Pennhurst State Hopsital & School

http://www.cqcapd.state.ny.us/counsels_corner/cc5.htm
The Supreme Court: Pennhurst Decision by Paul F. Stavis
[First published, Quality of Care Newsletter, Issue 5, May-June 1981]

The recent decision of the United States Supreme Court in Pennhurst v. Halderman (April 20, 1981) is certainly the most important judicial pronouncement on the role of institutions in the treatment of the mentally disabled. This opinion by the Supreme Court is not only important in its caution to lower federal courts to avoid imposing the drastic remedies of assuming direct supervision of state facilities pursuant to litigation, but perhaps more importantly, it defines the extent to which Congress can dictate by legislation and its Spending Powers how a state provides care and treatment by legislation.
Since the revolutionary changes in the treatment of the mentally disabled by the states have come from the federal government, primarily through congressional and executive initiatives, it would be hard to underestimate the impact of this decision which circumscribed Congress' power to mandate programs by the states while not adequately funding the consequential expenditures.
The posture of the Supreme Court can be viewed as protecting the state's authority to develop its own methods of treatment and to render that treatment where it chooses; either in institutions or in the community, as long as there are humane conditions in the basic setting. More importantly, the opinion in Pennhurst asserts what might be called a first declaration of a state's right to know or be informed of what requirements it will assume when it accepts federal money under legislation based on Congress' Spending Power.

Decisions of Lower Federal Courts
The issues in the Pennhurst cases are rather typical of many other federal cases which have not only challenged the conditions at mental hygiene institutions but also which have challenged the very existence of the institutions themselves. The named plaintiffs (often designated as classes to represent thousands of individuals living in the institutions now and in the future) claim that the institution is not in fact providing humane conditions nor minimally adequate care and treatment, and inherently cannot do so. Plaintiffs' desire to have such a finding and declaration based upon the United States Constitution, making their claims of the law impervious even to congressional legislative tampering. However, there have been many new laws passed by Congress in the area of mental hygiene and developmental disabilities which seemingly provided support for the plaintiffs' viewpoints.
The Pennhurst litigation began in 1974 alleging on behalf of its past, present, and future residents that conditions were so poor that they violated the United States Constitution as well as State law. After years of pretrial maneuvering and procedures and thirty-two days of trial, the District Court held that the plaintiffs had a federal constitutional right to "minimally adequate habilitation... in the least restrictive environment.'' Significantly, the District Court based much of its decision on the U.S. Constitution and also on the Rehabilitation Act and state law. The District Court ordered that the Pennhurst institution be closed and that all residents be placed in the community within detailed procedures and with specified care.
The decision was then appealed to the Court of Appeals. which decided the case "en banc," i.e., with all members of the court sitting rather than the usual panels of only three judges. This decision reversed just that portion of the order closing Pennhurst, basically upholding the decision of the District Court, yet doing so on totally different legal grounds. This Court refused to find constitutional violations. but rather held that the Developmental Disabilities and Bill of Rights Act of 1975 (DD Act) justified most of the relief granted the plaintiffs. Indeed, not only did the Court of Appeals provide entirely new legal theories to rationalize the order, but the specific federal law relied upon, the DD Act, was never brought up by the parties in the litigation up to that time. This fact was noted subsequently in the Supreme Court's opinion by Justice Rehnquist: "It is perhaps suggestive of the novelty of the Court of Appeals' decision that none of the respondents briefed the Act before the District Court, nor raised it in the Court of Appeals."

Doctrine of Informed Consent by the State
As previously noted. the Supreme Court in Pennhurst made what might be termed the first "states' rights" decision in the area of mental hygiene litigation. The Court declared that a state. when it deals with federal-funded programs passed pursuant to Congress' spending power, has a right to "informed consent," much like informed consent for medical treatment which an individual enjoys. This concept, in my judgment, is the single most important ruling made in the Supreme Court's decision because it will affect other federally-funded programs in mental hygiene and other areas.
The Court ruled that Congress cannot give a state minimal financial assistance (Pennsylvania received only 1.6 million dollars pursuant to the Developmental Disabilities and Bill of Rights Act at issue) and on that basis impose requirements which legally and judicially could force the states to expend many times the amount of the assistance. The Supreme Court emphatically said that: "It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating states... a sum woefully inadequate to meet the enormous burden of ...[this law]." Justice Rehnquist, in speaking for the majority, stated the basic rights of the states when undertaking the responsibilities under federal spending programs:

There can, of course, be no knowing acceptance if a state is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.
It would be inaccurate to characterize this principle as novel in Anglo-American jurisprudence in regard to individuals; its uniqueness is rather in the applicability to a state government in its dealings with the federal government. Informed consent, or more simply, a notification of expectations represents little more than a requirement of elementary fairness in many societal interactions. In applying for a job, a person should be informed of what duties, responsibilities and dangers might reasonably be anticipated. It is also a basic principle in contract law what obligations upon the parties be clearly stated, as well as in health care or medical treatment and many other person service arrangements. In other words, either individuals or organizations, including governments, have a basic right to know what obligations they are getting into before signing on the dotted line.
More significantly, in elaborating upon the specific elements of the states' right to informed consent, the Supreme Court places the burden of clarity upon Congress in the first instance. The Supreme Court said that "[t]hough Congress' power to legislate under the Spending Power is broad, it does not include surprising participating states with post-acceptance or 'retroactive' conditions." The Supreme Court discussed the specifics of this doctrine, saying that:

Congress must express clearly its intent to impose conditions on the grant of federal funds so that the states can knowingly decide whether or not to accept these funds;

The critical inquiry is not whether a state would knowingly undertake the obligation, but whether Congress spoke so clearly that we can fairly say that the state could make an informed choice. Or, in other words, the burden is on Congress to precisely inform the state of what will be legally expected;

Part of the state's understanding may be based on the statements of those officials of the executive who are responsible for administration of the congressional programs, as well as the clarity of the congressional intent; and,

Lastly, even in the event that a state has accepted the burdens of a federal funding program, the remedy for state non-compliance cannot be greater than a termination or a return of federal funds. A federal funding program should not establish a roulette game where state non-compliance would inflict massive expenditures upon it. The sole available remedy is to terminate the funds flowing to the state.

There have already been numerous memoranda analyzing the long-term ramifications of this decision and its affect on New York State and elsewhere by the Department of Mental Hygiene and by groups typically supportive of the plaintiffs' point of view, e.g., the Mental Health Law Project. There will surely be much discussion and writing in the future. Predictably, the states will see this as a victory and many plaintiff-oriented organizations will think that the decision by the Supreme Court shows little sympathy for the medical plight of the disabled. However, in all of these early commentaries, there has been little attention paid so far to the state's right to "informed consent" doctrine articulated in the Pennhurst case. The real significance of the Supreme Court's decision in Pennhurst might well lie beyond the issues of the rights of the mentally and developmentally disabled, the real issue might be in the realm of the states' right to be controlled by Congress and the federal courts. Perhaps this decision is a harbinger of a new direction for the Supreme Court away from federal intervention and control of state activities, not only for funding of mental hygiene programs, but in the many other areas of federal spending programs.
Lastly, an issue noteworthy for the lack of its resolution is the claim that there is a "right to treatment" under the United States Constitution. The Supreme Court refused to decide this issue in the landmark case of O'Connor v. Donaldson and noted again in Pennhurst that:

"This court has never found that the involuntarily committed have a constitutional 'right to treatment,' much less voluntarily committed."
With the numerous federal lower court cases which have found that such a right does exist (e.g., Pennhurst), chances are good that it will be addressed by the Supreme Court eventually.

In conclusion, the Supreme Court did not decide whether these rights to care and treatment exist under the Constitution or Pennsylvania law. It remanded those portions of the litigation back to the lower courts for further consideration. Thus, at this stage the viability of the mental hygiene institution while a bit more secure, is not a certainty.