in the least restrictive environment and setting forth the procedures for planning, effectuating, and monitoring those transfers.
On December 13, 1979, the Court of Appeals approved the Court's Order and its "determination that, for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation." (612 F.2d 84 at 114). However, in remanding to this Court, the Court of Appeals directed that an individual hearing should be held for any Pennhurst resident who contends that the living arrangements and services available at Pennhurst are more beneficial to his or her habilitation than those made available in the community.
In light of the Third Circuit's opinion, this Court established an impartial hearing procedure and appointed a Hearing Master who was directed to provide an individual hearing for any Pennhurst resident who contended that his or her habilitation at Pennhurst would be more beneficial than that proposed in the community living arrangement. (Order of April 24, 1980). Whenever a Pennhurst resident or plaintiff class member objects to being transferred to a community living arrangement, the Hearing Master conducts a hearing for such Pennhurst resident or class member for whom a community living arrangement has been prepared for the purpose of determining whether the proposed transfer will be more beneficial to his or her habilitation than would continued residence at Pennhurst. One such hearing is that of L. P., a 50-year-old retarded man who has been residing at Pennhurst.
On October 25, 1982, the Hearing Master, pursuant to this Court's Order of April 24, 1980, held a hearing to assess the merits of L. P.'s proposed transfer to the community. At that hearing, it became apparent that many issues concerning L. P.'s care and habilitation in the community were being made uncertain by a dispute between the Commonwealth defendants, Montgomery County and the County's residential and day program providers of L. P.'s care (Shiloh, Inc. and Prospectus Associates, Inc.). The dispute between the Commonwealth defendants and the providers concerns the rate of reimbursement to be paid by the Commonwealth, which funds the community placements conducted pursuant to this Court's Order to the providers who would operate L. P.'s community living arrangement. The Commonwealth defendants have approved a rate which the County and the providers claim is far too low to allow the program to continue to operate while serving L. P.'s habilitation needs.
At the hearing, the Hearing Master attempted to ascertain the factors that had created this wide divergence of opinion between the defendants and to seek at least interim resolution of the problem so that L. P. could receive the care and habilitation to which both this Court and the Third Circuit have found him entitled. However, the Hearing Master was unable to obtain sufficient information from those present at the hearing, including the representatives of the Commonwealth defendants. The Hearing Master also encountered a similar lack of information in the matters of T. M. and A. B., also members of the Pennhurst plaintiff class whose community habilitation is threatened by the Commonwealth-County Provider dispute over the proper reimbursement rate. For this reason, the Hearing Master concluded, in a subsequent Report regarding L. P. (see Hearing Master's Report of November 12, 1982, Dkt. No. 1662) that certain Commonwealth officials "hold the key to this continuing dilemma" of reimbursement rates for small Interim Care Facilities for the Mentally Retarded (ICF/MRs) (a type of community habilitation facility) such as that planned for L. P.
The Hearing Master therefore set another hearing date of Tuesday, November 23, 1982, for further inquiry into the matter of L. P. and arranged for the subpoena of the following persons as witnesses at the aforesaid hearing: Helen B. O'Bannon, Secretary of the Department of Public Welfare; Jennifer L. Howse, DPW Deputy Secretary for Mental Retardation; Gerald Radke, DPW Deputy Secretary for Medical Assistance; and David Smith of the DPW Office of Mental Retardation. These witnesses were also required to bring with them to the hearing all correspondence, memoranda, records, or other documents or writings in their possession or control relating to establishment or approval of a medical assistance reimbursement rate for the ICF/MR facility planned for L. P. and operated by Shiloh, Inc. at 650 Keeler Road, Lansdale, Pennsylvania.
To compel the attendance of these witnesses and the production of the aforesaid documents at the November 23 hearing, the Hearing Master requested that the Special Master issue and serve upon the Commonwealth officials subpoenas duces tecum requiring them to be present at the commencement of the hearing and to produce the requested documents. The Special Master began to effectuate service of these subpoenas on November 18, 1982. Apparently in anticipation of the service of the subpoenas, the Commonwealth defendants filed with this Court on November 18, 1982 a motion to Stay the Hearing of November 23 and to Quash the Subpoenas.
This Court's Order of April 24, 1980, which created the Office of the Hearing Master and established procedures for the conduct of his hearings, specifically states that the Hearing Master
may require the production of evidence and rule upon the admissibility of evidence, and shall have the power to put witnesses under oath, and may examine witnesses . . . . Attendance of witnesses at the hearing may be procured by the issuance and service of subpoenas as provided in Rule 45 of the Federal Rules of Civil Procedure.
(Order of April 24, 1980, at 65-66). The Order creating the Hearing Master was never appealed by any party to this litigation. The subpoenas served upon the four Commonwealth officials fall squarely within the terms of this Court's mandate to the Hearing Master, as each of the four is a defendant in this case or an agent of a defendant.
The subpoenas issued also comport with the terms of Fed. R.Civ.P. 53, which provides in relevant part:
Subject to the specifications and limitations stated in [the Court's] order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters in the reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath.