Full opinion text
MEMORANDUM OPINION DEVINE, Chief Judge. The model of democracy adopted for (both federal and state) governance in the United States provides that the legislative branch shall raise and allocate funds necessary for the common good. Not unusually, there are more competitors for a share of such funds than there are funds to be divided. When, as in the instant litigation, a defined group perceives it is being deprived of what it believes to be an “entitlement”, litigation ensues. This is more particularly true when such group comprises a segment of society which, “because of its position of political powerlessness, is least able” to ensure its right to priority upon the legislative fiscal agenda. This litigation “inhabits the twilight area of developing law concerning the . . . rights of the . . . mentally retarded”. The named plaintiffs in this class action are residents of Laconia State School & Training Center (hereinafter “LSS”), the only institution of the State of New Hampshire for the provision of services to the mentally retarded. Procedurally the relief sought is injunctive in nature, seeking vindication of the rights of plaintiffs and those of similarly situated mentally retarded citizens of New Hampshire. The substantive relief sought arises in the context of certain federal statutes, including the Developmentally Disabled Assistance and Bill of Rights Act, *the Nondiscrimination section of the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act. Plaintiffs additionally claim relief under the New Hampshire statute entitled “Services for the Developmentally Impaired”, and also claim that the actions complained of have deprived them of their rights pursuant to the Federal Constitution. In a trial of approximately forty days before this Court, plaintiffs attacked the conditions at LSS, adducing evidence about numerous specific programs and practices thereat, and calling into question the validity of institutional life itself. To that end, plaintiffs offered the testimony of a bevy of experts on the issue of whether habilitation can ever be provided in the traditional institutional setting as opposed to a setting in the “community”. The ultimate relief which the plaintiffs herein seek is a ruling to the effect that their right to habilitation requires that such be effected in the least restrictive alternative, i. e., community placement. As put by plaintiffs’ counsel: the relief which these parties seek is the creation of a network of community-based services which will provide for and be available to Laconia residents. The reason this case has gone through a prolonged trial is because the parties disagree on one major point: the responsibility on the part of the State of New Hampshire to affirmatively create these community programs. The Court has accordingly been required to review the volumes of depositions, exhibits, and other evidence in an effort to arrive at a just resolution of these contentions. Institutional reform cases of this type require courts to venture into areas foreign to their traditional expertise — including the fields of medicine, sociology, psychiatry, and education — an excursion which this Court undertakes with some trepidation. However, the important constitutional and statutory rights invoked by the parties require that such concerns be addressed. I. The Parties This action was commenced on April 12, 1978, by six mentally retarded residents of LSS (whose backgrounds will be briefly summarized below), joined by the New Hampshire Association for Retarded Citizens (“NHARC”), a non-profit corporation whose members include developmentally disabled persons and parents, guardians, relatives, and friends of mentally retarded citizens in New Hampshire. On November 29, 1978, over the objection of defendants, the Court granted the United States of America leave to intervene in this lawsuit pursuant to Rule 24, Fed.R.Civ.P.; the United States filed its Complaint in Intervention on December 1, 1978. Following extensive discovery by the parties on the issue of class certification, the Court granted plaintiffs’ motion to certify this as a class action, defining said class as follows: (1) Class Developmentally disabled persons who are presently residing at LSS or who in the future may be institutionalized or reinstitutionalized at LSS. (a) Subclass Persons between the ages of three and twenty-one years who are or in the future may be confined at LSS, and whose rights under the Education of the Handicapped Act, 20 U.S.C. § 1401, et seq., may be violated. In the above class certification Order dated February 22, 1980, the Court emphasized that it construed plaintiffs’ Complaint to challenge only the conditions at LSS itself in an effort to make this lawsuit more manageable and as a signal to the parties that the Court would not entertain a generalized assault on the State of New Hampshire’s mental health and education systems. The above class is represented by six named plaintiffs, whose profiles the Court has set out below. 1. Sandra Garrity is an eighteen-year-old resident of LSS who was admitted to the School in 1966 at the age of eight by order of the Hillsborough County Probate Court, upon petition by her parents and legal guardians. Although the étiology of her mental retardation is in question, it appears that at the age of nine months she had her first seizure, which was associated with the measles. Since then she has had a history of convulsive seizures, psychiatric impairment, behavioral disorder, and speech impediment, and has been diagnosed as “moderately mentally retarded” as late as May 14,1976, and more recently as “severely mentally retarded”. Ms. Garrity resides in Floyd I and takes frequent vacations with her family. Plaintiffs allege that since her commitment to LSS, Ms. Garrity has lost communication skills and some of her self-care and toileting skills; that she now walks badly and rocks constantly; that she has sustained numerous bodily injuries because of lack of supervision; that she has been given inappropriate drugs by untrained ward attendants; and that she has been placed in physical restraints, all of which have caused her to regress and deteriorate. 2. Nancy Haggerty is a thirty-two-year-old resident of LSS admitted by court order in 1962 at the age of 17 after having spent two years at the New Hampshire Hospital. Her parents are her legal guardians. Although as a child she walked at age nine months and talked at thirteen months, she shortly thereafter developed spinal meningitis and convulsions. She resides at Keyes Building, and visits regularly with her family. Ms. Haggerty’s medical record, which is one of the more inadequate records at the School, reflects that she has been diagnosed as “severely mentally retarded”. As with Sandra Garrity, Ms. Haggerty’s primary problem is maladaptive behavior. Although plaintiffs admit that Ms. Haggerty had maladaptive behavioral problems prior to her commitment to LSS, they allege that defendants have exacerbated the problem by indiscriminately administering psychotropic drugs. The effect of the ingestion of drugs plus a lack of habilitative programs has allegedly caused her to become self abusive as well as unmotivated. Plaintiffs also claim that she has sustained many injuries, either accidentally or otherwise, for which no causes have been documented. 3. Richard Pond has lived almost one half of his life at LSS, having been committed by court order in 1961 at the age of 19 when he reportedly had a dramatic change of personality. At the time of the Complaint, Mr. Pond was diagnosed in the “mild” range of mental retardation, although a recent report filed in February 1980 recommended that his AAMD diagnosis be changed to a higher functioning category, “borderline of intelligence”. Mr. Pond’s abstract reasoning skills are fairly well developed (he enjoys talking politics and is fascinated with the study of American history and electricity), and his self care skills are good. He is afflicted, however, with a psychiatric impairment known as “schizophrenia, simple type”. Mr. Pond is apparently unable to cope with personal pressure, which defendants say accounts for his failure to adjust to three different community placements — at Great Bay Training Center in Portsmouth, New Hampshire; at a foster home; and at a group home in Danbury, New Hampshire. Plaintiffs have alleged that defendants did not adequately diagnose Pond prior to his transfer and that this lack of preparation caused his failure in the community. They claim that LSS defendants regularly administer psychotropic drugs to Pond without his consent and that he has been placed in isolation rooms for punitive purposes. Mr. Pond has no legal guardian. 4. Debra Roman is the other named plaintiff who at the time of the Complaint lacked a legal guardian. After entering kindergarten in Lebanon, New Hampshire, at the age of six, Ms. Roman progressed slowly. She was eventually placed in a special trainable class in the Lebanon School, but was admitted to the State School in 1970 at the age of 13 by her parents when her behavior became aggressive. Like Richard Pond, Ms. Roman falls in the upper range of mental retardation (she has been diagnosed as “moderately retarded”). Her health is adequate, except for her problem with obesity, and her self care skills are good. Like Pond, she is severely compromised by her psychotic tendencies, for which she has received medication and for which she has occasionally been transferred to Keyes Building as a disciplinary technique. During most of her time at Laconia, Ms. Roman has resided in Blood Building, although she spent a short time in Peterson Cottage. Plaintiffs allege that her transfer to the Cottage was without adequate preparation, and that it therefore resulted in her failure to adjust and her subsequent bad reaction. «Plaintiffs also allege that Ms. Roman has sustained a number of injuries at LSS, and has steadily regressed since her entrance to the School. 5. Janet Smith is one of three plaintiffs representing the “subclass” of plaintiffs under the age of 21. Her parents and legal guardians had her admitted to LSS at the age of five. An epileptic with severe brain damage, Ms. Smith is blind in the left eye and deaf in the left ear, and has little use of the left side of her body. She has ongoing major motor seizures, for which she receives medication. She reportedly could walk at one time in her life before she arrived at the School, and although defendants once attempted corrective procedures with a leg brace, they later ceased such endeavors. Currently she is non-ambulatory. Ms. Smith resides in Dube C, and is totally dependent on staff members for all of her daily activities. Her parents have requested that she not be allowed to interact with other residents. They frequently visit her and often take her home for what amounts to about four months of each year, which the staff at the School says has a deleterious effect on her habilitation. Plaintiffs allege that since Janet Smith’s entrance to LSS she has regressed physically, claiming that she has been “irreversibly crippled” by inappropriate posturing and lack of physical therapy. 6. Thomas Vaillancourt, aged 14 at the time of the commencement of this lawsuit, also represents the plaintiff subclass. Mr. Vaillancourt was afflicted with a prenatal brain infection known as “toxoplasmosis”, a diffuse and severe infection of the complete brain, resulting in a profound level of retardation. He is mentally and visually handicapped and has hearing and seizure disorders. He has “spastic quadroplases” (all four limbs are involved), mild cerebral palsy, and curvature of the spine in two different planes. In short, Mr. Vaillancourt has acute and maintenance health needs. He is non-ambulatory, and completely dependent on the staff for care. At the time of the Complaint, he resided in King Building, where plaintiffs allege he is often strapped to a chair or lying on a mat. From 1977 to 1979 Vaillancourt was repeatedly recommended for occupational therapy, but such was never delivered. According to plaintiffs, the lack of habilitation treatment afforded Mr. Vaillancourt has resulted in his regression and debilitation. Defendants in this lawsuit are several officials of the State of New Hampshire, including the Governor, who have been sued in their official capacities only. Since the original Complaint was filed on April 12, 1978, the State ushered in a new administration; thus, on August 20,1979, the Court granted defendants’ motion to substitute party defendants. The defendants are as follows: The Governor of the State of New Hampshire, Hugh J. Gallen; the Commissioner of the Department of Health and Welfare, Edgar J. Helms; the Commissioner of the State Department of Education, Robert M. Brunelle; the Director of the Division of Mental Health, Gary E. Miller, M. D., Director of the Division of Public Health, Richard G. Lacombe; the Director of the Division of Public Health Services, Maynard H. Mires, M.D.; the Superintendent and Chief Administrator of Laconia State School, Jack E. Melton; the Chief of the Offices of Mental Retardation, Manfred Drewski; members of the State Board of Education, including John Holland, Edward C. Sweeney, Jr., Shirley Ganem, Ivan A. Hackler, George F. Hurt, Betty Anne Lavalle, and Marianne Noyes; and the Chief of the Division of Vocational Rehabilitation of the State Department of Education, Bruce Archambeault. II. Conditions at Laconia State School Laconia State School and Training Center, the State’s only public residential facility for the retarded, was conceived by act of the Legislature in 1901 and came into existence in 1903. Once known as the “School for the Feeble-Minded”, the School’s original purpose was to provide special treatment to children, but its scope was soon widened to accommodate “adult defectives” in order to serve the dual purpose of caring for these individuals while at the same time providing a “safeguard[] whereby society may protect itself from the vice, corruption, and licentiousness with which it is threatened when anyone of this defective class is left unrestrained and unprotected in the community”. As societal attitudes have changed and evolved over the ensuing years, LSS has evolved with them. The School has expanded from a singular dormitory building in 1903 to its present physical plant on 437 acres in Laconia, New Hampshire, consisting of twelve living units and twenty-two auxiliary buildings, including a recently constructed training and education center, the Arthur E. Toll Habilitation Complex (hereinafter “Toll”). Likewise, the School’s population has fluctuated between a mere sixty residents in 1903 to a peak population in 1970 of 1167 residents; at the time of the trial the in-residence population was 564. Approximately eighty of these residents are under the age of twenty-one years, and the rest are fairly evenly distributed in chronological age from twenty-one to sixty-two, with just a few over the age of sixty-two. Fifty-seven percent of the client population has been institutionalized for more than twenty years, thirty-two percent have been in the institution from ten to twenty years, and eleven percent have been at LSS for ten years or less. Admission to LSS is “voluntary”, in the sense that no individual shall be admitted without his or her consent or, in the case of a minor or a legally adjudicated incompetent person, without the consent of his or her parent or guardian. N.H. RSA 171-A:5 (Supp.1979). For those individuals who are incapable of managing their own affairs and who lack guardians, N.H. RSA 171-A:10 II (Supp.1979) requires the administrator of LSS to petition the probate court for appointment of same. The statute provides that prior to admission a comprehensive screening evaluation take place, N.H. RSA 171-A:6 II, and that a hearing be afforded to any applicant who challenges the appropriateness of his or her placement, or whose legal guardian challenges same. The client is entitled to representation by legal counsel at such hearing, and the results are appeal-able to the State’s Superior Court. The admission procedures set out herein are of recent vintage; prior to 1975 individuals could be committed to LSS by court order, as indeed four of the named plaintiffs were. Notwithstanding the change in procedure, several residents at LSS still lack guardians, including named plaintiff Richard Pond. As for termination of services, N.H. RSA 171-A:7 (Supp.1979) indicates that a client is free to withdraw entirely from the service delivery system at any time; however, defendants admitted that if a resident who lacks a guardian was deemed to be incompetent by an interdisciplinary team, the staff might refuse to release him on his own request. As a whole, the population at LSS falls predominantly into the “severe” and “profound” ranges of mental retardation, as defined by the AAMD. A 1980 survey places the population by percentages into the following levels of retardation: Borderline 2% Mild 9% Moderate 19% Severe 33% Profound 37%. The “under twenty-one” category at LSS is even more skewed toward the “profound” range of mental retardation, with fifty-two percent having been diagnosed as falling within the AAMD category of “profound” mental retardation. Most recent admissions to LSS have tended to be in the “severe” and the “profound” ranges, regardless of age. Defendants’ Exhibit 34. The quality of the living quarters at LSS is inconsistent, at best. Of the twelve buildings, only six are certified by the federal government as Intermediary Care Facilities for the Mentally Retarded (“ICFMR”), and these have a maximum capacity of 276 residents. T. Gunther. It was undisputed at trial that of these six buildings, the four “cottages”, Dube, Peterson, Rice, and Speare, are by far the most desirable residences at LSS, in that they not only have sound structures, but they also provide for at least a modicum of privacy and more pleasant surroundings. The “cottages” accommodate only 110 residents (or twenty percent of the population), and non-ambulatory residents are completely excluded from access to these buildings due to their structural designs. As for the non-ICF buildings, there was little dispute about the need for their renovation. Although defendants did not go so far as to agree with the plaintiffs’ expert that the living quarters reflect “total environmental deprivation”, T. William S. Talley, they did admit severe inadequacies. Most strikingly, many of these buildings have just recently complied with the minimum safety provisions such as sprinkler systems and smoke alarms, crash bars, etc. Because of overcrowding and the lack of partitions in bedrooms and bathrooms, there is little to no privacy in these buildings. T. Jones, Talley, Clements. Often male and female residents use adjoining toilets with no partitions. T. Clements; Plaintiffs’ Exhibit 23, Photograph No. 9. Many of the wards have large open rooms with little furniture or other accouterments, and can only be described as sterile environments. In some, the level of noise is problematic, due to the large open spaces, bare concrete surfaces, and bad acoustics. T. Clements. In short, the residential facilities at LSS are less than optimal. Recently officials in the State of New Hampshire have joined the national trend of paying increased recognition to the care and treatment of the mentally retarded. At the core of this movement is the goal to provide individualized treatment to the mentally retarded in the setting least restrictive of their freedom, yet responsive to their needs. To this end, State officials, health care professionals, and concerned citizens worked for the passage of the above-mentioned statute, N.H. RSA 171-A, which gained legislative approval in 1975 and was amended in 1977. The stated purpose and policy of this statute, which will be discussed more fully in Part III of this Opinion, is “to enable the division of mental health to establish, maintain, implement and coordinate a comprehensive service delivery system for developmentally disabled persons”. In an attempt to secure the implementation of N.H. RSA 171-A, the Governor of New Hampshire, Hugh J. Gallen, ordered the preparation of a master plan, now known as “Action for Independence ”. There are three drafts of Action for Independence, the last of which was issued on January 3,1980. The document, which sets forth in some detail timetables for the accomplishment of certain goals such as community placement of LSS residents, is explicitly intended to be a “dynamic, living document”, which can be amended as experience dictates. See Action for Independence 3d Draft, Defendants’ Exhibit 139; T. Shumway. Action for Independence sets forth a proposed schedule for deinstitutionalization, calling for a residual population of 155 residents in 1987. See Action for Independence 3d Draft, Defendants’ Exhibit 139, p. 234. But like many ambitious plans, this too has endured a rocky beginning. The original plan was to complete Individual Service Plans (ISP’s) for each resident by June of 1980, and to deinstitutionalize one hundred people over 1980 and 1981. T. Shumway. As of the date of trial, however, only 366 of 562 (or 65%) of the ISP’s had been completed, making it dubious that an additional 200 would be completed according to schedule. As for the plan of deinstitutionalization, since funding was available for only eighty residents, the figure was revised to thirty residents by June 1980 and fifty residents by June 1981. Action for Independence 3d Draft, Defendants’ Exhibit 139. At trial, Planning Director Donald L. Shumway testified that due to the unexpected demise of another community project, Guardianship Trust, which created the need for thirty-five additional placements, once again these figures would have to be revised downward. In sum, although the State appears to be committed to its plan of deinstitutionalization, even its short history reveals that the perennial problem of funding looms ahead, presenting a substantial threat to the integrity of the plan. A. Staff All parties to this litigation appeared to agree that the staff at LSS is dedicated and does attempt to provide the best care possible under the circumstances that exist at the School. However, it was also undisputed that staff shortages account for many of the problems at LSS. Eighty percent of the total budget at LSS is allocated toward personnel cost; obviously, therefore, the quantity and quality of staff rises and falls with the mercurial budgetary process. More than lack of funding is to blame for staff shortages, however. Although the number of programs which matriculate professionals trained in caring for the developmentally disabled has increased in direct proportion to the rapidly growing awareness of their problems, such is a recent phenomenon, and there is therefore still a nationwide shortage of people in their field. In particular, the dearth of physical and occupational therapists was often cited by experts for both parties. T. Cook, Gross-man, Jones, Melton, and Griepentrog. While recognizing this nationwide scarcity of staff, plaintiffs’ experts indicted the State of New Hampshire for creating a system which exacerbates the problem. They claimed that the State’s ability to recruit staff to LSS is shackled because of the remote location of its institution, and they argued that one way of ameliorating the situation is to provide community settings for these residents to which professionals would be drawn. Plaintiffs also attempted to attribute the problem of staff “burnout” to institutional settings, but this claim was successfully refuted by evidence of similar “burnout” in community settings. T. Gold. Nevertheless, the fact remains that LSS is severely understaffed. T. Melton. Because of the lack of personnel, for example, direct care staff are required to undertake duties not related to their job descriptions, which obviously minimizes the effectiveness of their other efforts. Plaintiffs’ Exhibit 64 represents a census of staff workers taken on two different typical days in 1979, indicating the number of direct care staff positions authorized, the number filled, and the number actually employed on the days in question. On the second shift on February 8, 1979, for example, the count was as follows: number of direct care positions authorized — 167; vacant positions — 44; number of positions filled — 123; number of staff who reported to duty — 72; number of staff on regular days off — 35; number of staff on vacation — 2; number of staff taking personal day — 2; number of staff out sick — 12. See also Defendants’ Exhibit 4, which lists for a typical day, broken down by ward, the number of positions filled and vacant in relation to the resident population. Thus, not only were there several positions which were authorized and not filled; of those filled, there were a number who never reported to duty. Melton testified that national accreditation standards call for a staff/resident ratio of two to one. Accordingly 1124 staff members would have been needed to meet that goal as of the time of trial when LSS had a resident population of 564. Yet at the time of trial the number of staff members was set at 875, with a vacancy rate of ten to twelve percent at any given time. In 1977 Melton had requested 276 new staff members from the New Hampshire Legislature. In response, the Legislature appropriated the money for 124 staff people in 1977, 14 in 1978, and 87 in 1979 — a gain of 225 staff members by 1979, when the request had been for 276 in 1977. An additional problem facing the School is staff turnover, caused by “burnout” and other factors. Melton testified that the turnover rate among direct care staff members is substantial; LSS loses an average of fifty percent of its workers yearly, and this figure has risen as high as ninety percent in the past. T. Brown. The turnover rate overall (for other than direct care staff) is much lower. T. Melton. The consistent vacancy rate of ten to twelve percent at any given time and the difficulty of recruitment pose a major threat to the operation of the School, in that every six months the Legislature abolishes any position which has not been filled within six months. In 1979, for example, a total of one million dollars lapsed. See Melton’s Deposition, Vol. 3, pp. 42-43. In addition to their allegations regarding the minimum numbers of staff, plaintiffs also challenged the adequacy of preparation and training for staff members, citing instances in which workers had been required to undertake duties in areas in which they lacked expertise. Although the evidence supports plaintiffs’ contention of inadequate training in several areas, recently the School has exhibited much improvement in staff training. The Court heard testimony from Frances Cook, who has been director of staff and program development at LSS since 1975. The philosophy of her department is that clients have the right to receive services from competent staff. The eight major functions of the department are: (1) orientation and training of staff, (2) continuing education for staff to maintain competence, (3) incentive and support of staff who wish to advance, (4) mandatory training when required, (5) a system of promotional competency-based options, (6) development of affiliations with colleges, (7) coordination of volunteer services, and (8) development of a system of policy development and review. T. Cook. According to Cook, ninety-five percent of the staff completes twenty hours of training in the first month, and most complete one week of basic training, including one day of on-the-job training and four days of classroom training. There is also ongoing training by the supervisors in the buildings. T. Cook. The witness admitted that prior to her arrival in 1975, there was no such orientation, but that now training is a precondition to employment. The major problems Cook has faced in her department during the past few years have been caused by various hiring freezes imposed by the Governor of New Hampshire, forcing staff to venture outside their own areas into areas in which they lack expertise. In sum, although efforts have been made to improve the quality of staff at LSS, the fact remains that LSS is understaffed. As will be seen from the following descriptions of the various components of the School, this deficit seriously detracts from the operation of almost every program and operating procedure at LSS. Thus, finding a panacea for this problem of lack of staff would contribute immeasurably to overall improvement at the School; however, since staff accounts for eighty percent of the entire budget at LSS, the problem defies easy solutions. B. Habilitation “Habilitation” is the term of art used to refer to that education, training, and care required by retarded individuals to reach their maximum development. See n. 10, p. 176, supra. It is the process by which individuals are assisted in acquiring and maintaining “those life skills which enable them to cope more effectively with the demands of their own persons and of their environment, to be economically self-sufficient and to raise the level of their physical, mental and social efficiency. Habilitation includes but is not limited to programs of formal, structured education and treatment.” N.H. RSA 171-A:2 IX. Both parties agreed that the linchpin of any habilitation plan is an individual service plan which assesses the present abilities of a given individual, establishes goals to be sought, and diagrams a course of action to meet those ends. Without such a systematic and individualized approach, progress will be sporadic at best. As mentioned above, as of the date of the trial only 366 of 564 residents (or 65%) had completed ISP’s, and despite defendants’ purported intentions, it appeared very dubious that two hundred more would be completed by defendants’ target date of June 1980. Of those residents who had ISP’s, Superintendent Melton admitted that a fair percentage of the goals stated therein could not be met, due to a lack of resources. Notwithstanding this fact, the Court hereby rejects the contention of some of the plaintiffs’ experts that no habilitation could occur or is occurring at LSS. 1. Education and Training at LSS Defendants readily admit that historically education and training services at LSS have been inadequate, having been directed (if at all) toward only the higher-functioning residents. T. Gamache. Today the situation is much brighter. The Education and Training Department (hereinafter “E & T”) has evaluated and serves approximately 350 of the 564 residents. Defendants admit that the two hundred residents not yet evaluated for services are almost all residents of non-ICF facilities (the testimony reflects that the residents of non-ICF’s tend to fall in the more severely retarded range), but at trial they fully intended to have all residents evaluated by October of 1980. Of the 350 served by E & T, approximately 260 are adults and 90 are children between the ages of three and twenty-one. There exist separate educational components for adults and children (although they share the same four fields of learning), and the latter are acknowledged to have the more extensive services. Nevertheless, at the time of trial a new “adult curriculum” had just been developed, and defendants planned to continue to improve and expand services for adults as well as children. a. Children Aged Three to Twenty-one As mentioned above, three of the named plaintiffs, Janet Smith, Tommy Vaillancourt, and Sandra Garrity, represent a subclass of those individuals between the ages of three and twenty-one who are asserting their rights to a free and appropriate education, which they claim is mandated under state and federal law. Most of the testimony at trial relative to the State’s education of handicapped children came from Edward DeForrest, Director of Special Education for the State of New Hampshire since 1979, and Peter Gamache, Director of “Therapeutic Services” at LSS. In order to understand the framework within which LSS provides services to these school-age children, it is essential to provide a brief backdrop herein of the education system in the state. In New Hampshire, education is under the combined jurisdiction of local as well as state agencies, although the public schools are funded primarily by property taxes collected by the towns and cities. The State itself contributes less to education than almost any other state in the Union; nevertheless, it retains control over the localities through its State Board of Education which by statute is given the “same powers of management, supervision, and direction over all public schools in this state as the directors of a business corporation have over its business, except as otherwise limited by law”. N.H. RSA 186:5. Working through a Commissioner of Education (N.H. RSA 186:9), the State Board performs those duties such as supervising the expenditure of all money appropriated for schools within the state and establishing the standards for teacher certification within the state, as well as establishing all minimum standards which local school districts must meet in the various areas of curriculum. N.H. RSA 186:11. Additionally, schools themselves must be approved by the State Board of Education in order for the school district maintaining the school to receive any form of aid to education. N.H. RSA 194:23-d. In 1980, the sum of all monies spent for education in New Hampshire was $38.6 million, of which $31.6 million was contributed by the local school districts, $3.2 million by the State, and $3.8 million by the federal government. From July 1, 1965, to June 30, 1981, the New Hampshire “Program of Special Education” was set forth in N.H. RSA 186-A. Thereunder, the State Board of Education was charged with the maintenance of a “section of special education”, N.H. RSA 186-A:3 (Supp.1979). Additionally, local school boards were made responsible for the identification of handicapped students within their districts, N.H. RSA 186-A.-4 (Supp. 1979), who were to be provided with an approved plan of special education. N.H. RSA 186-A:6 (Supp.1979). If provided without the local district (and LSS is considered to be an out-of-district placement), the expenses of such special education (including tuition, transportation, and, if necessary, board and room) were limited to “twice the state average cost per pupil” for primary or secondary public schools as estimated by the State Board of Education. N.H. RSA 186-A:8 II (Supp.1979). Effective July 1, 1981, N.H. RSA 186-A was replaced by N.H. RSA 186-C which, while purporting to diminish the financial obligations imposed on these defendants, otherwise makes no substantial changes in the nature of their duties as previously imposed- pursuant to N.H. RSA 186-A. But the procedures outlined in N.H. RSA 186-C (and formerly contained in N.H. RSA 186-A) do not comprise the exclusive means by which a child aged three through twenty-one can be placed in an “out-of-district” program such as LSS. In addition to placement by a local education agency, a handicapped child can be placed by the Division of Mental Health, through an “area agency” pursuant to N.H. RSA 171 — A (Services for the Developmentally Impaired). This statute charges the Division with maintaining “a state service delivery system, comprised of a substantial number of programs and services, including Laconia State School and Training Center, for the care, habilitation, rehabilitation, treatment and training of developmentally impaired persons. Such service delivery system shall be under the supervision of the director [of the Division of Mental Health]”. N.H. RSA 171-A:4 (Supp.1979) (emphasis added). Although by statute the Director has no obligation to bow to the wishes of the State Board of Education, the staff of the “area agency” is to “take into account the provisions of and services established under N.H. RSA 186-[C] [“Program of Special Education”].” N.H. RSA 171-A:6 II (Supp.1979). The difficulties inherent in these crossed lines of authority will be discussed subsequently; suffice it to say here that New Hampshire maintains parallel systems of responsibility for services to handicapped children. From 1971 to 1975 there were three hundred school-age children at LSS; today there are only ninety-four children between the ages of three and twenty-one. T. DeForrest. Of these individuals, approximately eighty percent are in the severe and profound ranges of mental retardation. By 1978, each child at LSS had an “Individual Education Program” (hereinafter “IEP”) completed for him or her. Mandated by federal law, the IEP is an individualized evaluation reflecting the educational needs of each child and identifying the appropriate sources for the provision of those services. Despite the establishment and publication of such goals, defendants candidly admitted the improbability of fully attaining same. For the ninety-four school-age children there are six or seven teachers available. Fewer than one half receive the full 5Vt hours of formal education per day, which is the average amount given a non-handicapped child. More than fifty percent receive about one half a day’s training, and seventeen receive services for only one hour per day. Two of the children have been deemed “medically fragile” and are therefore excluded entirely from those services. T. Gamache. Since 1975, however, the overall educational services have improved remarkably. Whereas in the past only the higher-functioning children were served, now every individual between the ages of three and twenty-one is served, barring extraordinary reasons. Recently inaugurated was a “ward stimulation” program, for example, which is aimed at the profoundly retarded who are medically involved. That is considered the lowest developmental area of a four-part curriculum which was developed by personnel in occupational therapy (“OT”), physical therapy (“PT”), speech, psychological services, and social services. “Ward stimulation” encompasses OT, PT, and medical services, and is designed for individuals who function on a six-to-twelve month chronological age level. Phase two is directed at children in the twelve-to-eighteen month level, wherein there is more group activity and involvement with fine motor skills. The next tier constitutes a “readiness period”, in which students attend group classes in Toll Building, a recently constructed center for education and recreation which is separate from the residential buildings, and thus requires the transportation of many residents in á shuttle-bus. Until recently multiply handicapped residents were excluded from the programs at Toll because the shuttlebus could not accommodate those with physical handicaps. Phase four is “preacademics” for students with a developmental level of up to five years, which includes training in the cognitive and prevocational skills. The ultimate goal is the attainment of skills which allow an individual to participate in vocational programs, including work activity centers, sheltered workshops, or residential work programs, and thus to progress toward economic self sufficiency. All of the above classes take place either in the wards or at Toll. Occasionally some of the residents have field trips into town, at which time they have the opportunity to practice the community skills they have acquired, such as using cross-walks, tendering money, etc. Two children enrolled at LSS attend public schools in the community full time, and seven others attend part time. Plaintiffs have emphasized that the above four-part curriculum is a very recent addition, and that even now many of the education and training needs of the residents are not being met. Indeed, the record supports their contention that for years few services were afforded the most severely handicapped residents, T. Sontag, and at present they receive much less attention from the E & T Department than do more advanced children. T. Sontag. In addition, a significant number of individuals are denied services because of lack of staff or funding. T. Sontag, Green. Because of the lack of staff, there is very little carryover from the classroom to the wards, an enforcement technique which is particularly needed for the mentally retarded. As mentioned earlier, the greatest deficiencies in staff are in the areas of OT, PT, and speech. One named plaintiff, Janet Smith, whose physical problems are recounted above on pages 10 and 11, was scheduled to have regular OT, but such was canceled in 1976 due to lack of staff. T. Frieda Smith. She received PT from 1966 to 1970, but it too was then canceled and not picked up again until 1980. Doctor Andrews, one of the State’s witnesses, testified that Ms. Smith must receive more PT and that consistent programming is desirable. Tommy Vaillancourt, the other representative plaintiff of this subclass, is a severely and profoundly multiply handicapped individual who was repeatedly recommended for OT services from 1977 to 1979, but such were never delivered, presumably because of lack of staff. T. Andrews. The Court heard testimony that at least three other children similarly had planned services terminated. OT was recommended for Mary Beth A. in 1977, 1978, and 1979, but was discontinued because of funding. T. Andrews. Jeffrey, age 18, is a resident who has lived in King I for twelve years. T. Andrews. Three days after his IEP was established, all services were terminated for him. PT was recommended for Mike B., age 15, who lives in Dube C, but he has received no services. T. Andrews. Education and training for residents at LSS aged three to twenty-one is limited to 180 days, thé same cycle as in the public schools. The summer program is largely recreational. Although fourteen teachers at LSS take vacation in the summer, seven lifeguards are hired. Approximately 350 residents attend day camp, which consists of trips to beaches at a nearby lake. For one week, residents partake in swimming, boating, arts and crafts, and hiking. Non-ambulatory residents are included on these trips as well. In addition, approximately 100 residents attend other camps in New Hampshire, but the criteria for eligibility are dictated by the camp supervisors who in the past have rejected non-ambulatory and profoundly retarded residents and residents with behavioral problems. During the summer some non-ambulatory residents continue to receive PT and OT. b. Education and Training for Adults Of the 350 residents served by the E & T Department, approximately 260 are adults (although only 215 are listed as receiving services [T. Gamache]). The Department is aided in the provision of these services by a new therapeutic recreation staff. As mentioned earlier, the disparity between treatment of ICF and non-ICF residents is striking. Two hundred residents receive absolutely no services from E & T, and not coincidentally each one of those residents lives in a non-ICF unit. Similarly, of the 350 residents who have been evaluated for OT services, all reside in ICF units. T. Talley, York. By October of 1980, each resident, including those in non-ICF’s, was to have been evaluated. T. Gamache. However, the record reflects that a mere evaluation does not assure that the identified needs will be met. Of the 350 residents who were evaluated for OT services, for example, 330 were found to need services. But only seventy are receiving direct OT services, while 260 receive no services or nothing more than some adaptive equipment. T. Talley. Lack of OT can result in dysfunction and contractures. T. Talley. Likewise, the vacancies in the PT staff result in deprivation of services to many in need, which in turn can cause curvatures of the spine, hip dislocation, and problems concerning the upper respiratory tract, among others. T. Green. One of the major criticisms of the E & T curriculum for adults at LSS is its lack of age appropriateness. T. Brown, Sontag. This is explained in part by the lack of training models for adults. Whereas children can follow traditional developmental guidelines (i. e., reaching stage X by age X), there is no such formula for adults. T. Karan. Perhaps as a result, the new LSS adult curriculum which was published during the course of this trial includes the exact same four phases which are applied to residents aged three to twenty-one: (1) social skills, (2) cognitive skills, (3) prevocational skills, and (4) vocational skills. T. Gamache. As with the younger residents, the staff at LSS has attempted to devise classes which attempt to prepare adult residents to live in the community. Such activities as handling money, cooking, and field trips into town are aimed at the transition from institution to semi-independent living. Although the efforts in this regard are increasing, the evidence indicates that only a small percentage of residents are afforded these opportunities, and that even for those who receive such instruction there is little carryover into their wards. The vocational education programs are well developed at LSS, but as in other departments, the program accommodates fewer than one half of the residents due to lack of staff, facilities, and in some instances the lack of available work from outside sources. Residents in the non-ICF’s have yet to be evaluated for placement in vocational programs, but officials at LSS hoped to complete this by October 1980. T. Gamache. Recently LSS hired a full-time vocational evaluator (or job developer) and more vocational teachers. Vocational education is divided into four categories: (1) adult vocational classes, (2) work activity centers, (3) residential work programs, and (4) “sheltered workshops”. T. Gamache. c. Summary of Education and Training In conclusion, although great strides have been made in the Education and Training Department at LSS, major deficiencies still exist, most markedly in the services to residents of non-ICF buildings and to those who are most severely handicapped. Because of lack of staff and other resources, many residents capable of participating in these programs are excluded. Records (such as IEP’s and ISP’s) have not been completed for many residents, and for others they are very inadequate; as a consequence, residents are not often receiving appropriate individualized services. Those who do receive training inevitably fail to retain skills due to a lack of follow-up in their wards. Physical therapy and occupational therapy, while needed by a significant number of residents, are administered sporadically, if at all. And although much emphasis has recently been placed on preparing residents for a transition to community living, relatively little time is actually spent by many residents outside of the institution, and some residents never venture outside of the institution. The education and training for residents aged three to twenty-one, although not so bleak, represents a marked contrast to the kinds of services which their non-handicapped peers receive in public schools. The majority of these children do not receive the full 5Vi hours of schooling as do their peers in public schools, and their formal education ceases after the requisite 180 days. Even the purely physical needs of some, like named plaintiffs Tommy Vaillancourt and Janet Smith, «are not met. 2. Feeding The Court heard sharply conflicting testimony regarding the feeding practices at LSS. Whereas one of plaintiffs’ experts opined that 41% of deaths occurring at LSS from 1975 to 1978 were due to aspiration caused by poor feeding techniques, T. Clements, other experts dismissed these findings as alarmist. T. Grossman. The Court finds that many of the findings of Doctor Clements regarding death by aspiration were successfully impeached by other testimony. (See, e. g., T. Dunn.) Nevertheless, deficiencies clearly exist in the food service program at LSS. Because of the lack of staff, residents are often fed too quickly and with not enough care. Plaintiffs’ witness, staff member Carol Benoit, described being placed in a situation in which she and another attendant were required to feed dinner to approximately twenty residents, four of whom had to be fed by hand. Their attention was necessarily diverted from several of the residents; as a result, a few of the residents sustained injuries, including choking on food. T. Benoit. Another witness testified that because of lack of manpower residents were being spoonfed more rapidly than they could swallow. T. Clements. The most significant problem in feeding appears to derive from the lack of adaptive equipment, which results in poor positioning and body alignment, creating a risk of aspiration. Many residents are fed in a supine position, which exacerbates their problems with swallowing and coughing. T. Clements, Grossman. Finally, it was undisputed that as in many institutions the food at LSS is unattractive and cold, and is often served in barren environments. 3. Medical Care Laconia State School has no full-time medical director and at the time of the trial had no on-site physicians. However, the School contracts with the Laconia Clinic in Laconia, New Hampshire, for the provision of medical services, and Dr. Craig Markert from that Clinic, who is Board-certified in internal medicine, is the acting medical director. The School also has its own “Administrator of health services”, Mr. Dalback, who has no medical training. Three medical specialists and three pediatricians are on rotating shifts at LSS; one internist and one physician conduct daily rounds in the out-patient department (which is closed on weekends) and in the infirmary, and there is a 24-hour on-call service. Nurse practitioners are employed to extend physician services, a system which seems to be appropriate but which suffers because of a lack of staff. Although there are four positions for nurse practitioners, only two are filled. These two have divided their labors equally between ICF’s and non-ICF’s, and each covers one-half of the entire population (which amounts to approximately 275 residents per person). In addition, LSS maintains positions for thirty-two RN’s (registered nurses), of which eight are vacant; and for eleven LPN’s (licensed practical nurses), in which there is one vacancy. Also providing medical services at LSS are two registered lab technicians, a dentist, a dental assistant, a hygienist, two regular pharmacists, a pharmacy assistant, and a pharmacist on call on weekends, arid approximately seven attendants. T. Lanahan. The majority of the population at LSS need “little or no nursing intervention”; fifty-three residents need nursing intervention once per day or more, while twenty-nine have a medical condition which inhibits the client’s level of functioning in the activities of daily living. As for other disabilities, approximately ten percent of the residents need constant behavioral intervention for antisocial or destructive behaviors; seventeen percent have cerebral palsy, but for most not to the extent that it severely limits daily activities and functions; and twenty-nine percent either currently have or have recently had epileptic seizures, but again, for most these seizures are not so severe as to completely prevent the client’s ability to function. See Action for Independence 3d Draft, Defendants’ Exhibit 139, at 80. Two groups of residents are cared for in the infirmary: (1) those needing acute medical supervision, and (2) those profoundly impaired persons with medical problems. T. Andrews. Doctor Markert testified that given more staff and resources, the latter group would more appropriately be served in the residential wards. T. Markert. Experts on both sides agreed that the provision of acute health care (i. e., treating fevers, sicknesses, etc.) at LSS is very adequate with the exception of a few specialties for which the School calls upon consultants; however, long-term health treatment, including developmental programs, suffers because of lack of staff. As mentioned above, an Individual Service Plan (ISP), the precursor of methodical long-range treatment, has been completed for only sixty-five percent of the residents. Although plaintiffs urged that a medical doctor must be a full-time member of any interdisciplinary team which meets to develop the ISP and to evaluate the resident’s progress thereunder, the Court was convinced by other testimony to the effect that full-time attendance by a physician would constitute an unwise use of scarce resources. T. Grossman, Melton. At present, nurse practitioners are called into team meetings at crucial stages. As in many other fields at LSS, an ISP in and of itself guarantees very little. Recommended corrective treatment such as PT, OT, and adaptive equip-' ment (wheelchairs, eyeglasses, hearing aids, etc.) is not always forthcoming, and although surgical intervention has been recommended for certain residents, the School has not followed through on same In conclusion, although at LSS acute medical care for the retarded equals that in some of the best clinics and hospitals in New Hampshire, T. Andrews, Markert, LSS is lacking in some specialties such as ophthalmology, neurology, and developmental medicine. Most importantly, LSS lacks a medical director. 4. Drugs As in many institutions, the administration of drugs constitutes a major part of the medical services, and as in many institutions, the method of prescribing and dispensing drugs has come under fire. Critics have concentrated their attack on psychotropic (or so-called “mind controlling”) drugs, which they claim are utilized all too often as convenient restraints and punishments. Approximately forty percent of the population at LSS receives psychotropic drugs. T. Lenahan, Sprague; see also Plaintiffs’ Exhibit 65, Defendants’ Exhibit 75, and U.S. Government Exhibit 3S. However, this percentage is steadily decreasing due to a concerted effort on the part of the School. T. Mason. LSS has lacked a methodical approach in the past toward the dispensation of psychotropic drugs. Dosages have been unnecessarily high, and there has been no comprehensive review of medication. T. Lenahan, Sprague. Untrained staff members have been charged with the duty of dispensing these drugs. Recently a major effort has been undertaken to reduce dosages of drugs at LSS by making more exact assessments of need; relating the use of drugs with other programs; distributing the drugs carefully by trained personnel; and monitoring the progress of residents on a consistent basis. To this end, medication is reviewed every twenty-five to thirty days by a nurse and an internist (unless there is a manifest problem, in which case the reviews are more frequent). There has been a fifty percent reduction in the total tonnage of dosage of drugs dispensed in the ICF wards. Drugs are dispensed daily in a “unit dosage” system, which means that each tablet has its own packaging with its own dosage level listed to avoid errors in distribution. (LSS has about a one-per-month error rate.) Any problems related to the administration of drugs are brought to the nurse practitioner's attention, who in turn decides whether it is necessary to go to a doctor. Only one percent of the population at LSS receives drugs on a “PRN”, or “as needed” basis, a method which gives the person in charge the discretionary authority to administer the requisite amount of drugs. A new policy at LSS dictates that a nurse practitioner screen all psychotropic “PRN’s”. In conclusion, compared with other institutions, the dosages at LSS are presently not out of line. T. Sprague. However, as evidenced by its own reevaluations and corrective measures, many residents have been receiving excess dosages. Once again, the discrepancy between treatment of ICF’s and non-ICF’s is great. At the time of trial the effort to reduce the dosages had taken place only in the ICF’s. In addition, there was evidence that whereas drugs are dispenséd to ICF residents by nurses, in non-ICF units the charge attendants have this responsibility. T. Sprague; see also U.S. Government’s Exhibit 38. Finally, there was little showing of integration of psychotropic drugs with other ongoing programs, except perhaps the effort that would presumably be made by an interdisciplinary team when formulating an Individual Service Plan. C. Restraints and Seclusion Rooms In the past, restraints have been used somewhat indiscriminately at LSS with little accompanying documentation of the reasons therefor, T. Melton, Dornin, although it is apparent that at least one reason for their use has been as a control mechanism in the face of staff shortages. Seven different types of restraints are used at LSS: (1) tube restraints which lock elbows; (2) straight jackets; (3) mittens; (4) belt vest restraints to secure people in bed; (5) wheelchair belts; (6) wrist restraints, and (7) helmets. T. Dornin. Although restraints serve salutary purposes such as preventing self abusiveness (scratching, banging, etc.) and preventing abuse to others, reports show that residents have been placed in restraints for reasons which are not compelling or appropriate, sometimes for long stretches at a time. For example, because of the lack of adaptive equipment at LSS, residents have been belted into wheelchairs; others have been placed in straight jackets to prevent them from tearing their clothing. T. Dornin; U.S. Government’s Exhibit 20. Restraints have been used on many of the named plaintiffs, including Sandra Garrity, Nancy Haggerty, Debra Roman, and Richard Pond. Currently LSS is attempting to diminish the use of restraints, and has promulgated a policy whereby staff requesting their use must telephone the central office and state the reasons for the request before receiving authorization. Even this new system occasionally lends itself to “rubberstamping”, and apparently there continue to be unauthorized uses at times. Seclusion rooms are rooms with an area of ten feet by twelve feet which contain no furnishings and which can be locked from the outside. “Time-out rooms”, of which there are four or five at LSS, are smaller but similar to seclusion rooms. Residents at LSS have been placed in these rooms in the past sometimes for the purpose of punishment and occasionally as part of a plan for behavior modification. Because the staff has occasionally abused this method, LSS has adopted a new policy regulating the use of seclusion rooms. They are used much less frequently now, and only after other methods have been attempted. The current official policy is that no resident is to be placed in a seclusion room without a written program promulgated by an interdisciplinary service team. At present only four residents use seclusion rooms with any regularity, and only two are consistently placed in restraints. D. Abuse of Residents; Accidents and Injuries Reports and allegations of staff abuse of residents have recently increased at LSS, but according to Superintendent Melton this reflects heightened awareness of residents’ rights and the consequent willingness to report infractions rather than an increased incidence of abuse. Nevertheless, the types and frequency of abuse are disturbing. The Court heard testimony from Government witness Christopher Laird Dornin, a second-shift supervisor at LSS whose job is to investigate alleged abuses at LSS and to report accidents and injuries. During his tenure of four years at the School, Dornin has investigated forty serious cases of abuse, of which thirty (although not all proven) are in his opinion bona fide. For example, in 1979 an employee abused three residents, hitting one in