Full opinion text
OPINION HUYETT, District Judge. Presently pending before me is plaintiffs motion for equitable relief. For the reasons set forth in the following findings of fact, discussion, and conclusions of law, this motion will be granted. I. FINDINGS OF FACT Because the parties have entered into a very comprehensive stipulation of the facts of this tragic case, I will provide only a brief summary of the relevant facts. The following narrative together with the stipulation constitute my findings of fact. Plaintiff is forty-four years old. She has spent her entire adult life at Laurelton Center (“Laurelton”), a state institution for the mentally retarded, after she was committed there in 1956 at the age of fifteen. At the time of her commitment, plaintiff had been taken from the custody of her family. There are suggestions in the record and among the documents from her file at Laurelton that plaintiffs family life prior to her commitment was tempestous and disruptive to her development. A petition for plaintiffs commitment pursuant to § 326 of the Mental Health Act of 1951, as amended, 50 P.S. § 1071 et seq., repealed by Mental Health and Mental Retardation Act of 1966, 1966 Pa.Laws 96 (codified at 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969)), was filed on November 8, 1956 and approved by the court the next day. Plaintiff did not have a hearing in connection with her commitment nor did she receive notice of the petition. On November 11, 1956 plaintiff was transported to Laurelton, a residential institution located in Union County, Pennsylvania which houses approximately 350 mentally retarded persons. It is at least four hours from Philadelphia. At the time of her commitment, plaintiff was a resident of Philadelphia and still has family there. She has not seen them for approximately six years. Although plaintiff was described as “severely defective” in the commitment petition in 1956, tests administered to her soon after her admittance at Laurelton revealed that she is in the mild range of mental retardation with an IQ of roughly 60. Her IQ tests have remained fairly constant since that time. Her IQ is much higher than the vast number of Laurelton residents and plaintiff functions at a much higher level than most of her companions at Laurelton. Soon after she was sent to Laurelton, plaintiff expressed her displeasure with being committed there against her will. She has continued to protest her detention there up to the present time. Despite these protests, plaintiff never received a hearing regarding the propriety of either her initial commitment or her continued residence at Laurelton. Her efforts, however, to obtain a hearing have been unstinting at least since 1981. During her almost thirty years at Laurel-ton, the law regarding the treatment and rights of mentally ill and mentally retarded people has changed dramatically. The statute under which plaintiff was originally committed was repealed and replaced in 1966. Plaintiffs commitment was then deemed by the Commonwealth to be equivalent to one under the new statute. In 1976, a three judge panel declared § 406 of the 1966 Act — the section dealing with involuntary commitments — unconstitutional. In spite of these events and in spite of the fact that plaintiff reached maturity in 1962, plaintiff never received a hearing. It appears from the testimony of James Pelter that the Commonwealth’s Department of Public Welfare (“DPW”) has no formal procedure under which persons committed indefinitely are given hearings to review their commitments. An average hearing pursuant to § 406 of the 1966 Act held in Union County costs approximately $132. In April, 1984, Elizabeth Keister, a Laurelton employee, prepared a petition requesting authority to detain plaintiff pursuant to § 406 of the 1966 Act. In that petition, Keister stated: “Carolyn was admitted to Laurelton Center on November 15, 1956, under section 326 of the MH/MR Act of 1951, as amended in 1954. This commitment has never been reviewed in Ms. Clark’s 28 years at Laurelton Center. Ms. Clark is mildly retarded, possesses all self-care skill and basic academic skills. Ms. Clark is requesting placement in a community residential facility or a review of her commitment. The least restrictive environment for Ms. Clark would be a structured community living arrangement and day program. Due to her long institutionalization she could not live independently at this time.” This petition was never filed. Although plaintiff has remained at Laurelton since her commitment in 1956, the staff at that facility, including plaintiff’s treatment team, has agreed, at least since 1976, that she should be placed in a community living arrangement (“CLA”). All of the professionals who testified at the hearing on this matter voiced this same opinion. The stipulation details the various steps that have been taken in order to convince those in power to place plaintiff in a CLA. All of these efforts were to no avail. A CLA consists in most general terms of a small residential group composed of mentally retarded people who function at similar levels. These individuals live in a house within the community and receive intensive supervision and training in those behaviors and skills necessary to function independently within the community. A CLA is designed to allow a mentally retarded person to live in a setting which is as close to a “normal” one as possible. They are also designed to allow for more community interaction and interaction with nonretarded persons than is an isolated institution such as Laurelton. Plaintiff has continually sought placement in some form of CLA since at least 1976. She continues to want such a placement very much. James McFall testified on behalf of plaintiff at the May 28, 1985 hearing. McFall is qualified as an expert in the field of psychology. Although he does not possess a doctoral degree in that field, he has completed all of his degree requirements except for his dissertation. In addition, he has extensive work experience in the treatment of mentally retarded persons. In his opinion, there are no contraindictions to a placement in a CLA for plaintiff. He testified that in his experience, plaintiff functions at a higher level than many of those currently placed in CLAs in Philadelphia. He described plaintiff as at “the highest functioning levels of any of my clients.” Dr. Paul Spangler also testified on behalf of plaintiff. He holds a doctoral degree in psychology and has extensive experience in the treatment of the mentally retarded. I find him to be qualified as an expert in the field of psychology. Spangler opined that plaintiff should be placed into a CLA as soon as possible. He noted that many people who function at a level below plaintiff’s are already either in a structured CLA or in some other form of community residence. He stated that in 1985 it was unusual to see someone like plaintiff in a large institution like Laurelton. Spangler also described a CLA program that has been developed by defendant County of Philadelphia. This program, known as a Teaching Family Home, would allow plaintiff to share a home with a small number of other mentally retarded people and a husband and wife team of trained psychologists. This team would be augmented by one or two other staff members from time to time, thus bringing the staff to patient ratio to approximately one to one. This is a much higher ratio than is available at Laurelton. Spangler stated that in his opinion, plaintiff would spend approximately two years in such a placement, then two years at a minimal supervision CLA, and then live independently with some backup support. The costs of this program would be $56,000 per year for the Teaching Family Home, $20,000 to $25,000 per year for the minimal supervision CLA, and approximately $4,000 per year for the necessary backup support after that. By contrast, it costs the Commonwealth approximately $40,000 to $48,000 per year to maintain plaintiff at Laurelton. Spangler and McFall also testified that the opportunities for growth and training at a CLA far exceeded those available at Laurelton. Although some aspects of these opinions were disputed by witnesses for the defendants, I find that Spangler and McFall were credible expert witnesses and I credit their opinions regarding the relative merits of life at a CLA and Laurel-ton. It is uncontroverted that certain aspects of CLA life simply cannot be duplicated at Laurelton. For example, because of its remote setting, the degree of community involvement at Laurelton will never be as great as that in a CLA. Neither will plaintiff be able to practice the food preparation she would be able to practice in a CLA. Indeed, many attributes of a CLA make it far superior in every way to institutionalization for someone like plaintiff. At Laurelton, plaintiff shares a “room” with two other women. This room is actually a small part of a much larger room that has been divided into small bedroom areas with partitions that are three-quarters of the height of the ceiling. Plaintiff testified that there are no doors in her cottage at Laurelton, even on the bathroom. Plaintiff has little ability to structure her sleeping time at Laurelton. She testified that there was a “curfew” imposed with a strict eleven o’clock “lights out” policy. In addition, she testified that she would like to be able to shop for her own clothes in the community and to do her own food shopping and preparation. Mr. McFall testified that plaintiff cannot do any of these things while she remains at Laurelton. At the very least, she is unable to engage in the full range of these activities while at Laurelton. In addition, although work activities are available at Laurelton, it is obvious that they are not of the same variety as those available to her in the community. Plaintiff stated her strong desire to work and earn money which she obviously enjoys spending. This motivation was considered a strong factor by both McFall and Spangler in their conclusions that plaintiff would make a good candidate for a CLA. Plaintiff obviously desires to be placed in a CLA very much. Indeed, both McFall and Spangler testified that the failure to place her in such a program has made her so frustrated that her behavior has deteriorated. McFall testified that plaintiff’s self-esteem has been adversely affected by her continued stay at Laurelton especially in light of the fact that many of her former friends who functioned at similar levels as she does have left for CLAs. There was additional testimony that plaintiff’s behavior is in a “downward spiral” as a result of her continued frustration at remaining at Laurelton. This testimony was, however, strongly contested by staff members of Laurelton. The Superintendent of Laurel-ton, defendant S. Reeves Powers, testified that plaintiff’s behavior has always been variable and that she frequently became more aggressive for periods of time. He stated that her behavior has not gotten consistently worse over the years. He admitted, however, that a continued stay at Laurelton would cause her emotional harm. Kay Stewart, who is employed at Laurel-ton as a psychological services associate, supported Powers’s view of plaintiff’s behavior. Indeed, she testified that plaintiff’s behavior has gotten better since 1981. I believe, however, that Stewart’s testimony does not deserve much weight. She does not hold a degree in psychology per se and is not licensed in that field. She professed that she did not have deep background in the psychological literature. Moreover, I found that her testimony was often self-serving and that at times it was not forthright. For example, she relied on Exhibit C-15 which is a bar graph showing plaintiff’s “continued stay assessment” scores over time. This exhibit was admitted to show that plaintiff’s scores did not decline over time. The 1985 score was, however, made on the basis of a new test and could not be compared with earlier scores. On cross-examinations, Stewart admitted that the inclusion of this score in C-15 and her reliance on it were “unfair”. For these reasons, I find that Stewart’s testimony should be given little weight. I do, however, believe that those with the closest ability to observe plaintiff over a long period of time have the best ability to assess any changes in her behavior. I therefore must conclude that there have not been any long term trends in her behavior as a result of her being denied a CLA. To understand fully the circumstances which have given rise to plaintiff’s present plight, it is necessary to sketch briefly the complicated relationship between local and state authority and responsibility in the provision of services to mentally retarded citizens. Both areas of government have some responsibility in this area. The responsibilities of the state include: ensuring the availability of adequate mental retardation services to all those who need them; making and enforcing regulations to implement the Mental Health/Mental Retardation Act; consulting with the various counties and assisting them in carrying out their mental retardation functions; operating state facilities, and supervising mental retardation facilities, services, and programs. The counties (and with respect to this action, Philadelphia County) have the duty to cooperate with the state to ensure that services are available. In addition, defendant Surles, who is the Mental Health and Mental Retardation Administrator for the County of Philadelphia, is responsible for establishing an organizational unit or units consisting of multi-disciplinary professional staff capable of providing and planning appropriate services for mentally retarded persons in need of such services from the county. These organizational units are known as “Base Service Units” (“BSUs”). The County has contracted with several BSUs each of which serves individuals from a different area of the City of Philadelphia. Defendant Centralized Comprehensive Human Services, Inc. operates the John F. Kennedy Community Mental Health and Mental Retardation Center (“JFK MH/MR”) which is the BSU responsible for serving plaintiff. The obligations of JFK MH/MR are described in some detail in the stipulation of facts and I will not recite them here. It is unfortunate, but true, however, that although nominally responsible for the provision of services to plaintiff, JFK MH/MR apparently has no records in its possession concerning plaintiff from the time of her commitment until 1976. Since 1976, however, plaintiff’s BSU has been repeatedly advised by Laurelton staff that plaintiff should not be institutionalized and should be placed in a CLA. JFK MH/MR, in fact, attempted to have Philadelphia’s mental health and mental retardation program arrange a CLA placement for plaintiff. Like all other attempts to transfer plaintiff from Laurelton, however, this never resulted in any change in plaintiff’s treatment. Although all the available professional opinion strongly favors a CLA for plaintiff, and has for the last nine years, plaintiff remains at Laurelton. The primary forces which have kept her there appear to be bureaucratic ineptitude and insufficient allocations of funds to community residence programs. Mr. Paul Hindman testified at the May 29, 1985 hearing regarding the process by which mental retardation services are funded by the state. He is currently director of the DPW’s Bureau of Planning and Resource Allocation. He testified that DPW has allocated approximately $500 million for mental retardation services for the present fiscal year and that over one-half of this money goes to state institutions. Only 23% goes to community residential programs. He also testified that each year some of the money allocated to the counties for community residential programs is not spent. These “carryover funds” are then reallocated during the next fiscal year to other counties. DPW has the discretion to reallocate this carryover, at least to some degree. In spite of the fact that plaintiffs plight has been known by those at Laurel-ton, JFK MH/MR, and the County for many years, Hindman testified that no money has ever been sought or proposed to fund a CLA for plaintiff. Indeed, in the DPW budget for the 1985-1986 fiscal year, there was no increase for non-Pennhurst community placements at all. II. DISCUSSION A. Introduction Plaintiff makes a number of specific contentions in support of her motion for injunctive relief. She claims that the actions of the defendants have violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. She also claims that she has been deprived of her liberty without due process and that she has had her substantive rights under the due process clause violated. Defendants deny that plaintiff has been the victim of actionable discrimination under the Rehabilitation Act and contend that no constitutional violations have occurred. In addition, they argue that the relief plaintiff seeks is inappropriate. At the hearing on this matter, plaintiff requested that her motion for preliminary relief be treated as one for a permanent injunction. Although in most cases I would have given all parties advance notice of my intention to accelerate a hearing on a permanent injunction, defendants did not object to plaintiffs proposal either in court or in their post-hearing supplemental memoranda. I will therefore treat plaintiffs present motion as one for a permanent injunction. See Fed.R.Civ.P. 65(a). The power to grant a permanent injunction rests with the sound discretion of the trial court. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1966). The court may grant a permanent injunction after a hearing if there are no material issues of fact and the issues of law have been correctly resolved. See Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5th Cir.1957). Plaintiff states claims on both statutory and constitutional grounds. The federal courts have long been directed to decide whether causes of action can be supported on statutory grounds before they adjudicate constitutional law issues. See Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, •1382, 39 L.Ed.2d 577 (1974); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909). I will therefore address plaintiffs Rehabilitation Act argument first. B. Rehabilitation Act • Plaintiff advances a claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Act”). Introduced in the House of Representatives on December 9, 1971 and in the Senate on January 20, 1972, § 504 of the Act was framed initially as an amendment to the Civil Rights Act of 1964. Although it ultimately became part of another act, its language and intent were patterned after other civil rights legislation, especially Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). Section 504 states: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. 29 U.S.C. § 794. Senator Humphrey, the primary Senate sponsor of the bill, said when introducing it: I introduce ... a bill ... to insure equal opportunities for the handicapped by prohibiting needless discrimination in programs receiving Federal financial assistance ... The time has come when we can no longer tolerate the invisibility of the handicapped in America ... I am calling for public attention to three-fourths of the Nation’s institutionalized mentally retarded, who live in public and private residential facilities which are more than 50 years old, functionally inadequate, and designed simply to isolate these persons from society____ These people have the right to live, to work to the best of their ability — to know the dignity to which every human being is entitled. But too often we keep children, whom we regard as “different” or a “disturbing influence” out of our schools and community activities altogether Where is the cost-effectiveness in consigning them to ... “terminal” care in an institution? These are people who can and must be helped to help themselves. That this is their constitutional right is clearly affirmed in a number of recent decisions in various judicial jurisdictions. 118 Cong.Rec. 525 (1972). Unfortunately, Congress apparently assumed that § 504 would be enforced as had previous civil rights legislation and provided no specific authorization for rulemaking in the statute. This situation was remedied when President Ford signed Executive Order No. 11,914 on April 28, 1976 which required the secretary of the Department of Health, Education, and Welfare (now the department of Health and Human Services) to promulgate regulations for the enforcement of § 504. It was not until 1977, however, that such regulations were published. See Cherry v. Mathews, 419 F.Supp. 922 (D.D.C.1976). As the Supreme Court has recognized, these regulations are especially helpful in interpreting the congressional intent in passing § 504. This is true because the responsible congressional committees participated in their formation and both those committees and Congress as a whole endorsed the final product. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 1254-55 & n. 15, 79 L.Ed.2d 568 (1984). Plaintiff relies in particular on 45 C.F.R. §§ 84.4(b)(l)(i)-(iv) which state: (b) Discriminatory actions prohibited. (1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, bn the basis of handicap: (i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others; (iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others; The term “equally effective” is defined in the regulations as: (2) For purposes of this part, aids, benefits and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs. 45 C.F.R. § 84.4(b)(2). These regulations emphasize that, “although separate services must be required in some instances, the provision of unnecessarily separate or different services is discriminatory.” 20 C.F.R. Part 84, Appendix A, ¶ 6. With these general considerations in mind, I will now turn to the specifics of plaintiff’s Rehabilitation Act claim. Plaintiff alleges that the provision of services to her at Laurelton discriminates against her in violation of the act.' She alleges that because other similarly situated people are provided services in more integrated settings such as in CLAs, her retention at Laurelton constitutes unnecessarily separate or different treatment which the regulations declare discriminatory. In order to state a claim under § 504 plaintiffs must prove that 1) they are handicapped within the meaning of the Act, 2) that they are “otherwise qualified” for the services sought, 3) that they were excluded from the services sought solely by reason of these handicaps, and 4) that the program in question receives federal financial assistance. Strathie v. Department of Transp., 716 F.2d 227, 230 (3d Cir.1983); Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir.1981). It is beyond dispute that plaintiff is a handicapped person within the meaning of the Act. Doe v. Region 13 Mental Health Mental Retardation, 704 F.2d 1402 (5th Cir.1983). I also believe that the parties do not dispute that plaintiff is “otherwise qualified” for the services she contends are being denied to her: a CLA. Indeed, given the record developed in this case, I would have no hesitancy finding plaintiff to be so qualified even if I did believe that it was disputed. Defendants do contest, however, the other two requirements set forth above. Defendants argue that plaintiff has not been the victim of discrimination solely on the basis of her handicap. They also argue that she had not made the necessary showing that the “federal funding” requirement of the Act has been met. Defendants argue that the reason that plaintiff has been detained for twenty-nine years at Laurelton has nothing to do with her handicap, but is merely a result of inadequate funding. They argue that funds are simply not adequate to provide CLAs for all those who could benefit from them and that the available funds are disbursed in a nondiscriminatory fashion. I do not believe that defendant’s argument is correct in all of its implications. I do believe, however, that plaintiff has failed to show that she has been discriminated against solely on the basis of her handicap as required by the Act. Plaintiff is mildly retarded. She lives at Laurelton with individuals of varying levels of retardation. There are also people with varying levels of retardation already placed in CLAs. I cannot explain the reason that plaintiff has not been given a GLA, and defendants could not offer any real explanation either, aside from a chronic lack of funds or bureaucratic misplacement of plaintiff over the years. Although I do not find these explanations satisfying, I cannot conclude that plaintiff has been detained at Laurelton solely because of her handicap as required by the Act. The Act prohibits discrimination against those who are handicapped based on that handicap where the person is otherwise qualified for the receipt of the funds or the services in question. The statute makes clear, however, that this discrimination must be based “solely” on the existence of a handicap. Plaintiff is alleging that she has been the victim of discrimination vis-avis other handicapped people. More precisely, she alleges that other mentally retarded people receive services for which she is also qualified and that she is harmed as a result. There is no allegation, however, that plaintiff is denied a CLA because she is mildly retarded as opposed to severely or borderline retarded. If plaintiff had alleged and proved that she was denied a CLA because of her handicap and that the provision of services was operating to deny her a benefit on the basis of that handicap, she would have stated a claim under the Act. She has not, however, proved this theory. There are painfully few cases which address this issue. In Plummer v. Branstad, 731 F.2d 574 (8th Cir.1984), plaintiffs challenged the state’s decision to shift them from a federally funded treatment program to a state funded institutional program. The court concluded that the plaintiffs had not stated a claim under the Rehabilitation Act because they had not been excluded from services solely by reason of their handicap. The court stated “the criterion upon which the plaintiffs were excluded from Title XX funding, [the federal program] ... on its face had nothing to do with their individual abilities, backgrounds, or circumstances.” Id. at 578. The court found that the basis of the transfer was that the plaintiffs received twenty-four hour a day treatment and care in a state run facility which provided substantially the same services as those obtained from the federally funded agency. Id. The court concluded that the basis of the distinction drawn between plaintiffs and those who continued to receive the federally funded services was not the plaintiffs’ handicaps per se, but rather their residence at a facility which provided essentially the same services to them at state expense. I recognize that Plummer rested on a magistrate’s finding that the services available to plaintiffs were substantially the same as those available to them in the federally funded program. Indeed, the court went on to state that were it not for this fact, “[s]ection 504 would prohibit a distinction based solely on ... residence, given that persons live in [institutions] only because of their handicapped status.” Id. at 579. Although this language would seem to suggest that plaintiff in the instant case would be entitled to relief under the Act, a careful review of the facts of Plummer reveals that it is sufficiently different from the instant case to make this language inapposite here. Plaintiffs in Plummer were persons who were institutionalized in facilities known as an intermediate care facilities (“ICFs”). These facilities were designed to provide twenty-four hour a day care for persons who required such care for medical reasons. The state also operated other facilities that did not house those in need of constant medical care. Thus the plaintiffs in Plummer who all lived in ICFs were housed in those facilities only because of certain aspects of their handicaps. By contrast, plaintiff has been housed at Laurelton, not because of any particular aspect of her handicap, but simply because she is handicapped. There are people at Laurel-ton who are more profoundly retarded than plaintiff and who function at lower intellectual and social levels. There may be individuals there who function at a higher levels as well. Unlike the plaintiffs in Plummer, therefore, Laurelton residents cannot be classified solely on the basis of their handicap relative to other mentally retarded people who are in CLAs. That is, the same general mix of mentally retarded people live in CLAs as live in Laurelton. Thus, to say that plaintiff resides at Laurelton is not the same as saying that she has any particular form of handicap other than mental retardation and plaintiff only contends that she is discriminated against vis-a-vis other mentally retarded persons. See also Vickers v. Veterans Administration, 549 F.Supp. 85, 87, (W.D.Wash.1982) (employee of Veterans Administration could not prove that he was a victim of discrimination at work solely by reason of his handicap where he had received good job reviews in spite of his complaints regarding the adverse health effects of his work); cf. Coates v. Illinois State Bd. of Educ., 559 F.2d 445, 449 (7th Cir.1977) (plaintiffs had not stated a claim under Title VI, 42 U.S.C. § 2000d, where they had only alleged that a school district had provided equal services to racially imbalanced school population). I wish to emphasize that my decision here does not apply to a situation in which a plaintiff files suit under the Act alleging that she or he has been discriminated against vis-a-vis other handicapped persons and where that person can point to some trait related to his or her handicap as defining the class of persons discriminated against. For example, if a plaintiff alleged that he or she was kept in an institution and denied a CLA because of the level of his or her handicap and that person were otherwise qualified for the CLA, my decision in this case would not control. I also wish to emphasize that I have not assumed that the Act reaches only to intentional discrimination. In Alexander v. Choate, — U.S. ---, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the Court held that not all actions under the Act required proof of intentional discrimination. In at least some circumstances, the court held that proof of disparate impact was all that was required. My decision here is not that the actions of the defendants do not violate the Act because they did not choose to keep plaintiff at Laurelton out of a conscious desire to discriminate against her on the basis of her handicap, but rather that the basis of the discrimination (whether intentional or unintentional) was not a factor related to the handicap plaintiff claims forms the basis of the discrimination. Plaintiff relies on a number of cases to support her claim that she has been the victim of prohibited discrimination. In Halderman v. Pennhurst State School & Hospital, 446 F.Supp. 1295, 1323-24 (E.D.Pa.1977), aff’d on other grounds, 612 F.2d 84 (3d Cir.1979) (en banc), rev’d, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); on remand 673 F.2d 647 (3d Cir.1982) (en banc), rev’d, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (The relevant portion of the original district opinion has not been addressed by the appellate decisions), Judge Broderick of this court held that the segregation of the handicapped in an isolated institution such as Pennhurst without minimally adequate habilitation constituted a violation of the Rehabilitation Act. He stated: “[w]e hold ... that under Section 504 unnecessarily separate and minimally inadequate services are discriminatory and unlawful.” Id. at 1323-24. Pennhurst, of course, involved a broad challenge to the very existence of Pennhurst State School based on a variety of different legal theories. In their Rehabilitation Act claims, plaintiffs therein argued that the segregation of mentally retarded persons into an institution like Pennhurst was actionable discrimination under the Act. In determining that defendants had violated the Rehabilitation Act, the Pennhurst court concluded that in enacting the Act, Congress had effectively codified the constitutional right to equal protection. Id. at 1323. Because the court had already determined that the segregation of mentally retarded persons at Pennhurst violated the equal protection clause, it concluded that the Rehabilitation Act had also been violated. Id. Judge Broderick’s conclusion was based on Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 343 F.Supp. 279 (E.D.Pa.1972). He held, in effect, that the equal protection clause prohibited the segregation of the mentally retarded in an isolated institution where habilitation does not measure up to minimally adequate standards. Id. The court did not, however, detail this theory and did not state whether the basis of its decision was a finding that the mentally retarded were a suspect class or whether education was a fundamental right. There is also no discussion of the equal protection analysis used to evaluate these claims. Although other aspects of Pennhurst received large amounts of appellate discussion, this particular aspect of the district court decision was not reviewed because the Third Circuit felt compelled to rest its decision on statutory rather than constitutional grounds and therefore did not reach this holding. See 612 F.2d at 94. Three dissenting judges of the en banc court did, however, reach this holding. They concluded that the state had a rational basis for the classification chosen. See id. at 130 (Seitz, Ch. J., Aldisert and Hunter JJ., dissenting). Similarly, in Association for Retarded Citizens of N.D. v. Olson, 561 F.Supp. 473, 493 (D.N.D.1982), affd on other grounds, 713 F.2d 1384 (8th Cir.1983), the court held that the Act mandates that a state give the mentally retarded equal educational opportunity. Id. In Olson, plaintiffs challenged treatment and conditions at two state hospitals. They sought alternatives to treatment at those facilities. The court held that as between mentally retarded people and those who are not mentally retarded, the equal protection clause of the fourteenth amendment required the state to justify its discrimination against the mentally retarded by at least showing that “disparities in educational opportunity which exist between the mentally retarded and other citizens substantially furthers important state interests.” Id. at 490. The court also concluded that plaintiffs claims of discrimination among classes of mentally retarded people (those in institutions and those who live in community placements) were best evaluated under a rational basis test. Id. The court’s holding under the Act was expressly predicated upon a conclusion that the Act and the equal protection clause were essentially the same in terms of prohibiting certain forms of discrimination against the handicapped. Assuming that the court’s analysis of the plaintiffs’ equal protection claims was correct, I believe that its conclusion that the rational basis test applies to claims of discrimination between classes of mentally retarded people effectively means that it would have had to find virtually all such discrimination permissable. I have read the Olson decision carefully and find no holding therein which suggests that the court invalidated, or meant to enjoin, any discrimination between those in institutions and those in community placements. Finally, plaintiff relies on Garrity v. Gallen, 522 F.Supp. 171, 205-18 (D.N.H.1981) a case similar to Pennhurst in which plaintiff challenged the conditions at a state school for the mentally retarded. The court rejected the conclusion reached by Judge Broderick in Pennhurst and concluded that the Act does not provide a broad mandate for deinstitutionalization per se. Id. at 213. The court did, however, conclude that the defendants had violated the Act in a number of ways. For example, the court held that the defendants’ decision to deny to some residents an individualized service plan was discriminatory. These plans were only developed for some of the residents of the institution and the distinction drawn was based on residence in certain of the buildings at the institution. Some of the buildings at the institution housed disproportionate numbers of severely and profoundly retarded persons. Id. at 184. Thus the decision to deny services to residents of these buildings was, in effect, a decision to deny services to disproportionate numbers of severely and profoundly retarded persons. The court also held that it was a violation of the Act for the administrators of the institution to make decisions regarding the suitability of treatment based on general assessments of classes of institutionalized mentally retarded persons. In other words, it was impermissible to deny treatment to severely or profoundly retarded persons based on a general conclusion that persons functioning at that level could not benefit from the treatment. Rather, the court concluded that the Act required individual assessments of the residents. Id. at 214-218. Each of these three cases is distinguishable from the present one on a number of grounds. Pennhurst and Olson both involved claims that the plaintiffs therein were discriminated against vis-a-vis other nonhandicapped people. Moreover, both rest on 1) the assumption that the Rehabilitation Act was meant to codify the equal protection clause, and 2) the conclusion that plaintiffs’ rights under that clause had been violated. Moreover Olson does not expressly state that the discrimination between classes of handicapped persons at issue there violated the equal protection clause or the Act. Similarly, Garrity involved distinctions between classes of handicapped persons based on the severity of their handicaps. I have already concluded that plaintiff has not been discriminated against solely by reason of her handicap. I believe that this conclusion renders Garrity inapposite. The fact that Pennhurst and Olson involve claims of discrimination between handicapped persons and non-handicapped persons renders those decisions equally inapposite. Furthermore, although I do not reach this question, I question the correctness of the equal protection analysis employed in those cases which forms the basis of the Rehabilitation Act holdings in both. For the foregoing reasons, I must reject plaintiff’s claim under the Rehabilitation Act of 1973. C. Constitutional Claims Plaintiff contends that the defendants’ treatment of her over the years has deprived her of her constitutional rights in a number of ways. She contends that her initial commitment deprived her of liberty without due process; that the failure to hold any hearing over the course of her twenty-nine years at Laurelton constituted a similar deprivation without due process; that her substantive due process rights have been violated, and that she has been denied access to the courts through the failure of the defendants to respond to her repeated requests for a hearing or for legal assistance. This case presents many difficult legal issues and I have considered plaintiffs constitutional claims with great care. I have concluded that plaintiff is entitled to the relief she seeks in order to remedy the present, on-going actions taken by defendants in derogation of plaintiffs rights. Plaintiffs claims can be grouped into three areas: procedural due process, substantive due process, and denial of access to the courts. 1. Procedural Due Process “There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the state cannot accomplish without due process of law.” O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (Burger, C.J., concurring). Plaintiff alleges that her initial commitment as a minor was accomplished without sufficient protections and that she was denied due process as a result. The starting point for an analysis of this claim is Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) a case in which the Supreme Court examined the process required by the constitution in the commitment of a minor. In Parham, the plaintiffs were minors who were committed by their parents or by the state as their legal guardian. They challenged the procedures under which they were committed as well as several substantive aspects of the state’s treatment of voluntarily committed minors. The district court held that the state’s procedures were defective in that they did not require that commitment take place only after notice and hearing. The Supreme Court reversed. The Court found that a child, like an adult, has a substantial liberty interest in not being confined against his or her will for treatment in a mental hospital. Id. at 600, 99 S.Ct. at 2503. (Citing Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979); In Re Gault, 387 U.S. 1, 12-13, 87 S.Ct. 1428, 1435-36, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967)). The Court assumed that this interest stemmed from both the child’s interest in being free from bodily restraint and from the child’s interest in not being stigmatized by the label attached to one who has been committed. The court found, however, that parents retain “a substantial, if not dominant” role in decisionmaking for their children and that it could be assumed that they act in the best interests of their children. Id., 442 U.S. at 604, 99 S.Ct. at 2505. The Court concluded that although parents “retain plenary authority to seek, [commitment] for their children,” id., the risk of error inherent in this parental decision required “that some kind of inquiry should be made by a ‘neutral factfinder’ to determine whether the statutory requirements for [commitment] are satisfied.” Id. at 606, 99 S.Ct. at 2506. The court went on to hold that this factfinder need not be trained in the law and that the “factfinding” need not be a formal or “quasi-formal” hearing. Due process, the Court concluded, is not violated by reliance on formal medical investigative techniques. Id. at 607, 99 S.Ct. at 2507. Thus, commitment of a child by his or her parents or guardians comports with due process if there is some form of inquiry into the underlying facts of the case, conducted by a neutral factfinder who may or may not be a judicial officer. A medically trained specialist in the field of mental health will suffice. Plaintiff alleges that she has been denied liberty without due process. She alleges that her initial commitment was defective because it failed to provide her with any notice or hearing prior to the commitment. It appears from the stipulated facts of this case that plaintiff was ordered to be committed to Laurelton on November 9, 1956 on the basis of a petition filed the day before by the Deputy Commissioner of Public Welfare for the City of Philadelphia. This petition was based on the certification of Dr. Donald Davidson, who examined plaintiff on June 22, 1956 and found her to have a “mental defect-severe.” Plaintiff Exhibit 1. Two days after the commitment order was signed, plaintiff was sent to Laurelton. At the time of her commitment, plaintiff was a resident of the Youth Study Center, a juvenile detention center in Philadelphia. Based on the record developed at the hearing on May 28, 1985 and May 29, 1985, I cannot say that the requirements of Par-ham have not been met. The record as it stands now simply does not contain enough information concerning the circumstances surrounding plaintiff’s initial commitment to Laurelton. For example, although she was a resident of the Youth Study Center at the time of her commitment, there is no solid evidence in the documentary material produced by the parties concerning her legal status at that time. In addition, there is no real evidence concerning the nature of the inquiry made into plaintiff’s condition before she was committed. Because the record at this point is deficient in these crucial areas, I cannot determine whether the minimal due process required under Parham was provided at plaintiff’s initial commitment. After her initial commitment, plaintiff was taken to Laurelton where she has remained to this day. During the twenty-nine years since her commitment, a number of events have occurred which plaintiff claims should have triggered a review of her commitment. These events include: her reaching maturity in 1962; the repeal of the Mental Health Act of 1951 under which plaintiff was committed in 1966, and a court decision which held certain relevant aspects of the Mental Health Retardation Act of 1966 (“1966 Act”) unconstitutional in 1976. I will now examine these claims. Plaintiff reached the age of twenty-one in 1962, six years after she was sent to Laurelton. She argues that the defendants were under an obligation to review her commitment at that time. Although she cites no explicit authority for this argument, I agree with her conclusion. Plaintiff was committed without notice or hearing. This lack of the usual accoutrements of due process may not be a constitutional violation in the context of the commitment of a minor by a parent or guardian; that is the teaching of Parham. There can be no question, however, that an adult cannot be involuntarily committed without substantially more of the guarantees traditionally associated with the concept of due process. Although I will not discuss them at length, the courts have long considered the commitment of an adult such a massive curtailment of liberty as to require a wide range of procedural protections. For example in Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 339 A.2d 764 (1975), the court held that civil commitment under § 406 of the 1966 Act requires at the minimum: notice, a hearing, the exclusion of hearsay evidence at that hearing, and evidence sufficient to prove the state’s case by “clear, unequivocal, and convincing” evidence. See also Dixon v. Attorney Gen’l of Pennsylvania, 325 F.Supp. 966 (M.D.Pa.1971) (declaring § 404 of the 1966 Act unconstitutional on its face; relief ordered included a broad range of procedural protections). The full scope of these decisions is not really relevant to the present case, however, because plaintiff has never been accorded any significant review of her commitment at any time. Defendants argue, however, that they have done all that due process requires in terms of periodic review. They contend that Parham requires only a medical review by a neutral factfinder and that plaintiff has had such reviews in the past and continues to have them. This argument is unpersuasive. Parham dealt only with the commitment of minors by their parents or legal guardians. The Court’s decision rested very heavily on the assumptions that both parents and guardians act in the best interests of the child and that both have traditional authority over the raising of minors in their care. This aspect of Parham makes it inapposite to a situation involving someone who is not a minor. Once someone becomes an adult, one’s parents lose that degree of authority found so crucial in Parham. Moreover, as even the Parham Court found, there is a possibility (born out by this case) that a “ward” of the state who is committed may become “lost in the shuffle.” 442 U.S. at 619, 99 S.Ct. at 2512-13. This possibility lead the court to conclude that there might be a basis for requiring that the review of such persons be subjected to more stringent requirements then review of those committed by their parents. The Commonwealth’s argument in this area is far too broad. It argues, essentially, that if someone is committed by a parent or guardian after the minimal due process required by Parham, there need never be anything more than periodic medical reassessment of the committed person. This argument certainly sweeps too broadly. Plaintiff also argues that the state was obligated to review her commitment in 1966 when the 1951 Act was repealed and replaced by the 1966 Act. With that event, the only legal basis for commitments such as plaintiff’s became § 406 of the 1966 Act, 50 P.S. § 4406. Indeed, the defendants treated plaintiff’s commitment as equivalent to one under § 406. Stipulation U 70. The differences between § 326 of the 1951 Act under which plaintiff was committed and § 406 of the 1966 Act were, however, largely procedural. The standards for commitment were left relatively unchanged. Plaintiff never received a hearing under the 1966 Act. Indeed the parties have stipulated that there is no procedure in force under which persons with indefinite commitments are periodically reviewed, although James Pelter testified that those who are not committed for an indefinite period are reviewed. Plaintiff argues that a review is mandated when there is some change in the legal basis or circumstances underlying the commitments. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Supreme Court invalidated a state statute which allowed for indefinite commitment of a criminal defendant solely because he was incompetent to stand trial. The court found that this indefinite commitment violated due process. The court held that such a person could not be held “more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain” the capacity to stand trial in the future. Id. at 738, 92 S.Ct. at 1858. The Court stated:, “[a]t the least, due process requires that the nature and duration of commitment bear some relation to the purpose for which the individual is committed.” Id. See also McNeil v. Director, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972). Similarly, in O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), the Court held that the state cannot hold, without more, a nondangerous individual who poses no danger to himself or to the community based simply on a determination that the person is mentally ill. In reaching this holding, the court stated: The fact that state law may have authorized confinement of the harmless mentally ill does not itself establish a constitutionally adequate purpose for that confinement____[n]or is it enough that Donaldson’s original commitment was founded upon a constitutionally adequate basis, if in fact it was, because even if his involuntary confinement was initially permissible; it could not constitutionally continue after that basis no longer existed. 75. Id. at 574-75, 95 S.Ct. at 2493 (citations omitted). Plaintiff has cited no compelling caselaw in support of her argument that is more directly on point. The Commonwealth defendants in their brief opposing plaintiff’s motion for preliminary relief, however, admit that plaintiff is entitled to periodic review of her commitment. Commonwealth’s brief in opposition to plaintiff’s motion for preliminary relief at 12. They dispute only the nature of the review. Once again, they argue that only the limited due process required under Parham is required. Although the Supreme Court has repeatedly emphasized that due process is a flexible concept which varies according to the particular nature of the interest at stake and the facts of the particular case, this truism is not a sufficient basis for a conclusion that the minimal requirements of Parham should apply to this situation. I do not believe that Parham should be extended beyond the setting in which it arose: the voluntary commitment of minors at the request of a parent or guardian. I have already concluded Parham should not be applied to a commitment of an adult. I see no reason to change that view simply because the event triggering the review is the repeal of the legal authority under which a person is committed. Moreover, although plaintiff has re-' ceived some form of medical or psychological review periodically, the results of these reviews have been a nullity. Since at least 1976, these reviews have consistently recommended that plaintiff be removed from Laurelton and placed in a CLA. Defendants point to this as sufficient under their interpretation of the due process clause. In reality these “professional reviews” have been a meaningless exercise. Although transfer has been consistently recommended, it has never taken place. It has never taken place because the various entities responsible for plaintiff, who act in defendants’ view as her parents, have never been able to agree on how to fund plaintiff’s CLA. I cannot see how due process is served when all that takes place are periodic professional reviews whose recommendations are then ignored. Plaintiff also alleges that she was entitled to review in 1976 when a three judge panel in the Middle District of Pennsylvania struck down § 406 of the 1966 Act. That section, of course, formed the only legal basis for the detention of plaintiff. In Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976), the court held that the standard for commitment found in § 406 was unconstitutionally vague and stayed the further application of § 406. It later modified this stay to permit the commitment of persons under § 406, but required that those to be committed be evaluated under a rigorous standard that cured the deficiencies in the original section. This standard, which was later incorporated into DPW regulations stated: “the Secretary of DPW and his agents and assigns, those under his direction, and all institution directors shall not receive ... [persons pursuant to section 406 of the MH/MR Act of 1966] except upon judicial determination that the following standard is met: “(1) the person is impaired in adaptive behavior to a significant degree and is functioning at an intellectual level two standard deviation measurements below the norm as determined by acceptable psychological testing techniques. “(2) the impairment and the resultant disability were manifested before the person’ 18th birthday and are likely to continue for indefinite period; and “(3) the person, because of his retardation presents a substantial risk of physical injury to himself or physical debilitation as demonstrated by behavior within 30 days of the petition which shows that he is unable to provide for, and is not providing for his most basic need for nourishment, personal and medical care, shelter, self-protection and safety and that provision for such needs is not available and cannot be developed or provided in his own home or in his own community without residential placement.” Plaintiff argues that Goldy destroyed the only legal basis for her commitment and that the defendants were obliged to review her commitment pursuant to the new standard. Defendants contend, however, that Goldy did not establish any obligation on their part to undertake a review of her commitment. Goldy struck down the only legal authority under which plaintiff could have been deemed to have been committed. Although the Goldy court recognized that its decision did not require release of those previously committed under § 406, it must mean at a minimum that, those who have been committed under that section were entitled to have their commitment reviewed under the new, constitutional standard. Defendants cling to a passage in Goldy which in their view means that Goldy imposed no affirmative obligation upon them: “[plaintiffs] merely seek a declaration that the statute under which they were committed is unconstitutional and an injunction enjoining defendants from enforcing and executing the statute in its present version; if this court rules in their favor, they will then seek release in state court.” Id. at 645. This language cannot be read as broadly as suggested by defendant. First, it was taken from the court’s discussion of defendants’ argument there that plaintiff’s appropriate action in Goldy should have been a petition for a writ of habeas corpus action rather than a suit for declaratory and injunctive relief. Second, although plaintiff might have been a member of the plaintiff class in Goldy, she was committed at that time to the care of defendants. A mildly retarded person who lives in a state institution can hardly be expected to know about the decision in Goldy. Finally, plaintiff did, in fact, request a review of her commitment and has continued to do so since at least 1981. No hearing was ever arranged and her requests for legal assistance went unanswered. Indeed, the parties have stipulated that plaintiff requested judicial review of her commitment even before Goldy. Stipulation fl 74. It is somewhat disingenous and ironic for defendants to argue, in essence, that plaintiff should have arranged her own hearing and at the same time to place such great reliance on Parham, a case which rests on the assumption that the state as guardian acts in the best interests of its wards. For the foregoing reasons, I conclude that plaintiff’s rights to procedural due process have been violated by defendants’ failure to provide her with any notice or hearing whatsoever during the course of her confinement in spite of the many changes both in the law and in facts of plaintiff’s case which mandated that such hearings be held. 2. Substantive Due Process Although the courts have been slow to recognize them, institutionalized persons have a number of substantive rights which are protected under the due process clause of the United States Constitution. Plaintiff argues that her substantive due process rights have been violated in a number of ways. First she alleges that Goldy creates the substantive right not to be institutionalized unless the standards set out by the Goldy court have been met. Second, plaintiff argues that state caselaw construing the Pennsylvania statutes and regulations in this area also creates a substantive right to deinstitutionalization. Finally, although plaintiff has not argued this matter, I believe that this case implicates substantive due process rights identified in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Plaintiff argues in conjunction with her procedural due process arguments that Goldy mandated not only that she be given a hearing in 1976, but that she be transferred to a CLA. Plain