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June 13, 1983

TERRI LEE HALDERMAN et al., Plaintiffs

The opinion of the court was delivered by: BRODERICK


 Pursuant to the injunctive relief ordered by this Court in 1977 designed to provide the retarded residents of Pennhurst their statutory and constitutional rights, an Individual Habilitation Plan (IHP) was drafted for L.P., a class member. The IHP called for L.P.'s movement from confinement at Pennhurst to a community living facility in Montgomery County. L.P.'s parents initially objected to the placement and demanded a hearing before the Hearing Master established by this Court's Order of April 24, 1980 as required by the Third Circuit's first en banc opinion in this case (see 612 F.2d 84, 112 (3d Cir. 1979)). Prior to this hearing, the parents withdrew their objections to L.P.'s community habilitation, based in part upon representations made to the parents by the Commonwealth, Montgomery County, and the private care providers obtained by these governmental entities. However, the Hearing Master discovered that these representations were not in fact accurate and held a hearing to determine whether the parents' consent had been obtained in violation of due process (Hearing Master's Report of January 4, 1983 at 2).

 Before discussing the specifics of L.P.'s situation, some background discussion is in order. In 1977, this Court, after 32 days of trial, set forth findings of fact and conclusions of law which determined that the constitutional and statutory rights of the retarded residents of Pennhurst were being violated by their continued confinement at Pennhurst (see Memorandum of December 23, 1977, 446 F. Supp. 1295). The Court instructed the parties to attempt to agree on the form of order necessary to provide to the plaintiff class injunctive relief to ensure that they received their rights as set forth in the Memorandum of December 23, 1977. However, no agreement was forthcoming. On March 17, 1978, this Court entered its original injunctive Order in this case which mandated, inter alia, the movement of Pennhurst residents to appropriate community living facilities where they would receive minimally adequate habilitation in the least restrictive environment. This Order was affirmed but modified by the Third Circuit. The Circuit Court directed that individual determinations be made for each class member as to the appropriate habilitation. As the Circuit Court reasoned, there might be some individuals who "because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life outside of an institution." (612 F.2d at 114). The Circuit Court therefore remanded the case to this Court for individual determinations "as to the appropriateness of an improved Pennhurst for each such patient." (612 F.2d at 114). In so doing, the Third Circuit directed that "the court or the Master should engage a presumption in favor of placing individuals" in the community. (612 F.2d at 115). As suggested by the Third Circuit, this Court established the Hearing Master for the purpose of making individual determinations when necessary. (See Order of April 24, 1980).

 After the Third Circuit's 1979 en banc opinion in this case, certiorari was granted on June 10, 1980. On April 20, 1981, the United States Supreme Court reversed the Third Circuit's determination that the Bill of Rights for the Handicapped contained in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, created in favor of the mentally retarded a substantive right to appropriate habilitation and treatment in the least restrictive environment. The Supreme Court remanded this case to the Third Circuit for consideration of the federal constitutional and statutory issues, as well as the state law questions raised by this Court in its December 23, 1977 decision. (See 451 U.S. 1, 101 S. Ct. 1531, 1546-47, 67 L. Ed. 2d 694).

 On February 26, 1982, the Third Circuit, pursuant to the Supreme Court's remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania's Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania's retarded citizens the right to adequate habilitation in the least restrictive environment. (See 673 F.2d 628 (3rd Cir. 1982)). The Third Circuit again affirmed the injunctive relief ordered by this Court on March 17, 1978 as amended in the Order of April 24, 1980. Although the Supreme Court again granted certiorari on June 21, 1982, there is no stay of this Court's Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living facilities in order to provide them minimally adequate habilitation.

 Thus, pursuant to the Court's injunctive Orders, a planning and assessment team composed of mental retardation professionals, including L.P.'s case manager who is an employee of Montgomery County, and Pennhurst staff professionals, who are state employees, prepared an IHP for L.P. L.P.'s parents, Mr. and Mrs. A.P., were also involved at every stage of the planning and review process, as required by this Court's Order of April 24, 1980. The plan provided that L.P. should be transferred to a community living facility in Montgomery County and that he receive a specified level of services, staffing care, and habilitation while at the community home. L.P.'s IHP also called for him to receive habilitation, training, and education during the day from a "day program provider". The community residence to which L.P. was transferred was to be administered by Shiloh, Inc., a private contract provider selected by the county and approved by the Commonwealth. Shiloh had subcontracted with Prospectus, Inc. to provide L.P.'s day-care programs.

 The Commonwealth of Pennsylvania, through the Pennhurst Implementation Team's Special Management Unit, which is a division of the state Department of Public Welfare's Office of Mental Retardation (DPW/OMR), approved L.P.'s IHP and found it to be more beneficial to L.P.'s habilitation than continued confinement at Pennhurst. Montgomery County also approved of L.P.'s IHP. The Office of the Special Master, which is no longer in operation, also approved the IHP. (The Special Master's Office ceased its existence on December 31, 1982; see Memorandum of August 12, 1982, 545 F. Supp. 410).

 There appeared to be no problem at the time L.P. was transferred from Pennhurst. He is a 50-year-old retarded person who is classified as profoundly mentally retarded, but who possesses a substantial amount of life skills, including speech and independent ability to attend to his personal hygiene. (See Hearing Master's Report of November 1, 1982, Dkt. No. 1638, at 2). The community living facility is a four-bedroom house in Lansdale where he would receive services designed to provide him a higher quality of care, training, and habilitation, something which the mental retardation professionals familiar with his situation unanimously agreed would provide L.P. with minimally adequate habilitation.

 Shortly after L.P. was transferred to the community facility, a problem developed concerning funding at his community home. It was the plan of both the state and county that L.P. was to receive his community residence and habilitation in a home that would be funded pursuant to the Small Intermediate Care Facility for the Mentally Retarded (ICF/MR) program. The ICF/MR program is a part of Title XIX of the Social Security Act and provides that, where certain conditions are met, a state and county may furnish a retarded person with a community living facility and receive 55% federal funding. Prior to the advent of the small ICF/MR program only large institutions such as Pennhurst had been eligible for the 55% federal funding provided by the ICF/MR program. The 55% federal funding under the prior ICF/MR program was encouraging states to ignore the fact that institutionalization of the retarded was not providing the minimally adequate habilitation which this Court had ordered. In 1974, the ICF/MR program was revised to permit 55% federal funding in those situations where the mentally retarded were transferred to small ICF/MR community facilities, as well as large ICF/MR institutions.

 Some clarification of terms is perhaps necessary. This Court has heretofore discussed ICF/MR community residences, community living arrangements, and 2176 Waiver community facilities. This Court has consistently considered all three types of community facilities as providing the minimally adequate habilitation required by the Court's Orders. The small ICF/MR community facilities have heretofore been discussed.

 A Community Living Arrangement (CLA) is a community facility that is 100% state funded. In Pennsylvania, CLAs contain an average of approximately three residents. In order to qualify for 55% federal funding pursuant to the small ICF/MR program, a community facility must contain a minimum of four residents. Because this and other ICF/MR requirements for obtaining 55% federal funding pursuant to the ICF/MR program constrained the flexibility of the states in meeting the needs of their retarded citizens through federally aided programs, Congress, in the Omnibus Budget Reconciliation Act of 1982, created the 2176 Waiver program as a new part of Title XIX of the Social Security Act. If a state applies for and obtains approval from the federal government, it may operate CLAs containing less than four residents and yet obtain 55% federal funding. Thus, the major distinction between the state-funded CLA, the ICF/MR and the 2176 Waiver CLA is their source of funding ...

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