that, for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation." (612 F.2d at 114).
This Court's Orders provide that the Special Master shall be compensated by the Commonwealth defendants (Orders of March 17, 1978; April 24, 1980; and June 10, 1980). The funds required for the operation of the Office of the Special Master are costs of litigation under Federal Rules of Civil Procedure 53 and 54 and were assessed against the Commonwealth defendants as losing parties in this litigation. The Commonwealth defendants did not appeal these Orders. They complied with these Orders and paid the Masters' costs during fiscal years 1978-79, 1979-80 and 1980-81. Funds for those payments were included in the Commonwealth's budget for Pennhurst. In fiscal year 1981-82, however, the Department of Public Welfare and Secretary Helen O'Bannon took steps which this Court found to have been designed to thwart the Court's Orders mandating funding for the Masters' offices. The Court found the Department and Secretary O'Bannon in contempt of court and imposed a compensatory, coercive civil contempt fine upon the Commonwealth for each day that the Masters' offices remained unfunded after September 2, 1981 (Order of August 25, 1981).
On September 3, 1981, United States Supreme Court Justice William J. Brennan, acting as Circuit Justice for the Third Circuit, issued a temporary stay of this Court's contempt Order pending full review of the Commonwealth's application for a permanent stay pending appeal to the Third Circuit. The Third Circuit had already denied a stay. On September 17, 1981, Circuit Justice Brennan denied the application for a stay and vacated his temporary stay Order. The Commonwealth defendants, pursuant to Supreme Court rules, resubmitted the matter to Justice Rehnquist, who referred the application to the full Court, which denied the application for a stay on October 5, 1981.
As of this date, $ 490,000 in civil contempt fines has been paid into the Registry of the Court by the Commonwealth defendants. On October 20, 1981, the Court transferred $ 87,314 of these funds to the Special Master for the purpose of resuming the full-scale operation of the Master's office. On October 21, 1981, the Special Master resumed full-scale operation. Currently, the Special Master submits weekly proposed expenditures to the Court which the Court must approve before the Master disburses the sums transferred from the Registry of the Court.
The Function of the Special Master
From its inception, the Office of the Special Master was charged with the primary task of monitoring the defendants' compliance with the injunctive relief ordered by the Court. All the activities of the Special Master were necessitated by this mandate.
The Court's original relief order (Order of March 17, 1978) and subsequent relief orders (see, e.g., Order of March 5, 1979) have specifically directed the defendants to provide the relief to which this Court found the plaintiff Pennhurst residents entitled to receive under the Constitution of the United States, as well as state and federal statutes. The Special Master was appointed with "the power and duty to plan, organize, direct, supervise and monitor the implementation of ... Orders of the Court." (Orders of March 17, 1978 and April 24, 1980). This grant of authority is specifically limited to the Orders of the Court and was never intended as authorizing the Special Master to operate Pennhurst or any community living arrangement.
One primary task of the Special Master is to regularly monitor the community living arrangements to which Pennhurst residents are being transferred. This function of the Special Master is essential for the purpose of assuring that the Pennhurst residents are transferred to community facilities that are safe, sanitary, and beneficial to their habilitation. The Court has always been vitally concerned that no Pennhurst resident or any member of the plaintiff class be transferred to any community facility that is not beneficial to his or her habilitation. In particular, it is the function of the Special Master to make certain that the poor sanitation, the dangers to life and limb, and the lack of training programs which this Court found to exist at Pennhurst are not duplicated on a smaller scale in community living arrangements. This function of the Special Master is particularly necessary in that the Commonwealth defendants have been operating without rules, regulations or policies designed to make certain that the community living arrangements for the retarded are safe and sanitary, and that the programs and services necessary for habilitation are being provided.
Another primary function of the Special Master is to review individual habilitation plans for each retarded member of the class in order to ensure that the plan for each of the retarded residents provides for such care and services as will enable them to cope with life as effectively as their capacities will permit. This function of the Special Master is essential in light of the Court's finding that individual habilitation plans had not been prepared for the Pennhurst residents. The orders of this Court require the defendants to provide an individual habilitation plan for each retarded resident of Pennhurst in order to make certain that each receives such care and services as will be beneficial to his or her habilitation.
The third primary function of the Special Master is to monitor conditions at Pennhurst. This monitoring function is essential in order to make certain that the abuses this Court found to exist at Pennhurst were corrected. Among the abuses which the Court found to exist were: (a) punishment of the residents by solitary confinement; (b) unregulated use of physical restraints; (c) use of superfluous and dangerous drugs; (d) the administration of drugs for staff convenience; (e) inadequate programs for habilitation; (f) force-feeding of residents in supine positions; (g) unsanitary living conditions; (h) exposing residents to unnecessary dangers. As this Court found in 1977, the retarded living at Pennhurst had regressed rather than progressed in their abilities to perform the basic functions required for daily living. 446 F. Supp. at 1308. The monitoring function of the Special Master in connection with conditions at Pennhurst has never been considered by this Court or the Special Master as authorizing the Special Master to "run" Pennhurst.
The injunctive relief ordered by this Court (Order and Memorandum of March 17, 1978; Order of March 5, 1979) as modified in light of the Third Circuit's decision (612 F.2d 84) (Order and Memorandum of April 24, 1980) requires that individual habilitation plans be developed for each resident of Pennhurst and other retarded members of the plaintiff class. These proposals are developed by a Planning and Assessment Team (PAT) which includes but is not limited to the Pennhurst resident, the case manager, and the parent, guardian or certified advocate of the Pennhurst resident. Frequently joining this team are the day program and residential program providers for the retarded client as well as medical and habilitation specialists. The Special Master's role in the development of the individual habilitation plan is limited to monitoring in order to make certain that a plan has been formulated in accordance with professional standards for each Pennhurst resident in order that each of them will have a reasonable opportunity to acquire and maintain such life skills as are necessary to enable him or her to cope as effectively as his or her capacities permit. The Special Master does not determine which Pennhurst residents will be moved to the community, when they will move, or where they will move. Such decisions are the responsibility of the defendants pursuant to this Court's Orders.
The Third Circuit approved the Court's appointment of the Special Master, stating
In this case ... the court's resort to use of a master is particularly appropriate. After the decision on liability was announced, the appellants were afforded an opportunity to devise and present their own remedies for conditions at Pennhurst. They failed to do so. At that point, having received insufficient assistance from the officials directly involved, the court was faced with the choice of massive personal participation in devising a complex scheme for remedying the violations that were found or proceeding with the assistance of a master, whose functions would be supplementary to and supervisory over those of the Commonwealth and County defendants. We hold that the trial court chose correctly in ordering the appointment of a master. 612 F.2d at 112.
It was never the intention of the Court that the Special Master should perform the responsibilities of the defendants under the Court's Orders. The Special Master's function is to monitor for the purpose of determining whether the defendants are complying with this Court's Orders. Although the Court's Orders required the defendants to initiate, carry out and plan for the transfer of the retarded residents of Pennhurst to community facilities, as this Court found in its Memorandum of March 2, 1981:
In March, 1978, when the Court issued its initial remedial Order, the population of Pennhurst was 1,156. Despite this Court's Orders, and despite the representations by the defendants of their intentions to comply with this Court's Orders, the retarded population of Pennhurst had been reduced by only 184, to a total of 972, as of the end of August, 1980-and not all of that reduction was due to community placements. The school-age residents of Pennhurst, the subject of two specific Court Orders, had not all been placed in the community by the extended deadline of June 30, 1980, and indeed have not all been transferred even as of the present date.... Furthermore, as heretofore pointed out, so far in this fiscal year which ends on June 30, 1981, the defendants have provided only 4 community living arrangements in the Southeast Region for the retarded residents (not covered by the School-Age Order issued by this Court) and only 17 community living arrangements for other retarded persons in the Southeast Region. These numbers standing alone reflect an attitude of indifference to the rights of the retarded. (Memorandum of March 2, 1981 at 5-6).