Full opinion text
MEMORANDUM OPINION AND ORDER SANDERS, Acting Chief Judge. On June 29 through July 7, 1987 the Court held an evidentiary hearing on Plaintiffs’ Motion for Contempt Regarding Abuse at Fort Worth State School, filed March 26,1987; Plaintiffs’ Motion for Contempt Regarding the State School Review —First Report, filed March 30, 1987; and Plaintiffs’ Motion for Contempt for Violation of Paragraph 28 of the Resolution and Settlement, filed March 30, 1987. Plaintiffs contend that conditions at the Fort Worth State School (the “FWSS”) violate their federal constitutional rights and provisions of the May 12, 1983 Resolution and Settlement (the “R & S”) approved by order of the Court July 21, 1983 (the “July 21, 1983 Order and Memorandum Opinion”). After review of pleadings and evidence, the Court makes the following factual findings and legal conclusions. Summary of the Court’s Ruling The Court today holds that Defendants have violated the federal constitutional rights of Plaintiff class members at FWSS by failing to provide constitutionally adequate medical care, constitutionally adequate safety, constitutionally adequate freedom from undue restraint, and constitutionally adequate habilitation. The Court holds that Defendants have not complied with their obligations under Paragraphs 7, 8,11,13, 22, and 28 of the R & S by failing to provide — and by failing to make necessary efforts to provide — required habilitation, required freedom from abuse and neglect, required individual treatment, and required safe conditions at FWSS. Further, Defendants have breached their obligation to provide these services with required respect for clients’ dignity and personal autonomy. The Court holds that Defendants’ failure to fulfill their obligations under the R & S constitutes contempt of court. Plaintiffs are individuals who, through no fault of their own, need treatment in facilities of the State of Texas. Their rights, which should be secured by the ethics and decency of civilized society, are secured by the U.S. Constitution, by federal and state laws, and by the 1983 R & S in this case. By Defendants’ own admission, Texas ranks “fifty-first out of fifty” states in financial commitment to its mentally retarded citizens. (Testimony of Miller). Upon review of the pleadings, of seven days of testimony by nearly thirty witnesses, and of thousands of pages of exhibits, the Court concludes that lack of funding is at the core of FWSS’ inadequacies. A generally caring and concerned staff cannot make up for that deficiency. Index I. Background II. The Law A. The Constitution of the United States B. The Resolution and Settlement (“R & S”) 1. Explicit Provisions of the R & S a. Habitation b. Dignity and Personal Autonomy c. Abuse and Neglect d. Safety and Cleanliness e. Securing Implementation 2. Applicable Federal Statutes a. Social Security Act b. The Education of All Handicapped Children Act c. The Rehabilitation Act Contempt O Defenses Q 1. Enforcement of the R & S by Contempt 2. Vagueness 3. ICF/MR 4. Impossibility III. The Facts A. Introduction B. Medical Care C. Habitation 1. Physical Therapy 2. Feeding 3. Toileting 4. Behavior Modification a. Inadequate Data Collection b. Lack of Treatment Planning c. Program Goals Lack Relevance d. Lack of Resources 5. Individual Service Plans 6. Overuse of Aversive Techniques a. Facial Screening b. Mechanical Restraints c. Isolation Rooms d. Chemical Restraints D. Education E. Lack of Safety 1. Incidence of Abuse and Neglect 2. Procedures Regarding Abuse and Neglect 3. Client Injury F. Staffing 1. Numbers a. Non-Professional Staff b. Professional Staff 2. Screening and Training a. Non-Professional Staff b. Professional Staff 3. Oversight G. Insuring Adequate Conditions IV. Conclusions of Law A. Constitutional Violations 1. Medical Care 2. Safety 3. Undue Restraints 4. Habitation B. Violations of the Resolution and Settlement 1. Habitation 2. Dignity and Personal Autonomy 3. Safety, Abuse, and Neglect 4. Safe Buildings 5. Securing Compliance V. Conclusion I.Background This case was filed in 1974 in the United States District Court for the Eastern District of Texas. In 1981 the case was certified as a Fed.R.Civ.P. 23(b)(2) class action. In 1983, on the eve of trial, the parties settled tiie case and entered into the R & S, which was approved by the Court. See Fed.R.Civ.P. 23(e). Later that same year, the Court granted leave to intervene to the Parents Association for the Retarded of Texas (“PART”), Advocacy, Inc., and the Association for Retarded Citizens/Texas (“ARC”). Pursuant to the settlement, an Expert Consultant, Dr. Linda R. O’Neall, was appointed. See R & S at 1136. In 1986 the case was transferred to this Court. II. The Law A. The Constitution of the United States All residents of state-operated institutions for the mentally retarded possess constitutionally protected liberty interests guaranteed by the due process clause of the fourteenth amendment. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980); Mills v. Rogers, 457 U.S. 291, 298-302, 102 S.Ct. 2442, 2447-2450, 73 L.Ed.2d 16 (1982). Those protected liberty interests include: 1. A right to adequate food, shelter, clothing, and medical care; 2. A right to reasonably safe conditions of confinement; 3. A right to be free from undue bodily restraint; 4. A right to the training and development of those skills needed to ensure safety and to facilitate clients’ ability to function free from bodily restraint. The Court will discuss these interests briefly seriatim. First, the Constitution requires that the state provide “the essentials of care”: adequate food, shelter, clothing, and medical care. Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. Medical care includes not only life-preserving or emergency care, but also regular and preventive treatment for ordinary or chronic ailments. Society for Goodwill to Retarded Children v. Cuomo, 572 F.Supp. 1300, 1344 (E.D.N.Y.1983), rev’d on other grounds, 737 F.2d 1239, 1245 (2d Cir.1984). Second, the Constitution requires reasonably safe conditions of confinement. Ensuring reasonable safety to all residents and personnel in a state school for the retarded is the state's “unquestioned duty.” Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. “The right to personal security constitutes a ‘historical liberty interest’ protected substantively by the due process clause.” Id. at 315, 102 S.Ct. at 2458 (citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977)); see Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Third, the right to freedom from undue restraint means that the state “may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training.” Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. Fourth, the degree of training required to be provided a mentally retarded client is “such training as an appropriate professional would consider appropriate to ensure his safety and to facilitate his ability to function free from bodily restraints.” Id. Although the Youngberg court specifically reserved the issue of whether a general constitutional right to “habilitation” exists, the Court noted that “[i]t may well be unreasonable not to provide training when training could significantly reduce the need for restraints or the likelihood of violence.” Id. Justice Blackmun’s concurrence in Youngberg, joined by Justices O’Connor and Brennan, elaborates on the minimum training mandated by the Constitution. The Youngberg concurrence explicitly enunciates a protected liberty interest which the Fifth Circuit has stated: retarded institutionalized clients possess a right to “such training as is reasonably necessary to prevent a person’s pre-existing self-care skills from deteriorating because of his commitment.” Youngberg, 457 U.S. at 327, 102 S.Ct. at 2464. (Blackmun, J. concurring); Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir.1987) (Jones, J.) (“Youngberg may eventually have to be squared with the duty of a state to prevent deterioration of skills of the retarded committed to its institutions.”) (hereinafter “Lelsz January 1987 Opinion”), reh’g denied en banc, 815 F.2d 1034 (5th Cir.1987), petition for cert, filed (hereinafter “Lelsz May 1987 Opinion”; collectively “Lelsz January and May 1987 Opinions”). Thus, even after a person is committed to a state institution, he is entitled to such training as is necessary to prevent unreasonable losses of additional liberty as a result of his confinement — for example, unreasonable bodily restraints or unsafe institutional conditions. If a person could demonstrate that he entered a state institution with minimal self-help skills, but lost those skills after commitment because of the State’s unreasonable refusal to provide him training, then it seems to me, he has alleged a loss of liberty quite distinct from — and as serious as — the loss of safety and freedom from unreasonable restraints. For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they will ever know. Youngberg, 457 U.S. at 327, 102 S.Ct. at 2464 (Blackmun, J., concurring). Further, Youngberg limits judicial inquiry to assessing whether professional judgment in fact has been exercised in meeting these constitutional obligations. While decisions made by the state’s professionals — that is, those competent by “education, training, or experience” — presumptively are professionally acceptable, that presumption may be overcome by showing that the professional’s decision “is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg, 457 U.S. at 323 n. 30, 102 S.Ct. at 2462 n. 30. Finally, professional judgment must be based upon what is appropriate, not upon what resources are available. Deference to professional judgment requires that “the decision be one based on medical or psychological criteria and not on exigency, administrative convenience, or other non-medical criteria.” Clark v. Cohen, 613 F.Supp. 684, 704 & n. 13 (E.D.Pa. 1986), aff'd, 794 F.2d 79 (3d Cir.), cert. denied, — U.S. —, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986); Lelsz v. Kavanagh, 629 F.Supp. 1487, 1496 (N.D.Tex.1986), rev’d on other grounds, Lelsz January and May 1987 Opinions, supra. When professionally acceptable judgments are not effectuated because of administrative ineptitude or insufficient funds, the inadequacy of care is not removed from judicial purview simply because the initial judgments made by professionals were proper. Clark, 613 F.Supp. at 704 & n. 13. B. The Resolution and Settlement (“R & S”) 1. Explicit Provisions of the R & S Plaintiffs have alleged violations of Paragraphs 7, 8,11,13, 22, and 28 of the R & S. As with any document, the substance of these provisions is to be understood by examining the document as a whole. In the case of the R & S, reference must be made to Paragraph 3, part of the R & S’s preamble, which provides that substantive provisions of the R & S are intended permanently to secure Plaintiffs’ rights under the Constitution, federal statutes, and state law. The Court now turns to the rights and responsibilities at issue. a. Habilitation Paragraph 7 requires Defendants to “provide to each member of the plaintiff class habilitation tailored to the person’s individual needs,” taking into account “the individual’s particular circumstances, including age, degree of retardation and handicapping condition.” The R & S then defines habilitation in terms that extend beyond the Youngberg minima. Defendants must provide “that education, training and care required by each plaintiff class member to improve and develop the person’s level of social and intellectual functioning, designed to maximize skills and development and to enhance ability to cope in the environment.” Habilitation will be provided "until such time as [Plaintiff class members] no longer require services under this Resolution and Settlement.” Paragraph 8 provides that “[c]onsistent with a person’s capacities, each member of the plaintiff class will be taught adequate skills to help the person progress within the environment and to live as independently as possible.” Paragraph 13 provides that, consistent with the objective stated above, Defendants formulate at least annually an individual service plan (“ISP”) to meet the "actual needs” of each class member. Each ISP will be “formulated in accordance with professional standards ... [and] will be directed toward maximum personal and social growth and development, including a residential environment which is as much as possible like that of persons who are not retarded.” ISP's shall be based on a client’s “actual needs” without regard to the availability of “facilities, programs, or services.” If the needed “facilities, programs, or services” are not presently available, an “interim" program will be established, with information on needed services to be used by Defendants in future planning. Each ISP “will be developed by an interdisciplinary team which is appropriately constituted in accordance with professionally acceptable standards and which includes the person or persons primarily responsible for the daily care and support of each class member.” Parents or guardians and clients, to the extent capable, shall be given the opportunity to participate in development of the client’s ISP. b. Dignity and Personal Autonomy Paragraph 8 requires that “[services will be offered with utmost regard for the class member’s dignity and personal autonomy.” c. Abuse and Neglect Paragraph 11 obligates Defendants to “take appropriate precautions to prevent the physical or psychological abuse or neglect of each class member.” Abuse is classified as follows: Class I abuse is “any act, or failure to act done knowingly, recklessly or intentionally, including incitement to act, which caused or may have caused serious physical injury to a client.” Class II abuse is “any act or failure to act [done] knowingly, recklessly or intentionally, including incitement to act, which caused or may have caused non-serious physical injury to a client.” Class III abuse is “any verbal or other common action, to curse, vilify or degrade a client, or threaten a client with physical or emotional harm, or any act which vilifies, degrades, or threatens a client with physical or emotional harm.” Client neglect is “the negligence of any employee which causes any physical or emotional injury to any client.” d. Safety and Cleanliness Paragraph 22 obligates Defendants to “take appropriate precautions to keep every building which houses plaintiff class members safe, clean, free of bad odors, comfortably temperature controlled and insect-free.” e. Securing Implementation Paragraph 28 obligates Defendants to “take all action necessary to secure full implementation of this Resolution and Settlement, including coordinating with other agencies and officials of the State of Texas and delegating among themselves and their subordinates appropriate and specific responsibilities.” 2. Applicable Federal Statutes The R & S exceeds constitutional requirements, such as those detailed above in section 11(A), to the extent that specific requirements, such as those detailed above in Section 11(B)(1), are stated or that federal statutes exceed the Youngberg requirements. Federal statutes applicable under the R & S include the Education for All Handicapped Children Act of 1975, 20 U.S. C. §§ 1401 et seq. (the "EAHCA”), the Rehabilitation Act of 1973,29 U.S.C. §§ 701 et seq., and the Social Security Act, 42 U.S.C. §§ 1396 et seq., all of which were passed before 1983. The Court now turns to those statutes. a. Social Security Act Title XIX of the Social Security Act, commonly known as the Medicaid Act, establishes a cooperative relationship between the federal government and the states, designed to share the cost of caring for needy individuals. Thomas v. Johnston, 557 F.Supp. 879, 882-87 (W.D.Tex.1983). The Health Care Financing Administration (the “HCFA”), an agency of the Department of Health and Human Services, promulgates standards by which Intermediate Care Facilities for the Mentally Retarded (“ICF/MR”) must be certified before receiving Medicaid funding. FWSS is one such ICF/MR facility. The ICF/MR standards are then used by a state agency — -in this instance, the Texas Department of Human Services — to certify to HCFA that Texas’ ICF/MR’s meet applicable federal funding standards. See Department of Health Education and Welfare, Health Care Financing Administration, Final Interpretive Guidelines for the Application of the Regulations for Institutions for Mentally Retarded or Persons with Related Conditions, 45 C.F.R. § 249.13 (1977). Defendants’ Exhibit (hereinafter “DX”) 91, 94. A state that accepts Medicaid funding must comply with the requirements of the Medicaid Act. Alexander v. Choate, 469 U.S. 287, 289 & n. 1,105 S.Ct. 712, 715 & n. 1, 83 L.Ed.2d 661 (1985); Estate of Smith v. Heckler, 747 F.2d 583, 585-87 (10th Cir.1984). “Texas, like most states, has taken a bite out of the carrot of cooperative federalism and is, accordingly, subject to the federal stick — the minimum mandatory requirements set forth in the Medicaid legislation.” Mitchell v. Johnston, 701 F.2d 337, 340 (5th Cir.1983). Medicaid recipients have standing to enforce those regulations against the state. Thomas v. Johnston, 557 F.Supp. at 902-04; Stanton v. Bond, 504 F.2d 1246 (7th Cir.1974), cert, denied, 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1975). ICF/MR regulations are wide-ranging. See, e.g., Homeward Bound v. Hissom Medical Center, No. 85-C-437-E, slip op. at 43-47 (N.D.Okla. July 24, 1987) [Available on WESTLAW, DCT database]. ICF/MR regulations require institutions receiving Medicaid assistance, inter alia, to provide all clients “active treatment” including assuring each “individual’s regular participation, in accordance with an individual plan of care, in professionally developed and supervised activities, experiences, or therapies.” 42 C.F.R. §§ 435.1009, 442.-463(d). Such services shall be designed and implemented “to help the individual function at the greatest physical, intellectual, social or vocational level he can presently or potentially achieve.” 42 C.F.R. § 435.1009(1)(B). Each client shall be trained “in the activities of daily living and in the development of self-help and social skills.” 42 C.F.R. § 442.433(a). All clients shall be provided “professional and special programs and services ... based upon their needs.” 42 C.F.R. § 442.454. All residents shall be provided needed medical services “through direct contact between physicians and residents.” 42 C.F.R. § 442.474(1); see 42 C.F.R. §§ 442.474-442.477. All residents shall be provided, “through direct contact between therapists and residents,” needed physical and occupational therapy services to “preserve and improve abilities for independent functioning” and to “prevent, insofar as possible, irreducible or progressive disabilities.” 42 C.F.R. § 442.486(a), (b). Each institution shall be equipped with all equipment necessary for “efficient and effective” physical and occupational therapy services. 42 C.F.R. § 442.488(e). All residents shall be provided appropriate psychological services “through personal contact between psychologists and residents.” 42 C.F.R. § 442.489(1). Each resident shall be provided “systematic training to develop appropriate eating skills, using special eating equipment and utensils if it serves the developmental process.” 42 C.F.R. § 442.472. Each resident in need of toilet training “must be in a regular, systematic toilet training program.” 42 C.F.R. § 442.443. Each client shall receive an individualized assessment by an interdisciplinary team. 42 C.F.R. §§ 442.487, 442.489. Each client shall have an activity program — carried out daily — in which no more than three continuous hours per day remain unscheduled. 42 C.F.R. § 442.435. Physical and chemical restraints must not be used, inter alia, as punishment, for the convenience of staff, or as a substitute for activities or treatment. 42 C.F.R. §§ 442.404, 442.438, 442.-440. “Each resident must be free from mental or physical abuse.” 42 C.F.R. § 442.404. Each facility must employ appropriate numbers of qualified staff to provide clients services mandated by the Medicaid Act. See, e.g., 42 C.F.R. §§ 442.462, 442.-464, 442.473, 442.480, 442.488, 442.489, 442.493, 442.498, 442.504. No resident may be deprived services required under the Medicaid Act for reasons of age, physical disability, or degree of retardation. 42 C.F.R. § 442.463(a). b. The Education for All Handicapped Children Act By passing the Education for All Handicapped Children Act, “ ‘Congress sought primarily to make public education available to handicapped children’ and ‘to make such access meaningful,' ” Irving Independent School Diet. v. Tatro, 468 U.S. 883, 891, 104 S.Ct. 3371, 3376, 82 L.Ed.2d 664 (1984) (citing Board of Ed. of the Hendrick Hudson Central School District v. Row-ley, 458 U.S. 176,192,102 S.Ct. 3034, 3043, 73 L.Ed.2d 690 (1982) (hereinafter “Hen-drick Hudson School District")). Education is “one of the most cherished and ardently protected of all rights. Indeed, ‘education is perhaps the most important function of state and local governments.’ ” Jackson v. Franklin County School BcL, 806 F.2d 623, 627 (5th Cir.1986) (quoting Brown v. Board of Ed., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954)). EAHCA requires that states provide to all handicapped children between the ages of three and twenty one, “a free appropriate public education.” 20 U.S.C. §§ 1412(1), 1401(18). Such education shall be provided “regardless of the severity of their handicap.” 20 U.S.C. § 1412(2)(C). Handicapped students shall be educated “to the maximum extent appropriate ... with children who are not handicapped.” 20 U.S.C. § 1412(5). An annual “Individualized Education Plan” (an “IEP”) must be developed for each child to define her or his “annual goals”, the “specific educational services” to be provided, and “objective criteria and evaluation procedures and schedules” for evaluating the child’s instruction. 20 U.S.C. §§ 1401(19), 1414(a)(5). A child's program is sufficient under EAHCA if “personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and other items on the definitional checklist are satisfied.... It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from the education.” Hendrick Hudson School District, 458 U.S. at 189, 200-01, 102 S.Ct. at 3042, 3047-48, 73 L.Ed.2d 690. As the Fifth Circuit has explained: Although the Act does not require handicapped children to be given the means “to achieve strict equality of opportunity or services” neither does it permit the state to furnish “handicapped children with only such services as are available to nonhandicapped children.” Implicit in the term “appropriate education” is “the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.” _ The basic substantive standard under the Act, then, is that each IEP must be formulated to provide some educational benefit to that child. Crawford v. Pittman, 708 F.2d 1028,1034-35 (5th Cir.1983) (emphasis in original) (footnotes omitted), reh. denied en banc. c. The Rehabilitation Act Under Section 504 of the Rehabilitation Act no individual with handicaps, including the mentally retarded, 29 U.S.C. § 706(8), 45 C.F.R. §§ 84.1-84.54, shall solely by reason of handicap, be "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity” receiving federal funds. See Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295, 1323 (E.D.Pa.1977), rev’d on other grounds, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Section 504 prohibits unnecessarily segregated services for institutionalized persons. Homeward Bound, No. 85-C-487-E, slip op. at 50 [Available on WESTLAW, DCT 1987 WL 27104]; Association of Retarded Citizens of North Dakota v. Olson, 561 F.Supp. 473, 493 (D.N.D. 1982), aff'd, 713 F.2d 1384 (8th Cir.1983). A state may not withhold academic, recreational, or other programming on the blanket assumption that mentally retarded individuals cannot benefit from such programming. Garrity v. Gallen, 522 F.Supp. 171, 214 (D.N.H.1981). C. Contempt A party is in civil contempt if she or he is shown by “clear and convincing evidence” (e.g., more than a preponderance of the evidence but not commensurate with beyond a reasonable doubt), Neely v. City of Grenada, 799 F.2d 203, 207 (5th Cir. 1986); United States v. Rizzo, 539 F.2d 458, 465 (5th Cir.1976), to have failed "in meaningful respects to achieve substantial and diligent compliance,” Aspira of New York, Inc. v. Board of Ed. of City of New York, 423 F.Supp. 647, 649 (S.D.N.Y.1976) (Frankel, J.) with a clear and unambiguous court decree, International Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967); North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 521 (5th Cir.1983); see Fed.R. Civ.P. 65(d). Contempt is committed when a person ‘violates an order of a court requiring in specific and definite language that a person do or refrain from doing an act.’ The judicial contempt power is a potent weapon which should not be used if the court’s order upon which the contempt is founded is vague or ambiguous. Thus, the court’s order ‘must set forth in specific detail an unequivocal command.’ Matter of Baum, 606 F.2d 592, 593 (5th Cir.1979) (citations omitted). Contempt represents more than a delay in performance or lack of perfection. It is, instead, the failure promptly and meaningfully to accomplish what was ordered. See Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 591, 42 L.Ed.2d 574 (1975). Good faith in attempting compliance is not sufficient to avoid contempt; there is no intent requirement. Jim Walter Resources v. Intern. Union, United Mine Workers of America, 609 F.2d 165, 168 (5th Cir.1980); McComb v. Jacksonville Paper Co., 336 U.S. 187,191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Newman v. Graddick, 740 F.2d 1513, 1528 (11th Cir. 1984). D. Defenses 1. Enforcement of the R & S by Contempt Defendants first argue that the R & S is not a consent decree and therefore is not enforceable through contempt proceedings. This argument is without merit. The Fifth Circuit’s dictate is clear. In its May 4, 1987 opinion on community placements, the Fifth Circuit wrote: In vacating the order of June 5,1985 and in nullifying portions of the 1983 consent order, we do not preclude the district court from enforcing the remaining portions of the consent decree if and when violations of these provisions are raised in the district court. Lelsz May 1987 Opinion, 815 F.2d at 1035 (per curiam); see Ibarra v. Texas Employment Com’n, 823 F.2d 873, 875 (5th Cir. 1987). The Court’s ability to enforce the R & S through contempt power is axiomatic. “A settlement agreement is a contract, but when incorporated into a judgment becomes a court decree.” White Farm Equipment Co. v. Kupcho, 792 F.2d 526, 529 (5th Cir.1986); see Ibarra v. Texas Employment Com’n, 645 F.Supp. 1060, 1067 (E.D.Tex.1986), rev’d on other grounds, 823 F.2d 873, 876 (5th Cir.1987). The R & S is expressly incorporated into the May 19, 1983 Order preliminarily approving settlement. See May 19, 1983 Order at 3. The May 19, 1983 Order and the R & S are implicitly incorporated into the forty-eight page July 21,1983 Order and Memorandum Opinion, which, after detailing Defendants’ obligations under the R & S, gives final approval to settlement. The July 21, 1983 Order is a judgment. See Fed.R.Civ.P. 54(a) (judgment includes “any order from which appeal lies”); see, e.g., Reed v. General Motors Corp., 703 F.2d 170 (5th Cir. 1983), aff’g, 560 F.Supp. 60 (N.D.Tex.1981). Therefore, as the R & S is incorporated into a judgment — viz. the July 21, 1983 Order and Memorandum Opinion — the R & S is a court decree. A court decree, of course, is enforceable through contempt proceedings. See, e.g., International Longshoremen’s Ass’n Local 1291, supra. 2. Vagueness Defendants’ counsel argues that the R & S is vague and therefore unenforceable through contempt proceedings. The Court does not agree. First, the Commissioner of the Texas Department of Mental Health and Mental Retardation (the “TDMHMR”), Dr. Gary Miller, TDMHMR’s Deputy Commissioner for Mental Retardation, Jaylon Fincannon, and the Superintendent of FWSS, Mel Hughes, all testified that they have no trouble understanding the R & S. Second, Defendants’ conclusion that broadly phrased obligations are per se unenforceably vague would have a pernicious effect on the construction of judgments. As the Supreme Court wrote in Jacksonville Paper, “[i]t does not lie in [Defendants’] mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law_” 336 U.S. at 187, 69 S.Ct. at 498 (citing Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 408, 92 L.Ed. 476 (1948)). Third, Defendants should not now be heard to complain about the specificity of a 1983 agreement that they participated in drafting and submitted to the Court for approval. Indeed, the vagueness argument was made to the Court by Inter-venor PART at the time the R & S was submitted to the Court and was then rejected to afford the state adequate flexibility. July 21, 1983 Order and Memorandum Opinion at 38. Fourth, the Court believes the terms of the R & S are sufficiently specific, given the nature of the rights conferred and the need for flexible administration of institutions. Finally, the proper remedy for vagueness is a motion for modification, clarification, or construction, and vagueness may not be argued successfully as a defense to contempt without prior efforts to obtain clarification. See Jacksonville Paper, 336 U.S. at 192, 69 S.Ct. at 500. 3. ICF/MR Defendants next argue that if the R & S is enforceable, then its terms are defined solely by Federal Medicaid guidelines for funding of ICF/MR’s. So long as the FWSS maintains its Medicaid certification, Defendants argue, they are in compliance with the R & S. Defendants’ argument, as far as the Court discerns, is that Defendants’ designation of ICF/MR standards pursuant to the R & S Paragraph 24, DX 94, relieves Defendants of compliance with the other standards set forth in the R & S, including federal constitutional and statutory standards under Paragraph 3, even though ICF/MR standards by their very nature fall far short of the specific terms of the R & S. No state can unilaterally repeal provisions of the Constitution or federal statutes, even by complying with other federal laws or judicially enforced decrees. See U.S. CONST, art. 6, cl. 2. (supremacy clause). The implausibility of Defendants’ claim is illustrated by an examination of how and for what purpose ICF/MR’s are surveyed. The ICF/MR program provides a mechanism for the federal government to assist states financially in providing care for their retarded citizens. The standards were last revised in 1977. They are “facility oriented,” not “patient oriented.” Estate of Smith, 747 F.2d at 587. Surveyors examine whether policies and programs exist, not whether those policies or programs result in adequate care. (Testimony of Glenn, Moore, Censoni, Gant, Fincannon, Hughes, and Wallis). ICF/MR standards tell the Court little about the actual care clients receive. The ICF/MR survey team need not include professionals or persons with any background in mental retardation. For example the most recent monitoring survey of the FWSS was made by a team of four persons that included no medical doctor, no psychologist, no physical therapist, and no occupational therapist. None of the four surveyors had a background in mental retardation. (Testimony of Glenn, Ray, Keith, Censoni, Wallis, Gant, Lyall, Standifer, Fin-cannon). Moreover, the staffing requirements of ICF/MR concern the overall average of staff per shift and do not indicate whether minimum staffing levels are always maintained. (Testimony of Ray, Keith, Wallis, Gant, Lyall, Latham, Hughes, Miller). The R & S, federal law, and of course, the Constitution, require more. In short, Defendants’ claim that FWSS complies with the R & S because it has never been terminated from the Medicaid reimbursement program for ICF/MR’s is without merit. 4. Impossibility Finally, the Court notes that Defendants have not argued that any failure to comply with the R & S or with federal constitutional or statutory requirements should be excused because of impossibility or because they have attempted in good faith to attain compliance but were incapable of or hindered from attainment. Rather, Defendants have consistently argued that they are presently complying with all obligations. The burden of production for an impossibility defense is on the defendant; therefore, this defense is not at issue. See United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983); McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960); Oriel v. Russell, 278 U.S. 358, 364-66, 49 S.Ct. 173, 174-75, 73 L.Ed. 419 (1929). III. The Facts A. Introduction Mental retardation is defined as the manifestation, beginning during an individual’s developmental period, both of significantly below average intellectual functioning and of significant deficiencies in adaptive behavior. Generally, the degree of an individual’s mental retardation is described as falling into one of four levels: 1. Mild 2. Moderate 3. Severe 4. Profound These levels roughly correspond to the following ranges of I.Q.: 1. Mild 50-70 2. Moderate 35-49 3. Severe 20-34 4. Profound below 20 DX 60; (Testimony of Grossman, Cataldo, Wachtel). Over the years many myths concerning the retarded have been dispelled. No longer are mentally retarded persons shackled by notions that they cannot learn and grow, that they are eternal children, that they have no ability to care for themselves, or that they cannot live dignified and productive lives. DX 60; (Testimony of Catal-do, Wachtel, Grossman, Glenn). 470,000 Texans are mentally retarded. (Testimony of Fincannon). Fort Worth State School, FWSS is a residential care facility of TDMHMR. Of FWSS’ current 364 residents, seven percent are mildly retarded; twelve percent are moderately retarded, twenty-eight percent are severely retarded, and fifty-three are profoundly retarded. DX 82; (Testimony of Hughes). FWSS is the newest and smallest of the thirteen state schools for the mentally retarded operated by TDMHMR. Its annual budget for residential services exceeds $11 million. PART Exhibit (hereinafter “PART X”) 1. Funding, On a per resident basis, the State of Texas ranks “fifty-first out of fifty” states in per diem funding for facilities for the mentally retarded. (Testimony of Miller). In inflation-adjusted dollars Texas’ funding for retardation services has remained virtually constant since 1982. (Testimony of Miller, Fincannon). In the last biennium (fiscal years 1986-1987) TDMHMR made a “Special Request” to the Texas Legislature for $57 million for the thirteen state schools, monies that TDMHMR then claimed were “required for the Department to fully comply with the lawsuitf ].” PART X 4. None of those $57 million dollars was appropriated. Id.; (Testimony of Fincannon). FWSS’ Superintendent admits not having enough money to repair air conditioning or to replace bumed-out street lights; parents donate educational supplies because their children have none. (Testimony of Hughes, Ward). A system in which clients’ good behavior was rewarded with tokens to purchase desirable personal items, i.e., a token economy, shut after one week because no money was available to stock the store (monthly cost: $250.00 to $300.00). DX 43. Fort Worth State School is, as the former President of the School’s Parents Association told the Court, “a carpenter who has not been given any tools.” (Testimony of Ward). The Court now turns to Defendants’ handiwork. B. Medical Care The Court heard testimony on the issue of medical care from numerous lay witnesses and from two expert witness: Renee C. Wachtel, M.D., Associate Professor at The Johns Hopkins School of Medicine and the University of Maryland School of Medicine, called by the Expert Consultant, see Plaintiffs’ Exhibit (hereinafter “PX”) lb, Appendix, and Herbert Grossman, M.D., Professor at the University of Michigan Medical School, see PX 85, called by Defendants. Dr. Wachtel found that the level of medical care is professionally unacceptable and that medical care is being provided in a manner that constitutes a substantial departure from professional judgment. Dr. Grossman testified that, with some exceptions, medical care at FWSS is professionally acceptable and in the top fifty percent of facilities with which he is familiar. Dr. Grossman then explained that the sole basis for his opinion is that he saw no “gross evidence of neglect” or “medical malpractice.” He also testified that he could recall observing only one client and had reviewed no medical records, only one behavior record, and only two death committee reports. He took no notes during his visit, and his testimony repeatedly contradicted the notes taken by a FWSS employee who accompanied him to record his observations. The Court considers Dr. Grossman’s testimony in light of these circumstances. Both Drs. Wachtel and Grossman testified, in substance, that FWSS’ medical review process and the procedures for prescribing psychotropic medications are professionally unacceptable. One psychiatric consultant who visits the School one day per week is charged with prescribing all psychoactive medications at FWSS. (Testimony of Green, Wachtel). Usually, the psychiatrist sees his patients only once— for an initial evaluation. Thereafter, despite potentially severe side effects of psychotropic medication, dosage is adjusted solely on the basis of non-physicians’ statistical tabulations of a client’s “behaviors.” Moreover, the psychiatrist called upon to adjust the quantity or type of these powerful medications has no background in behavior management and, in Dr. Wachtel’s words, “no familiarity” with the behaviors being measured. Even FWSS’ Medical Director, Marthalyn Green, testified that she would “feel more comfortable” if patients on psychotropics were seen more frequently- Dr. Wachtel also testified that the number and qualifications of the medical staff at FWSS are professionally unacceptable. Dr. Grossman did not disagree. The medical staff is caring. (Testimony of Wachtel). However, according to Dr. Wachtel, the four M.D.s at FWSS simply cannot provide adequate medical care to FWSS clients, eighty-one percent of whom are severely and profoundly mentally retarded, DX 82; (Testimony of Hughes), and fifty-seven percent of whom have appreciable health problems. DX 79; (Testimony of Hughes). Moreover, the four doctors lack adequate specialization. (Testimony of Wachtel; see generally, Testimony of Green). Their unmanageable workloads and lack of proper specialization have led to professionally unacceptable failures to communicate needed information among the medical staff. Id. Those failures to communicate have led to a lack of professionally acceptable integrated medical treatment, to professionally inappropriate treatment decisions for clients with complex needs, and to a lack of professionally adequate attention to clients’ responses to treatments. Id. Dr. Wachtel pointed to professionally unacceptable data collection, to administration of drugs to an obese client that are known to cause obesity, to a client with a neurological disorder being denied a specialty consultation, to testing that was ordered but never performed, and to other practices that, in her expert opinion, fall below the standards of professionally acceptable judgment and care. Perhaps the most egregious example of “poor communication” is the treatment by FWSS doctors of Richard S. When Richard entered FWSS, he could speak and walk. Following misdiagnosis, Richard was “treated” with the powerful drug Mel-laril, which caused him to lose the ability to control all motor functions, including, of course, walking and talking. (Testimony of Cataldo). Once this misdiagnosis was discovered — by a physician not associated with FWSS — Richard was next administered — without notice to, or consent from, his family — an experimental drug, although such a practice contravenes explicit TDMHMR policy and does not accord with medical notions of informed consent or of human experimentation. (Testimony of Green, Hughes); see United States v. Stanley, — U.S.-,-,- -, 107 S.Ct. 3054, 3074-3075, 3076-3077, 97 L.Ed.2d 550 (1987) (O’Connor, J., concurring in part and dissenting in part) (Brennan, J., dissenting). Now that he is no longer being given improper medication, Richard has regained his previous motor coordination, has a normal speech pattern, and no longer is required to use a wheelchair, helmet, elbow pads, or knee pads. (Testimony of Cataldo, Green, Hileman). Defendants point to Richard S. as a client who has progressed in their medical care. (Testimony of Hileman). The Court, however, agrees with the view of Michael Ca-taldo, Ph.D., Director, John F. Kennedy Institute for Handicapped Children and Director, Behavioral Medicine Programs, The Johns Hopkins School of Medicine, see PX lb, Appendix, called by the Expert Consultant. Dr. Cataldo testified that Richard S. has improved in spite of Defendants’ improper medical care. Another example of “poor communication” among the medical staff is FWSS’ decision to let client Manuel M. die. In Dr. Wachtel’s opinion, Manuel’s death was due to “insufficient” medical care and represents professionally unacceptable treatment. Dr. Grossman’s testimony is not to the contrary. Manuel died in February 1987, officially of “complications of spastic quadraplegia and seizure disorder.” See PX 88a; PX 88b. Prior to the day of his death, FWSS physicians, in consultation with Supt. Hughes and Manuel’s guardian, the Texas Department of Human Resources, decided that Manuel should be allowed to expire. FWSS has no policy on the withholding of treatment, and no specialty consultation was first required. In short, FWSS carried out its decision to allow Manuel M. to expire, without ever becoming medically certain that Manuel M.’s time had in fact come. PX 88a, 88b; Testimony of Hughes, Green, Wachtel. Moreover, Dr. Green, FWSS’ Medical Director, testified that notes detailing the decision to let Manuel M. die disappeared from that client’s folder, and Dr. Green assumes that the notes have been destroyed. A second of the four deaths at FWSS in the last reporting quarter points up the problems of insufficient staffing and poor communication. Michael S. died in January 1987. FWSS professionals put Michael on a behavior therapy program which used a facial screen to curb Michael’s continual efforts to mouth or to ingest inedible objects, a potentially self-injurious condition known as pica behavior. In May 1986, direct care workers, feeling that Michael's pica behavior had been cured, decided to discontinue the use of Michael’s facial screen without notifying professional staff. See PX 89b. On June 26,1986 Michael had a physical examination which found no acute illness. On November 23, 1986 Michael was admitted to John Peter Smith Hospital (“JPSH”) with an obstruction of his small bowel. Surgeons found “multiple foreign bodies ... most of which were portions of plastic sponge. There was also a plastic glove.” Following surgery, Michael S. went into septic shock and died. PX 89a, 89b, 155, ARC Exhibit (hereinafter “ARC”) A-21. The poor communication evident among the FWSS medical staff and in the administration of psychotropic medications also plague the relationship between FWSS and the JPSH, with which FWSS contracts for consultative and emergency services. DX 37. Dr. Wachtel testified that the communications between the two are professionally unacceptable. Part of the communication difficulty is created by the fact that, although JPSH physicians are available for consultations on FWSS clients, JPSH “generally” uses medical “residents in training,” who possess no specialty in mental retardation, to staff these consultations. (Testimony of Wachtel, Green). Further, there is no continuity of physician care, since these young doctors serve on a rotation basis. Id. This “lack of communication” is further evidenced by the death of client Steven H. in December 1986, the third of the four clients who died at FWSS in the quarter ending February 1987. On December 15, 1986, Steven H. was taken to JPSH for hip surgery. Following hip surgery he was placed in a spica cast which significantly immobilized him. He began to vomit, as a side effect of anesthesia. Despite the vomiting, he was returned to FWSS, where he was placed on a regular diet, vomited, and died while aspirating on his vomit. Dr. Wachtel labels the medical care “grossly insufficient.” Dr. Grossman states only that Steven H.’s death presents “a classic example of communication problems.” This “classic example of communication problems” is underscored by the case of Robbie W, which FWSS’ own Client Abuse and Neglect Committee (“CANC”) labeled “inexcusable.” PX 19. In April 1986 Robbie W. was diagnosed by JPSH as suffering from a hip dislocation. Nothing was done for four months, a period during which Robbie W. was in “chronic pain.” Id. CANC reports that, according to the Parkland Hospital physician who eventually treated Robbie W.: “The underlying dislocation has gone untreated so long that the tissue is affixing the afflicted leg into a pathological position within the socket.” Id. As CANC’s Chairman, Dr. George Denkowski, wrote in August 1986, “To help spare other clients such needless suffering, [CANC] urgently recommends that a mechanism be installed that will advocate systematically on behalf of FWSS clients who must obtain services at JPSH.” PX 19. The Court also heard testimony from parents of FWSS clients. Mrs. Evelyn Cherry testified that she has chosen to pay out of pocket in order to provide her son adequate specialty medical care. Mr. Charles Dickerson testified that after his son, Brian, was sexually assaulted with a coat hanger at FWSS in June 1987, he refused to allow Brian to be taken to JPSH, because of past inadequate treatment Brian had received there. Mrs. Judy Craig spoke of the “many problems” between JPSH and FWSS. The Court must also note that the FWSS Death Review Committee fails to abide by TDMHMR’s own regulations for the investigation of deaths. Marthalyn Green, M.D., FWSS’ Medical Director and Chairperson of the Death Review Committee, testified that she has “never heard of” FWSS’s complying with TDMHMR regulations to appoint a “clinician not actively involved in the case or responsible for the care of the client” to investigate deaths. Rules 405.263, 405.272(c), (d); DX 18, ARC C-l. After weighing the credibility of the witnesses and evaluating the evidence presented, the Court makes the following finding of fact: Finding: Medical care at FWSS represents such a departure from professionally acceptable judgment as to constitute the absence of professional judgment. The staffing, supervision, and nature of care recommended and received all fall substantially below minimum standards of professionally acceptable medical care and expose FWSS clients to considerable risk of harm. C. Habilitation The Court weighed the conflicting opinions of the several experts who testified regarding aspects of habilitation. Linda Glenn, former Assistant Commissioner for Mental Retardation for the Commonwealth of Massachusetts, see PX 200, called by Plaintiffs, presented her opinion and the opinions of a team of experts on whom she relied. That team was comprised of Urbano “Ben” Censoni, Deputy Director of the Michigan Department of Mental Health, see PX 203, who also testified; Carol Shelton; see PX 202; Professor Rob Homer of the University of Oregon; and Gunnar Dybwad, former President of the International League of Societies for Persons with Mental Handicap. See PX 204. Plaintiffs also called Kathleen Moore, Executive Director of New England Business Associates, see PX 201, and Ben Cen-soni, see supra, who could recall specifics of only two of the eight clients whom he studied. Intervenor ARC called Kenneth Keith, Ph.D., a certified clinical psychologist and Associate Professor at Nebraska Wesleyan University. Expert Consultant Linda R. O’Neall called Dr. Michael Cataldo, whose credentials are discussed above, and Sue Gant, Ph.D., Director, Quality Assurance, Connecticut Department of Mental Retardation. See PX lb, Appendix. Defendants called Larry Latham, Ph.D., Associate Commissioner for Mental Retardation for the State of Alabama, DX 88, who testified on behalf of himself and Steven Jones, Ph.D., DX 89. Dr. Latham had never reviewed an institution outside his own state system. At his deposition, he was unable to state any specifics about the clients on whom he based his opinions. Then, after the trial began, Dr. Latham returned to FWSS to “flesh out” the opinions to which he had testified in deposition. He contradicted himself several times. For example, he praised one client's educational program, when in fact, as he later admitted, that client, a Spanish speaker, was being taught by an English-speaking instructor the client could not understand. Dr. Latham also testified to a virtual elimination of self-injurious behavior by a certain client whose records, he later admitted, indicate repeated recent self-injuries for which he has been placed in physical restraints. Dr. Latham’s generalized conclusions that habilitation at FWSS is adequate, that staffing is minimally adequate but needs to be enriched (and his declining to opine on the use of restraints) must be considered in light of these circumstances. 1. Physical Therapy As Defendants admit, physical therapy (“PT”) services at FWSS are inadequate, and many client needs go unmet. (Testimony of Bean, Hughes, Fincannon). Ms. Johnnie Bean, TDMHMR’s Assistant Deputy Commissioner for Mental Retardation and Chairperson of the Department's Prescriptive Physical Management Task Force, see Defendants’ Prescriptive Physical Management Implementation Plan, filed with the Court by Defendants on June 3, 1987 and approved by the Court by Memorandum Opinion and Order, filed June 24, 1987, testified that FWSS lacks sufficient professional and non-professional staff to provide adequate PT services, that the existing staff lacks adequate training, and that FWSS has only one half of the therapeutic equipment, feeding equipment, ambulatory equipment, and wheelchairs required to meet existing client needs. Supt. Hughes would defend the adequacy of FWSS’ PT program only to the extent of testifying that FWSS meets the PT needs “that we address.” Moreover, the Superintendent recalled testifying under oath in 1985 that FWSS needed seven physical therapists. FWSS presently employs one physical therapist and two assistants, one of whom was recently hired. (Testimony of Hughes, Carson). One example underscores the lack of adequate services. Leslie Carson, the sole licensed physical therapist at FWSS, testified that client J.M. was relegated to a waiting list for PT services because, although he needed treatment, “he was not the next priority client.” Ms. Carson also testified that J.M. had been recommended for a rollator, because of the greater freedom a rollator allows, but that because none was available, the client was forced to use a wheelchair. Staff had also recommended in January 1987 that a “standing box” be purchased for J.M. to aid the client in muscle development and walking. None was ever ordered; none is yet available. PX 166; (Testimony of Carson). In the meantime, J.M., and all clients who are denied needed physical therapy, find their bodily functions deteriorating. (Testimony of Bean, Gant). After weighing the credibility of the witnesses and evaluating the evidence presented, the Court makes the following finding of fact: Finding: The staffing, supervision, and provision of physical therapy services at the FWSS fall substantially below professionally acceptable minimum standards for physical therapy services and expose FWSS clients to considerable risk of harm. FWSS lacks the necessary equipment and resources to provide professionally acceptable physical therapy services. 2. Feeding Equally crucial to safeguarding clients are feeding programs in which proper methods of chewing and swallowing are taught. Improper feeding techniques place clients in danger both of choking and of infection caused by food particles in the lungs. (Testimony of Glenn and Gant; see, generally, Testimony of Matthew). The two experts who testified about feeding programs at FWSS, Dr. Gant and Ms. Glenn, both condemned the present services as professionally unacceptable and as exposing clients to serious threat of harm. Their conclusions are underscored by Assistant Deputy Commissioner Bean’s testimony that FWSS lacks adequate adaptive feeders to meet client needs and that staff is not adequately trained in proper feeding techniques. By way of example, PART parent Evelyn Cherry testified that her 14-year-old son, Sean, whose intelligence level is less than a one year old’s, is “often” denied his prescribed feeding program, simply because of a shortage of trained staff.. Both Dr. Gant and Ms. Glenn testified to observing dangerous feeding techniques with clients, some supine, their heads tilted back, gagging as food was forced upon them. Dr. Gant reported that observing the feeding of Tracy R. was the single most distressing experience in her seventeen years in the field of mental retardation. Tracy R.’s prescribed feeding program was wholly ignored. Food was forced upon her; she gagged and eventually vomited. Moreover, she was being fed milk — to which she is allergic. PX lb; (Testimony of Gant). After weighing the credibility of the witnesses and evaluating the evidence presented, the Court makes the following finding of fact: Finding: The staffing, supervision, and provision of feeding programs at FWSS fall below professionally acceptable minimum standards for such programs and expose FWSS clients to considerable risk of harm. FWSS lacks the equipment and resources to provide professionally acceptable feeding programs. 3. Toileting Extensive evidence was presented of the overwhelming need for better and more general toileting programs at FWSS. Individual toileting is more than simply a question of personal dignity or discomfort; it is a requirement of individual autonomy. Ironically, improved toilet training would also benefit FWSS’ overworked staff, freeing them from housekeeping chores and allowing them more time to work with the clients. (Testimony of Wagner, Smith, Ca-taldo, Gant). FWSS does not attempt intensive toilet training. (Testimony of Smith, Cataldo). The failure to attempt intensive toilet training is professionally unacceptable. (Testimony of Cataldo, Gant). It is well established that virtually all institutional clients can be toilet trained. PX lb. Indeed, Dr. Gant testified that toilet training can usually be accomplished within twenty-four to forty-eight hours. Jo Smith, a Program Specialist at FWSS, testified that the reason why the FWSS does not attempt this professionally mandated procedure is because toilet training “is staff intensive to a degree that is inappropriate for general use of FWSS.” Nancy Wagner, a Unit Psychologist at FWSS, expanded upon Ms. Smith’s testimony, explaining: “FWSS is not funded or staffed at a level which will permit intensive habili-tation of every client need.” Drs. Cataldo and Russo, see App. lb, explained in their report, PX lb, Ch. 2 at 13: [T]hese clients have failed to gain independence in toileting and have therefore failed to gain the opportunity for habili-tative growth which such toileting skills provide. Additionally, since the great majority of institutional clients at Fort Worth State School require toileting on an average two hour basis, such procedures significantly interfere with other positive habilitative efforts and additionally provide significant opportunity for the exhibition of maladaptive behavior which is likely to be treated by poorly designed restrictive procedures. This circular problem places clients at significant risk of abuse. After weighing the credibility of the witnesses and evaluating the evidence presented, the Court makes the following finding of fact: Finding: The failure of FWSS to attempt intensive toilet training of FWSS clients falls below professionally acceptable minimum standards of habilitation. The failure to attempt to toilet train clients is an assault on clients’ dignity. FWSS lacks the equipment and resources to provide professionally acceptable toilet training programs. 4. Behavior Modification Fifty-five percent of FWSS clients require behavior modification programming. DX 81. Unfortunately, the evidence presented supports Dr. Cataldo’s testimony that behavior modification programs provided by FWSS are “state of the art 1950’s.” a. Inadequate Data Collection Treatment decisions at FWSS are made without using data. (Testimony of Keith, Cataldo). The use of data in treatment decisions is an “absolute requirement” of behavioral treatment, and the failure to use data can lead to considerable harm. (Testimony of Cataldo). Therapies are left unevaluated; responses to treatment or changes in circumstance are rendered irrelevant. Defendants did not even attempt to defend this inadequacy, other than relating that Ms. Wagner, a psychologist at FWSS’ Piney Woods Unit, keeps her own graphs. See DX 200; (Testimony of Wagner). b. Lack of Treatment Planning FWSS relies upon “canned” treatment programs which are insufficiently client specific and fail to address clients’ individual needs. (Testimony of Cataldo, Keith). As used at FWSS, this “word processor approach” (Testimony of Smith) is insufficient for any professionally acceptable functional analysis. PX lb; (Testimony of Cataldo, Keith). Long-term planning is disregarded,, and clients appear to be placed into programs with no criteria for determining success or failure. Id. Indeed, records are periodically purged from client folders, precluding such planning. (Testimony of Cataldo, Wagner). Clients appear to be routinely placed in inappropriate units or programs. (Testimony of Cataldo, Keith, Glenn, Moore). Inappropriate programming can have deleterious results. By way of example, Curtis T. came to FWSS suffering from a rare self-mutilation disease, Lesch Nyhan Syndrome. Since entering FWSS, he has chewed away most of his lower lip and has lost one finger. (Testimony of Addison, Cataldo). c. Program Goals Lack Relevance The program goals at FWSS are professionally unacceptable. (Testimony of Keith, Cataldo, Gant, Glenn, Moore, Censo-ni). The goals lack relevance, and there is litt