Full opinion text
TABLE OF CONTENTS Pages Introduction. 1249 I. Institutionalization and Community Services in New Mexico. 1250 II.History of Litigation. 1251 III. The Parties A. Plaintiffs. 1252 1. Walter Stephen Jackson. 1253 2. Mildred Tsosie . 1253 3. Clinton Heath. 1253 4. Shawn Heath . 1253 5. Steven Nunez. 1253 6. Mary Katherine Nowak. 1253 7. Andra Martinez. 1254 8. Lillian Willmon. 1254 9. Joseph Gonzales. 1254 10. Alfred Shirley. 1254 11. James Fritche. 1254 12. Sean McHenry. 1254 13. Betty Young. 1254 B. Intervenors. 1254 C. Defendants. 1254 D. The Class . 1257 IV. ICF/MR Surveys and Department of Justice Lawsuit. 1258 V.Findings of Fact. 1259 A. Food. 1259 1. Nutritional Management. 1259 2. Food Temperatures. 1259 3. Food Handling Practices. 1260 B. Clothing. 1260 C. Environmental Conditions. 1260 1. Living Areas. 1260 2. Asbestos. 1260 3. Pest Control. 1261 4. Lighting and Ventilation. 1261 5. Fixtures. 1261 6. Sanitation Practices . 1261 7. Fire Safety. 1261 D. Medical Care. 1261 1. Medical Staff. 1261 2. Infectious Diseases and Mortality Rates. 1263 3. Medications. 1263 4. Dental Care. 1263 5. Medical Records. 1263 E. Habilitation/Active Treatment. 1265 1. Assessments. 1265 2. Interdisciplinary Team (“IDT”). 1266 3. Individual Program Plan (“IPP”). 1266 4. Long-term View. 1267 5. Discharge Plan. 1267 6. Data Collection. 1268 7. Qualified Mental Retardation. 1268 Professional (“QMRP”) 8. Active Treatment. 1269 a. LLH & TS. 1269 b. FSH & TS. 1270 9. Behavior Management. 1271 a. LLH & TS. 1271 b. FSH & TS. 1272 F. Restraints. 1272 1. Chemical Restraints. 1272 2. Physical Restraints. 1273 G. Regression . 1274 H. Safety and Physical Harm . 1275 1. Abuse. 1275 2. Accident and Injury. 1275 3. Reports. 1276 I. Direct Care Staff. 1276 1. Insufficient Staff and Inadequate Supervision. 1277 2. Staff Training. 1277 a. Preservice Training. 1277 b. In-Service Training. 1278 J. Professional Staff. 1279 1. Insufficient Staff. 1279 2. Professional Staff Training. 1280 3. Rehabilitation Services. 1280 a. Physical Therapy (“PT”). 1282 i. Staffing. 1282 ii. Adequacy of Physical Therapy Services . 1282 b. Occupational Therapy (“OT”).'. 1283 O AdOOCCTYlOTlfc! 1 /¿X4 4. Speech and Services 5. Adaptive Equipment. 1285 K. Education . 1286 1. School-Age Programs . 1286 a. Public Schools. 1286 b. Special Education Program at LLH & TS. 1287 2. Adult Services Programs . 1287 3. Adequacy of the Facilities’ Programs . 1288 a. Functional and Chronologically Age Appropriate Programs ... 1288 b. Coordination between Cottage and Education Programs. 1289 c. Space. 1290 L. Choice, Privacy, Access to Personal Property . 1290 1. Choice. 1290 2. Privacy. 1290 3. Access to Personal Property. 1290 4. Respect. 1290 5. Access to the Community. 1290 M. Placements. 1291 1. LLH & TS. 1291 2. FSH & TS. 1291 3. Commitment Process. 1292 N. Implementation of Recommendations for Community Placement. 1292 1. IDT Recommendations. 1292 2. Recommendations Based on Availability. 1293 3. State Court Orders for Community Placement. 1294 4. Lack of Available Alternatives to Institutionalization. 1294 VI. Conclusions of Law. 1296 A. Statutory Claims. 1296 1. Rehabilitation Act. 1296 a. Discrimination. 1298 b. Segregation . 1299 2. Social Security Act. 1299 a. Deficiencies. 1300 b. Application of Title XIX. 1301 3. Education of the Handicapped Act. 1302 a. Exhaustion of Remedies . 1303 b. LLH & TS. 1304 c. FSH & TS. 1304 B. Constitutional Claims. 1304 1. Substantive Due Process . 1305 a. Food, Shelter & Clothing. 1305 b. Medical Care. 1306 c. Reasonable Conditions of Safety. 1306 i. Abuse. 1306 ii.Accident and Injury. 1306 d. Freedom from Unreasonable Restraints. 1307 i. Chemical Restraints . 1307 ii. Physical Restraints. 1307 e. Minimally Adequate Training. 1307 i. IDT Process . 1307 ii. IPPs. 1308 iii. Training Programs . 1308 iv. Implementation of IPPs . 1308 v. Rehabilitation Services. 1308 vi. Professional Staff. 1309 vii. Behavior Management. 1309 f. Regression. 1309 g. Community Placement . 1310 i. IDT Recommendations for Community Placement. 1310 ii. IDT Determinations Based on Unavailability of Community Services. 1312 iii. No IDT Recommendation for Community Placement. 1312 2. Procedural Due Process. 1313 3. Equal Protection Clause. 1314 C. Claims for Attorneys’ Fees. 1314 VII. Relief. 1315 MEMORANDUM OPINION AND ORDER PARKER, District Judge. This is a civil rights action challenging the institutionalization of developmentally disabled persons at Fort Stanton Hospital and Training School (“FSH & TS”) and Los Lunas Hospital and Training School (“LLH & TS”), two state-supported institutions for the developmentally disabled in New Mexico. This litigation centers on the area of developing law concerning the rights of the developmentally disabled. It also concerns the constitutional powers of and constraints on federal courts that are asked to grant relief when political branches of state government are perceived as moving too slowly to improve the welfare of the developmentally disabled. Plaintiffs seek declaratory and injunctive relief. The substantive relief sought arises in the context of the Constitution of the United States and certain federal statutes, including the Rehabilitation Act of 1973, the Education of the Handicapped Act and the Social Security Act. In a trial of numerous weeks duration spread over two and one half years, which included several evidentiary hearings on plaintiffs’ requests for expedited, extraordinary relief, plaintiffs challenged the conditions at the institutions. They adduced evidence on a number of specific programs and practices, and seriously called into question the validity of institutional life itself. To that end, plaintiffs offered the testimony of numerous experts on the issue of whether an individual’s habilitation can ever be provided, in a constitutionally permissible manner, in the traditional institutional setting as opposed to a community setting. The relief that plaintiffs ultimately seek is a determination that their right to habili-tation necessarily requires their receiving habilitation in integrated community settings, because effective habilitation cannot be provided to persons with developmental disabilities unless they are permitted to live in the community with nondisabled persons. While the vast changes plaintiffs seek to make in the lives of the developmentally disabled in New Mexico are highly commendable, some of the relief sought is beyond this court’s constitutional power to order and is being requested from the wrong branch of government. This court has reviewed the volumes of depositions, exhibits and other evidence in an effort to arrive at a just resolution of the plaintiffs’ claims. Institutional reform cases of this nature require courts to venture into areas foreign to their traditional expertise — including the fields of medicine, psychiatry and education — an excursion which this court takes with some trepidation. I. Institutionalization and Community Services in New Mexico The rate of institutionalization in New Mexico is within the national norm. In 1977, an average of 67.42 persons per one hundred thousand resided in large state institutions for the developmentally disabled in the United States. By 1988, the national average was 37.2 individuals per one hundred thousand. By comparison, in 1977, the rate of institutionalization in New Mexico was 48 individuals per one hundred thousand. The rate of institutionalization decreased to 32.7 per hundred thousand in 1988. Tr. 4/10/90 at 59-61 (Sandler); Def. Exh. VVV. The number of persons with developmental disabilities residing in state-operated institutional facilities across the nation has declined. Between 1984 and 1988, there was a 16.6% decrease in the population of state institutions nationwide. The national census of institutionalized developmentally disabled persons in 1987 dropped below 100,000 to 95,600 for the first time since 1940. In New Mexico, however, the institutional population increased by 1.6% during the same period. Pl.Exh. 365 at 13. In 1984, New Mexico enacted legislation for the establishment of a system for community care of the developmentally disabled, the “Developmental Disabilities Community Services Act.” § 28-16-1 et seq. NMSA 1978 (1987 Repl.). The Act contains a separate section which defines the legislative purpose for its enactment as follows: It is the purpose of the legislature in enacting the Developmental Disabilities Community Services Act ... to authorize the health and environment department to plan and coordinate developmental disabilities community services in the state and to declare that priority shall be given to the development and implementation of community-based services for developmentally disabled minors and adults, which will enable and encourage such individuals to achieve their greatest potential for independent and productive living, which will enable them to live in their own homes and apartments or in facilities located within their own communities and which will assist clients to be diverted or be removed from unnecessary institutional placement. § 28-16-2 NMSA 1978 (1987 Repl.) (emphasis added). The Developmental Disabilities Bureau of the New Mexico Health and Environment Department is the primary funding source for community programs serving persons with developmental disabilities. Def.Exh. CCC at 3. It contracts with approximately thirty-one private agencies to provide community based services to persons with developmental disabilities. Def. Exh. CCC at 4. During the 1989-90 fiscal year the state of New Mexico served approximately 480 persons in group homes, companion homes, and supported living environments. Id. In each of the last several years, New Mexico has increased funding for community programs. Tr. 4/11/90 at 278 (Bergman). In fiscal year 1989, the Developmental Disabilities Bureau received approximately $11 million dollars in funds for community programs. Tr. 4/2/90 at 146 (Foley); Def.Exh. CCC at 68. This figure represents an increase by the legislature of thirty percent from the previous budget. Tr. 4/2/90 at 146 (Foley). Approximately, twenty five percent of the budget is earmarked for residential services. Def.Exh. CCC at 68. Id. The funding for the two state institutions has also increased, although the rate of increase has been greater for community programs. Tr. 4/11/90 at 278 (Bergman). The State of New Mexico continues to provide care in institutional settings for 345 residents of LLH & TS and 149 residents of FSH & TS notwithstanding the preference for community based care expressed by the legislature six years ago. II. History of Litigation On July 8, 1987 twenty-one individual developmentally disabled citizens of New Mexico, on behalf of themselves and other similarly situated individuals, and the Supporters of Developmentally Disabled New Mexicans, Inc. commenced this lawsuit “to redress the unconstitutional and illegal conditions” at Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School. Jackson, et al. v. Fort Stanton, et al., No 87-839, complaint at 1-2 (D.N.M. July 8, 1987). On December 10, 1987, plaintiff Ronald Fuller applied for a temporary restraining order seeking to restrain defendants LLH & TS, Health and Environment Department, Department of Education, and various state officials from preventing plaintiff’s enrollment in Los Lunas Public Schools and directing Los Lunas Public Schools to enroll plaintiff and immediately to devise an appropriate individual education program for him. I held hearings on the application for temporary restraining order on December 11, and December 28, 1987. I entered a restraining order on January 15, 1988 requiring that LLH & TS conduct a comprehensive evaluation and individual assessment of Mr. Fuller by qualified independent evaluators and that Los Lunas Public School District convene an Educational Appraisal and Review Committee meeting to consider whether and to what extent enrollment of Ronald Fuller in the Los Lunas Public Schools could be satisfactorily achieved. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 15-16 (D.N.M. Jan. 15, 1988). On February 4,1988, the Los Lunas Public School District agreed by stipulation to integrate Ronald Fuller into the public school environment. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 15-16 (D.N.M. Feb. 4, 1988). Ronald Fuller has since been discharged from LLH & TS and currently resides with his family in Hobbs, New Mexico. Motions for attorneys fees and costs relating to Ronald Fuller's quest for a public school education remain pending for later determination by this court. On August 5, 1988, plaintiffs moved to amend the complaint to add the claims of twenty-three individuals who at the time were residents of Las Vegas Medical Center (“LVMC”), a state psychiatric institution. Those twenty-three plaintiffs alleged that they were both developmentally disabled and mentally ill and that LVMC provided for their mental illnesses, but did not provide habilitation and training services for their developmental disabilities. I granted the motion and the names of the twenty-three individuals were added to the complaint. These plaintiffs are: Virgil Addison, Roberto Atilano, Felicia Botello, Joseph Baca, Melinda Conway, Daniel Garcia, Viola Gurule, Thomas Harkins, Robert Hynes, Damon Keeswood, Sharon Koons, Garry Martinez, Jose Martinez, Robert McHenry, Marcelino Moya, Ted Nichols, Margaret Romero, Loriann Strickland, Beth Thomas, Albert Vasquez, Edwin Vasquez, Benito Arguello, and Benjamin Romero. Subsequently, plaintiffs applied for a temporary restraining order on behalf of those plaintiffs who were still housed at LVMC. Hearings were held on the plaintiffs’ application for a TRO on August 8, 9, 10, 12, 13, and 15, 1988, and culminated in the entry of a preliminary injunction on September 23, 1988 requiring defendants within 30 days to perform assessments of all plaintiffs residing at LVMC and within 60 days to prepare individualized treatment plans for every plaintiff determined to be developmentally disabled. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 15-16 (D.N.M. Sept. 23, 1988). On November 11, 1988, plaintiffs filed a Motion for an Order to Show Cause and for Further Extraordinary Relief claiming that defendants had failed to comply with the order that had been entered September 23, 1988. After holding evidentiary hearings on December 22, 1988, January 16, 1989, and March 27 and 28, 1989, I denied the motion. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. (D.N.M. May 23, 1989). Many of the twenty-three LVMC plaintiffs had been transferred to the New Mexico institutions or to out-of-state facilities for treatment under contractual arrangements with the state of New Mexico. Of the twenty-three plaintiffs who were residing at LVMC in August 1988, twelve have been transferred or otherwise discharged, one is deceased, and the remaining ten continue to reside at LVMC. However, the ten remaining at LVMC have presented no further evidence nor have they requested further relief at subsequent hearings. On October 16, 1989, the main trial on the merits commenced. The main trial was held over an eight week period and proceeded in trial segments as follows: October 16, 1989 — October 19, 1989; October 30, 1989 — November 3, 1989; November 13, 1989 — November 16, 1989; December 12, 1989 — December 15, 1989; January 2, 1990 — January 5, 1990; April 2, 1990— April 27, 1990. In the course of the trial, numerous witnesses testified and over eight hundred exhibits were admitted as evidence. Over 10,000 pages of transcripts were recorded. Following the trial, I toured LLH & TS and FSH & TS for the second time, from April 30, 1990 through May 4, 1990, with the court-appointed expert. I had visited the facilities for the first time in the early part of August 1989. In June 1990, I also visited and inspected a community program in Durango, Colorado, and a sheltered workshop and a specialized community behavior management program in Albuquerque, New Mexico. III. The Parties A. Plaintiffs Plaintiffs seek the expansion of community services for the developmentally disabled and the transfer of the residents of LLH & TS and FSH & TS to community residential settings. Evidence was presented on thirteen named plaintiffs who reside at LLH & TS and FSH & TS. These thirteen named plaintiffs will be the representatives of the subclass certified on May 23, 1989 that seeks community placement. The backgrounds of the thirteen named plaintiffs are briefly summarized below. 1. Walter Stephen Jackson Walter Stephen Jackson, age 29, is profoundly retarded, has a seizure disorder, and suffers from spastic choreoathetoid quadriparesis. Pl.Exh. 18 at 1-2. Mr. Jackson receives anti-convulsant and anti-seizure medications. Id. at 2. Mr. Jackson was admitted to LLH & TS in 1967, at the age of 6, due to his mother’s poor health and a lack of financial resources. Tr. 4/2/90 at 36. He currently resides in Cottage 2. Pl.Exh. at 1. Mr. Jackson’s family would like for him to live in a community setting. Tr. 4/2/90 at 45-46 (Jackson). The interdisciplinary team, however, has advised Mr. Jackson’s family that because no suitable alternative exists, it has recommended that he remain at LLH & TS. Tr. 4/2/90 at 78-79 (Jackson). 2. Mildred Tsosie Mildred Tsosie, age 25, is profoundly retarded, microcephalic, blind and nonambu-latory. She has cerebral palsy, seizures, contractures, and a severe scoliosis with a windswept deformity of her legs and a severe supination of her forearms. Also, she does not speak and she has a moderate hearing loss. Ms. Tsosie is fed by a gas-trostomy tube. Pl.Exh. 21 at 1, 2, 4, 8; Pl.Exh. 96 at 9-10. She was admitted to LLH & TS in 1973 and currently resides in the Chavez West Building. Id. at 1. The interdisciplinary team has recommended that other placement be explored for Ms. Tsosie that will meet her overall developmental and medical needs. Pl.Exh. 21 at 10. 3. Clinton Heath Clinton Heath, age 28, was admitted to LLH & TS in 1971. He is profoundly retarded and nonambulatory, and he has Coffin-Lowry Syndrome and a severe, fixed kyphoscoliosis of the spine. Pl.Exh. 16 at 1, 2, 4, 8, 10. Clinton Heath resides in Cottage 2. Id. at 2. His interdisciplinary team has not recommended Clinton Heath for community placement. The team determined that Clinton Heath “requires an ICF/MR facility that can meet his medical, self-care and active treatment needs and one that accepts clients who are in wheelchairs and are profoundly retarded.” However, “there are no facilities available in New Mexico to meet his needs. If and when one should become available, Clinton would be considered for referral.” Pl.Exh. 16, IPP of 1/5/89 at 16. 4. Shawn Heath Shawn Heath, age 27, is Clinton Heath’s brother. He is profoundly retarded and nonambulatory. Like his brother, Shawn Heath was diagnosed as having Coffin-Lowry Syndrome. He also suffers from recurrent conjunctivitis and chronic constipation. Pl.Exh. 17 at 1, 2, 4, 6, 10. Shawn Heath was admitted to LLH & TS with his brother in 1971 because his family was no longer able to care for the boys at home and the cost of outside care placed a financial strain on the family. Id. at 1. Shawn Heath also resides in Cottage 2. His interdisciplinary team has not recommended community placement. Pl.Exh. at 16. 5. Steven Nunez Steven Nunez, age 25, was admitted to LLH & TS in 1973. He is profoundly retarded, and has spastic quadriparesis. In 1987, Mr. Nunez had orthopedic surgery to increase his potential for ambulation and he now ambulates with leg braces and a stride walker. He occasionally experiences problems with rumination, which is addressed in his programming. Pl.Exh. 19 at 1-2, 6-7, 9-10. Mr. Nunez resides in Cottage 2. He has been referred by his interdisciplinary team for community placement. Id. at 1, 18. 6. Mary Katherine Nowak Mary Katherine Nowak, age 34, was first admitted to LLH & TS in 1964 at age 7.She was subsequently transferred to the Las Vegas Medical Center, a state mental hospital, where she remained until age 22 when she was readmitted to LLH & TS. She currently resides in Cottage 4. Ms. Nowak is moderately retarded with a psychiatric diagnosis of atypical psychosis. PI. Exh. 20 at 1, 6, 7, 8. Her interdisciplinary team determined that Ms. Nowak is capable of doing very well in a group home. Pl.Exh. 20, IPP 7/24/89 at 12. 7. Andra Martinez Andra Martinez, age 37, resided at the Las Vegas Medical Center from age eleven until her admission to LLH & TS in 1979. She currently resides in Cottage 6. Ms. Martinez is profoundly retarded, has autistic traits, and has a seizure disorder. PI. Exh. 27 at 1, 2, 8. She has been referred by her interdisciplinary team to community residential programs “for possible future opportunity to live in a less restrictive environment as her skills improve.” Id. at 8. 8. Lillian Willmon Lillian Willmon, age 71, was admitted to LLH & TS in 1939. She is profoundly retarded and nonambulatory and she has spastic quadriplegia, kyphosis, arthritis and contractures of all extremities and trunk. Ms. Willmon is considered to be nonverbal although she can vocalize some words. PI. Exh. 22 at 1, 2, 4, 6-10. She currently resides in Seligman Cottage. Id. at 1. The interdisciplinary team reviewed Ms. Will-mon’s current placement at LLH & TS and found it to be “the most appropriate available at this time.” Pl.Exh. 22, IPP 7/12/89 at 17. 9. Joseph Gonzales Joseph Gonzales, age 47, was admitted to FSH & TS in 1985. He was transferred from a group home in Roswell, New Mexico as a result of behavior problems. He is severely retarded and he has an atrophied left arm, cerebral palsy, foot arthrosis and infrequent uncooperative or aggressive reactions. Pl.Exh. 24 at 2. He currently resides in Sierra I Cottage. Id. Mr. Gonzales has been referred by his interdisciplinary team for community placement. Id. at 3d. 10. Alfred Shirley Alfred Shirley, age 38, was admitted to FSH & TS in 1981. He is profoundly retarded and is nonambulatory. He has cerebral palsy and Bulbar palsy, a seizure condition. In addition he has a right hemiple-gia which requires a leg brace. He is unable to feed himself and is not toilet trained. Pl.Exh. 26 at 2-3c. Mr. Shirley currently resides in Sierra I Cottage. Id. at 2. The interdisciplinary team determined that FSH & TS can best meet the conditions for his treatment and habilitation. However, Mr. Shirley has been referred to two community residential programs in accordance with the terms of a state court order. Pl.Exh. 26 at 7. 11. James Fritche James Fritche, age 37, was admitted to FSH & TS in 1968. He is profoundly retarded and has cerebral palsy, enuresis, and a club foot. He is not toilet trained. His expressive language skills are nonfunctional. Pl.Exh. 23 at 1, 2, 2b, 2c. He is able to feed and dress himself independently. Id. at 2. Mr. Fritche currently resides in Eddy Cottage. Id. at 1. His interdisciplinary team has not recommended him for community placement. Id. at 6. 12. Sean McHenry Sean McHenry, age 21, was admitted to FSH & TS in 1984 from Taos Residential Center. He is profoundly retarded and autistic. He has Hodgkins disease, a seizure disorder, and occasional incidents of fevers and elevated white blood cell count of undetermined origin. Pl.Exh. 25 at 1, 2a, 2c, 2d. His expressive language skills are nonfunctional. Id. at 2c. Mr. McHenry attends the Capitan Public Schools. Tr. 11/3/89 at 89-90 (Aldaz). He currently resides in Sierra I Cottage. Id. at 1. The interdisciplinary team determined that FSH & TS can best meet the conditions for his treatment and habilitation. Mr. McHenry has not been referred to any community residential program outside FSH & TS. 6. Pl.Exh. 25 at 13. Betty Young Betty Young, age 33, was admitted to FSH & TS in 1980. She was transferred from LLH & TS and had previously been a patient at LVMC. She is moderately retarded and has organic brain syndrome with hallucinosis and encephalopathy. She is hearing impaired and her expressive language skills are nonfunctional except for some basic sign language. Pl.Exh. 28 at 1, 2, 2a-2e. Ms. Young currently resides at Socorro Cottage. Id. at 1. The interdisciplinary team determined that FSH & TS best meets the conditions for her treatment and habilitation. However, she has been referred for placement in community residential programs in accordance with a state court order, but has not yet been placed. Pl.Exh. 28 at 6. B. Intervenors Intervenors are parents and guardians of some of the residents of LLH & TS and FSH & TS. The parents and guardians intervened in the lawsuit seeking to require defendants to bring the institutions into compliance with constitutional and statutory mandates, but they oppose plaintiffs’ efforts to close LLH & TS and FSH & TS and to force the transfer of residents of those institutions into community-based facilities. On June 27, 1988, I granted inter-venors leave to intervene in this action. They filed their Complaint in Intervention on July 6, 1988. C. Defendants Defendants Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School are the only two state operated institutions which are classified as Intermediate Care Facilities for the Mentally Retarded (“ICFs/MR”) under Title XIX of the Social Security Act, and receive federal funds under the act in New Mexico. LLH & TS was established by act of the New Mexico Legislature on March 20, 1925 as a public residential facility for “any person mentally underdeveloped or faultily developed” who “requires supervision, care and control for his own welfare, or for the welfare of others, or for the welfare of the community.” The institution was named “The Home and Training School for Mental Defectives.” 1925 New Mexico Laws 254, Ch. 133, §§ 1, 2. LLH & TS is located in Los Lunas, New Mexico and currently serves 345 residents. Of those, 193 are in wheelchairs, 226 have a seizure disorder, 77 have a hearing impairment, 109 have a vision impairment, 40 have both a vision and hearing impairment and 72 are on psychoactive medication in conjunction with a behavioral problem. Approximately seventy-two percent (72%) of the population of LLH & TS are profoundly retarded and twenty-one percent (21%) are severely retarded. Tr. 4/27/90 at 17-18 (LaCourt). FSH & TS is located in rural Lincoln County, New Mexico. It was originally established as a fort for the United States Cavalry in 1855. Some of the original buildings are still standing on the grounds of the institution. Near the end of the nineteenth century the United States Merchant Marines began using the facility as a hospital for the treatment of tuberculosis. Later it was converted to a state public health hospital which continued in the treatment of tuberculosis. In 1966, the facility began to serve the mentally retarded. FSH & TS currently serves 149 residents. Tr. 4/24/90 at 92 (Miller). The majority of the residents admitted to FSH & TS have behavior problems. Tr. 11/3/89 at 95, 129 (Aldaz); Pl.Exh. 327 at 98 (Al-daz). Residents are also admitted at FSH & TS through the criminal justice system. Pl.Exh. 327 at 60-61, 63-65. In 1987, approximately sixty-six percent (66%) of the population were severely and profoundly retarded. The remaining thirty-four percent (34%) of the population were moderately or mildly retarded or of borderline intellectual ability. Pl.Exh. 335 at 11. In 1983, the New Mexico Health and Environment Department decided to phase out FSH & TS as a facility for persons with developmental disabilities and to transfer most of the residents to community-based programs. The Department imposed a freeze on admissions to FSH & TS during the fall of 1983 and by 1984 the population of the facility was reduced to 111. Tr. 11/3/89 at 139 (Aldaz); Pl.Exh. 335 at 1-2. In 1984 the New Mexico legislature made the entire Health and Environment Department budget contingent upon full utilization of FSH & TS as a facility for persons with developmental disabilities. This decision by the legislature led to a reversal of the earlier announced decision to close FSH & TS. Tr. 11/3/89 at 141-142 (Aldaz); PI. Exh. 335 at 1, 4. Following the legislature’s action in 1984, the Health and Environment Department appointed a task force consisting of parents, advocates, state legislators, and state agency personnel to examine the role and function of FSH & TS. The task force concluded that most of the residents at FSH & TS did not need to be there to receive the services that they required, and recommended the immediate development of a plan by the Health and Environment Department to facilitate the movement of residents of FSH & TS into community placements. The department did not implement the recommendations. Tr. 4/12/90 at 29 (Jackson). In 1986, the governor of the state of New Mexico appointed the Developmental Disabilities Planning Council pursuant to the Developmental Disabilities Community Services Act. The council commissioned a study of residential service needs in New Mexico for people with developmental disabilities and held public hearings throughout the state. The council recommended a phase out of FSH & TS, a reduction in the developmentally disabled population at LLH & TS, and a serious commitment to expansion of community-based residential options for persons with developmental disabilities. The plan has not been implemented. Tr. 4/12/90 at 29-30 (Jackson). Defendant David LaCourt is the administrator of LLH & TS. Defendant Ervin Aldaz is the administrator of FSH & TS. They are responsible for the operation, administration and supervision of the facilities, including the custody, care and treatment of all residents admitted, and for insuring compliance by the staff with applicable state and federal laws and regulations. They also have oversight responsibility for the process by which residents are discharged to community-based placements. Defendant New Mexico Health and Environment Department (“HED”) is the primary executive agency in New Mexico charged with the care and treatment of developmentally disabled persons in New Mexico. It is responsible for the administration, operation and oversight of LLH & TS and FSH & TS, and it contracts with private agencies to provide residential and other services to developmentally disabled persons in community-based settings. HED is also responsible for insuring that LLH & TS and FSH & TS comply with federal ICFs/MR regulations governing those facilities. Defendant Dennis Boyd is the Secretary of the Health and Environment Department. He is responsible for insuring that LLH & TS and FSH & TS are operated in compliance with federal law, for monitoring and evaluating the professional and administrative activities of FSH & TS and LLH & TS, and for consulting with the administrators of those facilities. He has the responsibility of preparing, for submission to the legislature, budget requests sufficient to allow the facilities to carry out their functions in accordance with statutory and constitutional mandates and sufficient to support community-based services. Defendant New Mexico Department of Human Services is the state agency designated to be responsible for the receipt and appropriate disbursement of funds under Title XIX of the Social Security Act and for the enforcement of the provisions of that Act in New Mexico. The New Mexico Department of Human Services is also responsible for the administration and oversight of all programs to which the waiver of certain Medicaid requirements has been granted by the federal government, and for insuring that such programs comply with federal requirements and with the service plans submitted by the state. Defendant Alex Valdez is the Secretary of the New Mexico Department of Human Services and as such is responsible for insuring that the department fulfills its obligations under Title XIX of the Social Security Act. Defendant New Mexico Department of Education is responsible for maximizing the use of community resources in the provision of vocational rehabilitation services, as stipulated by the parties. Defendants New Mexico State Board of Education and its individual members are responsible for the formulation and adoption of curricula for the adequate education of all students in the public schools and for establishing and enforcing standards for the identification, evaluation, placement, and service programs of all handicapped children served in all public schools and state supported institutions. Additionally, the board is responsible for carrying out the provisions of the Education of the Handicapped Act within the state of New Mexico including assuring that handicapped students are educated with non-handicapped students to the maximum extent appropriate, as stipulated by the parties. Defendant Alan Morgan is the New Mexico Superintendent of Public Instruction and is responsible for assuring that the policies of the State Board of Education are implemented, applied and carried out. He is also responsible for supervising the Director of the Special Education Unit. Defendant Jim Newby is the Director of the Special Education Unit within the State Department of Education. He is responsible for regularly monitoring all local public school districts and state supported schools in order to assure that their procedures, programs, and services are in compliance with standards set by the State Board of Education and with the requirements of the federal Education of the Handicapped Act. He is also responsible, with the advice of the State Advisory Panel, for the development and implementation of the state’s plan for participation under the Education of the Handicapped Act. D. The Class Following extensive briefing by the parties on the issue of class certification, on May 23, 1989 I certified a class consisting of all persons who are presently residing at FSH & TS or LLH & TS and have been residents since the date of the filing of the complaint in this action on July 8, 1987; all persons who became or will become residents of the institutions during the penden-cy of the action; and all persons who have been transferred from FSH & TS or LLH & TS to skilled nursing facilities, intermediate care facilities, homes for the aged and similar facilities, and whose services are funded in whole or in part by defendants. Jackson, et al. v. Fort Stanton Hospital and Training School, et al., No. 87-839, slip op. at 8 (D.N.M. May 23, 1989). Pursuant to Federal Rule of Civil Procedure 23(c)(4)(B), the class was divided into two subclasses to reflect the different relief sought by plaintiffs and intervenors. Accordingly, the thirteen named plaintiffs, whose profiles have been set out above, represent the subclass that seeks community placement and closure of LLH & TS and FSH & TS. Intervenors represent the subclass that opposes closure of the institutions but seeks to upgrade the institutions. Id. at 7. IV. ICF/MR Surveys and Department of Justice Lawsuit Since LLH & TS and FSH & TS receive federal funds under Title XIX of the Social Security Act, both are regularly surveyed by the Health Care Financing Administration (“HCFA”) to determine whether federal funding should continue. See e.g. PI. Exh. 5, 15; Def.Exh. F, EE. The purpose of the ICF/MR standards is to ensure minimally adequate services for residents. Tr. 4/3/90 at 199 (Franczak). The regulations consist of eight “conditions of participation” which cover such major areas as staffing, active treatment and health care services. The surveyors identify deficiencies under the eight “conditions of participation.” Tr. 10/17/89 at 153-159 (Rowe). Each condition of participation has standards which the surveyors use to determine whether there is substantial compliance with the condition of participation. Id. There are almost 500 standards. Whether a condition of participation is met depends on the severity of the standard-level deficiencies. Tr. 4/16/90 at 72 (Dalessandri). If the facility fails to comply with one or more of the eight conditions of participation, the facility is given a deadline by which to come into compliance before funding is terminated. Tr. 4/16/90 at 72 (Dal-essandri). HCFA has the power to terminate a facility’s funding immediately if HCFA finds that the health and safety of the residents are in jeopardy. Tr. 10/17/89 at 158-159 (Rowe). After every survey, the facility drafts a plan of correction which is a statement of the action that the facility intends to undertake to correct the deficiencies. Tr. 10/17/89 at 163 (Rowe); Tr. 10/30/89 at 30 (Nunn). Neither LLH & TS nor FSH & TS has been decertified. Pl.Exh. 15; Def.Exh. F, EE, EEE, FFF. However, surveys of LLH & TS in the spring of 1989 determined the facility to be ineligible for continued certification as an ICF/MR. The surveyors found numerous standard-level deficiencies and two condition-level deficiencies — in facility staffing and in active treatment. Def.Exh. F. HCFA set a funding cut-off date of June 15, 1989. Def.Exh. F at 3. Prior to that date the facility was evaluated again. Def.Exh. F at 1-2. LLH & TS was allowed to continue correcting existing deficiencies and developing new plans of correction outlining further steps toward full compliance, after findings by the surveyors that the facility had made progress in these areas and that the residents of the facility were not in imminent danger and their health and safety were not jeopardized. Id. HCFA extended the deadline for termination of the facility’s funding to December 31, 1989. Id; Tr. 10/30/89 at 31 (Nunn). The surveyors returned to LLH & TS in December 1989 and found the facility had come into compliance with the conditions of participation. The funding cut-off date was revoked. Tr. 12/12/89 at 261 (Brownstein). The facility was again surveyed in March 1990 and found to be in compliance with all conditions of participation. Def.Exh. FFF. Surveys of FSH & TS have also found deficiencies in the past. However, the FSH & TS has never been recommended for decertification. Tr. 10/17/89 at 157 (Rowe); Pl.Exh. 14, 93, 94. On October 27, 1989, the United States Department of Justice instituted a suit against the State of New Mexico, LLH & TS and various other state defendants for violation of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. United States of America v. State of New Mexico, et al., No. 89-1165, complaint (D.N.M. Oct. 27, 1989). The parties entered into a Settlement Agreement, filed on February 2, 1990, which requires that LLH & TS conduct adequate evaluations and training for the residents; that seclusion and bodily restraints be administered only pursuant to the judgment of qualified professionals; that residents be provided medical care; that LLH & TS employ a sufficient number of physicians, registered nurses, licensed practical nurses, psychologists, physical therapists, occupational therapists, and direct care workers; that psychotropic medications be administered only pursuant to the exercise of professional judgment; that the staff be appropriately trained; and that the institution maintain an adequate recordkeeping system. USA v. State of New Mexico, No. 89-1165, Settlement Agreement (D.N.M. Feb. 2, 1989). The agreement contemplates that the state will implement all provisions of the agreement on or before December 31, 1990. Id. at 17. As a result of this lawsuit and the ICF/MR survey inspections and the action instituted by the Department of Justice, LLH & TS has experienced significant changes. These substantial ongoing changes in the institution have made the decision-making process in this case difficult in that evidence presented over a protracted period has, to some extent, become outdated. V. Findings of Fact A. Food The quality of the food served and the quantity provided to the residents of LLH & TS and FSH & TS are adequate. Plaintiffs challenged, however, the adequacy of nutritional management, the appropriateness of food temperatures and food handling practices. 1. Nutritional Management Each resident’s food or fluid intake is monitored. The dietician or the nurse is advised of any resident who consistently fails to eat all of his or her food. Pl.Exh. 308 at 27 (Cordova); Pl.Exh. 320 at 18 (Kearns); Pl.Exh. 318 at 27 (Chavez). In addition, the dietician at FSH & TS continuously circulates during meals to monitor the residents’ diets and to get feedback on how residents are eating. Pl.Exh. 320 at 18. The dietician at LLH & TS observes meals in the cottages and classrooms to monitor feeding programs for the various residents. Tr. 4/18/90 at 99 (Gailbraith). 2. Food Temperatures Plaintiffs’ environmental expert, Mr. Duel, identified problems in maintaining appropriate food temperatures, particularly at LLH & TS. Specifically, both Mr. Duel and the HCFA surveyors noted a failure to maintain food temperatures at levels sufficient to prevent the growth of harmful micro-organisms. Tr. 4/10/90 at 197-198 (Duel); Pl.Exh. 245 at 8. The dietician at LLH & TS had identified the same problem prior to Mr. Duel’s survey and had already requested the purchase of new equipment to correct it. Tr. 4/10/90 at 198 (Duel). The new equipment has been installed and the quality assurance program confirms that the appropriate food temperatures are now being maintained. Tr. 4/18/90 at 96 (Gailbraith). Plaintiffs’ expert, Mr. Duel, also reported a failure to maintain refrigeration and freezer units at sufficiently low temperatures to safeguard food against spoilage. In addition, Mr. Duel noted a failure to ensure the presence of accurate procedures and equipment to measure those temperatures, particularly at the LLH & TS satellite feeding stations. Tr. 4/10/90 at 199-202 (Duel). The refrigeration units at LLH & TS have an inside thermometer and an outside thermometer gauge that is part of the unit itself. The temperatures are logged from the inside thermometer. Tr. 4/18/90 at 97 (Gailbraith). At the time of Mr. Duel’s survey, the LLH & TS dietician had previously requested the purchase of air cooling equipment for the storage room and it has since been installed. Tr. 4/11/90 at 102 (Duel); Tr. 4/18/90 at 98 (Gail-braith). Mr. Duel found that the temperatures of refrigerators and freezers at FSH & TS were within the ranges recommended by the food service regulations and did not present a health hazard. Tr. 4/11/90 at 67-68 (Duel). 3. Food Handling Practices The dietician at LLH & TS provides in-service training to the staff on infection control and handwashing practices relating to food service and food preparation. Tr. 4/18/90 at 98 (Gailbraith). The dietician also oversees a quality assurance program which involves randomly visiting the cottages and classrooms to observe meals. Approximately twenty meals are reviewed per week. Tr. 4/18/90 at 99-100 (Gail-braith). B. Clothing The clothing provided to the residents of LLH & TS and FSH & TS is adequate. The clothing is clean, individualized, well-fitting and is not issued from a general clothing store. During my visits to LLH & TS and FSH & TS in May 1990, I observed that the clothing was varied, not uniform. I also observed several residents wearing new high top brand name athletic footwear. All parties also agreed that the residents of both facilities are well-groomed. Tr. 10/31/89 at 203-204 (Haywood); Tr. 4/17/90 at 37, 212 (Peets, Woodhouse); Tr. 4/4/90 at 169 (Crocker); Tr. 10/17/89 at 139 (Rowe). C. Environmental Conditions Experts on all sides, who toured the facilities, agreed that both LLH & TS and FSH & TS are generally clean and well-maintained. Tr. 4/4/90 at 169-170 (Crocker); Tr. 10/17/89 at 94 (Rowe). Plaintiffs challenged, however, some specific aspects of the physical environments at both facilities. 1. Living Areas LLH & TS and FSH & TS are licensed by the New Mexico Health and Environment Department to house the number of residents who reside at both facilities. Def. Exh. AP, AQ. The licenses state how many beds are allowed in each cottage area. Neither LLH & TS nor FSH & TS has exceeded the licensed capacity. Tr. 4/18/90 at 32-33 (Blount). The bedroom size at LLH & TS and FSH & TS is adequate with each bedroom having four or fewer beds, some'with individual beds and many with two beds per room. Tr. 10/17/89 at 140 (Rowe); Tr. 10/30/89 at 125 (Nunn). However, each unit for the medically fragile at LLH & TS — Chavez West, Chavez East and Bashein East— houses more than four residents. LLH & TS has received a waiver for the medically fragile units from the Title XIX authorities on the basis of medical need. Tr. 10/30/89 at 125 (Nunn). The living areas at LLH & TS and FSH & TS are personalized. LLH & TS has a policy of allowing residents to maintain personal possessions in their living areas. Tr. 10/30/89 at 124 (Nunn). Residents have in their rooms personal possessions such as pictures, mirrors, televisions, and grooming items. Tr. 11/2/89 at 152-53 (Donovan). Residents at FSH & TS also have personal belongings in their rooms, including pictures, prints, rugs and mirrors. Tr. 10/31/89 at 161 (Haywood). The bedding is individualized. Tr. 10/17/89 at 140 (Rowe). Personal items are frequently replaced if damaged or destroyed by the residents. Tr. 10/31/89 at 162 (Haywood). 2. Asbestos Some items stored at FSH & TS were previously thought to contain asbestos. Further investigation proved, however, that most of those items did not in fact contain asbestos. The remaining items that contained asbestos were “abated.” Tr. 11/3/89 at 154 (Aldaz). 3. Pest Control Plaintiffs’ expert, Mr. Duel, found evidence of vermin, mouse droppings and flies in food service areas at LLH & TS. Tr. 4/10/90 at 207-210 (Duel). He also found dead insects and mouse droppings in food service areas at FSH & TS. The presence of insects in the food service areas raises serious health concerns. Id. However, in the opinion of a defense expert witness, the pest control at LLH & TS and FSH & TS is adequate. Tr. 4/18/90 at 27-30 (Blount). LLH & TS and FSH & TS provide pest control services on a bimonthly basis in the food service areas. Def.Exh. AN, AO. LLH & TS also has an infection control committee which meets regularly. Tr. 4/11/90 at 103 (Duel). In addition, state inspection reports for the last two years at both facilities do not cite pest or vermin problems in the food service areas. Tr. 4/18/90 at 31 (Blount). 4. Lighting and Ventilation Lighting in the food service areas, living areas and offices at both FSH & TS and LLH & TS is adequate. Tr. 4/18/90 at 25-27 (Blount). LLH & TS and FSH & TS comply with federal regulations on ventilation systems. Tr. 4/18/90 at 19-24 (Blount). 5. Fixtures The system of providing and monitoring hot water at LLH & TS and FSH & TS is adequate. Both LLH & TS and FSH & TS supply and monitor hot water through systems of mixing valves, which mix hot and cold water to provide water of a certain temperature at the exit end. The valves are inspected on a regular basis. Tr. 4/18/90 at 54-56 (Blount). 6. Sanitation Practices The waste disposal facilities at LLH & TS and FSH & TS are adequate. Tr. 4/18/90 at 30-31 (Blount). The garbage collection bin located near Hidalgo Cottage at FSH & TS is appropriate. Tr. 4/18/90 at 73-75 (Blount). FSH & TS’s sewage treatment system meets federal requirements regarding the discharge of treated matter and poses no immediate threat to the health and safety of the residents. Tr. 4/11/90 at 47-53 (Duel). A state agency regularly samples the water supply at FSH & TS for appropriate chlorine levels and has found it to be in compliance with applicable standards. Tr. 4/11/90 at 46-47 (Duel). The laundry facilities at LLH & TS and FSH & TS use a sanitizing soap that appropriately disinfects clothes. Tr. 4/18/90 at 36-37 (Blount); Def.Exh. AS. 7. Fire Safety LLH & TS and FSH & TS are in compliance with the applicable fire safety standards. Tr. 4/18/90 at 42-54 (Blount). FSH & TS is equipped with both a sprinkler system and smoke detectors, although only one is required by fire safety regulations. Tr. 4/18/90 at 82 (Blount). The fire alarm system at FSH & TS is maintained on a regular basis by a contractor. Tr. 4/18/90 at 82 (Blount). Although many doors at both LLH & TS and FSH & TS have panic bars, panic bars are not required. Tr. 4/18/90 at 87-89, 93-94 (Blount). D. Medical Care 1. Medical Staff LLH & TS currently employs four full-time physicians. Tr. 4/23/90 at 15 (Brown). There is regular interaction between the LLH & TS medical staff and the University of New Mexico Medical School. Three out of the four staff physicians at LLH & TS currently hold appointments at the University of New Mexico Medical School. Dr. Ball has an appointment in the family practice department and Drs. Brown and Witemeyer have appointments in the pediatric department. The fourth physician was recently hired and is expected to receive an appointment to the pediatric department. Tr. 4/23/90 at 29-31 (Brown). Plaintiffs’ expert found the physicians to be generally competent. Tr. 4/4/90 at 169 (Crocker). All four physicians are on-call on a rotating basis so that there is a physician on call 24 hours a day, every day of the week. Tr. 4/23/90 at 15 (Brown). Three of the four physicians reside on the LLH & TS campus while they are on call. The fourth resides in Los Lunas, approximately five minutes from the facility. Tr. 4/23/90 at 17 (Brown). There are also five nursing stations on site at LLH & TS. Tr. 4/23/90 at 17 (Brown). Each resident of LLH & TS receives a physical examination at least every six months. Tr. 4/23/90 at 16 (Brown); Tr. 12/15/89 at 8 (Witemeyer). Dr. Witemeyer is the staff physician responsible for the medically fragile residents at LLH & TS. Dr. Witemeyer visits her patients virtually daily. Tr. 12/15/89 at 8-9 (Witemeyer). In addition, a nurse is present during mealtimes in the medically fragile unit at LLH & TS because of the risk of aspiration. Tr. 12/15/89 at 87 (Wi-temeyer). LLH & TS also makes regular use of medical consultants including specialists in the areas of orthopedics, pulmonary disease, ophthalmology, psychiatry, neurology, dermatology, and gynecology. Tr. 4/23/90 at 22-26 (Brown). LLH & TS contracts with three psychiatrists for approximately 20 hours per week of psychiatric consultation. Tr. 4/23/90 at 22 (Brown). The contract neurologist provides regular on-site neurological consultations as well as off-site evaluations where appropriate, particularly of residents with intractable seizure disorders. Tr. 4/23/90 at 22, 24-25 (Brown). The orthopedist holds an orthopedic clinic at LLH & TS on a monthly basis. Patients are referred to the orthopedist by members of the medical or therapeutic staff. Approximately ten to fourteen cases are presented at each clinic session. 12/15/89 at 106-107 (Sherman). The orthopedist also sees LLH & TS residents regularly on an outpatient basis either to treat fractures or injuries or to perform evaluations, or as inpatients to perform various surgical procedures. 12/15/89 at 108 (Sherman); 4/23/90 at 24 (Brown). Every new resident at LLH & TS who is medically fragile or multiple-handicapped is referred to the Orthopedic Clinic, Neurology Clinic, Eye Clinic, Rehabilitation Services and the Speech, Language and Hearing Departments. Tr. 12/15/89 at 7-8 (Witemeyer). LLH & TS also provides a number of services on site including x-rays, laboratory tests, electrocardiograms and a pharmacy. Tr. 4/23/90 at 18-21. The laboratory employs two full-time technicians who perform microbiology cultures, hematologic studies, and other procedures. A consulting pathologist supervises the lab and promotes quality assurance. Tr. 4/23/90 at 19 (Brown). The pharmacy is staffed by two full-time pharmacists. The pharmacists review and fill prescriptions, and monitor medication side effects. Tr. 4/23/90 at 19-21 (Brown). In addition, the pharmacists prepare quarterly reports on medication which advise the interdisciplinary teams of all medications prescribed and indicate possible side effects of the medication. The reports are included in the Individual Program Plans (“IPP”). Tr. 4/23/90 at 19-21. Plaintiffs’ medical expert testified generally that the medical and health services provided at LLH & TS are in accordance with professional standards. Tr. 4/4/90 at 172-73 (Crocker). FSH & TS employs two full-time resident physicians, who plaintiffs’ expert found to be generally competent. Tr. 4/4/90 at 169 (Crocker). FSH & TS also has regularly scheduled consultations in both psychiatry and neurology. Other medical consultants are available as needed. Def.Exh. P at 4. In addition, FSH & TS provides a number of services at the facility including x-rays, laboratory tests, EKG testing and a pharmacy. Tr. 4/4/90 at 172-173 (Crocker). The nursing services at FSH & TS comport with professional standards. Tr. 4/4/90 at 171 (Crocker). 2. Infectious Diseases and Mortality Rates Although plaintiffs’ presented evidence of a lack of general medical care in the past, plaintiffs’ medical expert found that the incidence of infectious diseases at LLH & TS and FSH & TS falls within generally accepted ranges, Tr. 4/4/90 at 176-77 (Crocker), and that the mortality rates at both institutions are also within the expected general range for the populations they serve. Tr. 4/4/90 at 176 (Crocker). 3. Medications Residents of LLH & TS are regularly monitored for neuromotor side effects of psychoactive medication. Tr. 4/23/90 at 56-58 (Brown). The nurses perform monthly evaluations using a tardive dys-kinesia monitoring scale. These evaluations are performed weekly when the client is first introduced to the medication. Tr. 4/23/90 at 57 (Brown). In addition, the nursing staff performs a quarterly physical examination to screen for possible side effects. Tr. 4/23/90 at 58 (Brown). Plaintiffs’ expert reviewed the thirteen named plaintiffs and found no evidence of tardive dyskinesia or other neuroleptic related movement disorders. Tr. 4/4/90 at 175 (Crocker). Nationwide, thorazine is a commonly used psychoactive medication. Tr. 4/24/90 at 80 (Brown). Thorazine can cause hyper-pigmentation, a slate-gray darkening of skin color, and corneal deposits. Tr. 4/24/90 at 43, 59 (Brown). Defendants’ expert testified that hyperpigmentation is reversible once the medication is discontinued. Tr. 4/24/90 at 45 (Brown). For many years, a number of residents of LLH & TS had been prescribed thorazine, and many developed hyperpigmentation and corneal deposits. Tr. 4/24/90 at 44, 79-80 (Brown). The medical staff at LLH & TS had discussed the appropriateness of the thorazine and had accepted the recommendation for its continued use made by a consulting psychiatrist who believed that the risks associated with changing the medication outweighed the possible benefit of reversing the hyperpigmentation.' Tr. 4/24/90 at 46-47 (Brown); Tr. 4/23/90 at 114 (Brown). It was only after a different consultant, Dr. Gualtieri, later recommended that thora-zine be discontinued that the residents’ tho-razine medication was changed to another psychoactive medication that had the same behavioral effects but did not have the side effect of hyperpigmentation. Tr. 4/24/90 at 45-46 (Brown); Tr. 4/23/90 at 114 (Brown). At the end of trial in April 1990, the hyperpigmentation among residents had not completely reversed although there had been improvement. Tr. 4/24/90 at 45 (Brown). A limited number of residents at FSH & TS are receiving psychoactive medication. Both the staff physicians and the consulting psychiatrist regularly review medication decisions. There appears to be a policy to use such medication at the lowest effective dose. Def.Exh. P at 5. A number of residents at FSH & TS are also receiving seizure medication. Dosages are lowered and even discontinued after a specified period during which no seizures are observed. Def.Exh. P at 5. 4. Dental Care The dental services at LLH & TS and FSH & TS are more than adequate. Tr. 4/4/90 at 172 (Crocker). LLH & TS employs a full-time dentist, Dr. Ray Lyons. Tr. 4/24/90 at 258. Generally, Dr. Lyons conducts clinical examinations, including cleanings, for each resident every six months at LLH & TS. Tr. 4/26/90 at 272 (Lyons). Oral hygiene is assessed on a monthly basis in the cottage living areas. Tr. 4/26/90 at 271; Def.Exh. FO at 12-13. Also, Dr. Lyons has performed an oral function assessment on each named plaintiff at LLH & TS. Def.Exh. FO at 8. 5. Medical Records Plaintiffs' medical expert found that the medical records at FSH & TS and LLH & TS are inadequate. The medical records are sparse and nonanalytical; they tend to deal with the more immediate or obvious elements. Tr. 4/4/90 at 93 (Crocker). The records lack a broad description of clinical status. Id. at 93-95. They often reflect “automatic thinking”, i.e. medical entries are made without investigation or reflection, and contain repetitive listings which suggest insufficient analysis. Id. at 95-96. These matters affect residents’ health and their long-range outlook. Id. at 95. The following are examples of inadequate medical analysis. Plaintiff Walter Stephen Jackson’s IPP of August 8, 1989 indicates that his last seizure occurred in March 1987. Pl.Exh. 180; Tr. 4/4/90 at 118 (Crocker). Plaintiffs’ medical expert noted, however, that Mr. Jackson was on multiple anti-eonvulsant medications. Tr. 4/4/90 at 119 (Crocker). Subsequently, a consulting neurologist recommended a gradual reduction followed by discontinuation of the medication. Tr. 4/4/90 at 120; Pl.Exh. 181. Plaintiffs Clinton and Shawn Heath were diagnosed as having Coffin-Lowry Syndrome. Their medical records, however, lack any discussion of or supporting data for the diagnoses. Tr. 4/4/90 at 98-102 (Crocker). The medical records of Clinton Heath for December 1986, January 1987, June 1987, December 1987 and June 1989 also contained a diagnosis of spastic qua-driparesis, a central nervous system disorder. Tr. 4/4/90 at 102-110 (Crocker); PI. Exh. 176. In October 1989, however, shortly after plaintiffs’ medical expert had questioned the accuracy of this diagnosis in a deposition, the physician’s progress notes indicated that no spasticity was noted and that the diagnosis of spastic quadriparesis would be removed. Pl.Exh. 176 at 7; Tr. 4/4/90 at 109 (Crocker). Clinton Heath was also diagnosed as having spina bifida, an incomplete fusion of portions of a bone spine. Tr. 4/4/90 at 110 (Crocker); Pl.Exh. 176. Plaintiffs’ medical expert questioned the diagnosis after reviewing a normal x-ray report of his spine. Id. at 111, 113; Pl.Exh. 177. A radiology report of December 1989 identifies spina bifida occulta, a minor variation in the integrity of the formation of the spinal arch, which carries an insinuation of low importance. Tr. 4/4/90 at 114-115 (Crocker); Pl.Exh. 178. The medical records of plaintiff Mildred Tsosie show a progressive loss of movement between 1973 and 1987. Plaintiffs’ medical expert found that the documentation was inadequate in that it lacked discussion, explanation or analysis of the condition by the medical staff. Tr. 4/4/90 at 122-127 (Crocker); Pl.Exh. 183. The medical records of plaintiff Lillian Willmon also document a loss of movement. In 1980, Ms. Willmon walked fairly well with her walker. Tr. 4/4/90 at 127 (Crocker). Between 1980 and 1989, Ms. Willmon developed progressively worsening contractures which impaired her walking ability and ranges of motion in her joints. Ultimately, Ms. Willmon lost the ability to walk. Tr. 4/4/90 at 127-135 (Crocker). Plaintiffs’ medical expert again found that the records failed to adequately discu