or planned to be spent on non-Pennhurst class CLA residents in favor of the Police/Fire class (i.e., those living at home). This should be done immediately." This response by the Commonwealth defendants is one of the two proposals which the Commonwealth defendants made in open court for continuing services to the retarded. The elimination of all services to the retarded residing in Community Living Arrangements who are not members of the Pennhurst class would compound the crisis by inflicting irreparable injury to these residents.
The other proposal of the Commonwealth defendants for ensuring the continuation of services to the retarded living at home in Philadelphia is the suggestion that the City defendants should provide 100% of the funding. This proposal not only flies in the face of the mandate of the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4101 et seq. ("MH/MR Act") regarding Commonwealth support of mental retardation programs, but it would clearly add to the deficit of the City of Philadelphia at a time when the Commonwealth is advertising a surplus. (Reveal, N.T. 59-61, 1/18/89; Eidelman, N.T. 86-87, 1/18/89).
As pointed out in this Court's Memorandum of November 17, 1988, the state and the city are affirmatively mandated to provide services to the mentally retarded. The MH/MR Act is an express statement of the legislative intent that the Commonwealth and City defendants are obligated to provide habilitative services to the retarded. As Judge (now Chief Judge) Gibbons stated in Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 102 (3 Cir. 1979) (en banc), rev'd on other grounds, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981), "the MH/MR Act of 1966 contemplated a joint venture between the Commonwealth and its subdivisions, the counties, in the provision of services to the mentally handicapped." The Supreme Court of Pennsylvania has also made it abundantly clear, in an opinion written by Justice (now Chief Justice) Nix, that the statute places an affirmative duty on both the state and the city together "to insure the availability of adequate mental retardation services for all of the residents of the states [sic] in need of such services." In re Schmidt, 494 Pa. 86, 429 A.2d 631, 635 (1981).
Section 201 of the MH/MR Act specifically mandates that the Commonwealth defendants "assure within the State the availability . . . of adequate . . . mental retardation services for all persons who need them . . ." 50 P.S. § 4201(1). The Commonwealth defendants are obligated to allocate funding sufficient for mental retardation services to the counties. The same legislation mandates that Commonwealth defendants "consult with and assist each County in carrying out . . . mental retardation duties and functions," 50 P.S. § 4201(3), and requires the Commonwealth defendants "to make grants, pay subsidies, purchase services and provide reimbursement for . . . mental retardation services," 50 P.S. § 4201(7). The statute also makes it clear that it is the obligation of Commonwealth defendants to "supervise . . . mental retardation facilities, services and programs." 50 P.S. § 4201(8). The supervisory role of the Commonwealth defendants includes the allocation of funds to each county program and the review and approval or disapproval of each county's annual plan for providing retardation services.
Against this legislative background of well defined duties and obligations, the Court finds it totally unrealistic that the Commonwealth defendants take the position that the Commonwealth is not obligated to allocate or obtain the funds necessary to carry out this Court's Order of November 17. The Court specifically ordered the Commonwealth defendants to provide habilitative services to the members of the plaintiff class. The above quoted legislation makes it clear that the Commonwealth is obligated to provide 90% of the funding for habilitative services to the retarded pursuant to programs which the Commonwealth defendants approved and programs which they are mandated to supervise. 50 P.S. § 4509(1).
The Commonwealth defendants are mandated by law to require the counties, including Philadelphia, to provide annual plans and annual estimates of expenditures for mental retardation programs, 50 P.S. § 4509(2), and "to review grants against actual expenditures at any time and to make appropriate adjustments in subsequent grants," 50 P.S. § 4509(6). There is no question that the Commonwealth defendants are required by the legislation to allocate funds to the counties, including Philadelphia, for the purpose of providing habilitative services pursuant to plans which they have approved and which they are directed to supervise.
The Commonwealth defendants do not take issue with the City defendants that the deficit in funding for services to the retarded at the present time is approximately $ 5.5 million (Eidelman, N.T. 85, 1/18/89). It appears, however, that the Commonwealth defendants believe that the City defendants are not providing fiscally sound administration of the funds for the mentally retarded. They point out, for instance, that the costs of the habilitative services for the retarded are higher in Philadelphia than anywhere else in the Commonwealth. In this connection, it is of interest to note that the hereinabove referred to Expert Report submitted in Halderman v. Pennhurst, C.A. No. 74-1345 states:
The pattern of interactions between the Commonwealth, the County and providers is often dysfunctional, rarely coordinated and generally characterized by a complete lack of trust. If anything occurs as the outcome of planning, stratetic or otherwise, the link is not evident. As a result, considerable amounts of money are being expended without an apparent relationship to the quality or quantity of services rendered; volumes of information are collected about class members but little exists in the way of a mechanism to effectively use the date for corrective action; and, virtually everyone has resorted to some form of brinkmanship as a means of conflict resolution. (pp. 9-10).
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