Halderman v. PENNHURST STATE SCH. AND HOSP., Civ. A. No. 74-1345.

• Decision Date: 22 December 1982
• Docket Number: Civ. A. No. 74-1345.
• Citation: 555 F. Supp. 1138
• Parties: Terri Lee HALDERMAN, et al., Plaintiffs, v. PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants, United States of America, Plaintiff-Intervenor, Pennsylvania Association for Retarded Citizens, et al., Plaintiffs-Intervenors.
• Court: U.S. District Court — Eastern District of Pennsylvania

555 F. Supp. 1138

Terri Lee HALDERMAN, et al., Plaintiffs, v. PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants United States of America, Plaintiff-Intervenor Pennsylvania Association for Retarded Citizens, et al., Plaintiffs-Intervenors.

Civ. A. No. 74-1345.

United States District Court, E.D. Pennsylvania.

December 22, 1982.

David Ferleger, Herbert B. Newberg, Philadelphia, Pa., for Terri Lee Halderman.

Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.

Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Com. of Pennsylvania.

Thomas Gilhool, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens.

Herbert B. Newberg, Philadelphia, Pa., for David Ferleger.

Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass'n.

Terisa Chaw, Civil Rights Div., Dept. of Justice, Washington, D.C., R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.

Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

On November 26, 1982, the Hearing Master issued a report and Order concerning T.M. and A.B., two retarded persons who have been transferred from Pennhurst to a community living facility approved for funding by the federal government as a community facility for the mentally retarded (ICF/MR) in Montgomery County. Exceptions have been filed contesting various portions of the Hearing Master's report. Pursuant to this Court's Order of April 24, 1980, the Court will enter an Order setting a date for a hearing on these exceptions. However, the Hearing Master's Report and motions recently filed by the plaintiffs in this case set forth that the community facility in which T.M. and A.B. currently reside may be closed due to a dispute between the Commonwealth defendants, Montgomery County, and the private care providers under contract with the County to provide the minimally adequate habilitation required for T.M. and A.B. pursuant to their individual habilitation plans heretofore approved by the Commonwealth and the County.

In order to prevent irreparable harm to T.M. and A.B., which could occur if their community living facilities were suddenly terminated and to make certain that T.M. and A.B. are not returned to Pennhurst in violation of this Court's Orders, the Court will enter an Order directing the Commonwealth defendants and Montgomery County to take any and all steps necessary to ensure that T.M. and A.B. receive minimally adequate habilitation as described in their individual habilitation plans in their present residence until such time as this Court has had the opportunity to hold a hearing and make a determination concerning the exceptions to the Hearing Master's Report. The Court intends that the individual habilitation plans for T.M. and A.B. be fully complied with and that their current residence be maintained while this Court gives the matter expedited consideration, the hearing regarding the aforesaid exceptions to the Master's Report having been set for January, 1983.

Specifically, T.M. and A.B. reside in an intermediate care facility for the mentally retarded (ICF/MR) located in Pennsburg, Montgomery County, Pennsylvania. An ICF/MR is a facility operated pursuant to the medical assistance program of Title XIX of the Social Security Act (42 U.S.C. § 1396, et seq.). A small ICF/MR is virtually identical to the community living arrangement (CLA) residential treatment programs operated by the Commonwealth and County defendants in this case, which currently house many former residents of Pennhurst who have now begun to enjoy the greater benefits of education, training, habilitation, and life in the community rather than the segregation from society and regression in life skills which they suffered while at Pennhurst (see 446 F.Supp. 1295, 1300-1305). On the basis of funding, ICF/MRs appear to enjoy a financial advantage to the Commonwealth in that small residential facilities operated under the ICF/MR program are 55% federally funded while non-ICF/MR community facilities are 100% state funded. However, despite this relative economic benefit to the Commonwealth of ICF/MRs, the Commonwealth defendants have made little use of the ICF/MR program (see 545 F.Supp. 410 (E.D.Pa.1982); 542 F.Supp. 619 (E.D.Pa. 1982); 526 F.Supp. 428 (E.D.1981).

The ICF/MR in which T.M. and A.B. reside is operated by Shiloh, Inc. Pursuant to their Individual Habilitation Plans (IHP), T.M. and A.B. are also to receive day program training from Prospectus, Inc. The IHPs for T.M. and A.B. were provided by a planning assessment team aided by mental retardation professionals.

An individual habilitation plan (IHP) is designed for each retarded resident of Pennhurst for whom a community living arrangement is being considered. The development of such personalized treatment and habilitation plans was mandated by this Court's Order of March 17, 1978 (446 F.Supp. at 1326) as modified by the Order of April 24, 1980. Paragraph 2 of the March 17 Order provides:

Commonwealth and county defendants, as aforesaid, are permanently enjoined to develop and to provide a written individualized program plan, formulated in accordance with professional standards (Opinion, page 25; Roos N.T. 1-115, 1-116, Hare N.T. 8-168) to each member of plaintiff class, to provide to each an individualized habilitation program, to provide annual periodic review thereof and the opportunity to each member of plaintiff class and to his or her next friend to be heard thereon.

446 F.Supp. at 1326.

The injunctive relief ordered by this Court (Order and Memorandum of March 17, 1978; Order of March 5, 1979) as modified in light of the Third Circuit's first en banc decision in this matter (612 F.2d 84) (Order and Memorandum of April 24, 1980) requires that individual habilitation plans be developed for each resident of Pennhurst and other retarded members of the plaintiff class. These proposals are developed by a Planning and Assessment Team which includes but is not limited to the Pennhurst resident, his or her case manager, an employee of a county defendant, and the parent, guardian, or certified advocate of the Pennhurst resident. Frequently joining this team are Pennhurst staff members who have worked with the client, the day program and residential program providers for the retarded client as well as medical and habilitation specialists. At one time, the Special Master monitored the formulation of IHPs to make certain that each plan was formulated in accordance with professional standards so that each Pennhurst resident for whom an IHP was designed would have a reasonable opportunity to acquire and maintain such life skills as their potential capacities permit. On January 4, 1982, this monitoring function was transferred to the Commonwealth defendants who had, previous to that date, permitted...