regulation, there are nonetheless important reasons for examining these proposed changes. Some social programs, like the Legal Services Corporation, are funded on the basis of the number of people living in poverty. Other programs, like the Community Services Administration, use the official definition of poverty or some multiple of it (for example, 125 percent of the poverty threshold) for eligibility purposes. Finally, and perhaps most important, the perception of changes in the poverty population can be crucial in terms of influencing legislation and to a lesser extent, administrative action. If Congress and the public become convinced that poverty in America is receding, as some powerful factions are now arguing, then they are not as likely to support social programs aimed at ameliorating the plight of the poor. On the other hand, if the number of poor persons increases, social programs may gain needed political support.

Proposed Changes

At a meeting of the Federal Interagency Committee on Income and Wealth Distribution Statistics in November 1979, the Committee agreed to recommend the following changes to the current official statistical definition of poverty.

• Elimination of differences in the poverty thresholds for male and female-headed families of the same type through use of the weighted average of the poverty thresholds of male- and female-headed families.

• Elimination of differences in the poverty thresholds for farm and nonfarm families through use of nonfarm thresholds for all households.

Extension of the poverty matrix to families of up to 11 or more persons.

At the national level, these proposed changes would have the combined effect of slightly increasing the number of people officially defined as being in poverty. In 1978 these changes would have the combined result of adding approximately 700,000 people to the poverty population, bringing it to a total of 25.4 million.' Each of these proposed changes to the definition of poverty would have slight beneficial effects on the legal services community and should be supported.

The efforts to eliminate the differential between maleheaded and female-headed households is spurred by legal arguments from the Justice Department regarding sex discrimination. More specifically, the Department's Task Force on Sex Discrimination found that Statistical Policy

Directive No. 14, "Definition of Poverty for Statistical Purposes," discriminates against women. The original rationale for the different thresholds was based on the higher dietary needs of males. However, it is now being argued that the difference in nutritional requirements (if real) should not carry over to all other areas of consumption, as the current application implies. The current formula simply takes the cost of the food plan and multiplies by three, thus ignoring the fact that nonfood cost should be the same for male and female heads of households.

The elimination of the differential between male- and female-headed households changes the overall figures only slightly because the new threshold would be a weighted average of the former male- and female-headed thresholds. The number of female-headed families added to the poverty population because the female-headed threshold is raised is nearly balanced by the number of poor male-headed families which will be eliminated because the male-headed threshold will fall. The net result of this proposed change is an addition of approximately 300,000 people to the poverty population.

The original poverty definition set the farm threshold at 70 percent of the nonfarm threshold, based on the assumption that many farm families grow some of their own food. The farm threshold was raised to 85 percent of the nonfarm threshold in 1969. While the current proposal to eliminate the differential altogether will have a small effect on the total number of poor people, it may increase the poverty population substantially in certain areas of the country those areas which are primarily rural and agricultural.

The extension of the poverty matrix to families with 11 or more members will have little effect on the poverty statistics. This change is largely the result of the increased sample size used in the Current Population Survey, which now allows this more detailed description of the poverty population. Under the current definition, the same income standard is applied to all families with seven or more persons. This standard is probably too high for seven-person families but too low for larger families (those with 10 or more members). By applying separate thresholds for families of seven, eight, nine and ten persons, some seven- or eight-member families will no longer be considered poor, while more families with nine, ten and eleven or more members will be classified as poor. The net result is the addition of about 100,000 to 200,000 people to the poverty population.

These proposed revisions have now been approved by the Statistical Policy Coordinating Committee, which is the cabinet-level group overseeing such matters. The Office of Federal Statistical Policy and Standards (OFSPS) is presently preparing to brief Congress and the Office of Management and Budget on the substantive ramifications of the proposed changes. Subsequent to the briefings, the proposed changes will be published in the Federal Register for comment. Many antipoverty groups, including NSSLP, will undoubtedly use this opportunity to register their complaints about the official measurement of poverty and argue that the present poverty standard is deficient in many ways and should be more substantially modified.

Assuming that the comment period runs smoothly, OFSPS will issue a directive which will implement these changes in time to be used in the tabulation of the 1980 cen

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sus. Since the 1980 census will provide the basic poverty figures to be used for the next ten years, it is crucial to get these changes implemented before tabulation of the poverty data from the census begins.

The second recent initiative is much more obvious. In April 1980, James McIntyre, Director of OMB, sent a letter to all federal agencies asking for their reaction to the suggestion that "food stamp benefits be treated as income under the poverty guidelines." This idea was popularized in a Congressional Budget Office study released in 1977. Inclusion of in-kind benefits as income drastically reduces the

6. Poverty Status of Families Under Alternative Definitions of Income (Congressional Budget Office Background Paper No. 17, October 1977).

number of people defined as poor. NSSLP and other advocates for the poor argued strongly against this proposed change and apparently have blunted this initiative for the time being.

Current plans seem to indicate that OMB will not push for a change in the official definition of poverty at this time but will attempt to have the Census Bureau calculate and publish a statistical series which incorporates the concept of in-kind income in defining property. This type of series could be very damaging to those lobbying for increased benefits for social programs because it will be used by opponents of poverty programs to show a drastic decline in the number of people denoted as "really" poor.

While our efforts, along with others, have stymied this proposal for the present, it is clearly an issue which will not disappear.

In Washington, D.C., as in other large cities, there are hundreds of chronically mentally ill people living in unsafe and unsanitary housing or wandering the streets. Many of these people need and would use appropriate mental health and support services if they were available. Additional hundreds of mentally frail, elderly and other persons live at St. Elizabeths Hospital, the federally supported mental institution serving the District of Columbia, who do not need treatment in a 24-hour psychiatric hospital but who do need some sort of therapeutic and supportive services in the community. Like many other cities, the District of Columbia has too few programs to serve these mentally handicapped people and lacks an administrative system to coordinate the multitude of city agencies responsible for various aspects of their care and treatment.

In 1974 the Mental Health Law Project brought suit on behalf of voluntarily and involuntarily hospitalized mental patients who could suitably be treated in the community to require the creation of treatment alternatives less restrictive than the hospital. Finding a statutory right to appropriate treatment in the least restrictive setting, the federal district court, in a landmark decision, held that the city and federal governments had a joint obligation to provide plaintiffs suitable care and treatment outside the hospital. Dixon v. Weinberger, 405 F. Supp. 975 (D.D.C. 1975). After several years of unsatisfactory implementation by the city and the hospital, the court ordered defendants to propose a plan as the basis for a remedial order. The plaintiffs found the defendants' original plan unacceptable but subsequently

negotiated a compromise plan which was accepted by all parties and approved by the court on April 30, 1980.

The plan and accompanying consent order (Clearinghouse No. 17,175-I) represent a major effort to address the difficult problems involved in implementing such a judicial order one which requires change in the basic policies of a large service-providing bureaucracy. These problems include stimulating sound planning to implement change, gaining the commitment of people in the bureaucracy to the changed policies and obtaining enough information to know whether the services that have been ordered are being delivered. The Dixon consent order is the product of negotiations on these issues. It obligates defendants to assess the need for services, to report to the court on the results of a specified planning process and to provide certain services by certain dates. It also authorizes and funds a plaintiffs' monitoring committee to gather information, make recommendations and continue negotiations with the defendants.

Under the settlement, the defendants are obligated to provide plaintiffs specified community mental health care, appropriate residential arrangements and designated community-support services. The plan provides that the defendants may meet their obligations through the provision of services, some of which are currently covered by Medicaid, SSI, vocational rehabilitation, etc., but it does not condition their obligation on reimbursement under these programs. The services must be provided to all class members who need them, whether or not they are part of another program.

the provision of needed residential care and community treatment meeting minimal standards.

While many inappropriately hospitalized people could obtain release through the review procedures provided in the 1964 Hospitalization of the Mentally Ill Act (21 D.C. Code §546), they had not been determined legally entitled to appropriate treatment outside the hospital. For them the treatment choice was between hospitalization or nothing. Plaintiffs in Dixon asserted a constitutional right to treatment in the least restrictive setting under the due process clause of the fifth amendment and a right to appropriate treatment in the community under section 562 of the 1964 Act.

As certified by the court on February 7, 1974, the plaintiff class includes

[A]ll persons who are now or who may be hospitalized in a public hospital pursuant to 21 D.C. Code §504, et seq. and who need outplacement from that public hospital, as presently constituted, into alternative care facilities, such as nursing homes, foster homes, personal care homes and halfway houses, in order to receive suitable care and treatment in the least restrictive setting possible. This class includes patients who are now or who may be on convalescent leave status from the public hospital and who have been or may be placed in alternative care facilities that are not providing suitable care and treatment in the least restrictive setting consistent with the patients' needs for care and treatment.

There is some dispute as to whether "persons who may be hospitalized" includes only persons who, in fact, have been and will be hospitalized after the date of the order certifying the class or whether it includes all persons who are in jeopardy of being hospitalized in the future. This issue has not been litigated. However, by its own terms the plan included in the consent order creates obligations to "patients" who, "while not technically members of the plaintiff class, will receive mental health and community support services envisioned in the plan." (Plan, at 4) It is interesting to speculate on the legal rights of nonclass members to enforce the terms of a court-approved settlement agreement which by its own terms creates obligations of the defendants to serve nonplaintiffs. There is, however, no question that the class includes all persons who were inpatients or convalescent-leave outpatients on February 7, 1974, or who attained such status thereafter.

There is also dispute over the selection of patients who "need outplacement from a public hospital." The defendants contend that the hospital is the final arbiter of the appropriateness of community treatment in an individual case. The plaintiffs, however, take the position that the defendants' discretion to determine what is appropriate treatment to which plaintiffs are entitled under the 1964 Act is limited by current, enlightened professional knowledge determined on the basis of objective expert testimony. Rouse v. Cameron, 373 F.2d 451, 453 (D.C. Cir. 1966). This issue also has not been litigated in Dixon.

The Settlement

The court's 1975 decree held that the federal hospital and the District of Columbia had a joint responsibility to the plaintiffs, but it did not detail those responsibilities. Many

In general, rights of the mentally handicapped under medical and social service programs are the same as those of other beneficiaries. (See Ewing, "Federal and State Entitlements - Health Care and Support Services in the Community," Legal Rights of Mentally Disabled Persons 1783, Practising Law Institute and Mental Health Law Project (1979).) While under some programs, such as Medicaid, Medicare and SSI, persons meeting eligibility criteria become individually entitled to legislatively defined benefits, the programs themselves do not provide the solution to the problem described above. The mental health care benefits and subsistence income provided by these programs are limited and may become more so as the present budget crisis stimulates cutbacks in social welfare programs. Similarly, programs such as the Community Mental Health Centers program and Title XX of the Social Security Act provide some funds for services that are needed especially by mentally disabled people. However, these are not entitlement programs and, ordinarily, potential beneficiaries have no individual right to services when funds appropriated to the programs are exhausted.

The Dixon consent order is an effort to obligate responsible municipal and federal authorities to offer hospitalized persons and those in jeopardy of hospitalization a full scope of needed therapeutic, residential and support services regardless of the funding source. St. Elizabeths Hospital and the District of Columbia have agreed to make available by December 31, 1981, suitable community residential facilities, including foster homes, group homes and nursing homes, for approximately 800 patients now in the hospital and for persons subsequently determined to need such facilities. Where psychiatric care in a nursing home is required, it will be provided by 1985. (There is a severe shortage of nursing home beds in the area.) The defendants also agree to provide by October 1, 1982, appropriate mental health care and services in the community to approximately 3,000 patients now on the hospital's outpatient rolls and to another 3,000 patients on the rolls of the community mental health centers.

As discussed below, an individualized treatment plan must be developed for each of these patients, with the patient's participation, identifying his or her residential mental health and social service needs and designating the programs and personnel responsible for meeting those needs. In addition, each patient who needs multiple services must be provided with a case manager a specific treatment professional responsible for linking the patient to the services prescribed in his or her individualized treatment plan and for following and evaluating the patient's subsequent progress.

The defendants will provide needed rehabilitative

psychiatric care in patients' residences - adult foster homes, group homes and nursing homes and/or in nonresidential day programs and other community programs. The mental health and support services which the defendants agreed to make available by October 1982 include individual and group psychotherapy, crisis intervention, residential crisis care, day activities programs, drug therapy, chore and homemaker services, protective services, respite care for families and other caretakers, vocational evaluation, prevocational and occupational training, sheltered workshops and special private employment. Each service is briefly described in the plan and defendants agreed to develop program standards for each type of service that will be acceptable to the court.

Each person covered by the plan is entitled to an individualized treatment plan (ITP) developed by an interdisciplinary treatment team at the hospital or at the Community Mental Health Center (CMHC), if he or she is a CMHC patient. In addition, nonhospitalized persons are entitled to a placement recommendation from the Medical Review Team of the Central Referral Bureau (CRB), a new District agency established as a clearinghouse, registry and complaint department for community residence facilities. (Plan, at 3 and 98) The ITP includes a determination of the person's need for community-based residential care programs and community mental health and support services described in the plan.

Patients are also entitled to participate in the development of their ITPs. Defendants must notify each patient within a reasonable time prior to an interdisciplinary team meeting of his or her right to meet with the team responsible for developing the ITP and to present at the meeting relevant information, including oral and written statements of other persons. (Plan, at 39)

When an appropriate, available community-based residential program has been identified for a hospital patient and a recommendation for placement is proposed by a responsible clinician, each patient will be informed within a reasonable time prior to placement of the date and location of the proposed placement; of his or her right of access to the data upon which the placement recommendation was based; of the name and telephone number of his or her responsible clinician; and of the name, address and telephone number of an advocate whom the patient may contact for assistance. Each patient will be offered a pre-placement visit to the facility and will be informed of his or her right to object to the placement. In addition, the patient may choose to waive the pre-placement visit, in which case the waiver will be documented.

Except to avoid harm to the patient, defendants agreed that no competent patient shall be placed in a community. residential-care program without prior notice and an opportunity to object or express agreement. No incompetent patient will be placed in a community residential-care facility without notice to his or her legal guardian, closest relative or designated advocate, with the representative having an opportunity to object or agree.

When the patients or representatives object to a determination made in an ITP regarding appropriate residential care or community mental health and support services, they must notify the responsible clinician or outpatient case manager of the objection and the reasons for it. They must be offered the assistance of an advocate and be given access to the information upon which the determination was based.

In addition to a declaration of patients' rights to participate in and appeal treatment decisions, the consent order requires St. Elizabeths and the CMHCs to provide an advocate to any patient who requests one. Advocacy is defined to include notification of rights and the personal assistance of an advocate to represent patients in the development and review of individual treatment plans, to attempt to resolve disputes through internal grievance mechanisms, and to secure other lay and legal advocates not associated with the hospital or centers. The hospital has agreed to provide advocates directly through its existing Patient Advocate Office. The District of Columbia will provide advocates through the advisory boards of each CMHC and its Central Referral Bureau.

The consent order embodying the plan specifically reserves the right of the plaintiff class to seek any further relief in the suit necessary to effectuate the plaintiffs' rights, such as the appointment of a special master to oversee defendants' implementation of the decree. It also specifically preserves the right of individual class members to enforce their rights in independent administrative and legal actions. Thus, the order does not preclude class members individually enforcing their rights under the court's decree in administrative forums, such as those provided by the hospital's grievance procedures, Medicare and Medicaid procedures or in separate legal actions (such as mandamus) to force the provision of services.

However, it should be kept in mind that the consent order does not require advocacy independent of the hospital and CMHC service system. Therefore, many mentally disabled persons will continue to need the kind of independent legal and lay advocacy which is currently provided by Neighborhood Legal Services, the Public Defender Service, the Mental Health Association, law school clinics and the private bar.

In addition, the consent order provides that the utilization review committee of the hospital is to review the medical necessity and appropriateness of continued hospitalization during the patient's first 90 days in the hospital. Utilization review committee procedures provide for a hearing where the committee disagrees with a clinical determination of necessity. See also 42 C.F.R. §250.19; 42 C.F.R. Parts 504 and 456. Determinations of the utilization review committee concerning Medicare beneficiaries at St. Elizabeths Hospital can be appealed and are subject to judicial review as provided in the Medicare statute. (See Butler, Medicare Appeal Procedures, 70 Northwestern U.L. Rev. 139 (1975).) St. Elizabeths Hospital is not a provider under the Medicaid program, although it has modeled its utilization review program on that required by Medicaid. (Plan, at 22) In addition to claiming rights under the Dixon order, it is hoped that advocates for patients contesting clinical determinations of the necessity for hospitalization

CLEARINGHOUSE REVIEW

will explore the possibility of claiming a right to a hearing before the utilization review committee under these procedures. Also worth considering is the possiblity of claiming a right to judicial review of the superintendent's determination as final agency action under the Administrative Procedure Act, 5 U.S.C. §§701 et seq.

C. Obligation to Plan for Needed Services and Provide Them by Specified Dates

The Dixon consent order requires both the federal government and the District to undertake jointly a specified planning process to identify the existing unmet need for aftercare services and determine how to meet it. The governments must perform three major planning tasks. First, they must assess the needs of some 7,000 St. Elizabeths and CMHC patients on a sample basis, using a questionnaire designed to measure the functioning level and behavioral characteristics of the clients. Analysis of the resulting data will determine what mental health and support services will be required to develop community-living skills for persons at various functional levels.

Second, the governments are to establish program standards and models setting minimum requirements for programs offering 22 defined services, ranging from crisis intervention to homemaker services and sheltered employment. The standards are to specify all factors that affect the cost as well as the quality of providing services, such as staffing ratios, program requirements and maximum-capacity standards.

Finally, an inventory must be taken of existing city resources that are capable of providing services in accordance with the new standards to determine how much of the need disclosed through the questionnaire can be met by existing facilities and how much new capacity must be developed.

After completion of these three planning tasks, the federal and District governments must develop and submit for the court's approval as an appendix to the plan a description of how they will create the needed services. The plan must disclose the full cost of providing those services and necessary funds must be sought from the United States Congress and the city council. The executive branches are obligated to use all available resources to execute the plan. D. The Implementation Monitoring Committee

The Dixon consent order authorizes the plaintiffs to appoint an Implementation Monitoring Committee and obligates the defendants to pay its expenses up to $56,716 a year for five years. With these resources, plaintiffs expect to be able to obtain the expert advice and much of the staff time necessary to oversee the federal and District governments' implementation of the consent order.

The committee will play a major role in ensuring that the defendants' planning activities are carried out competently and on schedule. In addition to receiving information periodically, under the terms of the consent order, the committee will advise plaintiffs about the performance of each task and will work with counsel to resolve differences in planning approaches through an agreed-upon negotiation

process.

The committee will not be an arm of the court, as is a special master. Rather, it is conceived as an agent of the plaintiffs, to protect their interest in the implementation phase of the case. The committee's first major task will be evaluation of the appendix to the plan which defendants are required to submit to the court. The committee will advise plaintiffs whether its addition constitutes a final plan that is adequate to meet the needs and protect the rights of the plaintiff class.

Periodically thereafter, the committee and its staff will receive and analyze information from the defendants. It will also independently investigate complaints by patients, family members, service providers and others, with authority to demand and review medical records and evaluate patients directly. It will submit an annual report to the court.

The committee is not expected to resolve individual complaints. However, it will play an important role in ensuring the provision of advocacy and grievance procedures as specified in the consent order. It will monitor the hospital's and the District's progress in notifying patients of their rights, training staff in rights protection and providing individual advocates. Because they are familiar with the government's obligations, have investigatory authority under the order, and will continue to receive complaints directly from patients and their representatives, the committee and its staff are in an excellent position to see that the Dixon agreement's promise of advocacy becomes an operative reality. And the committee will, of course, seek resolution of any systemic problems which individual complaints bring to its attention.

The plaintiffs have designated five persons to serve on the Implementation Monitoring Committee: a current class member and consumer of mental health services, a nationally known psychiatric expert, the director of a state mental health system, a health planner, and the founder of a psychosocial day activities program for the chronically mentally ill. Representation of these various perspectives consumer, therapeutic, administrative, planning, social service - along with the legal perspective provided by plaintiffs' counsel should produce well-considered recommendations to which the defendants and the court will give considerable weight.

Novelty of the Dixon Approach

This approach to implementation of a major systemchanging court decree has not been tried in other deinstitutionalization cases. Usually, either the parties maintain their adversary positions and unilaterally propose plans and positions to the court or the court appoints a master or expert panel to arbitrate disputes between the parties. The Dixon consent order tries to institutionalize the negotiation process which produced the agreement itself.

While it is too early to know whether it will be successful, there are several reasons for the order's focus on procedures as well as substance and its contemplation of a five-year implementation period. Plaintiffs recognize that the court's jurisdiction in this case must terminate eventually and that only to the extent that the defendant bureaucracies become committed to the negotiated plan can they expect to see it implemented in the long run. The continuing negotiation process seems to permit the defendants to in

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