more achievements would be forthcoming were it not for the restrictions imposed by the legislature. It is the Court’s duty, under the Constitution, to assure that every resident of [the institution] receives at least minimally adequate care and treatment consonant with the full and true meaning of the due process clause. A. Constitutional Right to Minimally Adequate Habilitation The Supreme Court has not as yet stated that the retarded have a constitutional right-to habilitation. It has, however, discussed the right to treatment of the mentally ill. O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Donaldson had been civilly committed to a state mental hospital in 1957 and had remained there involuntarily for nearly fifteen years. Repeatedly, but without success, he had demanded his release, contending that he was neither dangerous nor mentally ill, and that even if he were mentally ill, that he should be released since the hospital had not provided him with treatment for his illness. The Donaldson holding is very narrow: “a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” Id. at 576, 95 S.Ct. at 2494. Donaldson allegedly was suffering from “paranoid schizophrenia”, id. at 565, 95 S.Ct. 2486, and was not retarded. When dealing with the retarded, the concern is for “habilitation” rather than for “treatment”. The use of the concept “habilitation” instead of “treatment” in the context of mental retardation reflects an awareness that “mental illness” is not synonymous with “mental retardation.” Mental illness concerns an inability to cope with one’s environment regardless of intellectual level. Mental illness can occur at any stage of life while mental retardation is considered to be a developmental disability beginning in the early years. Mason & Menolascino, supra note 6, at 147 n. 72 (1976). Although we are convinced that the concept of “habilitation” for the retarded and “treatment” for the mentally and emotionally ill are separate and distinct concepts which should never be confused, in dealing with the question of the right of the retarded to adequate habilitation one must consider, to the extent applicable, those cases which deal with the right to treatment of the mentally ill. A great deal of scholarly and judicial attention has been focused on the question of a constitutional right to treatment and habilitation since Dr. Morton Birnbaum’s seminal work, The Right to Treatment, 46 A.B.A.J. 499 (I960). Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966), was one of the first federal cases to deal with the right to treatment. Rouse had been involuntarily committed to a mental hospital following his acquittal by reason of insanity of a misdemeanor for which the maximum term of imprisonment was one year. Rouse filed a petition for habeas corpus which the district court denied, contending that he had a right to be released if he was not accorded adequate treatment. Although the Circuit Court reversed on the basis of a District of Columbia statute, Chief Judge Bazelon stated that “involuntary confinement without treatment is ‘shocking’ ”, id. 125 U.S.App. D.C. at 370, 373 F.2d at 455, and noted that the purpose of involuntary hospitalization is treatment and not punishment. Id. 125 U.S.App.D.C. at 367, 373 F.2d at 452. He pointed out that a statute which provides for the mandatory commitment of an individual acquitted of a criminal offense by reason of insanity is permissible only because of its “humane therapeutic goals,” and concluded that if treatment were not required under the statute, the statute might violate the Due Process, Equal Protection and Cruel and Unusual Punishment Clauses of the Constitution. Id. 125 U.S. App.D.C. at 368, 373 F.2d at 453. Civil commitment entails a “massive curtailment of liberty”. Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). The only permissible justifications for committing the mentally ill are: (1) danger to the individual, (2) danger to others, and (3) need for treatment. Jackson v. Indiana, 406 U.S. 715, 737, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974). Although this Court entertains serious doubts as to whether retarded individuals should ever be subjected to “commitment”, there is no doubt that under the present case law, the only possible justification for committing the retarded to an institution such as Pennhurst is to provide them with habilitation, i. e., education, training and care. Failure to provide adequate habilitation may well mean commitment for the life of the retarded individual. Welsch v. Likins, 373 F.Supp. 487, 497 (D.Minn.1974), aff’d in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977). In fact, at Pennhurst the average residency is twenty-one years. Moreover, as the Court stated in Jackson v. Indiana, 406 U.S. at 738, 92 S.Ct. at 1858, “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purposes for which the individual is committed.” Since the only justifiable purpose for the commitment of the retarded is habilitation, if habilitation is not provided, the nature of the commitment bears no reasonable relation to its purpose and the individual’s due process rights have been violated. Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507, 521 (5th Cir. 1974), vacated, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Supreme Court held that incarceration solely on the basis of an individual’s status constitutes cruel and unusual punishment. (Robinson was convicted of being a narcotics addict.) As was pointed out in Welsch: because plaintiffs [retarded individuals] have not been guilty of any criminal offenses against society, treatment is the only constitutionally permissible purpose of their confinement, regardless of procedural protections under the governing civil commitment statute. . . . This argument rests upon the Eighth and Fourteenth Amendments, relying principally upon the Supreme Court’s decision in Robinson v. California . .. The plaintiffs in the instant action are not criminals; they are victims of uncontrollable “status.” If they are subject to “detention for mere illness — without a curative program,” . . . plaintiffs will be within the ambit of the Robinson proscription. 373 F.Supp. at 496. Thus, commitment of the retarded can withstand constitutional scrutiny only when it is coupled with minimally adequate habilitation. See United States v. Jackson, 179 U.S.App.D.C. 375, 385, 553 F.2d 109, 119 (1976). Of the federal courts which have considered the right to habilitation issue in connection with involuntarily committed retarded individuals and the right to treatment of involuntarily committed mentally or emotionally ill individuals, only two reported cases have been called to our attention which denied the existence of such a constitutional right: Burnham v. Department of Public Health of the State of Georgia, 349 F.Supp. 1335 (N.D.Ga.1972), and New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973). Burnham was reversed by the Fifth Circuit, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057, 95 S.Ct. 2680, 45 L.Ed.2d 709 (1975), and the Rockefeller court, in approving a consent decree in that action appeared to be questioning its earlier finding of no constitutional right to treatment: Somewhat different legal rubrics have been employed in [the Donaldson, Wyatt line of] cases — “protection from harm” in this case and “right to treatment” and “need for care” in others. It appears that there is no bright line separating these standards. In the present posture of this case, there is no need for the court to re-examine the constitutional standard properly applicable to Willowbrook’s residents. The relief which the parties agreed to will advance the very rights enunciated in the case law since this court’s 1978 ruling. New York State Ass’n for Retarded Children, Inc. v. Carey, 393 F.Supp. 715, 719 (E.D.N.Y.1975). The other courts which have examined the issue have all found a constitutional right to treatment or habilitation. See, e. g., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Gary W. v. Louisiana, 437 F.Supp. 1209 at 1219, (E.D. La.), modified, October 28,1976 (involuntarily committed retarded children have a constitutional right “to a program of treatment that affords the individual a reasonable chance to acquire and maintain those life skills that enable him to cope as effectively as his own capacities permit with the demands of his own person and of his environment and to raise the level of his physical, mental and social efficiency”); Woe v. Mathews, 408 F.Supp. 419, 429 (E.D.N.Y. 1976), remanded in part, dismissed in part sub nom. Woe v. Weinberger, 556 F.2d 563 (2d Cir. 1977) (“[a]s a tentative formulation it would seem encumbent upon the State as confiner ... to employ whatever means are necessary, including such care and treatment as are reasonably possible in the circumstance of the case, to promote the speedy release and return to liberty of the person confined.”); Davis v. Watkins, 384 F.Supp. 1196, 1197 (N.D.Ohio 1974) (the court, dealing with a state facility apparently serving both mentally ill and retarded individuals held that “the State, upon committing an individual ‘until he regains his sanity’, incurs a responsibility to provide such care as is reasonably calculated to achieve that goal.”); Saville v. Treadway, 404 F.Supp. 430 (M.D.Tenn.1974) (three-judge court), consent agreement approved, 404 F.Supp. 433 (retarded individuals in state institutions have right to habilitative services); Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974), aff’d in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977) (retarded individuals involuntarily committed to state institutions have a constitutional right to treatment). The Third Circuit has not yet decided the right to treatment or habilitation question. However, in Scott v. Plante, 532 F.2d 939, 947 (1976) it r