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November 17, 1988


The opinion of the court was delivered by: BRODERICK


 This is a class action which was filed by mentally retarded Philadelphians living at home. The City of Philadelphia, on or about June 10, 1988, notified its Base Service Units (BSU's) and all retardation agencies that because of a fiscal deficit in the funds allocated to the city for mental retardation programs by the Commonwealth of Pennsylvania in the amount of approximately $ 6.8 million, certain services then being provided to the mentally retarded living at home in Philadelphia would be terminated as follows: 540 (59%) persons would lose their vocational placements; 550 of 1800 families (30%) would be denied continued Family Support Services; 150 of 1,500 pre-school children would have Early Intervention services terminated; and that a 50% reduction in Case Management Services would result. The members of the plaintiff class contend that the proposed termination of these services violates their constitutional rights and request this Court to enjoin both the City of Philadelphia and the Commonwealth of Pennsylvania from terminating these services.

 Plaintiffs filed motions for a preliminary injunction and for a temporary restraining order. Following a hearing, the Court issued a TRO effective August 1, 1988, which ordered defendants to maintain services "to all retarded persons who were receiving such services as of June 1, 1988 on the same basis and to the same extent as such services were provided as of June 1, 1988." By agreement of the parties, the Court entered an Order, subsequently modified, stating that the TRO would remain in effect until midnight on September 29, 1988.

 On September 15, 1988, the Court issued an Order as stipulated by the parties certifying this matter as a class action under Fed.R.Civ.P. 23(a) and (b) (2). The class was defined to include "all persons who are now or are later registered as clients with retardation with the City of Philadelphia and its Base Service Units." All members of the class are retarded *fn1" individuals residing in Philadelphia. The Court having on August 9 severed all issues concerning retarded citizens of Philadelphia who are on waiting lists for service, it was understood that the case would proceed solely on the issues presented by the termination of services to the members of the plaintiff class who are residing at home in Philadelphia with their families and who would be deprived of services pursuant to the determination of the City defendants on June 10, 1988, as heretofore set forth.

 In accordance with Fed.R.Civ.P. 65(a)(2), the hearing on the merits was consolidated with the hearing on the motion for a preliminary injunction and the hearing was held before the Court from September 26 to September 29, 1988. The parties once again agreed to extend the TRO, until October 14, 1988, and they made subsequent agreements to keep the TRO in effect through November 17, 1988.

 At the conclusion of the presentation of evidence on September 29, this Court made a finding and pointed out to the parties that it was somewhat unique to this civil dispute that all the parties-the plaintiffs; the City of Philadelphia and city officials Dr. Maurice Clifford, Commissioner of the Department of Health and Robert W. Glover, Administrator of the Health Department's Office of Mental Health and Mental Retardation ("City defendants"); and John White, Jr., Secretary of the Pennsylvania Department of Public Welfare (DPW) and Steven Eidelman, Deputy Secretary for Mental Retardation, DPW ("State defendants") - were in agreement that the termination of services to the members of the plaintiff class would result in irreparable injury to them and cause serious regression to many of them. At the conclusion of the trial, the Court issued an Order which directed representatives of the plaintiffs; the state defendants; and Dr. Glover and Kathy Sykes, Acting Director of Mental Retardation Services for the City; to meet in Harrisburg in an effort to bring about a settlement of this litigation and to make every effort to have the Governor of this Commonwealth and the Mayor of the City of Philadelphia attend this meeting.

 On October 14, the Commonwealth defendants advised the Court that because of the Governor's schedule they had been unable to arrange the meeting and requested an additional two weeks to do so. Finally, the Court was advised by counsel for the plaintiffs that a meeting at which settlement was discussed had taken place on October 28, 1988, and that neither the Governor nor the Mayor attended that meeting. The parties having been unable to settle the case, the Court ordered oral argument as to injunctive relief which oral argument was held on November 7, 1988.

 Based upon the evidence presented at trial, the facts stipulated to by all parties, and in consideration of the briefs and proposed findings of fact and conclusions of law submitted by the parties, the Court makes the following findings of fact and conclusions of law.

 Plaintiff Philadelphia Police and Fire Association for Handicapped Children, Inc. ("PPFA") is a non-profit organization composed largely, but not exclusively, of families of City of Philadelphia police officers and firefighters. PPFA advocates for the handicapped and provides services to them. Many of its member families include retarded individuals.

 The members of the class vary in age from infancy to adulthood and in capability from the mildly impaired to the severly and profoundly retarded. All of the members of the plaintiff class hereinafter referred to reside at home with their families.

 As noted above, the members of the plaintiff class are threatened with the loss of vocational or day services, family support services, early intervention programs and case management. The services provided to the class members divide into two main budgetary categories -- Non-Residential Services and Early Intervention. These must be distinguished from so-called Community Residential Services. Community residential services, as defined by the parties, are services delivered to those retarded individuals who reside in Community Living Arrangements ("CLA's") funded by the Commonwealth. Non-residential services are provided to the client and the client's family and in general are intended to provide habilitation *fn2" to those retarded individuals who live at home with their families. The nonresidential services being terminated include such services as: case management (case managers assist the client and family in developing a life management plan and in coordinating and ensuring the receipt of all other services necessary for habilitation); adult day care; pre-vocational training and sheltered workshops; family support services (assists the family in supporting retarded family members at home by providing such aid as respite care, financial assistance for recreational programs, homemaker services, therapy, and equipment); and early intervention services (intended to facilitate the developmental progress of retarded pre-school children and includes such services as physical, recreational, speech and occupational therapy, psychological services, parental support and medical services).

 Delivery of the above described community based services is funnelled through 13 BSU's located throughout the city, which handle all intake into the mental retardation system. Each BSU is a non-profit organization under contract with the City of Philadelphia. The BSU's are responsible for overall planning and coordination of service delivery to each client. Many services are provided directly by the BSU; others are supplied by a host of other providers. The particular mix of services given to an individual client is determined in accordance with an individually tailored plan which is prepared by a professional interdisciplinary team. The team is composed of the client, a family member or members, and a variety of professionals.

 It is clear that the families of the class members play a key role in the delivery of services to the retarded. Motivated solely by love and the highest regard for familial obligation, these families spend untold hours caring for the members of the plaintiff class, wholly without financial remuneration. Families are the primary providers of services to the retarded who live at home. They do so at the least cost to the taxpayer. Family support programs have been designed to help families care for their own retarded loved ones at home.

 The habilitation services provided to the retarded who are living at home are provided by the City of Philadelphia with funding contributed 90% by the state. The City provides a 10% match of state funds to pay for non-residential services pursuant to state law. Since at least 1981, the City has annually contributed $ 3 million for residential services in addition to its 10% match for non-residential services. Accordingly, the programs that are operated by the City of Philadelphia, through its Office of Mental Health and Mental Retardation, are primarily supported by funds allocated by the Commonwealth of Pennsylvania through its Department of Public Welfare.

 The Commonwealth and City were aware from at least July, 1987 that there would be a deficit in funding for retardation services in Philadelphia for fiscal year 1988 (ending June 30, 1988). No action was taken, however, until March, 1988, after the City announced cutbacks in retardation programs. These cutbacks were avoided by the Commonwealth providing a $ 1.2 million supplemental appropriation in June, 1988. From February to April, 1988, the City and Commonwealth agreed to work together to prevent a similar crisis from happening in the 1989 fiscal year. The state defendants, for reasons hereinafter set forth, have been unable to persuade the Court that the funding issue in this case is solely a problem to be resolved by the City.

 In order to cure the deficit, the defendants decided to terminate services to those living at home as follows: 540 people would lose vocational/day services; 550 would be denied family support services; 150 pre-schoolers would be deprived of early intervention programs; and case management services would be reduced 50%. Each of these service categories is critical to the habilitation program for those retarded individuals residing at home. The reductions in service proposed by the defendants would result in irreparable injury to each member of the class, as well as to the class members' families, many of whom are aged or infirm parents living on limited incomes.

 The services provided to the members of the class were, for each individual, recommended by his or her professional interdisciplinary team as necessary for habilitation. Necessarily, the spending reductions will adversely impact the growth and development of the class members. The impact of the service reductions is perhaps easier to describe on an aggregate basis given the uniqueness of the needs, the services delivered, and the harm to each individual member of the class. But the Court is keenly aware of the fact that the harm to the plaintiff class would be felt individually by each class member and his or her family. Elimination of a day program such as vocational training or a workshop can deprive the client of the dignity of earning a paycheck as well as the educational and socialization aspects of the program. It may also require a parent to quit a job in order to be at home each day to take care of their retarded loved one. Reductions in early intervention programs can unnecessarily limit the future intellectual growth of the pre-school retarded child only to require increased support in the school and when the child reaches adulthood. When social and recreational programs are cut back, there is a concomitant loss of self respect, opportunities for friendship, fun, and romance not available within the family, together with increased burdens on the family.

 The mentally retarded require a constant habilitative program simply to maintain their skills. Reduced services will cause such harm as decreased communication, social, vocational, physical, intellectual, and self-care skills and increased aggression, self-abuse and frustration to the individual. Termination of habilitative programs may make necessary the use of medication with its adverse side effects. No matter how the regression may manifest itself, each member of the class will suffer a setback in the path towards maximum independence, normalization and self-fulfillment. The incidence of emergencies requiring special intervention would undoubtedly increase if habilitative services are terminated.

 The Court has observed that there is no material dispute between the parties as to the fact that the members of the class will suffer. It was the city defendants, with the advice, consent and acquiescence of the state defendants, who decided to terminate habilitation services to the retarded living at home in order to balance the budget for the retarded.

 First, they decided to achieve savings by solely cutting services to the mentally retarded living at home with their families. Residential services, i.e. services provided to those retarded citizens living outside the home in Community Living ...

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