that the sanitary, staffing, and program deficiencies found at Pennhurst are not duplicated on a smaller scale in community living arrangements (see 612 F.2d at 116).
In the cases of T.M. and A.B., as with all Pennhurst residents for whom an IHP has been prepared, the Commonwealth and County defendants have been intimately involved in each step of the planning and implementation process. It was not the Special Master, the Hearing Master, or the Court that drafted the IHPs of T.M. and A.B. Those plans were designed by their case manager, an employee of Montgomery County, and Pennhurst staff members, employees of the Commonwealth. After the IHP was drafted, it was approved by these state and county professionals. At that time, the parents of T.M. and A.B. were the only members of the Planning Assessment Team who declined to approve the plan. The IHP was next presented to the Special Management Unit of the Commonwealth DPW Pennhurst Implementation Team. The Special Management Unit approved the IHP, which provided that T.M. and A.B. should receive certain services in the community including a certain staffing ratio in their community facility.
Thus, pursuant to Court Orders, IHPs were designed for T.M. and A.B. These IHPs were approved by Montgomery County and the Commonwealth defendants. The IHPs, formulated in accordance with acceptable professional standards, called for the transfer of T.M. and A.B. from Pennhurst to community facilities in Montgomery County. Specifically, the IHPs anticipated that T.M. and A.B. would begin their new lives outside Pennhurst in an ICF/MR operated by Shiloh and would receive day program habilitation through Prospectus. The parents of these two retarded citizens each disputed the IHP conclusion that their children would receive greater habilitative benefit in the community rather than in Pennhurst and requested a hearing on this matter before the Hearing Master.
The Hearing Master was appointed by this Court in its Order of April 24, 1980 to comply with the Third Circuit's remand of this case which instructed this Court to provide a mechanism whereby individual determinations would be made for each class member concerning the type of habilitation he or she would receive. Though the Third Circuit affirmed this Court's finding that "for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation," (see 612 F.2d at 114), the Circuit Court was concerned that some severely retarded individuals, especially those older individuals who had known no life but that of Pennhurst, might not benefit from community living and that a hearing should be provided to those members of the class who did not wish to leave Pennhurst. Thus, although the IHPs contain the professional determinations that a living arrangement outside of Pennhurst would benefit the individual class member, that class member nevertheless is provided a hearing on the matter before the Hearing Master. At these hearings, the Master, an attorney with vast experience in the mental retardation field, receives evidence and determines, based on the testimony of mental retardation professionals, whether the residence proposed in the IHP will provide greater habilitative benefit to the retarded citizen than would continued confinement at Pennhurst.
In his Report of November 26, 1982, the Hearing Master concluded that the community residence proposed in the IHP of T.M. and A.B. would provide them greater benefit than would remaining at Pennhurst. By this juncture, the parents of T.M. and A.B. had come to believe that community residence was in the best interests of their children. However, it became apparent during the course of the hearing that a funding dispute between the Commonwealth defendants, Montgomery County, Shiloh, Inc., and Prospectus, Inc. might result in Shiloh and Prospectus terminating all services to T.M. and A.B. which would, in effect, require some emergency action by this Court. Apparently, to avoid such an emergency, the Hearing Master ordered that the services described in the IHPs should be provided to T.M. and A.B., that T.M. and A.B. continue to reside in their current ICF/MR in Pennsburg, and that the Commonwealth defendants provide Shiloh with a certain reimbursement rate to ensure the provision of these IHP-mandated services. As heretofore noted, exceptions have been filed to the Master's report. This Court will, in its accompanying Order, set a hearing for the purpose of considering these exceptions. The hearing date of January 1983 has been chosen so that this Court may receive evidence and consider the exceptions to the report as soon as practicable.
The Court takes no position regarding the ICF/MR reimbursement rate-setting process and the particulars of the dispute between the Commonwealth defendants, Montgomery County, Shiloh, and Prospectus. As heretofore stated, it is currently this Court's intention to prevent irreparable harm to T.M. and A.B. during the pendency of the expedited consideration of exceptions to the Master's Report and Order. An appropriate Order will be accordingly entered.
AND NOW, this 22 day of December, 1982, upon consideration of the Report of the Hearing Master filed November 26, 1982 concerning the community placements of T.M. and A.B., Nos. 82-P-21 and 82-P-22, exceptions to the aforesaid Report having been filed by defendant Montgomery County and the Commonwealth defendants and private care providers Shiloh, Inc. and Prospectus, Inc. for the reasons set forth in this Court's Memorandum of December 22, 1982,
IT IS HEREBY ORDERED:
1. A hearing shall be held in connection with the aforesaid exceptions on January 13, 1982 at 9:30 a.m. in Courtroom 10-B of this United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
2. The Commonwealth defendants and the Montgomery County defendants are hereby enjoined and ordered to take any and all steps necessary to ensure that T.M. and A.B. receive minimally adequate habilitation as described in their individual habilitation plans in their present residence until such time as this Court has, after hearing, issued its determination concerning the aforesaid exceptions to the Hearing Master's Report of November 26, 1982.
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