
718 F.Supp. 139 (1989)
SOCIETY FOR GOOD WILL FOR RETARDED CHILDREN, INC., et al., Plaintiffs,
v.
Mario M. CUOMO, as Governor of the State of New York, et al., Defendants.
No. 78-CV-1847.
United States District Court, E.D. New York.
August 3, 1989.
*140 Michael S. Lottman, Murray B. Schnepps, East Hartford, Conn., for plaintiffs.
Robert Abrams, Atty. Gen. of State of N.Y. by Caren S. Brutten, Stephen Mendelsohn, New York City, for defendants.

MEMORANDUM AND ORDER

FINAL JUDGMENT
WEINSTEIN, District Judge.
This litigation seeking relief for alleged unconstitutional conditions and violations of state and federal statutes at the Long Island Developmental Center for profoundly mentally and otherwise disabled persons has been before the court for more than ten years. See Society for Good Will for Retarded Children, Inc. v. Cuomo, 572 F.Supp. 1300 (E.D.N.Y.1983); 737 F.2d 1239 (2d Cir.1984); 103 F.R.D. 168 (E.D.N. Y.1984); 832 F.2d 245 (2d Cir.1987). The court has continued to visit the institution and some of its small residential satellites, review reports of certifying agencies and of the institution, hold evidentiary hearings and discuss ongoing problems with counsel and administrative staff.
Enormous improvements in conditions at the Center have resulted from the dedicated efforts of staff; support by the state; and pressure of governmental agencies, including the courts, and counsel for both plaintiffs and defendants. Nevertheless, severe institutional problems revealed in earlier opinions continue. As reflected in the most recent hearings and reports of certifying agencies, the constitutional rights of clients to adequate physical and medical support are being violated. According to expert testimony credited by the court, there is loss of capacity in residents as a result of inadequate facilities, treatment and habilitation. The institution fails to provide reasonably safe conditions of confinement, freedom from unreasonable bodily restraints and minimally adequate training that credible expert testimony and the court find to be reasonably required. These failures constitute a violation of the rights of clients. See Youngberg v. Romeo, 457 U.S. 307, 327, 102 S.Ct. 2452, 2464, 73 L.Ed.2d 28 (1982) (Blackmun J., concurring) (constitution requires training "reasonably necessary to prevent a person's preexisting self-care skills from deteriorating because of his commitment (emphasis in original)); Clark v. Cohen, 794 F.2d 79, 95-96 (3d Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986); Society for Goodwill to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1250 (2d Cir.1984).
The court credits findings of various state and federal certifying agencies determining *141 that the institution is not complying with applicable federal regulations designed to protect clients physically and medically. These expert reports are trustworthy. See Rule 803(8)(B), (C) of the Federal Rules of Evidence; Beech Aircraft Corp. v. Rainey, ___ U.S. ___, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). These findings confirm the evidence received in court and the court's own observations that constitutional rights to minimum housing, food, medical treatment and habilitation necessary to prevent client deterioration have not been met. In view of these findings of constitutional violations and supporting oral findings made on the record, it is not necessary to determine whether specific federal statutes are being violated.
It has been suggested by the Court of Appeals that prior consent by the state to a decree in this case may have constituted a waiver of its eleventh amendment immunity under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (eleventh amendment prohibits federal courts from imposing injunctive relief against state officials for violations of state law). See Society for Goodwill for Retarded Children, Inc. v. Cuomo, 832 F.2d 245, 246 (2d Cir. 1987). See also Kozlowski v. Coughlin, 871 F.2d 241, 244 (2d Cir.1989). This court respectfully declines to follow that suggestion. As a matter of fact, no intentional waiver occurred. Implied waivers are not desirable in circumstances such as are reflected in the present litigation because they would make cooperative stipulations by the state less likely, reduce the number of consent decrees and induce litigation to the death by the defendant in an increased number of cases.
The plaintiffs have sought a master to supervise the institution. Such an appointment is not desirable under the circumstances of this case. The director and staff of the institution are fully committed to improvement and need no supervision. The state has been relatively forthcoming in its budgetary allocations, considering all the other fiscal demands it must meet.
The administrative limitations on the institution make it apparent that the constitutional rights of clients cannot be protected without further reduction of the client population. All agree that this reduction should, for generally accepted professional reasons, be accomplished by transferring as many clients as is practicable to small home-like cottages, houses and apartments; if possible these small residences should be off-campus, in the community. Community placement to the extent reasonable under the circumstances is a necessary remedial measure to vindicate the clients' constitutional entitlements. The court has the power and obligation to require remedial steps designed to overcome the effect of years of severe constitutional deprivations experienced by clients of the Center. Cf. United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) ("`Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.'") (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1235-36 (2d Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988).
The following is ordered after detailed consultation on terms among counsel, administrative staff of the institution and the court:
1. The policies and actions of the defendants in the operation of the Long Island Developmental Center are declared to be in continuing violation of the plaintiff class members' rights under the due process and equal protection clauses of the Fourteenth Amendment.
2. Defendants shall implement the following plan at LIDC (including the Sagtikos and Sagamore units):


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GOAL I: To Assure Proper Programming, Particularly for those Over the Age of 21
         Not Educated in the Public School System
        -----------------------------------------------------------------------
              OBJECTIVE                                       ACTIONS
1. To reorganize the delivery of treatment    1.a) Refine program curricula utilizing
    services so that it more effectively            new and age appropriate technologies.
    develops the client in his environment
    of Long Island Developmental
    Center, and in a more normalizing
    manner provides better
    staffing coverage and consistency
    in the delivery of clinical services.
                                                b) Develop the necessary training and
                                                    support systems to facilitate
                                                    achieving the objective.
2. To improve the existing goal oriented      1.   By September 1, 1989, reassess existing
    programming for residents over                  programs of the over age 21
    the age of 21.                                  population to determine if they are
                                                    meeting individual client needs and
                                                    where they are not, revise curricula
                                                    to encompass the whole client and
                                                    improve his skills in real life. This
                                                    reassessment shall be a continuing
                                                    requirement.
                                              2.a) An upwardly mobile continuum of
                                                    services will be developed to provide
                                                    training to clients having from
                                                    the least to the greatest abilities.
                                                    This continuum will begin with basic
                                                    living skills (including grooming,
                                                    toileting, eating), and move
                                                    into more advanced living skills
                                                    (such as domestic activities). The
                                                    next step will focus on the development
                                                    of prevocational skills (e.g.,
                                                    motor development, coordination,
                                                    and vocational readiness) and terminate
                                                    in vocational habilitation (including
                                                    such activities as landscaping
                                                    assistance, housekeeping assistance,
                                                    etc.). Throughout the entire
                                                    continuum, attention will be
                                                    paid to socialization and deinstitutionalization.
                                                b) By July 31, 1989, Program Center(s)
                                                    will be designed to modify maladaptive
                                                    behaviors which would
                                                    prohibit clients from progressing
                                                    through the programming continuum
                                                    and may inhibit eventual
                                                    placement provided that the establishment
                                                    of such center(s) shall not
                                                    reduce the level of care provided to
                                                    other clients below the minimum
                                                    levels required under this decree.
                                                    There is no requirement that persons
                                                    with the same problems be
                                                    grouped together. The techniques
                                                    to be used are within the discretion
                                                    of professional staff.
3. Provide goal oriented programming          1.   By July 31, 1989, all residents age 21
    to all residents age 21 and under.              and under shall receive school education



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                                                    programming on a full year
                                                    (12-month) basis.
4. Improve upon existing systems to assure    1.   By September 1, 1989, on a five day
    that clients of Long Island                     per week 12 month per year basis,
    Developmental Center receive programs           six hours of active, structured programming
    that meet their needs.                          shall be made available
                                                    to each client in addition to recreation
                                                    and leisure activities unless
                                                    medically, socially or psychologically
                                                    contraindicated as shown by the
                                                    certification of a QMRP (Qualified
                                                    Mental Retardation Practitioner)
                                                    having a State certificate, but lack
                                                    of resources shall not be the basis
                                                    for such certification; provided,
                                                    however, that each client has the
                                                    right, after being fully advised, to
                                                    refuse any such programming.
                                                    The professional staff may define
                                                    structured programming to include
                                                    equivalent programming in nonclassroom
                                                    or equivalent settings.
                                                    In each case a member of the professional
                                                    staff must certify on the
                                                    client's record why the variation is
                                                    required. Compliance with
                                                    § 483.440 of 42 C.F.R. shall be
                                                    deemed sufficient compliance with
                                                    this requirement.
                                              2.   Develop a training program to facilitate
                                                    the success of program philosophy
                                                    and goals.
                                              3.   Make more meaningful a quality assurance
                                                    system that will assure
                                                    clients are receiving programs
                                                    which best meet their demonstrated
                                                    needs and evaluate their mobility
                                                    or fixation at an appropriate level;
                                                    e.g. assuming no inhibiting neurological
                                                    impairment client program
                                                    will be altered if it is not
                                                    successfully addressing a lack of
                                                    toileting skills.
                                              4.   By September 1, 1989, an appropriate
                                                    toilet training program shall be
                                                    made available to all clients not
                                                    presently toilet trained, unless such
                                                    program is medically or physiologically
                                                    contraindicated as shown by
                                                    the certification of a QMRP (Qualified
                                                    Mental Retardation Practitioner)
                                                    having a State certificate.
GOAL II: An Increased Direct Care Staff Ratio at the Ward Level and Dormitory Care
          Level, as well as in Various Professional Specialties
         -------------------------------------------------------------------------
              OBJECTIVE                                       ACTIONS
1. To maintain an overall staff to client     1.   An overall staff to client ratio of no
    ratio of no less than 2 to 1 and                less than 2 to 1 shall be met and
    allow for various administrative                maintained within 1%. To meet
    flexibilities and prerogatives, until           this objective, the Director shall
    March 31, 1992.                                 have the authority and be required



*144
                                                    to fill and refill any vacant position
                                                    without regard to any budgetary
                                                    restrictions or other limitations, unless
                                                    otherwise ordered by the
                                                    Court.
                                              2.   On an as needed basis, increase the
                                                    fill level in selected direct care and
                                                    clinical care titles and/or lay off in
                                                    titles determined to be in excess
                                                    and redeploy these resources to
                                                    functional areas to augment services,
                                                    within a 10% variation on fill
                                                    levels, subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements.
2. To increase direct care staff available    1.   Review all direct care assignments
    in the ward at times of maximum                 and, based on proposed program
    activity.                                       changes, develop a correct distribution
                                                    for each client area for each
                                                    shift, subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements, unless modified by the
                                                    consent of affected unions and employees.
                                              2.   Continually review and readjust direct
                                                    care assignments and schedule
                                                    based upon client needs, program,
                                                    and residential goals, subject to the
                                                    provisions of statute and collective
                                                    bargaining agreements, unless
                                                    modified by the consent of affected
                                                    union and employees.
                                              3.   Utilize staff from areas vacated by
                                                    clients going to day program to
                                                    assist in other direct care or program
                                                    areas, subject to the provisions
                                                    of statute and collective bargaining
                                                    agreements, unless modified
                                                    by the consent of affected unions
                                                    and employees.
                                              4.   Request that OMRDD assess the current
                                                    utilization of housekeeping
                                                    personnel with an eye toward increasing
                                                    their effectiveness on the
                                                    living unit, thereby increasing direct
                                                    care staff availability to
                                                    clients. Assessment should include
                                                    the use of part-time, flex-time, and
                                                    other alternate work schedules
                                                    when filling housekeeping vacancies,
                                                    subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements, unless modified by the
                                                    consent of affected unions and employees.
                                              5.   Utilize the incontinent pads or disposable
                                                    diapers to free direct care
                                                    staff from the "folding and sorting"
                                                    activity or provide additional
                                                    staff to fold cloth diapers.



*145
                                              6.   With such training as is required,
                                                    food service personnel will more
                                                    actively participate in meal time
                                                    programming and thereby supplement
                                                    direct care staff involvement,
                                                    subject to the provisions of statute
                                                    and collective bargaining agreements,
                                                    unless modified by the consent
                                                    of affected unions and employees.
                                              7.   Increase volunteer programs and encourage
                                                    older parents and members
                                                    of the community to become
                                                    Foster Grandparents or Senior
                                                    Companions.
                                              8.   Reinforce performance standards
                                                    and, through the performance evaluation
                                                    system, reinforce direct care
                                                    responsibilities to client assignments,
                                                    subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements, unless modified by the
                                                    consent of unions and employees.
                                              9.   Restructure current performance
                                                    evaluations to continue to reinforce
                                                    supervisory responsibilities of midlevel
                                                    supervisors and nurse administrators
                                                    in supervising direct care
                                                    to insure maximum utilization of
                                                    therapy aides, subject to the provisions
                                                    of statute and collective bargaining
                                                    agreements, unless modified
                                                    by the consent of affected unions
                                                    and employees.
4. To increase the provision of needed        1.   Cluster professional personnel in relation
    clinical support services to clients.           to client needs as reflected
                                                    by client abilities grouping.
                                              2.   Continually review the utilization and
                                                    need for specific clinical titles. Adjust
                                                    clinical assignments and/or
                                                    employment levels as required by
                                                    changing client needs.
                                              3.   The assignment of clinician duties
                                                    will place a priority on service delivery
                                                    as opposed to record keeping;
                                                    and this will be documented
                                                    through the performance evaluation
                                                    system.
                                              4.   Expand performance standards and
                                                    review the organizational placement
                                                    of discipline coordinators.
                                              5.   Expand performance standards for
                                                    clinical personnel to include the
                                                    training and supervision of direct
                                                    care staff, on all shifts, in the program
                                                    skills and activities.
                                              6.   Seek the involvement of professional
                                                    schools by providing clinical field
                                                    experience at Long Island Developmental
                                                    Center campus.



*146
                                              7.   Where vacancies in professional staff
                                                    have not been filled after good
                                                    faith efforts to do so, equivalent
                                                    personnel shall be made available
                                                    by contracting for part-time services
                                                    and other devices not inconsistent
                                                    with statute or collective bargaining
                                                    agreements, and funds
                                                    may be shifted from line budget
                                                    items for this purpose.
                                              8.   Continue the planning for, and expedite
                                                    the development of, training
                                                    programs for high school and undergraduate
                                                    students giving them
                                                    the opportunity to work part time
                                                    at Long Island Developmental Center
                                                    during peak client activity
                                                    times, subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements, unless modified by the
                                                    consent of affected unions and employees.
GOAL III: Develop an Improved Training Program for Those Charged With Care of
           Clients so That Necessary Program Activities Are Incorporated in the
           Context of Clients' Daily Living
          ---------------------------------------------------------------------
              OBJECTIVE                                       ACTIONS
1. To increase the relevancy of training      1.   Establish a residential training program
    for staff charged with care of                  under a centralized unit headed
    clients.                                        by a Director of Training to be
                                                    utilized for assessing staff competencies,
                                                    training, and for field
                                                    placement of students from academic
                                                    institutions.
                                              2.   Utilizing adult-learning theory, this
                                                    unit will increase efforts to provide
                                                    total competency-based training by:
                                                   a) Identifying basic and site specific
                                                       competencies expected in job
                                                       performance.
                                                   b) Developing realistic assessment
                                                       methods.
                                                   c) Having staff who demonstrate
                                                       competency in any conceptual or
                                                       skill area exempted from training
                                                       in that content area. Life
                                                       safety skills will be assessed every
                                                       six months and retraining
                                                       required as indicated by skill assessment,
                                                       within applicable federal
                                                       and state regulations.
                                                   d) Revising present curricula and developing
                                                       new ones as necessary
                                                       to reflect changing client needs
                                                       to assure relevancy of training.
                                                   e) Incorporating evaluations of training
                                                       into the curriculum revision
                                                       process.
                                              3.   Funds shall be available to permit
                                                    contracts for outside consultants to
                                                    train Long Island DDSO trainers



*147
                                                    when changing client needs require
                                                    staff training beyond the scope of
                                                    the expertise of employees.
                                              4.   Utilizing affirmative action practices,
                                                    staff above-named training unit
                                                    with a team of employees who demonstrate
                                                    the ability to provide
                                                    client care meeting all applicable
                                                    standards, and can serve as a model
                                                    for training and retraining.
                                              5.   Establish an "Ad Hoc" training advisory
                                                    committee with representation
                                                    from Staff Development and
                                                    Training, LIDC Client Services,
                                                    state-operated community-based
                                                    services, voluntary agencies, public
                                                    relations, certification unit, all labor
                                                    organizations, and the Society
                                                    for Good Will to Retarded Children,
                                                    Inc. This committee will provide
                                                    input into the planning, implementation,
                                                    and evaluation of training.
                                              6.   Revise the training delivery model to
                                                    include the appropriate use of:
                                                   a) Onsite, hands on, experiential
                                                       learning.
                                                   b) Role modeling in the training unit
                                                       utilizing a "buddy system."
                                                   c) Centralized classroom learning.
                                              7.   Expand the training of client care
                                                    work teams from residential units
                                                    and program areas in team process,
                                                    communication skills, awareness,
                                                    and continuity of client care
                                                    by integrating direct care staff of
                                                    all three shifts, mid-level supervisors,
                                                    professional staff, treatment
                                                    team leader, parents and support
                                                    service personnel.
2. To expand the availability of training     1.   Expand the pool of trainers by:
    opportunities for staff.
                                                   a) Establishing a mechanism for
                                                       sharing training resources within
                                                       OMRDD.
                                                   b) Developing a training consortium
                                                       with voluntary agencies in the
                                                       Long Island DDSO catchment
                                                       area.
                                                   c) Utilizing more parents and guardians
                                                       of clients in training programs.
                                              2.a) Continue to negotiate academic credit
                                                    (extending beyond life-experience
                                                    credit) for training received at
                                                    Long Island Developmental Center.
                                                b) Negotiate increased numbers of university
                                                    affiliations for:
                                                    Student field placement at Long Island
                                                    Developmental Center in exchange
                                                    for academic faculty offering



*148
                                                    staff training at Long Island
                                                    Developmental Center.
                                                    Academic programs (degree and
                                                    certificate bearing) at Long Island
                                                    Developmental Center.
3. To increase the application of knowledge   1.   Establish a mechanism for evaluating
    and skills acquired through                     the effectiveness of training and
    training to job performance.                    application on-the-job in both residential
                                                    and treatment areas which
                                                    feeds back to Staff Development
                                                    and Training Department to be utilized
                                                    in revising training programs.
                                                    The evaluation process will include
                                                    both trainees and supervisors.
GOAL IV: Proper Repairs to Buildings, Particularly as to Heating and Air Conditioning
         ----------------------------------------------------------------------------
              OBJECTIVE                                       ACTIONS
1. To reorganize the delivery of maintenance  1.   Organize the Maintenance Department
    and environmental services.                     under the supervision of a
                                                    plant superintendent to be responsible
                                                    for all maintenance and environmental
                                                    services.
2. To reduce the number of repairs required.  1.   Continue the maintenance assistant
                                                    repair concept of performing comprehensive
                                                    repairs on a scheduled
                                                    basis and preventive maintenance
                                                    of non-specialized equipment.
3. To improve the quality and quantity        1.   Develop and implement a formal
    of work production.                             training program for maintenance
                                                    and environmental systems staff.
                                              2.   Negotiate with BOCES and private
                                                    trade schools the use of Long Island
                                                    Developmental Center as a
                                                    practical training site for their students
                                                    (with particular emphasis toward
                                                    affirmative action programming),
                                                    and arrange for slots in
                                                    those schools for selected Long Island
                                                    Developmental Center Plant
                                                    Engineering staff to learn new
                                                    skills or upgrade present ones.
                                              3.   Contract with private tradesmen to
                                                    perform specific maintenance and
                                                    environmental systems functions,
                                                    subject to the provisions of statute
                                                    and collective bargaining agreements,
                                                    unless modified by the consent
                                                    of affected unions and employees.
                                              4.   Change existing staff pass days and
                                                    work hours by introducing flextime,
                                                    subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements, unless modified by the
                                                    consent of affected unions and employees.
                                                    This would result in
                                                    greater maintenance coverage over
                                                    an expanded workday. Maintain
                                                    this action on a continuing basis.
                                              5.   On or before June 1, 1989, an additional
                                                    fund of up to $35,000 shall



*149
                                                    be established to hire as temporary
                                                    civil service summer employees
                                                    (high school and college students
                                                    and selected clients) to function as
                                                    helpers for grounds, maintenance
                                                    and environmental systems assistance,
                                                    subject to the provisions of
                                                    statute and collective bargaining
                                                    agreements, unless modified by the
                                                    consent of affected unions and employees.
                                                    Maintain this action on a
                                                    continuing basis.
                                              6.   Utilize a facility-wide "long-term
                                                    leave pool," subject to the provisions
                                                    of statute and collective bargaining
                                                    agreements, unless modified
                                                    by the consent of affected unions
                                                    and employees.
4. To improve the responsiveness and          1.   Establish realistic in-service training
    efficiency of Work Control.                     for supervisory personnel, specific
                                                    to job title.
                                              2.   Formulate for shop distribution, a
                                                    plant engineering parts catalog,
                                                    which will allow for faster identification
                                                    of parts that must be ordered.
                                                    Maintain this action on a
                                                    continuing basis.
                                              3.   Increase the minimum and maximum
                                                    stock levels, especially for those
                                                    specialty parts that are difficult to
                                                    locate or have manufactured.
                                                    Maintain this action on a continuing
                                                    basis.
                                              4.   Purchase appropriate equipment (to
                                                    include those that save labor and
                                                    manpower) and parts to make proper
                                                    repairs.
                                              5.   Clearly identify capital construction
                                                    issues, e.g. roofing, fail safe valves
                                                    and systems, heating, and air conditioning,
                                                    for inclusion in capital
                                                    budget request so that this major,
                                                    time consuming work is not handled
                                                    by local staff, by default. Fail
                                                    safe valves and systems must be
                                                    installed and operational on or before
                                                    July 31, 1989.
5. To improve environmental conditions        1.   All buildings must meet federal
    in all buildings at the facility.               ICF/MR standards of safety and
                                                    habitability, and shall be made fully
                                                    safe and habitable including repairs
                                                    of all leaky roofs, broken or
                                                    missing windows, full operation of
                                                    all air conditioning units, heating
                                                    systems and other known problems
                                                    with the physical plant.
6. To expand utilization of existing rest     1.   Assign project to Quality of Work
    and recreational facilities.                    Life Committee to determine what
                                                    additional facilities are required
                                                    and can be developed within existing



*150
                                                    resources. (Subdivisions client
                                                    and staff, C & S).
                                                   a) Subdivision C (Client) will utilize
                                                       parent participation to plan for
                                                       additional client lounges and
                                                       family visitation areas.
                                                   b) Subdivision S (Staff) will utilize
                                                       union and management participation
                                                       to develop staff lounges,
                                                       activity center(s), and quiet areas
                                                       for personnel.
                                                   c) Subdivision C & S (Client & Staff)
                                                       will combine to formulate plans
                                                       to develop the grounds of Long
                                                       Island Developmental Center to
                                                       meet environmental needs and
                                                       to stimulate the increased use
                                                       of outdoor areas for client programming
                                                       and recreation.
                                              2.   Expand Volunteer Services capabilities
                                                    to enlist aid from local schools,
                                                    fraternities, scouting organizations,
                                                    civic and other groups, to aid
                                                    in grounds beautification projects
                                                    and to provide outdoor recreation
                                                    areas, and other improvements.
GOAL V: Every Client Is Provided, as Required, Adequate Prosthetic Devices; Special
         Clothing Where Required; Specialty Designed Wheelchairs and Carts
         Where Required, and Sufficient Numbers of Vehicles to Transport Them;
         and Furniture Necessary and Appropriate for Clients
        ----------------------------------------------------------------------
              OBJECTIVE                                       ACTIONS
1. To refine the existing system to further   1.   Screen and monitor, through reports
    ensure clients' needs are met.                  by staff and visitors and a computerized
                                                    reporting system, clients at
                                                    least semi-annually to determine
                                                    continued appropriateness of special
                                                    furniture, clothing, wheelchairs,
                                                    and adaptive devices.
                                              2.   Recruit additional qualified professionals
                                                    needed to deliver services to
                                                    all clients with a documented need
                                                    for special adaptive (physical and
                                                    occupational therapy) services.
                                              3.   Properly adapted wheelchairs and
                                                    sufficient special equipment shall
                                                    be provided to all clients, within a
                                                    5% variation in prescription. Such
                                                    equipment shall be provided to persons
                                                    newly admitted to the center
                                                    within six months, and six months
                                                    shall be allowed for new equipment
                                                    when a change in prescription occurs.
                                                    This requirement shall be accomplished
                                                    without regard to any
                                                    obstacles.
                                              4.   Maintain adaptive equipment shops,
                                                    including the supply of parts and
                                                    materials, for construction of
                                                    adaptive devices and special clothing.
                                                    Involve skilled parents and



*151
                                                    guardians and other volunteers in
                                                    the work of the adaptive equipment
                                                    shops.
                                              5.   The facility shall have in place sufficient
                                                    furniture adapted and suitable
                                                    to the needs of clients; any
                                                    state regulations which would impede
                                                    the acquisition of such furniture
                                                    are superseded.
                                              6.   Continue to attempt to develop a contract
                                                    with wheelchair vendor to
                                                    maintain an outlet at Long Island
                                                    Developmental Center with sales-person
                                                    and repairperson scheduled
                                                    regularly, but failure or inability to
                                                    develop such contract shall not excuse
                                                    compliance with goal V, objective
                                                    1, action 3.
                                              7.   Continue to expand the appropriate
                                                    utilization of clothing wardrobes in
                                                    accordance with client ability.
                                              8.   All clients shall be provided with such
                                                    special and other clothing and footwear
                                                    as may be required by professional
                                                    staff memebers, and all limitations
                                                    on state purchasing of such
                                                    clothing are suspended until March
                                                    31, 1992. Any clients newly admitted
                                                    to the facility shall be provided
                                                    with such special and other clothing
                                                    and footwear within 45 days of
                                                    admission.
                                              9.   Defendants shall develop an improved
                                                    system for the marking and
                                                    segregating of individual client
                                                    clothing.
                                             10.   All clients shall be provided with such
                                                    prosthetic devices including footwear
                                                    as may be required by professional
                                                    staff members. Any clients
                                                    newly admitted to the facility shall
                                                    be provided with such prosthetic
                                                    devices including footwear within
                                                    90 days of admission.
2. To refine the existing transportation      1.   The facility shall provide sufficient
    network for transferring clients,               safe and appropriate transportation
    particularly the non-ambulatory, to             to meet the programmatic and other
    all services including day program              needs of all clients, on and off
    and leisure activities.                         the grounds of the facility.
                                              2.   The facility shall maintain its "new"
                                                    ambulance and two ambulettes in
                                                    good repair.
                                              3.   Revise and expand client "travel
                                                    training" programs to increase
                                                    clients' independence in traveling
                                                    between residential and program
                                                    buildings.



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GOAL VI: An Increased Rate of Transfer from the Central Long Island Developmental
          Facilities to Residential or Other Small Community Facilities
         ------------------------------------------------------------------------
                OBJECTIVE                                     ACTIONS
1. To continue to maximize existing procedures    1.   By May 17, 1989, 598 clients from
    and develop new concepts                            Long Island Developmental Center
    for obtaining suitable residential                  shall have been placed in community
    sites for the purpose of developing                 placements, some of fifteen (15)
    community placements.                               bed size or over, but such larger
                                                        size shall, however, be the exception.
                                                        It is further provided that
                                                        the average size of each such community
                                                        residential facility shall be
                                                        no more than 12. These placements
                                                        shall include the development
                                                        of community residences and
                                                        intermediate care facilities. By
                                                        March 31, 1992, the number of persons
                                                        at Long Island Developmental
                                                        Center campus shall not exceed 565
                                                        clients. This includes the persons
                                                        in the Small Residential Units built
                                                        or to be built on the campus. On a
                                                        five day per week, 12 month per
                                                        year basis, six hours of active,
                                                        structured programming shall be
                                                        made available to each client in addition
                                                        to recreation and leisure activities
                                                        unless medically, socially or
                                                        psychologically contraindicated as
                                                        shown by the certification of a
                                                        QMRP (Qualified Mental Retardation
                                                        Practitioner) having a State
                                                        certificate, but lack of resources
                                                        shall not be the basis for such certification;
                                                        provided, however, that
                                                        each client has the right, after being
                                                        fully advised, to refuse any
                                                        such programming. The professional
                                                        staff may define structured
                                                        programming to include equivalent
                                                        programming in non-classroom or
                                                        equivalent settings. In each case a
                                                        member of the professional staff
                                                        must certify on the client's record
                                                        why the variation is required.
                                                        Compliance with § 483.440 of 42
                                                        C.F.R. shall be deemed sufficient
                                                        compliance with this requirement.
                                                        Such clients shall also receive all
                                                        medical and other support services
                                                        necessary.
                                                  2.    The implementation of an investor
                                                         program to facilitate property lease
                                                         and acquisition.
                                                  3.    The construction of homes for specific
                                                         populations whose needs cannot
                                                         be met by existing housing stock,
                                                         such as the non-ambulatory, geriatric,
                                                         and sensory impaired.
2. To increase recruitment efforts for            1.    Improve recruitment efforts utilizing
    family care (foster care) and personal               such strategies as radio and TV,
    care providers.                                      print media, and continuous, widespread



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                                                        contact with charitable, religious,
                                                        and service organizations to
                                                        recruit potential providers of service.
3. To improve and expand the network              1.   Make available community-based day
    of other than residential services to               programs such as education, day
    ensure that client placements are                   treatment, and day training to accommodate
    qualitatively maintained.                           the needs of the client
                                                        population to be placed in the various
                                                        residential programs.
                                                  2.   Make available to residential providers
                                                        and their clients the means to
                                                        access necessary support services,
                                                        with specific reference to medical
                                                        and dental services.
                                                  3.   Provide case management services to
                                                        the client population placed on the
                                                        basis of individual client need, for
                                                        the purpose of monitoring the quality
                                                        of that placement, and wherever
                                                        necessary, provide technical assistance
                                                        to the client for the purpose
                                                        of accessing needed services.
4. To better utilize client need as the           1.   Expansion of the request for proposal
    determinant for the type of community               process whereby clients are
    resource selected.                                  grouped according to specific representative
                                                        characteristics, e.g.,
                                                        self-preservation, functioning level,
                                                        age, in preparation for placement
                                                        in community-based living situations.
                                                  2.   To the extent practicable, clients to
                                                        be placed in a given fiscal year are
                                                        designated prior to the beginning
                                                        of that year so that residential resources
                                                        such as family (foster)
                                                        care, personal care homes, community
                                                        residences, intermediate care
                                                        facilities, and skilled nursing facilities
                                                        can be made available to meet
                                                        client needs.

3. Defendants shall maintain continuing substantial compliance with Medicaid certification requirements in all units, buildings, and programs at LIDC, i.e., they shall meet substantially all "conditions of participation" included in 42 C.F.R. 442.483, as amended, as well as the following specific standards; these conditions and standards reflect current professional consensus on minimum standards required to protect the health of these clients who are incapable of protecting themselves; under the circumstances of this case with so many years of severe constitutional violations, the court finds they are necessary to overcome past violations:


483.410(b)  health, safety, sanitation
   .420(a)  client rights
   .420(c)  communication
   .420(d)  abuse and neglect
   .430(b)  professional program services
   .430(c)  facility staffing
   .430(d)  direct care staffing
   .440(a)  active treatment
   .440(c)  individual program plan
   .440(d)  program implementation
   .440(f)  program monitoring and revision
   .450(b)  behavior management
   .450(d)  physical restraints
   .450(e)  drug therapy
   .460(a)  physician services
   .460(c)  nursing services
   .460(e)  dental services



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   .460(j)  drug regimen review
   .470(a)  client living environment
   .470(b)  client bedrooms
   .470(c)  storage space
   .470(d)  client bathrooms
   .470(e)  heating and ventilation
   .470(g)  space and equipment
   .470(h)  emergency procedures
   .470(j)  fire protection
   .470(k)  lead-free paint
   .470(l)  infection control
   .480(b)  meal service
   .480(d)  dining areas

4. Services, benefits, accommodations, and programs, including but not limited to vocational and pre-vocational programming and community placement opportunities, shall not be denied to any class member or group of class members on the basis of the nature or degree of their handicapping conditions or on the basis of generalized assumptions that they are unable to benefit from certain activities or services.
5. The preliminary injunction heretofore entered in this case on March 31, 1989 is merged into this permanent injunctive order.
6. Between May 17, 1989, and March 31, 1992, approximately 400 persons will be placed off campus in community residences of an average size of not more than 12, so that the client census at LIDC will be no more than 565 by March 31, 1992.
7. Plaintiffs' counsel and their experts shall be allowed reasonable access to all class members and their records, and to all programs, facilities, and staff members serving or accommodating such individuals.
8. Defendants shall submit to plaintiffs' counsel, within seven working days of receipt or issuance, copies of the following documents:
(a) All State or Federal statements of deficiencies, plans of correction, notifications of adverse action, and other substantive correspondence relating to Medicaid ICF/MR compliance surveys of any building, unit, or program at LIDC;
(b) Director's reports to the LIDC Board of Visitors and the minutes of Board of Visitors' meetings;
(c) Any reports of the New York State Commission on Quality of Care for the Mentally Disabled regarding any building, unit, or program at LIDC or any member of the plaintiff class, and any responses thereto or other substantive and relevant correspondence;
(d) Any reports of any other monitoring, licensing, or accrediting body regarding LIDC or any member of the class, and any responses thereto or other substantive and relevant correspondence.
9. Defendants shall report to plaintiffs and the Court on September 15, 1989, and annually thereafter, in a written format acceptable to plaintiffs, as to the defendants' compliance with each provision of the order of the Court.
10. This order shall be in effect until March 31, 1992.
11. Jurisdiction is retained over this matter until further order of the Court.
12. This constitutes a final judgment. The Clerk shall mark the case closed, subject to reopening on motion of any party.
So ordered.
