which the defendants must provide is set forth in each class member's IHP. The Commonwealth defendants who, under the state statute, fund community care for the retarded, must ensure that plaintiff class members such as L.P. receive habilitation in accordance with their IHPs. The Commonwealth defendants are not relieved of this obligation on the ground that they have been engaged for the past eighteen months in a dispute with the contract provider concerning the rate at which the provider should be reimbursed for providing L.P. with minimal habilitation which state and county professionals determined to be necessary for L.P.
The dispute between the Commonwealth and Shiloh appears to be one of contract. This Court is not concerned about the bureaucratic dispute between these two entities. The Court's sole concern is the receipt by L.P. of his legal rights and services in accordance with his IHP. These services may be provided by the state, the county, or a private contract provider so long as L.P. receives services in accordance with his IHP.
The Commonwealth's sudden concern about L.P.'s ICF/MR costs seems to this Court inconsistent with its willingness to pay high costs for other retarded persons. In the matter of L.P., DPW has balked at paying a per diem of $164.00 per day for L.P.'s residence and care. However, the per diem per resident cost at Pennhurst, which is also an ICF, is $180.00 per day. (See Memorandum of June 11, 1982, 542 F. Supp. 619). The average per diem cost of a CLA in Montgomery County is approximately $175.00 per day. As heretofore noted, CLAs are 100% state-funded and small ICF/MRs are only 45% state-funded and 55% federally-funded. Thus, the Commonwealth has been paying per diems of $175.00 per day at CLAs in Montgomery County and it is now refusing to pay a net per diem of $74.48 per day (the state's share of L.P.'s per diem at Shiloh's requested reimbursement rate). As the Hearing Master stated "While there was no direct evidence [at the hearing] of these [Commonwealth] officials commanding their subordinates to frustrate the District Court's orders, in light of the views they [the Commonwealth officials] expressed at the [L.P.] hearing the result could hardly have been otherwise." (Report of January 4, 1983 at 24).
However, as heretofore pointed out, this Court does not intend to become involved in this particular funding dispute. The remedy ordered by the Hearing Master is not one preferred by the Court. As previously noted, the Commonwealth contends that the Hearing Master may not order payment of a particular per diem reimbursement rate. The Court takes no position on this argument at this time. Although the Court now perceives no reason why it should become involved in the state's own administrative function in supervising the ICF/MR program and determining the rate of reimbursement to contractors, the day may come where the only means of effecting a valid federal court order would be an order such as the Hearing Master's Order that Shiloh receive a certain amount of funding so that L.P. could receive habilitation consonant with his IHP and his legal rights. If such a remedy were in fact the least drastic means of fulfilling a court order, principles of federalism and comity would have to yield to the federal Constitution and its Supremacy Clause, thereby permitting such a federal court order, through either the Court or the Hearing Master, despite its obvious impingement on the state's functions.
In this case, however, there remain available to this Court other means for enforcing its Orders in this litigation. For that reason, the Court will not affirm this portion of the Hearing Master's Order but will instead direct that the Commonwealth defendants ensure that L.P. begin to receive all of the staffing, services, and habilitation set forth in his IHP at his present ICF/MR residence on or before July 1, 1983. The Commonwealth may accomplish this in several ways. It may remit to Shiloh the funds Shiloh has required to fulfill the terms of L.P.'s IHP. Or the state may arrange for another private care provider to furnish the IHP-mandated services to L.P. Or the state may itself furnish a community residence and services to L.P.
This Court is not concerned with the source of funds, the entity providing services, or the relative cost of services. Those are concerns of the defendants to this litigation. This Court's only concern is that the retarded class members receive their constitutional and statutory rights as enunciated in the decisions of this Court and the Third Circuit. The rights of a retarded person to enjoy his or her constitutional and statutory rights to receive adequate habilitation in society are not to be denied on the basis of a contract dispute between the Commonwealth and a provider. If the Commonwealth feels that it can obtain a less expensive provider than Shiloh or can itself provide L.P. with the required services at a lower cost than Shiloh, this Court's Orders will not be violated. L.P. must receive his IHP-mandated services. Anything less than that is contempt of this Court's Orders.
At this point, the Court wishes to stress that the dispute between the Commonwealth, Shiloh and Prospectus has involved only budgetary arguments. No one involved in the IHP planning process for L.P., the hearing before the Hearing Master, or the hearing before this Court on April 13, 1983, has questioned the quality of services provided to L.P. by Shiloh and Prospectus. The Hearing Master found the performance of Shiloh and Prospectus frontline staff to be exemplary (see Hearing Master's Report of November 1, 1982 at 7) and his findings are amply supported by the record.
As heretofore noted, L.P.'s parents initially objected to his placement in the community and requested a hearing before the Hearing Master seeking to obtain the Court's disapproval of the transfer. However, when L.P. was sent to the Shiloh community living facility for a pre-placement visit, they observed his rapid habilitation progress as contrasted to his stagnation at Pennhurst and became convinced that community habilitation was a better way for their son. Then, however, the Commonwealth's actions in disregard of L.P.'s IHP and this Court's Orders threatened his hopes for a brighter future. As the Hearing Master noted
Even as they surveyed the wreckage of Shiloh's ICF/MR program, Mr. and Mrs. A.P. were unwilling to abandon their vision of how things could be. Asked their preference among all the possible placements now open to L.P., they flatly rejected a return to Pennhurst -- because of the excellence and commitment of the Shiloh and Prospectus staff, and because of the dramatic improvement they had seen in their son's behavior and abilities. The honesty and courage of these troubled, caring parents stands in stark and shining contrast to the cynical and petty bureaucratic maneuverings that now threaten L.P.'s future in the community.
(Report of November 1, 1982 at 7). An appropriate Order will be accordingly entered.
AND NOW, this 13th day of June, 1983, upon consideration of the exceptions to the Report of the Hearing Master dated January 4, 1983, regarding plaintiff class member L.P., filed by the Commonwealth defendants, the Montgomery County defendants, Shiloh, Inc., and Prospectus, Inc., a hearing having been held before this Court on April 13, 1983, for the reasons set forth in this Court's Memorandum of June 13th, 1983,
IT IS HEREBY ORDERED:
1. The Hearing Master's Order of January 4, 1983 is VACATED;
2. The Commonwealth defendants shall take all necessary steps to make certain that, on or before July 1, 1983, L.P. receives the habilitation specifically provided in his Individual Habilitation Plan.