Full opinion text
BARTELS, District Judge: This is a motion by .plaintiffs to declare the defendants in non-compliance with the 1975 Consent Judgment and to appoint a Special Master, and a counter-motion by the defendants to modify the Consent Judgment and vacate the court’s Order of October 22, 1979. In 1972 plaintiffs in this action instituted a suit against the State of New York alleging that living conditions and treatment programs at Willowbrook State School for the Mentally Retarded, now known as Staten Island Developmental Center, (“Willow-brook”) violated their constitutional and statutory rights and seeking at the same time preliminary injunctive relief to restrict certain abuses and to require improved care. In April 1973 Judge Orrin G. Judd granted relief to the plaintiffs by means of a preliminary injunction against the defendants directing certain enumerated items of relief in an attempt to correct deficiencies in order to protect the residents from serious physical harm. NYSARC v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973). Subsequently, the United States of America, through its Civil Rights Division, entered the case as amicus curiae. Thereafter extensive negotiations were had between the parties and after the remaining points of contention were settled a consent judgment, approved by the court, was entered in April 1975. NYSARC v. Carey, 393 F.Supp. 715 (E.D.N.Y.1975). The thrust of the Consent Judgment provided that defendants would reduce Willow-brook to an institution housing no more than 250 residents by April 1,1981, and that they would transfer class members into community facilities of no more than 10 or 15 beds, depending upon the particular class member’s level of functioning. The Judgment also required defendants to make extensive reforms at Willowbrook with regard to environment, staffing, programming, and various types of therapies. The Agreement included an Appendix A entitled “Steps, Standards and Procedures” which delineated in detail acceptable institutional living conditions and community placements, to which reference is hereby made. As explicated in the Judgment: [t]he steps, standards and procedures con-' tained in Appendix “A” hereto are not optimal or ideal standards, nor are they just custodial standards. They are based on the recognition that retarded persons, regardless of the degree of handicapping conditions, are capable of physical, intellectual, emotional and social growth, and upon the further recognition that a certain level of affirmative intervention and programming is necessary if that capability for growth and development is to be preserved and regression prevented. Subsequently, in October 1979, plaintiffs and defendants entered into an agreement requiring the placement of half of the multiply handicapped residents of Flower Fifth Avenue Hospital, now known as Flower Hospital, into community facilities of no more than 3 beds and half into residences of no more than 6 beds. In the six years since entry of the Consent Judgment litigation between the parties has revolved around questions of interpretation, implementation and enforcement of the Consent Judgment. On several previous occasions the parties have appeared before the court because the defendants had failed to live up to their obligations under the Consent Judgment. The motions presently before the court once again involve implementation of the Consent Judgment. Plaintiffs seek an order holding the defendants in non-compliance with the Consent Judgment, specifically those provisions of Appendix A relating to environment (§§ B, R); clothing (§ A(7)); programs and services (§§ B(7), D(l), (2), (5), F(l), (8), G(l), (2), J(l), K(l), (2)); staffing (§§ C(l), (3), (7), (8), L(l)); nutrition (§ H); and community placement (§§ A(l), V(2), (3), (9)). They seek an order demanding compliance, with all deliberate speed, with the community placement provisions of the Judgment, compliance with the other provisions within six months, and the appointment of a Special Master who would monitor compliance and for whom the defendants would be ordered to provide necessary funding. Simultaneously, defendants seek an order pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, modifying §§ V(l), V(4), and V(7) of Appendix A of the Consent Judgment and vacating the 3 bed/6 bed Order stipulated to and entered in this action on October 22, 1979. The proposed motion for modification would eliminate the requirements that all class members who are mildly retarded be placed in residential facilities of no more than 15 beds, all those who are more than mildly retarded be placed in residential facilities of no more than 10 beds, and that at least half of those class members residing at Flower Hospital be placed in community residences of no more than 3 residents and the remainder in facilities of no more than 6 residents. Instead the modification would permit defendants to develop a range of community-based facilities housing up to 50 residents. Of a total original class size of 5343 Willowbrook residents, 1108 have been placed in community residences of the size mandated by the Consent Judgment, 580 have been placed in family care, 557 have died, and 730 have been discharged from state supervision. Of the remainder awaiting placement, 1369 live at Willowbrook (including the Karl D. Warner complex), and 999 have been transferred from Willow-brook to other institutions managed by the State or private agencies. Such institutions include Brooklyn Developmental Center, a 500-bed institution (including the 50-bed Williamsburg annex) which houses 383 class members; Bronx Developmental Center, a 200-bed institution where 57 class members live; Manhattan Developmental Center, in which 107 of its 150 residents are class members; and Bernard Fineson Developmental Center, which houses 288 class members and which is comprised of three units, Corona, Howard Beach, and Glen Oaks. United Cerebral Palsy manages two facilities in which class members reside: Nina Eaton Center, a 48-bed facility which houses 46 class members and Castle Hill School, a 53-bed institution. In addition about 115 multiply-handicapped class members live at Flower Hospital. The focus of the plaintiffs’ motion is living conditions at Willow-brook, but evidence of living conditions at the other above-named institutions was also presented. The defendants’ proposed modification affects class members in any institutional setting including the above institutions. The Court has heard 25 days of testimony on these two motions. Both parties and amicus have called upon an impressive array of experienced experts and others. Thirty-nine witnesses in all have testified. Plaintiffs called as expert witnesses Dr. James Clements, Chairman of the Willow-brook Review Panel, member of the Joint Commission on Accreditation of Hospitals’ Council on Services for the Retarded and Developmentally Disabled, past Director of the Georgia Retardation Center and past president of the American Association on Mental Deficiency; Kathleen Schwaninger, Assistant Commissioner for Mental Retardation in the Commonwealth of Massachusetts and former Executive Director of the Willowbrook Review Panel; Lyn Rucker, Executive Director of Region V Mental Retardation Services in Lincoln, Nebraska; and Gerald Provencal, Director' of the Ma-comb-Oakland Regional Center in Mt. Clements Michigan. Just as important, the plaintiffs introduced photographs of the conditions they found when they visited Willowbrook and related institutions. Experts testifying for defendants included Dr. Richard Blanton, Associate Director of the Illinois Department of Developmental Disabilities; Barbara Blum, Commissioner, New York State Department of Social Services and former Director of the Manhattan Placement Unit; Marc Brandt, Executive Director, Sullivan County Association for Retarded Children; Dr. Ella Curry, Director of Willowbrook; Dr. Shervert Frazier, Professor of Psychiatry at Harvard University and former Texas Commissioner of Mental Retardation; Dr. Meredith Harris, Director, Nina Eaton Center; Helen Kaplan, Executive Director, Nassau Chapter of New York State Association for Retarded Children (“NYSARC”); Frank Padaven, State Senator and Chairman of the State Senate Committee on Mental Hygiene; Dr. Sue Allen Warren, Professor of Special Education at Boston University; and Zygmond Slezak, Acting Commissioner, Office of Mental Retardation and Developmental Disabilities (“OMRDD”). Experts called by the United States of America, amicus curiae, included George Gray, architect; Dr. Walter Hillabrant, psychologist; Brian Lensink, Assistant Deputy Director of the Arizona Department of Economic Security in charge of Arizona programs for the mentally retarded; Dr. Andrew Lorincz, physician and Professor of Medicine at the University of Alabama; and Raymond Watts, Registered Sanitarian and environmental health consultant. Pretrial depositions and hundreds of exhibits, including illustrative photographs, have been entered as part of the record, and affidavits, briefs, and memoranda of law have been submitted. The record raises four main issues which the court will address seriatim: (1) Non-compliance with the Consent Judgment; (2) appointment of a Special Master; (3) modification of the Consent Judgment; and (4) Vacation of the 3 bed/6 bed Order of October 22, 1979. I The non-compliance charge against the defendants involves a number of vital areas enumerated below with respect to which the court, after due consideration, has made the findings set forth in the following subheadings. Sanitation Section B(3) of the Consent Judgment requires that the living quarters and program areas be kept clean, odorless and insect-free at all times. Contrary to that provision, sanitation at Willowbrook is totally unsatisfactory and presents a serious health hazard to the resident population. Of particular concern is the filthy condition of the kitchens and bathrooms. Both the main kitchen, where the residents’ food is prepared, and the satellite kitchens, where the residents’ food is served, are filthy and infested with rodents and cockroaches. Cups, bowls, silverware, and pots and pans are improperly cleaned and often caked with food from past meals. Food is served to residents at inappropriate temperatures that encourage food spoilage and the growth of microorganisms, and food storage areas are dirty and foul-smelling. (See, e.g., T. 2084-2089, 2091-92, 2095-96; P. Exs. 143, 146, 148). Sanitation of the bathrooms in virtually every residential building at Willowbrook is grossly inadequate. Human feces and urine commonly soil bathroom floors, walls, toilets and shower stalls. Non-operational and unflushed toilets filled with human excrement are frequent occurrences, as are cracked and missing toilet seats and bathrooms without toilet tissue, towels and soap. Mold and mildew, indicative of long-term neglect, grow on many shower surfaces and none of the shower areas are being properly sanitized. (See, e.g., T. 90, 113, 127-130, 1811, 1850-51, 2124, 2133, 2181; P. Exs. 70A-2, 70A-3, 70A-14, 70C-167, 123, 153, 154, 156, 158). These types of unsanitary conditions permeate the residents’ entire living space. Residents, many of whom are nonambulatory, must eat in dining rooms infested with insects and rodents, sit and lie on floors that are dirty, not uncommonly with human excrement, and sleep in bedrooms reeking of urine. Their clean clothes and dirty laundry are intermingled, and trash, food, and clothing litter the floors. (See, e.g., T. 97-100, 116-130, 2107, 2132-33, 4914, 4918; P. Exs. 1, 153, 154, 161, 165, 258, 70A-4, 70A-9). Defendants have made some efforts to improve sanitation. During her 14-month tenure, Dr. Curry has closed six buildings and increased in-service training efforts. Clearly, however, defendants have not done enough. The evidence shows that during the last two years at Willowbrook, sanitation in the remaining buildings, rather than improving, has steadily deteriorated. (See, e.g., T. 109, 494, 3368-72, 5675). Sanitation at other related facilities where class members have been transferred is not markedly better than that at Willow-brook. The Bronx Developmental Center has a serious infestation problem, and bedrooms, dining rooms and bathrooms there are dirty. At Brooklyn Developmental Center the most serious sanitation problems result from its location next to a dump. Smells from the dump waft over the institution, debris floats onto the grounds and flies swarm throughout the buildings. Moreover, the residential areas there are unclean. The level of sanitation in residential areas at Glen Oaks and Nina Eaton Center is also unsatisfactory. (See, e.g., T. 131-34, 151-52, 161, 500-502, 540, 1204-1209, 5813; P. Exs. 70A-15, 70A-16, 70A-95, 70C-142, 70C-145, 82, 97, 98). Maintenance Part of the maintenance problems at Willowbrook, a 50-year-old complex, results from the fact that for years virtually no capital was poured into the physical plant, and until recently no preventive maintenance measures were taken. The most glaring maintenance inadequacies, though, stem from present, not past, neglect. For instance, throughout the institution shower fixtures lack vacuum breakers which are easy to install and necessary to prevent the transmission of contaminated water. Water control boxes are left open, allowing residents access to the control of the facility’s water temperature. Most of the sleeping areas lack curtains, wall decorations, and other personalizing touches. In almost every building there are numerous examples of torn and broken furniture, ripped and broken screens, missing bathroom tiles, nonworking toilets and walls with gaping holes. In many residential areas furniture is sparse and the noise level piercing. (See, e.g., T. 312, 648, 1262, 1544, 2099, 2125-27, 5666, 5673; P. Exs. 70B-101, 160, 258). According to the state’s own auditing teams, Willowbrook’s maintenance deficiencies are extensive. The March 1981 audit conducted by OMRDD’s Audit Compliance Task Force indicated that the level of compliance with the Consent Judgment’s “physical environment” requirements was 43.6%. Deficiencies included lack of privacy in bedroom and bathroom areas, poor lighting, a dearth of decorations, curtains and furniture, and broken water faucets. (P. Ex. 1). Six months later the deficiencies, as measured by the September 1981 audit conducted by Willowbrook’s Quality of Life Committee, were even more widespread. A greater number of areas lacked decorations and bedspreads, fewer soap dispensers were available, and insects and rodents, reportedly under control in March, infested 75% of the buildings. In addition, there was an absence of bathroom safety devices in 68.75% of the buildings, 75% of the buildings had windows and screens that were dirty, broken, and in disrepair, 68.75% of the buildings provided inadequate lighting and 62% had broken sinks. (P. Ex. 253). Maintenance at Brooklyn and Bronx Developmental Centers, Glen Oaks and Williamsburg presents a similar scenario. The most common problems are poorly maintained and nonworking bathrooms, holes in the walls and barren living spaces. Many of the residents’ rooms at Nina Eaton Center are decorated, and it is a pleasanter atmosphere, but there too room repairs are not kept current. (See, e.g., T. 158-160, 175-81, 500-01, 536-43, 668, 722, 1077, 1126, 1598-99, 4936; P. Exs. 70A-17, 70A-22, 70A-33, 70A-35, 82, 98). Clothing It is overwhelmingly evident that defendants have not fulfilled their agreement to provide class members with “clean, adequate and seasonally appropriate” clothing. Some residents at Willowbrook are partially clothed, others go nude, and many wear clothes that are illfitting, badly torn and stained. Shoes are broken and torn, and in winter many of the residents are outfitted in summer attire. In most of the residential buildings clothing is inadequately stored and sorted, residents are not provided with individualized dress, and the clothing supply is chronically short. (See, e.g., T. 218-225, 494-95, 508, 1819, 3249-3258, 3433-3439, 5666; P. Exs. 70A-45, 70A-46, 70A-49, 70A-62, 70A-63, 70A-66, 70A-68, 135). The insufficient supply of clothing has an adverse effect on residents’ programming. The court adopts the conclusions of Mary Sullivan, Manhattan Borough Representative of the Consumer Advisory Board (“CAB”), that a major programming problem at Willowbrook is residents not attending programming because they have nothing to wear. The court also accepts the testimony of Albert Pfadt, the Administrator of the Willowbrook toilet-training program, that his efforts are seriously hampered by the frequent unavailability of clothing changes and illfitting clothes that are pinned shut so residents cannot take off their clothes independently. Certain difficulties are endemic to the population at Willowbrook. Some residents tear their clothing and disrobe. Incontinent class members need frequent changes, and a few with neurological problems cannot be toilet-trained. Most residents, though, can be taught not to disrobe or rip their clothes and most can be trained to use the toilet. In any event, as Dr. Curry, the Director of Willowbrook, acknowledged, the task of providing enough clean, decent clothing to the population at Willowbrook is not insurmountable. (T. 3260). The fact that a job is difficult does not excuse its nonperformance. Residents of the Brooklyn Developmental Center, the Bronx Developmental Center and Nina Eaton Center are also improperly dressed. At the Bronx Developmental Center there often is not enough underwear, so residents go to programs without it. Outer clothing is in short supply, so residents either go out in public in inappropriate or frayed clothing or have to remain on their unit. For example, in January 1981 one class member, J.D., missed participating in the New York State Special Olympic Games because he lacked winter clothing. (See, e.g., T. 217-18, 241, 521-22, 1117-1119, 1875-76; P. Exs. 70A-56, 70A-57, 70A-59, 70A-60, 70C-141, 82, 132, 135). Programming Mentally retarded individuals, even those severely and profoundly retarded, are capable of growth. If a mentally retarded individual is to develop, though, he must be provided with programming that is geared to meet his individual needs at his own level of development. To that end the Consent Judgment requires the formulation of an individual program plan for each class member and the provision of six hours of formal programming each weekday. There are four major program areas at Willowbrook. In the Elizabeth Connelly Center (Building 8) the lowest functioning residents receive programming in the areas of sensory stimuli, body awareness, personal hygiene and activities of daily living. Those clients who do not need basic skills training are taught conceptual skills in the Education Building (Building 3). In the Work Activity Center (Building 61) the highest functioning residents work on contracts, in five different work areas of varying difficulty, in exchange for compensation. In addition, 39 residents who suffer from both visual and aural deficiencies, participate in the Deaf-Blind Program (Building 2), the goal of which is to help them become as self-sufficient as possible. Although the Willowbrook administration has constructed a commendable framework in which to provide programming, serious deficiencies exist in the delivery of programs. Residents rarely receive six hours of appropriate programming. Often they arrive late at the program area or do not arrive at all because of lack of transportation or clothing. At least five residents in Building 21 do not attend any programming outside of their residence, and there is no indication that their residence provides them with any structured activity. Even when residents do arrive at their programs, they receive little actual instruction. Residents sit idly, walk about aimlessly, self-stimulate and sleep. They are frequently left unattended, and even when staff is present, interaction between staff and residents is minimal. While some programming at Willowbrook, notably the Deaf-Blind program, is first rate, programming compliant with the Consent Judgment is the exception rather than the rule. (See, e.g, T. 259-60, 274-75, 1416-25, 5533-43; P. Exs. 1, 70A-78, 70A-80, 70D-158, 70D-160, 117, 118, 119, 123). A contributing factor to the low quality of programming at Willowbrook is deficiencíes in program design. Defendants have been remiss in developing and implementing individual development treatment plans, as prescribed by the Consent Judgment. The individual plans, developed at case conferences by an interdisciplinary team, are dependent upon written staff evaluations and staff participation at the meetings. Written evaluations are consistently missing, and staff attendance at the conferences is deplorably low. Because of inadequate staff input, the interdisciplinary team is unable to develop an accurate assessment of clients’ needs and cannot establish effective program goals. Often the resultant program plans are neither comprehensive nor accurate. They do not address the whole range of the residents’ needs, and they prescribe goals that are inappropriate or have already been attained. Even when program plans are up-to-date and complete, direct care staff is often unaware of what the treatment plan and goals are and fails to implement the program prescribed by the treatment committee. While programming at Flower Hospital and Nina Eaton Center appears to be satisfactory, programming efforts at the Bronx, Brooklyn, and Manhattan Developmental Centers mirror those at Willowbrook. (See, e.g., T. 528, 1459, 1870-72, 5688-89, 5706-07; P. Exs. 70-C-151, 82, 98, 135). Special Therapies Many Willowbrook residents diagnosed as needing recreational, occupational, physical, speech and psychological therapy are not receiving these services. Although a large number of residents have serious behavior disorders, no behavior modification program was established at Willowbrook until September 1981, and then it was only made available to four residents. Adaptive and positioning equipment is critical for many Willowbrook class members. If used correctly, it can prevent the progression of such debilitating conditions as scoliosis, curvature of the spine and other severe orthopedic handicaps. If the equipment is not used, though, or if it is misused, individuals who require it can suffer further deformities and can develop acute medical problems. The lack of and misuse of adaptive and positioning equipment at Willowbrook is widespread. Dr. Lorincz, a physician who toured Willowbrook for amicus, testified that he did not see one instance of appropriately used adaptive equipment. The court adopts his characterization of Willowbrook’s misuse of adaptive and positioning equipment as a medical emergency. (See, e.g., T. 5335-37, 5339-42). Recreation Life in the residential units of Willow-brook, Bronx Developmental Center, Brooklyn Developmental Center, Manhattan Developmental Center, Nina Eaton Center and Glen Oaks is sterile, dreary and one of enforced idleness. Contrary to the Consent Judgment’s requirement of two hours of recreation daily, most class members, when not in their program areas, have nothing to do. There is virtually no recreation equipment, toys or games on their units, and very little organized leisure-time activity occurs. In fact, the high incidence of behavior problems among institutionalized class members is at least partially attributable to the residents’ long hours of idleness. The residents’ idleness is also counterproductive to their learning of new skills. In order for profoundly and severely retarded individuals to benefit from programming, the skills they learn must be constantly reenforced. Staff on residential units must support and provide continuity for daytime program efforts, such as teaching residents to brush their teeth, to toilet and dress themselves and to refrain from self-abuse. Regrettably, however, on none of the residential units does there appear to be any carryover of daytime skills training. (See, e.g., T. 1544, 1821-22, 5629-30, 5545-46; P. Exs. 1, 128). Nutrition The Willowbrook diet card system, established to ensure that residents who require special diets receive them, is not being properly administered. Most residential buildings lack current diet cards, and when they are available, staff does not always consult them. Consequently, residents who need special diets do not consistently receive them. At least one Willowbrook resident choked to death as a result of being served an improper diet. Only two residential buildings at Willow-brook provide residents with feeding programs, as prescribed by the Consent Judgment. Moreover, the only utensils given to most residents, regardless of their functioning level, are spoons, and often there are not even enough of them to go around. The Bronx Developmental Center, Brooklyn Developmental Center and Nina Eaton Center similarly fail to provide residents with feeding programs and adequate utensils. (See, e.g., T. 538-40, 694, 1121-23, 5691-92, 5701, 5787; P. Ex. 102). Staffing Ratios The Consent Judgment mandates minimum staffing requirements for direct care staff and mid-level supervisors. The aggregate number of staff employed at Willowbrook is sufficient to comply with the staffing requirements of the Consent Judgment. Yet, defendants consistently fail to provide class members with the required level of supervision. Part of the problem is lack of staff training, lack of staff dedication, and staff negligence. Even when enough employees are on duty, residents are frequently left unattended or attended by fewer than the mandated number of employees. Even when sufficient staff members are present, they often ignore residents, depriving class members of the “appreciable and appropriate attention by direct care staff” as required by the Consent Judgment. The difficulty in terminating civil service employees could be one explanation. Another explanation is the failure of management to provide direct care staff consistent enough supervision. Moreover, because of absenteeism and lateness, which are chronic problems at Willow-brook, many employees must work overtime. Working long tours with severely retarded clients creates a considerable strain on employees and contributes to their poor attention to residents’ needs. Staff deployment at Willowbrook is also deficient. As defendants note, Willowbrook is compliant with direct care and mid-level staffing requirements measured on a weekly and institution-wide basis. The Consent Judgment, however, requires compliance by building. Just because sufficient staff is on duty on an institution-wide basis does not mean that employees are properly deployed to each building, so that all class members receive adequate care. Moreover, measuring compliance on a weekly basis is misleading, and it does not adequately further the Consent Judgment’s goal of providing class members with appropriate care. If the institution has a shortage of staff some days of the week and a surplus other days of the week — such as often occurs on paydays— the average for the week may come out even and the days out-of-compliance may be hidden, and the problem of understaffing ignored. Measured on a daily, building-by-building basis defendants do not consistently provide class members with the direct care and mid-level staffing ratios mandated by the Consent Judgment. Plaintiffs introduced a series of charts showing defendants’ level of non-compliance for direct care staff for the day and evening shifts at Willowbrook, Bronx Developmental Center, Glen Oaks, Brooklyn Developmental Center and the Corona unit of the Bernard Fineson Developmental ' Center and showing mid-level staffing on the day and evening shifts at Willowbrook and the Bronx Developmental Center. (P. Ex. 61). These charts show serious staff shortages. For example, out of a total of 665 shifts on a building basis at Willowbrook, on only 26 shifts were all of the buildings in compliance. The defendants challenged the plaintiffs’ findings of Willowbrook direct care staffing deficiencies on the ground that the underlying data, the “Daily Compliance with Staffing Ratios” forms, which were prepared by Willowbrook staff, cannot be used to measure staffing compliance unless three adjustments are made: (1) the factoring out of level of staffing compliance in the so-called shared-staff buildings, managed for the state by United Cerebral Palsy; (2) an adjustment of staffing requirements to account for residents who are away from their buildings, who are “on leave;” (3) an adjustment for the availability on a building-wide basis for staff members assigned on a one-to-one basis to particular class members. James Walsh, Willowbrook Deputy Director of Institutional Administration, interpreted Section C(4) of the Consent Judgment as permitting that type of averaging. That section provides for lower ratios in certain living units within a building to provide higher staff-to-resident ratios in another living unit in the same building “provided that such deviation is not regular, chronic or permanent ...” The court agrees that in order to accurately measure Willowbrook’s direct care staffing levels, plaintiffs’ charts must be adjusted to account for residents on leave. If residents are absent from a building, naturally the number of staff required in that building decreases proportionately. The defendants’ other adjustments, though, clearly lack merit. The first adjustment, that the staffing deficiencies in the shared-staff buildings must be ignored, is invalid. Defendants cannot avoid accountability under the Consent Judgment by contracting for services with private agencies. Moreover, in the buildings at Willowbrook managed by United Cerebral Palsy, direct care staff are state employees, and although United Cerebral Palsy schedules shifts, the state is responsible for staff assignments there and for sending the shared-staff buildings “pool” employees to cover staff shortages. Defendants’ contention that they should not be penalized for providing enriched, i.e., more intensive, staffing than is required by the Consent Judgment is also unpersuasive. As defendants acknowledge, Willowbrook residents are generally assigned one-to-one staffing because they have severe behavior problems. Willowbrook’s enriched staffing program appears to the court to be a diluted form of behavior modification program prescribed by the Consent Judgment. In any event, it is clear that employees assigned to enriched staffing are not available to supervise other residents. The result of defendants’ suggested adjustment to the staffing requirements would suggest approval of inadequate staffing for many class members not on enriched staffing. Section C-4 of the Consent Judgment does not condone that type of statistical juggling. Its purpose is merely to permit defendants some flexibility in dealing with unusual staffing demands that are not “regular, chronic or permanent.” The one appropriate adjustment to defendants’ compliance forms — to compensate for residents on leave — does modify plaintiffs’ claims. However, even after making this adjustment, the court must conclude that defendants generally are not in compliance with the Consent Judgment staffing requirements. In particular, on the evening shift and on weekends few residents are on leave, and the charts’ showing of consistent noncompliance with respect thereto remains virtually unaltered. For example, on the August 1, 1981 day shift, which was a Saturday, the adjustment for residents on leave does not change staff requirements, as measured by the plaintiffs’ chart, in any building, except two, whose requirements are reduced by one employee. Accordingly, the direct care staff deficit on that date is 27 as opposed to a deficit of 29, as claimed by plaintiffs. Defendants also challenge the mid-level staffing deficits at Willowbrook as submitted by plaintiffs. They contend that plaintiffs should have counted on-duty nurses as supervisors in order to offset mid-level supervisory shortages. Section C(7) of the Consent Judgment does contemplate nurses serving as mid-level supervisors under certain circumstances. Defendants’ forms which plaintiffs utilized in preparing their charts indicate those tours when a nurse is so utilized. Since the plaintiffs did count Willowbrook nurses as supervisors when defendants’ forms indicated that that was their function, this objection by defendants is groundless. Another inadequacy in staffing is the failure of the defendants to provide class members with an adequate number of case managers. On September 9,1980 the court issued an order requiring the state to provide one case manager for every 20 class members. The state has not complied with this order. Eight case managers in the Bronx with class members on their caseload carry more than 20 clients; in Manhattan one case manager carries more than 20 clients and, moreover, 9 class members have no case manager; and in Queens County 9 case managers have caseloads greater than 20. The state made no effort to obtain a stay of this order but instead flagrantly disregarded it until the order was affirmed by the Court of Appeals on June 30, 1981. Based upon the foregoing, the court finds noncompliance by the defendants with the provisions of the Consent Judgment above' mentioned. II In 1975, when Judge Judd signed the Consent Judgment, it was apparent to all that some type of monitoring of the state’s obligations was necessary. Accordingly, the parties agreed to the appointment of a Review Panel (Consent Judgment ¶9 et seq.). The record shows that the progress made by the defendants in the first four and a half years after the entry of the 1975 Consent Judgment was in no small degree due to the monitoring, reporting and recommendations of the Review Panel. In 1979, however, the New York State Legislature deleted from the budget the funding provision for the Review Panel in the Consent Judgment and thereby for all intents and purposes removed the Review Panel from its monitoring position. Since that time, as might have been expected, conditions at Willowbrook have materially deteriorated. Consequently, the crucial issue which is now presented to the court is how can the court fashion a remedy to enforce compliance with its decree. The court has always had the equity power to fashion the relief necessary to protect its judgment against future violations. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Hart v. Community School Board of Brooklyn, 383 F.Supp. 699, 755 (E.D.N.Y.1974), aff’d, 512 F.2d 37 (2d Cir. 1975). This power arises equally from consent judgments as well as final judgments following trials. Beloit Culligan Soft Water Service, Inc. v. Culligan, Inc., 274 F.2d 29 (7th Cir.1960); Aspira v. Board of Education of City of New York, 423 F.Supp. 647 (S.D.N.Y.1976). As stated by this Circuit: “[T]he district court [has] not only the power but the duty to enforce a settlement agreement which it [has] approved ...” Meetings & Expositions, Inc. v. Tandy Corporation, 490 F.2d 714, 717 (2d Cir.1974). Accordingly, plaintiffs now move for the appointment of a special master to guarantee future compliance with the Consent Judgment. Rule 53 of the' Federal Rules of Civil Procedure expressly authorizes this procedure by the appointment of a special master as an exception to the general rule. Similar to the case at bar is Gary W. v. State of Louisiana, 601 F.2d 240 (5th Cir.1979), involving the level of care the State of Louisiana was providing its developmentally disabled citizens who found themselves in Texas institutions. In approving the district court’s subsequent appointment of a Rule 53 special master, the court remarked that the appointment of a special master was not extraordinary, citing many cases involving similar facts and problems. Finally, the court observed: These proceedings have now been pending for over four years and a significant number of the children involved still have not been accorded the relief ordered. These two unfortunate facts belie the appellants’ claim that the District Court abused its discretion in ordering the appointment of a Special Master. Id. at 245. We have an almost identical situation here. Considering the past violations of the Consent Judgment, there is more than ample precedent to find exceptional circumstances justifying the appointment of a special master to protect the class members from harm. But the court need not rely solely on Rule 53 for its equity power to provide itself with the appropriate instrument to enforce its decree. In the early case of Ex Parte Peterson, 253 U.S. 300, 312-13, 40 S.Ct. 543, 547, 64 L.Ed. 919 (1920), the Supreme Court, through Mr. Justice Brandéis, pointed out that this power derives from the courts’ inherent power to provide themselves with appropriate instruments required for the performance of their duties ... and to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause. From the commencement of our Government, it has been exercised by the federal courts, when sitting in equity, by appointing, either with or without the consent of the parties, special masters, auditors, examiners and commissioners. To the same effect is Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956), where the court said: Beyond the provisions of Rule 53, Federal Rules of Civil Procedure, 28 U.S.C.A., for appointing and making references to Masters, a Federal District Court has “the inherent power to supply itself with this instrument for the administration of justice when deemed by it essential.” (Citations omitted.) Consequently, either under Rule 53 or in accordance with the court’s inherent power to provide equitable relief, this court is able to appoint a special master to ensure compliance with its judgment. The defendants offer many arguments why a special master should not be appointed predicated upon (i) their good faith and substantial performance; (ii) impossibility of performance because of changed conditions; (iii) creation of adversary relationships; (iv) duplication of efforts since Willowbrook is already monitored by fourteen separate agencies; and (v) violation of established principles of federalism. The court has no doubt about the good faith of the defendants in attempting to comply with the Judgment, but the court does not find substantial performance. Good faith and efforts, however, are no excuse for failure to comply with provisions so necessary for the protection of the handicapped clients. Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir.1972); Gautreaux v. Chicago Housing Authority, 384 F.Supp. 37, 38 (N.D.Ill.1974). Defendants cite Panitch v. State of Wisconsin, 451 F.Supp. 132, 133-34 (E.D.Wis.1978), in support of their contention. Panitch presents an entirely different factual pattern than the situation here. In that case, involving an injunction compelling education of handicapped children, the School District had eliminated the backlog of handicapped students awaiting placement and also reduced the number of such students awaiting evaluation. In other words, there was substantial improvement and progress. In all events, such progress and improvement does not exist in this case. See Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974); United States v. Dothard, 373 F.Supp. 504 (M.D.Ala.1974). As discussed under heading III below, performance is not impossible because of changed conditions. The claim of adversary relationships resulting from the appointment of a special master is simply not supported by evidence or experience. It is true that Willowbrook is now monitored by fourteen different agencies, five of which existed before the entry of the Consent Judgment. The only two bodies which perform any monitoring against the decree, the Willowbrook Quality of Life Monitors (“QLM”) and OMRDD’s Consent Decree Office Audit Compliance Task Force (“CDO”) consist entirely of defendants’ employees. QLM monitors only Willowbrook, not the other facilities or homes, and CDO performs its monitoring function only once a year. Moreover, despite the existence of these fourteen monitoring groups, they have failed to adequately supervise or in any way enforce full compliance with the Consent Judgment. What is needed is an independent body for compliance purposes which can orient and co-ordinate the reports and programs of the present agencies. In the successful performance of his services the special master would hasten the day when the Consent Judgment will be fully implemented. The role of the master would be to act “as an arm and as the eyes and ears of the court.” Palmigiano v. Garrahy, 443 F.Supp. 956, 986 (D.R.I.1977). His duties would go beyond those of the present monitoring agencies. As a matter of fact, if the special master were satisfied with the accuracy and objectivity of the data now collected by OMRDD and the other monitoring bodies, there would be no necessity for him to engage in their particular activities. His task would be to integrate and harmonize that data for the purpose of implementing and enforcing compliance with the Consent Judgment, a task which none of the other bodies monitoring Willowbrook and related facilities can accomplish. Predicated upon her experience with a special master in Massachusetts, Commissioner Schwaninger recommended the appointment of a special master for the purpose of enabling the New York Commissioner to “respond to the needs of our mentally retarded population in a more timely way.” (T. 5822). Finally, defendants charge that the appointment of a special master under these circumstances would violate certain fundamental precepts of federalism, thus rendering such appointment unconstitutional. This argument may be divided into two contentions: the appointment would unconstitutionally interfere with New York State’s right to direct its own affairs; and a mandate to New York to assume responsibility for compensating, such a master would unconstitutionally interfere with New York’s sovereign right to allocate its own tax dollars. As to the first part of the argument, Rule 53, as heretofore pointed out, specifically authorizes the appointment of a special master and the cases are clear that such powers of monitoring by a special master are within the limitations of Rule 53. Taylor v. Perini, 413 F.Supp. 189 (N.D.Ohio 1976); Costello v. Wainwright, 387 F.Supp. 324 (M.D.Fla.1973), aff’d, 489 F.2d 1311 (5th Cir.1974). See Gary W. v. Louisiana, supra; Amos v. Board of School Directors of City of Milwaukee, 408 F.Supp. 765 (E.D.Wis.), aff’d sub nom. Armstrong v. Brennan, 539 F.2d 625 (7th Cir.1976), vacated on other grounds, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977); Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 334 F.Supp. 1257 (E.D.Pa.1971), modified, 343 F.Supp. 279 (1972). See also Note, 91 Har. L.Rev. 428 (1977). The court, of course, recognizes the delicate balance between the Judiciary, Legislature and the Executive. Dimarzo v. Cahill, 575 F.2d 15 (1st Cir.1978). Since the effect of the appointment of a special master would be prospective, it is not forbidden by the Eleventh Amendment. In fact, since the defendants have consented to this Judgment, it is difficult to see how they can interpose that bar. Indeed, Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974), recognizes that such relief is available without a violation of the Eleventh Amendment even though the decree imposes financial burdens and will have fiscal consequences to a state treasury as the necessary result of compliance. See Vecchione v. Wohlgemuth, 558 F.2d 150, 158 (3d Cir.), cert. denied, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977). By appointing a special master the court does not control, manage or supervise the operation of Willowbrook. It simply seeks a tool by which it may monitor and enforce the state’s performance of its obligations. As for the second aspect of defendants’ challenge, the court is aware of the fact that the specific allocation of state resources among its conflicting needs is a political matter to be resolved by the Legislature. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); New York State Association for Retarded Children v. Carey, 631 F.2d 162 (2d Cir.1980); Evans v. Buchanon, 582 F.2d 750 (3d Cir. 1978). It does not follow from this principle, however, that plaintiffs’ constitutional rights or their right to full compliance with a consent judgment can be violated or ignored. If compliance requires the expenditure of funds the court thereby does not allocate the state’s resources. It is the duty of the court to attempt to enforce its judgments. There are innumerable cases supporting the proposition that permits the assessment of costs against defendants for compensating a special master. Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Rhem v. Malcolm, 507 F.2d 333 (2d Cir.1974); Welsch v. Likins, supra; Hart, supra; Gary W., supra. Moreover, Rules 53 and 54, F.R.Civ.P., specifically authorize the assessment of such costs against the defendants in these circumstances. The court has decided to appoint a special master with full powers afforded under Rule 53, F.R.Civ.P. The appointment will not permit the special master to assume the operation of the Office of Mental Retardation and Developmental Disabilities nor to decide disputes between the parties. However, the master’s efforts will be directed to the development of a plan to eliminate widespread violations of the Consent Judgment at Willowbrook and related facilities; to report periodically non-compliance with the provisions of the Consent Judgment; to assist in the accomplishment of the community placement provisions of the Consent Judgment; and finally, to monitor the implementation of the provisions of the Consent Judgment. Before such appointment, however, the court invites both parties to submit on or before the 14th day of May, 1982, two (2) names each of eligible persons for the appointment of a special master and to file with the court a plan suggesting the delineation of the duties and obligations of the special master and the funding necessary for his compensation and for an adequate staff and an adequately equipped office. Ill A Defendants have moved for modification of paragraphs V(l), V(4) and V(7) of the Consent Judgment on the ground that such modification is necessary in order to realize the goal of community placement for Willowbrook class members. In support of their motion they rely on Rule 60 of the Federal Rules of Civil Procedure. Rule 60(b) provides that the court may relieve a party from a final judgment, order, or proceedings for the reasons set forth in subdivisions (5) and (6) as follows: (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Defendants claim that the above sections of the Consent Judgment are no longer adapted to accomplish their purpose because of the housing shortage in New York City and the other obstacles mentioned by them which militate against community placement of non-ambulatory, non-self-preserving Willowbrook clients. The issue is whether “it is no longer equitable that the judgment should have prospective application.” The defendants’ argument for modification is two-pronged. They contend, first, that size limitation is not that important a consideration for the Willowbrook population and that class members can be served as well — and in some cases better — in facilities that accommodate between 11 and 50 residents. Second, they argue that the interplay of current housing conditions in New York City with the Consent Judgment’s rigid size restrictions has caused Willowbrook class members to remain in an institutional environment an unnecessarily long time. Consequently, they say, §§ V(4) and V(7) of the Consent Judgment are not properly adapted to accomplishing their purpose of providing class members with the least restrictive and most normal living conditions possible, and they should be abandoned. We turn first to the argument that facilities accommodating between 11 and 50 residents provide as good — and in some instances better care — than the smaller community facilities presently mandated by the Consent Judgment and by the 3 bed/6 bed Order. The thrust of most of defendants’ testimony was that size is not a critical factor in determining the best community placement for profoundly retarded persons. Professor Sue Allen Warren expressed the opinion that the compassion of staff, not the size of a facility, is the significant factor and that a mentally retarded person’s developmental needs can be cared for as well in a 50-bed facility as in a 10-bed facility. In fact, in her opinion, a larger facility has important advantages: it can more easily obtain the necessary professional staff, there is less professional isolation, and mentally retarded individuals there have greater opportunities to develop friendships than they do in small facilities. Citing the work of Professor Landesman-Dwyer, she concluded that there is not enough clinical data to support the efficacy of the court’s present size limitations, and that a range of community-based facilities should be developed. Dr. Blanton stated that a range of facilities housing up to 100 mentally retarded individuals would be appropriate. He testified that while size is one factor to consider in developing community placements, location, availability of services and orientation of the community are more important. Commissioner Slezak concurred that a range of facilities should be developed. He testified that mental health practitioners should not force individuals into small units because of an illfounded preconception that smaller units are less restrictive, and that facilities larger than 10 beds are particularly appropriate placements for severely handicapped individuals who require nursing care or who have special disabilities such as behavior problems. In his opinion, residences housing up to 50 individuals can be home-like and can provide excellent care. Ms. Blum agreed that a range of facilities should be considered for certain individuals. She continued that for those who are multiply handicapped or severely emotionally disturbed, both small and moderate-sized facilities are appropriate placements. Moreover, because intermediate-sized facilities are vastly superior to Willowbrook, difficult-to-place clients should be sent to them rather than just left to deteriorate at Willowbrook. Transitional placements in intermediate-sized facilities are also useful for assessing residents’ abilities and needs before their final placement. Such assessments, she believes, cannot be done as expeditiously in the community as in intermediate-sized facilities, and they are not done adequately at Willowbrook. Marc Brandt also endorsed the view that 35- and 50-bed facilities can be very humane and therapeutic. He stated that as transitional facilities they provide excellent alternatives to the institutionalized environment of Willowbrook, and they are good permanent homes for individuals who have such severe medical problems that they need continuous monitoring in a specialized facility. Two of defendants’ witnesses emphasized the medical barriers to placement in small facilities. Dr. Philip Ziring testified that the approximate 300 multiply handicapped residents at Willowbrook and the 115 residents at Flower Hospital require 24-hour access to medical experts. He opined that communities are not presently capable of providing adequate medical care, and therefore that multiply handicapped class members should not reside in facilities of 10 beds or fewer. Dr. Shervert Frazier agreed. Focusing on Flower Hospital residents, he testified that they have special needs that require immediate access to trained medical personnel. To justify the continuous presence of experts, physicians and therapists at any given facility, he believes, there must be a “critical mass” of disabled individuals, which a facility of 50 beds, but not a residence of 10 beds, can provide. Experts for plaintiffs and amicus disagreed sharply with defendants. They testified that the size of a residence is the most critical factor in ensuring the growth and development of Willowbrook class members and that even individuals with behavior problems and medical disabilities benefit from placement in facilities of 10 residents or fewer. The reason size is so important, they asserted, is because of the severe developmental handicap of class members. Severely and profoundly retarded individuals, who comprise 85-90% of the Willow-brook population awaiting placement, have developmental levels between that of an infant and a two-year old. Commissioner Schwáninger, Dr. Clements and Commissioner Lensink contended that because of the class members’ limited intelligence they can develop only if their programming and care are extremely consistent. Commissioner Schwaninger explained that the development of one or two close emotional relationships is vital for these individuals, for people who are so profoundly retarded start developing and growing at the basic level of emotional relationship. She added that although, theoretically, in a 35- or 50-bed facility, one staff person could be assigned permanently to 4 or 5 residents and a close emotional relationship could develop, because of the sheer demands of numbers, that does not occur. Dr. Clements emphasized that consistency of programming is vital for these clients. The larger the facility the larger the number of employees who have to become totally familiar with an individual’s program in order to deliver it in a consistent manner and the less likely appropriate programming will occur. Commissioner Lensink added that profoundly retarded individuals have a great deal of difficulty generalizing and integrating new skills. Consequently, in order for them to learn they must be in a small setting where they do not have to contend with a distracting panoply of activity. Small community residences are also better at reinforcing basic skills, such as tooth brushing, in an appropriate place, at an appropriate time, and with the undistracted attention of staff, so that the retarded individual can truly grasp what he is learning. Barbara Gacek, who runs six small group homes and two satellites, agreed that the type of individualized program necessary for the severely retarded can best be accomplished in a facility for 10 residents. She testified: We really feel that a small placement of ten is ideal to create a home-like environment for these children, to personalize their individual attention, to allow the staff to know each client, not just as a name but as a person with individual likes and dislikes, feelings and idiosyncrasies, so if in our concept you are increasing the numbers, you are decreasing the ability to provide that kind of philosophy. ... One of the things that we are very insistent on is that our children’s mental age is at best between 12 months and 3 years. They are, therefore, on a preconcrete or concrete level of development. If you are going to teach a skill you are going to have to teach it in the appropriate place at the appropriate time. The finger painting is, as an example, you cannot do finger painting in a dining room at 4:00 and then expect the children at 5:00 not to finger paint with their chocolate pudding. They can’t make that kind of an association. You have to make sure that the arts and crafts, every other skill, is done in the appropriate place. Witnesses for plaintiffs and amicus agreed that small settings are particularly important for class members with behavior problems, for their problems are aggravated by larger groupings. They also challenged defendants’ assertion that class members with medical problems cannot be placed in small community residences. Dr. Lorincz testified that less than a dozen Willowbrook residents needed hospital-style care. He explained that while multiply handicapped residents at Willowbrook are physically dependent, they are medically stable, and if staff has been trained to cope with their handicaps, these individuals’ needs can be better met in a small group home than in a 20- or 50-bed facility. Lyn Rucker, who toured Flower Hospital, echoed his testimony, and stated that she saw only four Flower Hospital residents who needed long-term placement in a hospital and for whom a small community placement might be inappropriate. Commissioner Schwaninger, Commissioner Lensink, Lyn Rucker, and Gerald Provencal all testified that as directors of state community placement efforts, they had placed physically handicapped clients with the same types and degrees of handicapping conditions as those residents at Willowbrook and Flower Hospital into the community. After serious consideration of all the evidence the court is persuaded by the plaintiffs’ witnesses and is convinced that the needs of the Willowbrook class members are better met in small group homes than in facilities ranging in size from 11 to 50 beds. It should be noted that this conclusion is not the first determination in this case of the most appropriate placement for these individuals. After three years of litigation both plaintiffs and defendants agreed in 1975 that the objectives of integration and normalization were best accomplished for profoundly and severely retarded individuals by placement into facilities of 10 beds or fewer. Plaintiffs, as well as defendants, made concessions to obtain this agreement, which Judge Judd signed as a Consent Judgment. Then, in 1977 this court disapproved establishing Bronx Developmental Center as a transitional placement for class members, and in 1978, after a hearing, the defendants once again agreed with plaintiffs that small placements are important for the retarded, in that instance for the 115 multiply handicapped residents at Flower Hospital. The thrust of defendants’ current argument seems to be either that professional knowledge has changed or that practical experience has shown that the quality of care is the same in facilities sized from 1 to 50 residents, with the exception that for certain individuals, facilities larger than 10 beds are even better. Defendants have not demonstrated that professional opinion discounts size as an important factor in developing quality community placements. On the contrary, those experts with direct experience in placing clients similar to Willowbrook class members — including defendants’ witness Dr. Blanton — concur that the trend throughout the country is towards smaller residences. It is true, as defendants point out, that from 1960-1970 Scandinavia developed numerous 40-60 bed facilities, but the result of that experience has been that professionals there are unhappy with the care provided in those facilities and want to replace them with smaller residences. It is clear to the Court that an essential purpose of the Consent Judgment, placement in small community facilities, is still an important goal. This is because residents in small community residences receive the type of individualized and consistent care necessary for them to develop to their full pote