Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW McMILLAN, District Judge. TABLE OF CONTENTS Page I. HISTORY OF PROCEEDINGS 1181 II. FINDINGS OF FACT 1183 A. Plaintiff-Intervenors 1183 1. Jeanette H. 1183 2. Todd C. 1184 3. Phillip B. 1184 4. Margaret R. 1184 B. Plaintiff Class 1184 1. Description of the Class and General Findings 1184 2. Aggression, Self-Abuse and Other Physical Injury 1186 3. Drugs 1186 i. Adverse Effects 1187 ii. Standards for Avoiding, Minimizing and Treating Ad- 1187 verse Effects iii. Behavior Control 1188 iv. Chemical Restraint 1188 v. Excessive Dosages 1188 vi. Polypharmacy 1188 4. Seclusion and Mechanical Restraint 1188 5. Unnecessary Confinement 1190 i. Locked Wards 1190 ii. Institutional Confinement 1190 6. Association/Access to Community 1192 7. Habilitation 1192 i. Individual Evaluations and Treatment 1192 ii. Trained Staff 1192 iii. Inhumane Living Conditions 1193 iv. Abnormal Environment 1193 Page v. Unavailable Services 1193 vi. Behavior Problems 1194 vii. Deterioration and Loss of Self-Care Skills 1194 8. Lack of Adequate Community Services 1195 9. Professional Judgment 1196 10. Certification — Accreditation 1197 III. CONCLUSIONS OF LAW 1199 A. Substantive Due Process Rights Under Youngberg v. Romeo 1199 1. Safety 1200 2. Freedom from Undue Bodily Restraint 1200 3. Minimally Adequate Habilitation 1200 B. State Created Liberty Interest Related to Purpose of Confinement 1202 C. State-Created Liberty Interests Based on State Regulations 1202 D. Freedom of Association 1203 IV. RELIEF 1204 I. HISTORY OF PROCEEDINGS Paul Caldwell, next friend of plaintiff Thomas S., filed this suit on July 7, 1982, seeking declaratory and injunctive relief under federal and state law. Also on July 7,1982, Mr. Caldwell was appointed guardian ad litem for Thomas S. On July 10, 1984, Joyce M. Brooks was substituted as guardian ad litem for Thomas S. Thomas S., a nineteen-year-old Gaston County resident when this action was filed, had been diagnosed as suffering from, inter alia, schizophrenia and borderline mental retardation, and was incapable of either living independently or managing his own affairs. Given up for adoption at birth, Thomas spent his first eighteen years in approximately forty different foster homes and institutions while in the custody of the Gaston County Department of Social Services (“DSS”). DSS shuffled Thomas through so many placements during his youth because there were no appropriate community-based treatment facilities available in Gaston County during this period. Soon after Thomas’ eighteenth birthday, DSS succeeded in having Thomas declared legally incompetent. In February, 1982, defendant Allen Childress, regional adult mental health specialist with the North Carolina Department of Human Resources, was appointed Thomas’ guardian. Because Childress considered Thomas’ then-current placement, a rest home for the elderly, inappropriate, Childress caused Thomas to be admitted to the “R” (mental retardation) unit at Broughton Hospital on March 15, 1982. Four months after Thomas was institutionalized at Broughton, his next friend brought this suit against Sarah Morrow, then Secretary of the North Carolina Department of Human Resources (“Secretary”); Allen Childress, in his official capacity as Thomas’ guardian (“guardian”); and the directors of two local agencies, DSS and the Gaston-Lincoln area mental health program. The Gaston County Commissioners later were joined as additional defendants. The complaint alleged that the defendants had denied Thomas substantive due process accorded by the Fourteenth Amendment. It protested the defendants’ failure to provide minimally adequate treatment, alleging that Thomas’ hospitalization imposed a degree of restraint on his liberty inconsistent with professional judgment regarding his treatment. The complaint charged that the defendants had deprived Thomas of liberty interests created by state law, a procedural due process claim under the Fourteenth Amendment. The complaint also asserted various pendent state law claims. Thomas requested an injunction ordering the defendants to place him in an appropriate group home and to provide other treatment recommended by professionals who had examined and worked with him. On May 26, 1983, the court entered a consent judgment permitting the two local agency defendants to contract with an independent nonprofit organization for foster care and treatment from the date of Thomas’ discharge from Broughton until March 1, 1984. Because of the consent order, the court deferred all parties’ motions for summary judgment and declared the case inactive until February 1, 1984. On March 22, 1984, four individuals, Jeanette H., Todd C., Phillip B. and Margaret R., moved to intervene as plaintiffs. The court appointed Cornelius Manly as guardian ad litem for Ms. R. on May 4, 1984. Also on March 22, 1984, these individuals joined Thomas S. in a motion to certify a statewide class of similarly situated individuals pursuant to Fed.R.Civ.P. 23. The class is defined as: adults who are mentally retarded or who have been treated as mentally retarded and who are or will be inappropriately kept in public psychiatric institutions in North Carolina in conditions violative of their constitutional rights. After reactivating the case, the court found that Thomas had been shifted to at least three additional placements since the consent judgment was filed. On August 15, 1984, the court heard arguments on all pending motions. The court ruled on the cross motions for summary judgment on September 18, 1984. Thomas S. v. Morrow, 601 F.Supp. 1055 (W.D.N.C.1984). All pendent state law claims against state officials were dismissed, in accordance with Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The claims against the local officials also were dismissed without prejudice. Relying on Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed. 2d 28 (1982), the court granted summary judgment against the Secretary and the guardian on Thomas’ substantive due process claim without reaching the procedural due process claim. On December 7,1984, the court entered a judgment requiring the Secretary and the guardian to develop a treatment plan and appoint a case manager for Thomas. The judgment directed them to furnish Thomas the treatment recommended by qualified professionals who had evaluated his needs. In accordance with the recommendations, the order specified that Thomas should be placed in a “stable suitable supervised community residential placement such as: (1) a non-institutionalized specialized adult foster care situation ... or (2) a group home with adults of average intelligence.” Adhering to the recommendations, the court also directed that Thomas should be provided non-residential services such as mental health counseling, adult basic education and vocational training, and “opportunities for community interaction.” The Secretary and the guardian appealed. Also on December 7, 1984, the court permitted the intervention of the four additional plaintiffs and certified the class pursuant to Fed.R.Civ.P. 23(b)(2), to be represented by Thomas S. and the intervenors. However, the court stayed further litigation on behalf of the intervening plaintiffs and class members pending the outcome of the appeals. The court’s judgment was unanimously affirmed with one technical modification by the Fourth Circuit Court of Appeals. Thomas S. v. Morrow, 781 F.2d 367 (4th Cir.1986). Thereafter, the Secretary’s petition for rehearing and rehearing en banc were denied. Separate petitions for writs of certiorari by the Secretary and the guardian were similarly denied by the Supreme Court. 476 U.S. 1124, 106 S.Ct. 1992, 90 L.Ed.2d 673 (1986), 479 U.S. 869, 107 S.Ct. 235, 93 L.Ed.2d 161 (1986). Once the judgment in favor of Thomas S. was affirmed on appeal, the court vacated the stay, allowing litigation on behalf of the intervenors and the class to proceed. On May 28, 1986, Phillip J. Kirk, then Secretary of the Department of Human Resources, was substituted as a party defendant. On July 30, 1986, the court heard plaintiffs’ motion for partial summary judgment on behalf of the class. On August 19, 1986, the court denied this motion without prejudice and ordered an evidentia-ry hearing. The case was heard on March 5 and 6, 1987. Counsel for the Secretary requested and was granted leave to offer additional evidence. On May 5, 1987, the court heard additional evidence. Plaintiffs claim that the confinement conditions imposed on class members in the state’s psychiatric hospitals violate their constitutionally protected liberty interests under the due process clause of the Fourteenth Amendment. The Division of Mental Health, Mental Retardation and Substance Abuse Services (“MH/MR/SAS”) operates within the Department of Human Resources. The state is divided into four regions, each of which serves the population in a designated area. Each region has a psychiatric hospital (Broughton Hospital in the Western region, John Umstead Hospital in the North Central region, Dorothea Dix Hospital in the South Central region and Cherry Hospital in the Eastern region), and a mental retardation center. The plaintiffs’ claims do not involve the state’s mental retardation centers. The plaintiffs seek declaratory and prospective injunctive relief against the Secretary in the form of constitutionally required treatment that is consistent with the recommendations of qualified treating professionals. In deciding this case, the court has carefully considered all of the evidence bearing on each issue, and notes that there have been conflicts in the testimony concerning: what constitutes minimally adequate habili-tation; what factors compromise class members’ safety; when drugs or mechanical restraints are being used excessively and numerous other professional matters. The court made decisions involving credibility and weight to resolve these conflicts. In assessing credibility, the court took into account the demeanor of the witnesses, any interest or bias, and the knowledge, education and training of the witnesses in the field of mental retardation. In addition to credibility decisions, the court relied heavily on the reports and recommendations of the Secretary’s professionals to define “accepted professional judgment, practice and standards” for application to the facts of this case. Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462. The court did not attempt to determine which of several professionally acceptable choices should have been made. Instead, in reviewing the voluminous evidence to determine if the Secretary is providing minimally adequate training, the court deferred to the reasonable judgments of qualified professionals. II. FINDINGS OF FACT A. Plaintiff-Intervenors 1. Jeanette H. Intervenor Jeanette H. was admitted to Dorothea Dix Hospital in Raleigh in 1981. She was originally diagnosed as suffering from chronic undifferentiated schizophrenia, but this diagnosis was later dropped. She is diagnosed as mildly mentally retarded. Early in her admission, it was recognized by the state’s treating professionals that she needed a supervised living situation in the community. Pl.Ex. 31 at 2. Nonetheless, she was kept at Dix and continuously medicated. She had behavior problems that did not improve with the medication. While at Dix, she suffered a severe case of lithium toxicity. Since becoming an intervenor in this case, she was enrolled in a sheltered workshop, her medication was reduced, and in January of 1987 she was discharged from Dix to a family care home in the community. Pl.Ex. 31. 2. Todd C. Todd C. is a resident of Dix Hospital. He was diagnosed as having an intellectual function on the borderline between average intelligence and mild mental retardation. He was also diagnosed as suffering from an atypical psychosis by history, histrionic personality disorder, seizure disorder, and hydrocephaly. He lives on a “management stepdown” ward which houses mentally ill patients at a maintenance stage of treatment. When Mr. C. was admitted to Dix in 1981, the state’s professionals noted that “a psychiatric admission ward is not adequate treatment for this patient.” Over the next five years, less restrictive, community-based placements were repeatedly recommended for Mr. C. by the Secretary’s professionals. Despite these recommendations, Mr. C. remains at Dix Hospital. He has frequently been secluded and mechanically restrained. Pl.Ex. 30. 3. Phillip B. Phillip B. was admitted to Dix Hospital in March of 1983. He has been diagnosed as functioning intellectually in the moderate to severe mental retardation range. He has not been diagnosed as suffering from any mental illness. He was hospitalized at Dix after “a few violent outbursts” at a group home. His treatment professionals recommended community placement, but he had to wait for several months at Dix during which time his behavior regressed. Pl.Ex. 32 at 4. At his commitment hearing in January of 1984, the attorney representing Mr. B. admitted to the court that he would be kept at Dix even if he did not meet commitment criteria. Pl.Ex. 27 at 4. After Mr. B. was permitted to intervene in this case, he was discharged from Dix Hospital. He is now living successfully in the community. Pl.Ex. 32. 4. Margaret R. Margaret R. was first admitted to Broughton Hospital in 1973. She has been diagnosed as suffering from organic brain syndrome and an organic personality disorder. She appears to function in the range of mild mental retardation. After intervening in this case, Ms. R. was placed in a rest home for the aged. The rest home where Ms. R. was placed is the same one used for Thomas S. and found by this court to be inconsistent with the professional judgment of those who examined and treated Thomas 5. 601 F.Supp. at 1058-59. This home does not offer necessary services for mentally retarded people. This placement was the Secretary’s attempt to implement the longstanding recommendation of the state’s treating professionals that Ms. R. be placed in a less restrictive, community-based residence (such as a group home for the mentally retarded). After the rest home refused to continue to care for Ms. R., she was returned to Broughton Hospital. Ms. R. has no diagnosis of mental illness, yet she continues to live on a general psychiatric ward. Ms. R. appeared and testified in the evidentiary hearing in this case. She expressed her desire to live in the community, but there is no appropriate program for her. Tr. 232, 505, 527. B. Plaintiff Class 1. Description of the Class and General Findings There are approximately four hundred mentally retarded class members in the state’s four psychiatric hospitals. The estimated number of class members has ranged from 393 to 470. Approximately half or more of those persons have no diagnosis of mental illness. Pl.Ex. 42 at 8. For example, on February 27, 1986, forty-seven percent of the class members confined at the state psychiatric hospitals had a diagnosis of mental retardation only. Pl.Ex. 10. Mental retardation involves difficulty and slowness in learning and delayed development of intellectual functioning. Youngberg, 457 U.S. at 309 n. 1, 102 S.Ct. at 2454 n. 1; Glenn Dep. at 22-23. Mental illness, on the other hand, involves a disturbance of emotions or thinking, from whatever cause, which interferes with a person’s ability to handle life situations. Glenn Dep. at 23; Tr. 23. The psychiatric facilities use a medical model which starts with the concept that a person has a sickness and that sickness is treated. The mental retardation/developmental disability model provides an opportunity for development. It provides training and education called “habilitation.” Tr. 556-57; Pl.Ex. 46 at 3. Habilitation is defined as follows: “The process by which the staff of an agency assists an individual to acquire and maintain those life skills that enable the individual to cope more effectively with the demands of his or her own person and environmental and social functioning. Habilitation includes, but is not limited to, programs of formal structured education and treatment.” Association For Retarded Citizens of North Dakota v. Olson, 561 F.Supp. 473, 488 n. 20 (D.N.D.1982) (quoting Accredition Council for Services for Mentally Retarded and Other Developmentally Disabled Persons, “Standards for Services for Developmentally Disabled Persons” (1981 edition)). Of approximately 470 adults with mental retardation in the hospitals, 404 were identified as being confined in general psychiatric wards of the hospitals. Pl.Ex. 3 at 1-2. Only one of the hospitals (Broughton) has a unit designated for mentally retarded people and that unit houses some but not all of the class members at Broughton. There is a professional consensus that mentally retarded people who are continuously exposed to mentally ill patients begin to “model” the dysfunctional behaviors of the mentally ill patients with whom they are confined. Pl.Ex. 43 at 45-54; Pl.Ex. 46 at 15; Glenn Dep. at 32-33. There is also professional consensus that developmental, behavior-based treatment called “habilitation” is the appropriate milieu for people with mental retardation. More than half of the class members have been identified as being “voluntarily” committed to the psychiatric institutions pursuant to N.C.Gen.Stat. § 122C-211 (1986). Most of these class members have no guardian and have signed themselves into the institution. Pl.Ex. 19. A number of the “voluntarily” institutionalized plaintiffs who do not have guardians are severely mentally retarded and lack the capacity to understand the legal step they have taken. Pl.Ex. 18 at 2. Many of the class members who were originally identified by the Secretary on discovery as having a diagnosis of mental retardation were later reclassified by the Secretary as having a behavior disorder. A behavior disorder is a problem some mentally retarded people have in conducting themselves, which is characterized by self-injury, aggressiveness, or rage reactions. It is not considered a mental illness. Tr. 23, 204. It is considered a “grab-bag” term which is sometimes used to label clients who are a management problem. Tr. 415. There are striking similarities between the conditions which led to the relief granted original plaintiff Thomas S. and the conditions in which the intervenors and plaintiff class members are forced to live. For example, at Broughton Hospital alone there are at least thirty-five class members for whom group home or family care placement in the community has been recommended by the Secretary’s treating professionals. Despite these recommendations, many of these plaintiffs remain confined in state psychiatric hospitals. The record is replete with other examples of placement and treatment recommendations being ignored or their implementation being unjustifiably delayed. Numerous other constitutional violations have been established, including the following, which are discussed in detail below: (a) Many of the plaintiffs have no diagnosis of mental illness, yet they are placed in facilities for the mentally ill. (b) Some of the plaintiffs have been inappropriately placed in rest homes for the elderly. (c) Many of the plaintiffs have behavioral problems which make them difficult patients to treat. This difficulty is frequently used by the state to justify inappropriate placements. (d) Many of the plaintiffs have been recommended for appropriate placement and treatment in less restrictive residential settings, including group homes or specialized foster care. These recommendations, made by state employees (including doctors, social workers, psychologists, and occupational therapists) were often incorporated in treatment plans. The placement recommendations and the treatment plans are frequently ignored, and the plaintiffs remain confined year after year in state psychiatric institutions. (e) At times the people responsible for consenting to or approving commitment of a class member to a state psychiatric hospital do so because there is literally no other place for the class member to go. (f) For many of the plaintiffs, there are no established alternatives to placement in a state psychiatric hospital. The state has chosen not to make appropriate alternatives available. For other plaintiffs, established alternatives (such as state facilities designed to treat mental retardation) are unavailable. (g) Many of the plaintiffs are wards of the state. Further, the state has control over the liberty and care of each class member while he or she is committed to a state psychiatric institution. Some class members have been kept in a state psychiatric hospital long after the original commitment order required their release. 2. Aggression, Self-Abuse and Other Physical Injury Class members have been physically injured as a result of the conditions at the four state psychiatric institutions. Approximately fifteen percent of the institutionalized class members engage in self-injurious behavior. Pl.Ex. 13 at 2. Other class members engage in assaultive behavior. Pl.Ex. 10. When appropriate services are offered, self-injurious and aggressive behaviors are significantly reduced or totally extinguished. Tr. 49-50. Aggression or assaultive behavior in mentally retarded people can be caused by crowding, noise levels, frustration, or lack of appropriate training. The state’s mental retardation deputy explained, for example, that if a mentally retarded person is told to “make your bed” and that person does not know how to make the bed and does not know how to tell the person giving the command, “I don’t know how to do that,” he or she can get very frustrated and may attack the person who gave the command. Mentally retarded people are often excluded from the opportunity to learn because of assaultive behavior of this type that results from their frustration. Pl.Ex. 44 at 8-9, 15. “Habilitation” is a term used to refer to the process of helping a person with mental retardation acquire needed skills. The principal focus of habilitation is on learning and training, because mental retardation is a learning disability and a training impairment, rather than an illness. Youngberg, 457 U.S. at 309 n. 1, 102 S.Ct. at 2454 n. 1; Pl.Ex. 46 at 3; Pl.Ex. 44 at 12. The Secretary offers few, if any, habilitation or behavior programs for mentally retarded adults confined in the state psychiatric hospitals. When behavioral modification treatment is offered, the evidence suggests that the treatment is not adequately individualized, monitored, or re-evaluated to comport with minimal professional standards for treatment of mentally retarded persons. Due to inadequate behavioral programming, class members are sometimes injured at their own hands. Pl.Ex. 42 at 4. For example, Guy W., class member at Brough-ton Hospital, has been institutionalized since 1936 when he was sixteen years old. He began to self-induce vomiting in 1979. His treatment plan shows that his primary habilitation need in order to be discharged from the institution is to improve his behavior. Yet, no training has been provided to help him learn to stop this behavior. Danny W. is a member of the class. He is blind, mentally retarded, and confined to a ward at Broughton Hospital. He engages in self-abusive behavior. He bites his hand, and he has begun to eat feces. He sits in a wheelchair on a very handicapped ward with very little to do. He has not been given any sort of habilitation. Tr. 52. A behavior plan was proposed for inter-venor Todd C. to stop him from self-abusive behavior, but it was not used for several years. The Secretary made no attempt to justify this failure to follow the professional recommendation. On some wards, there are not enough staff members to assure safety of the residents. Glenn Dep. at 35-36, 63; Pl.Ex. 41 at 16. Some class members have been injured by the lack of adaptive equipment or the improper use thereof. Glenn Dep. at 106-OS; P.Ex. 41 at 4. Mary W. has been severely injured. Pl.Ex. 42 at 10; Tr. 39-50, 93. 3. Drugs Class members have been seriously endangered and injured by the inappropriate use of antipsychotic drugs. This group of drugs belongs to a class of psychotropic medications used to treat certain psychiatric disorders. The terms “antipsychotic,” “neuroleptic,” and “psychotropic” have been used interchangeably throughout the evidence, but have different meanings. Antipsychotic drugs are drugs used to treat psychotic disorders where people are not in touch with reality. Tr. 148. Anti-psychotic drugs include Thorazine, Mellaril, Haldol, Loxitane, Prolixin, and a number of others. Tr. 298. They are not useful in treating or relieving the effects of mental retardation. Pl.Ex. 50. Of class members institutionalized at three of the four state psychiatric hospitals, seventy-three percent were being given antipsychotic drugs, yet forty-three percent of that group has no diagnosis of mental illness. Tr. 230. i. Adverse Effects. Antipsychotic drugs are dangerous and can cause a number of severe adverse effects, including tardive dyskinesia, an irreversible neurological disease where a person has involuntary movements of the face, arms and legs. Tr. 149-50, 376. Tardive dyskinesia occurs in people without regard to their mental condition, Tr. 370, and about thirty percent of people who receive prolonged antipsychotic drugs develop tar-dive dyskinesia. Tr. 208. Professional standards and the Secretary’s policies require periodic monitoring of drug adverse effects. Pl.Ex. 52 at 28; Def.Ex. 8; Tr. 339-40. This has not been done for most class members. Pl.Ex. 42 at 2, #5; Pl.Ex. 42 at 4, # 1(b); Tr. 225, 342-43. The evidence shows that the Secretary’s agents’ use of antipsychotic drugs on the class members in their custody has resulted in tardive dyskinesia for a number of class members. Pl.Ex. 42 at 2, ## 3-4; Pl.Ex. 42 at 4, # 2; Pl.Ex. 22 at 2; Tr. 330, 338. Plaintiffs’ pharmoeological expert, Dr. Henry Crabbe, personally examined thirty-three class members who were being given antipsychotic drugs at three of the state psychiatric institutions. Based on the brief personal examination alone, Dr. Crabbe observed that of those examined at Cherry Hospital, eighty-eight percent manifested symptoms of adverse effects; forty percent showed such symptoms at Broughton Hospital; and thirty-three percent showed such symptoms at Dix Hospital. Tr. 151, 223-24. ii. Standards for Avoiding, Minimizing and Treating Adverse Effects. Because of these serious adverse effects from antipsychotic drugs, minimal professional standards as well as the Secretary’s written policies require that patients, their families, and/or their legal guardians be informed about the risks, side effects and benefits of psychotropic medications. Pl.Ex. 52 at 28; Tr. 339-40; Def.Ex. 56. The Secretary introduced a number of policies from the Standards of Clinical Practice Manual and the Nursing Policy Manual at Dorothea Dix Hospital and some policies that apply statewide. The standards on medical education provide that patients or their legal guardians shall be informed about the risks, side effects and benefits of specific medications including psychotropics, and that evidence of this instruction as well as the patient’s response to it be documented in the patient’s medical record. The Secretary and his agents have failed to follow these policies for many class members. None of the records of class members presented to the court reflect that these policies were ever applied to them. Pl.Exs. 30, 31, 32, 42; Def.Exs. 14, 15, 36. Class member Thelma B., who is severely retarded, is purported to have signed an “X” to “informed” consent for medication. Pl.Ex. 42 at 4, ## 11-12; Pl.Ex. 39. Professional standards also require a periodic review of the antipsychotic drug prescriptions to see if they are needed. Pl.Ex. 52 at 5; Tr. 339-40; Pl.Ex. 43 at 16. Yet this has not been done for some class members. Pl.Ex. 43 at 31. Medical standards require continuing efforts to reduce the amount of neuroleptic drugs a person receives. Tr. 337; Pl.Ex. 52 at 5; Tr. 339-40. This was not done for a number of class members. Pl.Ex. 41 at 16; Tr. 175-76, 337-38. In a study based on the medical records of thirty-nine patients (out of a population of 675) at Dix Hospital, it was determined that in twenty-one percent of the cases, medication was not reduced even where tardive dyskinesia was diagnosed. Tr. 378. This violates state and national standards. Pl.Ex. 52 at 28. Medical record keeping is substandard and dangerously inadequate. Tr. 172, 225, 334-35. iii.Behavior Control. One of the ways the Secretary has most endangered plaintiffs is by the long-term use of antipsychotic drugs for the purported purpose of controlling behavior disorders. Evidence was introduced that the American Psychiatric Association published a Tardive Dyskinesia Task Force Report in 1979 finding that the efficacy and safety of the long-term or “maintenance” use of anti-psychotic drugs for mentally retarded people with behavior disorders had not been adequately demonstrated. Pl.Ex. 50. Medical standards proscribe the long-term (or “maintenance”) administration of anti-psychotic drugs to mentally retarded people with no mental illness, even if they have a behavior problem. Pl.Ex. 42 at 1-2, ## 1-2; Pl.Ex. 42 at 5, # 3; Tr. 151, 169-71, 339-40; Pl.Ex. 52 at 28. Even on a short-term basis, it is not acceptable to rely on drugs to the exclusion of other methods to treat people with behavior problems. Yet the Secretary has used drugs in this way on many class members. Glenn Dep. at 38-39, 46, 49, 62; Pl.Ex. 41, at 9, 16, 17; Tr. 50-51, 152, 164-66, 174, 417; Pl.Ex. 43 at 18. For example, Mary W. has been on anti-psychotic drugs even though in 1953 she was not psychotic but, rather, “a mentally deficient person for whom the hospital has nothing to offer.” The drugs are purportedly used for her behavior problem. This has continued since the 1950’s without any documented behavior training, even though her condition worsened and the records show that medication was not effective. Pl.Ex. 42 at 4, # 1; Tr. 50-51. Other class members have also been sedated by the long-term use of antipsychotic drugs in lieu of behavioral program and without any regard to the safety or usefulness of the drugs for the class members. Pl.Ex. 42 at 5, ## 3-4. iv. Chemical Restraint. “PRN” medications are medications given pursuant to a physician’s standing order which allows lower level hospital staff to use their own discretion to decide when to administer a drug. When it involves anti-psychotic and related medications, it is a form of chemical restraint. In long-term residential units, its use can result in overmedication in lieu of alternative behavior programming. Twenty-four percent of class members at Broughton Hospital were subjected to chemical restraint during a recent one-month period; at Dix Hospital, the figure was sixty-one percent; at Cherry Hospital, the figure was seventy percent. Tr. 173-175. Many states have rules for facilities for the mentally retarded which prohibit this practice of giving antipsy-chotic drugs “PRN.” Tr. 174. Data on the frequency of use of “PRN Med Restraint” during one month show that, at least in some cases, there is no correlation between the use of such restraints and incidents of aggression toward self and others. One class member received “PRN meds” twenty-three times in a month, with only four reported incidents of “aggression.” Another class member was given “PRN meds” twenty-one times, but only three incidents of aggression were reported. Pl.Ex. 10 at 25-28. The court does not find that the use of chemical restraint in emergency situations is a substantial departure from professional judgment. However, these illustrations tend to show that when chemical restraints are authorized “PRN,” they are overused and represent a substantial departure from the professional judgment of a qualified treating professional. v. Excessive Dosages. The Secretary administers excessive dosages of drugs to class members. Pl.Ex. 43 at 31. This unnecessarily subjects them to risks of overmedication. There is a professional consensus that the usual maintenance or long-term dose for antipsychotic medication translates into the equivalent of 200-300 milligrams of Thorazine. Most of the institutionalized class members are on a long-term regimen of antipsychotic drugs. The average Thorazine equivalent dosage among the state hospitals varies markedly but is always far above the professionally accepted usual maintenance dose. Among the class members sampled, the average daily Thorazine equivalent was 592 milligrams at Dix Hospital, 746 milligrams at Broughton Hospital, and 1,114 milligrams at Cherry Hospital. Where doses are higher, there is a higher likelihood of adverse effects. The Secretary made no effort to explain these variations or excessive dosages. Tr. 179-82. The standard used at Cherry Hospital for the daily dosage range of antipsy-chotic drugs is so broad that it is acceptable under that standard for a large dose to be forty times greater than a low dose, and the decision is a pure judgment call by the doctor. Tr. 551; Def.Ex. 45 at 4. There are instances where class members are given dosages which exceed even the institution’s own guidelines, with no justification given. To exceed established drug dosage maximum limits without showing a justification is a substantial departure from professional standards. Tr. 176-77. The Secretary administered the psychotropic drug Lithium to named intervening plaintiff Jeanette H. so that the level of Lithium in her blood reached 6.58 — an alarming level. Plaintiff’s psychopharmo-cological expert had never seen a patient have a blood Lithium level of more than 3.9 and still live. Tr. 166-68. In fact, Jeanette H. went into a coma and was transferred to the critical care unit for Lithium toxicity. During the time she was being given Lithium, the Secretary was also giving her Thorazine. Pl.Ex. 31 at 3, 9-13. vi. the Polypharmacy. The Secretary admits that some types of polypharmacy, such as administering more than one antipsychotic drug to a person at one time, are not generally accepted medical practice. Tr. 423. Nevertheless, this is done to some class members. Intervenor Jeanette H. was kept on a number of anti-psychotic drugs together including Thorazine and Prolixin. Tr. 398. Class member Freddie S. continued to receive three different psychotropic medications, despite the fact that his assessment shows he benefits little from the medication. Pl.Ex. 38. No explanation was offered by the Secretary for these departures from professional standards. The manner in which the Secretary has administered antipsychotic drugs to class members, in violation of the standards discussed above, is a substantial departure from the exercise of professional judgment. Tr. 182. 4. Seclusion and Mechanical Restraint Mechanical restraint is the practice of tying or strapping someone to a bed or a chair. Seclusion is the practice of confining a patient alone in a bare room. Glenn Dep. at 38; Def.Ex. 11. It is a substantial departure from professional standards to rely routinely on seclusion and restraint rather than systematic behavior techniques such as social reinforcement to control aggressive behavior. Seclusion and restraint should only be used as a last resort. Glenn Dep. at 38; Pl.Ex. 42 at 6-7; Pl.Ex. 43 at 44; Pl.Ex. 45 at 24-26. In the state psychiatric institutions, however, seclusion and restraint are used often on plaintiffs. About seventeen percent of the class members were secluded or restrained during a reported one-month period, including eleven plaintiffs who were restrained fifty-three times even though they had no documented evidence of aggression towards themselves or others. Pl.Ex. 10; Pl.Ex. 42 at 5; Tr. 53. Class members are more likely to be subject to mechanical restraint in defendant’s psychiatric institutions than when they are elsewhere. Pl.Ex. 44 at 6. Some class members have been mechanically restrained when they were noisy or annoying to other patients. For example, class member Magdeline S. has been secluded and restrained for hollering and she has sometimes not been released when she quieted down. Pl.Ex. 42 at 5-6, # 4. The Secretary repeatedly restrained class member Geraldine G. of Broughton Hospital for being noisy and annoying other patients. Tr. 63. Class member Mary W. at Broughton Hospital engaged in self-injurious behavior in the form of hitting herself in the head. She has been in soft body restraints or a geriatric chair (a type of restraint) for almost all of the time since the late 1940’s. The restraint started out at nine hours a day most days (in the mid to late 1940’s), then increased to nineteen hours, then to twenty-four hours a day. For decades and continuing to the present, she has been restrained for all of her waking hours. The records do not reveal that behavior training was ever considered or tried to help her stop trying to hit herself. In 1975 a doctor recommended fitting her with boxing gloves so she would not injure herself with her hands. However, gloves were never even tried because she had no money in her account. Pl.Ex. 33. The use of restraint on Mary W. in this manner is a substantial departure from professional judgment which the Secretary has not attempted to explain. Pl.Ex. 42 at 6, # 5; Tr. 39, 42, 47, 48, 50, 51. Formerly a member of the Willie M class, class member Fred S. is now twenty-one years old and is in Dix Hospital. Since there is no adequate behavioral training to stop his assaultive behavior, the staff continues to seclude and mechanically restrain him when he acts aggressively. He was secluded and restrained almost sixty percent of the days he has been at Dix. The average time in seclusion on those days has been 2.9 hours. For almost all of the time he was secluded, he was restrained (usually four-point restraint — spread-eagled). During one two-week period, Fred S. was secluded for eleven of fourteen days with an average seclusion period for each of 6.4 hours. The Secretary has failed to explain this excessive use of seclusion and mechanical restraint and has failed to provide class members with adequate training to overcome the behavior problems that trigger it. See Section II.B.7, infra. 5. Unnecessary Confinement Many of the plaintiffs have been unnecessarily confined in locked wards of psychiatric hospitals for lengthy periods of time, despite a professional consensus that they need not be locked up in that way even if they have some mental illness or behavior problems and notwithstanding the recommendations of individual treatment professionals that they be placed in less restrictive environments in the community. Pl.Ex. 44 at 2-3; Pl.Ex. 43 at 2, 24-25, 36; Pl.Ex. 46 at 29. i. Locked Wards. In the four state psychiatric hospitals where mentally retarded persons are housed, almost all of the wards are locked, at least for part of the day, and movement within the wards is contained by staff. Pl.Ex. 41 at 4; Tr. 26, 107. Many class members on locked wards could live in a more open setting if such were available. Glenn Dep. at 32, 110-11. ii. Institutional Confinement. The evidence established that psychiatric stabilization normally takes approximately twenty-one days and that behavior stabilization normally takes thirty to one hundred and twenty days. Pl.Ex. 45 at 21; Pl.Ex. 6. Class members, however, stay an average of ten years in the state psychiatric institutions. Pl.Ex. 42 at 7, # 1(b); Tr. 70. At Cherry Hospital, the average class member has been confined for twenty-five years. Tr. 70; Pl.Ex. 14. At Dix Hospital, almost half of the class members have been confined for over fifteen years. Pl.Ex. 42 at 7, #2. No attempt was made by the Secretary to justify such lengthy hospitalizations or to explain regional differences. The Secretary’s agents admit that many class members have been hospitalized much longer than is appropriate for them and that many others should not be there at all. Pl.Ex. 46 at 29. Like the original named plaintiff, Thomas S., many mentally retarded persons who are now at the state psychiatric institutions do not need to be institutionalized even if they also have mental illness or behavior disorder. Pl.Ex. 44 at 2-3; Def.Ex. 16 at 92; Glenn Dep. at 128-29. The North Carolina Mental Health, Mental Retardation, and Substance Abuse Act of 1985 authorizes involuntary commitment of persons who are mentally ill and dangerous to themselves or others, or who are mentally retarded and have a behavior disorder and are dangerous to themselves or others. N.C.Gen.Stat. § 122C-261 (1986). However, the Secretary has involuntarily confined persons who do not in fact meet this standard. Tr. 239, 255. As in the ease of Thomas S. himself, such institutional confinement results from an absence of appropriate alternatives and is not based on professional judgment. Tr. 115-17; Pl.Ex. 44 at 4. There are 238 class members incarcerated in the psychiatric institutions on what is termed a “voluntary” status, but the facts indicate that their confinement is not truly voluntary. Some have been “volunteered” into the institution by a guardian, just as was Thomas S., including some who have no mental illness. Tr. 256. Others do not have a guardian, but have signed themselves into the institution. Many of these have mental retardation to such a degree that they cannot exercise informed consent to make such an important legal decision. Pl.Ex. 42 at 8, ## 7-11; Tr. 25, Pl.Ex. 39. They have purportedly signed themselves in even though they did not know what they were signing. Tr. 241; Pl.Ex. 39. Some class members are involuntarily committed following a court hearing because they have no place else to go. Class members’ appointed counsel have stipulated that their clients meet the commitment standard even when they do not, because the attorney knows that a discharge from the hospital would result in the person being dumped into the streets with no place to go. Tr. 251-52. Judges have committed class members while acknowledging that the decision is made for humanitarian reasons even though the legal standard has not been met. That is what happened in the case of class member Phillip B. Id.; Pl.Ex. 27. In a few cases, again because there was no place else to go, class members have been held at the hospital, in some cases for years, following a court decision that they be discharged. Pl.Ex. 42 at 7-8, ##4-6. Class member Jacob B. has been kept at Cherry Hospital since 1960, even though the Secretary’s professionals think that he should have been released into the community many years ago and probably should never have been in the institution in the first place. Pl.Ex. 43 at 21. When intervenor Jeanette H. entered Dorothea Dix Hospital in 1981, it was recognized by her treating professionals that she needed a supervised living situation in the community. Such a setting was not available. In June of 1983, Jeanette’s treatment team continued to recommend placement in a group home with a sheltered workshop program for Jeanette. Jeanette’s treatment plan of December 20,1983, recognized that she “possesses all the necessary skills for semi-independent living outside the institution.” Jeanette continued to be confined in the institution for three more years, despite this recommendation by her treating professional. Pl.Ex. 31 at 2, 6-7. At Broughton Hospital, there are at least eleven class members on Ward 36, twelve on Ward 37, five on Ward 10, and seven on Ward 11 for whom group home or family care placement in the community has been recommended but not implemented. Pl.Ex. 21. With regard to named plaintiff Todd C., it was recommended by mental retardation professionals that community residential facilities that are less restrictive than Dorothea Dix Hospital, and which offer vocational opportunities and appropriate structure including behavior management, strategies, and instructional strategies be tried. Pl.Ex. 29 at 2. Again in January of 1986, Todd C.’s treating physician recommended that he be placed in a less restrictive setting within twelve months. He was finally placed in a community based residential program on December 4, 1987, almost two years later. 6. Association/Access to Community Thirty-three percent of institutionalized class members have little or no social interaction. Pl.Ex. 42 at 7, #la. Many are desperate for the attention and affection which they are not getting in the institution. Tr. 89. According to the Secretary’s expert Smull, mentally retarded persons have a higher sense of self-worth and self-esteem when they feel that they are part of the community. A person’s self-esteem is essential for habilitation. Adequate involvement in community activities for mentally retarded persons consists of being as involved as that individual is capable of being at the time. Pl.Ex. 45 at 11-12, 17. Most class members in the state psychiatric institutions have inadequate access to community activities. Pl.Ex. 41 at 17-18; Pl.Ex. 45 at 33. The court’s findings concerning unnecessary confinement are also relevant to the issue of access to the community. Class members are forced to associate almost exclusively with other institutionalized mentally disabled people along with staff members on revolving shifts. Pl.Ex. 41 at 17-18. In many cases, this forced association is unnecessary and does not reflect the exercise of professional judgment; instead, it is a function of the location, design, and size of the facilities. Id. State psychiatric institutions are like ghettos for persons with mental handicaps. The lack of access to the outside world gives the feeling of being in prison. Pl.Ex. 46 at 16. Class member Calvin A. at John Umstead Hospital likes to run away, go uptown to a restaurant and get himself a sandwich and a cup of coffee. His treatment plan was designed to discourage and prevent this access to socializing in the community. Def.Ex. 16 at 177. 7. Habilitation For class members, “minimally adequate training” within the meaning of Youngberg requires the Secretary to offer reasonable habilitation services. 457 U.S. at 317, 102 S.Ct. at 2458. The Secretary’s experts concur with those of plaintiffs that minimum professional standards require developmentally oriented “habilitation” for persons with mental retardation. Pl.Ex. 44 at 12, 22; Pl.Ex. 41 at 19; Tr. 31, 145; Glenn Dep. at 27. “Habilitation” is the process of helping a person with mental retardation to acquire needed self-care skills. The term refers specifically to the needs of mentally retarded individuals. Tr. 30, 89-90, 294-95; Youngberg, 457 U.S. at 309 n. 1, 102 S.Ct. at 2454 n. 1. Developmental habilitation leads persons through stages of human development to increase their capacity for living more independently. Glenn Dep. at 26. All class members, including those who also have mental illness, are entitled to developmental habilitation. Pl.Ex. 41 at 4-5, 18. i. Individual Evaluations and Treatment. The first condition of providing appropriate habilitation is a good interdisciplinary evaluation. The Secretary’s professionals and plaintiffs’ experts agree that adequate assessment of the individual needs of each class member is an essential prerequisite. Pl.Ex. 15; Glenn Dep. at 20, 54-55, 64; Tr. 34, 146, 325; Pl.Ex. 43 at 33-34; Pl.Ex. 44 at 11. For the great majority of class members, however, there is no interdisciplinary assessment, and those that do occur are inadequate. Pl.Ex. 45 at 38; Glenn Dep. at 37, 46, 49, 53-55, 60; Pl.Ex. 41 at 5, 13, 16. The Secretary has failed to treat each class member as an individual with unique needs. Instead, class members are placed in existing programs that are the same for everyone, regardless of need. This is a substantial departure from minimally acceptable professional standards for treatment of mentally retarded persons. Pl.Ex. 15; Tr. 32, 145, 325; Glenn Dep. at 14, 20, 32, 65; Pl.Ex. 41 at 4, 13, 16-17. ii. Trained Staff. Properly trained staff are also a prerequisite to providing developmental habilitation. Tr. 38; Pl.Ex. 44 at 16-17; Pl.Ex. 27; Pl.Ex. 45 at 38-39. In the state psychiatric hospitals, trained staff are not available for class members, particularly on general psychiatric units, where the vast majority of class members reside. Glenn Dep. at 35-36; Pl.Ex. 45 at 38-39; Tr. 38. One reason for the Secretary’s failure to provide properly trained staff is the medical rather than developmental orientation of the state mental hospitals. Glenn Dep. at 26-27; Pl.Ex. 41 at 11. In the words of the assistant clinical director at Cherry Hospital, “[w]e are not in the business of treating with the adult developmental model.” Tr. 556. Since mental retardation is not a medical problemr medical training by itself does not qualify a person to work as a mental retardation professional. Tr. 138, 407-08. Many of the staff in state psychiatric hospitals who are deciding the fate of class members are not trained to be mental retardation professionals. Pl.Ex. 45 at 38-39. iii. Inhumane Living Conditions. Humane living conditions are a prerequisite for habilitation. Pl.Ex. 41 at 4. Many class members are subjected to inhumane living conditions in state psychiatric institutions, including: overcrowding; total lack of personal space and privacy; inadequate furnishings and clothing; aesthetically barren physical surroundings; and endless days of boredom without variation. Pl.Ex. 43 at 4, 35; Pl.Ex. 41 at 4,14-16; Pl.Ex. 45 at 33; Tr. 25-27. Keeping mentally retarded people in such living conditions represents a substantial departure from minimally acceptable professional standards. Glenn Dep. at 31-32; Pl.Ex. 41 at 4. iv. Abnormal Environment. Professionals unanimously agree that mentally retarded persons need to be treated in as normal a setting as possible. Tr. 66, 145; Pl.Ex. 44 at 22; Pl.Ex. 45 at 34. Access to ordinary activities is essential for learning. Mentally retarded adults learn and grow through observing and participating in the commonplace events of daily life. Glenn Dep. at 32, 73; Pl.Ex. 41 at 28; Tr. 31-32. Class members are more likely to learn independent living skills in a family-type situation where there is continuous and constant opportunity to practice those skills than in an institution. Tr. 32; Pl.Ex. 43 at 54; Pl.Ex. 44 at 13; Pl.Ex. 45 at 24-26. The state psychiatric institutions provide very abnormal living environments. Tr. 31; Pl.Ex. 45 at 36. As a result, treatment of class members is seriously compromised. Within the state psychiatric hospitals, there are not enough structured activities to keep class members from developing inappropriate behaviors or losing independent living skills in the abnormal institutional environment. They learn to live in an institution, and their ability to be integrated into the community and adapt to community life deteriorates. Glenn Dep. at 44-46, 132; Tr. 90; Pl.Ex. 43 at 26-27. Mentally retarded persons learn by observation, but they do not always have the insight to distinguish appropriate from inappropriate behavior. Thus, when class members are confined with mentally ill people, they copy the social behavior of the mentally ill patients. This is called modeling. It further harms the class members and further reduces their chances of living in a normal setting. Glenn Dep. at 32-33; Pl.Ex. 41 at 4; Pl.Ex. 43 at 45-56; Pl.Ex. 46 at 15. For example, in April, 1986, the attending psychiatrist of named plaintiff Jeanette H. found that Ms. H.’s behavior problems were caused by the fact that she was a retarded person residing within a hospital geared to treat the mentally ill. Pl.Ex. 31 at 31. By January, 1987, this psychiatrist recognized that Jeanette’s behavior while residing within the hospital was chaotic, but that when she attended her sheltered workshop assignment in the community, she was “one of the best residents in attendance there.” Pl.Ex. 31 at 46. v.Unavailable Services. There is no dispute that class members need developmental training and structured programs. This includes, for example, training in basic self-care skills, community living skills, speech therapy, and vocational services. Pl.Ex. 43 at 3, 11-13, 20; Pl.Ex. 45 at 15, 32, 34, 39. Because vocational activities are often a key to greater independence and enjoyment of liberty, they are for most class members an essential service to avoid unnecessary restraint. Pl.Ex. 42 at 10, # 6. However, vocational services are not available to most class members. Pl.Ex. 19 at 3. Adequate programs for speech, behavior, and self-care skills also are not available. Pl.Ex. 43 at 18; Glenn Dep. at 43-44, 49, 55, 60; Pl.Ex. 43 at 15. Class members have little, if any, hope of maintaining or improving their self-care skills because they are not offered treatment designed for the learning disabled. Pl.Ex. 42 at 10, #6, and at 11, ##1-3. Class member Jacob B. was at Cherry Hospital for twenty-two years. He never went to school there. He is described as mentally disturbed because he talks to his fingers out of boredom and loneliness. Pl.Ex. 43 at 28. He does very well in structured activity but does not get what he needs, according to Secretary’s experts. The Secretary terminated a greenhouse program he was in. Pl.Ex. 43 at 19. Other programs serving class members also have been terminated by the Secretary without regard to the needs of the clients. Pl.Ex. 43 at 2. vi. Behavior Problems. As was true in the case of Thomas S., many class members have behavioral problems which make them difficult to treat. As was true for Thomas S., however, this difficulty does not excuse the Secretary from providing appropriate placement and services. This court has already stated that “[pjeople with problems are rarely easy to deal with. If plaintiff were ‘normal,’ then he would not need the treatment the professionals say he needs.” Thomas S., 601 F.Supp. at 1058. The Secretary’s professionals admit that if a class member has a behavior problem, a specific plan should be developed and implemented to reduce the inappropriate behavior by teaching him or her appropriate social behaviors. Pl.Ex. 44 at 12; Pl.Ex. 45 at 24-26; Tr. 417. For the vast majority of class members, this has not been done. Pl.Ex. 42 at 11, # 5; Glenn Dep. at 22, 24-25, 31; Pl.Ex. 41 at 13-15, 17, 18a; Pl.Ex. 43 at 15; Pl.Ex. 46 at 15; Tr. 496; Pl.Ex. 42 at 6-7. Intervenor Jeanette H. responded well to a token economy program in 1984, but it was discontinued for reasons unrelated to her needs. Pl.Ex. 31 at 28. Intervenor Todd C.’s examining physician found that his adaptive level of functioning was “under this patient’s potential due to lack of resources to control behavioral disorder. A structured environment and residential active treatment in a M.R. [mental retardation] program should improve his level of functioning and production.” Pl.Ex. 30 at 2. This was not provided until very recently. vii. Deterioration and Loss of Self-Care Skills. People with mental retardation have a problem maintaining the skills that they have. There is a significant risk that unless attention is paid to class members’ developmental and habilitation needs, their skills will atrophy and they will regress. Pl.Ex. 44 at 18-19. Some class members have suffered a significant deterioration in the self-care skills they possessed when they were first admitted to the state’s care. Some class members have been denied appropriate habilitation for so long that the Secretary has labeled them institutionalized and given up hope for them. Pl.Ex. 6 at 4. Magdeline S. has been at Dix Hospital since 1930 when she was eleven years old. The Secretary admits that she is so “institutionalized” and “regressed” that community placement is considered by staff to be unrealistic in the absence of an appropriate mental retardation facility. Pl.Ex. 34; Pl.Ex. 42 at 9, ## 4(d)(1) and (2). Class member William D. was admitted to Broughton Hospital in 1958. He was able to speak and make statements to the hospital interviewer when he was admitted. By 1985, however, Mr. D. had regressed to the point that he was considered to be nonverbal, and efforts to find a community placement for him were terminated. Pl.Ex. 37. Another class member, Mary W., cannot feed herself at all. However, the records clearly show that in 1946 she only needed to be spoonfed “at times.” Because of her self-abusive behavior, she was tied down for extensive periods of time. Tr. 48. Her legs have therefore atrophied so that she can no longer walk. She contracted tuberculosis in 1969 while in the hospital. She is now virtually mute, uttering two to four stereotyped, “parrot-like” words or phrases over and over. The Secretary’s failure to provide adequate evaluations, staff, humane and normal living conditions, and developmental and behavior programming is a record of failure to exercise professional judgment, making it clear that the state has not provided the professionals with minimally adequate resources for habilitation for plaintiffs. 8. Lack of Adequate Community Services The system administered by the Secretary is plagued by a severe lack of community resources for plaintiffs. This drought of community services results in the unnecessary confinement of class members in highly restrictive settings for lack of another place to go, just as it did for Thomas S. Pl.Ex. 44 at 4, 30; Pl.Ex. 46 at 9-10; Tr. 123. This is true even when legal criteria for hospital admission are not met. Pl.Ex. 27; Tr. 128-29. It also frustrates the exercise of professional judgment by mental health and mental retardation professionals who become discouraged by the futility, year after year, of recommending services that do not exist. Tr. 115-17; Pl.Ex. 42 at 9-10, # 3; Pl.Ex. 46 at 9-10. Minimum standards require that plans be in place for moving class members to increasingly normal settings. Pl.Ex. 41 at 5; Pl.Ex. 15. For many class members, this planning has not been accomplished. Glenn Dep. at 42, 56, 63-64; Pl.Ex. 9; Pl.Ex. 41 at 6, 7, 8, 16. Dix Hospital has a recently adopted policy to discharge patients who are admitted for mental retardation with behavior disorder to the community or to O’Berry Mental Retardation Center within ninety days if at all possible.- Tr. 364. However, the policy is not implemented because community programs are limited and O’Berry Center is full. Tr. 411-12. In Mecklenburg County, hundreds of people are waiting to get into group homes. In Madison County, there are no group homes. Pl.Ex. 46 at 12. Placement of mentally retarded adults in rest homes does not meet minimally acceptable professional standards, according to mental retardation professions within the state and without. Pl.Ex. 46 at 12-13; Tr. 124-25. Yet many institutionalized class members, including Margaret R., have previously been placed in rest homes. A task force report of the Secretary noted in 1982: As it is now, many severely and profoundly mentally retarded clients are medicated — some heavily — and put in rest homes because they are not admitta-ble to mental retardation care services, but the rest home may be a less appropriate place for them in terms of their needs. Pl.Ex. 6 at 5. The historic reliance on rest home placement with little or no follow-up perpetuates the “revolving door” readmissions of mentally retarded people to the state psychiatric institutions. Pl.Ex. 41 at 18. Plaintiff Jeanette H. was admitted to Dix in 1978 for behavior problems related to the fact that she could not live at home and the lack of adequate community placements. She had been put in several inappropriate rest homes which offered no developmental or behavioral programming at all and where she e