The Pennhurst Case

Philadelphia Inquirer front page feature on David Ferleger's 23 year involvement in the landmark litigation.

November 4, 1997

The suit, which alleged widespread abuses against the retarded at the Pennhurst State School and Hospital in Chester County, ultimately forced the institution to close. It led to landmark court rulings that gave a legal underpinning to suits against other facilities where the retarded were warehoused and neglected around the country.

The Pennhurst case earned David Ferleger a national reputation. But 23 years later, his lawsuit drags on. It is the oldest pending federal litigation in Philadelphia. Its files consume four shelves in the court clerk's office -- enough space for several hundred ordinary civil cases. The docket -- the equivalent of a table of contents of the case -- contains 3,200 entries and is 180 pages long.

At 49, David Ferleger is still prosecuting the case. And the judge to whom it was assigned back in 1974, Raymond J. Broderick, is, at 83, still presiding over it.

Today, the former residents of Pennhurst are the special clients of a large Philadelphia bureaucracy set up to serve them at great expense. If the city fails to comply with court requirements for their care -- and Ferleger is hyper-vigilant in citing any shortcomings -- it risks huge contempt fines from the judge.

Meanwhile, the families of thousands of other retarded Philadelphians -- those who never passed through Pennhurst -- wait for basic services that the city says it cannot afford because of the extraordinary court-ordered efforts to help about 550 in the Pennhurst group. So intense have those efforts become that the city's Pennhurst Management Team, spurred by Ferleger, resisted a family's urgent request last year that a 70-year-old man, severely retarded, totally disabled and in a vegetative state, be allowed to die in peace in a nursing home.

Ferleger demanded that the man be moved to a community residence in compliance with Broderick's requirements for former Pennhurst residents -- a move the man's family insisted would kill him.

Ferleger's adversaries -- lawyers for the city and the state -- say he is a public-interest lawyer gone off track. They accuse him of dragging out the Pennhurst case and milking it for fees that have exceeded $100,000 a year in recent years.

Earlier this year, Stephen C. Miller, a senior attorney in the City Solicitor's Office, asserted in papers filed in court: "Mr. Ferleger has a problem separating the merits of the case from the merits of his fee award."

Ferleger labels such attacks "desperation" thrusts by opponents who could face monumental fines.

It is the city and the state, he contends, that have dragged out the Pennhurst case by failing to comply with orders from Broderick that mandate services for ex-Pennhurst residents now living in Philadelphia.

"I've been working on this case half my life. I am ready to have it finished," Ferleger said in an interview. "I was ready to have it finished years ago."

For his part, Broderick -- a tall, slender man with a wavy white mane, a chiseled face and slightly ruddy complexion -- takes tremendous pride in what has grown from his rulings in the Pennhurst case.

"Over the years, the doctrine of Pennhurst has been accepted," the judge said in an interview in which he discussed the history, but no active legal aspect, of the case. "Most experts don't hesitate to say now that the mentally retarded should be in the community."

But Broderick is eager for the litigation to end.

In recent orders, he has called for a conclusion by the end of the year.

The acrimony between the opponents has become so vitriolic as to make that goal seem doubtful.

Says Ferleger: "The city's still in contempt. The state is still in contempt. I don't see any end in sight."

PENNHURST OPENED in 1913 as the Eastern Pennsylvania Feeble Minded and Epileptic Institution. Over the years, it degenerated into a place of terror and the macabre.

Ferleger's 1974 class-action lawsuit charged that the retarded people interned there were victims of federal civil-rights violations. At trial in the mid-1970s, he and other lawyers who joined the case presented evidence that residents were confined in restraints, sedated with psychotropic drugs, beaten and sexually abused.

Young people entering the institution with modest skills -- the ability to groom and feed themselves -- soon lost those abilities inside Pennhurst's walls.

All this was occurring at huge public expense in an institution with 1,230 residents and a staff of 1,500.

On Dec. 23, 1977, Broderick issued his finding: The rights of the retarded residents of Pennhurst had been grossly violated. They had been denied equal protection under the law.

"These are individuals who have not broken any laws, carry no contagious disease, and are not in any way a danger to society," Broderick wrote. He ordered the residents of Pennhurst returned to their communities, to be placed in residential settings and given the training, education and care needed to help them develop. "If anyone is in need of training, education and care," he wrote, "they are."

The ruling was the focus of many appeals. The U.S. Supreme Court heard arguments three times.

Finally, the case was settled in 1985. The state agreed to close Pennhurst. The residents would receive community care. The judge would retain jurisdiction to assure their needs were met.

Carrying out that agreement became a sluggish, contentious process.

At a lengthy contempt hearing in 1993, evidence showed that as many as 55 former Pennhurst residents who should have been moved to community homes in Philadelphia merely had been transferred from Pennhurst to other institutions. The city and state had lost track of others. For still others, no plans had been drawn for their care. Some were lacking eyeglasses and wheelchairs. Thirty-one had never been visited by a case manager. Incidents of neglect, death, injury and abuse had gone unreported. On March 28, 1994, Broderick issued a scathing denunciation of those failures and held the city and state in contempt. He threatened to impose a $10,000-a-day fine -- to be split by the city and the state -- for each violation unless the problems were corrected.

The Pennhurst litigation for the last three years has narrowed to a microscopic examination of details of the care and management of each retarded person.

Ferleger has an unusually commanding role in the litigation. He is, in effect, a lawyer without a client. He represents 550 people, but none tells him what to do. Because he prevailed in the case, his fees must be paid by the city and state, subject to court approval. Whatever legal work he thinks needs to be done, he does, and bills for it -- at $250 an hour.

At a hearing in 1995, Barry M. Klayman, a lawyer representing the state Department of Public Welfare, protested: "Mr. Ferleger decides what he wants to do, when he wants to do it, without any controls by any outside individual. He does not consult with any clients. He does not have any clients."

Ferleger retorted that, under the law, he had an ethical duty to make decisions in behalf of the ex-Pennhurst residents because their disabilities rendered them unable to make decisions for themselves.

STRIKING IN APPEARANCE, with large, blue eyes and a full, graying beard, David Ferleger is the son of Holocaust survivors. And the Holocaust, he says, has given direction to his legal career.

One of Hitler's first steps toward building a German master race was to annihilate the mentally retarded and mentally ill.

Ferleger prides himself on devoting his legal career to representing people with those infirmities.

Contrary to the claims of his critics, he said, he has not gotten rich at the job.

"Some years I lose money," he said. "Some years I make a little money. Some years I make a substantial amount of money. But there have been some years when my secretary has made more money than I have."

Ferleger is a sole practitioner. He has a spartan office in a narrow, nondescript building on 20th Street near Chestnut.

Though his fees have recently exceeded $100,000 a year in the Pennhurst case, those fees are only a fraction of the aggregate costs of the continuing litigation.

Since 1993, more than $2.3 million from city and state treasuries has been spent on lawyers' fees and fees of the special master -- a sum that would provide a full-time day program for a year for 230 of the retarded people on Philadelphia's waiting lists.

Every penny of that $2.3 million -- and every other expense related to Pennhurst -- is paid by taxpayers.

Volumes, literally, of reports and pleadings are churned out in the litigation almost as if on a production line.

Much of the verbiage focuses on the details of care provided, or not provided, to those in the Pennhurst group.

In a February 1996 report to Broderick, Special Master Tony Records said he had reviewed the care to 112 ex-Pennhurst residents and turned up violations of the judge's orders in 12 percent of the cases.

But he recommended against fines, saying the city and state were making "considerable effort" to correct the violations.

In his court pleadings, Ferleger asserts that the needs of many in the Pennhurst group aren't being met. He pounds a steady drumbeat urging Broderick to levy fines.

In the three years since he threatened fines, Broderick has not once issued one.

"I think Judge Broderick has been extraordinarily patient," Ferleger said. "Too patient."

FOR THE CASE TO END, the city and state must comply with 14 legal requirements set down by Broderick in 1994 for each Pennhurst class member. Each must have a case manager. Each must be settled in a supervised home called a community living arrangement. Each must have a dental and health-care program. And so on.

The most demanding of Broderick's requirements is that each Pennhurst class member, no matter how severely handicapped, must have a detailed "habilitation" plan with itemized therapies and programs aimed at developing any potential skills.

The costs of complying with Broderick's order are so huge -- $100,000, on average, for each Pennhurst class member -- that even Ferleger says he is sometimes appalled.

Citing a case where services for one person cost more than $200,000 a year, Ferleger said: "This is ridiculous. I mean, I like my clients getting money, but this is crazy."

Broderick does not concern himself with what it costs to carry out his orders. The judge has a deep affection for all retarded people but says it is not his fault if heavy spending on Pennhurst class members creates inequities that deny service to others.

As for bringing the case to an end this year, Tony Records wrote to Broderick in March: "This will be an extremely difficult task to accomplish."

Everyone, he said, would have to cooperate.

In recent months, Ferleger has turned up the pressure on the city and state, with demands for information, deposition notices, letters, subpoenas.

In May, Stephen Miller, the lawyer representing the city Health Department, accused him of harassment and intimidation.

Miller and lawyers for the state argue in legal papers that Ferleger is grossly overinvolved in the management of care for his clients. In Miller's words, he has become "a bull in a china shop."

Broderick has been unmoved by such grievances. In approving Ferleger's $250-an-hour rate in 1995, the judge issued an opinion in which he endorsed Ferleger's aggressive role.

"The court gives great weight to Mr. Ferleger's 23 years of experience . . . on behalf of people with disabilities," Broderick wrote. "The court takes judicial notice of the fact that over the course of his career, Mr. Ferleger has developed a national reputation in his field."

Records labors to play a neutral, middle-man role in working among the sparring parties to end the litigation. Conferences with all combatants together in the same room have proved unsuccessful. Records engages in shuttle diplomacy, going from one party to another.

"It is difficult sometimes to move forward," said the low-key Records, "when you have parties who can't agree on the size of the table."

ESTELLE RICHMAN, the city health commissioner, says the Pennhurst litigation gobbles up resources and puts a tremendous strain on her department's programs for the retarded.

"The longer we stay in, the harder it is to get out," Richman said, "and it affects everything around us."

Susan Pingree, chief of the Health Department's Pennhurst Management Team, said her goal is to see that the court order is carried out, and that a structure is put in place to assure that when court supervision ends, quality services will remain for the Pennhurst group.

"We are very much committed to fixing it and fixing it so it lasts," Pingree said.

Richman hates the fact that the Pennhurst Management Team is necessary.

But it is, she added. "We're scared to death if a need isn't met, we are going to get hit with a $5,000-a-day fine. We would have to deny everybody everything if we ever got hit with those fines."

If fines are levied, the state Department of Public Welfare, which oversees programs for the retarded, would also have to pay $5,000 a day.

It is particularly difficult to satisfy the strict requirements of the court order, Richman said, because any system that provides care for such a vulnerable group as the retarded, whether in institutions or in the community, is bound to have shortcomings. If problem cases are continually laid before the federal court, contempt orders could go on forever. Even after the Pennhurst case concludes, there is no guarantee that new litigation might not arise if the quality of services to the class members is questioned again. Richman said she had three goals: To end the litigation. To get rid of the two-tiered system in her department and reunify its retardation programs. And to provide more equitable services to all who are in need.

She said she hoped to fulfill those goals before Mayor Rendell left office.

"Two and a half years and counting," Richman said with a determined nod.

WHAT DOES THE FUTURE HOLD for those 550 disabled people from Pennhurst, now the object of so much attention?

This much is certain: All of them are getting older. Their average age is 50. In time, many are destined to need medical and nursing care that cannot be provided in a community-living arrangement. At that point, the decree of a federal court aimed at providing them with richer lives may lose relevance. Does a 70-year-old retarded man in failing health, for example, really need "occupational therapy"?

Many of the case files already tell grim tales of aging people, severely retarded, in deteriorating health. They are incontinent, suffering from Alzheimer's disease, disoriented. And their afflictions are likely to worsen.

Anthony Felicione was 70 and far beyond anyone's ability to do much for him but keep him comfortable.

Felicione was severely retarded, deaf, mute, and nearly blind. He couldn't walk and suffered a host of medical problems. He had persistent bladder infections and severe respiratory problems, and his bones were so brittle that they could break almost at a touch.

Felicione was one of the longtime residents of Pennhurst, admitted as a teenager in 1942. He came from a family in Philadelphia that never stopped visiting him and, in his old age, battled the Pennhurst bureaucracy over his care.

When Broderick ordered Pennhurst emptied and its residents returned to their communities, Felicione presented a difficult case.

Because of his many health problems, he ended up in a nursing home, Simpson House, at Belmont Avenue and Monument Road. But Broderick's order made no provision for nursing-home placements.

The city, after Broderick's 1994 contempt order, came under tremendous pressure to move the fragile Felicione to a community-living arrangement.

Felicione's brother, John, of Northeast Philadelphia, vigorously opposed any move. He was convinced that his brother, lost in a vegetative state, was receiving excellent care in the nursing home. He believed that his brother was at the end of his life and the kindest thing was to leave him alone and let him die in peace. To move him, John Felicione argued, would kill him.

The most outspoken advocate for Anthony Felicione's transfer was David Ferleger. In Ferleger's view, there was no room for exception to the rule that everyone from Pennhurst was to be settled in a community-living arrangement.

The Pennhurst Management Team in July 1996 considered moving Felicione to a ranch house in Northeast Philadelphia. City officials estimated it could cost as much as $500,000 a year. In addition to a full-time resident staff, Felicione would require round-the-clock nursing.

John Felicione wrote a letter to Ferleger in September 1996 saying, "We who are his next of kin are frightened to death at the prospect of his being removed from his present home. . . . Surely you are missing a lot of facts if you believe that mental retardation is a factor in Anthony's needs today."

Ferleger wrote back, thanking him but pointing out: "Your brother's situation was litigated before the federal court and is the subject of a number of orders now which require his placement."

Late last year, the special master in the Pennhurst case recommended leaving Felicione in the nursing home -- at least for a year. Broderick agreed.

Before that year was up, Anthony Felicione ended the dispute over his care all by himself. On March 8, he died.

John Felicione is still troubled.

"At age 70, you're not going to rehabilitate a person like my brother," he said in an interview. "The issue of community care for these poor people is really a misguided issue. The system, instead of helping these people, acts as their enemy.

"There must be dozens of people who are affected by this. What's going to happen to these people in the community living arrangements when they get a little older? What's going to happen when they need medical and nursing care and not community-living arrangements?

"The system is not ready for that yet," Felicione said. "It has not graduated to that yet. It hasn't recognized that need yet."