The opinion of the court was delivered by: BRODERICK
On December 23, 1982, this Court, 555 F. Supp. 1142, entered an Order requiring the Commonwealth defendants in this litigation to "administer and assure funding for the certified advocate program as currently operated." On December 29, 1982, the Commonwealth defendants submitted their proposed plan for complying with the Order of December 23, 1982 (see Dkt. No. 1726, filed January 3, 1983). On January 4, 1983, counsel for the plaintiff class filed a Motion for Contempt for Violation of the December 23, 1982 Order, averring that the Commonwealth defendants' proposal was, on its face, contempt of this Court's Order and that the conduct of the Commonwealth defendants constituted contempt of this Court's Order. On January 17, 1983, this Court held a hearing for the purpose of determining whether the Commonwealth defendants' advocacy plans and actions since January 1, 1983 comply with the Court's Memorandum and Order of December 23, 1982. Based on the evidence presented at the hearing, for the reasons hereinafter set forth, this Court has determined that the Commonwealth defendants are not in compliance with the December 23 Order and did not take all reasonable steps within their power to comply with the December 23 Order. This Court will therefore enter an Order requiring the Commonwealth defendants to achieve compliance with the December 23 Order on or before February 15, 1983 and to file with this Court a report of their actions to achieve compliance on or before January 31, 1983.
This litigation, whose history is discussed extensively in the Court's Memorandum of January 14, 1983, began in 1974 as a class action on behalf of retarded residents of the Pennhurst State School and Hospital. After a 32-day trial, this Court made findings of fact and conclusions of law holding that the conditions at Pennhurst violated the statutory and constitutional rights of the retarded residents of Pennhurst. As part of the injunctive remedy ordered by the Court, a professional planning process was to be undertaken for each class member with the aim of providing each retarded class member minimally adequate habilitation in the least restrictive environment. In this planning process, the parent or other close relative or guardian of the class member normally serves as an advocate for the retarded individual during the planning process, which also involves the retarded citizen's case manager, who is a county employee, and Pennhurst professional staff, who are state employees. The advocate is necessary to ensure that a voice independent of the government-employed professionals may raise questions and issues on behalf of the retarded citizen who in many instances is not capable of articulating his or her own needs. (For a more complete description of the IHP planning process, see Memorandum of December 22, 1982).
The Court's original injunctive order in this case (see Order of March 17, 1978, 446 F. Supp. 1295, 1326) directed the Commonwealth defendants to establish a program to provide such advocates. This requirement remains a part of the current primary injunctive order in this case, the Order of April 24, 1980, which amended the Order of March 17, 1978 to conform to the instructions of the en banc affirmance and remand of this case by the United States Court of Appeals for the Third Circuit. Specifically, the Order of April 24, 1980 requires that
Order of April 24, 1980, paragraph 9.0, at 31.
The defendants having failed to establish a program of Certified Advocates, the Office of the Special Master began a program whereby advocates were trained, certified, paid and supervised so that class members who did not have interested parents or guardians would have someone articulating their needs before, during, and after the individual habilitation planning process.
On August 12, 1982, this Court entered an Order directing the Special Master to plan to phase out the operations of the Office of the Special Master on or before December 31, 1982. On September 22 and 29, 1982, this Court, mindful of the planned phaseout of the Office of the Special Master, held a hearing concerning the Commonwealth defendants' plans to provide advocacy services for those class members requiring an advocate. At the conclusion of the hearing, the Court directed the Commonwealth defendants to provide this Court with a definite plan for advocacy (see Order of September 29, 1982). This plan was to be submitted by November 1, 1982. On November 1, the Commonwealth defendants requested an additional 30 days to prepare the plan; the Court granted this request (see Order of November 12, 1982). On December 2, 1982, the Commonwealth defendants submitted a proposal (see Dkt. No. 1681) which they admitted was still in the process of being negotiated with an outside agency (see Dkt. No. 1761, letter of Edwin R. Frownfelter, Executive Director of Pennsylvania Developmental Disabilities Advocacy Network, regarding friend advocacy to this Court (dated December 23, 1982)).
The Court was thus, in late December, 1982, presented with a situation that could endanger the rights of the retarded class members in that the certified advocacy services which they had been receiving from the Special Master could not continue to be administered by the Master after December 31, 1982, the date upon which the Office of the Special Master ceased its operations. Furthermore, the Commonwealth defendants had not submitted a plan for certified advocates which would become operative on January 1, 1983. Because this situation created substantial risks to the retarded residents of Pennhurst, this Court noted that
The Court must, therefore, in order to protect the rights of those plaintiff class members who have no parent or guardian to speak on their behalf, enter an Order requiring the Commonwealth defendants to continue the certified advocacy program currently in existence until such time as the Commonwealth defendants complete their formulation of an alternative advocacy system which will adequately protect the right of those class members requiring advocates.
The Special Management Unit of the Pennhurst Implementation Team established by the Department of Public Welfare's Office of Mental Retardation will therefore be required to fund and supervise the certified advocate system currently in place and the Commonwealth defendants shall make such arrangements as are necessary to assure the funding of the program until the Commonwealth defendants establish an advocacy system approved by this Court.
Memorandum of December 23, 1982, 555 F. Supp. at 1144.
In the Order of December 23, 1982, this Court enjoined the Commonwealth defendants to continue to operate and fund the certified advocate program as then operated by the Office of the Special Master. The Order ...