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Case 1:03-cv-03209-NGG -MDG Document 220 Filed 01/31/08 Page 1 of 16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DISABILITY ADVOCATES, INC ..
Plaintiff.
- against -
ELIOT SPITZER, in his official capacity as Governor of the State ofNe\\ York. RICHARD DAINES, in his official capacity as Commissioner of the New York State Department of Health, and MICHAEL F. HOGA0:, in his official capacity as CommIssioner orthe Ne"\v '{ork State Office of Mental Health, THE NE\V YORK STATE DEPART\lE:-JT OF HEALTH, AND THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.

Original Filed By ECF 03 CV 3209 (NGG) (MDG)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE EVIDENCE

BARBARA K. HATHAWAY AMY HELD SCOTT J. SPIEGELMAN AMY L. ABRAMOWITZ Assistant Attorneys General of Counsel

ANDREW M. CUOMO Attorney General of the State of New York Attornev for Defendants 120 Broadway New York, New York 10271 (212) 416-8560
Dated: New York, New York January 31, 2008

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. n

Preliminary Statement .......................................................... 1

ARGUMENT

THE UNDISCLOSED FACT AND EXPERT WITNESSES AND HEARSAY NEWSPAPER ARTICLES AND REPORTS ARE INADMISSIBLE ... . ...................................... 1

Standards Goveming This Motion. . . . . . . .. ..... . ................................ 1

The Declarations of Five Residents Who Were Not Disclosed During Discovery Must Be Excluded ........................................................... . 2

The Newspaper Articles Are Hearsay And Are Irrelevant ............................... 4

Reports That Are Hearsay, Outdated and Irrelevant Should Be Excluded .................. 5

The Testimony Of Undisclosed Experts Should Be Excluded ........................... 7

CONCLUSION .............................................................. 13

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TABLE OF AUTHORITIES

Cases

Page

Dowdell v. Chapman, 930 F. Supp. 533 (M.D. Ala. 1996) ................................................... 4

Eisenstadt v. Centel Corp., 113 F.3d 738 (7th Cir. 1997) ........................................................ 4

Gentile v. County of Suffolk, 129 F.R.D. 435 (E.D.N.Y. 1990) ..................................................... 5

Hollander v. America Cyanamid Co., 172 F.3d 192 (2d Cir. 1999) ........................................................ 2

Horta v. Sullivan, 4 F.3d 2 (1 st Cir. 1993) .................. . ........................................ 4

Johnson v. Scotty's, Inc., 119 F. Supp. 2d 1276 (M.D. Fla. 2000) ............................................... 2

Larouche v. Webster, 175 F.R.D. 452 (S.D.N.Y. 1996) ..................................................... 2

Muriel Siebert & Co. v. Intuit Inc., 8 N.Y. 3d 506 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12

United States v. Durrani, 659 F. Supp. 1183 (D.Conn.), affd, 836 F.2d 410 (2d Cir. 1987) ........................... 6

Federal Rules

Fed. R. Civ. P. 26(a) ..................................................................... 3 Fed. R. Civ. P. 26(a)(l) ................................................................. 1,2 Fed. R. Civ. P. 26(a)(2) .............................................................. 7,8, 10 Fed. R. Civ. P. 37 (c) ..................................................................... 3 Fed. R. Civ. P. 56 (e) ..................................................................... 1 Fed. R. Evid. 701 ........................................................................ 7 Fed. R. Evid. 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8 Fed. R. Evid. 803 (8) ..................... -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5, 6

State Statutes

N.Y. Pub. Off. Law § 73 (8) .............................................................. 12

Miscellaneous

4 Weinstein's Federal Evidence § 701.03[4] .................................................. 8

8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2289.1 (2d ed. 1994) .................................................................... 3

11 Moore's Federal Practice § 56.14[4][a] (3d ed. 2007) ......................................... 2

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Preliminary Statement Plaintiff DAl has flagrantly ignored the most basic of rules governing discovery in federal civil litigation. It has submitted declarations of five fact witnesses whom it never before disclosed, in violation of Federal Rule of Civil Procedure 26(a)(I) and of a clear court order. Plaintiff also attempts to rely upon hearsay newspaper articles and upon hearsay reports that are up to thirty years old. Finally, in a transparent attempt to bolster its designated expert witnesses, DAl submits the opinion, albeit highly conclusory opinion, testimony ofthree purported lay witnesses. While this evidence is far too unsupported, conclusory and irrelevant to raise a genuine issue of material fact, it should nonetheless be excluded, to vindicate the law and policies underlying the rules of civil procedure and evidence, as well as to prevent undue harm and prejudice to defendants. 1
ARGUl\-IENT THE UNDISCLOSED FACT AND EXPERT WITNESSES AND HEARSAY NEWSPAPER ARTICLES AND REPORTS ARE INADMISSIBLE Standards Governing This Motion It is axiomatic that evidence submitted in opposition to a motion for summary judgment must be admissible. Fed. R. Civ. P. 56 (e) provides that a "supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testifY on the matters stated." A motion to strike is the
1 Defendants wrote to plaintiff promptly after receiving their opposition papers, raising the issues discussed herein concerning Ms. Rosenberg's affidavit. After several conversations, plaintiff declined to withdraw the a:rfidavit. Defendants also wrote to plaintiff concerning the five new resident witnesses. Hathaway Decl. dated Jan. 31,2008. Furthermore, throughout this litigation, defendants have taken the position that DAI could not prove its case through newspaper articles and outdated reports. See,~, Exs. Hathaway B&C.
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appropriate vehicle by which to chal1enge evidence that fails to meet this standard. "A motion to strike is appropriate if affidavits contain inadmissible hearsay or are not made on the basis of personal knowledge .... Deposition testimony that contains hearsay, speculation or conclusory matter will also be subject to a motion to strike ...." 11 Moore's Federal Practice § 56.l4[4] [a] (3d ed. 2007):
Evidence may also be struck for noncompliance with discovery obligations, such as "expert affidavits submitted in support of summary judgment proceedings when those materials were not properly disclosed during discovery." Id. at 56-200. See also Johnson v. Scotty's, Inc., 119 F. Supp. 2d 1276, 1281 (M.D. Fla. 2000) (striking portions of affidavits that constituted opinion testimony by lay witness). A court may also strike affidavits that make generalized or conclusory statements. Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d CiT. 1999). "When ultimate facts and legal conclusions appear in an affidavit, such extraneous material should also be disregarded by the court." Larouche v. Webster, 175 F.R.D. 452, 455 (S.D.N.Y. 1996). See also II Moore's Federal Practice § 56.l4[1][d] at 56-197 (affidavits "must be sufficiently specific to support the affiant's position. Affidavits that contain nothing more than conc1usory allegations or speculation are not sufficient to overcome a properly supported summary judgment motion."). The Declarations of Five Residents Who Were Not Disclosed During Discovery Must Be Excluded
Fed.R.Civ.P. 26 (a) (I) requires that a party must disclose the name of each individual likely to have discoverable information that the party may use to support its claims. In this case, after extensive motion practice during which defendants sought the names of adult home
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residents whom DAl claimed were qualified for supported housing, Magistrate Judge Go ordered plaintiff to identify the adult home residents it intends to call as witnesses at trial by September 30,2005. Judge Go advised the parties that "failure to identify any resident may result in preclusion." Ex. Hathaway-W. DAI thereupon provided a list of resident witnesses, Exs. Hathaway-X&Y, and defendants proceeded to depose each of those witnesses (except those later withdrawn by DAl). None ofthe five residents who have submitted declarations in opposition to defendants' motion, H.S., RR,. N.R, RA. and OJ., were identified by DAI as witnesses? Fed.RCiv.P. 37 ( c) provides that if a party fails to identify a witness as required by Rule 26(a), "the party is not allowed to use that ... witness to supply evidence on a motion, ... or at a trial, unless the failure was substantially justified or is harmless."
The preclusion of unidentified witnesses is automatic, unless the failure was substantially justified or is harmless. 8A Charles Alan Wright & Arthur R Miller, Federal Practice and Procedure § 2289.1 (2d ed. 1994). Here, DAI cannot show substantial justification for its failure to comply with the federal rules and with Judge Go's order. Each of the five declarants has lived in an adult home since long before this action was filed, and nothing prevented DAl from locating and interviewing these witnesses, and disclosing their names, long ago.
It also cannot be disputed that defendants are prejudiced by the failure to disclose these names, and such failure was not harmless. Defendants diligently obtained records regarding each
2 When defendants inquired about these witnesses, plaintiff claimed that they were disclosed in response to an interrogatory seeking the names of all residents whom DAI claims are qualified for different housing. This position is specious. DAI disclosed well over 1,000 names in that interrogatory response. Ex. Hathaway - DD. Precisely because Judge Go recognized that defendants could not depose all such residents, she ordered DAI to disclose its resident witnesses. The interrogatory response gave defendants no notice that those individuals would testify and is no substitute for complying with Rule 26(a)(1) and Judge Go's order.
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of the resident witnesses and took their depositions. These depositions disclosed in detail the nature of the residents' lives in adult homes, and revealed the freedom they have to participate in community activities and to have contact with non-disabled persons, thus undercutting plaintiffs premise in this litigation. For DAI to be permitted to submit conclusory, self-serving declarations from residents whom defendants had no opportunity to depose is unfair and would permit DAI to completely flout the rules governing discovery. The Newspaper Articles Are Hearsay And Are Irrelevant
Plaintiff has also submitted a number of articles by Cliff Levy of the New York Times. Exs. 66 - 68 to Murray Decl. These articles are inadmissible hearsay and, in any event, are irrelevant. While it is far from clear what DAI claims that these articles prove, it is beyond cavil that they may not be used to prove the truth of the content therein. See,~, Eisenstadt v. Centel Com., 113 F.3d 738, 742-43 (7th Cif. 1997); Horta v. Sullivan, 4 F.3d 2, 8-9 (1st Cif. 1993); Dowdell v. Chapman, 930 F. Supp. 533,541 (M.D. Ala. 1996). Much of the information in the articles is on its face not based on the personal knowledge of the reporter, and any quotes contained in the articles constitute hearsay within hearsay. Moreover, this is not a situation in which the articles contain information that plaintiff could present in admissible form, because plaintiffwithdrew the reporter, Mr. Levy, from its witness list after the New York Times indicated that it would contest any subpoena issued to Mr. Levy, for deposition or trial testimony. Ex. Hathaway-AA.
In any event, the articles are irrelevant. Plaintiff recites that the articles reported "abuse, neglect, negligent supervision, inadequate medical care and chaos." PI. Mem. at 12. However, these are not the relevant issues in this disability discrimination case involving alleged non-
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integration. Furthermore, a large part of the articles focused on adult homes that are now closed or under new operators, including the Leben Home, Brooklyn Manor, and Seaport Manor. To the extent that the articles discussed DOH's enforcement activities, DAI's withdrawal of its two claims related to inspections and enforcement renders this evidence irrelevant. Finally, in an injunctive case, articles from six years ago are of questionable probative value, where DAI has admitted the situation has improved. In conclusion, the articles add nothing of relevance to the issues in this case. Reports That Are Hearsay, Outdated and Irrelevant Should Be Excluded
Plaintiff also submits a number of reports from public and private entities concerning adult homes, some dating from the 1970s. Many of these are hearsay, and lack any probative value due to their age. Still other reports are irrelevant because, inter alia, they concern adult homes that are closed. Accordingly, Exhibits 57, 69-70, 79, 86 and 125 to the Murray Declaration should be excluded.
While DAI does not even attempt to show how these reports are admissible and relevant, and fails to lay any foundation for their admission into evidence, the only possible basis for their admissibility is Federal Rule of Evidence 803 (8). Fed.R.Evid. 803 (8)(c) provides an exception to the hearsay rule for public records and reports setting forth "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness." The rule is premised on the assumption that most reports written and published by government agencies pursuant to their official duties are reliable. The court must still determine whether the report's conclusions are sufficiently trustworthy, considering factors such as the timeliness of the investigation, the special skill or
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experience of the officials, the procedures governing any hearings, any questions concerning motivation on the part of the investigators or other sources of information, and the finality of findings made in the report. Gentile v. County of Suffolk, 129 F.R.D. 435, 450 (E.D.N.Y. 1990) (Weinstein, J.).
Exhibit 57, a report from a private advocacy group known as the Adult Home Workgroup/ clearly falls outside of Rule 803 (8)'s exception, as it was written by a group composed overwhelmingly ofprivate entities and individuals, although it included some local government representatives. This group did not act pursuant to any authority granted by law. Finally, the report reflects no trustworthy method of investigation or data-gathering.
Similarly, the 1979 reports from a Deputy Attorney General and a New York City Council Subcommittee should be excluded as hearsay. Exs. 69-70. These reports are also nearly 30 years old. Plaintiff does not even attempt to explain what possible relevance such outdated reports could have in an injunctive case, which must focus on the current state of affairs. See United States v. Durrani, 659 F.Supp. 1183, 1186-87 (D.Conn.), affd, 836 F.2d 410 (2d Cir. 1987)(finding two year lapse in time substantially undercut report's trustworthiness).
Two reports from the New York State Commission on Quality of Care for the Mentally Disabled ("CQC"), Exhibits 79 and 86, should also be excluded from evidence as hearsay and irrelevant. The first, known as the Layering Report, is hearsay and is five years old. More importantly, its conclusions concerning the costs in the 11 adult homes reviewed therein cannot be automatically applied to all adult homes. Even Karen Schimke, an advocate for adult home
J This is a different group from the Adult Care Facilities Workgroup, which issued a report in October, 2002.
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residents and member of the Adult Care Facilities Workgroup's payment subcommittee, expressed doubts that the Layering Report's conclusions were reflective of all adult homes. Ex. Saurack - 14. Walter Saurack, former Director of the CQC's Bureau of Fiscal Investigations/Cost Effectiveness and a major contributor to the report, testified that he saw no "inconsistency" in Ms. Schimke's assessment, since the report looked only at 11 homes. Saurack Dep. at 163. It is even more perplexing that plaintiff would submit Exhibits 86 and 125, since this report (included twice) concerns only one adult home that is now closed, Ocean House. There is absolutely no basis to conclude that the financial improprieties that occurred at Ocean House, which resulted in criminal prosecutions and other administrative and civil actions, have or are taking place in other homes, even assuming (without conceding) that such improprieties are relevant to the claims in this action. The Testimony Of Undisclosed Experts Shonld Be Excluded
Plaintiff also presents the affidavits of several individuals who purport to opine on the ultimate issues in the case, often in completely conclusory fashion with no data or analysis to support their conclusions. These individuals, Clarence Sundram, Geoffrey Lieberman, and Linda Rosenberg, were never disclosed as expert witnesses and no expert disclosure was made as required by Fed. R. Civ. P. 26 (a)(2). That these affidavits are a blatant attempt to submit undisclosed expert opinion without complying with Rule 26 (a)(2) is clear from the many places in which DAI cites these witnesses and its expert witnesses in the same paragraph for the same proposition. PI. Mem. at 62, 71-72, 74, 75 & 78. If the issue is a matter of expert opinion from one witness, it is expert opinion from another. Accordingly, the testimony should be disregarded.
This testimony is not admissible as lay opinion testimony under Rule 701. To fall within
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that rule the testimony must be rationally based on the perception ofthe witness, helpful to a clear understanding of the testimony or the determination of a fact in issue, and not based on scientific or specialized knowledge. The 2000 amendments to Rule 701 were specifically designed to ensure that such evidence does not evade the reliability scrutiny mandated for expert opinion by Rule 702 or the pretrial disclosure requirements of Rule 26(a)(2). This evidence circumvents both rules. The affidavits do not include sufficient detail to show that the evidence is based on personal perception, as it does not describe the basis for the opinions at all. Most obviously, these witnesses were selected for their specialized knowledge in the mental health field, and their affidavits rely on this specialized knowledge. Thus, the testimony is inadmissible. See generally 4 Weinstein's Federal Evidence § 701.03[4]. This evidence is also inadmissible because the witnesses draw legal conclusions, such as whether adult homes are "integrated," and opine on the ultimate issues. Id. at § 701.04-701.05. The vague assertions of these witnesses, supported by no data or analysis, are also of no value to the court in determining any fact in this case. These witnesses are not truly fact witnesses, as they fail to provide the court with any factual evidence about adult homes. Rather, this evidence is simply a bold attempt to bootstrap DAI's experts' testimony with conclusory assertions agreeing with the experts.
Specifically, Mr. Sundram's affidavit, which begins with a detailed description of his credentials, including testimony before legislatures and his work as a court monitor, reads like an expert affidavit, albeit a completely conclusory one. Paragraphs seven through fifteen of his affidavit should be struck. Mr. Sundram, the former Chairman of the CQC, was never identified by DAI as an expert witness, and no expert disclosure by him was provided during discovery. Nonetheless, he provides opinion testimony on many of the issues in this case. He opines that
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adult homes are "segregated institutions" that impede residents' opportunities "to live normal lives," although he does not detail how adult homes have this effect. Sundram Aff. ~ 7. He asserts that "the true cost of segregating persons with mental illness in adult homes is approximately the same as providing them with supported housing in the community...." Id. ~ 12. However, he provides no details of the comparative costs and no analysis of how he reached that conclusion. Mr. Sundram goes on to opine that "people who can survive in adult homes can thrive in supported housing and at roughly the same overall cost." Id. ~ 13. Mr. Sundram does not indicate that he has any personal knowledge of the skills and functional abilities of adult home residents, or how he reached this conclusion. Needless to say, he does not indicate that he, an attorney by training, performed any clinical assessment of any adult home residents. As if it were not obvious enough that DAl is simply attempting to bolster its designated experts' testimony, the last paragraph ofMr. Sundram's affidavit constitutes nothing more than a blatant attempt to buttress their reports. He states that the experts' methodologies are "reliable, reasonable and appropriate" and "consistent with the manner in which such studies are done, and have a firm basis in professional practice." Plaintiff should not be permitted to insert an additional, undisclosed expert witness into this case in this manner, and at this late date in the litigation.
For similar reasons, paragraphs 4, 6, 7, and 8 of the declaration of Geoffrey Lieberman, Executive Director of the Coalition for Institutionalized and Disabled ("ClAD"), should be rejected. Mr. Lieberman asserts that adult home residents have been "effectively excluded" from mental health housing, and that the designation of adult home residents as target popUlations had "virtually no effect" on their access to housing. Lieberman Dec1. ~~ 4,6. He supports his
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conclusion with no facts or data, and the conclusion is obviously contradicted by the undisputed statistics in the record about how many adult home residents have moved to mental health housing funded or licensed by OMH.4 His opinion on the effectiveness ofOMH's efforts constitutes improper, undisclosed opinion testimony. It is also far too conclusory to be admissible or to raise a genuine issue of material fact. It is particularly noteworthy that Mr. Sundram left State employ ten years ago. He has no relevant current information concerning this case.
The affidavit of Linda Rosenberg, paragraphs five to fifteen, should be struck for the same and additional reasons, including breach ofOMH's attorney-client privilege. Ms. Rosenberg, who was Senior Deputy Commissioner of OMH when this case was filed, was at a number of meetings with senior OMH management and OMH counsel, at which this case was discussed. See In camera Declaration of Joseph Reilly. Her affidavit, like those of Mr. Lieberman and Mr. Sundram, is a blatant attempt to insert additional expert opinion into this case without complying with Rule 26(a)(2). Ms. Rosenberg, like Mr. Sundram and Mr. Liebennan, opines on the ultimate issues in the case. She describes adult homes as "more like institutions than community settings" which "impede the community integration" of residents. Rosenberg Afr. -,) 6. She does not, however, provide any facts or data to back up this conclusion, which is belied by the testimony ofDAI's adult home resident witnesses. Ms. Rosenberg also comments upon who is qualified for supported housing and upon defendants' fundamental alteration
4 Plaintiff's own evidence shows that hundreds of adult home residents have moved to OMH-funded and/or licensed housing. Raish Decl. Ex. 32. Plaintiff also cannot dispute that since April, 2005, approximately 200 residents State-wide have moved to mental health housing. Reilly Afr. -,) 29.
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defense. She states that "defendants could change the programs they administer" and that "virtuallyal1 adult home residents with mental illness are qualified for supported housing to live in supported housing." Id. at ~~ 11, 14. She asserts that supported housing would be less expensive than adult homes. Id. at ~ 14. However, Ms. Rosenberg's opinions are corppletely conclusory. She does not indicate how she reached these conclusions and provides no facts or data to support them. For example, shedoes not indicate that she has performed any clinical assessment of adult home residents, or even that she has ever met an adult home resident. She has done no cost analysis of adult homes and supported housing, and her assessment of the costs is completely conclusory. She also asserts that supported housing is not designed for individuals who need little support, but she provides no information on exactly what types of support is typically provided in supported housing. Id. at ~ 13. Again, she does not indicate that she has any personal knowledge of the needs of any particular adult home residents. Moreover, her unsupported assertion concerning the nature of supported housing is completely contradicted by the testimony and written admission criteria of the private providers who actually operate supported housing.
Ms. Rosenberg's affidavit also raises other serious issues militating against its admissibility. As noted, she was part of meetings at which the legal defense strategy for this case was discussed. The attorney-client privilege that attached to the discussions in those meetings belongs to OMH, and Ms. Rosenberg is not authorized to waive it. However, the conclusions presented in her affidavit are of necessity informed by and inextricably intertwined with what she heard in those meetings, and her affidavit thus intrudes upon privileged matter. More importantly, should this case proceed to trial and were she allowed to testify, defendants would
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be utterly hamstrung in their ability to test and challenge her assertions. It would be impossible to cross-examine her without referring to privileged matters.
The affidavit also raises serious concerns under New York's Public Officers Law. Ms. Rosenberg worked on this very case. She is barred from ever providing specified services for compensation, including testimony, concerning matters "with respect to which such person was directly concerned and in which he or she personally participated ... or was under his or her active consideration." N.Y. Pub. Off. Law § 73 (8) (a)(ii). Under this statute, a public officer may not reveal confidential information gained during her employment or opine on whether the defendants met or did not meet general standards in a case in which she was directly involved. New York State Ethics Commission Advisory Opinions 94-18, 95-40. Exs. Hathaway BB &CC. Ms. Rosenberg has done precisely that. While the affidavit does not indicate whether Ms. Rosenberg has received compensation, even if she were not paid this affidavit, containing opinion on the ultimate issues in the case, would constitute a flagrant attempt to circumvent the lifetime ban on her providing expert testimony in this case.
Finally, while under some circumstances it is permissible to speak to a former official of an opposing party without that party's attorney present, this ability is not unlimited. Defendants were not privy to any discussions between plaintiff or plaintiff's counsel and Ms. Rosenberg that led to submission of the affidavit, but it would clearly have been improper for plaintiffs counsel to obtain confidential or privileged information from a former OMH official. Muriel Siebert & Co. v. Intuit Inc., 8 NY. 3d 506, 511-12 (2007) ( the right to conduct ex parte interviews is not "a license for adversary counsel to elicit privileged or confidential information from an opponent's former employee.").
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Therefore, the specified portions of the affidavits of Clarence Sundram, Geoffrey

Liebennan and Linda Rosenberg should be struck.

CONCLUSION

FOR THE FOREGOING REASONS, mE EVIDENCE FROM WITNESSES WHO WERE NOT DISCLOSED AND HEARSAY NEWSPAPER ARTICLES AND REPORTS SHOULD BE EXCLUDED.

Dated: New York, New York January 31, 2008

Respectfully submitted,

BARBARA K. HATHAWAY AMY HELD SCOTT J. SPIEGELMAN AMY L. ABRAMOWITZ Assistant Attorneys General of Counsel

ANDREW M. CUOMO Attorney General of the State ofNew York Attorney for Defendants By:
T B~J<.~
BARBARAK.HATHAWAY Assistant Attorney General 120 Broadway New York, New York 10271 (212) 416-8560

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
DISABILITY ADVOCATES, INC.,
Plaintiff,
- against -
ELIOT SPITZER, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity Commissioner of the New York State Department of Health, and MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, AND THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.
---------------------------------------------------------------)(

Original Filed By ECF 03 CV 3209 (NGG) (MDG)

REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND TO EXCLUDE TESTIMONY, REPORTS AND OPINIONS OF PLAINTIFF'S EXPERT WITNESSES

BARBARA K. HATHAWAY AMY HELD SCOTT J. SPIEGELMAN AMY L. ABRAMOWITZ Assistant Attorneys General of Counsel

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants 120 Broadway New York, New York 10271 (212) 416-8560
Dated: New York, New York January 31,2008

Case 1:03-cv-03209-NGG -MDG Document 218 Filed 01/31/08 Page 2 of 34

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................... ii PRELIMINARY STATEMENT .................................................. 1 ARGUMENT ................................................................. 2 POINT I PLAINTIFF LACKS STANDING TO ASSERT ITS CLAIMS .............. 2

POINT II

PLAINTIFF HAS FAILED TO SHOW THAT ANY STATE SERVICE, PROGRAM OR ACTNITY IS CAUSING DISCRIMINATION ...................................... 4

POINT III

ADULT HOME RESIDENTS LNE IN INTEGRATED SETTINGS WHERE THEY HAVE VIRTUALLY UNLIMITED OPPORTUNITIES FOR CONTACT WITH NON-DISABLED PERSONS ................... 12

POINT N

DAI HAS NOT ESTABLISHED THAT ANY RESIDENTS ARE QUALIFIED TO LNE IN SUPPORTED HOUSING ................ 17

POINT V

DEFENDANTS HAVE ESTABLISHED THEIR FUNDAMENTAL ALTERATION DEFENSE .......................... 22

1. Defendants Have A Legally Sufficient Olmstead Plan .................... 23

2. Plaintiffs Relief Would Fundamentally Alter Many of Defendants' Programs ....................................................... 24

A. Supported Housing As Now Defined Is Not "supported housing with unlimited wrap around services" ....................................... 25
B. Plaintiffs Attempt to Require the Court to Impose Radical Changes On Defendants' Programs Is a Fundamental Alteration ......................... 26
C. Plaintiffs Alleged Medicaid Savings Are Speculative .......................... 27
POINT VI GOVERNOR SPITZER SHOULD BE DISMISSED AS A PARTY TO THIS LITIGATION ..................................... 29
POINT VII DOH AND COMMISSIONER DAINES SHOULD BE DISMISSED ..................................................... 30
CONCLUSION .............................................................. 30

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TABLE OF AUTHORITIES

Cases

Page

Adams Fruit Co. v. Barrett, 494 U.S. 638 (U.S. 1990)

.... 13

American Mfrs Mut. Ins. Co. v. Sullivan, 526U.S.40(1999) ........................................................ 10

Autism Society of Mich. v. Fuller, No. 05:05-CV-73, 2006 WL. 1519966 (W.D. Mich. May 26,2006) ................... 4

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ......................................................... 3

Comm. for Pub. Ed. & Religious Liberty v. Rockefeller, 322 F. Supp. 678 (S.D.N.Y. 1971) ............................................ 29

Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003) ............................................... 10

Frederick L. v. Dep't of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005) .............................................. 23,24

Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) .................................................. 14

Jackson-Bey v. Hanslmaier, 115 F.3d 1091 (2d Cir. 1997) ................................................. 3

Klostermann v. Cuomo, 126 Misc. 2d 247, 481 N.Y.S.2d 580 (Sup. Ct. 1984) ............................... 7

Lewis v. Casey, 518 U.S. 343 (1996) ........................................................ 3

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................ 2

Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002) ......................................... 11

Monaco v. Stone, 2002 WL. 32984617 (E.D.N.Y. Dec. 20, 2002) .................................. 10

Olmstead v. L.e., 527 U.S. 581 (1999)

passim

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ......................................................... 7

-11-

Case 1:03-cv-03209-NGG -MDG Document 218 Filed 01/31/08 Page 4 of 34
Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) .................................................. 11
Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ........................................................ 10
Rizzo v. Goode, 423 U.S. 362 (1976) ......................................................... 3
Shaw by Strain v. Strackhouse, 920 F.2d 1135 (3d CiT. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
Small v. General Nutrition Cos., Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) ............................................ 3
Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000) ................................................. , 13
TRW Inc. v. Andrews, 534 U.S. 19 (2001) .......................................................... 4
Tablie v. Gonzales, 471 F.3d 60 (2d Cir. 2006) .................................................... 4
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) .............................................. 11, 14
Wards Cove Packing Co. v. Atonio, 490 U.S. 642(1989) ....................................................... 7,8
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ......................................................... 7
Federal Statutes
42 U.S.C. § 10801 et seq ........................................................... 3 42 U.S.c. § 10805(a)(l)(B) ......................................................... 3 42 U.S.c. § 10805(a)(1)(C) ......................................................... 3 42 U.S.C. § 12134(a) ............................................................. 13 42 U.S.c. § 2000e-2(k)(B)(I) ........................................................ 8 Title II . ...................................................................... 5, 13 Title VII ........................................................................ 7
State Statutes
Mental Hygiene Law MHL 7.01 ...................................................... 7 Mental Hygiene Law MHL 7.07 ...................................................... 7
State Rules and RegUlations
18 "N'YCRR § 485.5 (m) ............................................................ 9 18 NYCRR § 487.5(a)(3)(xii) ......... , .................................. '" ..... 14, 17
-lll-
-_._--- .-

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Preliminary Statement Plaintiff has now dropped its two claims based on New York's alleged "toleration" of poor conditions in adult homes. Pl. Mem. at 79. 1 While thus acknowledging that New York has perfonned its oversight of adult homes adequately, plaintiff nonetheless attempts to pursue its claim that the State is responsible for the residents oflarge, privately operated adu1t homes in New York City living in allegedly non-integrated settings. However, the undisputed evidence establishes that New York State does not operate the homes and DAI can point to no State rule or policy that requires anyone to live in or receive services in an adult home. Nor does DAI dispute that residents have extensive access to community activities and amenities. DAI has therefore not shown that the State government defendants are responsible for any disability discrimination or that the residents are not in the most integrated setting appropriate to their needs. Moreover, even assuming that DAI could meet these threshold requirements, DAI's experts admittedly failed to perfonn a clinical evaluation of even one adult home resident; DAI has therefore not shown that any resident is qualified for the supported housing plaintiff seeks. The facts DAI proffers in an attempt to avoid summary judgment show no more than that there are alleged problems in the conditions and services in some of these private facilities (which DAI apparently admits the defendants are addressing in their oversight capacity). In the end, this case is nothing more than an attempt to have the Court address complaints about the quality of the conditions and services at some adult homes under the guise of a disability discrimination lawsuit. There is no basis under the Americans with Disabilities Act for the Court to do so.
I References to plaintiff's Memorandum of Law In Opposition To Defendants' Motion For Summary Judgment, dated December 3, 2007, will be to "PI. Mem. at "References to Memorandum of Law In Support of Defendants' Motion For Summary Judgment, dated August 10,2007, will be to "Defs. Mem. at _."

Case 1:03-cv-03209-NGG -MDG Document 218 Filed 01/31/08 Page 6 of 34
ARGUMENT POINT I
PLAINTIFF LACKS STANDING TO ASSERT ITS CLAIMS DAI does not have standing to assert its claims because it has not established the constitutional standing requirements of having suffered an injury that is fairly traceable to defendants' allegedly unlawful action, which is likely to be redressed by a favorable decision. DAI claims that defendants have merged the standing analysis with an analysis of the merits, but that simply does not address DAI's fundamental problem here: like any other litigant, it must meet the constitutional standing requirements, and it has not done so. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Even ifDAI were found to have standing in some capacity, its standing is limited and certainly not so broad as to permit the massive, systemwide relief it seeks here. DAI has not established injury in fact because it has not shown that any resident is qualified to move and has been denied the opportunity to move because of some action of the State. DAI claims that it has submitted a list of residents who it claims are qualified to move to allegedly more integrated housing, see PI. Mem. at 35-66, but, as discussed infra at Point IV, DAI has failed to come forward with any reliable evidence that any of these residents meet the minimum eligibility criteria of the non-party not-for-profit housing providers. DAI also has failed to show that the State has caused any of its constituents injury or that a Court order against the State would redress any alleged injury. DAI claims that the State has injured its constituents through the manner in which the State administers its mental health system. PI. Mem. at 36. As discussed further infra, DAI has failed to establish by anything more than mere speculation that qualified adult home residents, who want to move, have been denied
2

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that opportunity by some action of the State. Even ifDAI could show that any of its constituents have standing, DAI does not have
standing to pursue the systemwide relief it seeks here because it has not shown that thousands of its constituents have met the requirements of the standing analysis. See Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 97-98 (E.D.N.Y. 2005). For instance, DAI would only have standing to pursue claims on behalf of those residents who filed HRA 2000 applications. To establish standing, a plaintiff must meet the threshold requirement of showing that he has applied for a benefit, or make a substantial showing that such an application is futile, Jackson-Bey v. HansImaier, 115 F.3d 1091, 1096 (2d Cir. 1997), but DAI has not done so for the vast majority of its constituents. DAI's claim that filing an HRA 2000 application is futile, PI. Mem. at 37, is belied by the fact that their own witnesses testified that they moved from adult homes to alternative housing after filing the application. See P.C. 15-16, 154-57; A.M. 6-7, 134-37.
DAI also cannot obtain the systemwide reliefit claims here under the posture in which it has brought this case. DAI seeks class-action style relief for claims that necessarily involve individualized assessments about residents' qualifications. DAI seeks to shift its burden of establishing that its residents are qualified onto defendants, see PI. Mem. at 27 n.16, ignoring that it is the plaintiff's burden to establish its case. Without a showing that thousands of its individual constituents have suffered injuries, DAI cannot obtain systemwide relief See Lewis v. Casey, 518 U.S. 343, 359 (1996); City of Los Angeles v. Lyons, 461 U.S. 95, 97-100,105-06 (1983); Rizzo v. Goode, 423 U.S. 362, 367-69, 380-81 (1976).
Finally, DAI does not have standing to obtain systemic relief because the Protection and Advocacy for Individuals with Mental Illness Act ("PAlMI"), 42 U.S.C. §§ 10801 et seq., does not permit DAI to bring claims on behalf of many, ifnot all, of its constituents. Section
3

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10805(a)(1)(C) of the Act pennits organizations to bring claims "on behalf of' an individual only if, among other things, the matters involved "occurr[ed] within 90 days after the date of the discharge of such individual from a facility providing care or treatment ...." DAI can only bring cases on behalf of residents who meet these elements. See Autism Soc'y of Mich. v. Fuller, No. 05:05-CV-73, 2006 WL 1519966, at **10-11 (W.D. Mich. May 26,2006). DAI's contrary reading of the statute - that it is entitled to bring claims pursuant to 10805(a)(I)(B), PI. Mem. at 33-34 - must be rejected because it reduces section 10805(a)(l )(C) and its limitations on actions to mere surplusage and distorts the clear, plain meaning of the statute. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (noting that the Court was "reluctant to treat statutory tenns as surplusage in any setting," and reaffinning that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" (citation omitted)); Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006) (accord).
POINT II PLAINTIFF HAS FAILED TO SHOW THAT ANY STATE SERVICE, PROGRAM OR ACTIVITY IS CAUSING DISCRIMINATION Plaintiff does not and cannot dispute that the legal relationship between New York State and adult homes is that New York licenses, inspects and, where appropriate, brings enforcement proceedings against adult homes. Yet plaintiffhas withdrawn its two claims based on New York's allegedly "tolerating poor conditions" in impacted adult homes, thereby effectively conceding that there is no legal basis to challenge how New York is perfonning this oversight function. PI. Mem. at 79. Rather than specifically pointing to an alternative state service, program or activity that is causing the alleged discrimination, plaintiff attempts to salvage its
4

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case with the amorphous claim that the manner in which OMH is administering the entire mental health system leaves DAI's constituents no choice but to live in an adult home. This claim is woefully inadequate to meet plaintiffs burden of clearly enunciating the basis for its Title II claim against the State defendants, much less to raise a genuine issue of material fact. Plaintiffs theory that OMH's overall responsibility for regulating and overseeing the mental health system is a State service, program or activity rendering the State liable in this case is based on a
misreading of Olmstead v. L.c., 527 U.S. 581 (1999). Moreover, as a simple matter of causation
plaintiff must prove that something the State has done has resulted in disability discrimination. Here, plaintiff fails to identify the specific conduct that has forced DAI's residents to live in adult homes. In any event, plaintiffs theory lacks any factual support in the record. New York has done nothing that leaves individuals with mental disabilities no choice but to live in adult homes. To the contrary, in their role as licensing and regulatory agencies, defendants have taken many steps to support, fund and oversee the private providers who serve the residents, in an effort to ensure that those providers assist residents to have the best quality oflife possible, including access to various programs, rehabilitative treatment and services, and housing.
In pressing its Title II claim against the defendants, plaintiff has specifically disavowed reliance on the only ways in which defendants have a direct relationship with adult homes or adult home residents - the inspection and enforcement system and the discharge of a small number of patients from State psychiatric centers to adult homes. PI. Mem. at 48 n. 37, 79. Notwithstanding plaintiffs protestations that it is suing defendants for what they have done, and not what their licensees have or have not done, plaintiffs claim cannot be seen as anything but a complaint that the adult home operators and the various health providers who work with the residents have failed to ensure that residents live integrated lives and have access to various
5

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services and alternative housing. As fully discussed in defendants' moving memorandum, governmental entities cannot be held liable for the alleged violations of their licensees, and the ADA does not guarantee the quality or efficacy of services. DAI's entire theory of its case flies in the face of these fundamental principles.
First, plaintiffs reliance on the overall manner in which OMH administers the mental health system is based on a fundamental misreading of Olmstead. Olmstead was not premised upon the State's general oversight responsibilities, and nothing in Olmstead indicates that a State's general responsibility to oversee the mental health system renders the State responsible for whether all disabled persons are living integrated lives. Rather, the ADA requires that in administering its own services, programs and activities, the State must provide those services in the most integrated setting appropriate to the person's needs, if doing so can be reasonably accommodated and would not work a fundamental alteration. When the State is neither providing the services nor dictating where they are provided through its own rules and policies, the ADA as interpreted by Olmstead is simply inapplicable. In Olmstead, the two specifically identified patients were in State custody, being treated by State professionals who had determined that they were ready for discharge. The State was responsible for arranging that discharge. To leap from the facts in Olmstead to an obligation to ensure that individuals voluntarily living in a private residence not only have opportunities to access services and activities in the community, but also that they avail themselves of those opportunities, is unwarranted from the language or reasoning of Olmstead. Such a reading of Olmstead would make the State responsible for the quality of life and the degree of de facto integration of every person in the State with a mental disability, since persons living in any number of settings, receiving services from any number of private providers, could become isolated and have very
6

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little contact with non-disabled persons. Plaintiff correctly concedes that Olmstead has nothing to do with a public entity's failure to correct discriminatory conduct on the part of service providers it licenses. PI. Mem. at 44. Plaintiff nonetheless seeks to impose liability on exactly that basis.
Second, plaintiff cannot establish a claim against govenunental agencies simply by pointing to the State's general responsibility to plan for and oversee a mental health system - a system that includes many private providers that are licensed and regulated by the State. Rather, in order to prove that the State's actions are resulting in persons being unnecessarily segregated in non-integrated settings, plaintiff must identify a specific act or policy that causes that discrimination.2 Under a parallel civil rights statute, the Supreme Court held that a plaintiff
claiming employment discrimination under Title vn "must begin by identifying the specific
employment practice that is challenged.... the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities [in the employment of minorities]." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977,994 (1988». The Court went on to explain that plaintiffs "will also have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. To hold otherwise would result
2 Plaintiffs reliance on MHL 7.01 and 7.07 is misplaced. Plaintiff does not and could not seek injunctive relief based on these State statutes from this federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). Moreover, these statutes "define the general mission, or goal of [OMH] and were not designed ... to vest particular rights in the public at large." Klostermann v. Cuomo, 126 Misc. 2d 247, 251, 481 N.Y.S. 2d 580, 584 (Sup. Ct. 1984).
7

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in employers being potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces.'" Wards Cove, 490 U.S. at 657 (citation omitted)? Similarly, in this case plaintiff should not be permitted to simply allege that the totality of defendants' choices and policies in overseeing the entire system have rendered adult homes non-integrated settings and have left individuals with "no choice" but to reside in an adult home. In order for the defendants to respond to such a claim and for the Court to evaluate the claim, plaintiff must identifY the specific acts or policies that have resulted in the alleged disability discrimination experienced by their constituents. They have utterly failed to do so.
Plaintiff argues that OMH determines what "settings" in which individuals live and receive services will be developed and funded. This is no more than a restatement of the argument based on the overall responsibility for the entire system, and is far too general to show that plaintiffs constituents have been injured by defendants' actions. It is also irrelevant to this case. Neither OMH nor DOH determine where adult homes are located; rather, an operator applies for licensure of an adult home at a location he or she has selected. To the extent that plaintiff relies upon OMH's planning for and licensure of community based services such as clinics or day treatment programs, this too is irrelevant. The State has done nothing to limit adult home residents' access to any of these services in any location of the residents' choice.
Contrary to plaintiffs argument, DOH could not simply close adult homes and "redirect" the funds that would allegedly be saved thereby to development of more supported housing. Not
3 Following the Ward's Cove decision, Congress enacted 42 U.S.C. 2000e-2 (k) (B)(D. This statute does not affect the reasoning by analogy under the ADA, as there is no such amendment to the ADA. In any event, the statute only excuses the requirement of identifying a particular practice if the elements of a decisionmaking process are not capable of separation for analysis, which is not true here.
8

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only does this argument unduly intrude into a complicated area of public policy where the federal courts should defer to the State, it is unsupported on the undisputed facts in this case, because DOH's authority is contingent on adult homes not being needed. 18 NYCRR § 485.5 (m) provides that DOH may cancel an operating certificate when "such action would conserve resources by restricting the number of beds ... to those ... which are actual1y needed...." DAl has produced no evidence that adult home beds are not needed. There can be no dispute that there is a great need for affordable housing for individuals with mental disabilities and others with limited means in New York City. Moreover, it is inaccurate that defendants could simply "redirect" funds from closed adult homes to supported housing. First, New York does not fund adult homes. The residents simply choose to use their SSI payments to pay their rent and board at the adult home. Second, it is entirely speculative that there would indeed be savings, see infra at 27-28, and plaintiff has put forth no evidence sufficient to raise a genuine issue of material fact on this issue.
Plaintiffs next argument that defendants are attempting to evade their ADA obligations by making use of private entities to deliver services is meritless. That private entities are part of the system that provides treatment and services for individuals with mental illness does not render the State responsible for the actions of these private entities. Many types of services, from hospitals to restaurants to taxis, are provided by private entities or individuals that are licensed and regulated by governmental entities. Plaintiffs argument would eviscerate the principle that the government is not responsible for the actions of its licensees unless the practices of licensees are "the result of requirements or policies established by the State." Ex. Hathaway - A (DO] Technical Assistance Manual, 11-3.7200).
Not only would imposition of liability on the State in this case contravene the weB-settled 9

Case 1:03-cv-03209-NGG -MDG Document 218 Filed 01/31/08 Page 14 of 34
principle that the ADA does not render public entities responsible for the actions of their licensees, it would also conflict with the principles defining State action under the Constitution. In Monaco v. Stone, 2002 WL 32984617 (E.D.N.Y. Dec. 20, 2002), the court dismissed constitutional claims involving, inter alia, improper civil commitments to psychiatric hospitals, as against the directors of private inpatient psychiatric hospitals. Plaintiffs argued that OMH formed a comprehensive system for the treatment ofpersons with mental illness, licensed the
private hospitals, undertook initiatives designed to increase the private hospitals' participation in
civil commitments, and included the private facilities in its tallies of available providers. 2002
WL 32984617, at * 27. Despite all of these ways in which the State had oversight of and "relied
upon" the private hospitals, the Court found that the private hospitals were not State actors. Id. Neither licensure and extensive regulation nor funding renders the actions of private entities attributable to the State. See,~, American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999); Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
In the final analysis, plaintiff has cited no case holding that the State is liable for the alleged non-integration of persons living in private facilities that are merely licensed and regulated by the State, when the State has neither placed limits on where the residents may receive services nor conditioned services on living in that setting. The cases on which plaintiff relies for the proposition that the ADA's integration mandate applies to persons who are segregated in private facilities, PI. Mem. at 51 - 52. are wholly inapposite, and fully support defendants' position. They all concern specific, clearly identified State policies or practices that dictated where individuals could receive services. In none of these cases was liability premised simply on the State's general responsibility for oversight of the entire mental health system. For example, in Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (1oth CiT. 2003), the State
10

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placed a cap of five prescriptions per month on individuals receiving treatment in the community. while continuing to provide unlimited prescriptions to Medicaid patients in nursing facilities. This State rule thereby forced persons to choose between moving to a nursing home and receiving needed medication. Similarly. in Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), the State refused to provide community-based nursing services to one category of Medicaid recipients, including the plaintiff who resided in an adult family home, while it provided such community-based services to a different category of Medicaid recipients. The State thereby required the plaintiff to move to a nursing home or lose his Medicaid benefits. In Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002), there was no dispute that the plaintiffs were institutionalized in State or private Intermediate Care Facilities or nursing homes. The plaintiffs had applied for community-based services in settings including foster care and group homes, and had been on a waiting list for extensive periods of time - ranging from three to seven years. Neither is true here. Moreover, the plaintiffs were legally unable to receive services in the location of their choice as a result of the State's alleged failure to use existing Medicaid waiver slots or to apply for additional waivers. Plaintiff has made no such showing in this case. also Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (State placed a cap on funding for athome care, requiring plaintiff to enter a nursing home to receive the necessary care). Here, by contrast, there is simply no State rule or policy that requires residents to remain in an adult home in order to receive services - as evidenced by the number of adult home residents who have in fact moved.
In conclusion. plaintiff's attempt to shoehorn its complaints about the conditions and quality of services in private adult homes into a disability discrimination claim against the State is inconsistent with fundamental principles of the ADA. Plaintiffs amorphous claim that OMH
11

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is responsible for the entire mental health system would, if accepted, render the State responsible for seeing that every person with a serious mental illness received services that enabled him or her to live rich, full lives in which they had some unspecified but sufficient amount of contact with non-disabled persons, irrespective of where they lived and whether any State policy or rule limited or directed where they could live or receive services. If any individual did not meet plaintiffs criteria ofliving an integrated life, the State would be obligated to conduct the treatment planning that is currently the responsibility of the individual's health providers and case managers, and to provide each person with an apartment and unlimited services to ensure a successful existence in that apartment. While defendants are, as regulatory agencies, concerned with whether persons with mental illness receive high quality and effective services from the providers that New York licenses and oversees, plaintiffs radical expansion of the reach of the ADA is unwarranted as a matter oflaw, logic and policy.
POINT III ADULT HOME RESIDENTS LIVE IN INTEGRATED SETTINGS WHERE THEY HAVE VIRTUALLY UNLIMITED OPPORTUNITIES FOR CONTACT WITH NON-DISABLED PERSONS There is no dispute that adult home residents leave the homes and take advantage of the many opportunities for interaction with nondisabled persons available in their communities or in the City at large, including using stores, restaurants, parks, libraries, entertainment facilities, religious institutions, boardwalks, beaches, public transportation and other neighborhood conveniences. See PI. Resp. to Defs. 56.1 Stmnt. ~~ 24-26. The undisputed evidence also shows that, among other things, residents walk around the neighborhoods where they live, stay overnight with family and friends, speak with them on the phone, make friends in the community, vote, take GED classes, and hold jobs or volunteer positions. Id. at ~~ 25, 26.
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Finally, the undisputed evidence shows that adult homes are located in residential areas near stores, restaurants, religious institutions and public transportation. Id. at ~ 22. On these
undisputed facts, defendants maintain that adult home residents clearly live in integrated,
community-based housing, but DAI disagrees. Rather than a genuine dispute over facts, the disagreement here is over the definition of
the ADA's integration mandate and how integration is analyzed - a legal question fully amenable to determination on summary judgment. Defendants submit that integration turns on opportunities for contact with nondisabled persons, and that adult home residents are fully integrated in the community because they have nearly unlimited opportunities for these contacts, as shown by the fact that residents themselves have testified that they frequently avail themselves of these opportunities.4 Defs. Mem. at 52-58. DAI does not appear to dispute that integration means opportunities for contact with the nondisabled. See PI. Mem. at 56-57 ("Under the ADA, providing services in settings with some opportunities for interaction is unlawful if another
appropriate setting would provide more opportunities ...."). But DAI argues that the integration mandate requires that persons with disabilities reside in the most integrated setting possible and that scattered site supported housing is more integrated than adult homes.5 PI. Mem. at 56, 58-
4 DAI plainly mischaracterizes Defendants' position, suggesting that defendants' argument is that adult homes are integrated because residents have "some" opportunities for contact with the nondisabled. PI. Mem. at 54.
5 In a preliminary section of its argument, DAI relies on a definition of integration from the National Council on Disability. PI. Mem. at 30. No deference is owed to this agency's interpretation of the integration mandate because it is not charged with administering Title II of ADA, for which Congress has delegated rule-making authority to the Attorney General. 42 U.S.C. § 12134(a); Adams Fruit Co. v. Barrett, 494 U.S. 638,649 (U.S. 1990) ("A precondition to deference under Chevron is a congressional delegation of administrative authority."); cf. Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000) ("In contrast to situations where a federal agency is interpreting a statute it is charged with administering, 'courts owe no deference to an
13

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62. DAI has not and cannot establish, however, that supported housing is more integrated than adult homes because the record shows that both types of housing offer nearly unlimited opportunities for residents to have contact with nondisabled persons.
Adult homes and scattered site supported housing models offer equal opportunities for interaction with others in the community. As defendants have shown, the undisputed evidence here makes plain that adult home residents are neither isolated nor segregated because they have virtually unlimited opportunities for interaction with nondisabled persons and that residents take full advantage of these multiple opportunities. See Defs. Mem. at 53-58. Adult homes are located in the community, in residential neighborhoods near, among other things, stores, restaurants and public transportation. By law adult homes are required to permit residents to come and go as they please, subject to reasonable limitations for security, so that they can enjoy life in these community settings to the extent they desire. See 18 NYCRR § 487.5(a)(3)(xii).
The so called "facts" upon which DAI relies have nothing whatever to do with opportunities for contact with nondisabled persons. DAI claims that adult homes are less integrated than supported housing because adult homes are large, congregate care facilities, where residents are less independent than they are in supported housing units.6 PI. Mem. at 5962. But as defendants have maintained, the size of the home and independence of the residents are irrelevant to opportunities for contact with nondisabled persons, which is measured by access
agency's interpretations of state or federal criminal laws, because the agency is not charged with the administration of such laws.'" (citations omitted)).
6 Neither Townsend v. Quasim or Helen L. v. DiDario, upon which DAI relies, stands for any different test for analyzing integration. Neither of these opinions established a standard by which to measure integration; instead, they apparently merely assumed that certain settings were not integrated. See, generally, Townsend, 328 F.3d 511 (9th Cir. 2003); Helen L, 46 F.3d 325 (3d Cir.1995).
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to the community. See Defs. Mem. at 60-61, 63. In fact, an unbounded integration mandate that focuses on the size of the home or the composition of its population could mean that persons with mental illness who reside in CR/SROs are in nonintegrated housing because CR/SROs may contain 100 beds; even in single-site apartment treatment apartments or single-site supported housing, all the residents are persons with mental illness. See Madan Aff. ~~ 6-10; Newman Aff. ~~ 28-33, 38 & Exs. H & J at 4; Ex. Tacoronti-B.
DAI also suggests that adult homes are not integrated because they are institutional and may artificially limit interaction by establishing meal times, medication lines, and by overusing loudspeaker announcements. PI. Mem. at 59-61. DAI fails to establish that these factors affect opportunities for interaction; rather, it relies solely on conclusory statements rather than any empirical evidence. Any suggestion that these policies may have some marginal affect on opportunities for integration is belied by the overwhelming testimony from the adult home residents DAI designated as witnesses that they and their peers frequently leave the homes to use communityaccommodations.7 See Defs. Mem. 54-58.
DAI also claims that supported housing clients are more integrated because they "leave their apartments for activities of daily living - to buy food and other necessaries, do laundry, and see a doctor, among other things. In other words, they interact routinely with non-disabled members oftheir community." PI. Mem. at 62. But the undisputed testimony from DAI's adult home resident witnesses shows that adult home residents interact with nondisabled people by doing similar activities, including shopping, eating at restaurants, doing laundry, taking public
7 Indeed, to the extent plaintiff relies on expert opinion that these factors somehow limit opportunities that relies on facts contrary to the record, those expert opinions are properly disregarded. See Shaw bv Strain v. Strackbouse, 920 F.2d 1135, 1142 (3d Cir. 1990).
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transportation, visiting boardwalks, beaches, and libraries. 8 PI. Resp. to Defs. 56.1 Stmnt. ~~ 2426. Although there are some adult home residents who choose not to take advantage of these opportunities, it is undisputed that some individuals in supported housing can and do become isolated and segregated. PI. Response to Defs. 56.1 Stmnt. ~ 51; see also Duckworth 285; Lockhart 85-87; Tsemberis 112. Just as in adult homes, in supported housing the choice of whether to interact with others or participate in activities in the community must be left to the discretion of the resident. See Defs. Mem. at 61-62. Thus, supported housing and adult homes are equally integrated because both are community placements that offer substantially similar opportunities for access to nondisabled persons.
Finally, DAI suggests that the State has failed to offer adult home residents the "most" integrated setting possible. As discussed above, defendants maintain that the undisputed facts here show that adu1t homes and scattered site supported housing models are equally integrated. As a legal matter, however, the ADA's integration mandate simply cannot mean that the State has the responsibility to see that all residents live in the place that has the "most" opportunities for contact with nondisabled persons possible. Taken to its logical conclusion, such a definition would require the State to move persons with mental illnesses from family homes where - as was the case for B.J. - family members frustrate efforts for contact with nondisabled persons. See B.J. Dep. at 32, 57. It might also lead to a finding that apartment treatment housing or serviceenriched SROs (CRISROs) are not integrated because residents may have curfews and rules about visiting hours. See Madan Aff. ~ 12 & Exs. A & B; Bear Dep. at 96 & Exs. 9, 11. An
8 Some adult home residents choose to do their laundry at local laundromats. S.B. 82; L.G. 88-89; A.M. 103-04; J.M. 101-02. Some also see doctors outside of the adult homes. G.H. 258-60; G.L. at 83-85.
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unfettered integration mandate could even lead to a finding that residences in rural areas or suburbs are less integrated than those in the City, where there are theoretically additional opportunities to meet nondisabled persons due to the availability of public transportation and proximity of stores, restaurants and other community amenities. Instead, the integration mandate requires that a person not be isolated and segregated from his community by rules and policies that erect real barriers to accessing the community at large, such as the privilege restrictions at State psychiatric institutions. See Defs. Mem. at 60. Adult homes are integrated settings because by law they are required to permit residents to come and go as they please, subject to reasonable limitations for security, and allow residents to enjoy life in the community to the extent the residents desire. See 18 N.Y.C.R.R. § 487.S(a)(3)(xii).
In sum, the testimony ofDAl's own adult home resident witnesses establishes that adult homes are fully integrated settings.
POINT IV DAI HAS NOT ESTABLISHED THAT ANY RESIDENTS ARE QUALIFIED TO LIVE IN SUPPORTED HOUSING As set forth in defendants' memorandum oflaw, Olmstead requires that the State move a person who is in State custody (unlike adult home residents) to a more integrated setting only if, among other requirements, the person is qualified to move into that setting. See Olmstead, 527 U.S. at 602. In opposition to defendants' motion, plaintiff argues that there is "substantial evidence that large numbers of residents" are qualified to move and that, at the very least, there is a genuine issue of material fact. PI. Mem. at 63. To support its assertion that the residents are qualified, plaintiff relies on (1) its experts' bald assertions (indeed, their starting assumptions) that the residents are qualified, (2) the New York Presbyterian Hospital assessments ("NYPH
17

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Assessment") and (3) the Adult Home Work Group report. PI. Mem. at 63. However, each of these is legally deficient.9 Instead of perfonning a clinical examination, necessary under the accepted professional standard for making such a detennination, plaintiff simply assumes that all the residents are qualified to move. All plaintiff offers is a flawed syllogism: (a) all mentally ill people can live in supported housing ifthey are given enough support; (b) enough support exists ifyou provide additional, wrap-around services beyond those that are part of supported housing; therefore (c) all residents are qualified to move to supported housing. This faulty reasoning both begins with the premise it sets out to prove and transfonns the eligibiJity standards of supported housing in order to prove the conclusion. Thus, there is no issue of material fact because plaintiff has failed to produce any competent evidence that any residents are qualified to move.
The Complaint alleges that at least half of the 4,000 residents on whose behalfDAl has brought this case are qualified to move to more integrated settings. CompI., 114. After initially identifying only two "qualified" residents (one of whom has moved), DAl finally produced a list of 1536 residents who they claim are qualified to move to purportedly more integrated settings. Its experts then went on to assert that "virtually all" residents are qualified. However, as demonstrated in defendants' Daubert motion, DAl has failed to establish that any of these individuals are qualified to live in allegedly more integrated settings because, among other
9Plaintiffs reliance on the report ofthe Adult Care Facilities Work Group, Raish Decl. Ex. 57, for the assertion that half, or 6,000, of adult home residents could be served in supported housing, PI. Mem. at 63, strains credulity, as it is contradicted by the Report itself. The Report states that this assumption is hypothetical and not based on any data. Moreover, two advocates who testified on plaintiffs behalf admitted that there was no data supporting the assumption that 6,000 individuals could move. See Rosenthal Dep. at 163-64; Schimke Dep. at 106-08. Plaintiffs reliance on the NYPH Assessments is likewise baseless. Dr. Bruce herselftestified that the NYPH Assessment could not be used to make final determinations concerning housing placements. See Bruce Dep. at 55-56, 132, 203. See also Defs. Daubert Mem. at 10.
18

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reasons, none of these residents has been clinically examined by treatment providers to determine whether he or she meets the minimum requirements for acceptance into these housing programs.
Although DAI's experts acknowledge that an in-person clinical examination is necessary to determine the supports that would be required for a person who moved to supported housing, they admit that they failed to conduct a clinical evaluation of a single adult home resident. DAI admits that Dr. Kenneth Duckworth simply interviewed some residents but did not conduct clinical examinations. PI. Resp. to Defs. 56.1 Stmnt. ~ 64. Ms. Jones admitted that she is not a clinician and did not perform any clinical examinations to determine whether any individual is qualified to move. In fact, she testified that "[m}y assumption is that each individual could live in supported housing if the proper support were available." Jones Dep. at SO. Plaintiff readily admitted that its other two experts, Dennis Jones and Dr. Ivor Groves, did not conduct clinical interviews of any adult home resident. PI. Resp. to Defs. 56. 1 Stmnt. ~~ 67, 6S. As demonstrated in defendants' Daubert motion, DAI's experts' methodology falls woefully below the standard accepted in the field.
Plaintiffs contention that a clinical assessment is not necessary to establish whether a resident is qualified to move to supported housing, but only to determine what services are necessary to live in that setting, is baseless. As demonstrated in defendants' Daubert motion, the accepted professional standard requires a clinical evaluation to determine whether an individual meets the criteria for a particular setting, such as supported housing. Rather than determine whether an individual is qualified, plaintiff posits that nearly everyone with a mental illness can live in supported housing ifthey are given the proper supports.
In support of its argument that its experts' findings are sufficient and that an in-person clinical examination is not required to establish whether a resident is qualified to move, DAI
19

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refers to the findings and conclusions of defendants' expert, Dr. Jeffrey Geller. PI. Mem. at 64. However, DAI's reliance on Dr. Geller for this assertion is misplaced. Dr. Geller made clear that he performed "a legal exercise and not a clinical exercise" and that in order to decide whether a resident is qualified to move the methodology that he, and other experts, would employ includes an interview of the individual. Geller Dep. at 139-40. Indeed, Dr. Geller stated that the method he used, review of records, was insufficient and inadequate to determine whether an individual is qualified. "[T]he standard in my field wouldn't go about evaluating any individual for transitional housing without more information than was available to me. That individual would interview or have conversations with collateral sources of information, perhaps other members of a treatment team and would interview the individual." Geller Dep. at 141 (emphasis added).
In an effort to overcome its utter lack of proof that any resident is qualified to move, DAI contends that any individual can live in supported housing ifhe or she has sufficient support. PI. Mem. at 65-66. DAI is wrong because it mischaracterizes supported housing. As discussed in Point V infra, plaintiff turns the definition of supported housing on its head by claiming that virtually all individuals with mental il1ness can live in it. It is undisputed that supported housing is designed for the most independent individuals, who need only minimal support.IO Supported housing is designed for individuals who are capable of living independently and taking care of their personal needs with minimal support. Newman Aff. ~ 38 & Exs. H & J at 4. There is no on-site staff and there are no on-site programs in supported housing. A supported housing resident would typically be visited by a staff person only a few times per month, and possibly
lO"Supported Housing: The Residents: Exclusively for people with mental illness who are able to live independently with minimal support services." Supportive Housing Options NYC, Ex. Tacoronti-B at 7 (emphasis in original). See also Bear Dep. at 114-118 & Ex. 13; Lockhart Dep. at 40-42 & Ex. 11.
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only once a month. Madan Aff. ~ 10; Bear Dep. at 108; PI. Mem. at 16. DAI ignores these eligibility requirements and argues that any individual can live in supported housing because Assertive Community Treatment ("ACT") teams are available to residents of supported housing which provide "a very intensive fonn of community support," and that this support as well as the other supports that case managers provide shows that individuals may participate in supported housing if they need more than "minimal support." PI. Mem. at 65-66. However, supported housing does not include an ACT team. ACT teams provide additional services, i.e., they provide supports that are not available in supported housing. Although ACT teams can provide flexible services on a temporary basis to some clients, they would not be able to provide intensive services on an ongoing basis to many clients. See Wagner Dep. at 135 ("Certainly ... if ... there were a thousand people put into supported housing and all of them needing ACT, we wouldn't be able to meet that demand with the way things are currently done.") Moreover, ACT teams are not designed to provide regular assistance with personal hygiene, medication assistance, or many other activities. Finally, dedicating all ACT teams to residents of supported housing could deprive others who need ACT team services. In short, DAI has completely failed to show that any resident could safely be placed in supported housing as currently defined, or even in supported housing with an ACT team.
DAI also disputes that its constituents should have to submit an HRA application and be approved before being deemed qualified. DAI's assertion that "completing an BRA 2000 is not an essential precondition for obtaining OMH housing" is without merit. PI. Mem. at 67. In order to be eligible for housing for persons with mental illness, an BRA 2000 must be filled out and submitted to the New York City Human Resources Administration. Tacoronti Aff. ~ 28, Madan Aff. ~ 11. Indeed, Suzanne Wagner, Director of the Center for Urban Community
21

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Services, testified that "[a]ll the applications go to HRA first. This is the beginning of the process." Wagner Dep. at 26. DAI also argues that "even ifthe HRA 2000 were a precondition to obtaining housing, it is not an 'essential' eligibility requirement as that term is used by the ADA. It is but a bureaucratic process, unrelated to the characteristics of an individual that render him or her suitable for housing." PI. Mem. at 67 (citation omitted). Again, DAI's argument is without merit. The BRA 2000 application states that HRA will review all applications to determine (1) an applicant's eligibility for placement in housing developed for individuals with serious mental health problems and (2) the level of supportive housing approved. Ex. TacorontiC. As part of the HRA packet, a current Comprehensive Psychosocial as well as a current Psychiatric Summary must be filled out. A review of the information submitted in and with the HRA 2000 permits an assessment of an individual's psychiatric requirements and his or her functioning level to determine eligibility for and the level of housing, and ensures that the housing goes only to those who have a qualifying mental illness. Thus, by its very terms, the BRA 2000 is a precondition to obtaining housing and is an essential eligibility requirement directly related to an individual's characteristics that render him or her suitable for supported housing or any other model of mental health housing.
Plaintiff's attempt to evade its burden of proof with experts who simply assumed that virtually all residents were qualified, instead of making this determination after careful review of each resident according to professional standards, should be rejected.
POINT V DEFENDANTS HAVE ESTABLISHED THEIR FUNDAMENTAL ALTERATION DEFENSE Plaintiff does not because it cannot set forth any material facts that contradict
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defendants' extensive proof establishing defendants' fundamental alteration defense, including New York's comprehensive, effective system and plan to provide as many community programs and services, including OMH licensed and/or funded housing programs, to persons with disabilities Statewide, as feasible. See Defs. Mem. at 70-79; Myers Aff~~ 97-98, 103-68 & Exs. B-HH; Simons Aff. ~~ 15-111 & Exs. A-F. Instead, plaintiff artfully tries to play the same few word games that it has tried to play throughout the course of the extensive discovery in this case.
1. Defendants Have A Legally Sufficient Olmstead Plan The first word game is based on the phrase "Olmstead plan." In repeated requests to admit and when examining numerous witnesses from DOH and OMH who are unquestionably dedicated to doing the best job they can with limited resources and expansive responsibilities to all persons with disabilities in the State, plaintiff had one mission. Namely, to get a lay witness to admit that New York has no single document entitled an "Olmstead plan" specifically tailored for adult home residents - regardless of what facts the witness established regarding DOH's and OMH's support of many community programs and services. These programs include OMH licensed and/or funded housing programs, available to all persons with disabilities, including adult home residents. Plaintiff contends it should win this case because one straw man it has set up, i.e., the purported requirement ofan Olmstead plan of plaintiff's own definition, was missing. Plaintiff's argument is deeply flawed in many respects. Plaintiff's argument depends on the Court's accepting many untenable premises,~, that Olmstead applies to this case involving disabled adults living in privately owned and operated adult homes in which they are free to come and go and to move from; that Olmstead requires an "Olmstead plan" as interpreted by the Third Circuit in Frederick L. v. Department of Public
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Welfare, 422 F.3d 151 (3d Cir. 2005), and applied by that Court in the context of disabled individuals residing in institutions owned and operated by the State of Pennsylvania; that the Court should take plaintiffs word that expensive and extensive wide-spread systemic relief is warranted because unlike in Frederick L., where the PAIMI plaintiff met its initial burden of proofregarding the threshold question of whether and which of its constituents State treatment professionals had determined could appropriately live in the community plaintiff does not actually have to prove standing for any of its purported thousands of alleged constituents other than to show that some problem "might" exist. Plaintiffs clever advocacy cannot convert legal arguments - whether Olmstead even applies in this case, whether the fundamental alteration defense requires an Olmstead plan at all, much less separate plans based on type of residence, and whether defendants' "Olmstead plan" is legally sufficient into a factual dispute. These are clearly legal issues for the Court to decide. Moreover, defendants submit that Olmstead does not, and should not, make the State responsible to guaranty the entitlement of all disabled adults to a State-funded private apartment-style residence with as many State-funded wrap around services that such individuals require to live safely in such a setting.
2. Plaintiff's. ReJief Would Fundamentally Alter Many of Defendants' Programs
Plaintiff disingenuously claims that it seeks only to vindicate the alleged rights of adult home residents in New York City in this case and that its relief would not fundamentally alter defendants' programs. Plaintiffin fact asks this Court to expand Olmstead to require the State to guaranty the entitlement of a11 disabled adults to a State-subsidized private apartment-style residence with as many State-subsidized wrap around services as they would need to live safely in such a setting. While plaintiffs goal may be laudable, the law does not require all such ideals

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to be mandated when the State's resources are limited and its responsibilities to its citizenry Statewide are extensive. Plaintiff's relief would create new programs and would fundamentally alter many of defendants' programs and policies. See Defs. Mem. at 75-79. As explained below, plaintiff's arguments confuse and redefine terms and mischaracterize facts.
A. Supported Housing As Now Defined Is Not "supported housing with unlimited wrap around services"
Defendants have submitted extensive admissible factual evidence regarding the Supported Housing Program, including from third parties who run the housing, establishing that supported housing is one of several models of OMH subsidized housing programs and is designed for individuals with a sufficiently high level of independent living skills to enable them to live safely with minimal supports. Myers Aff. ~'l 243-44; Newman Aff. ~ 38. In the face of this evidence, plaintiff argues that "Supported Housing" is not the Supported Housing Program as currently defined, but rather a State-subsidized private apartment-style residence that is accompanied by whatever wrap around services a disabled individual would need to reside there without endangering himself or the other residents of his apartment and building. Plaintiff cannot create a genuine issue of material fact about the Supported Housing Program by ignoring the extensive facts in the record. Nor can plaintiff create an issue of material fact by trying to recharacterize the program by repeatedly describing it as "supported housing with wrap around services." Finally, plaintiff cannot create a genuine dispute of material fact by relying upon a witness who runs the controversial and unique "Pathways to Housing" program targeted primarily for the homeless, which is more expensive than Supported Housing (but still does not include all the services the residents here may need), or on purported expert witnesses who admitted they didn't even use the term "supported housing" as currently defined in their expert
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reports, and that they failed to familiarize themselves with supported housing in New York before they rendered their expert reports in this case. See,~, Groves Dep. at 93-113. The relief sought here constitutes a fundamental alteration because it would change the nature of the Supported Housing Program.
B. Plaintiff's Attempt to Require the Court to Impose Radical Changes On Defendants' Programs Is a Fundamental Alteration
Plaintiffs attempted recharacterization of the Supported Housing Program, while legally unavailing, is necessary as the foundation for its attack on defendants' fundamental alteration defense in several other respects. Once that card is removed, more of plaintiff s house of cards collapses.
For example, plaintiff denies that it seeks to fundamentally alter OMH's programs, despite the evidence in the record that OMH licenses and funds a spectrum of housing programs that are designed as a matter ofpolicy to vary, from model to model, in the amount of support offered to residents and in the corresponding degree of independent living skills that the residents are expected to have in order to live safely in the setting. However, plaintiffs director and one of plaintiffs experts have admitted that "supported housing with wrap around services" is the only model of housing that they believe to meet their interpretation of Olmstead's integration mandate. Groves Dep. at 93-113. In seeking to have the Court make mental health policy and require the State to move adult home residents to "supported housing with wrap around supports," as opposed to any existing model of mental health housing, plaintiff seeks to fundamentally alter OMH's policies and programs, and to engage the court in a public policy debate about what model is "better." Indeed, under DAI's theory, community residences and other models of mental health housing may be antithetical to Olmstead.
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Plaintiff also denies that it seeks to take resources from disabled adults and children Statewide in order to finance "supported housing with wrap around services" for adult home residents in New York City. However, the record is clear that although New York has devoted extensive resources to developing supported housing, and is committed to developing more in the future, Defs. Mem. at 24-25, there are not sufficient beds for all State residents with mental disabilities who desire them. In this country, housing, especially housing of the particular type of one's choice, is not an entitlement. Therefore, the only way to meet plaintiffs goal of requiring the State to move all disabled adult home residents to State-subsidized apartment-style residences with wrap around services, without displacing other disabled individuals residing in other settings (including State hospitals) who would also like to live in "Supported Housing" or "supported housing with unlimited wrap around services," would be for OMH to spend an additional extensive amount of its resources to develop such housing and services for every such individual in the State who wants such a residence. This would constitute a fundamental alteration. 11 Myers Aff. ~~ 229-37; Simons Aff. ~~ 73-74.
C. Plaintiffs AJleged Medicaid Savings Are Speculative Another word game that plaintiff has continued throughout the course of discovery in this case literally compares apples to oranges and then asks the Court to rely on purported differences between these two disparate groups. Plaintiff argues that hypothetical Medicaid savings would
"Likewise, plaintiff's relief constitutes a fundamental alteration in that it seeks to require OMH and/or DOH directly to assess and move the adult home residents. Although the State's Olmstead plan includes oversight of a system in which private providers and mental health treatment professionals, among others, assess the residents' goals and potential, requiring State treatment professionals to go into the private adult homes and directly assess and move these individuals would indisputably constitute a fundamental alteration and the creation of a new program.
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materialize if adult home residents moved to "supported housing," despite the evidence establishing that such an argument is wholly speculative. Ex. Saurack-14 at DAI 936-37; Liebennan Dep. at 63, 193-94; Kipper Af£ Ex. A at 11; Ex. Hathaway-Z. Again, plaintiffs argument requires playing fast and loose with the tenn "supported housing" because it depends on a table that compares the average Medicaid expenditures of residents of Supported Housing with those ofresidents of adult homes, and then ignores the evidence establishing that the populations in these two settings are obviously distinct, and any comparison of Medicaid costs, without value. This is because the record establishes that Supported Housing is designed for and operated by third party providers for disabled persons who have a high level of independent living skills and who can live safely in that setting with minimal supports. Lockhart Dep. at 4042. Since adult homes offer more assistance, including assistance with bathing, house cleaning, medication and meals, it is perfectly logical to expect that a larger number of persons choosing to reside in such settings have fewer independent living skills and require more supports, including those funded by the Medicaid program, than residents of supported housing. Lockhart Dep. at 42-44; Schaefer-Hayes Aff. ~~ 117-18. Plaintiffhas not shown the contrary.
Finally, while the record contains defendants' other detailed explanations as to how plaintiffs relief would constitute a fundamental alteration, two more are worthy of emphasis. As a matter of math, defendants' have proven plaintiffs reliefwould be more expensive. Kipper Af£ Ex. A Plaintiffs critique of defendants' analysis as inadequate - contending that defendants should have calculated the exact cost of each individual's move, including the cost of the individual's required supports is both ironic and specious. Plaintiff seeks to require defendants to assume plaintiff s burden of proof in identifying their own alleged constituents, i.e., the individuals that plaintiff claims are allegedly qualified and want to move, and proving the
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elements of the claim for these constituents. As plaintiff has failed to meet this burden of proof, plaintiff's complaint should be dismissed outright. In any event, defendants have gone through extensive discovery and preparation of a comprehensive summary judgment motion based on the evidence, including that which plaintiff failed to produce in response to defendants' motion to compel disclosure of the names of all residents whom DAI alleges are qualified to live in supported housing. Defendants should not be penalized for plaintiff's failure to carry its burden ofproof on this critical component of its case. Rather, defendants' extensive work in ful1y establishing the fundamental alteration defense in light ofplaintiff's failure of proof should be recognized, and plaintiff'S complaint dismissed.
POINT VI GOVERNOR SPITZER SHOULD BE DISMISSED AS A PARTY TO THIS LITIGATION Governor Spitzer should be dismissed as a party to this litigation because the other named defendants in this case could afford DAI full relief, ifDAI were to prevail. See Comm. for Pub. Ed. & Religious Liberty v. Rockefeller, 322 F. Supp. 678, 686 (S.D.N.Y. 1971). In essence, DAI seeks an order compel1ing funding for the creation of thousands of scattered-site supported housing beds targeted solely for current residents of adult homes, additional funding for ACT and the various and sundry other supports the residents would require to function in supported housing, and an assessment of current adult home residents to determine who is qualified for this housing. Although defendants emphatical1y reject that this or any reliefis required here, the other named defendants have authority to comply with court orders compelling this relief. The presence of Governor Spitzer confers no further advantage on DAI, regardless of whether the Governor's Office had some involvement in adult home issues. To conserve the limited resources of his important office, Governor Spitzer should be dropped as a party.
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POINT VII

DOH AND COMMISSIONER DAINES SHOULD BE DISMISSED

DAl has withdrawn its claims based on defendants' failure to take adequate measures to

redress poor conditions in impacted adult homes. Since plaintiff no longer challenges DOH's

inspection and enforcement, and DOH is not necessary for complete relief, DOH and

Commissioner Daines should be dismissed.

CONCLUSION

FOR THE FOREGOING REASONS, SUMMARY JUDGMENT SHOULD BE GRAt~TED FOR THE DEFENDANTS AND THE COMPLAINT SHOULD BE DISMISSED.

Dated: New York, New York January 31,2008

Respectfully submitted,

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants By:
8t4~ j(.

BARBARA K. HATHAWAY AMY HELD SCOTT J. SPIEGELMAN AMY L. ABRAMOWITZ Assistant Attorneys General of Counsel

Assistant Attorney General 120 Broadway New York, New York 10271 (212) 416-8560

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 Case 1:03-cv-03209-NGG -MDG Document 445 Filed 02/04/11 Page 1 of 8

January 28, 2010
Nicholas G. Garaufis United States District Judge Eastern District of New York 225 'Cadman Plaza East Brooklyn, NY 11201

Martha B. Knisley
503 Oberlin Road Suite 201
Raleigh, Ne 27605

RECEIVED

FEB 0 4 2011
in the Chambers of Judge
NICHOuC\.S G. GARAUFIS
Re: DAI, Inc. v. Paterson 03-CV-3209 (NGG)

Judge Garaufis:

Attached is the DAI, Inc. v. Paterson Court Monitor's Six Month Report covering the reporting period of July 1, 2010 through December 31, 2010 pursuant the Order appointing the Court Monitor on AprilS, 2010 and consistent with the Court Monitor's assuming her duties following the 2nd Circuit's denial of a stay in this case during the Defendant's appeal to the 2nd Circuit Court of Appeals. The Order stipUlates the Court Monitor report to the Court and to the parties regularly, and in no event less than every six months, concerning the status of Defendants' compliance with the Remedial Order, including progress, any barriers to compliance and potential areas of non compliance.

The Order further stipulates the Monitor shall circulate a draft report to the parties at least two weeks before filing a report to the court. The Monitor circulated a draft, received comments and amended the report to reflect comments by the parties. The Monitor circulated a second draft. Attached is the amended draft as final report.

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Martha B.

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isley

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Court Monitor

DAI, Inc. v. Paterson

Encl: DAI Court Monitor July-December 2010 Report to the Court

Copies to; Cliff Zucker Executive Director Disability Advocates, Inc. 5 Clinton Sq. Albany, NY 12207

Barbara K. Hathaway Assistant Attorney General State of New York Office of the Attorney General 120 Broadway New York, NY 10271-0332

Case 1:03-cv-03209-NGG -MDG Document 445 Filed 02/04/11 Page 2 of 8
Six Month Report to the Court In the Matter of
DAI. Inc. v. Paterson 03-CV-3209 (NGG) (MDG)
January 21, 2011
Report Summary
The DAI Court Monitor was apPointed by Judge Nicholas G. Garaufis, United States District Judge in the United States District Court, Eastern District of New York on April 5, 2010. However implementation was suspended after the state's appeal of the District Court's Remedial Order and Judgment to the 2nd Circuit Court of Appeals. The Second Circuit Court of Appeals denied the Defendants' motion for a stay of the District Court Order pending a decision on the appeal on June 23, 2010. Therefore this report covers the six month period beginning July 1, 2010.
This summary covers the status of Defendants' compliance with the Remedial Order, including progress, any barriers to compliance and potential areas of noncompliance as required in Order Appointing the Monitor.
The Court Monitor established regularly scheduled Parties-Court Monitor meetings beginning in July 2010. The purpose of these day long meetings has been to discuss Defendant's proposed actions to meet requirements and settle potential differences among the Court Monitor and Parties regarding those proposed actions. Six day-long meetings have been held to date. These day-long meetings have been augmented by conference calls and other meetings and calls to answer questions, clarify actions and Remedial Order implementation steps. These calls have also been used to clarify the Court Monitor's budget, arrange Adult Home visits and for the Court Monitor to get oriented to New York's services and supported housing systems. The Court Monitor met with a number of relevant constituents including CIAO, The New York Long Term Care Ombudsman, and several providers before the RFP was issued, and visited four homes. The Court Monitor has also assembled a team to assist her in her duties.
During this first reporting period, the state issued the required Supported Housing RFP that meets the requirements set forth in the Remedial Order. In addition to progress being made by the state in awarding this RFP, Defendants began establishing a framework for assuring DAI Constituents will have "access" to critical services. However Defendants are still in the process of articulating these arrangements and the Court Monitor is assessing these arrangements for their consistency with the Remedial Orders. The preliminary discussion regarding those arrangements is described below.
The Court Monitor and Parties have also discussed at length several other issues that have direct bearing on the Defendants ability to meet the Remedial Order. These include but are not limited to: the availability of affordable housing in NYC, the potential of DAI Constituents being "discouraged" by Adult
1

Case 1:03-cv-03209-NGG -MDG Document 445 Filed 02/04/11 Page 3 of 8
Home operators and others from exploring alternatives to Adult Homes, and protocols for establishing eligibility.
Because the Defendants have just announced the awardees of the Supported Housing contracts but have not yet signed contracts with these awardees, this report only describes the Defendants compliance with planning and making arrangements for activities to commence shortly. The Court Monitor is also developing and will distribute shortly for comments a Five Month (February-June) Monitoring Plan to take effect when the Defendants select support housing providers. A more detailed discussion of the aforementioned items is listed below:
1. Availability of Supported Housing Units:
The Remedial Order requires the Defendants to "develop a sufficient number of supported housing beds to ensure compliance" with the Remedial Order.
The Defendants raised the question of the availability of "scattered site" rental units and the potential challenge this presents to implementation in New York City. This occurred during the RFP discussions among the parties and the Court Monitor when the Court Monitor asked what potential challenges the Defendants would face implementing the Court's orders. These discussions also included a specific discussion on what constitutes 'scattered site'.
Given the Defendants concerns, the Court Monitor requested the Defendants present their views. Attached is a report provided the Court Monitor (Attachment A) that summarizes the Defendants concerns regarding availability of supported housing units. The Court Monitor has completed a report that was presented to the Parties and will be forwarded to the Court following Parties review in the next 10 days that examines the New York City housing market and information presented by the Defendants.
The parties discussed the definition of scattered site housing including using the concept of specific percentages. The parties agreed not to set a specific percentage related to variation in building sizes, consumer choice and deSirably of buildings and neighborhoods For example, 25% of units in a four unit building is one unit while 25% in a 100 unit building is 25 units. It is also important units not be designated for 'disabled' persons, which ensures people with disabilities get a choice of units without being relegated to the 'disabled' units.
This concept is becoming more clearly defined as it becomes policy in other states where it is deemed an effective option for people with limited financial means and disabilities to gain access to affordable, attractive and safe buildings. Some states such as North Carolina, Pennsylvania, New Mexico and Louisiana have already established policy for a small percentage of units (5-10%) to be set aside in mixed use low-income tax credit financed multifamily complexes. Congress recently enacted a reform of the HUD 811 program that promotes the development of supported housing in "mixed use" housing developments which is referred to by the 811 bill authors as achieving the same outcome as 'scattered site". The bill references that no more than 25% of units in a mixed use complex be set aside for people
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with disabilities. The authors of this legislation used this percentage because "mixed used" housing is often developed in buildings and developments that have fewer than 100 units.
2. The Issuance of an RFP to Procure 4,500 units of Supported Housing
The Remedial Order requires the Defendants contract with a sufficient number of supported housing providers "to develop and provide supported housing at a rate of 1,500 units per year until such time as there are sufficient supported housing beds for all of DAl's Constituents who desire such housing".
During this first reporting period, the state issued the required Supported Housing RFP that meets the requirements set forth in the Remedial Order. There were no insurmountable disputes and the RFP was issued in a timely manner. The Defendants took special measures to complete this process in a compressed timeframe. Since the court has had the opportunity to review this RFP, this report will not repeat the Defendants intentions to implement their program in accordance with these requirements and statements except to draw attention to Sections 4.3 Initial Awards and Allocations, 5.2 Objectives and Responsibilities, 5.3 Reporting Requirements, Section 5.4 Operating Funding, and Section 5.5 Proposal Narrative. The Court Monitor views these sections as representing the state's commitment to this supported housing program thus any proposed material change to the requirements and statements in these sections would come to the Parties and possibly the court's attention before any changes to these requirements are made.
The Court Monitor has also reviewed potential applicants' questions of clarification regarding the RFP and the OMH responses to those questions. The Court Monitor also views these answers consistent with the RFP reviewed by the Court Monitor and the Plaintiffs.
Given that 2010-11 is a startup year for supported housing contracts to be awarded, the Defendants agreed to tentatively award all 4,500 supported housing units to the eight supported housing providers in this RFP. By awarding all 4,500 units pending acceptable provider performance in year one and two of their contract, the state and supported housing providers are in a better position to develop 4,500 units within three years. The Monitor will monitor the Defendants progress in meeting these targets as well as the Defendants oversight of these contracts.
The Defendants plan to contract with seven (7) providers in eight different groupings across four boroughs. Between two and six Adult Homes are included in each of these groupings. This enables OMH and supported housing providers to concentrate their In Reach efforts in one geographic area. DAI Constituents will be given the opportunity to indicate their preference to live in a neighborhood outside the supported housing provider's grouping area. The RFPs were scored based on proposal rankings by grouping.
The Defendants have submitted a preliminary training plan for providers which the Court Monitors office is reviewing. The Court Monitor (and/or Court Monitor's staff) will attend all the trainings and will monitor guidance given to the providers. Of specific interest early in this process is the development
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and implementation of the processes to be used to assure supported housing providers are implementing a fair and sufficient process to determine whether DAl's Constituents qualify for supported housing, and adequate plans for In Reach and for engagement of DAl's Constituents who may be interested in supported housing already or may become interested once they learn more about it. To date there is not sufficient information available for the Court Monitor to assess adequacy of these processes.
The Defendants are also required to assure "when case managers, clinicians, Adult Home staff and others discuss housing options with DAl's Constituents they accurately inform them about supported housing, its benefits, the array of services and supports available to those in supported housing, and the Supplemental Security Income ('551"), rental subsidy, and other income they will receive while they are in supported housing". The Court Monitor will monitor how Defendants assure the entities and persons listed above will be provided the information described therein.
3. Notification to Home Operators of Their Obligations to Comply with Remedial Order
The Remedial Order requires Defendants to carefully monitor whether DAl's Constituents are being discouraged by Adult Home operators or others from exploring alternatives to Adult Homes and to take corrective action if it is determined Adult Home operators are discouraging DAI's Constituents. Defendants are to report such incidents to the Court, the Monitor and the parties.
On September 9, 2010, the State of New York Department of Health (DOH) issued a letter to Adult Home Administrators outlining the Remedial Orders in this case and the relevant state regulation that references residents cannot be impeded from seeing supported housing providers. The letter indicated the DOH is committed to complying with the Court's orders. Copies of the Remedial Order and Judgment (April 5, 2010) appointing the Court Monitor were referenced as being available on the Department's website (see Attachment S).
The DOH has repeatedly indicated the DOH's intention to comply with this requirement. The Court Monitor will begin monitoring the Defendants plans for determining if DAl's Constituents are being discouraged by Adult Home operators and others and specifically how this will be reported and corrected if residents are discouraged. This will be a monitoring priority for the Court Monitor in the coming six months. The Court Monitor will specifically request how DOH intends to interpret 'discouraged', how the Defendants will monitor this, what corrective actions they will take if necessary, how they will report the violation of the Remedial Order and their corrective action.
4. Defendants Plans for Services and Service Arrangements
The Remedial Order requires the Defendants to "ensure DAl's Constituents who move to supported housing have access to the array and intensity of services and supports they need to successfully transition to and live in supported housing" and specifically mentions Assertive Community Treatment (ACT) and case management services. The Remedial Order references the Defendants contracting
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timely for additional services as needed to enable DAl's Constituents to successfully transition to and live in supported housing. The Remedial Order requires the Defendants to evaluate the need, if any, for expansion of such services on a quarterly basis. The Remedial Order also requires supported housing providers to identify the services each eligible individual needs to successfully transition to and live in supported housing and arrange for the individual to timely receive those services.
The Defendants have identified potential challenges to providing services as required in the Order given that the behavioral health and health care systems are extraordinarily complex. DAl's constituents' eligibility for the various benefits is based on their age, work history as it related to what benefits they are eligible to receive, income and level and type of disability. Several health plans have authorization requirements and some services are covered under one plan but not another plan. Defendants have expressed their commitment to addressing these challenges. Ultimately Defendants are required to assure access to services regardless of these constraints. However since health benefits are typically appropriated as benefits managed in these various plans, it is important to work within benefit guidelines as much as possible.
The supported housing RFP references the supported housing contractors identifying "the services each eligible individual needs to successfully transition and live in Supported Housing and, when necessary, arrange for the individual to timely receive these services by making referrals to a care coordination organization". likewise the Defendants referenced the potential need for a care coordination organization in the first and subsequent meetings among the Parties and Court Monitor beginning in July 2010. At the request of the Court Monitor, the Defendants began discussing their plan for assuring services are available and plans for a Care Coordination Organization (CCO) at the October 22, 2010 Parties meeting. Discussions regarding services availability and the role of a potential CCO organization are ongoing. Including a CCO into the services "pathway" is a decision that potentially significantly impacts the Defendants ability to meet Remedial Orders. The significance of these discussions and decisions is similar to the Supported Housing provider RFP development discussions where the Court Monitor sought concurrence among the Parties and Court Monitor before the supported housing RFP was issued.
There are many issues to consider such as the potential overlap of responsibilities between the CCO and supported housing providers, the potential for multiple 'prior approvals' and disagreements among multiple entities, confusion regarding who manages plans of care, and authority over decisions among other questions. All of these issues could lead DAI's Constituents to be 'discouraged' about leaving their Adult Home even if they wanted to move and it could lead to systemic breakdowns that slow down implementation of the Remedial Order. On the other hand given health care reform and shifting health care policies, it is important for the Defendants to assure systemic interventions cut through various services requirements so supported housing providers, DAI's Constituents and Defendants are not left to fight each problem in an isolated and potentially ineffectual fashion.
It is the Court Monitors goal to work with the Parties over the next month to reach agreement on the roles and responsibilities of a CCO, the DAI's Constituents rights and choices, the supported housing
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providers roles and responsibilities and DOH and OMH responsibilities. There have been discussions regarding other services during this reporting period. It will also be important to assure any service capacity issues are identified and dealt with prior to implementation to assure needed services are available to DAl's Constituents.
5. Court Monitor's Proposed Plans for February-June 2011
As highlighted throughout this report the Court Monitor will begin a formal monitoring plan in February. The timing of this plan coincides with the Defendants awarding the supported housing RFP on January 10, 2011, signing contracts with providers as close to February 1, 2011 as possible and supported housing providers beginning their In Reach and other activities as soon as possible thereafter. The Court Monitor will provide the Parties a Monitoring Plan in early February for discussion. Based on feedback, this Plan will be provided to the Court. The Plan will cover monitoring activities to occur between February 1 and June 30, 2011 to coincide with implementation of supported housing contracts.
The Monitoring Plan will include activities to determine Defendants compliance with their obligation to:
a. monitor Adult Home Operators or others to assure DAl's Constituents are not being 'discouraged' by Adult Home operators and others. This will include monitoring of the Defendants plans and implementation for taking corrective action where they find discouragement and reporting incidents to the Court, Monitor and the Parties. The Court Monitor will work with the parties to clearly define 'discouragement' prior to the Court Monitor requesting the Defendants monitoring plan regarding this issue;
b. develop a sufficient number of supported housing beds to ensure compliance with Remedial Order;
c. contract with supported housing providers to develop and provide supported housing, to determine if DAr's Constituents qualify for supported housing, secure necessary support services for residents and conduct in-reach, assessments of needs and service planning with DAl's Constituents;
d. provide training to providers and ensure in-reach efforts are extended to persons at State Psychiatric Centers at risk of admission to Adult Homes;
e. assure "case managers, clinicians, Adult Home staff, and others accurately and fully inform DAl's Constituents about supported housing, its benefits, the array of services and supports available to those in supported housing and the Supplemental Security Income ("551"), rental subsidy and other income they will receive while in supported housing" when discussing supported housing with them; and
f. ensure "DAI's Constituents who move to supported housing have access to the array and intensity of services" (including ACT and case management) "and supports they need to successfully transition to and live in supported housing".
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The Defendants are responsible to evaluate the need, if any, for expansion of services on a quarterly basis. This review will come near the end of this monitoring period. However the Court Monitor will request the Defendants to forward their plan to conduct such an evaluation. The Court Monitor's staff have begun discussions with Defendants regarding their supported housing tracking system and will continue these discussions and add the Defendants obligations to track and evaluate other requirements outlined above to these discussions.
Respectfully Submitted by
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L \..[: \... ;'.' ",) / (/v4""'.~\
"Martha B. Knisley
DAI Court Monitor/January 21, 2011
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X
DISABILITY ADVOCATES, INC.,

-against-

Plaintiff,

MEMORANDUM & ORDER 03-CV-3209 (NGG) (MDG)

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants. -------------------------------------------------------------------X NICHOLAS G. GARAUFIS, United States District Judge.
The “integration mandate” of Title II of the American with Disabilities Act (“ADA”) and
Section 504 of the Rehabilitation Act (“RA”), as expressed in federal regulations and Olmstead
v. L.C., 527 U.S. 581 (1999), requires that when a state provides services to individuals with
disabilities, it must do so “in the most integrated setting appropriate to their needs.” The
Supreme Court explicitly held in Olmstead that “[u]njustified isolation . . . is properly regarded
as discrimination based on disability,” observing that “institutional placement of persons who
can handle and benefit from community settings perpetuates unwarranted assumptions that
persons so isolated are incapable of or unworthy of participating in community life.” 527 U.S. at
600.
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Plaintiff Disability Rights Advocates, Inc. (“Plaintiff” or “DAI”) is a protection and advocacy organization authorized by statute to bring suits on behalf of individuals with disabilities. It brings this suit on behalf of adults with mental illness who live in twenty-one “adult homes.” Adult homes are residential adult care facilities licensed by the State of New York (the “State”) to provide long-term care and supervision to people with disabilities and/or mental illness. DAI alleges that these particular adult homes – all of which are located in New York City and have more than 120 residents, more than 25% of whom have mental disabilities – are segregated settings akin to psychiatric institutions. According to DAI, many of its constituents are qualified to live in “supported housing,” an alternative form of housing in which individuals with mental illness live in their own apartments scattered throughout the community and receive supportive services. DAI thus alleges a violation of the integration mandate, claiming that its constituents are not receiving services in the “most integrated setting appropriate for their needs.”
DAI has named as defendants the New York State Department of Health (“DOH”) and the New York State Office of Mental Health (“OMH”), as well as Governor David A. Paterson and the Commissioners of DOH and OMH (collectively, “Defendants”), each sued in their official capacities.1 DAI seeks declaratory and injunctive relief requiring Defendants “to take such steps as are necessary to enable Plaintiff’s constituents to receive services in the most integrated setting appropriate to their needs” (Compl. 34 (Docket Entry #1)), and proposes an order requiring Defendants to offer supported housing to those of DAI’s constituents who are qualified to move. (Pl. Mem. Opp. Summ. J. (“Pl. Opp.”) 27 (Docket Entry #202).)
1 The court has substituted the names of Defendants sued in their official capacities pursuant to Rule 25 of the Federal Rules of Civil Procedure.
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Defendants have brought a Motion for Summary Judgment. (Def. Mot. Summ. J. (Docket Entry #145); Def. Mem. Supp. Summ. J. (“Def. Mem.”) (Docket #172).) First, Defendants contend that DAI lacks standing to bring these claims and to seek system-wide injunctive relief. Second, they argue that Title II of the ADA does not apply to DAI’s claims, because the adult homes are privately operated and the State merely licenses and inspects them. Third, they claim that adult home residents are already in the “most integrated setting,” because adult homes and supported housing are “equally integrated” with the community. Fourth, they argue that DAI has not established that adult home residents are qualified to move to alternative housing. Fifth, they contend that the Governor is not a proper defendant. (See Def. Mem. 35, 44, 65, 82.)
In addition to these arguments on the merits of DAI’s case, Defendants also seek summary judgment on their “fundamental alteration” affirmative defense. This defense, described in the regulations and discussed in Olmstead, provides that even if the individuals whose placement is at issue are not in the most integrated settings appropriate to their needs, the State need not take a particular action that would constitute a “fundamental alteration” of its programs and services, taking into account the State’s available resources and its obligations to provide services to others with disabilities. Defendants contend that even if DAI could establish a violation of the integration mandate, Defendants should not be required to move adult home residents to alternative settings because doing so would impose a fundamental alteration. (See id. at 70-71.)
DAI has also brought a Motion for Partial Summary Judgment solely on the fundamental alteration defense. (Pl. Mot. Partial Summ. J. (Docket Entry #176).) It contends that Defendants have failed to develop an effective plan to comply with the integration mandate of Title II and
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Olmstead – an “Olmstead plan” – with respect to adult home residents, and that this failure precludes Defendants from asserting a fundamental alteration defense. (Pl. Mem. Supp. Partial Summ. J. (“Pl. Mem.”) (Docket Entry #176).)
For the reasons below, the parties’ Motions are DENIED. The court concludes that DAI has standing, that Title II applies to DAI’s claims, and that the Governor is a proper party. Regarding whether DAI’s constituents are in the “most integrated setting appropriate to their needs,” including whether they are qualified to move to alternative settings, Defendants have not met their burden for summary judgment. On the fundamental alteration defense, summary judgment is denied to both Plaintiff and Defendants; the issues for trial are set forth below. I. PROCEDURAL HISTORY
Plaintiff filed this case on July 1, 2003. (Docket Entry #1.) Discovery concluded on November 14, 2006. (Status Conf. before Magistrate Judge Marilyn D. Go, Nov. 14, 2006.) The parties filed their Motions for Summary Judgment on August 10, 2007, with opposition and reply memoranda to follow. (Scheduling Order dated Aug. 7, 2007 (Docket Entry #179).) The parties requested extensions of time, and the two Motions were fully briefed on January 31, 2008.2 (Docket Entries #221-223.)
In conjunction with the Motions for Summary Judgment, Defendants also submitted two evidentiary motions seeking to exclude portions of Plaintiff’s evidence. (Docket Entries #173, 219.) One was fully briefed on January 31, 2008; the other was fully briefed on February 29, 2008. (Docket Entries #218, 229.) The court ruled on these motions on December 22, 2008 and presumes familiarity with that Memorandum & Order. See Disability Advocates, Inc. v.
2 After granting the parties’ requests for additional time to file their opposition and reply memoranda, the court ordered the parties to withdraw and resubmit their initial motion papers. (Docket Entry #193.) This order did not affect the filing dates for the parties’ opposition and reply memoranda.
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Paterson (“December M&O”), No. 03-CV-3209 (NGG) (MDG), 2008 WL 5378365 (E.D.N.Y. Dec. 22, 2008).
Currently before the court are the parties’ Motions for Summary Judgment. The claims on which the parties seek summary judgment are fact-intensive and rely on a voluminous and comprehensive record containing more than 13,000 pages. The parties have provided hundreds of pages of briefing on the factual and legal issues and have submitted approximately 675 exhibits, including affidavits and declarations of fact and expert witnesses, government reports, and deposition testimony. The court wishes to compliment the parties on their extensive and thoughtful analysis of the complex legal and factual issues in this case. While the court is not required to look beyond the evidence cited in the parties’ Rule 56.1 Statements and responses, see Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 618 (S.D.N.Y. 2008) (discussing Local Civ. R. 56.1), it has considered additional evidence cited in the parties’ memoranda of law in the interest of thoroughness. II. STANDARD OF REVIEW
Summary judgment is appropriate when no genuine issue of material fact exists. See Fed. R. Civ. P. 56(c); D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911 (1998). The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994).
The substantive law governing the case will identify those facts that are material and “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986). The court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. “Therefore, summary judgment is improper if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.” Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002) (citation omitted).
In ruling on a motion for summary judgment, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments . . . .” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (citations omitted). As such, the non-movant “will have [his or her] allegations taken as true, and will receive the benefit of the doubt when [his or her] assertions conflict with those of the movant.” Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996) (internal quotation marks and citation omitted). “Stated more succinctly, “[t]he evidence of the non-movant is to be believed.” Lucente, 310 F.3d at 254 (citing Anderson, 477 U.S. at 255).
When parties have filed cross-motions for summary judgment, “the court ‘must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’” Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 96 (2d Cir. 2007) (citation omitted). When there is no issue of fact as to an affirmative defense, courts have granted partial summary judgment striking that defense. See, e.g., Northwestern Mut. Life Ins. Co. v. Fogel, 78 F. Supp. 2d 70 (E.D.N.Y. 1999).
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III. BACKGROUND The following background sets forth only some of the relevant evidence. More detail is
provided in the discussion and analysis of each claim. A. Adult Homes Adult homes are a type of adult care facility licensed by the State of New York and
authorized “to provide long-term residential care, room, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator.” N.Y. Comp. Codes R. & Regs. tit. 18, §§ 485.2(b), 487.2(a). All of the adult homes in New York State are populated entirely by people with disabilities and/or mental illness. (DOH, Adult Care Facility Census Rep. 2006 (Declaration of Anne S. Raish (“Raish Decl.”) Ex. 2 (Docket Entries #182-83)); DOH, Adult Care Facility Census Rep. 2004-2005 (Raish Decl. Ex. 31).) The adult homes are privately owned. (See, e.g., Affidavit of David V. Wollner (“Wollner Aff.”) ¶ 2 (Docket Entry #164); Affidavit of Leon Hofman (“Hofman Aff.”) ¶ 3 (Docket Entry #151).) Defendant agencies DOH and OMH license, certify, and monitor the adult homes as well as the mental health services provided; the adult homes are subject to a comprehensive statutory and regulatory scheme, discussed in Section IV.A below.
There are currently 380 licensed adult homes in New York State, 44 of which are in New York City. (Def. 56.1 Statement ¶¶ 12, 13 (Docket Entry #171).) While the State does not require anyone to live in an adult home, a State statute provides that State hospitals and other psychiatric facilities licensed by the State will use adult homes for discharge. See N.Y. Mental Hyg. L. § 29.15(i)(2)(II). According to Plaintiff’s evidence, many individuals currently living in adult homes have come to live there following their discharge from State psychiatric centers and hospitals and other institutional settings, such as nursing homes. (See, e.g., Affidavit of Clarence
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Sundram (“Sundram Aff.”) ¶¶ 8-11 (Docket Entry #211); B.R. Decl. ¶¶ 7-8; N.B. Decl. ¶¶ 9; S.B. Dep. 136-38; Declaration of Dennis Jones (“D. Jones Decl.”) Ex. A at 5-7 (Docket Entry #207); Ocean House Resident Matrix (Declaration of Francine N. Murray (“Murray Decl.”) Ex. 124 (Docket Entry #214)) (indicating that 65 out of 107 residents who were at Ocean House at the time of its closure had been admitted from State psychiatric hospitals, including one as recently as 2005).)3 In recent years, however, a much smaller percentage of patients discharged from State hospitals have gone to adult homes; since 2003, less than 5% of such patients have been discharged to adult homes. (Def. 56.1 Statement ¶ 11.) In addition to State hospitals and psychiatric centers, adult home residents have also come to live in the adult homes from other venues, including private hospitals, the New York City shelter system, other adult homes in the State, and their families’ homes. (Id. ¶ 10.)
In 2002, there were 12,586 recipients of mental health services residing in adult homes statewide. (OMH, 2004-2008 Statewide Comprehensive Plan for Mental Health Servs. (“OMH 2004-2008 Plan”) 69 (Raish Decl. Ex. 56).) 10, 971 of these were in “impacted” adult homes (id.); “impacted” refers to adult homes in which at least 25% or 25 residents, whichever is fewer, have mental disabilities. The number of individuals in impacted adult homes is more than twice the number of adults with mental illness in State-operated hospital inpatient programs.4
3 To preserve confidentiality, the court refers to current and former residents of adult homes by their initials only. Pursuant to a protective order issued by Magistrate Judge Marilyn D. Go on May 19, 2004 (Docket Entry #46), the declarations of adult home residents B.R., N.B., O.J., H.S., and R.A., were not filed electronically, but were submitted to chambers on December 3, 2007.
Excerpts from the depositions of former and current adult home residents are included as exhibits to the Declaration of Francine N. Murray and the Declaration of Scott J. Spiegelman (Docket Entry #161) and will be cited throughout simply as “__ Dep.” 4 The state’s non-forensic psychiatric centers have a total inpatient census of less than 4,200. (Def. 56.1 Statement ¶ 57.)
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In New York City, there are are approximately 4,000 adults with mental illness currently
living in adult homes. (Pl. 56.1 Statement ¶ 70 (Docket Entry #177).) Of the forty-four adult homes in New York City, thirty-eight are impacted.5 (Def. 56.1 Statement ¶ 13.) Of these
thirty-eight homes, twenty-eight are certified for more than 120 beds. (Id. ¶ 14.) The relief DAI
seeks is directed exclusively at twenty-one impacted adult homes in New York City with more than 120 beds.6 (Compl. ¶ 35.) At the end of 2006, in fifteen of those homes, 95% or more of
the residents had mental illness, and four of the homes were populated entirely by individuals
with mental illness. (Pl. 56.1 Statement ¶¶ 5, 6.)
B. The Development of Adult Homes
According to several former State officials, the placement of large numbers of individuals
with mental illness in adult homes developed in response to the State’s deinstitutionalization
movement of the 1970s and 1980s, when the State reduced the number of mentally ill individuals in State psychiatric hospitals.7 Linda Rosenberg attested that when New York State
deinstitutionalized, the State made a “policy decision” to serve large numbers of former patients
in adult homes. (Affidavit of Linda Rosenberg (“Rosenberg Aff.”) ¶ 5 (Docket Entry #206).)
Ms. Rosenberg worked in positions of responsibility in New York’s mental health system for
5 The parties dispute whether certain of the homes at issue were impacted in 2002. Specifically, Defendants have provided an affidavit from DOH official Mary Hart stating that that Harbor View Home, Palm Beach, Long Island Hebrew Living Center, and Thomas Jefferson Home were not impacted in 2002. (Affidavit of Mary E. Hart (“Hart Aff.”) ¶ 10 (Docket Entry #149).) DAI has provided statistics from DOH indicating that each of these homes in 2002 had more than 25% of the residents receiving mental health services, indicating that they were impacted. (DOH, Adult Care Facilities by Current Region & Facility Type Statistical Report – Recipients of Any Type of Mental Health Servs. 8-11 (Murray Decl. Ex. 127).) 6 The twenty-one homes are: Anna Erika, Bayview Manor, Belle Harbor Manor, Brooklyn Adult Care Center, ElmYork Home, Garden of Eden, Lakeside Manor, Long Island Hebrew, Mermaid Manor, New Central Manor, New Gloria’s Manor, New Haven Manor, Oceanview Manor Home for Adults, Park Inn, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor, Sanford Home, Seaview Manor, Surf Manor Home for Adults, and Surfside Manor. (Compl. ¶ 35.) While Defendants admitted in their Answer that twenty-one of the homes were impacted (Ans. ¶ 33 (Docket Entry #19)), they now contend that four of the homes are not impacted (Hart Aff. ¶ 10). 7 It is undisputed that the population of the New York State psychiatric centers fell from approximately 93,000 in the 1950s to 5,309 in 1998. (Def. 56.1 Statement ¶ 56.)
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thirty years and served as the Deputy Commissioner of OMH from 1997 to 2004. Similarly, Clarence Sundram served from 1978 to 1998 as the Chairman and Chief Executive Officer of the New York State Commission on the Quality of Care for the Mentally Disabled (now the Commission on Quality of Care and Advocacy for Persons with Disabilities) (“CQC”), an independent State agency. (Sundram Aff. ¶ 3.) He attested that the placement of large numbers of people with mental illness into adult homes was the result of a “conscious State policy” to discharge patients from psychiatric hospitals into these facilities “due to the absence of other housing alternatives at a time when psychiatric centers were under pressure to downsize.” (Id. ¶ 8.) According to Mr. Sundram, to meet the growing need for housing created by the large numbers of discharges from state psychiatric hospitals, the state licensed private providers to create adult homes using under-utilized facilities, such as hotels, motels, YMCAs, and other similar buildings. (Id. ¶ 9.) James Stone, the defendant Commissioner of OMH when this suit was filed, similarly noted in a memorandum that “[a]dult homes developed in a response to a need – lack of community based housing resources. . . . Deinstitutionalization happened and the community resources weren’t up to speed with state operated bed reductions.” (Mem. to Members of Mental Health Servs. Council from OMH Comm’r James Stone (Nov. 22, 2002) (Raish Decl. Ex. 38).)
Plaintiff points out that the State has long characterized adult homes as institutions. In government reports published in 1979, New York State and New York City officials referred to these adult homes as “de facto mental institutions” and “satellite mental institutions.” (Deputy Att’y Gen. Charles J. Hynes, Private Proprietary Homes for Adults 38 (Mar. 31, 1979) (Murray Decl. Ex. 69); New York City Council Subcomm. on Adult Homes, The Adult Home Industry: A
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Preliminary Report 14 (Murray Decl. Ex. 70).) On its website, OMH currently characterizes
adult homes as an “institutional setting[]” in which people with mental illness are “stuck”:
[T]he unmet need for decent, safe and affordable housing – often with supports – is very substantial for people with mental illness. As a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with a mental illness are poorly housed or institutionalized. Thus, many people with a mental illness are ‘stuck’ in . . . institutional settings (nursing homes, adult homes, state psychiatric centers).
(OMH, Guiding Principles for the Redesign of the OMH Housing and Community Support
Policies 1 (Murray Decl. Ex. 71).)
C. Facts and Characteristics about the Adult Homes at Issue
On the issue of whether adult home residents are in the most integrated setting
appropriate to their needs, the parties have submitted voluminous evidence about the characteristics of adult homes.8 Both parties have submitted evidence on the extent to which the
adult homes share characteristics of institutions, opportunities for adult home residents to interact
with people outside the adult homes, and programs and services offered in the homes. Some
evidence is set forth here as background and other evidence is discussed in the analysis of the parties’ claims below. The parties rely on expert testimony;9 depositions and declarations of twenty-three individuals who live (or have lived) in adult homes;10 and affidavits and depositions
8 Unless otherwise indicated, from this point forward, “adult homes” and “adult home residents” refer to the impacted adult homes in New York City at issue in the litigation and their residents. 9 The basis and methodologies for the opinions of Plaintiffs’ experts, Elizabeth Jones, Dennis Jones, Kenneth Duckworth, and Ivor Groves – as well as the experts’ qualifications – are described at length in the court’s December M&O. 10 Four of these individuals no longer resided in an adult home at the time of their depositions. (See A.M. Dep. 6-7 (supported housing); P.C. Dep. 15 (housing funded by the state); M.B. Dep. 10-12 (private residence); J.M. Dep. 7 (private residence).)
The parties dispute whether another resident, D.N., still lives in an adult home. Defendants point to D.N.’s testimony in 2005 at her deposition that she planned to move to Pennsylvania to live with her family. (D.N. Dep. 59-62.) Plaintiff’s counsel declared that he called the adult home in October 2007 and spoke with D.N. to confirm that she still lived in the adult home. (Declaration of John Gresham ¶ 4 (Oct. 17, 2007) (Docket Entry #213).)
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of numerous fact witnesses, including former and current New York state officials, mental health service providers, and staff in adult homes and supported housing programs.
While it is undisputed that the adult homes share certain characteristics of medical facilities and inpatient psychiatric facilities, the parties’ expert and fact witnesses ultimately disagree as to whether the homes are akin to “institutions.” Defendants characterize adult homes as facilities that “provide a place to live, meals, housekeeping and laundry services,” as well as “assistance with self-administration of medications, and some assistance with personal needs such as grooming and dressing.” (Affidavit of Mary E. Hart (“Hart Aff.”) ¶ 7 (Docket Entry #149).) DAI’s and Defendants’ experts observed that adult homes share characteristics of medical facilities and inpatient psychiatric facilities. (Decl. Alan G. Kaufman (“Kaufman Decl.”) Ex. Kaufman-A at 8 (Docket Entry #152); see Affidavit of Elizabeth Jones (“E. Jones. Aff.”) Ex. A at 8 (Docket Entry #208); D. Jones Decl. Ex. A at 9-10; Rosenberg Aff. ¶ 12; Sundram Aff. ¶ 7; Schwartz Dep. 297-300.11)
Plaintiff has provided evidence about the regimented nature of the adult homes. For example, individuals with mental illness in the adult homes reside in close quarters entirely with other persons with disabilities and with significant numbers of other persons with mental illness. (E. Jones Aff. Ex. A at 8; D. Jones Decl. Ex. A at 9; Sundram Aff. ¶ 7; Rosenberg Aff. ¶ 12.) Residents have testified that they receive treatment from on-site doctors and nurses. (S.B. Dep. 88-89, 45; P.B. Dep. 132; N.B. Decl. ¶ 28.) At some adult homes, residents line up to receive medications from adult home staff, and self-administration of medication is discouraged. (Schwartz Dep. 319-320; S.B. Dep. 124-125; D.N. Dep. 89; G.L. Dep. 202-204; P.B. Dep. 131; S.P. Dep. 64; Affidavit of Kenneth Duckworth (“Duckworth Aff.”) Ex. A at 9, 13 (Docket Entry
11 Excerpts from depositions are attached as exhibits to the Declarations of Francine N. Murray, Scott J. Spiegelman (Docket Entries #165-170), and Anne S. Raish. They are cited here as “__ Dep.”
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#209).) According to one adult home resident, aides instruct residents as to what to do at various times of the day, including when to eat, bathe, and take medications. (O.J. Decl. ¶¶ 17-20.) Another resident stated that at her adult home, all residents with diabetes must eat together a half-hour before everyone else takes their meal. (B.R. Decl. ¶ 12.) Residents testified that they are assigned roommates and lack privacy. (S.P. Dep. 134-136; O.J. Decl. ¶ 13; H.S. Decl. ¶ 11; G.H. Dep. 128; E. Jones Aff. Ex. A at 5.) Adult home residents have testified that they can only receive calls coming through the adult home switchboard and/or on extensions or pay phones in common areas (B.J. Dep. 125-126; S.P. Dep. 68-69) that lack privacy and are often chaotic (L.G. Dep. 116-118; J.M. Dep. 53-54; D.N. Dep. 238-244).
Plaintiff has provided evidence that adult homes have visiting hours (E. Jones Aff. Ex. A at 3; P.B. Dep. 109; G.L. Dep. 227; D.W. Dep. 132; S.P. Dep. 118), and visitors must identify themselves and sign in with the home (E. Jones Aff. Ex. A at 3, 8; D.W. Dep. 132; B.J. Dep. 115; L.G. Dep. 146). Visitors are received in noisy common areas (D.N. Dep. 238-41; D.W. Dep. 131-132; E. Jones Aff. Ex. A at 3), unless the resident’s roommate or management grants permission for visitors to enter their bedroom (E. Jones Aff. Ex. A at 3; L.G. Dep. 149-150). Some residents have testified that their adult homes do not permit visitors to join in meals or stay overnight. (B.J. Dep. 115, 121; D.W. Dep. 132.)
D. Discharge Planning and/or Information About Alternative Housing Options The parties dispute whether and to what extent residents of adult homes receive discharge planning or information about alternative housing options. Defendants assert that adult home residents receive information about alternative housing and assistance in filling out forms to apply for alternative housing. (See Bear Dep. 53-54 (testifying that staff would help an adult home resident obtain alternative housing “if a client identifies that they want to move”); Aff.
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Jonas Waizer ¶ 67 (Docket Entry #163) (attesting that staff helped one resident fill out application forms); Affidavit of Flora Bienstock (“Bienstock Aff.”) ¶ 6 (Docket Entry #146) (attesting that staff assisted “a number of adult home residents with the application and interview process” for alternative living arrangements); Burstein Dep. 127-129 (testifying that when she reviews case management records and sees a notation about a resident wanting to move, she finds out whether the social worker has completed an application for alternative housing); Lockhart Dep. 70-87, 35-38, 49, 26 (testifying that staff: (1) informs residents about alternative housing, including supported housing, (2) provides residents with HRA 2000 application forms for supported housing, and (3) has helped approximately five residents fill out HRA 2000 forms).)12
According to Plaintiff’s witnesses, and even Defendants’ expert, Dr. Jeffrey Geller, adult home residents are not adequately informed about what their options are regarding housing.13 (E. Jones Aff. Ex. A at 10; Geller Dep. 181 (testifying that residents are unable to make informed choices about their housing options because they are not adequately informed about the available alternatives).) Plaintiff’s experts have observed that adult homes are permanent placements, and that “comprehensive discharge planning is non-existent.” (E. Jones Aff. Ex. A at 3, 5; Duckworth Aff. Ex. A at 9; Duckworth Dep. 119-120.)
12 Lockhart also testified that staff assisted one adult home resident with moving into independent housing not licensed by OMH, and helped that person by looking at the apartment and providing a security deposit and furniture. (Lockhart Dep. 26-28.) 13 Moreover, Plaintiff has provided evidence that many residents of adult homes were not given a meaningful choice when they moved into an adult home. Dr. Duckworth observed that “adult home residents I met were frequently given no choice about where to live. At best, if they were given a choice, it was between two adult homes.” (Duckworth Aff. Ex. A at 15; see also E. Jones Aff. Ex. A at 9 (“Residents were admitted to the adult homes with little or no choice.”).) Plaintiff has also provided declarations and deposition testimony of current and former adult home residents indicating that they did not have a choice about whether to go to an adult home. (See H.S. Decl. ¶ 7 (“When they moved me out of Seaport, they didn’t give me a choice about whether to go to an adult home or not. I had to go to an adult home.”); B.R. Decl. ¶¶ 8-9; P.B. Dep. 30; M.B. Dep. 19; L.G. Dep. 9-10; G.H. Dep. 267-268; T.M. Dep. 28-29; J.M. Dep. 10; D.N. Dep. 13; S.P. Dep. 93; D.W. Dep. 192-193.)
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Adult home residents have testified that they have not received assistance in making or executing sound discharge or transfer plans. (R.A. Decl. ¶¶ 13-16; N.B. Decl. ¶¶ 11, 23-30; O.J. Decl. ¶¶ 22-24; B.R. Decl. ¶¶ 6, 19-22; H.S. Decl. ¶¶ 7, 12-19; P.B. Dep. 184-187; S.P. Dep. 105-107; S.B. Dep. 119-120.) Residents have testified that they are not provided with information about supported housing or other resources and benefits that might be available to them. (D.N. Dep. 136-137, 255; P.B. Dep. 175, 102-103; S.B. Dep. 90-92; L.G. Dep. 105-107; S.H. Dep. 102, 133-145; A.M. Dep. 134-136; S.P. Dep. 107, 110, 111; C.H. Dep. 119.) One of DAI’s experts, Dr. Kenneth Duckworth, observed that mental health program staff are illinformed about supported housing. (Duckworth Aff. Ex. A at 14; see also Mendel Dep. 63-65 (associate administrator of adult home testifying that he did not know whether there were different models of supportive housing, who generally operates supportive housing, or whether any residents have moved to supportive housing).) Residents have testified that they are discouraged by staff from expressing an interest in moving out. (See, e.g., G.L. Dep. 102-103, 105-107, 123-124.)
One administrator testified that she was “not sure” whether, when she worked directly with residents as a social worker, she had been aware of supported housing being available to adult home residents. (Levine Dep. 71-75.) She also testified, however, that the social workers helped residents apply for “less restrictive housing,” and that she assisted two residents with applications, both of which were accepted. (Id. at 173-77.) She testified that there were other residents besides who were interested in other housing, but that she did not work with them to pursue it because “[t]here might have been other things that at the time were more pressing” to those residents. (Id. at 177.)
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Plaintiff has provided testimony from adult home residents describing unsuccessful attempts to obtain assistance from social workers or treatment professionals in applying for housing. A former adult home resident testified that it took six months for his social worker from the day treatment program to complete his housing application. (A.M. Dep. 128-132.) Another former adult home resident testified that while his social worker helped him fill out a housing application, the application was never filed because the social worker did not complete the form before leaving his job. (M.B. Dep. 116-121.) One resident testified that she talked to her therapist about wanting to move out of the adult home, but the therapist never told her about supported housing, OMH housing, or applying for housing. (L.G. Dep. 105-106.)
E. Desire of Adult Home Residents to Move Out of the Adult Homes Plaintiff has provided evidence in the form of deposition testimony, a study commissioned by DOH, and expert testimony indicating that a large percentage of adult home residents want to move out of the adult homes.14 For example, many adult home residents have expressed a desire to move out of their adult home. (See R.A. Decl. ¶ 9 (“I want to move out of this place. I feel stuck here.”); N.B. Decl. ¶¶ 11-18; O.J. Decl. ¶ 7 (“I would like to move because I want to do my own cooking, cleaning, decorating, and shopping, and I want to handle my own money.”); B.R. Decl. ¶ 6 (“I would like to move out. I want to experience being out in life again.”); H.S. Decl. ¶¶ 10-11; S.B. Dep. 98, 111; L.G. Dep. 102; L.H. Dep. 121-122; G.H. Dep. 8-10; C.H. Dep. 127-129; I.K. Dep. 94-95; G.L. Dep. 101-102; D.N. Dep. 155; T.M. Dep. 98; S.P. Dep. 106-107, 137; D.W. Dep. 144, 187.)
14 Defendants have provided evidence that not all adult home residents want to move out. For example, B.J. testified that there was not any place she would rather live “right now” and that she liked living at Brooklyn Manor because she had not been hospitalized in the twenty years she had been living there. (B.J. Dep. 31-34; see also id. at 92-93 (testifying that adult homes are the “[b]est thing that could ever happen to mental patients.”).)
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Plaintiff has also provided evidence that some adult home residents have expressed feelings of isolation in the adult home. (See, e.g., R.A. Decl. ¶ 9 (“I feel stuck here.”); N.B. Decl.¶ 15 (“There isn’t any opportunity to interact with people who aren’t patients here.”); O.J. Decl. ¶ 16 (“[T]he area over here feels deserted.”); B.R. Decl. ¶ 18 (“I don’t know anyone in the neighborhood outside of Garden of Eden”); T.M. Dep. 110 (“It’s difficult to meet different people now . . . [because y]ou’re in program, you’re in home.”); S.P. Dep. 58 (stating that he feels “isolated” living in his adult home because “they don’t do anything [and e]verybody’s like indoors on top of one another.”)
Plaintiff also points to a study commissioned by DOH as evidence that adult home residents want to move. In December 2002, officials at DOH paid New York Presbyterian Hospital (“NYPH”) $1 million to conduct an assessment of residents in various adult homes in New York City, resulting in the New York State Adult Home Assessment Project (“Assessment Project”). (Pl. 56.1 Statement ¶¶ 16-18.) The Assessment Project assessed 2,611 residents in nineteen adult homes, including fifteen of the homes at issue in this case.15 (Pl. 56.1 Statement ¶ 19.) According to Assessment Project data documentation, 35% of the adult home residents with mental illness who were assessed stated that they wanted to move to their own apartment, and another 21.2% stated that they wanted to move in with their family.16 (Bruce Dep. 94-95; Adult Home Assessment Project Data Documentation, 2003-2005 (Raish Decl. Ex. 7).) Glenn Liebman, the DOH official who was principally charged with overseeing the Assessment Project,
15 The Assessment Project was directed by Dr. Martha Bruce, Ph.D., M.P.H. of the Psychiatry Department at Weill Cornell Medical College. (Bruce Dep. 22-23.) Dr. Bruce testified that she led a team of fifteen professionals, including a statistician, a cognitive psychologist, a geriatric psychologist, a psychiatrist, three doctors, and several nurse assessors. (Id.) Dr. Bruce testified that a resident’s participation in the assessment was voluntary, not mandatory (Bruce Dep. 91, 136-37), and 74.1% of the eligible residents participated in the assessment (Wollner Aff. ¶ 27; Bruce Dep. 73). Officials from OMH and DOH provided input into the design of the assessment instrument for the Assessment Project. (Bruce Dep. 27-28.) 16 As discussed below, the parties dispute the use of the Assessment Project data, including whether the Assessment Project was intended to assess the interest of adult home residents in living in alternative housing.
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testified that the percentage of residents wanting their own apartment was 44%. (Liebman Dep. 100.)
One of Plaintiff’s experts, Dr. Ivor Groves, analyzed the Assessment Project data, excluding the four homes not at issue in the litigation, and concluded that that a significant number of those assessed want to move out of an adult home. Dr. Groves determined that 2,080 of those assessed in the Assessment Project lived in fifteen of the adult homes at issue in this case. (Groves Aff. Ex. A at 2.) Analyzing the data for those 2,080 residents, Dr. Groves concluded that “1,536 expressed either (A) explicit interest in living elsewhere, including in an apartment, in supported living, or with family and relatives, or (B) did not express a preference for living in the Adult Home where they were residing.” (Groves Aff. Ex. A at 4.) Lisa Wickens, the Deputy Director of DOH’s Office of Health Systems Management, testified that when she explained the Assessment Project to adult home residents at “town hall” meetings, residents asked her, “When do I do the assessment, when can I leave?” (Wickens Dep. 74.)
In addition, Plaintiff’s experts have opined that the Assessment Project data “greatly underestimates those who would want to move if given a meaningful choice.” (Duckworth Aff. Ex. A at 14; see E. Jones Aff. Ex. A at 10; Groves Aff. Ex. A at 4-5.) Dr. Duckworth noted that when residents answered questions as part of the Assessment Project, they “were never told about what alternatives would be available or what supports could be offered to meeting their needs in the community.” (Duckworth Aff. Ex. A at 14; see also Bruce Dep. 97 (testifying that when participants were asked about their own apartment, there was no effort to educate them about the availability of supported housing as an option).)
In addition to analyses of the Assessment Project data, Plaintiff has provided other expert testimony that a significant number of adult home residents want to move. One of Plaintiff’s
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experts, Elizabeth Jones, found that roughly 90% of the 179 adult home residents whom she

interviewed expressed a desire to live somewhere else if there were other options available. (E.

Jones Aff. Ex. A at 3; E. Jones Dep. 130.) Plaintiff points out that even Defendants’ expert, Dr.

Geller, concluded that 67 out of 134 residents whose records he reviewed want to live in a place

other than the adult home. (Geller Dep. 209.)

F. Supported Housing and Other Types of OMH Housing for Persons with Mental Illness

The alternative housing that DAI seeks for its constituents is supported housing. This

section provides a brief background on supported housing and other types of OMH-funded

and/or OMH-licensed housing for individuals with mental illness, referred to collectively as

“Housing for Persons with Mental Illness.” OMH currently provides 29,050 units of Housing for

Persons with Mental Illness and has committed funds to develop an additional 9,800 supported

housing beds. (See, e.g., Affidavit of Robert Myers (“Myers Aff.”) ¶¶ 68-69 (Docket Entry

#156).)

1.

Supported Housing

OMH funds supported housing, which is a category of Housing for Persons with Mental

Illness in which residents live in apartments that are generally “scattered-site.” That is, the

apartments are scattered throughout the community in numerous apartment buildings. (Bear

Dep. 109, 150; Schwartz Dep. 198-199; Tsemberis Dep. 20.) Service provider Raymond

Schwartz has testified that residents in supported housing can do “what anyone else can or

cannot do in their apartment as an adult.” (Schwartz Dep. 202.) OMH official Christine Madan

attested that there is only a two percent vacancy rate for scattered-site supported housing, which

has “very little turnover” and “high demand.” (Affidavit of Christine S. Madan (“Madan Aff.”) ¶

14 (Docket Entry #154).)

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In addition to scattered-site housing, supported housing also includes single-site housing, such as single-room occupancy (“SRO”) or single-site apartments, in which there are a number of apartments within one building, all occupied by persons with mental illness. (Aff. Michael A. Newman (“Newman Aff.”) ¶¶ 34, 36 (Docket Entry #157); Madan Aff. ¶ 10.) Plaintiff has provided evidence that some providers of “single site” supported housing try not to have more than a certain percentage of apartments in one building occupied by people with mental illness. (Tsembris Dep. 20-23.)
Plaintiff has provided evidence that supported housing is permanent housing, and that the residents either lease the apartment themselves or are sub-tenants of the housing provider. (Tsemberis Dep. 46-47; see also NYS OMH, NYC Field Office, Request for Proposals, Supported Housing for Adult Home Referrals 8 (Jan. 2007) (“OMH January 2007 RFP”) (Murray Decl. Ex. 81) (indicating that a “key principle” of supported housing is that it is “considered extended stay/long term.”).) According to OMH, supported housing providers may not impose exclusionary admission criteria related to past or current substance abuse. (Id.)
The parties dispute what level of services supported housing is designed to provide, and what that means in practice. According to Defendants’ witnesses, supported housing is designed to provide only minimal support. OMH official Christine Madan attested that supported housing is “designed for the most independent individuals, who are expected to have good independent living skills and need only minimal staff assistance.” (Madan Aff. ¶ 10.) Literature from the Center for Urban Community Services (“CUCS”), an organization providing housing services, describes supported housing as “[e]xclusively for people with mental illness who are able to live independently with minimal support services.” (Affidavit of Jan Tacoronti (“Tacaronti Aff.”) Ex. Tacaronti-B (CUCS, Supportive Housing Options NYC) at 7 (Docket Entry #162).) Michael
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Newman, the Director of OMH’s Housing Services Unit, attested that the supported housing scattered-site apartment model is “designed for individuals who typically have a high level of independent living skills and need only minimal case management support.” (Newman Aff. ¶ 38.)
According to Plaintiff’s witnesses and OMH literature, on the other hand, supported housing is designed for people who need varying levels of support. (Rosenberg Aff. ¶ 13; Tsemberis Dep. 48; OMH January 2007 RFP 4-5 (“Many recipients will be . . . at various stages of recovery” and “[s]ervices provided by the sponsoring agency will vary, depending upon the needs of the recipient”).) OMH’s January 2007 RFP provides that “[r]ecipients of supported housing may be able to live in the community with a minimum of staff intervention from the sponsoring agency,” while “[o]thers may need the provision of additional supports,” such as an Assertive Community Treatment (ACT) team of Blended Case Management (BCM) services.17 (Id.) “It is expected that the need for services provided by the sponsoring agency will decrease over time as the recipient is more fully integrated into the community.” (Id. at 5.) An OMH description of residential programs in New York City and OMH’s Housing Development Manual for New York City describes the target population of scattered-site supported housing as “individuals who can live independently in generic housing with some community supports.” (Newman Aff. Exs. Newman-I, Newman-J.)
According to Plaintiff’s evidence, the services provided with supported housing are designed to be flexible, so that residents may receive help with cooking, shopping, budgeting, medication management and making appointments as needed, but can do all of these things themselves if they are able to. (Schwartz Dep. 191, 193-196, 288-290; Tsemberis Dep. 28-29,
17 An ACT team is a multidisciplinary team that consists of six to eight staff members from the fields of psychiatry, nursing, and social work, and professionals with other types of expertise such as substance abuse treatment and vocational rehabilitation. (OMH, Assertive Community Treatment 1-2 (Murray Decl. Ex. 72).)
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48; Lasicki Dep. 68, 70; Duckworth Aff. Ex. A at 10.) Service providers have testified that the flexibility of services for residents of supported housing means that the services can be increased or withdrawn as necessary and are usually more intensive when a person first moves in. (Bear Dep. 108-109; Schwartz Dep. 187-188; Lasicki Dep. 68; Tsemberis Dep. 76.)
Defendants point to evidence that, in practice, scattered-site supported housing residents receive as little as one or two visits per month from staff. (Bear Dep. 108, 115 (describing “graduate supported housing,” the “least restrictive of all the apartment programs”); Madan Aff. ¶ 10.) In contrast, Plaintiff points to evidence that residents in supported housing may receive case management services from a multi-disciplinary ACT team. (OMH, Assertive Community Treatment 1-2 (Murray Decl. Ex. 72); see also OMH Jan. 2007 Supported Housing RFP (Murray Decl. Ex. 81).) ACT services are “adjust[ed] over time to meet the recipient’s changing needs.” (OMH, Assertive Community Treatment.) A proposal to operate a supported housing program for adult home referrals states that program staff remain on-call and available to supported housing recipients 24 hours per day. (Proposal to Operate 20-Bed Supportive Housing Program for Adult Home Referrals 7 (Murray Decl. Ex. 137).)
2. Additional Types of OMH Housing for Persons with Mental Illness In addition to supported housing, OMH also funds and/or licenses other types of Housing for Persons with Mental Illness. (Def. 56.1 Statement ¶ 41.) Licensed housing programs include: (1) congregate treatment programs (referred to as group homes or supervised community residences), (2) apartment treatment programs, and (3) community residence singleroom occupancy (“CR-SRO”) programs. (Id. ¶ 42.) Group homes are single-site facilities that provide meals, on-site rehabilitative services, and 24-hour staff coverage for up to forty-eight people. (Id. ¶ 43.) Group homes generally range in size from eight to forty-eight beds. (Lasicki
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Dep. 60-61; Association for Community Living, Licensed Housing (Murray Decl. Ex. 126).) According to OMH, group homes average 14.6 people per home. (OMH, Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies (May 16, 2007) (Murray Decl. Ex. 71).)
Apartment treatment programs provide transitional housing in shared apartments that usually house two to four people, and can be scattered-site units or occupy an entire building. (Def. 56.1 Statement ¶ 44.) Plaintiff has provided evidence that according to Agency for Community Living New York State (“ACLNYS”) – a statewide membership organization of not-for-profit agencies that provide housing and rehabilitation services to more than 20,000 people with psychiatric disabilities – licensed apartment treatment programs offer “staff visits as necessary to provide rehabilitative services designed to improve functioning and develop greater independence.” (ACLNYS, Licensed Residential Program Descriptions (Murray Decl. Ex. 126).)
CR-SRO programs provide extended-stay housing in which residents have their own rooms designed as studio apartments or as suites with single bedrooms around shared living spaces. (Def. 56.1 Statement ¶ 45.) ACLNYS describes CR-SROs as “geared toward maintaining or improving functioning.” (ACLNYS, Licensed Residential Program Descriptions.) CR-SROs are usually located in one building and house up to one hundred individuals. (Def. 56.1 Statement ¶ 46), although Plaintiff has provided evidence that CR-SROs generally average thirty-five to sixty-five units (CUCS, Supportive Housing Options NYC (Murray Decl. Ex. 136)).
Defendants have provided evidence that some housing providers of group homes, apartment treatment programs, or CR-SRO programs set their own rules and policies and may
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have admission criteria, for example, a period of sobriety prior to admission. (Madan Aff. ¶¶ 12-

13 & Exs. A & B.) DAI has provided evidence that apartment treatment programs do not have

curfews or visiting hours. (Lasicki Dep. 70, 71.)

3.

Obtaining OMH Housing for Persons with Mental Illness

Regarding how individuals with mental illness obtain OMH Housing for Persons with

Mental Illness, Defendants have provided testimony from State officials that individuals seeking

such housing must submit a formal application – known as the “HRA 2000” – to the New York

City Human Resources Administration (“HRA”), which determines eligibility and the level of

services to be provided. (Madan Aff. ¶ 11.) In contrast, Plaintiff has provided testimony from

supported housing providers that the HRA 2000 application is not required and that individuals

often enter OMH housing programs without completing the HRA 2000 application. (Tsemberis

Dep. 32-36 (testifying that the HRA 2000 application is not required for his agency providing

supported housing and that agencies have contracts with hospitals and shelter programs to

receive residents directly from those programs); Schwartz Dep. 145-147.) OMH’s Supported

Housing Implementation Guidelines do not mention a requirement of an application. (OMH,

Supported Housing Implementation Guidelines (Raish Decl. Ex. 50).) In addition to the HRA

process, OMH has also created a Single Point of Access (“SPOA”) system for OMH housing

programs in New York City, in which all applications for OMH Housing for Persons with

Mental Illness are sent to a centralized source rather than to every housing provider. (Affidavit

of Keith Simons (“Simons Aff.”) ¶¶ 75-78 (Docket Entry #160); Myers Aff. ¶ 89.)

G. Whether Adult Home Residents with Mental Illness Are Qualified for Supported Housing

The parties dispute whether, and how many, adult home residents with mental illness are

qualified for supported housing. DAI’s four experts, Dr. Kenneth Duckworth, Elizabeth Jones,

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Dennis Jones, and Dr. Ivor Groves, concluded that almost all adult home residents with mental illness are qualified for supported housing. Specifically, Dr. Duckworth concluded, based on his review of residents’ records and in-person interviews, that “existing supported housing programs in New York could appropriately serve virtually all of the adult home residents with mental illness in the homes that are the subject of this litigation.” (Duckworth Aff. Ex. B at 2; Duckworth Aff. Ex. A at 5 (“There are no material clinical differences between adult home residents and supported housing clients.”).) Based on her interviews of 179 residents of twentythree impacted adult homes in New York City, Ms. Jones similarly opined that the vast majority of those residents were qualified for supported housing with appropriate supports. (E. Jones Aff. Ex. A at 1, 3; E. Jones Dep. 78, 88, 93-94.) Based on his analysis of the Assessment Project data, Dr. Groves concluded that of the 2,080 residents assessed who are or were in the adult homes at issue, “most, if not all, of the residents of Adult Homes could live in the community with appropriate levels of support.” (Groves Aff. Ex. A at 4.) DAI has also provided what appears to be an internal draft of a State presentation from November 2006 indicating that of the 1,688 residents examined in the Assessment Project for whom mental health diagnoses and complete cognitive scores were available, 650 (39%) were judged to have sufficient cognitive functioning for independent living. (Adult Home Assessments, PowerPoint Presentation – Draft 28 (Nov. 2006) (Murray Decl. Ex. 74).)
DAI has provided additional evidence indicating that a substantial number of adult home residents with mental illness are qualified to move out of the adult homes. Plaintiff points out that Defendants’ expert, Dr. Geller, testified that 66.5% out of a group of 188 adult home residents are not in the “most appropriate residential setting appropriate for their needs.” (Geller Dep. 135; see Declaration of Jeffrey L. Geller (“Geller Decl.”) Ex. A at 44 (Docket Entry #148)
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(indicating that 33.5% of the 188 adult home residents should remain in Adult Homes).) In a separate analysis of a group of 206 residents, Dr. Geller found that 134 residents were eligible for OMH’s community housing programs.18 (Geller Decl. Ex. B at 6-7.) Of those 134 residents, sixty-six could leave the adult home and go into supportive housing, including fifty-nine who could go to supported housing, with or without ACT, and seven who could go to supportive housing after transitional residence. (Geller Dep. 196-199; 210.) A report submitted to the Commissioner of DOH by the Adult Care Facilities Workgroup concluded that of the 12,000 residents with psychiatric disabilities in adult care facilities, 6,000 “could reside in a more integrated setting.”19 (Report of the Adult Care Facilities Workgroup (“Workgroup Report”) 30 (Oct. 2002) (Raish Decl. Ex. 57).) Plaintiff has provided testimony from state officials that there are residents of adult homes with mental illness who “could live in more integrated settings” (Wickens Dep. 46), in supported housing or apartments (Tacaronti Dep. 225-226; see also Affidavit of Joseph Reilly (“Reilly Aff.”) ¶ 25 (Docket Entry #158)).
In response, Defendants dispute the opinions of Plaintiff’s experts. They rely on evidence that the experts did not do clinical assessments of each individual with an evaluation by a multi-disciplinary treatment team. (See, e.g., Def. 56.1 Statement ¶¶ 67, 68, 70; id. ¶ 64 and Response (disputing whether Dr. Duckworth conducted clinical assessments).) They argue that because DAI’s experts did not conduct clinical assessments with a multi-disciplinary team, they did not follow the “well-accepted methodology” for determining whether a person is qualified to
18 Dr. Geller found that at the time of his analysis of the 206 residents, fifty-six were no longer living in adult homes and sixteen were not eligible for any OMH services. (Geller Dep. 196-97.) 19 The Adult Care Facilities Workgroup was convened by then-Governor Pataki in 2002 to evaluate the strengths and weaknesses of the State’s adult care facility model and to develop recommendations for new approaches, including “Recommendations for Improving Quality of Life and Services for Current Adult Home Residents, Recommendations for Future Restructuring of Housing and Services for Adult Home Residents, and Potential Fiscal Impact of the Recommendations.” (Workgroup Report ii-iii (Raish Decl. Ex. 57).) According to DOH official David Wollner, DOH and OMH participated in formulating these recommendations. (See Wollner Aff. ¶ 23.)
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live in a particular setting. The court has ruled that this challenge relates to the weight, not the admissibility, of the evidence. See Dec. M&O, 2008 WL 5378365. Defendants also point to evidence that some of DAI’s constituents are not qualified for supported housing based on notations from treatment providers in the records of six adult home residents indicating that those residents are not ready for discharge from the adult home. (Declaration of Barbara K. Hathaway (“Hathaway Decl.”) Exs. Hathaway-L, Hathaway-M, Hathaway-N, Hathaway-O, Hathaway-P, Hathaway-Q (Docket Entry #150).) IV. STANDING
The threshold issue on which Defendants seek summary judgment is standing. DAI is an authorized protection and advocacy (“P&A”) organization pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq. (Affidavit of Cliff Zucker (“Zucker Aff.”) ¶ 4 (Docket Entry #205); Ans. ¶ 8.) DAI’s mission is “to protect and advance the rights of adults and children who have disabilities so that they can freely exercise their own life choices, enforce their rights, and fully participate in their community life.” (Disability Advocates, Inc. (Murray Decl. Ex. 52).) Its constituents consist of “individuals with mental illness,” as defined under PAIMI.20 42 U.S.C. § 10802(4). PAIMI authorizes P&A organizations to advance the rights of individuals with disabilities. See 42 U.S.C. § 10801 et seq. By its terms, Section 10805(a)(1)(B) allows agencies with statutory authority to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness . . . .”
It is well-established in this district that P&A organizations have standing to sue on behalf of their constituents, provided they meet the constitutional requirements for associational
20 Plaintiff brings this action on behalf of adults who have mental illness that substantially limits one or more major life activities, and who are in or are at risk of entry into impacted adult homes in New York City that have more than 120 beds. (Compl. ¶ 9.)
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standing. See, e.g., Joseph S. v. Hogan, 561 F. Supp. 2d 280, 307 (E.D.N.Y. 2008) (holding that DAI has standing to bring lawsuits to protect the rights of individuals with mental illness in New York); Monaco v. Stone, No. 98-CV-3386 (CPS), 2002 WL 32984617, at *21 (E.D.N.Y. Dec. 20, 2002) (“Congress has authorized [P&A] organizations . . . to bring suit on behalf of their constituents if they can meet the traditional test of associational standing.”); Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999) (finding that plaintiff P&A organization had standing under Section 10805(a)(1)(B) to sue on behalf of current residents of state hospital).
Defendants make several arguments challenging DAI’s standing to bring this action. They argue that Section 10805(a)(1)(B) does not authorize P&A organizations to sue on behalf of their constituents. They also assert that DAI lacks associational standing to bring the claims asserted. Finally, they argue that DAI lacks standing to pursue system-wide relief. Considering these arguments in turn, the court rejects Defendants’ contention that DAI lacks standing.
A. DAI’s Enabling Statute Defendants argue that DAI lacks standing under Section 10805(a)(1)(B) of its enabling statute. They argue that Section 10805(a)(1)(C) is “the only provision that authorizes PAIMI groups to bring actions ‘on behalf of its constituents,’” and that, therefore, Section 10805(a)(1)(B) does not confer standing on DAI to bring this suit.21 (Def. Mem. 43.) Defendants have cited no authority for the proposition that lawsuits may only be brought under Section 10805(a)(1)(C), and as noted above, Section 10805(a)(1)(B) explicitly authorizes P&A organizations to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.”
21 42 U.S.C. § 10805(a)(1)(C) provides that authorized P&A organizations shall have the authority to: [P]ursue administrative, legal, and other remedies on behalf of an individual who – (i) was an individual with mental illness; and (ii) is a resident of the State, but only with respect to matters which occur within 90 days after the date of the discharge of such individual from a facility providing care or treatment . . . .
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42 U.S.C. § 10805(a)(1)(B) (emphasis added). Indeed, courts in this circuit and elsewhere have explicitly rejected Defendants’ view. See Joseph S., 561 F. Supp. 2d at 306-308 (holding that DAI had associational standing to bring claims on behalf of constituents under § 10805(a)(1)(B)); Brown, 66 F. Supp. 2d at 425 (finding P&A plaintiff had standing under § 10805(a)(1)(B) to sue on behalf of current residents of state hospital); Trautz v. Weisman, 846 F. Supp. 1160, 1163 (S.D.N.Y. 1994) (“[I]f Congress merely intended for state systems to act as advocates [and not as plaintiff] on behalf of mentally [ill] individuals, it would not have included (a)(1)(B) in the statute in addition to (a)(1)(C).”); see also Univ. Legal Servs., Inc. v. St. Elizabeths Hosp., No. 05-CV-00585 (TFH), 2005 WL 3275915, at *5 (D.C. Cir. July 22, 2005) (“PAIMI authorizes organizations like ULS to pursue claims for system-wide change on their own behalf as an advocacy organization under § 10805(a)(1)(B).”); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1113 (9th Cir. 2003) (citing Section 10805(a)(1)(B) and holding that “Congress clearly intended PAIMI to confer standing on [P&A organizations] to litigate on behalf of those suffering from mental illness”). The court concludes, in accordance with the case law, that DAI has statutory authority to represent its constituents in this suit.
B. Associational Standing An association has standing to bring claims on behalf of its members if the following three criteria are met: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1997). The first two elements of this test are constitutionally required, while the third element is a prudential
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consideration. See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc.,
517 U.S. 544, 555 (1996). Only the first element is at issue here.22
Defendants argue that DAI lacks standing under Hunt because it has not established that a
single one of its constituents has standing to sue in his or her own right. To establish standing, a
plaintiff must show that he or she suffered an injury-in-fact that is fairly traceable to the
defendants’ allegedly unlawful action, and which is likely to be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The “injury-in-fact”
alleged here is that DAI’s constituents are not in the “most integrated settings appropriate to their
needs” – that is, that they are subject to unjustified segregation and are qualified to receive
services in a more integrated setting. DAI has put forth substantial evidence in support of its
claim that more than one thousand of its constituents are suffering this injury as a result of the
State’s policies, procedures, and activities.23 (See Def. Mem. 65 (“DAI produced a list of 1536
residents who they claim are qualified to move to purportedly more integrated settings.”); see
22 Defendants explicitly concede that DAI has met the second element and do not contend that DAI has failed to satisfy the third element. (See Def. Mem. 36 & n.52.) In Hunt, there was no congressional enactment explicitly bestowing standing on an organization. In United Food, the Supreme Court noted that Congress abrogated the third part of the Hunt test in enacting the WARN Act, which authorized unions to sue on behalf of their members. United Food, 517 U.S. at 558. Several courts have concluded that, in enacting PAIMI, Congress explicitly granted associational standing to P&A organizations, thereby eliminating the need for plaintiffs to meet the third part of Hunt. See Joseph S., 561 F. Supp. 2d at 307 (citing cases).
Even if DAI were required to satisfy the third part of Hunt, the court would conclude that the claims DAI asserts and the relief it seeks are not so individualized as to defeat associational standing. An organization lacks associational standing “where ‘the fact and extent’ of the injury that gives rise to the claims for injunctive relief ‘would require individualized proof,’ or where ‘the relief requested [would] require[ ] the participation of individual members in the lawsuit.’” Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) (internal citations omitted); see Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 477 U.S. 274, 283-84 (1986). In Joseph S., the district court concluded that DAI had associational standing to pursue claims for injunctive relief on behalf of its constituents, whom it alleged were placed in nursing homes without individualized assessments in violation of the ADA. 561 F. Supp. 2d at 307-308. The court relied on Bano and Brock to conclude that the claims may be resolved without individualized proof of a violation of the ADA, even though defendants may need to undertake individualized assessments if the court were to grant the requested relief. See id. at 308. The court finds the analysis of the third element of Hunt in Joseph S. persuasive and applicable here. 23 Defendants’ contention that DAI has not established that its constituents are “qualified” to move to more integrated settings is a challenge to the merits of the case and does not deprive DAI of standing. See, e.g., Monaco, 2002 WL 32984617, at *21 (“Whether or not plaintiff . . . can produce evidence to establish the liability of defendant . . . is the ‘very heart of the matter in [this] case and does not implicate standing.’”) (citation omitted, alteration in original).
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also Duckworth Aff. Ex. A at 5; E. Jones Aff. Ex. A at 11.) In terms of redressability, DAI seeks an order compelling Defendants to change the manner in which they administer New York’s mental health service system so as to enable adult home residents to live and receive services in the most integrated setting appropriate to their needs. (Compl. 34.) If Plaintiff prevails on its claims, the requested relief would redress the alleged injury. See Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 477 U.S. 274, 283-84 (1986) (plaintiff union had associational standing because it did not seek the Court’s determination that benefits are due each of its members, but an order compelling defendant correctly to determine such benefits). DAI has thus satisfied the requirements of Lujan and the first element of associational standing in Hunt.
Defendants also argue that DAI cannot establish injury-in-fact with respect to adult home residents who have not filed formal applications – HRA 2000s – to move to alternative housing programs. The court rejects this argument. First, standing to bring an ADA integration claim does not depend on whether a plaintiff has submitted an application for an agency program, service, or activity. Olmstead, 527 U.S. at 601-603 (defining “qualified” as able to “meet[] the essential eligibility requirements” to receive community-based services with or without reasonable accommodation). Moreover, contrary to Defendants’ assertions, DAI has submitted evidence indicating that participation in the HRA 2000 application process is not a prerequisite for obtaining more integrated residential services, and that individuals can be placed in supported housing without completing an HRA 2000 application. (See Tsemberis Dep. 32-33; Schwartz Dep. 146-47, 167; see also OMH, Supported Housing Implementation Guidelines (Raish Decl. Ex. 50).) Second, Defendants concede that some of DAI’s constituents filed HRA 2000 applications. (Def. Mem. 37 (noting that their expert did a random sample of the 1,536 residents
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whom DAI claims are qualified to move and found that eighteen of the 206 residents in the sample had filed HRA 2000 applications).) Associational standing simply requires that “one or more of [the association’s] members has suffered a concrete and particularized injury.” Building & Const. Trades Council v. Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir. 2006) (emphasis added). DAI has met this requirement.24
C. Standing to Seek System-Wide Injunctive Relief Defendants also contend that even if DAI could show that any of its constituents have standing, DAI lacks standing to obtain system-wide relief, claiming that the “scope of DAI’s standing, and the corresponding remedy it may seek, is limited by the number of DAI’s constituents who meet the Olmstead-required elements of being qualified and having a desire to move to alternate housing.” (Def. Mem. 39.) In response, DAI contends that Defendants conflate two distinct issues: (1) whether DAI has standing to seek injunctive relief, and (2) the scope of the relief ultimately ordered, should DAI prevail. The court agrees that this distinction is significant here. Whether DAI may ultimately be entitled to the requested injunctive relief is not the same question as whether DAI has standing to seek injunctive relief. Defendants cite cases addressing whether a plaintiff had standing to seek any prospective injunctive relief, not whether the relief could be system-wide. For example, in Small v. General Nutrition Companies, Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005), in which an individual plaintiff
24 Defendants’ contention that DAI is attempting to “evade” Rule 23 of the Federal Rules of Civil Procedure is without merit. (Def. Mem. 40.) Associational standing is a substitute for class certification. See, e.g., Brock, 477 U.S. at 289 (permitting union to assert claims on behalf of its members and recognizing that the “pre-existing reservoir of expertise and capital” that an association can bring to the litigation may make an individual action by an association superior to a class action). Defendants have cited no authority requiring P&A plaintiffs to fashion their claims as class claims rather than individual ones. P&A organizations are regularly allowed to bring cases as plaintiffs on constituents’ behalf without seeking class certification. See, e.g., Brown, 66 F. Supp. 2d at 425 (allowing P&A plaintiff to bring suit on behalf of constituents); Trautz, 846 F. Supp. at 1166 n.7 (holding that DAI had standing to pursue injunctive relief and noting that if DAI prevailed, the “practical effect may be indistinguishable from that of a successful class action for injunctive relief.”).
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and a plaintiff organization alleged discrimination based on the inaccessibility of a retailer’s stores to wheelchair users, the court found that the plaintiff organization failed to satisfy the first prong of Hunt. The organization failed to allege that a single one of its members had encountered barriers in the retailer’s stores or would have been likely to visit those stores in the future but for those barriers. Id. at 96-97. The organizational plaintiff in Small did not have standing because it failed to allege that its constituents had been subject to harm or would be in the future, and, therefore, could not seek an injunction. Id.; see also Clark v. Burger King Corp., 255 F. Supp. 2d 334, 345 (D.N.J. 2003) (plaintiff failed to allege when any constituent visited allegedly inaccessible restaurant and when any constituent planned to return); City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983) (plaintiff lacked standing to seek prospective injunctive relief; fact that he was illegally stopped and choked by police did not establish an immediate threat that he would be stopped and illegally choked in the future). Here, however, DAI has alleged and provided evidence of an ongoing, system-wide harm to its constituents that could be redressed by the injunctive relief it seeks – an order requiring Defendants to move DAI’s constituents to alternative housing.
Other cases on which Defendants rely are similarly inapposite. Defendants rely on several cases that refused to order system-wide injunctive relief. (See Def. Mem. 41-42; Def. Reply Mem. Supp. Summ. J. (“Def. Reply Mem”) 3 (Docket Entry #218).) In those cases, however, the issue was whether system-wide relief was warranted based on the evidence presented at trial. None addresses whether the plaintiffs had standing to bring a claim seeking system-wide relief. Lewis v. Casey, 518 U.S. 343, 359 (1996) (holding that two instances of unlawful conduct were an inadequate basis for system-wide relief); Rizzo v. Goode, 432 U.S. 362, 379 (1976); Warth v. Seldin, 422 U.S. 490, 515 (1975) (noting that declaratory and/or
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injunctive relief are prospective in nature, and that “it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.”). V. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND THE
INTEGRATION MANDATE The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits discrimination in access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.25 To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is a “qualified individual” with a disability; (2) that the defendants are subject to the ADA; and (3) that he or she was denied the opportunity to participate in or benefit from the defendants’ services, programs, or activities, or was discriminated against by defendants, by reason of his or her disability. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). One form of discrimination “by reason of . . . disability” is a violation of the ADA’s socalled “integration mandate.” This mandate – arising out of Congress’s explicit findings in the ADA, regulations of the Attorney General implementing Title II, and the Supreme Court’s
25 Section 504 of the Rehabilitation Act has a similar provision: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
29 U.S.C. § 794(a). Because claims under the two statutes are treated identically unless – unlike here – one of the “subtle differences” in the two statutes is pertinent to a claim, the court will treat the RA claims as identical to the ADA claims. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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decision in Olmstead v. L.C., 527 U.S. 581 (1999) – requires that people with disabilities receive services in the “most integrated setting appropriate to their needs.”
In enacting the ADA, Congress explicitly found that “individuals with disabilities continually encounter various forms of discrimination, including . . . segregation.” 42 U.S.C. §12101(a)(5); see also id. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”). The Attorney General’s implementing regulations provide that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”26 28 C.F.R. § 35.130(d) (“integration regulation”); see also 42 U.S.C. § 12134(a) (requiring Attorney General to issue implementing regulations). The regulations define “most integrated setting” in Section 35.130(d) as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A.
The Supreme Court addressed the scope of the integration mandate in Olmstead. At issue in that case was “whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than institutions.” 527 U.S. at 587. The Court concluded that the answer was “a qualified yes.” Id. The Court noted that “in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’” Id. at 600. It noted that “institutional placement of persons who can handle and benefit from community settings perpetuates
26 As Congress directed, see 42 U.S.C. § 12134(b), this regulation is consistent with a similar regulation implementing Section 504 of the Rehabilitation Act, which requires recipients of federal funds to administer programs and activities “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
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unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. The Supreme Court thus held explicitly that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id.
A state’s obligation under the integration mandate is not limitless, however. Id. at 603. Under Title II’s implementing regulations, a state must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination,” but it need not do so if it “can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. §35.130(b)(7). The plurality in Olmstead thus concluded that the integration mandate is violated when:
the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. 527 U.S. at 587. In its analysis of the integration mandate, the Supreme Court deferred to the Attorney General’s interpretation of Title II. See id. at 597-98 (“[i]t is enough to observe that the wellreasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance”) (internal quotation marks and citations omitted). Thus, following Olmstead, courts have looked to the language of the Attorney General’s regulations, as well as the holding in Olmstead as the standard by which to determine a violation of the integration mandate of the ADA. For example, the Ninth Circuit has explained that “[t]he plain language of the integration regulation [28 C.F.R. § 35.130(d)], coupled with the reasoning and holding of Olmstead, direct our analysis in this case.” Townsend v. Quasim, 328 F.3d 511, 516, 520 (9th Cir. 2003). Similarly, in Joseph S.,
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561 F. Supp. 2d at 289-290, the court observed that “[a] failure to provide placement in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible violates the ADA’s integration mandate.” See also Helen L. v. DiDario, 46 F.3d 325, 332 (3rd Cir. 1995), cert. denied, 516 U.S. 813 (1995) (concluding, pre-Olmstead, that 28 § 35.130(d) had the force of law). VI. APPLICABILITY OF TITLE II
As set forth above, the ADA requires that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Defendants contend that DAI has failed to identify any State “service, program, or activity” that is subject to the ADA or subjects DAI’s constituents to discrimination, because the State merely licenses and inspects the privately owned adult homes. (Def. Mem. 44.) Defendants further contend that DAI’s complaint lies with the adult homes themselves, with the manner in which they are operated and the nature and quality of the services residents receive, and that government agencies cannot be held liable for discriminatory conduct on the part of their licensees. (Id.) DAI responds that it does not challenge adult homes’ failure to comply with the ADA; rather, it challenges Defendants’ policies of relying on adult homes, rather than the more integrated setting of supported housing, to provide residential and treatment services to thousands of individuals with mental illness. (Pl. Opp. 41.) For the reasons below, the court concludes that Title II applies to DAI’s claims against Defendants.
A. Defendants’ Administration of New York’s Mental Health Services New York has a comprehensive statutory and regulatory scheme governing the State’s administration of services for people with mental illness, including adult homes. Defendants are
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obligated under State law to develop a “comprehensive, integrated system of treatment and rehabilitative services for the mentally ill.” N.Y. Mental Hyg. L. § 7.01. In particular:
It shall be the policy of the state . . . to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill. Such a system . . . should assure the adequacy and appropriateness of residential arrangements . . . and it should rely upon . . . institutional care only when necessary and appropriate. Id. Defendants administer the State’s system of mental health care, including residential and treatment services provided by public and private entities. N.Y. Mental Hyg. L. §§ 5.07, 7.07. One of the Defendant agencies, the Office of Mental Health (“OMH”), funds and oversees an array of mental health housing and support service programs statewide (Pl. 56.1 Statement ¶ 15), including community support, residential, and family care programs (OMH, About OMH (Murray Decl. Ex. 53); see also N.Y. Mental Hygiene L. §§ 41.03, 41.42, 41.39 (defining community support services, family support programs, and vocational programs and sheltered workshops)). To fund various services, such as housing programs, OMH contracts with private providers by issuing requests for proposals (“RFPs”).27 (See, e.g., Newman Aff. ¶¶ 60-63; Supported Housing RFPs (Murray Decl. Exs. 128, 55, 56, 81).) OMH is responsible for planning what mental health services the State will provide, and allocating resources to those services. OMH is also required by law to plan how and where New York’s mental health services will be delivered. N.Y. Mental Hyg. L. § 7.07. In particular, OMH is obligated to “develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill and . . . create financing procedures and mechanisms to support such a system of services . . . [and] shall make full use of existing services in the community
27 For example, in January 2007, OMH issued a request for proposals to provide supported housing beds specifically for adult home residents. (OMH January 2007 RFP (Murray Decl. Ex. 81).)
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including those provided by voluntary organizations.” N.Y. Mental Hyg. L. § 7.07. OMH is also responsible for “assuring the development of comprehensive plans, programs, and services in the areas of research, prevention, and care, treatment, rehabilitation, education, and the training of the mentally ill.”28 N.Y. Mental Hyg. L. § 7.07(a).
Moreover, each year, OMH must “formulate a statewide comprehensive five-year plan for the provision of all state and local services for the mentally ill,” known as the “5.07 Plan,” which includes “establish[ing] priorities for resource allocation” and “analyz[ing] current and anticipated utilization of state and local, and public and private facilities and programs.” Id. § 5.07. For example, in its Statewide Comprehensive Plan for Mental Health Services 2004-2008, OMH emphasizes its “accountability for results” regarding the design and delivery of services, as well as “coordination of care,” referring to a “coordinated, comprehensive networks of providers [that] deliver a balanced array of medical, self-help, social, supportive, and rehabilitative services and programs.” (OMH 2004-2008 Plan (Raish Decl. Ex. 56).)
The other Defendant agency, the Department of Health (“DOH”) is responsible for, among other things, promoting the “development of sufficient and appropriate residential care programs for dependent adults.” N.Y. Comp. Codes R. & Regs. tit. 18, §§ 485.3(a)(1), 487.1(b). In particular, DOH licenses and monitors adult homes and enforces the stautes and regulations applicable to adult homes. (Pl. 56.1 Statement ¶ 10.) Specifically, DOH issues operating certificates to establish and operate adult homes. N.Y. Comp. Codes R. & Regs. tit. 18, § 485.3(a)(3). These operating certificates must be reissued at least every four years and may be revoked or suspended if the DOH determines that if the facility does not comply with State regulations. Id. §§ 485.5(c), (l), (m). DOH can also revoke, suspend, or terminate an operating
28 OMH also “advise[s] and “assist[s] the governor in developing policies designed to meet the needs of the mentally ill and to encourage their full participation in society.” N.Y. Mental Hyg. L. § 7.07(b).
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certificate if it determines that such an action is in the public interest because it would conserve resources. Id. § 485.5(m)(1)(i). In addition, DOH has the authority to seek appointment of a receiver to take over operation of an adult home, id. § 485.9, and DOH has exercised that authority to replace operators and appoint temporary operators at Brooklyn Manor and Ocean House, two of the homes at issue in this litigation (Hart Aff. ¶ 61).
Both DOH and OMH monitor and inspect adult homes. See N.Y. Const. Art. XVII, § 4 (providing that the “department of mental hygiene shall visit and inspect . . . all institutions either public or private used for the care and treatment of persons suffering from mental disorder or defect”); N.Y. Comp. Codes R. & Regs. tit. 18, § 485.3(b)(1) (stating that DOH has statutory authority to inspect adult homes and that OMH may participate in inspections). DOH is required by statute to conduct at least one unannounced full inspection of all adult care facilities, including adult homes, every twelve or eighteen months, depending on the facility’s record. N.Y. Soc. Serv. L. § 461-a(2)(a). DOH may bring enforcement proceedings to assess civil fines, or to suspend, modify, limit or revoke an operating certificate. N.Y. Comp. Codes R. & Regs. tit. 18, § 486.4. Regulations added in 2002 permit DOH to assess fines immediately for the more serious violations, those which endanger residents (known as endangerment violations). (Def. 56.1 Statement ¶ 29.) According to OMH official Jan Tacoronti, who directed OMH’s Adult Home Monitoring and Training Team (the “Adult Home team”) from 2003 to 2006, the Adult Home Team responds to and investigates complaints and incidents by adult home residents about services provided by mental health providers certified by OMH, and participates in joint inspections of adult homes with DOH and the Commission on Quality of Care and Advocacy for
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Persons with Disabilities (“CQC”), an independent State agency.29 (Tacaronti Aff. ¶¶ 8, 16, 2022; see also Reilly Aff. ¶ 13 & Ex. Reilly-A (stating that OMH participates in inspections of adult homes).)
State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, and physical and environmental standards.30 (Def. 56.1 Statement ¶ 5.) In particular, the regulations provide that adult home residents “shall be permitted to leave and return to the facility and grounds at reasonable hours.” N.Y. Comp. Codes R. & Regs. tit. 18, § 487.5(a)(3)(xii). Adult homes are required to provide case management services “as are necessary to support the resident in maintaining independence of function and personal choice,” including “assisting each resident to maintain family and community ties and to develop new ones,” “encouraging resident participation in facility and community activities” and “assisting residents in need of alternative living arrangements to make and execute sound discharge or transfer plans.” Id. § 487.7(g). The regulations also require adult homes to provide a program of activities in the facility and the community, and must include “arrangement for resident participation in community-based and community-sponsored activities.” Id. § 487.7(h).
In addition, OMH funds, oversees, licenses and credentials mental health care providers who provide services for people with mental illness in adult homes. (Pl. 56.1 Statement ¶ 13.) Impacted adult homes must enter into a written agreement with a provider of mental health services for assistance with the assessment of mental health needs, the supervision of mental
29 The CQC is an independent state agency charged with assisting the governor and the legislature in developing policies to improve the mental health system and evaluating the quality of care in mental health facilities. See N.Y. Mental Hyg. L. § 45.07. 30 OMH has the authority and responsibility pursuant to Article 31 of the Mental Hygiene Law to set standards and issue regulations regarding the quality of programs that provide mental health services. See N.Y. Mental Hyg. L. §§ 31.01; 31.04.
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health care, and the provision of case management for residents enrolled in mental health programs. N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7(b). In addition to approving contracts between impacted adult homes and service provides, OMH also provides treatment services directly inside some adult homes. (OMH, South Beach Psychiatric Center (Murray Decl. Ex. 62); OMH, Creedmoor Psychiatric Center Outpatient Servs. (Murray Decl. Ex. 63); S.P. Dep. 16-17; N.Y. Comp. Codes R. & Regs. tit. 18, §§ 487.7(b).)
B. Scope of Title II Title II covers all programs, services, and activities of a state or local government entity “without any exception.” Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 209 (1998); see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997) (holding that zoning decisions are subject to the ADA and noting that “programs, services, or activities” is a “catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.”), overruled on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n.7 (2d Cir. 2001). Federal regulations provide that “[a] public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability,” but “[t]he programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” 28 C.F.R. § 35.130(b)(6). Olmstead itself concerned the obligation of Georgia’s Department of Human Resources (“Department”) to comply with the ADA’s integration mandate. Because the Department delivered services in segregated state hospitals as well as integrated community settings, the Supreme Court found that the Department had an obligation to ensure that the plaintiffs were not unnecessarily hospitalized when they could be served instead in community facilities, unless
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doing so would fundamentally alter the service system. See id. While the plaintiffs in that case were institutionalized in a state hospital, DAI has pointed out that the community facilities that were part of the state’s service system were privately operated. (Pl. Opp. 51; Olmstead v. L.C., Resp. Br., 1999 WL 144128, at *5 (noting that “the Georgia legislature amended its laws to allow state funds appropriated for mental disability programs to be transferred from institutional to community services” and “restructured the state service delivery system and gave it authority to contract with private providers of such services in the community.”).) Olmstead thus imposes an obligation on states, which are responsible for providing services, 527 U.S. at 607, not on the particular facilities in which service recipients are alleged to be segregated.
While the Second Circuit has not yet addressed the applicability of the Title II’s integration mandate to cases where a state’s service system relied on privately operated facilities, other courts have applied the ADA’s integration mandate to contexts where a state uses private entities to deliver services to people with disabilities. In Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), the Seventh Circuit considered whether Title II of the ADA and the RA required Illinois to fund private at-home care for a person with disabilities. In discussing the state’s “fundamental alteration” defense under Title II, the court assumed that the state would have to pay for some type of private care for the plaintiff, whether at a private institutional facility reimbursed by the state, or at the plaintiff’s home. See id. at 614 (“If the state would have to pay a private facility to care for Eric . . . and the cost of that placement equaled or exceeded the cost of caring for him at home, then it would be difficult to see how requiring the State to pay for athome care would amount to an unreasonable, fundamental alteration of its programs and services.”).
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Similarly, other courts have focused on a state’s obligation to administer its services for people with disabilities in the most integrated setting appropriate for their needs, finding irrelevant the ownership of the facilities where the individuals were allegedly segregated. See Martin v. Taft, 222 F. Supp. 2d 940, 946, 981 (S.D. Ohio 2002) (denying motion to dismiss Olmstead claims where plaintiffs were institutionalized in both public and private facilities and noting that “liability does not hinge upon whether the setting in question is owned or run directly by the State”); Roland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (finding it immaterial for purposes of Olmstead claim against state that many of the plaintiffs lived in private rather than government-operated nursing facilities).31
C. Applicability of Title II The court concludes that Title II of the ADA applies to the claims in this case. An Olmstead claim concerns a public entity’s obligation to make reasonable modifications to its service system to enable individuals with disabilities to receive services in the most integrated setting appropriate to their needs. Defendants, as required by New York law, administer the State’s mental health service system, plan the settings in which mental health services are provided, and allocate resources within the mental health service system. Accordingly,
31 In addition, the Ninth, Tenth, and Third circuits have held that Title II of the ADA applies to nursing homes covered by Medicaid, without explicitly addressing whether the nursing homes at issue were operated by the government or private providers. See Townsend, 328 F.3d 511 (state’s decision to fund nursing services for certain Medicaid recipients only in nursing homes would violate ADA unless the state could demonstrate fundamental alteration defense); Fisher, 335 F.3d 1175 (state’s decision to fund more prescription drugs in Medicaid-covered nursing homes than in its Medicaid home and community-based waiver program would violate ADA unless state could demonstrate fundamental alternation defense); Helen L., 46 F.3d at 328.
DAI has provided statistics from an empirical study indicating that the vast majority of Medicaid-covered nursing homes are privately operated. (Pl. Opp. 51 n.40, citing Dep’t of Soc. & Behavioral Sci., Univ. of Calif. San Francisco, State Data on Nursing Facilities, Staffing, Residents, and Facility Deficiencies, 1995-2001, at 20 (Murray Decl. Ex. 95) (noting that in 2001, only 6.4% of Medicaid- and Medicare-certified nursing homes across the country were government operated).)
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Defendants’ contention that DAI has failed to identify any State service, program, or activity related to DAI’s claim that is subject to the ADA is without merit.32
It is immaterial that DAI’s constituents are receiving mental health services in privately operated facilities. Cellucci, 52 F. Supp. 2d at 237. Public entities are required under the ADA to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (emphasis added). Discrimination, in the form of unjustified segregation of individuals with disabilities in institutions, is thus prohibited in the administration of state programs. The statutory and regulatory framework governing the administration, funding, and oversight of New York’s mental health services – including the allocation of State resources for the housing programs at issue here – involves “administration” on the part of Defendants. The State cannot evade its obligation to comply with the ADA by using private entities to deliver some of those services.
The essence of Defendants’ argument to the contrary is that they cannot be held responsible under Title II for actions of the adult homes themselves. (See Def. Mem. 45; Def. Reply Mem. 5-6.) Although this proposition is correct, see 28 C.F.R. § 35.130(b)(6) (“The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part”),33 it is inapposite in the context of DAI’s Olmstead claim. DAI does not challenge the conduct of adult homes licensed and certified by the State; instead, it challenges the manner in which Defendants administer New York’s mental health service
32 Indeed, although contesting the existence of any State programs or activities, Defendants’ memorandum of law refers to OMH’s “activities and programs that are designed to help adult home residents . . . access [OMH] Housing for Persons with Mental Illness.” (Def. Mem. 23 (emphasis added).) 33 See also Dep’t of Justice, ADA Technical Assistance Manual II-3.7200 (Decl. of Barbara K. Hathaway, Ex. Hathaway-A (Docket Entry #150)) (noting that “[t]he State is not accountable for discrimination in the . . . practices of a licensee if those practices are not the result of requirements or policies established by the State. Although licensing standards are covered by title II, the licensees’ activities themselves are not covered. An activity does not become a ‘program or activity’ of a public entity merely because it is licensed by the public entity.”).
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system. In other words, DAI challenges the State’s choice to plan and administer its mental health services in a manner that results in thousands of individuals with mental illness living and receiving services in allegedly segregated settings. This suit does not challenge the conduct of any particular adult home.
Accordingly, Defendants’ reliance on cases addressing whether a public entity must correct discriminatory conduct by service providers it licenses is misplaced, because those cases concern discrimination by the licensees, not the public entity itself. See, e.g., Tyler v. City of Manhattan, 849 F. Supp. 1429, 1441-42 (D. Kan. 1994) (holding that city had no duty under Title II of the ADA to force restaurants and stores that it licensed and inspected to comply with the businesses’ obligation under the ADA to provide wheelchair access); Reeves v. Queen City Transp., Inc., 10 F. Supp. 2d 1181, 1183-88 (D. Colo. 1998) (holding that the public utility commission that issued a certificate to a bus company was not liable under Title II for the bus company’s disability discrimination).34
Defendants additionally contend that Title II is in applicable because “the State does not require that anyone live in an adult home or receive services in adult homes.” (Def. Mem. 49.) They argue that adult home residents “could move out of the adult home or remain and choose to receive services elsewhere.” (Id.) In a similar vein, Defendants further contend that DAI has failed to articulate a specific act or policy that requires individuals to receive services in adult homes. They rely on cases challenging specific state policies providing different services in institutions than were available in the community. (Id., citing Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (challenging policy of funding more prescription drugs in
34 Defendants’ citation to cases holding that private hospitals were not themselves subject to suit under Title II is similarly inapposite, because DAI does not argue that adult homes themselves are public entities or State actors. See Green v. City of New York, 465 F.3d 65, 78 (2d Cir. 2006) (holding that private hospital that contracted with the City was not itself subject to suit under Title II); Monaco, 2002 WL 32984617 (holding that private psychiatric hospitals licensed and monitored by OMH were not State actors).
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nursing homes than in the community); Def. Reply Mem. 11, citing Townsend, 328 F.3d 511 (challenging policy failing to provide community-based services to “medically needy” persons, while providing such care for “categorically needy” persons).)
These contentions are without merit. As described in detail above, it is clear that Defendants are required by State law to determine the settings in which New York provides and funds mental health services. Defendants do so by controlling the State’s funding for services in various settings, including adult homes and supported housing, and effectively control how many adults receive services in any particular setting. This is more than a “general obligation to provide services,” as Defendants contend. While State officials do not require anyone to be in an adult home, Defendants plan, fund and administer the State’s existing service system such that more than 12,000 adults are receiving the State’s services in adult homes. (OMH 2004-2008 Plan 69 (Raish Decl. Ex. 56).)
Defendants argue that DAI must point to a “specific act or policy” causing discrimination, relying on the Supreme Court’s decision in a Title VII disparate-impact case, Wards Cove Packing Company, Inc. v. Atonio, 490 U.S. 642, 656 (1989). (Def. Reply Mem. 78.) That case held that a plaintiff in a Title VII disparate-impact case is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities [in the employment of minorities],” and that to hold otherwise would result in potential liability for “the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces.” 490 U.S. 642, 656 (citation omitted). Defendants note that while aspects of Ward’s Cove were overruled by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(k)(B)(I), in particular, the requirement of identifying a particular practice if the elements
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of a decisionmaking process are not capable of separation for analysis, the ADA has had no such amendment. (Def. Reply Mem. 8 & n.3.)
The court will not read into Title II a new requirement that Plaintiff must prove a “specific act or policy” on the basis of a partially overruled Title VII disparate-impact case. The ADA prohibits discrimination in the administration of programs. 28 C.F.R. § 35.130(b)(6). Title II covers all programs, services, and activities of public entities “without any exception,” and “prohibits all discrimination by a public entity, regardless of the context.” Yeskey, 524 U.S. at 206; Innovative Health Sys., Inc., 117 F.3d at 45. Defendants, and no other entities, are responsible for determining what services to provide, in what settings to provide them, and how to allocate funds for each program. This particular role is more than “the totality of defendants’ choices and policies in overseeing the entire system,” as Defendants contend.
In sum, Plaintiff alleges that Defendants’ administration of services discriminates against adult home residents by unnecessarily segregating them, and claims that if Defendants allocated their resources differently, adult home residents could receive services in a more integrated setting. This claim falls squarely under Title II of the ADA. VII. MOST INTEGRATED SETTING APPROPRIATE
In seeking summary judgment, Defendants contend that DAI’s constituents are already in the “most integrated setting appropriate to their needs,” because adult homes are integrated settings and the adult home residents are not qualified to move to supported housing. The court first evaluates the parties’ claims regarding whether DAI’s constituents are in the “most integrated setting” and then turns to whether supported housing is “appropriate to the[] needs” of DAI’s constituents, that is, whether they are qualified for supported housing.
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A. Most Integrated Setting Defendants contend that even if the integration mandate of Title II and Olmstead applies to adult homes, adult homes are “integrated,” community-based settings unlike the psychiatric hospital at issue in Olmstead, because adult home residents have “virtually unlimited opportunities to interact with nondisabled persons,” and adult homes facilitate these interactions through community-based programs. (Def. Mem. 51-52.) Defendants further contend that adult homes and scattered-site supported housing models “offer equal opportunities for interaction with others in the community.” (Def. Rep. Mem. 14.) In response, Plaintiff contends that the record evidence demonstrates that residents of the large, impacted adult homes at issue are not receiving services in the “most integrated setting” appropriate to their needs, because “most integrated setting” is defined in the regulations as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible,” and that supported housing is more integrated than adult homes. (Pl. Opp. 53, 58.) The parties dispute the scope of the ADA’s integration mandate, the extent to which adult home residents have opportunities for interaction with non-disabled people, and whether supported housing is a more integrated setting than adult homes. For the reasons below, the court concludes that the regulations set forth the proper inquiry, and that Defendants have failed to meet their burden for summary judgment.
1. Definition and Scope of the Integration Mandate The parties do not dispute that the federal regulations, discussed above, define Title II’s “integration mandate.” They differ in their interpretation of what this definition means, and what these regulations and Olmstead require a plaintiff to show. Defendants contend that “under the regulatory definition of integration, the key is whether persons with disabilities have
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opportunities for contact with nondisabled persons, rather than the number of actual contacts.” (Def. Mem. 52) (emphasis added). In contrast, DAI contends that, given the regulations’ “most integrated setting” language, the proper inquiry is not simply whether a setting is “integrated” or not. Rather, “providing services in settings with some opportunities for interaction is unlawful if another appropriate setting would provide more opportunities, and the individual in question does not oppose the more integrated setting.” (Pl. Opp. 56-57.) For the reasons discussed below, the court concludes that the proper interpretation of the regulations’ definition of “most integrated setting” is set forth in the regulations themselves: whether a particular setting “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A.
Nowhere in Title II, its implementing regulations, or in Olmstead is there a definition of what constitutes an “institution” or “community-based” setting. While it is clear that, “where appropriate for the patient, both the ADA and the RA favor integrated, community-based treatment over institutionalization,” Frederick L. v. Department of Public Welfare (Frederick L. I), 364 F.3d 487, 491-92 (3d Cir. 2004), Olmstead and lower courts considering Olmstead claims have typically confronted situations in which the “institutional” or “community-based” nature of particular settings was not in dispute. In Olmstead, for example, plaintiff L.C. had already been removed from the psychiatric hospital – in which she had undisputedly been “institutionalized” – and placed in a “community-based program,” but the opinion did not describe the nature of the community-based program.35 527 U.S. at 593-94; see also, e.g., Townsend, 328 F.3d at 517 (considering state policy requiring certain Medicaid recipients with disabilities to receive
35 The Supreme Court noted that “L.C.’s pleading requested, among other things, that the State place her in a community care residential program, and that she receive treatment with the ultimate goal of integrating her into the mainstream of society.” 527 U.S. at 594.
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services in nursing homes rather than “community-based” settings, without describing “community-based” settings). Indeed, even psychiatric hospitals – which are undisputedly “institutions” – may permit some contact with non-disabled people; while some forms of supported housing – which are undisputedly “community-based”– might not fully preclude people with disabilities from experiencing isolation.36
The court concludes that the federal regulations mean what they say. Based on their plain language – coupled with Olmstead’s explicit holding, based on congressional findings, that “unjustified isolation” is discrimination – the proper inquiry is whether DAI’s constituents are in the “most integrated setting appropriate to their needs,” defined as “enable[ing] individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d) & App. Inquiring simply “whether” individuals with disabilities have any opportunities for contact with non-disabled persons ignores the “most integrated setting” and the “fullest extent possible” language of the regulations.
Defendants assert that reading the regulations’ “most” language literally will lead to absurd results. For example, they argue that it would “require the State to move persons with mental illness from family homes where . . . family members frustrate efforts for contact with nondisabled persons.” (Def. Reply Mem. 16.) But Title II’s integration mandate requires nothing of the sort; Title II covers the administration of state programs, activities and services. In Defendants’ proposed scenario, the actions of the family of a person with disabilities would
36 DAI notes that according to the factual record in Olmstead, plaintiff L.C. had some opportunities for contact with people outside the hospital. (Pl. Opp. 57-59.) For example, as L.C.’s condition improved while in the state hospital, she:
receive[d] a wide variety of community-care services . . . leaving during the day . . . via public transportation for persons with disabilities, to attend a daily community-based program that included social activities, vocational opportunities, and field trips; L.C. returned on the bus each evening to the institution. Pet. Reply Br., Olmstead v. L.C., 527 U.S. 581 (1999) (No. 98-536), 1999 WL 220130, at *17-18.
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not arise out of any service provided by the State, and would not implicate the integration mandate. Defendants also speculate about other hypothetical situations, such as complaints that residences in rural or suburban areas are “less integrated” than those in the city, or that housing in an OMH-licensed CR/SRO is “not integrated” because of a curfew or visiting hours. These situations are not before this court, and, in any event, the inquiry is fact-specific and subject to the “fundamental alteration” defense. The question before the court is whether the large, impacted adult homes at issue enable interactions with non-disabled persons to the fullest extent possible. 28 C.F.R. § 35.130(d) & App.
2. Evidence on the Nature and Characteristics of Adult Homes The parties have presented voluminous evidence regarding the nature and characteristics of the large, impacted adult homes at issue and supported housing, and the extent to which adult home residents are afforded – and pursue – opportunities to interact with non-disabled individuals. At the summary judgment stage, the court’s “function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Because Defendants seek summary judgment on DAI’s Olmstead claim, the court construes the facts in the light most favorable to DAI, and for the purposes of Defendants’ Motion, credits DAI’s evidence. Lucente, 310 F.3d at 254. DAI has provided evidence that adult homes are segregated settings akin to institutions that impede residents’ interaction with individuals without disabilities, particularly relative to supported housing. A reasonable finder of fact could conclude that adult homes do not enable residents’ interactions with non-disabled individuals to the fullest extent possible. Defendants have thus failed to meet their burden for summary judgment.
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a. Residents’ Freedom to Leave and Return from the Adult Homes
The parties dispute to what extent adult home residents are free to leave and return to the adult home facilities in practice. Plaintiff has provided evidence that most aspects of residents’ daily lives take place inside their adult homes. (E. Jones Aff. Ex. A at 8.) Adult home residents are limited in the times that they can leave the adult homes, given rigid schedules for meals, medications, and distribution of personal need allowances. (Levine Dep. 250-251; Schwartz Dep. 317-318; O.J. Decl. ¶¶ 17-20; E. Jones Aff. Ex. A at 5-6, 8.) For example, a resident of the Queens Adult Care Center testified that residents must be present at times when their medication is dispensed, usually at meal times and at nighttime, or they are penalized. (D.W. Dep. 75-77.)
Defendants provided evidence that some adult homes do not have curfews.37 For example, Defendants cite the testimony of a case manager at Oceanview Manor Home that “residents are free to come and go as they please” (Davis Dep. 35). On the other hand, Plaintiff has provided evidence that Oceanview Manor and Seaview have curfews after which doors are locked (Kessler Dep. 423-25; P.C. Dep. 98; S.B. Dep. 83-85), and that residents at those homes and Park Inn are not provided keys to the front doors (Burstein Dep. 19-20; Kessler Dep. 425). Some residents have complained that they have trouble getting back into their buildings. (P.C. Dep. 99; Schwartz Dep. 325.) Even at some homes where there is no curfew, residents must tell staff where they are going each time they leave the facility. (See, e.g., D.N. Dep. 169-171.)
37 See Mendel Dep. 24 (New Central Manor); Yunger Dep. Dep. 59, C.H. Dep. 103 (Queens Adult Care); P.B. Dep. 64, 66, G.L. Dep. 100 (Ocean House); R.H. Dep. 113, 151, A.M. Dep. 157, 185 (Sanford); L.G. Dep. 90-91, L.H. Dep. 76 (Anna Erika); I.K. Dep. 85 (Surf Manor); T.M. Dep. 54-55 (New Haven Manor); S.P. Dep. 59 (Parkview); D.N. Dep. 169-171 (Surfside Manor); see also M.B. Dep. 99 (testifying that “they never worried about me even if I came [back at] 2:00 in the morning.”).
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b. Residents’ Access to Neighborhood Amenities Defendants contend that each of the eighteen adult home residents deposed in this case “regularly” leaves the adult home to visit neighborhood amenities, such as shops, parks, restaurants, religious institutions, entertainment facilities. (See, e.g., M.B. Dep. 40-50, 102-112 (testifying that he went to stores, religious services, and restaurants outside the facility when he lived at Oceanview); L.G. Dep. 14-18, 21-26; R.H. Dep. 33-41, 66, 80-82, 123-24; G.J. Dep. 3334; A.M. Dep. 59; S.B. Dep. 13-25.)38 Defendants have also provided testimony from adult home administrators that some residents leave the facilities on their own on occasion to go shopping, to the library, and to restaurants, and that some residents have reduced-fare Metrocards to use on public transportation. (See, e.g., Burstein Dep. 45-46, 89-90; Mendel Dep. 51; Yunger Dep. 40 (testifying that he has seen residents at stores).) Relying on the same eighteen depositions, Plaintiff characterizes the testimony as providing a varied picture of what the residents actually do. While some adult home residents leave the facilities, not all do, and those who leave do not necessarily do so frequently. For example, while a former resident of Sanford testified that he attended church outside the facility, he only went to church three times while he lived there. (A.M. Dep. 56-57.) Some residents testified that they never used the subway and did not know the bus system in the area. (See, e.g., P.B. Dep. 53-57.) A resident of Queens Adult Care testified that “none of the residents ha[s] a [Metro]card.” (C.H. Dep. 83-84.) A former adult home resident testified that only eight of the
38 Other residents provided similar testimony. (See, e.g., S.P. Dep. 8-12; D.W. 30-32, 156-158; P.B. Dep. 50-53, 148 (testifying that she goes to a restaurant once or twice a month, walks to Church each Sunday, and goes to the library); L. H. Dep. 49-50, 117-118 (testifying that she walks around the neighborhood every day and goes to a restaurant once a week); T.M. Dep. 45-47 (testifying that he leaves the facility at least once each day to “sit[] and enjoy the day,” occasionally goes clothes shopping, never goes grocery shopping, and goes to a restaurant at least once per month); G.H. Dep. 97-99, 130-145 (testifying that he goes shopping several times per year, eats at restaurants every day for the first ten days of the month when he receives his allowance, and used to take public transportation to country music concerts from 1997 to 2001); C.H. Dep. 21-22, 63-65 (testifying he took the subway to sports events and concerts about every three months, and went to a restaurant about once every month); I.K. Dep. 45-46, G.L. Dep. 50 (testifying that they and others go to corner stores several times per week).)
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216 residents of Brooklyn Manor go to restaurants in the neighborhood; moreover, he never went to concerts, movies, the library, the beach, a street fair, or sporting event while he was at that facility. (J.M. Dep. 54-59.) A Seaview resident testified that there were a few residents who never leave the building, and he estimated that “maybe ten” of the other residents go to the boardwalk. (S.B. Dep. 63-64.) A resident of Parkview testified that he has seen only one or two other residents take the buses that he takes, and has never seen another resident take the subway. (S.P. Dep. 13-16.) A resident of Surfside testified that he had seen only four other residents walking on the boardwalk, and two or three residents at the library. (D.N. Dep. 14-19, 31-34.)
The locations of the adult homes may influence the level of interaction that residents have with people outside the home. Defendants have provided evidence that the adult homes at issue are located within several blocks of one or more of following: stores, restaurants, religious institutions, libraries, parks and/or beaches and boardwalks, and public transportation.39 Plaintiff has provided evidence, however, that the proximity of the adult homes to these entities varies from home to home (Kessler Dep. 73-79; E. Jones Aff. Ex. A at 8), and accessibility to adult home residents depends on how far particular residents can walk (Kessler Dep. 74; S.B. Dep. 1314; P.C. Dep. 222; R.H. Dep. 81-82). For example, a resident of Seaview Manor testified that there was a convenience store selling sandwiches and coffee within a ten-minute walk, but residents had to take the train to go to a supermarket. (S.B. Dep. 15.) In addition, Plaintiff has provided evidence that some residents are unfamiliar with public transportation (see, e.g., P.B. Dep. 53-54), and that while homes provide transport services to residents, adult home residents do not have opportunities to learn how to travel by themselves (Kessler Dep. 418). Because
39 See Burstein Dep. 9-10 (Park Inn); Mendel Dep. 18-19, 75 (New Central Manor Home); Davis Dep. 107-109 (Oceanview Manor); Yunger Dep. 23, 39-41 (Queens Adult Care); P.B. Dep. 51-53 (Ocean House); P.C. Dep. 96-98 (King Solomon); L.G. Dep. 15, 21 (Anna Erika); S.B. Dep. 19, 130-132 (Seaview Manor); R.H. Dep. 34-41, 79-81 (Sanford); L.H. Dep. 52-54 (New Haven Manor); G.H. Dep. 152-155 (Surf Manor); Dep. B.J. 51-53 (Brooklyn Manor); D.N. Dep. 16-19; 32, 36-38, 68-69 (Surfside Manor); S.P. Dep. 13-14 (Parkview).
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residents have limited income – a personal needs allowance of approximately $150 per month – subway or bus fares are sometimes unaffordable. (S.B. Dep. 19; E. Jones Aff. Ex. A at 3; G.L. Dep. 76-77; I.K. Dep. 57 (noting that she does not visit friends because of transportation costs).) A case manager at Oceanview Manor testified that while Oceanview is near a shopping center, bus stop, beach boardwalk, and park, she was “not aware of any resident that just goes on their own.” (Davis Dep. 109.)
c. Organized Trips Outside the Homes Defendants have provided evidence that adult home residents go on trips, for example, weekly trips to the movies for residents of Queens Adult Care Center. (Yunger Dep. 23.) Plaintiff has provided evidence that those trips are always with other residents of Queens Adult Care, not people from outside the home. (N.B. Decl. ¶ 20.) Plaintiff has provided additional evidence that trips organized by other adult homes are rare and often limited to a very small number of residents. (E. Jones Aff. Ex. A at 5-6; Levine Dep. 250-251; Schwartz Dep. 317318.) For example, a resident of Anna Erika, which is certified for 427 residents, testified that outings were limited to thirteen people, or the total number of persons who can fit in a van. (L.G. Dep. 37; see also Levine Dep. 255 (describing trips limited to seven or eight adult home residents).) Two residents of Parkview, which is certified for 134 residents, testified that five or six residents had gone on each outing. (R.H. Dep. 49; S.P. Dep. 22-23.) A former resident of Sanford testified when he lived in the adult home, he made one trip to the zoo, attended one baseball game with about five other residents, and went to the movies “a couple of times.” (R.H. Dep. 48-49, 126-127.) A former resident of Brooklyn Manor testified that although the facility had a van, he could only remember the facility organizing one trip, which involved eight or nine residents. (J.M. Dep. 43-44.)
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d. Residents’ Opportunities to Interact with Non-Residents The parties also dispute to what extent adult home residents have opportunities to interact with people who do not live in the adult homes. Defendants have provided evidence that adult home residents met acquaintances on the street. (M.B. Dep. 97-102 (testifying that when he lived at Oceanview, he had “lots” of “street acquaintances”); A.M. Dep. 79-80 (testifying that when he lived at Sanford, he had two friends who lived outside the adult home, one of whom he met while she was walking her dog in the park); J.M. Dep. 64-67 (testifying when he lived at Brooklyn Manor, he talked to people on the street “[a]ll the time” and that they were kind to him); D.W. Dep. 29-32 (testifying that he speaks and waves to people on the street and that a deli employee knows him by name).) Plaintiff has provided evidence that adult homes do not encourage residents to interact with non-residents, or provide them with such opportunities. (N.B. Decl. ¶¶ 15-20; B.R. Decl. ¶¶ 16-18; see also R.H. Dep. 96 (stating that he does not know any people who live in the neighborhood).) Based on their visits to numerous adult homes and interviews with adult home residents and staff, DAI’s experts Elizabeth Jones and Dennis Jones observed that the adult homes do not encourage interaction with non-disabled members of the community. (E. Jones Aff. Ex. A at 3, 8; D. Jones Decl. Ex. A at 9.) Plaintiff has also provided evidence from Defendants’ expert Alan Kaufman, who observed that for some adult home residents, “choices in friends/acquaintances were likely limited by the very location and nature of the home in which they resided.” (Decl. Ex. Kaufman-A at 10-11.) Some adult home residents have testified that their friendships and romantic relationships either predated their admission to the adult home or were developed at the home with fellow residents. (R.H. Dep. 96-97; G.H. Dep. 120-124, 126128, 240; B.J. Dep. 53; D.N. Dep. 15-16, 29, 26.)
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The parties have provided conflicting evidence on the extent to which adult home residents visit their family and friends outside the home. Defendants have provided evidence that some adult home residents visit their family and friends outside the home. (P.B. Dep. 56-57; P.C. Dep. 101; L.G. Dep. 135-136; G.H. Dep. 117-127 (testifying that he has visited a friend outside the home six times in nine years, that he knows of a resident who stayed overnight with his mother who lived in the neighborhood, and that more than fifty of the two hundred residents visit their relatives outside the adult home); L.H. Dep. 54-55; B.J. Dep. 51-52, 72; D.N. Dep. 26 (testifying that he takes four buses each way to visit his uncle once per month); see also Yunger Dep. 22; Davis Dep. 199 (testifying that “quite a few” Oceanview Manor residents visit friends outside the home).) In contrast, Plaintiff has provided evidence that some adult home residents do not visit their family and friends outside the home. For example, R.H. testified that he does not have any family and friends with whom he keeps in touch. (R.H. Dep. 96.) Another resident testified that she has stayed overnight at a friend’s house but has not done so in years. (I.K. Dep. 71.) One resident estimated that the most frequently anyone visited a relative outside the home is twice per month. (G.H. Dep. 117.)
e. Residents’ Employment The parties dispute the extent to which adult home residents have volunteer or paid employment outside the adult home. Defendants have provided testimony that some adult home residents have paid employment or volunteer positions. (See, e.g., G.L. Dep. 78-79 (testifying that he works for an advocacy organization as a community organizer for adult home residents); Burstein Dep. 82-84 (testifying that four or five adult home residents had jobs); A.M. Dep. 144145 (testifying that the “helped out” at a coffee cart as a volunteer for a year); Rosado Dep. 16668 (testifying that a resident of Surf Manor volunteered at the Botanical Garden); S.P. Dep. 16-
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22, 29-31 (testifying that he found a “training job” by asking Bronx Psychiatric Center clinical staff stationed at his adult home, and his responsibilities involved housekeeping assignments inside the adult home and later at the state hospital itself).)
Plaintiff has provided evidence that only a few residents had jobs or volunteer positions, and many of those jobs were short-lived. For example, a service provider testified that she could only recall one resident of Queens Adult Care becoming employed. (Rosado Dep. 166168.) One resident at Parkview testified that only he and two other residents hold jobs. (S.P. Dep. 31-32.) A Seaview resident testified that a social worker had helped him obtain a part-time job as a messenger, but that he was fired after seven weeks. (S.B. Dep. 40-42.) A resident of Surf Manor testified that he had held a job at a newsstand since prior to his admission to the adult home, but that the job occupies about three or four hours per week and no longer involved interacting with customers. (G.H. Dep. 102-103, 105.)
f. Voting As evidence that some residents interact with the people outside the adult homes, Defendants have provided testimony that some adult home residents vote. (See I.K. Dep. 60 (testifying that she votes at a school a block and a half away from the adult home and that other residents are registered to vote); R.H. Dep. 127-128 (testifying that he votes across the street from the adult home).) Plaintiff has provided evidence indicating that other residents vote by absentee ballot or infrequently. (See G.L. 57-58 (testifying that he and other adult home residents generally vote by absentee ballot but that he went to the poll for the presidential election, and that “not many” other residents voted, “maybe” 25%); G.H. Dep. 145-147 (testifying that he is registered to vote but had gone to the polls only once in the nineteen years he had been living in the adult home).)
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g. Continuing Day Treatment Programs for Rehabilitation and Training in Supportive Skills
The parties dispute to what extent the continuing day treatment programs offered in adult homes promote rehabilitation and foster independence.40 Defendants have provided evidence that the programs offered to adult home residents allow the residents to receive rehabilitative services. OMH official Joseph Reilly,41 attested that “[w]hile OMH has taken steps in recent years to improve such programs and strengthen their focus on recovery, opportunities existed for adult home residents to receive rehabilitative services apart from those efforts.” (Reilly Aff. ¶ 32.) The clinical director of an agency that provides continuing day treatment to about 112 adult home residents, attested that her agency’s program provides, among other things, medication education, symptom management, supportive skills training, and social skills training; and that the program assists residents in developing cooking, cleaning, and shopping skills. (Bienstock Aff. ¶ 5.) The social work supervisor at Oceanview testified that some of the residents attended a continuing day treatment program at a YMCA that provided an art group, a spirituality group, and life skills group offering training in money management. (Levine Dep. 162-165.) Another service provider testified that her agency offers continuing day treatment at Mermaid Manor, but could not identify any of the types of groups, other than that “there may be a group for ADLs
40 Mental health providers offer a variety of services to adult home residents with mental illness, including mental health clinics, case management services, and continuing day treatment programs. (Myers Dep. 38-49; Bienstock Aff. ¶ 7.) Continuing day treatment is a type of mental health program licensed by OMH. N.Y. Comp. Codes R. & Regs. tit. 14, § 587.4(c)(4)(ii); Reilly Aff. ¶ 33. Under the regulations, such programs are required to offer the following services, among others: medication education, rehabilitation readiness development, and case management, psychiatric rehabilitation readiness determination and referral. N.Y. Comp. Codes R. & Regs. tit. 14, § 587.10(d). Continuing day treatment programs may – but are not required to – provide supportive skills training, defined as “the development of physical, emotional and intellectual skills needed to cope with mental illness and the performance demands of personal care and community living activities.” Id. §§ 587.10(e)(1); 587.4(c)(29). 41 Mr. Reilly had been responsible for licensing and certifying mental health programs attended by adult home residents in New York City and is currently the Director of OMH’s Hudson River Field Office and OMH’s Adult Homes Project. (Reilly Aff. ¶ 1.)
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[Activities of Daily Living] to train consumers about adult daily living skills. There may be a group on wellness.” (Bear Dep. 24-25.)
Plaintiff has provided evidence that the treatment programs do not consist of meaningful activities. A December 2006 report from the CQC concludes that some day treatment programs serving individuals with mental illness are characterized by group television and movie watching and art “programs,” which may only involve the provision of crayons, markers, and coloring books. (NYS CQC, Continuing Day Treatment Review 1, 4-5, 19 (Dec. 2006) (Murray Decl. Ex. 78).) The CQC report found that less than twenty percent of the participants in the continuing day treatment programs analyzed in the report had a treatment objective for finding work and about fourteen percent had an objective to obtain vocational training. (Id. at 13.)
Plaintiff has provided testimony from adult home residents about the programs. One adult home resident testified that some of the day programs offered in his adult home are “very child like, very, very very low kind of things” and that the activities were “mostly coloring books and pictures . . . little easy sewing things . . . but no intelligent talk groups or anything.” (M.B. Dep. 54-55.) Another resident testified that the adult home she lived in offered no “socialization group” and had only “very minimal” arts and crafts consisting of “crayons, magic markers, [and] paper” provided at set times two or three times per week. (G.L. Dep. 40-41.) A former adult home resident testified that the activities at the adult home, which were only offered on weekdays, “had you coloring, like a little kid; you play Bingo, like a little kid; you play domino, like a little kid; and you play cards, like a little kid.” (A.M. Dep. 34.)
The parties dispute to what extent adult home residents receive training in supportive skills. Defendants have provided evidence that the programs teach such skills. Mr. Reilly attested that “many programs provide opportunities to learn skills which could assist an
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individual in finding employment or volunteer opportunities. Many programs offer seminars or groups on medication management, budgeting, and nutrition and cooking.” (Reilly Aff. ¶ 34 & Exs. J, K, L (brochures from service providers indicating that they offer programs designed to teach skills including cooking, vocational skills, computer training, and budgeting at adult homes and to adult home residents).) The director of an organization providing case management and other services at Queens Adult Care and Brooklyn Manor testified that the organization offers a variety of services for adult home residents, including medication training, cooking skills, shopping, and training in how to use public transportation, and supported employment. (Lockhart Dep. 19-24, 55-57; see also Rosado Dep. 108-12 (describing ADL group for Queens Adult Care residents as teaching “hygiene, eating, sleeping, how to take care of yourself . . . basic 101 living skills,” including cooking and shopping).) A social work supervisor testified that when residents at Oceanview participated in the continuing day treatment program, the social worker and adult home resident would establish personal goals, including money management skills, feeling more comfortable going out into the community, and wanting to get vocational training. (Levine Dep. 166-168.) One adult home resident testified that he and seven other residents participated in a budgeting money group, and he and six residents participated in an ADL group that talked about grooming and hygiene. (S.P. Dep. 27-28.)
Defendants also provided evidence that the programs offer educational and/or vocational training. An adult home administrator testified that the adult home referred its residents to three “prevocational programs” that teach “life skills and job skills, and if they follow through they are actually placed on a job site,” although only three or four residents attended each program at any given time, and she was not familiar with the “specific things” the programs teach. (Burstein Dep. 49-50.) A service provider testified that her agency provided a “computer skills group” for
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adult home residents. (Rosado Dep. 158-160.) Another service provider attested that her agency’s program offers pre-vocational training, work-related skills training, and computer and GED classes, and that there is an on-site thrift shop that is run and staffed by the residents. (Bienstock Aff. ¶ 5.)
Plaintiff has provided evidence that the programs do not teach such skills, pointing to testimony of adult home residents and administrators. For example, Ms. Rosado testified that the computer group she described “really didn’t teach computer skills, put it that way. . . . the way those groups were run needed a lot of improvement. I mean, it would have been nice to meet the needs of the clients who wanted a higher level of learning.” (Rosado Dep. 158-160.) One adult home resident testified that he had been attending a day treatment program for fourteen years where he and seventeen or eighteen other residents “go to groups all day” and providers “try to get us ready for the outside,” but when asked to describe what he does in the ADL group, he testified, “I go to these groups a hundred times, I don’t know what the heck they’re talking about, but I go.” (C.H. Dep. 24-33.) He also testified that the ADL group stopped teaching cooking skills because “[t]hey probably thought it was a waste of time,” that his Budgeting/Money Management group did not teach any skills related to budgeting, and while the skills therapy groups “sometimes” talked about jobs, he could not remember anything that was said about jobs, and the group leaders never talked about applying for jobs, writing resumes, or looking in classified ads. (Id. at 29-33.) One resident testified that while he participated in a budgeting and ADL group, there were no groups that discussed cooking, computers, jobs, or living in alternative places. (S.P. Dep. 27-28.) An associate administrator at an adult home that houses 186 residents did not know of any resident who had obtained a GED since he became associated with the home as a volunteer at age 18. (Mendel Dep. 6-7, 14, 76.) An administrator at Park Inn
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testified that the residents at Oceanview do not take classes or pursue their educations in any way. (Davis Dep. 111.)
DAI’s experts Elizabeth Jones and Dr. Kenneth Duckworth, as well as Raymond Schwartz, a manager of a private mental health agency in New York City who spent time visiting and monitoring adult homes in his previous employment with the New York City Department of Mental Health, observed that there is no emphasis in adult homes on the development or maintenance of basic living skills such as cooking, doing laundry, housekeeping, grocery shopping, and self-medicating. (E. Jones Aff. Ex. A at 5; Duckworth Aff. Ex. A at 9; Duckworth Dep. 119-120, 142-143; Schwartz Dep. 15, 59, 331-332.)
Moreover, several adult home residents have declared that they would like to manage their own daily activities. (See R.A. Decl. ¶¶ 17-24; N.B. Decl. ¶¶ 31-33; B.R. Decl. ¶¶ 22-23; H.S. Decl. ¶¶ 20-22.) DAI’s and Defendants’ experts both testified that the adult homes foster “learned helplessness” among residents. (Duckworth Aff. Ex. A at 9; Geller Dep. 158-59.) For example, adult home residents have testified that they are not allowed to administer their own medications. (A.M. Dep. 95-96; S.P. Dep. 64-65; G.L. Dep. 203-204.)
3. Whether the Adult Homes Enable Interaction with Individuals Without Disabilities to the Fullest Extent Possible
Numerous witnesses, including DAI’s and Defendants’ experts, observed that adult homes share characteristics of psychiatric institutions. (See D. Jones Decl. Ex. A at 9-10; E. Jones Aff. Ex. A at 8; E. Jones Dep. 159-161; Kaufman Aff. Ex. A at 8-9 (describing institutional characteristics of adult homes, including “inflexible schedules for meals and other daily activities; assigned roommates; rigid medication administration procedures and medication dispensing lines”); see also A.M. Dep. 154-155 (testifying that the adult home was no different from the state hospital other than that he could leave the grounds).) In particular, Defendants’
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expert, Alan Kaufman, reported that the adult homes’ “provision . . . of laundry services, food services, housekeeping, and other daily living services – and the resident’s lack of choice in performing these tasks him/herself – is characteristic of mental health institutional settings.” (Kaufman Aff. Ex. A at 8-9.) He concluded that “a large Adult home setting coupled with a high proportion of residents with mental illness can artificially limit the interactions of residents and constrict the diversity of friends and acquaintances.” (Kaufman Aff. Ex. A at 10; see also Schwartz Dep. 297, 298-300; Rosenberg Aff. ¶ 12 (the adult homes “are more like institutions than community settings[, and] they impede the community integration of people with mental illness.”).)
As described above, DAI has provided evidence that most aspects of the residents’ lives take place inside the adult homes (E. Jones Aff. Ex. A at 8), and that the residents are limited in the times they can leave the homes, given rigid schedules for meals, medications, and distribution of personal need allowances (Levine Dep. 250-51; Schwartz Dep. 317-318; O.J. Decl. ¶¶ 17-20; E. Jones Aff. Ex. A at 5-6, 8; D.W. Dep. 75-77). DAI has provided evidence that the homes limit residents’ ability to interact and maintain relationships with non-disabled individuals. (See, e.g., N.B. Decl. ¶¶ 15-16, 19-20; B.R. Decl. ¶¶16-18; E. Jones Aff. Ex. A at 3, 8; D. Jones Decl. Ex. A at 9; Kaufman Aff. Ex. A at 10-11; Schwartz Dep. 297-300.)
Defendants assert that the residents’ degree of interaction with individuals who do not have disabilities is a matter of choice, or at most, a function of the quality and effectiveness of the services offered by particular mental health providers, which are outside of the scope of the enforcement provisions of the ADA and RA. See Olmstead, 527 U.S. at 603 n.14 (“We do not . . . hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with
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disabilities.’”); P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990) (“The [Rehabilitation] Act does not require all handicapped persons to be provided with identical benefits.”). As described above in Section VI.A, State regulations require adult homes to: (1) permit residents to come and go at reasonable hours; and (2) encourage participation in community-based activities and assist residents in maintaining family and community ties. N.Y. Comp. Codes R. & Regs. tit. 18, §§ 487.5(a)(3)(xii), 487.7(g). Defendants assert that while they monitor the compliance of the adult homes with these regulatory provisions, they cannot be held responsible under the ADA for ineffective or low-quality services.
In response, DAI has provided evidence that even if all of the large, impacted adult homes at issue complied with State regulations, they could not overcome the institutional qualities inherent in a large facility. For example, Ms. Jones observed that in adult homes, “[t]he physical environment is institutional” and that the homes “are designed to manage or control large numbers of people . . . by eliminating choice and personal autonomy, establishing inflexible routines for the convenience of staff, restricting access, implementing measures that maximize efficiency, and penalizing residents who break the rules.” (E. Jones Aff. Ex. A at 4.) Defendants’ expert, Mr. Kaufman, similarly observed that “[S]ignificant numbers of residents suffer from serious mental illness . . . . The number of beds in many of the larger Adult Homes, as well as their physical layout, furnishings, and decorations, also give an appearance similar to that of an institutional setting.” (Kaufman Aff. Ex. A at 8.)
Defendants assert that “the size of the home and independence of the residents are irrelevant to opportunities for contact with nondisabled persons.” (Def. Reply Mem. 14.) While Defendants may present evidence supporting this proposition at trial, the court declines, at the summary judgment stage, to foreclose the possibility that a reasonable finder of fact could
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conclude that a large, regimented adult home in which nearly all the residents have mental illness does not enable residents’ interaction with non-disabled individuals to the fullest extent possible, given the evidence regarding adult homes and supported housing. While size may not be a dispositive factor, it is not irrelevant. Nor is the adult home residents’ degree of independence irrelevant. A reasonable finder of fact could conclude that a setting that fosters “learned helplessness,” a term that DAI’s and Defendants’ experts have used in referring to the adult homes, does not enable opportunities with non-disabled persons to the fullest extent possible.
Defendants similarly assert that DAI’s evidence regarding the institutional nature of adult homes, such as the set meal and medication times and medication lines, fails to establish that “these factors affect opportunities for interaction” with non-disabled persons, contending that DAI relies on “conclusory” rather than “empirical” evidence. (Def. Reply Mem. 15 & n.7.) The court need not consider whether DAI has “established” its claims for purposes of Defendants’ Motion for Summary Judgment; DAI’s evidence is sufficient to raise an issue of disputed fact. DAI’s expert Elizabeth Jones based her observations and opinion on visits to twenty-three adult homes and interviews with 179 adult home residents; her testimony is consistent with other evidence DAI has also presented from service providers and adult home residents themselves. While Defendants contend that the institution-like features of adult homes do not significantly limit opportunities for interaction with non-disabled individuals and have provided evidence that some adult residents can and do leave the adult homes, DAI has nonetheless raised an issue of disputed material fact as to whether the adult homes “enable interactions with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A.
In addition to DAI’s evidence concerning the characteristics of adult homes, DAI has also provided evidence from which the finder of fact could conclude that the large, impacted adult
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homes at issue do not provide services in the “most” integrated setting, because it could find that supported housing enables interaction with non-disabled persons to a greater extent than do the adult homes.42 DAI has provided evidence that residents of scattered-site supported housing live in apartment buildings with people who do not have disabilities and often have their own apartments or share with one or two others. (See Schwartz Dep. 188, 198-99; 179-180; Tsemberis Dep. 101-102.) According to DAI’s witnesses, residents of supported housing set their own schedules and leave their apartments to conduct the activities of daily living – including grocery shopping, doing laundry, and seeing doctors. (E. Jones Dep. 231.) Mr. Jones observed that “[s]upported housing is . . . a home, not a residential treatment setting.” (D. Jones Decl. Ex. A at 25; see also Tsemberis Dep. 109 (supported housing is “real housing”); see also Duckworth Aff. 8 (“in contrast to the apartments in the supported housing model, adult homes have the look and feel of large custodial institutions”). As described above, adult home residents have testified that they want to move out of the adult homes and into their own apartments. O.J., for example, declared that “I would like to move because I want to do my own cooking, cleaning, decorating, and shopping, and I want to handle my own money.” (O.J. Decl. ¶ 7.)
The court is skeptical of Defendants’ assertion that adult homes and supported housing are “equally integrated because both are community placements that offer substantially similar opportunities for access to nondisabled persons.” (Def. Reply Mem. 16.) In any event, viewing the evidence in the light most favorable to DAI, Defendants have failed to show an absence of a genuine issue of material fact that would entitle them to summary judgment.
42 Defendants have provided undisputed evidence that State psychiatric centers have explicit rules and policies. For example, a patient’s access to different parts of the facility and its grounds, as well as the community outside the facility, is tightly controlled according to the level of “privileges” he or she has attained. (See Def. 56.1 Statement ¶¶ 58-61.) Even assuming that this evidence demonstrates the existence of a less integrated setting than the adult homes, it is irrelevant to the determination of whether the adult homes are the “most integrated setting.”
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B. Whether DAI’s Constituents Are Qualified for Supported Housing In Olmstead, the Supreme Court held that the State has an obligation to provide services and programs in community-based settings only if the individual with disabilities “meets the ‘essential eligibility requirements’ for habilitation in a community-based program,” referring to the “most integrated setting appropriate” language in the regulations. 527 U.S. at 602 (citing 28 C.F.R. 35.130(d) (emphasis in original).) The parties dispute whether supported housing is “appropriate” for adult home residents, that is, whether DAI’s constituents are qualified to live and receive services in supported housing. Viewing the evidence in the light most favorable to DAI, the court concludes that DAI has provided sufficient evidence from which the finder of fact could conclude that at least some of DAI’s constituents are qualified for supported housing. DAI has provided evidence that large numbers of the residents of the adult homes at issue are qualified to live and receive services in supported housing. DAI’s experts concluded that most, if not all of the adult home residents at issue could live in the community with appropriate supports. (See, e.g., Duckworth Aff. Ex. A at 2; E. Jones Aff. Ex. A at 3, 9; Groves Aff. Ex. A at 4). DAI notes that even Defendants’ expert, Dr. Geller, found that approximately two-thirds of the residents in the group that he assessed were not in the “most appropriate residential setting appropriate for their needs,” and in a separate analysis, more than thirty percent of the residents assessed were qualified to go into supportive housing. (Geller Decl. Ex. B at 6-7; Geller Dep. 196, 210.) In addition, the report of the Adult Care Facilities Workgroup concluded that 6,000 of the 12,000 residents with psychiatric disabilities in adult care facilities “could reside in a more integrated setting.”) (Workgroup Report 30; see also Schimke Dep. 114-117 (testimony of Workgroup member that approximately eighty percent of the adults with mental illness living in adult homes “could benefit” from supported housing and other community-based programs with
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appropriate supports).) State officials have also testified that there are residents of adult homes with mental illness who “could live in more integrated settings” (Wickens Dep. 46), in supported housing or apartments (Tacaronti Dep. 225-226; Reilly Aff. ¶ 25). This evidence is sufficient to preclude a grant of summary judgment to Defendants.
Defendants contend that although DAI has submitted the names of 1,536 adult home residents whom it contends are qualified to move to supported housing, Plaintiff has failed to “establish” that any of them are actually qualified to move. (Def. Mem. 65.) Defendants base their arguments on a critique of the methodologies of DAI’s experts, and further argue that DAI’s constituents fail to meet the “essential eligibility requirements” of supported housing, asserting that residents of supported housing need only “minimal” support, and that the HRA 2000 application is required to move to supported housing. (Id. at 67; Def. Reply Mem. 21.)
The court concludes that these are factual questions that turn on the weight of the evidence and preclude granting summary judgment to Defendants. Regarding the experts, the court accepts the opinions of Plaintiff’s experts as true for purposes of summary judgment, because Plaintiff is the non-moving party.43 Anderson, 477 U.S. at 255; see also Dec. M&O, 2008 WL 5378365 (holding that the opinions of Plaintiff’s experts regarding adult home residents’ qualifications to move are admissible).
Regarding the nature of supported housing, Plaintiff has produced evidence that it is designed to provide varying – and not just “minimal” – levels of support and can thus
43 Defendants also argue that the treatment providers for six of the 1,536 adult home residents whom DAI contends are qualified to move have concluded that those residents are not qualified to move. (Def. Mem. 67-68.) In their memorandum of law, Defendants point to the medical records of the following six residents: M.M., G.R., E.R., P.W., L. B., and J.B. (Def. Mem. 67; Hathaway Decl. Exs. L, M, N, O, P, Q.)
In response, Plaintiff has provided evidence indicating that some of these six residents are qualified to move. In particular, a case manager’s psychosocial assessment of M.M. determined that he was “ready for housing placement” and that he would “do well in supportive housing.” (Psychosocial Summary for M.M. (Murray Decl. Ex. 98).) Plaintiff has also provided evidence that Defendants’ expert examined the records of four of these residents and determined that three – M.M., P.W., and E.R. – were appropriate for supported housing. (Evaluation of Residences for AH Residents (Murray Decl. Exs. 99, 100, 101, 102).)
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accommodate individuals who require different levels of assistance, including those who initially require more intensive services. OMH itself has stated that supported housing is designed to provide “varying” levels of support, including an ACT team with case management services, an intensive form of support. (See OMH January 2007 RFP (Murray Decl. Ex. 81); see also Rosenberg Aff. ¶ 13; Tsemberis Dep. 48, 51 (“We basically offer the services of the [ACT] team to the tenant and the tenant selects among the available array . . . . Whatever the person needs, we are basically there to provide it.”); E. Jones Dep. 35-37 (testifying that the number of contacts an ACT team has with a client each month is “highly variable” and that the team “might see the person every day . . . or they may come and see the person once a month, once a week.”).) Residents may receive help with cooking, shopping, budgeting, medication management, and making appointments as needed, but can do those things themselves if they are able. (Schwartz Dep. 191, 193-196, 288, 289-290; Lasicki Dep. 70.) Services are flexible, and they are usually more intensive at first. (Bear Dep. 108-109; Schwartz Dep. 187-188; Lasicki Dep. 68.) One provider testified that 21% of supported housing residents have case managers to assist them in addition to the case management provided by the supported housing provider. (Lasicki Dep. 99100.) What level of services can be provided in supported housing is an issue of material fact that must be resolved at trial.
Defendants’ argument that DAI’s constituents have not met the “essential eligibility requirements” of supported housing because some of them failed to file HRA 2000 applications is without merit. Under the ADA, a “qualified individual with a disability . . . with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Not every eligibility requirement is an “essential
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eligibility requirement.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001). It does not appear to be so here, given DAI’s evidence that individuals obtain OMH housing without HRA 2000 applications.44 (See, e.g., Tsemberis Dep. 32-36.) In any event, Defendants acknowledge in their memorandum of law that some of DAI’s constituents have filed this application. (Def. Mem. 37).
In sum, Defendants have not met their burden for summary judgment. VIII. FUNDAMENTAL ALTERATION DEFENSE
The ADA’s integration requirement may be excused only where a state demonstrates that compliance would result in a “fundamental alteration” of its services and programs. Olmstead, 527 U.S. at 603. States are required to make “reasonable modifications” to comply with the integration mandate, but they need not take an action that would constitute a “fundamental alteration.” See id. at 604. Defendants have raised the “fundamental alteration” affirmative defense here, which the court will only reach if DAI establishes that its constituents are not in the most integrated setting appropriate to their needs. See Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 323 (D. Conn. 2008) (noting that the fundamental alteration defense is used to rebut a prima facie case of discrimination under the ADA); see also Frederick L. I, 364 F.3d at 493-94 (noting that once plaintiffs have established a prima facie case, the burden shifts to defendants to establish the fundamental alteration defense).
DAI seeks injunctive relief, proposing an order requiring Defendants to “offer supported housing to qualified DAI constituents with mental illness.” (Pl. Opp. 27; Zucker Decl. ¶¶ 1920.) Defendants contend that the relief DAI seeks would constitute a “fundamental alteration” of
44 The court is not convinced that a failure to file a formal application for supported housing bears on whether individuals are qualified to receive services in a “more integrated setting,” that is, whether the setting is “appropriate to their needs.” Indeed, Olmstead simply requires that the individual whose placement is at issue not be “opposed” to receiving services in a more integrated setting. 527 U.S. at 587. The HRA 2000 is a bureaucratic avenue to access housing programs; it is unrelated to the characteristics of the individual seeking services that would make him or her suitable for supported housing.
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its programs and services because: (1) the requested relief would increase the State’s costs; (2) requiring the State to earmark its resources to assess adult home residents and set aside supported housing beds and services for residents of the large, impacted adult homes in New York City would unfairly impact the State’s ability to provide services to others with mental illness; (3) the requested remedy would “alter many of the State’s programs, activities, and policies,” and (4) the State has a comprehensive, effective Olmstead plan to enable people with disabilities who participate in State programs and services to receive those services in the “most integrated setting possible.” (Def. Mem. 71.)
DAI has cross-moved for partial summary judgment, arguing that a comprehensive, effective plan to comply with the ADA’s integration mandate – an “Olmstead plan” – is a necessary component of a fundamental alteration defense, and that Defendants’ asserted Olmstead plan with respect to adult home residents is deficient as a matter of law. Plaintiff argues that Defendants’ plan is deficient, because Defendants have admitted the following: (1) they do not perform any type of ongoing assessments of adult home residents to determine whether they are appropriate for placement in alternative settings; (2) they do not maintain a waiting list for residents of adult homes to move them to more integrated settings; (3) the Most Integrated Settings Coordinating Council, the organization charged by statute with developing a plan for the State to comply with Olmstead, is not developing a plan to move adult home residents out of adult homes; and (4) while the Assessment Project commissioned by DOH collected data about adult home residents, Defendants have not used the data to move adult home residents to more integrated settings. (Pl. Mem. 28.)
The parties have provided voluminous evidence regarding the components and nature of Defendants’ Olmstead plan, as well as the expected costs of the relief DAI seeks. For the
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reasons below, the court concludes that the sufficiency of Defendants’ statewide Olmstead plan as it affects the adult home residents at issue is not a threshold determination that must be made in order for Defendants to assert a fundamental alteration defense. Defendants’ plan cannot be considered in isolation from the impact of the requested relief. The court must undertake a specific, fact-based analysis of Defendants’ planning and actions with respect to the adult home residents at issue along with its consideration of the prospective costs and impact on others with mental disabilities to determine whether the requested relief would be a fundamental alteration of Defendants’ programs and services. After conducting this analysis under the summary judgment standard, the court concludes that disputed material facts persist as to the fundamental alteration defense. The court therefore denies summary judgment on the defense to both parties and sets forth below the disputed factual issues to be resolved at trial.
A. Overview of the Defense The “fundamental alteration” defense is derived from the “reasonable modifications regulation,” which states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). In Olmstead, the plurality described the defense as follows: Sensibly construed, the fundamental-alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Olmstead, 527 U.S. at 604.
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The Supreme Court stated that the standard would be met “if, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Id. at 605-06. Therefore, before ordering relief, a court must consider the range of services that a state already provides to persons with mental disabilities, and it may not merely “order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions.” Id. at 597, 606.
Courts have found that whether the requested relief constitutes a “fundamental alteration” is a “complex[,] fact-intensive” inquiry particularly inappropriate for summary judgment. Martin, 222 F. Supp. 2d at 986. Relying on Olmstead’s language about the “allocation of available resources” and a state’s responsibility for “the care and treatment of a large and diverse population of persons with mental disabilities,” lower courts evaluating the fundamental alteration defense have focused on the costs of the requested relief in light of a state’s obligations to other individuals with mental disabilities. Lower courts have thus required states to provide a “specific factual analysis” in order to demonstrate that the requested relief would constitute a “fundamental alteration.” See, e.g., Fisher, 335 F.3d at 1183 (refusing to accept fundamental alteration defense absent specific evidence that the costs of providing the requested relief would “in fact, compel cutbacks in services to other Medicaid recipients” or be inequitable to others with disabilities); accord Townsend, 328 F.3d at 520.
Olmstead explicitly provides that states must assess and place individuals with disabilities in more integrated settings if it would be appropriate to the needs of the individuals and the individuals do not oppose the placement. 527 U.S. at 605-606. The ADA does not
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require states to create new programs and services that it does not provide to anyone with disabilities. Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999). Where individuals with disabilities seek to receive services in a more integrated setting – and the state already provides services to others with disabilities in that setting – assessing and moving the particular plaintiffs to that setting, in and of itself, is not a “fundamental alteration.”
For example, in Messier v. Southbury Training School, the court rejected the argument that “fulfilling [the defendants’] obligation under the ADA to properly assess whether class members should be placed in the community would necessitate the creation of new programs.” 562 F. Supp. 2d at 345. Specifically, the court noted that:
It is clear from the evidence that, where appropriate, community placement could be achieved through existing programs. Placing class members in the community might result in some additional expense to the state, but, as discussed above, courts have held that minimal additional expense incurred as a result of a defendant’s compliance with the integration mandate does not, alone, support a fundamental alteration defense. Id. (emphasis added); see also Frederick L. v. Dep’t of Public Welfare, 157 F. Supp. 2d 509, 540 (E.D. Pa. 2001) (“Olmstead does not allow the state to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.”). Similarly, in Townsend v. Quasim, the Ninth Circuit concluded that “[P]olicy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided.” 328 F.3d at 519. In particular, it noted that: Olmstead makes that clear, for precisely that alteration was at issue in Olmstead, and Olmstead did not regard the transfer of services to a community setting, without more, as a fundamental alteration. Indeed, such a broad reading of fundamental alteration regulation would render the protection against isolation of the disabled substanceless.
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Id. Therefore, a transfer of services to existing community settings is not, by itself, a “fundamental alteration.”
B. An Olmstead Plan as a Component of a the Defense The Second Circuit has not addressed, and the parties dispute, whether an Olmstead plan is a necessary component of a fundamental alteration defense. Olmstead did not address whether a plan was necessary to assert the defense, and the Court was not asked, nor did it decide, what type of proof would suffice to establish the defense. Rather, it proposed a “comprehensive, effectively working plan” for placement in “less restrictive settings” and a “waiting list that moved at a reasonable pace” as an example of how a state could establish the defense. 527 U.S. at 605-06. DAI urges the court to follow the approach of the Third Circuit, the only circuit that has explicitly addressed whether compliance with Olmstead requires a plan. In the Third Circuit, “a comprehensive working [Olmstead] plan is a necessary component of a successful ‘fundamental alteration’ defense.” Frederick L. v. Dep’t of Pub. Welfare (Frederick L. II), 422 F.3d 151, 157 (3d Cir. 2005); see also Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005). DAI argues that Defendants’ Olmstead plan, as it affects adult home residents, is insufficient as a matter of law, and thus Defendants cannot assert a fundamental alteration defense. (Pl. Mem. 25-26.) In response, Defendants contend that Olmstead does not require a plan, pointing to Olmstead’s language that a plan is an example of how a state can establish a fundamental alteration defense. 527 U.S. at 605-06. They urge the court to read the defense more flexibly, as the Ninth Circuit did when it upheld California’s deinstitutionalization plan. The Ninth Circuit interpreted Olmstead’s language that states should be given “leeway” to “maintain a range of
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facilities and to administer services with an even hand,” 527 U.S. at 605, to suggest that “courts should be sympathetic to fundamental alteration defenses.” ARC v. Braddock, 427 F.3d 615, 620 (9th Cir. 2005). In ARC v. Braddock, the Ninth Circuit noted that “our approach has been consistent with the Supreme Court’s instructions: So long as states are genuinely and effectively in the process of deinstitutionalizing disabled persons ‘with an even hand,’ we will not interfere.” Id.; see also Sanchez v. Johnson, 416 F.3d 1051, 1067-68 (9th Cir. 2005) (“[W]here there is evidence that a State has in place a comprehensive deinstitutionalization scheme, which, in light of existing budgetary constraints and the competing demands of other services that the State provides . . . is ‘effectively working’ . . . the courts will not tinker with that scheme.”) (citations omitted).
A district court in Ohio has explicitly noted that “the fundamental alteration analysis entails far more than the comprehensive plan and reasonably paced waiting list example the Olmstead Court provided.”45 Martin, 222 F. Supp. 2d at 985. It noted that the example in Olmstead was “not actually an illustration of a fundamental alteration at all. Rather, it is a way the State may show that it has already provided a reasonable accommodation. If the state makes this showing, then there is simply no need to further modify the program.” Id. The court explained:
As a practical matter, if the parties dispute whether a comprehensive plan exists, and whether the list moves at a reasonable pace, a defendant would likely present evidence of the comprehensive plan and the pace of the list along with other evidence to support the fundamental alteration defense. In such a case, the Court would then weigh all of the evidence of the state’s efforts along with the other factors in reaching its decision. Id. at n.42.
45 The court in Martin denied the plaintiffs’ summary judgment motion on the basis that disputed issues of material fact existed as to the ADA claim, but “examine[d] briefly the fundamental alteration defense to afford the parties some guidance as they proceed to trial.” 222 F. Supp. 2d at 984-85.
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The court in Martin noted that the defendants “appear to concede that the State has no plan or waiting lists that move at a reasonable pace,” and stated that “[a]lthough this is not a good thing for defendants, it does not necessarily mean that defendants cannot prevail.” Id. at 985-86. The court cited Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001), which “thoroughly examined” evidence on the fundamental alteration defense during a thirty-two day bench trial, as an illustration of the “complexity” of the fundamental alteration defense. Id. at 986. It noted that the court in Williams “considered a vast array of evidence” on the fundamental alteration defense and weighed the state’s plan and the progress made in moving individuals from institutions to the community together with evidence concerning the cost of the proposed modification to determine whether the requested relief would be a fundamental alteration. Id. at 985 n.42 and 986, citing Williams, 164 F. Supp. 2d at 630-38. The court in Martin thus noted that at trial, the parties should be prepared to present “evidence addressing all of these facets of the fundamental alteration defense.” Id. at 986.
To evaluate Plaintiff’s contention that a plan is a necessary component of a fundamental alteration defense, the court looks closely at the Third Circuit cases that so hold. In Frederick L., the district court had entered judgment for the state, finding that the integration patients requested was unavailable at the time because it would require a “fundamental alteration” of the state’s mental health program in light of limited resources and its obligations to other segments of the population with mental disabilities. Frederick L. II, 422 F.3d at 154, citing 217 F. Supp. 2d 581, 594 (E.D. Pa. 2002). The plaintiffs appealed and the Third Circuit remanded for “further evaluation of whether there was sufficient evidence to justify acceptance of Pennsylvania’s ‘fundamental alteration’ defense.” Id., citing Frederick L. I, 364 F.3d at 501. The Third Circuit “based this determination largely upon [defendants’] failure to heed the Supreme Court’s
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admonition in Olmstead that a state may avoid liability” by providing a plan as described in Olmstead. Id., citing Frederick L. I., 364 F.3d at 494 (internal citations and quotation marks omitted) (emphasis added). It thus directed the district court, on remand, to instruct the state “to devise a plan which would demonstrate a commitment to community placement ‘in a manner for which it can be held accountable by the courts.’” Id., citing Frederick L. I, 364 F.3d at 500.
On remand, the district court again entered judgment for the state, but on appeal, the Third Circuit again remanded, holding that the defendants’ plan was insufficient. While it accepted as a factual matter that the requested relief would “constrain the state’s ability to satisfy the needs of other institutionalized patients,” thus accepting that the requested relief risked fundamentally altering the state’s programs, it held nonetheless that the state “may not avail itself of the ‘fundamental alteration’ defense to relieve its obligation to deinstitutionalize eligible patients without establishing a plan that adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which [the state] may be held accountable.”46 Id. at 157.
Similarly, in Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Department of Public Welfare, the Third Circuit explained that Olmstead “allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and RA.” 402 F.3d 374, 381 (3d Cir. 2005) (emphasis added). That case concerned residents of a psychiatric transitional facility who claimed they were “systematically denied” participation in programs that would enable them to live in more integrated settings. Id. at 378. The district court granted summary judgment to the defendant
46 In evaluating the defendants’ proposed plan, the Third Circuit noted that “[g]eneral assurances” and expressions of “good faith intentions” are insufficient. Frederick L. II, 422 F.3d at 158. It held that, “at a bare minimum,” an Olmstead plan must set forth the following: (1) the time frame or target date for placement in a more integrated setting; (2) the approximate number of patients to be placed each time period; (3) the eligibility for placement; and (4) a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community. Id. at 160.
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agency solely on the fundamental alteration defense, without determining whether the plaintiffs were in the most integrated setting appropriate to their needs. Pa. Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 243 F. Supp. 2d 184 (M.D. Pa. 2003). The Third Circuit vacated and remanded. It found that “[a]dmissions made by [defendant] during the course of litigation foreclose the genuine contention that it has made a commitment to . . . compliance with the ADA and RA.” 402 F.3d at 383. In particular, the defendant agency had admitted that it did not require regional offices to plan for or develop community-based services for the residents of the facility at issue. The court noted that “[a]ny interpretation of the fundamental alteration defense that would shield a state from liability in a particular case without requiring a commitment generally to comply with the integration mandate would lead to [a] bizarre result.” Id. at 381 (emphasis added). Otherwise, the defense would “swallow the integration mandate whole,” as “[a]ny program that runs afoul of the integration mandate would be fundamentally altered if brought into compliance.” Id.
After review of the relevant authorities, the court concludes that Olmstead does not require a plan to comply with the integration mandate as a prerequisite to considering the other elements of a fundamental alteration defense. A state’s efforts to comply with the integration mandate with respect to the population at issue are nonetheless an important consideration in determining the extent to which the requested relief would be a permissible “reasonable modification” or an impermissible “fundamental alteration.” See Martin, 222 F. Supp. 2d at 98586 & n.42. The court reads the Third Circuit cases to stand for the proposition that if a state does not make a genuine attempt to comply with the integration mandate in the first instance, it cannot establish that compliance would be a fundamental alteration of its programs and services, excusing its violation of the integration mandate. Given that courts often analyze the
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fundamental alteration defense in terms of cost, the court agrees with approach of the Third Circuit cases that a state must make efforts to comply with the integration mandate in order to show that specific relief requested would be too costly. Whether the relief would be a fundamental alteration in light of the state’s available resources and obligation to others with disabilities, however, cannot be determined independently of an analysis of the state’s existing efforts to comply with the integration mandate. See Martin, 222 F. Supp. 2d at 985-986 & n.42 (noting that the lack of a plan “does not necessarily mean that defendants cannot prevail” and that it would consider evidence addressing all the facets of the fundamental alteration defense at trial.).
The court will not evaluate Defendants’ Olmstead plan independently of the evidence concerning other factors relevant to the fundamental alteration defense. In light of this legal determination, Plaintiff’s Motion seeking to strike the fundamental alteration defense solely on the alleged inadequacy of Defendants’ Olmstead plan must be denied.
C. Evidence Concerning Defendants’ Olmstead Plan Defendants’ Olmstead plan is relevant to the determination of whether the requested relief would be a fundamental alteration of Defendants’ programs and services. While Defendants’ position is that no Olmstead plan is necessary for adult home residents with mental illness because they are already “in the community,” they nonetheless assert that they maintain an Olmstead plan – consisting of a variety of activities, programs, and services – which is effective for all individuals with mental illness, including adult home residents. It is undisputed that Defendants have no single document constituting their “Olmstead plan,” but the court has reviewed all the components of Defendants’ asserted plan, as set forth by the evidence cited in the parties’ 56.1 Statements and memoranda of law.
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According to Defendants, their Olmstead plan consists generally of (1) activities, programs, and services intended to assist persons with mental disabilities to live and receive services in the community instead of an institution; (2) OMH’s planning, program implementation and oversight of the mental health system; and (3) DOH’s inspection and oversight of adult homes. (See generally Myers Aff. ¶¶ 97-149 (describing components of Olmstead plan); Simons Aff. ¶ 26-107 (describing Olmstead plan for adult home residents and OMH Statewide Comprehensive Plans).) Additionally, OMH officials have attested that much of the Olmstead planning is reflected in OMH’s Statewide Comprehensive Plans for Mental Health Services. (Simons Aff. ¶ 31 (“Essentially all the Statewide Comprehensive Plans produced for OMH since 2001 . . . reflect defendants’ Olmstead plan or system for individuals with mental illness living in adult homes.”); id. ¶¶ 31-38; Myers Aff. ¶103.)
Defendants’ witnesses have attested that Defendants’ Olmstead plan also includes the State’s formal efforts to ensure compliance with Olmstead, such as the statutorily created Most Integrated Setting Coordinating Council (“MISCC”). (Wollner Aff. ¶¶ 60-65 & Ex. BB (MISCC Report).) The State legislature found that to ensure New York’s compliance with the ADA and Olmstead, “it is incumbent upon New York State to develop and implement a plan to reasonably accommodate the desire of people of all ages with disabilities to avoid institutionalization and be appropriately placed in the most integrated setting possible.” N.Y. Exec. L. § 700. It created the MISCC to “develop and oversee the implementation of a comprehensive statewide plan for providing services to individuals of all ages with disabilities in the most integrated setting” and provided that the plan “shall be completed within one year” of the statute’s effective date. Id. § 703.
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Defendants point to specific activities, including the downsizing and closure of State-
operated psychiatric centers and the reinvestment of funds related to those centers toward
community-based services (Affidavit of Lewis Campbell (“Campbell Aff.”) ¶ 16 (Docket Entry
#147); Simons Aff. ¶¶ 80-84; Myers Aff. ¶¶ 32, 152; Affidavit of Martha Schaefer Hayes
(“Schaefer Hayes Aff.”) ¶¶ 68-71 (Docket Entry #159)) and the development of community-
based programs available to all individuals with mental illness, such as Housing Programs, case
management, clubhouses, and ACT teams (Myers Aff. ¶¶ 68-70, 105; Simons Aff. ¶¶ 39-40, 66).
OMH officials also attested that their Olmstead plan includes the provision of 29,050 existing
units of Housing for Persons with Mental Illness and the commitment of funds to develop an
additional 9,800 state-subsidized supported housing beds. (Myers Aff. ¶¶ 68-69.)
Defendants’ witnesses also assert that their Olmstead plan includes particular initiatives
related to adult homes, such as the Assessment Project conducted by NYPH, the Adult Care
Facilities Workgroup, OMH’s adult home case management and peer support programs, DOH’s EnAbLE program,47 the Do Not Refer list,48 enhanced inspections of adult homes,49 and OMH’s
47 EnAble stands for “Enhancing Abilities and Life Program,” in which DOH awards grants to adult homes to fund a variety of programs designed to maximize residents’ abilities and improve their quality of life, including training on independent living skills. (Wollner Aff. ¶¶ 36-38.) 48 This list precludes referral to adult homes that have failed to meet applicable standards. (Reilly Aff. ¶¶ 10-12.) 49 DOH has taken a number of actions to strengthen and improve its inspections and enforcement activities relating to the adult homes at issue in this case. (Def 56.1 Statement ¶ 27.) For example, it has added 20 staff members to conduct inspections of adult homes in New York City. (Id.) The timeliness of inspections has improved in recent years. (Id. ¶ 28.) Inspections of the homes at issue in this case have cited a number of violations related to residents’ rights and residents’ ability to participate in their community and to learn independent living skills. (Id. ¶ 30.) Homes have been cited for failure to follow through on a resident’s expressed desire to move, to have a sufficient program of activities, to allow residents to self-administer their own medications, and to ensure that the resident council met on a regular basis and that the issues raised by the council were addressed. (Id.) Several adult homes have closed or have had their operating certificates suspended as a result of DOH’s enforcement actions. (Id. ¶¶ 32-34; ¶¶ Hart Aff. 90-98.)
Defendants also created the Inter-Agency Committee on Adult Homes in 2001, a collaboration between OMH, DOH, and the Commission on Quality of Care and Advocacy for Persons with Disabilities (“CQC”) that provides for the sharing of information and joint inspection of adult homes. (Reilly Aff. ¶¶ 10-12 & Ex. Reilly-A.)
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designation of adult home residents as a target population for Housing Programs.50 (Reilly Aff. ¶¶ 19-31; Wollner Aff. ¶¶ 27-31; Myers Aff. ¶¶ 128-149.)
Plaintiff has provided evidence about various components of Defendants’ Olmstead plan, including admissions from Defendants, concerning whether Defendants are acting to identify and/or move adult home residents who could receive services in alternative settings. Plaintiff has also provided evidence disputing whether and to what extent adult home residents have benefited from Defendants’ creation of additional amounts of Housing for Persons with Mental Illness and the designation of adult home residents as a target population for supported housing. This evidence is discussed below.
1. Relevant Components of the Plan As a preliminary matter, the court recognizes that many components of the Olmstead plan are evidence of Defendants’ commitment to the integration mandate in general, and are indeed important elements of Defendants’ statewide and system-wide Olmstead plan. These include the closure and/or downsizing of State psychiatric centers and the reinvestment of those funds into community programs, and the development of community-based programs such as case management, Housing Programs, and clubhouses that are available to all individuals with mental illness, and the development of 29,050 units of OMH Housing for Persons with Mental Illness and the allocation of funds for the development of 9,750 additional units. (See Campbell Aff. ¶ 16; Simons Aff. ¶¶ 39-40, 66, 80-84; Myers Aff. ¶¶ 32, 68-70, 105, 152; Schaefer Hayes Aff. ¶¶ 68-71.) These components are relevant here only to the extent that they are evidence of
50 Defendants’ witnesses also assert that the Olmstead plan also includes OMH’s work to advance accountability, encourage best practices, improve effectiveness and quality of care, as well OMH’s “basic and applied research in the mental health field” and efforts to promote general public health as it relates to mental health, wellness, suicide prevention, and the forensic system. (Simons Aff. ¶¶ 15, 36-37, 85-88, 97; Myers Aff. ¶¶ 30, 40.)
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Defendants’ general commitment to deinstitutionalization and the development of community
programs and services.
Other components of Defendants’ plan address the conditions and services provided in
adult homes. These components include the EnAble program, the Do Not Refer List, and
increased enforcement and oversight of the adult homes through licensing and “enhanced
inspections.” (Wollner Aff. ¶¶ 10-12; Reilly Aff. ¶¶ 10-12, 19-31; Myers Aff. ¶¶ 128-149.)
These elements are relevant to the extent that they enable Defendants to identify and/or assist
qualified and interested adult home residents in moving to alternative settings.
The court will focus its analysis on aspects of Defendants’ Olmstead planning that relate
to identifying and/or moving adult home residents to alternative settings. These components
include the activities of the Most Integrated Settings Coordinating Council (“MISCC”); the
Adult Care Facilities Workgroup; the Assessment Project and OMH’s case management
program; discharge planning for psychiatric center patients who are discharged to adult homes;
increased amounts of OMH Housing for Persons with Mental Illness; and the addition of adult
home residents as a target population for supported housing. In addition, the court also finds
relevant the parties’ evidence on Defendants’ absence of a waiting list for OMH Housing for
Persons with Mental Illness and the number of adult home residents who have actually moved to alternative settings.51 The court describes the parties’ evidence below.
51 In support of its argument that Defendants do not have a comprehensive Olmstead plan to identify and move adult home residents who are not in the most integrated setting appropriate to their needs, Plaintiff also relies on the testimony of State officials testifying on Defendants’ behalf pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure that they are not aware of “specific” Olmstead plans with regard to adult home residents. (Pl. Mem. 28.) For example, DAI has provided testimony from OMH by and through Senior Deputy Commissioner Robert Myers that OMH is not aware of “specific” Olmstead planning with respect to adult home residents, but does a variety of planning and activities to meet the “spirit” of Olmstead. (OMH Dep. by and through Robert W. Myers 39-41 (Raish Decl. Ex. 19).) While the parties are free to present evidence on this topic at trial as it relates to particular elements of Defendants’ plan, the relevant legal inquiry is not whether particular officials – even those designated to testify on behalf of Defendants – are aware of an overall, system-wide plan for adult home residents, but what Defendants actually plan and do with respect to identifying and/or moving adult home residents who are not in the most integrated setting appropriate to their needs.
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a. Most Integrated Settings Coordinating Council The facts about the activities of the Most Integrated Settings Coordinating Council (“MISCC”) with respect to adult home residents are not in dispute. As discussed above, the MISCC is obligated by statute to “develop and oversee the implementation of a comprehensive statewide plan for providing services to individuals of all ages with disabilities in the most integrated setting.” N.Y. Exec. L. § 703. In their response to Plaintiff’s Requests for Admission, Defendants explicitly admitted that “the MISCC is not developing a plan to move residents of adult homes, and deny that there is an obligation to do so.”52 (Def. Obj. & Responses to Pl. First Set of Requests for Admissions (“RFAs”) at No. 10 (Raish Decl. Ex. 11).) In addition, Defendants have not provided any evidence contradicting Plaintiff’s evidence that the MISCC excluded adult home residents from its data collection. (Pl. 56.1 Statement ¶ 33; see also Wollner Aff. ¶ 65 (“DOH does not consider adult home residents as being ‘institutionalized’ and therefore did not include them in providing data on this subject to the MISCC.”).) Nor have Defendants provided any evidence contradicting Plaintiff’s evidence that “MISCC has not done anything to address individuals who reside in adult homes.”53 (Pl. 56.1 Statement ¶ 31.) Furthermore, Defendants have provided no evidence to dispute the testimony of their designated Rule 30(b)(6) witness Kathryn Kuhmerker, who testified on their behalf that “I don’t believe there’s been anything specific that the MISCC has done to specifically address in any way, shape
52 A matter admitted under Rule 36 “is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Fed. R. Civ. P. 36(b). No such motion has been made here. 53 Defendants cite the entire MISCC’s final report as their response to paragraph 31 of Plaintiff’s 56.1 Statement. That report not only fails to address adult home residents, but contains a statement from six members of the MISCC dated November 20, 2006, noting that:
[W]e feel that it is our obligation to point out that this report does not quite meet the requirements of the law that established the MISCC. Furthermore, we also feel that this report falls short of the hopes and expectations of the thousands of New Yorkers with disabilities who are currently in need of services being provided in a more integrated setting. (Wollner Aff. Ex. Wollner-BB at EXEC 0005092.)
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or form individuals who happen to reside in adult homes,” other than that there were “occasional discussions” regarding adult home residents. (Kuhmerker Dep. 30, 31, 53-54.)
b. Adult Care Facilities Workgroup There are disputed issues of fact as to the extent to which Defendants have considered and/or implemented the recommendations of the Adult Care Facilities Workgroup (“Workgroup”) to assess adult home residents and move those who are qualified to alternative settings. As noted above, the Workgroup was convened in 2002 by then-Governor Pataki to evaluate the strengths and weaknesses of the State’s adult care facility model and to develop recommendations for new approaches, including “Recommendations for Improving Quality of Life and Services for Current Adult Home Residents, Recommendations for Future Restructuring of Housing and Services for Adult Home Residents, and Potential Fiscal Impact of the Recommendations.” (Workgroup Report ii-iii (Raish Decl. Ex. 57).) The Workgroup issued a report in October 2002 with numerous recommendations. (Id.) These recommendations included, among other things: (1) assessment of adult home residents; and (2) the development of housing for adult home residents who are able and interested in living elsewhere. (Id. at iiivi.) In particular, the Workgroup Report proposed a timeline for moving at least 6,000 adult home residents with psychiatric disabilities from adult homes into supported housing by March 2009. (Id. 32 tbl. 1-3.) Plaintiff has provided evidence that Defendants do not have any formal mechanisms for implementing the recommendations of the Workgroup (Simons Dep. 162), and that the recommendation and timetable were never implemented (Schimke Dep. 179-183). In response, Defendants have provided evidence that they have considered and implemented certain recommendations from the Workgroup, relying on the affidavit of DOH official David Wollner,
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who was “active in shaping the Workgroup’s mission and agenda” when he worked in the Governor’s office. (See Wollner Aff. ¶¶ 23-59.) Mr. Wollner attested that State officials in DOH, OMH, and the Governor’s office reviewed the recommendations, and implemented the recommendation for assessments by contracting with New York Presbyterian Hospital for the Assessment Project. (Id. ¶¶ 26, 27-31; see also id. ¶¶ 32-45 (describing DOH efforts to improve quality of life and services in adult homes based on Workgroup’s recommendations).)
It is undisputed, however, that Defendants never implemented the Workgroup’s recommendation and timetable for moving 6,000 adult home residents to alternative settings. Mr. Wollner attested that “State officials ultimately determined not to implement [that] recommendation, for a number of reasons.” (Id. ¶ 46.) He stated that first, there are many people with mental illness who need access to OMH-funded housing, and that “it is inappropriate to give all adult home residents a priority right for such housing,” and second, New York has taken actions “to increase adult home residents’ knowledge of and access to OMH funded and licensed housing,” such as the case management and peer support program. (Id. ¶ 47.)
c. Assessment of Adult Home Residents The parties dispute whether and to what extent Defendants are acting to identify adult home residents who are qualified and unopposed to receiving services in alternative settings. Defendants have admitted that OMH does not perform any ongoing assessment of adult home residents to determine whether they could be served in alternative settings. (RFAs, at No. 2 (Raish Decl. Ex. 11); see Reilly Dep. 144-45; Tacaronti Dep. 202-203.) Defendants also admit that DOH does not collect comprehensive data on adult home residents, as it does for nursing home residents. 54 Defendants assert, however, that while they do not assess or collect data on
54 It is undisputed that DOH collects comprehensive data on nursing home residents’ “impairments, needs and progress,” and that Defendants do not collect data in a similar manner on adult home residents. (Pl. 56.1 Statement
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adult home residents, the private case managers determine whether adult home residents are able
to and/or interested in moving to alternative housing. Defendants have provided evidence that
the OMH case management program incorporates data from the Assessment Project and helps
identify residents who could be served in alternative settings. A description of the parties’
evidence is below.
First, the parties dispute whether Defendants have used data from the Assessment Project,
which Defendants include as a component of their Olmstead plan, to determine whether adult
home residents are in the most integrated setting appropriate to their needs. Defendants have
admitted that they have not used the Assessment Project data “to place Adult Home residents in
more integrated settings.” (RFAs at No. 15 (Raish Decl. Ex. 11).) Plaintiff has also provided
evidence that OMH does not use the Assessment Project data in its strategic planning (Simons
Dep. 147-151), and while DOH was initially planning to use the Assessment Project data (Liebman Dep. 106-107), it has not and does not plan to do so (Wickens Dep. 95).55
In contrast, Defendants have provided evidence that OMH has used the Assessment
Project data to identify adult home residents who might be more appropriately placed in
alternative settings through its case management program. According to the contract between
DOH and New York Presbyterian Hospital (“NYPH”) for the Assessment Project, one of the
¶ 51.) DOH official Lisa Wickens described the process by which DOH assesses the ability and desire of nursing home residents to live elsewhere, including a “comprehensive assessment of the individual, and what needs to be changed in their plan of care”; she testified that “we don’t have that mechanism, we don’t have that system in place” for adult home residents. (Wickens Dep. 20-24, 15-18.)
Defendants assert that DOH collects information about adult home residents in “other ways,” such as inspections. (Hart Aff. ¶¶ 16-46.) In response, Plaintiff has provided testimony from DOH, by and through Catherine Lennon pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, that DOH does not “do [housing] placements”; if an adult home resident expressed to DOH an interest in moving to alternative housing, DOH would not refer that person to a housing placement agency and would instead refer him or her back to his or her social worker or case manager. (Lennon Dep. 198-99.) 55 Plaintiff has also provided evidence that DOH official Kelly Hansen, who replaced Glenn Liebman as DOH’s liaison with the Assessment Project, told Dr. Bruce, the Director of the Assessment Project, not to publish the data or do any further analysis due to this litigation. (Bruce Dep. 54.)
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tasks NYPH agreed to undertake for the State was to identify a set of indicators for “scheduled
reassessments for residents with potential for relocating to higher or lower levels of care.”
(Grant Contract at DOH 012807 (Raish Decl. Ex. 59); see also Bruce Dep. 38-39 (discussing that
term of the contract).) Mr. Reilly attested that while Assessment Project data was insufficient to
make a “final determination” regarding an “individual’s suitability for alternative housing . . .
OMH analyzed selected portions of this data to identify residents who expressed an interest in
alternative housing and who it appeared may have the functional abilities to live in such housing, and identified 375 such individuals.”56 (Reilly Aff. ¶ 31.) He attested that beginning in mid-
2006, case managers and treatment providers were instructed to follow up with individual adult
home residents and had already obtained consent forms from 134 residents to do so. (Reilly Aff.
¶ 31.)
Defendants have provided evidence that while they do not assess adult home residents,
individual case managers do, and OMH reviews this data. Mr. Reilly testified that he is not
aware of OMH assembling or collecting that information, but that “OMH’s expectation” would
be that the case manager or mental health provider working with a particular adult home resident
would “work with that individual in finding them an appropriate referral,” and OMH reviews
56 The parties dispute whether the Assessment Project data was intended to be used to assess the ability and interest of adult home residents in living in alterative housing. Defendants rely on Dr. Bruce’s testimony that the assessments were not intended to make a “final determination” concerning housing placements. (Bruce Dep. 55-56, 132, 201-03.) They also rely on the affidavit of DOH official David Wollner, which states that the “goal of the assessments was to gather information concerning the demographic, clinical, and functional characteristics of the adult home population, identify individuals who might benefit from a further evaluation for a different (higher or lower) level of care, and contribute to individual care planning by, for example, identifying unmet health needs.” (Wollner Aff. ¶ 28.)
In contrast, Plaintiff has provided testimony from Dr. Bruce and DOH’s liaison, as well as the planning documents for the Assessment Project, indicating that the intended uses of the data include assessing the ability of individuals to live in more integrated settings and determining whether there were people who wanted to live in other settings. (Bruce Dep. 66-67; Liebman Dep. 23, 25 (“[P]art of the assessment process was to review to see if there were people who wanted to live in other settings.”); see also Analytic Plan for Adult Home Assessments (Murray Decl. Ex. 118) (“Question 1. ‘How many adult home residents with mental illness would want to and be capable of living independently in the community with reasonable supports?’”).)
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whether this is happening in its review of case management records, including review during recertification visits and licensing visits.57 (Reilly Dep. 145, 176, 179-180; Reilly Aff. ¶¶ 28, 31.) Mr. Reilly attested that OMH has monthly meetings with supervisors during which it is emphasized that staff should include the resident’s interest in alternative housing in developing the individual plan of care. (Reilly Aff. ¶ 28.) A project assistant for OMH’s Adult Home Team testified that when he reviews case management charts, he has an “expectation that every primary therapist” brings up the topic of housing, and “that the possibilities have been explored.” (Abel Dep. 102.)
It is undisputed that OMH does not provide information about alternative housing options to adult home residents “on a routine basis.” (Pl. 56.1 Statement ¶ 68.) Mr. Reilly attested, however, that OMH’s case managers assist residents in moving to alternative settings. (Reilly Aff. ¶¶ 68, 29-31.) In particular, Mr. Reilly attested that case managers have taken steps to assist residents who express interest in alternative housing, that OMH has received data from case management agencies, and that the OMH and the Adult Home Team have held meetings with supervisors to review case management records. (Id. ¶¶ 28-29.)
In sum, it is undisputed that the Defendant agencies do not assess adult home residents, collect comprehensive information as they do for nursing home residents, or use the Assessment Project data to move adult home residents; nor do they provide information about alternative housing options to adult home residents on a routine basis. Defendants have provided evidence, however, that case managers identify and assist adult home residents who are capable and interested in moving.
57 Defendants also provided testimony that system as a whole works with individuals who want to move to alternative housing. OMH Senior Deputy Commissioner Robert Myers, whom Defendants designated as one of the officials most knowledgeable about Olmstead planning, testified that if individual expresses a goal, such as moving to alternative housing, there is an “expectation [that] system of care would work with” him or her, and while the state does not do analysis confirming whether the expectation is being met, he “believes” that it is, based on the oversight of the system. (Myers Dep. 22-24.)
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d. Discharge Planning for Psychiatric Center Patients Discharged to Adult Homes
Defendants also assert that their Olmstead plan includes the development of discharge planning standards and discharge activities for patients of psychiatric centers and inpatient psychiatric units licensed by OMH. (Def. Letter to DAI, May 5, 2006 (Raish Decl. Ex. 22).) That component is relevant here to the extent that Defendants or a particular psychiatric facility are made aware in the event that a patient is discharged to an adult home that is inappropriate to his or her needs.
The parties dispute whether OMH or a psychiatric facility is made aware in such a situation. Both parties rely on Rule 30(b)(6) deposition testimony of OMH by and through Lewis Campbell, the Executive Director for the Capitol District Psychiatric Center at OMH (and former Deputy Director for the Division of State Psychiatric Center Management and Director of Adult Services). (Am. Notice of Deposition Pursuant to Rule 30(b)(6) (Raish Decl. Ex. 25).) Plaintiff relies on Mr. Campbell’s testimony that there is no “centralized mechanism” for tracking whether an individual was discharged from a psychiatric facility to an appropriate setting. (Campbell Dep. 49.)
Defendants rely on Mr. Campbell’s testimony that there are other mechanisms for determining whether someone was discharged to the appropriate setting. First, Mr. Campbell testified that there is a “clinical follow-up determination” in which the psychiatric facility is required to contact the provider within thirty days to assure that the individual has made contact with the service provider. (Id. at 49-50, 116-29.) He testified that the clinical team working with the individual is responsible for dealing with the individual’s service needs and residential options. (Campbell Dep. 49, 116-129; see also id. at 50 (“My belief is that when we arrange for services, we’re arranging for those services. The providers of those services are licensed
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professionals and we expect them to do their job.”).) Mr. Campbell also testified that another mechanism is OMH’s licensing, which is “not tracking on an individual basis but tracking on an operational basis the outcomes of the services provided.” (Id. at 50.) Finally, he testified that an additional mechanism for evaluating the effectiveness of discharge policies in psychiatric facilities is the “governing body process,” in which OMH “review[s] the management indicators and where facilities were outliers within those management indicators.” (See id. at 50-52.)
e. Amount of Supported Housing Available to Adult Home Residents
It is undisputed that that the State has devoted increasingly large amounts of funding to supported housing, but the parties dispute the extent to which funding increases for supported housing have benefited adult home residents. It is undisputed that from 1995 to 2007, OMHfunded Housing for Persons with Mental Illness expanded from 18,940 units to more than 29,050 units. (Newman Aff. ¶ 11.) In the 2003-2004 budget, OMH received $65 million of capital funds to develop 600 beds; in the 2004-2005 budget, OMH received $75 million to develop additional beds. (Def. 56.1 Statement ¶ 53.)
Defendants’ witnesses assert that there is a plan “to develop as much OMH community housing as possible.” (Newman Dep. 180-81.) Mr. Newman, the Director of the Housing Services Unit in OMH’s Division of Adult Services, testified that “[w]ithin the resources available to the Office of Mental Health, we do whatever we can to spend those resources to develop as much housing as we can.” (Id.) OMH official Keith Simons similarly attested that OMH is “committed to maximizing access to Housing Program opportunities” for individuals moving from adult homes, and maximizing access to community-based services available to individuals with mental illness. (Simons Aff. ¶¶ 71-72.) Defendants have submitted a chart
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describing the types of OMH community housing programs, the number of units in operation, and the number of units in development. (Hathaway Decl. Ex. Hathaway-U.)
Plaintiff has provided the following evidence that Defendants have not created a substantial amount of supported housing for adult home residents. When OMH develops supported housing, it identifies a target population for the housing as a “priority” that will receive a preference for new housing being constructed. (Newman Dep. 65-66; OMH RFP, Supported Housing for Adults with Serious and Persistent Mental Illness (Oct. 2000) (Murray Decl. Ex. 128); OMH RFP, SRO Housing for Adults with Serious and Persistent Mental Illness 3 (Sept. 2003) (Murray Decl. Ex. 55); OMH RFP, Supported Housing for Adults with Serious and Persistent Mental Illness 1 (May 2005) (Murray Decl. Ex. 56).) Those not designated as a target population are effectively excluded from the beds. (Schwartz Dep. 103-104; Rosenthal Dep. 102-107; Declaration of Geoffrey Lieberman (“Lieberman Decl.”) ¶ 4 (Docket Entry #212).) Adult home residents have not, historically, been a target group for supported housing. (Supported Housing Implementation Guidelines 5 (Murray Decl. Ex. 80); Newman Dep. 80; OMH RFP, Supported Housing for Adults with Serious and Persistent Mental Illness 2-3 (Murray Decl. Ex. 128).) In 2005, OMH designated adult home residents as a target group for supported housing, along with five other groups, but only for new supported housing it was in the process of developing. (OMH RFP, Supported Housing for Adults with Serious and Persistent Mental Illness 1 (Murray Decl. Ex. 56).)58
Plaintiff has provided evidence that the designation of adult home residents as a target group has had virtually no effect on adult home residents’ ability to gain access to other housing,
58 In addition to that RFP, which developed 318 supported housing beds total, the legislature also funded sixty supported housing beds specifically for adult home residents. (Id.; OMH January 2007 RFP 3 (Murray Decl. Ex. 81).)
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because “[o]ther target groups were given higher priority than adult home residents, and thus received all but a few of the supported housing beds made available by OMH.” (Lieberman Decl. ¶ 6; Lasicki Dep. 172.) In particular, Plaintiff has provided evidence that 14,105 supported housing beds are not available to adult home residents because the State entered into agreements with New York City in 1990, 1999, and 2006 to create housing specifically targeted for other priority groups, such as homeless individuals with mental illness, people with HIV/AIDS, and people with substance abuse disorder who do not have mental illness. (Mem. from Chris Madan to Joe Reilly Re: Background Info on NY/NY and OMH Residential Resources 1-2 (June 14, 2002) (Murray Decl. Ex. 82); Handout of NY/NYC Criterion, The New York/New York Agreement to House Homeless Mentally Ill Individuals (Murray Decl. Ex. 83); Newman Aff. Ex. C, at 5 (New York/New York III Supportive Housing Agreement).) According to Plaintiff’s witnesses, very few former adult home residents reside in supported housing. (Rosenthal Dep. 102-107; Lieberman Decl. ¶ 8.)
f. Waiting Lists It is undisputed that Defendants do not maintain a waiting list for adult home residents to move to OMH Housing for Persons with Mental Illness, nor do they maintain a comprehensive waiting list for privately operated mental health housing. (Pl. 56.1 Statement ¶¶ 42, 67.) In addition, Plaintiff has provided testimony from OMH’s Director of Housing Services, Mr. Newman, that he is not aware of any activities OMH has undertaken to ensure that waiting lists for community based services are created. (Newman Dep. 178-79.) In response, Defendants have provided evidence that a list of housing program vacancies is maintained by a private agency, the Center for Community Services (“CUCS”), which serves as OMH’s Single Point of Access (“SPOA”) provider for housing programs in New York City.
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(Myers Aff. ¶¶ 89-90.) As noted above, SPOA refers to a program in which all applications for OMH Housing for Persons with Mental Illness are sent to a centralized source rather than to every housing provider. (Simons Aff. ¶¶ 75-78.) Mr. Myers attested that CUCS maintains and publishes online a publicly available vacancy list for Housing for Persons with Mental Illness in New York City, including supported housing slots, and that this list is “available to and regularly consulted by treating professionals and others.” (Myers Aff. ¶ 90.)
In sum, while Defendants have provided evidence that CUCS maintains a vacancy list for Housing Programs, it is undisputed that Defendants do not maintain any waiting list for OMH Housing Programs, let alone one for adult home residents.
g. Movement of Adult Home Residents to Alternative Settings The parties dispute whether and to what extent adult home residents have actually moved out of adult homes. Defendants have provided evidence that some adult home residents have moved to alternative settings, including OMH-funded and/or licensed housing, private residences, and family members’ homes. (Reilly Aff. ¶ 29; A.M. Dep. 6-7; Hathaway Aff. Ex. Hathaway-R.) In particular, Mr. Reilly attested that approximately 1,600 residents enrolled in the OMH-funded case management program have been interviewed concerning an interest in alternative housing; 306 of them expressed an interest in alternative housing; and 145 were assessed by their private case managers as being capable of managing an alternative level of housing. (Reilly Aff. ¶ 29.) He attested that 17 residents were placed with family, seven in senior housing, 40 in independent housing, 43 into other adult homes, and five into OMH-funded housing programs. (Id.) He also attested that, based on “information . . . received from the case management agencies,” 194 residents in addition to those residents in the case management program were placed from April 2005 to September 2006 in OMH-funded housing, including
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eighty-five individuals who lived in an adult home in Monroe County that converted to an OMHlicensed CR/SRO. (Id.) He attested that from April 2002 to December 2006, 708 individuals throughout New York State moved from adult homes to OMH-funded and/or OMH-licensed mental health housing. (Id.) Defendants have provided evidence that from January 1, 2000 to January 26, 2006, more than 800 adult home residents have submitted housing applications to HRA (Hathaway Aff. Ex. R), but have provided no evidence concerning the results of these applications.
Plaintiff has provided undisputed evidence that from 2001 to 2005, a total of nineteen adult home residents moved to OMH supported housing in New York City. (Pl. 56.1 Statement ¶ 71.) Plaintiff has also provided evidence from OMH that the majority of adult home residents who moved to OMH housing from 2001-2006 were in counties outside of New York City. (OMH Response to FOIA Request Re: Movement of Adult Home to OMH Adult Residential Programs since 2002 (Raish Decl. Ex. 32).)
In sum, the court will consider the parties’ evidence regarding relevant components of Defendants’ Olmstead plan at trial, in conjunction with evidence about the fiscal impact of the requested relief as well as its potential impact on others with mental disabilities, discussed below. As a matter of law, the evidence concerning Defendants’ Olmstead plan, by itself, is not enough to grant partial summary judgment to Plaintiff. The court turns to the other components of the fundamental alteration defense below.
D. Fiscal Impact of the Requested Relief As discussed above, Defendants seek summary judgment on their fundamental alteration defense in part on the basis of the costs of the requested relief, contending that the costs would render it a “fundamental alteration.” As the Supreme Court in Olmstead instructed, in
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considering a fundamental alteration defense, courts “tak[e] into account the resources available to the state . . . .” 527 U.S. at 597. The parties have provided different calculations of the fiscal impact on the State of the relief Plaintiff seeks – assessing and moving qualified adult home residents to supported housing. This section discusses what is included as the “resources available to the State,” provides a brief summary of the costs and funding sources for adult homes and supported housing, and describes the parties’ disputed evidence regarding the fiscal impact. Given the disputed facts about the costs of relief, Defendants have not established that the requested relief would cost the State significantly more, let alone demonstrated as a matter of law that the relief would have such an impact on the State’s available resources that it would be a “fundamental alteration.” In any event, as noted above, the court will consider all of the elements of the fundamental alteration defense together at trial.
1. Resources Available to the State The parties dispute what portion of the State budget should be considered the “resources available to the state” contemplated in Olmstead – the portion of the enacted state’s budget allocated to OMH, as Defendants contend; or the “mental health budget,” which includes the budgets of OMH, DOH (which includes the Medicaid program), and other State expenditures on individuals with mental illness, as Plaintiff contends.59 (Def. Mem. 71-72; Pl. Opp. 72-73.) The
59 Plaintiff has provided evidence that Defendants consider the budgets of both OMH and DOH when they conduct fiscal analyses of their services for individuals with mental illness. For example, to increase funding for mental health services, OMH has developed initiatives to maximize federal reimbursements under the Medicaid program for services to people with mental illness that involves shifting state dollars from OMH’s budget to DOH’s budget, using the state dollars to generate additional federal dollars. (See, e.g., Schaefer-Hayes Aff. ¶¶ 72-78 (describing OMH’s “Medicaid maximization” efforts in which “OMH analyzes the programs it funds to see if Medicaid can be brought in to support services provided, thus replacing some State Aid dollars with a Federal contribution” and noting that the ACT program is now half-funded by Medicaid dollars.); Schaefer Hayes Dep. 76; OMH 2003-2004 Exec. Budget 123 (Murray Decl. Ex. 105); OMH 2002-2003 Exec. Budget 145 (Murray Decl. Ex. 106); OMH Aid to Localities 2003-04 Enacted Budget 4 (Murray Decl. Ex. 107).)
Plaintiff has provided testimony from Defendants’ witnesses that the DOH budget includes, among other things, the Medicaid program, which is a source of funding for services provided to OMH clients. (Tenenini Dep.
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parties also dispute whether the cost analysis should include projected savings to the state. (Def. Mem. 73; Pl. Opp. 72.)
Following Olmstead, courts have limited the scope of the “available resources” inquiry to the state’s “mental health budget.” The Supreme Court in Olmstead referred to the “mental health budget” six times but did not articulate what that budget included. Frederick L. I, 364 F.3d at 496 n.6 (citing Olmstead, 527 U.S. at 595, 596, 597, 603). Lower courts interpreting Olmstead have considered the “mental health budget” as more than just the budget of a state’s mental health department. In Bryson v. Stephen, No. 99-CV-558 (SM), 2006 WL 2805238 (D.N.H. Sept. 29, 2006), the court noted that the “‘available resources’ test properly focuses on the State’s mental health budget, not the overall [Department of Health and Human Services] budget or the State’s general budget.” Id. at *7. That court considered Medicaid costs as part of the relevant budget. Id. at *7-8. Similarly, in Bruggeman v. Blagojevich, 219 F.R.D. 430 (N.D. Ill. 2004), the court noted that “Olmstead and its progeny limit the scope of available resources to the state’s mental health budget,” but it permitted an inquiry into the state’s efforts to obtain Medicaid funding for the services at issue. Id. at 434-35. Moreover, in Frederick L. I, the Third Circuit considered the relevant budget to be the Department of Public Welfare’s spending that had a “nexus” to the “care and treatment of the mentally ill,” which excluded the department’s “myriad non-mental health responsibilities,” such as food stamps. Frederick L. I, 364 F.3d at 496 n.6. This court concludes that the relevant budget is the “mental health budget,” which includes any money the State receives, allots for spending, and/or spends on mental health services and programs.
40-41 (testifying both that “the state’s share of Medicaid comes out of the OMH budget” and also that Medicaid costs were “included in DOH’s budget”); Schaefer Hayes Dep. 98.)
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On whether to consider projected savings that community placement might entail, the court notes that Olmstead instructed the trial court on remand to conduct an assessment of the state’s actual savings from implementing the relief plaintiffs sought, rather than simply comparing the cost of community placement with the cost of institutional care. See 527 U.S. at 604-607. It is thus proper to do so here.
2. Evidence on the Costs of Potential Relief The parties do not dispute that moving adult home residents to scattered-site supported housing apartments would require the development of additional supported housing units. (Def. 56.1 Statement ¶ 88.) They dispute whether moving residents out of adult homes and into supported housing would ultimately increase the State’s costs. This is a factual question that must be resolved at trial.
a. Sources of Funding and Types of Costs Incurred To understand the parties’ evidence regarding the fiscal impact of the requested relief, the court briefly describes the sources of funding for and types of costs incurred by adult homes and supported housing. In general, residents of adult homes and supported housing use their Supplemental Security Income (“SSI”), an income supplement for people with disabilities, to pay for the cost of care. The State does not pay operators of the adult homes directly, but it provides a per-resident stipend to supported housing providers. In addition, for both adult homes and supported housing, the State pays a share of residents’ Supplemental Security Income (“SSI”) benefits and Medicaid costs.60
60 While SSI is a federal program administered by the Social Security Administration, the State contributes a share of each individual’s SSI benefit. (Affidavit of R. Gregory Kipper (“Kipper Aff.”) Ex. Kipper-A at 3-4 (Docket Entry #153).) The State has five categories of living arrangements, and the amount of the State’s contribution to the SSI benefit varies with each category. (Id.)
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In adult homes, residents use most of their SSI benefit to pay for room, board, three meals per day, housekeeping, personal care, and supervision by staff, keeping a small portion of the benefit as a “Personal Needs Allowance.” (Def. 56.1 Statement ¶¶ 75, 78.) For adult home residents in New York City, the State paid $7,692 per person per year in 2007 as its share of the SSI benefits. (Office of Temporary and Disability Assistance, SSI Benefit Levels Chart effective Jan. 1, 2007 (“2007 SSI Benefits Chart”) (Murray Decl. Ex. 91); see also (Affidavit of R. Gregory Kipper (“Kipper Aff.”) Ex. Kipper-A at 3-5 (Docket Entry #153) (describing levels of State SSI contribution.)
In contrast, scattered-site supported housing is funded by direct funding from OMH and through the individual’s income, which often consists only of SSI. (Def. 56.1 Statement ¶ 80.) Individuals with mental illness in supported housing receive the SSI Living Alone rate and are required to pay 30% of this payment toward housing costs. (Id. ¶ 81.) The 2007 annual Living Alone rate is $8,520, of which the State’s share is $1,044. (2007 SSI Benefits Chart.) In addition to the State’s share of SSI for supported housing residents, it is undisputed that OMH provides a set stipend of $14,197 per resident per year to supported housing providers in New York City. (Myers Aff. ¶ 190.)
Plaintiff’s and Defendants’ experts agree that the State has paid higher Medicaid costs for individuals with mental illness in adult homes than it has paid for individuals with mental illness residing in supported housing. (D. Jones. Decl. Ex. A at 21; Kipper Aff. Ex. A at 8.) For Medicaid-eligible individuals, the State pays for half the costs of Medicaid-funded services to residents of adult homes and supported housing, including primary care, psychologists, and case management.61 (Kipper Aff. Ex. A at 7-8.) Plaintiff’s and Defendants’ experts both cite DOH
61 According to Mr. Kipper, Medicaid is administered by the State but is funded jointly by the State and the Federal government in equal shares; that is, for every dollar in Medicaid costs, the State pays $.50 and the Federal
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statistics indicating that in the 2004-2005 fiscal year, the total Medicaid costs – including the State and Federal shares – were $36,169 per Medicaid-eligible individual in the adult homes at issue, and $20,370 per Medicaid-eligible individual with mental illness in supported housing. (See D. Jones. Decl. Ex. A at 21; Kipper Aff. Ex. A at 8; 2004-2005 Medicaid Expenditures by Impacted Adult Home (Murray Decl. Ex. 84); 2004-2005 Medicaid Expenditures by Diagnosis (Murray Decl. Ex. 85).) The parties dispute whether and to what extent moving adult home residents to supported housing would reduce the amount the State spends on Medicaid costs. (See Kipper Aff. Ex. A at 8; D. Jones Decl. Ex. A at 21.)
b. Costs of the Requested Relief Defendants’ witnesses asserted that if the State were required to move thousands of adult home residents to scattered-site supported housing, the State’s costs would increase. (See generally Schaefer Hayes Aff. ¶¶ 87-124 (describing overview of program costs and costs of expected relief).) They have attested that the cost to the State per person is higher for Housing with Persons with Mental Illness – including supported housing – than for adult homes. (Kipper Aff. Ex. Kipper-A; Schaefer Hayes Aff. ¶¶ 88-100; Myers Aff. ¶¶ 190-206; Newman Aff. ¶¶ 8589.) In particular, Defendants have provided testimony from State officials that the increased cost to the State would be $13,500 per person if only OMH’s budget is considered – because OMH provides a stipend of approximately that amount for each person in supported housing – and $8,244 if the State’s contribution to SSI is considered – because the State pays a different amount of SSI benefits for those in adult homes and those in supported housing. (Schaefer
government pays $.50. (Kipper Aff. Ex. A at 7). The court notes that Mr. Tenenini testified that “a Medicaid dollar . . . is fifty cents federal, generally speaking, twenty-five cents state, and twenty-five cents local,” but in New York, there is a cap on the local share above which all expenses are the responsibility of the State, so the State’s share here is fifty cents. (Tenenini Dep. 40-41.)
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Hayes Aff. ¶ 85; Myers Aff. ¶¶ 190-200.) According to Defendants’ expert, Mr. Kipper, this would be an increase of 231% in cost to the state. (Ex. Kipper-A.)
In contrast, Plaintiff has provided evidence that moving qualified adult home residents to supported housing would only minimally increase per-person costs to the State, contending that Defendants’ analysis overlooks the higher Medicaid costs in adult homes. Taking into account the higher Medicaid costs incurred in adult homes, Plaintiff has computed the annual cost for an individual with mental illness residing in an adult home as $23,442 (consisting of $15,750 in Medicaid costs and $7,692 in SSI), and the cost of an individual residing in supported housing as $23,475 (consisting of $14,197 from an OMH stipend paid to providers, $8,234 in Medicaid costs, and $1,044 in SSI).62 That is, supported housing would add a cost of approximately $33 per person.
Plaintiff’s expert, Dennis Jones, based this determination on the higher Medicaid costs for individuals with mental illness who reside in adult homes than for those in supported housing. As noted above, DOH data indicates that the State has paid significantly more in Medicaid costs for Medicaid-eligible individuals with mental illness in the adult homes at issue than it does for supported housing. (See D. Jones. Decl. Ex. A at 21; Kipper Aff. Ex. A at 8; 2004-2005 Medicaid Expenditures by Impacted Adult Home (Murray Decl. Ex. 84); 2004-2005 Medicaid Expenditures by Diagnosis (Murray Decl. Ex. 85).) Because the State pays for half of the Medicaid costs, the DOH data indicates that the State spent approximately $7,900 more in 2004-2005 on Medicaid for each eligible adult home resident than it did for each eligible
62 See Myers Aff. ¶ 190 (describing $14,197 stipend OMH provides to supported housing providers in NYC per resident per year); Murray Decl. Ex. 84 at DOH 0131663-031664 (listing Medicaid costs); NYC Medicaid Expenditure Report for CY 2004 at DOH 0131683-0131684 (Murray Decl. Ex. 129) (listing Medicaid costs); 2007 SSI Benefits Chart.
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supported housing resident.63 (D. Jones Decl. Ex. A at 21.) Plaintiff’s expert opined that
Defendants’ analysis of the projected costs is flawed because Defendants did not properly take
into account what the State would save on Medicaid if adult home residents were moved to
supported housing. (Id.; D. Jones Decl. Ex. B at 3-5; D. Jones Dep. 290-293; Murray Decl. Exs.
84, 85; see also Kipper Dep. 26, 27, 33-34 (testifying that he did not evaluate the impact of
Medicaid savings).)
Plaintiff has provided evidence that in addition to the costs of Medicaid and SSI, the State
incurs additional costs for adult home residents that it does not incur for residents of supported
housing. For example, from 2003 to 2007, the State spent approximately $10 million on a
variety of adult home programs, including the Quality Incentive Payment Program, the ACF
Infrastructure Initiative, the case management initiative, and EnAbLE. (D. Jones Decl. Ex. B at
1-3; Wollner Dep. 102; Wollner Aff. 36-38, 66-67 & Exs. Wollner H-P.)
Finally, Plaintiff asserts two additional defects in Defendants’ analysis. First, Plaintiff
has provided evidence that Defendants’ analysis is insufficient to provide an actual estimate of
what it would cost to serve qualified adult home residents in supported housing. (Schaefer
Hayes Dep. 188 (Chief Financial Officer of OMH testifying that she has not performed any
studies or analysis about the impact that the creation of 2,000 supported housing beds would
have on OMH’s budget); Tenenini Dep. 51-52 (testifying that he did not know whether anyone at
63 According to Mr. Jones, higher Medicaid costs are common in highly institutional environments, such as adult homes, which encourage dependency on institutional care. (D. Jones Decl. B at 5.) Plaintiff has provided reports from the Commission on Quality of Care and Advocacy for Persons with Disabilities (“CQC”) indicating widespread fraud and overuse of Medicaid services in adult homes. (NYS CQC, Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services (“Layering Report”) (Murray Decl. Ex. 79) (showing Medicaid billings of more than $27,000 per resident per year in the 11 largest impacted adult homes in New York City in 2001); NY CQC, Exploiting Not-For-Profit Care in an Adult Home (Murray Decl. Ex. 86); NYS CQC, A Review of Assisted Living Programs in “Impacted” Adult Homes; see also D. Jones Decl. Ex. B, at 4-5 (discussing the Layering Report).) According to Mr. Jones, “the difference in Medicaid utilization between adult homes and supported housing does not appear to be linked to the severity of individuals’ disabilities” because “[t]he State’s data show higher Medicaid spending in adult homes whether one looks at only the most seriously mentally ill, the most medically involved, or those in both groups.” (D. Jones Decl. Ex. B at 3; Murray Decl. Exs. 84-85; Asimakopolous Dep. 75-76.)
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DOH was evaluating the financial impact of the relief sought); see D. Jones Decl. Ex. A at 21 (“New York has not done any detailed fiscal analysis on the relief sought.”).)64 Second, Plaintiff contends that Defendants’ analysis incorrectly assumes that adult home beds currently occupied by adults with mental illness would be filled if DAI’s constituents moved to supported housing, resulting in increased overall costs. Plaintiff has provided evidence that the State could limit admissions to adult homes, as has been done in similar “deinstitutionalization” contexts (D. Jones Dep. 15, 318), or terminate operating certificates from adult homes if doing so would be “in the public interest,” which would “conserve resources.” N.Y. Comp. Codes R. & Regs. tit. 18, § 485.5(m)(1)(i). Plaintiff also notes that even if the vacated beds were filled, whether the State’s overall costs would increase depends on the prior placements of those filling the beds, on which Defendants have provided no evidence. (Pl. Opp. 71.)
In sum, the evidence regarding the costs of the requested relief is an issue of disputed fact to be resolved at trial.
E. Potential Effect of the Requested Relief on Others with Mental Disabilities In Olmstead, the Supreme Court instructs courts evaluating a fundamental alteration defense to consider whether “immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” 527 U.S. at 604. Defendants’ witnesses attested
64 DAI’s expert Mr. Jones opined that to estimate the actual costs, the state should, at a minimum: (1) identify adult home residents with the ability and interest (with meaningful choice) to live in an integrated setting, (2) estimate the service needs of the population, e.g. through sampling methodology, (3) evaluate the relative costs for this target population, by comparing current costs of the adult home to the costs of a community-integrated setting for similar individuals, (4) analyze the results, and (5) formulate an implementation plan and cost out the plan.
(D. Jones Decl. Ex. A at 22.) Defendants’ expert, Mr. Kipper, testified that if he were to consider what the likely change in Medicaid expenditures, if any, would result if all of the individuals in the adult homes at issue were to move to alternative settings, he would want to know the clinical and service needs of the population. (Kipper Dep. 24-25.) Then, he would determine the cost of the Medicaid services that were necessary to provide the required care in the alternative setting and look at the difference in cost of those service needs. (Id.)
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that other individuals with disabilities would be adversely affected by the requested relief because the entirety of OMH’s budget is allocated to supporting existing programs, and thus OMH could not conduct assessments and develop thousands of additional supported housing beds for the adult home residents at issue. (Myers Aff. ¶¶ 213-23; Simons Aff. ¶¶ 11, 23-24, 65 & Exs. A-F; Schaefer Hayes Aff. ¶¶ 123-138.) They attested that a directive to move the adult home residents at issue to supported housing would force OMH to cut funding for existing services and programs. (Myers Aff. ¶¶ 219-22; Simons Aff. ¶¶ 11, 23-24, 65 & Ex. A-F; Schaefer Hayes Aff. ¶¶ 130-137.) In particular, they assert that other adults with mental illness who want and are eligible for supported housing, including the other five target populations designated by OMH, would have to wait – unfairly – behind adult home residents for supported housing beds. (Myers Aff. ¶¶ 217-218; Schaefer Hayes Aff. ¶¶ 131-132, 137.)
In response, Plaintiff has provided evidence, discussed above, that serving adult home residents in supported housing would result in savings, and thus would not require cuts in programs or prejudice others who seek supported housing. (D. Jones Decl. Ex. A at 21-22; id. at Ex. B at 1-6.) Plaintiff requests that Defendants use funds currently spent on adult home residents to serve adult home residents in supported housing. Plaintiff has provided evidence that redirecting spending, known as “money follows the person,” is a nationally accepted approach to promoting community integration that has been used in New York and other states to facilitate movement from segregated to more integrated settings. (See D. Jones Dep. 261-262; Money Follows the Person Federal Rebalancing Demonstration Grant Summary, Mar. 2007 (Murray Decl. Ex. 109).) OMH’s Chief Financial Officer Martha Schaefer Hayes testified about OMH’s community reinvestment program, noting that OMH has reinvested money from stateoperated facilities into community services since the mid-1990s by budgeting census reductions
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in state-operated facilities and increasing funding for community services. (Schaefer Hayes Dep. 89-92.)
DAI has provided further evidence that New York is capable of developing sufficient capacity in its existing supported housing program to serve adult home residents. (D. Jones Decl. Ex. A at 31; Rosenberg Aff. ¶ 11; Tsemberis Dep. 238 (testifying that his agency could create 1,000 supported housing beds over the next five years if the State asked); Schwartz Dep. 225-226; Lasicki Dep. 203.) Plaintiff has also provided evidence that New York City supported housing providers have responded in large numbers to OMH’s requsts for proposals (“RFPs”) for supported housing: when Defendants issued an RFP in 2005 for 318 supported housing beds, forty-four providers responded with plans to develop 1,500 beds. (OMH RFP, Supported Housing for Adults with Serious and Persistent Mental Illness 3 (Murray Decl. Ex. 56.) In addition, Plaintiff has provided evidence that OMH received seven proposals in response to its 2007 RFP for 60 supported housing beds for adult home residents, but it only accepted three proposals. (Murray Decl. Exs. 110, 111, 112, 113, 114, 115, 116.)
F. Whether the Requested Relief Would Alter the State’s Programs and Activities
Defendants argue that the requested relief would alter its program and activities. First, they argue that assessing and placing the adult home residents in supported housing would “create a new program that does not exist, along with an obligation to staff and fund it.” (Def. Mem. 76.) Second, they assert that DAI seeks to change the nature of supported housing, because supported housing provides only minimal supports. (Id.) Third, they contend that demanding that DAI’s constituents be placed in supported housing creates a new “entitlement” to be placed in a particular setting. (Id.) Finally, they argue that setting aside supported housing beds for adult home residents would be contrary to OMH policies. (Id.)
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First, as discussed above in Section VIII.A, the argument that assessing and transferring DAI’s constituents would be a “new program,” as Defendants’ witness attested (see, e.g., Myers Aff. ¶¶ 238-242), is insufficient to establish a fundamental alteration defense where, as here, placement in existing programs is sought.
Second, the court will reach the fundamental alteration defense only if Plaintiff proves that the adult home residents at issue are qualified for supported housing. If DAI’s constituents are qualified for supported housing, the requested relief would not “change” the services provided.
Third, contrary to Defendants’ assertions, DAI does not seek an “entitlement” for its constituents to receive a particular type of housing. (Myers Aff. ¶¶ 245-50; Simons Aff. ¶ 65.) Rather, should the finder of fact conclude that DAI’s constituents are not in the most integrated settings appropriate to their needs, DAI seeks an order requiring its constituents, who already receive housing services from Defendants, to receive those services in the most integrated setting appropriate to their needs.
Fourth, regarding whether a “set-aside” would be contrary to OMH policies, as Defendants’ witnesses have attested (Myers Aff. ¶¶ 229-37; Simons Aff. ¶¶ 73-74; Schaefer Hayes Aff. ¶¶ 33-35, 125-28, 131-32), Plaintiff has provided evidence that New York regularly sets aside beds for designated populations, including adult home residents. For example, as described above, OMH designated 9,000 new community housing beds for homeless individuals with mental illness. (See D. Jones Dep. 258, 260; Lasicki Dep. 85.) In addition, OMH has designated “priority populations” for supported housing beds developed since 1990. (See, e.g., Newman Dep. 55-56.) In January 2007, OMH issued a request for proposals for the development of sixty supported housing beds specifically for adult home residents. (Murray
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Decl. Ex. 81.) That Defendants have already issued a set-aside of supported housing beds for adult home residents and other target populations is evidence that doing so is not a “fundamental alteration” of their programs and services. See Messier, 562 F. Supp. 2d at 344-45 (noting the defendant agency’s evidence of its growing community placement program and observing that defendant’s “fundamental alteration claim in this case is entirely inconsistent with its public commitment to further enhancing a system of community placement programming . . . .”).
In short, having reviewed the parties’ evidence on all aspects of the fundamental alteration defense, the court does not grant summary judgment to either party. At trial, if DAI establishes that the adult home residents at issue are not in the most integrated settings appropriate to their needs, the court will hear evidence on the fundamental alteration defense. This evidence will include components of Defendants’ Olmstead plan that relate to identifying and moving adult home residents who are not in the most integrated setting appropriate to their needs, as well as the fiscal impact of the requested relief and its potential impact on others with mental disabilities. The court will consider all of this evidence together in determining whether the requested relief would be a “reasonable modification” or “fundamental alteration” of Defendants’ programs and services. IX. The Governor as Defendant
Pursuant to Rule 21 of the Federal Rules of Civil Procedure, which provides that the court has discretion to drop a party from an action “on such terms as are just,” Defendants seek to drop the Governor as a party to this litigation. (See Def. Mem. 82.) Defendants contend that the four other named Defendants – the Commissioners of OMH and DOH and the agencies themselves – are able to provide DAI with full relief and that the Governor’s presence confers no further advantage on DAI. (See id. at 83.) In response, DAI contends that in addition to the
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Governor’s role as the chief executive of New York, which includes ensuring that the State operates its mental health service systems in compliance with the ADA, the record demonstrates that the Governor is actively involved in addressing adult home issues and plays a key role in shaping the State’s mental health policies. 65 (See Pl. Opp. 79-80.) DAI further argues that because the Governor has access to resources unavailable to the other Defendants, such as the Governor’s capital budget, dropping him has the potential to limit the relief available to DAI should it prevail at trial. (Id. at 80-81.)
According to DOH official Mr. Wollner, who previously worked in the Governor’s office, the Governor’s office is involved the following activities: issuing requests for proposals relating to adult home residents; proposing legislation and other initiatives relating to adult homes; determining funding for the OMH’s case management and peer support services; working with the interagency Task Force on Housing for People with Special Needs to increase access to existing housing and support service programs; initiating the Adult Care Facilities Workgroup (and reviewing, modifying, and implementing the Workgroup’s recommendations); and directing the Governor’s capital budget to various housing initiatives relating to special populations.66 (Wollner Aff. ¶ 2; Wollner Dep. 32-33, 88, 145-146, 49-50.) The Governor also appoints members of and receives reports from the Most Integrated Setting Coordinating Council (“MISCC”). N.Y. Exec. L. §§ 702(1); 703(4).
65 Courts have found that where a governor is responsible for directing, supervising, and controlling the executive departments of state government, “there appears to be no dispute that [he is an] appropriate defendant[] with regard to the ADA.” Cellucci, 52 F. Supp. 2d at 243. 66 Given the court’s conclusion in Section VIII.D.1 that the “mental health budget” includes money the state receives, allots for spending, and/or spends on mental health services and programs, if the Governor’s expenditure of his capital budget on housing initiatives relating to “special populations” includes those with mental disabilities, such funds should be included as the “available resources of the State” for purposes of the fundamental alteration defense.
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Defendants rely on Committee for Public Education and Religious Liberty v. Rockefeller,

322 F. Supp. 678 (S.D.N.Y. 1971), in which the court dropped the Governor as a party because

full relief could be afforded by the other named defendants. Id. at 686. In that case, however,

the other defendants were charged by the legislature with “sole responsibility” for administration

of the statute at issue and were not appointees of the governor or subject to his authority. Id.

Here, the Commissioners of DOH and OMH are appointees of the Governor, and New York’s

Mental Hygiene Law provides that the Mental Health Commissioner “serve[s] at the pleasure of

the Governor.” N.Y. Pub. Health L. § 204; N.Y. Mental Hyg. L. § 5.03.

The court declines to drop the Governor as a party in the interests of justice. Defendants

have identified no prejudice if the Governor remains a party, other than that dropping the

Governor would “conserve the limited resources of his important office.” (Def. Mem. 83.)

X. CONCLUSION

The parties’ Motions for Summary Judgment are DENIED. The parties are directed to

contact chambers no later than February 25, 2009 to arrange for a pre-trial conference to set a

date for trial.

SO ORDERED.

Dated: Brooklyn, New York February 19, 2009

_/s/ Nicholas G. Garaufis___ NICHOLAS G. GARAUFIS United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X
DISABILITY ADVOCATES, INC.,
Plaintiff,
and

REMEDIAL ORDER AND JUDGMENT
03-CV-3209

THE UNITED STATES OF AMERICA,

-against-

Plaintiff-Intervenor

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants. -------------------------------------------------------------------X NICHOLAS G. GARAUFIS, United States District Judge.
WHEREAS, Plaintiff Disability Advocates, Inc. (“DAI”) filed a Complaint on behalf of
its constituents (“DAI’s Constituents”) – individuals with mental illness residing in, or at risk of
entry into, adult homes in New York City with more than 120 beds and in which 25 residents or
25% of the resident population (whichever is fewer) have a mental illness (the “Adult Homes”) –
seeking declaratory and injunctive relief under Title II of the Americans with Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation Act (“RA”); and

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WHEREAS, Defendants the Governor of the State of New York, the Commissioner of Health of the State of New York, and the Commissioner of Mental Health of the State of New York, all in their official capacities, and the New York State Department of Health (“DOH”) and the New York State Office of Mental Health (“OMH”), (collectively, “Defendants” or “the State”), answered the Complaint; and
WHEREAS, Plaintiff and Defendants filed motions for summary judgment, which were denied by the court upon consideration of a factual record of more than 13,000 pages and approximately 675 exhibits; and
WHEREAS, the court presided over an 18-day bench trial during which 29 witnesses testified, more than 300 exhibits were admitted into evidence, and the excerpts from the deposition transcripts of 23 additional witnesses were entered into the record, along with a 3,500page trial transcript; and
WHEREAS, Plaintiff and Defendants submitted proposed findings of fact and conclusions of law after trial, and the court issued a 210-page Memorandum and Order Setting Forth Findings of Fact and Conclusions of Law, dated September 8, 2009, finding that Defendants have discriminated against DAI’s Constituents in violation of the integration mandate of the ADA and the RA, that virtually all of DAI’s Constituents are qualified to receive services in supported housing, and that Defendants failed to establish that the relief sought by Plaintiff would constitute a fundamental alteration of the State’s mental health service system; and
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WHEREAS, the court found that Plaintiff is entitled to declaratory and injunctive relief and ordered (1) the State to submit to the court a proposed remedial plan in advance of the issuance of an injunction and (2) Plaintiff to respond to the State’s proposed remedial plan; and
WHEREAS, the court allowed the United States to become a party to the action as a Plaintiff-Intervenor and granted amicus curiae status to the City of New York (“the City”), the Empire State Association of Assisted Living (“ESAAL”), and the New York Coalition for Quality Assisted Living (“NYCQAL”), and has received submissions from all four regarding the remedy in this case; and
WHEREAS, the court has considered the State’s proposed remedial plan and Plaintiff’s response thereto, as well as the responses submitted by Plaintiff-Intervenor and the amici, and has issued a Memorandum setting forth its reasons for rejecting the State’s proposal and adopting Plaintiff’s proposed remedial order, as set forth herein;
IT IS HEREBY ORDERED and ADJUDGED that:
1. Within four years of entry of this Order, Defendants shall ensure that (a) all Current Adult Home Residents who desire placement in supported housing have been afforded such placement if qualified, (b) all Future Adult Home Residents who desire placement in supported housing are promptly afforded such placement if qualified, and (c) no individual with mental illness who is qualified for supported housing is offered placement in an Adult Home unless, after being fully informed, he or she declines the opportunity to receive services in supported housing. For purposes of this Order, the following terms have the meanings specified below:
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a. “Current Adult Home Residents” are DAI’s Constituents who are residents of an Adult Home on the date of this Order.
b. “Future Adult Home Residents” include both DAI’s Constituents who are admitted to the Adult Homes during the four-year transition period and DAI’s Constituents who are admitted to the Adult Homes after the four-year transition period who desire placement in supported housing.
c. “Supported housing” refers to scattered-site supported housing funded by OMH, a setting in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community.
d. The phrase “declines the opportunity to receive services in supported housing” does not include situations where a person declines supported housing because it is not promptly available, and therefore chooses an adult home as an alternative to continued unnecessary hospitalization, homelessness or discharge to a shelter.
2. At the conclusion of the four-year period, Defendants must ensure, on a permanent and ongoing basis, that (a) no individual with mental illness who is qualified for supported housing is offered placement in an Adult Home unless, after being fully informed, he or she declines the opportunity to receive services in supported housing, and (b) any and all Current Adult Home Residents and Future Adult Home Residents who desire placement in supported housing are promptly afforded such placement if qualified. 4

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3. The court will retain jurisdiction for as long as necessary to ensure continuing compliance with this Order, but not less than four years. After the four-year period, the court may terminate jurisdiction on consent of the parties, or on motion of any party for good cause shown.
4. Defendants will develop a sufficient number of supported housing beds to ensure compliance with paragraphs 1 and 2 above. During each of the first three years following entry of this Order, Defendants will develop a minimum of 1,500 supported housing beds for DAI’s Constituents. Defendants will continue to develop supported housing beds for DAI’s Constituents at a rate of 1,500 per year until such time as there are sufficient supported housing beds for all of DAI’s Constituents who desire such housing.
5. Through a Request for Proposals (“RFP”) process, Defendants will contract with a sufficient number of supported housing providers to develop and provide the supported housing required by paragraph 4 above. Defendants’ contracts with these providers will require providers to (a) develop and provide supported housing to DAI’s Constituents, (b) secure necessary support services for residents of such housing, and (c) conduct in-reach to DAI’s Constituents, as described in paragraph 6 below. Defendants will ensure that their current in-reach efforts at state-operated Psychiatric Centers include in-reach to DAI’s Constituents at risk of admission to Adult Homes from those settings. Defendants shall provide, or arrange for, training to the supported housing providers awarded contracts pursuant to this paragraph.
5

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6. The contracts awarded pursuant to paragraph 5 will require providers to conduct frequent and effective in-reach – that is, going into the Adult Homes and developing relationships with DAI’s Constituents to build trust and actively support these individuals in moving to supported housing. In conducting in-reach, providers will, among other things: a. Explain fully the benefits and financial aspects of supported housing; b. Facilitate, and accompany DAI’s Constituents on, visits to supported housing apartments; c. Assess DAI’s Constituents’ interest in supported housing; d. Determine eligibility for supported housing pursuant to paragraph 10 below; e. Explore and address the concerns of any of DAI’s Constituents who decline the opportunity to move to supported housing or are ambivalent about moving to supported housing, despite being qualified for such housing; f. Review DAI’s Constituents’ housing preferences with reasonable regularity; g. Identify the services each eligible individual needs to successfully transition to and live in supported housing and arrange for the individual to timely receive those services; and h. Employ Peer Bridgers as appropriate to assist in the above activities. Peer Bridgers are individuals in recovery from mental illness who are trained and
6

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paid to help others with mental illness make a transition from living in an institutional setting to a community setting.
7. In advance of issuing the RFPs described in paragraph 5 above, and no later than 60 days from the date of this Order, Defendants shall provide Plaintiff and PlaintiffIntervenor with copies of the RFPs it proposes to issue. Within 20 days of receipt of such documents, Plaintiff and Plaintiff-Intervenor will provide a written response to Defendants commenting on the sufficiency of the RFPs to achieve adequate relief, and the parties will negotiate in good faith with respect to the terms of the RFPs. If the parties are unable to resolve any dispute with respect to the content and terms of the RFPs within 120 days of this Order, such dispute shall be submitted to the court.
8. Defendants will ensure that DAI’s Constituents who move to supported housing have access to the array and intensity of services and supports they need to successfully transition to and live in supported housing. Defendants will contract for supportive services, including case management services and Assertive Community Treatment (“ACT”), sufficient to meet the needs of DAI’s Constituents who move to supported housing. At least quarterly, Defendants will evaluate the need, if any, for expansion of such services. Defendants shall timely contract for additional services as needed to enable DAI’s Constituents to successfully transition to and live in supported housing.
9. DAI’s Constituents’ eligibility for ACT will be determined by OMH’s current statewide ACT guidelines.
10. Defendants shall deem DAI’s Constituents qualified for supported housing unless they have one of the following specific characteristics: (a) severe dementia, (b) a high 7

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level of skilled nursing needs that cannot be met in supported housing with services provided by Medicaid home care or waiver services,1 or (c) are likely to cause imminent danger to themselves or others. The determination of whether such a condition exists shall be made by the providers awarded contracts to develop supported housing and conduct in-reach pursuant to paragraph 6 above. If such a condition is found to exist, the individual may still be deemed qualified for supported housing if the provider determines, after further assessment and subject to the concurrence of OMH, that the individual could be served successfully in supported housing. The contracts awarded pursuant to paragraph 5 will provide for OMH review of such cases where the provider finds a disqualifying characteristic but nevertheless believes that the individual should be deemed qualified.
11. Defendants shall require that, when case managers, clinicians, Adult Home staff, and others discuss housing options with DAI’s Constituents, they accurately and fully inform them about supported housing, its benefits, the array of services and supports available to those in supported housing, and the Supplemental Security Income (“SSI”), rental subsidy, and other income they will receive while in supported housing.
12. The court has afforded Defendants the opportunity to respond to Plaintiff’s proposal that a Monitor be appointed. Based on Defendants’ response and Plaintiff’s submissions, the court finds the appointment of a Monitor appropriate under both its inherent equitable powers and Rule 53 of the Federal Rules of Civil Procedure. A
1 Medicaid waiver programs allow states to provide disabled individuals with home and community-based care, as an alternative to providing those services in an institutional setting. See 42 U.S.C. § 1396n(c)(1).
8

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Monitor is needed to undertake post-trial tasks that cannot be effectively and timely conducted by an available District Judge or Magistrate Judge of the district.
13. The court will appoint a Monitor who is experienced in the development, management, and oversight of community programs serving people with mental illness. The duties and powers of the Monitor will be detailed in an order accompanying the Monitor’s appointment. The duties shall include, among other things, monitoring Defendants’ compliance with this Order, identifying potential areas of noncompliance, facilitating the resolution of disputes concerning compliance without the court’s intervention, and recommending appropriate action by the court in the event an issue cannot be resolved by discussion and negotiation among the Monitor and the parties.
14. Within one week of the entry of this Order, the parties shall meet and confer in an effort to agree upon suitable Monitor candidates and the specific duties and powers of the Monitor for joint proposal to the court. The parties shall submit at least two names upon which they agree. If the parties are unable to agree, each of the parties shall, within two weeks of entry of this Order, propose to the court at least two persons qualified to serve as a Monitor. Additionally, the parties shall each submit to the court a proposed order and a memorandum in support of that proposed order detailing the Monitor’s duties and powers.
15. Within 45 days of his or her appointment, and after consultation with the parties, the Monitor will submit to the court a proposed budget setting forth his or her proposed compensation, the proposed compensation of any necessary staff, and an estimate of
9

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other necessary expenses. Defendants will be responsible for payment of the proposed budget items approved by the court.
16. At least once every 90 days, Defendants shall provide the Monitor, Plaintiff, PlaintiffIntervenor, and the court with a detailed report containing data and information sufficient to evaluate Defendants’ compliance with this Order. This reporting obligation will commence upon the appointment of the Monitor. The report shall contain, among other things, information describing (a) the status of the RFP process described in paragraph 5, (b) the number of DAI’s Constituents who have been offered supported housing, (c) the number of DAI’s Constituents who have accepted supported housing, (d) the identity of the supported housing providers serving such individuals and providing in-reach to Adult Home residents, (e) the number of DAI’s Constituents who have been determined to be unqualified for supported housing pursuant to paragraph 10 and the reasons for such determinations, (f) reasons why DAI’s Constituents, if any, declined supported housing, (g) in-reach efforts, (h) the number of new admissions to each Adult Home and source of payment, and (i) the current census of each Adult Home.
17. Defendants will carefully monitor whether DAI’s Constituents are being discouraged by Adult Home operators or others from exploring alternatives to Adult Homes, and, if so, take corrective action. Defendants shall report such incidents to the court, the Monitor, and the parties.
18. As the prevailing party, Plaintiff is entitled to reasonable attorneys’ fees and costs. 42 U.S.C. § 12205; 29 U.S.C. § 794a(b). Pursuant to Federal Rule of Civil Procedure
10

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54(d)(2)(B), the court extends the deadline for submission of Plaintiff’s fee application. The parties are directed to confer and submit to the court within 14 days of this Order a briefing schedule for Plaintiff’s fee application.

19. Plaintiff is entitled to reasonable fees and expenses for post-judgment monitoring and enforcement of this Order.

WHEREFORE, this Order constitutes the judgment of the court.

SO ORDERED.
Dated: Brooklyn, New York March 1, 2010

__/s/ Nicholas G. Garaufis__ NICHOLAS G. GARAUFIS United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X
DISABILITY ADVOCATES, INC.,
Plaintiff,
and

AMENDED MEMORANDUM & ORDER
03-CV-3209

THE UNITED STATES OF AMERICA,

-against-

Plaintiff-Intervenor

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants. -------------------------------------------------------------------X NICHOLAS G. GARAUFIS, United States District Judge.
In 2003, Plaintiff Disability Advocates, Inc. (“DAI”) brought this action on behalf of
individuals with mental illness residing in, or at risk of entry into, “impacted adult homes” in New
York City.1 (See Compl. (Docket Entry #1).) Adult homes are for-profit residential adult care
facilities licensed by the State of New York (the “State”). Following six years of litigation and an

1 In this litigation, “impacted adult homes” refers to those adult homes with more than 120 beds and in which twenty-five residents or 25% of the resident population (whichever is fewer) have a mental illness.
1

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eighteen-day bench trial, this court found that Defendants “denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs,” and that these actions constitute discrimination in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 791 et seq. (Mem. and Order dated Sept. 8, 2009 (Docket Entry #341) (“Sept. Order”) at 3.) The court assumes familiarity with that order.
Before imposing a remedy, the court provided Defendants an opportunity to come forward with their own proposal for remedying the civil rights violations found by the court. (Id. at 207.) Instead of making a good faith proposal, Defendants offered a plan that scarcely began to address these violations and which, in many respects, directly contradicted the court’s explicit findings of fact made after trial. (See Mem. and Order dated Mar. 1, 2010 (Docket Entry #406) 3-11 (highlighting the proposal’s most glaring deficiencies).) By contrast, Plaintiff proposed a plan that would provide a full remedy to all the victims of discrimination in this case, a plan to which Plaintiff-Intervenor United States lent its full support. (See id. at 12-13.) Consequently, the court rejected Defendants’ proposal as “unreasonable and inadequate,” and adopted Plaintiff’s proposal with minor modifications, (id. at 13), as set forth in the court’s Remedial Order and Judgment (Docket Entry #405).
Currently before the court is Defendants’ motion for a stay pending appeal of the Remedial Order and Judgment. (Letter dated Mar. 4, 2010 (Docket Entry #408) (“Def. Motion”).) Both Plaintiff and Plaintiff-Intervenor oppose this request. (See Letter dated Mar. 8, 2010 (Docket Entry #410) (“Pl. Opp.”); Letter dated Mar. 8, 2010 (Docket Entry #411) (“U.S. Opp.”).)
2

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I. DISCUSSION A party seeking a stay pending appeal under Rule 62(c) of the Federal Rules of Civil
Procedure bears a “difficult burden.” United States v. Private Sanitation Indus. Ass’n, 44 F.3d 1082, 1084 (2d Cir. 1994). Four factors are relevant in determining whether to grant a stay pending appeal: substantial injury to the party opposing a stay if one is issued, irreparable injury to the movant if a stay is denied, the likelihood of success on the merits on appeal, and the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007). The factors should be considered on a “sliding scale,” such that a greater showing on one excuses a lesser showing on another. Thapa v. Gonzales, 460 F.3d 323, 334-35 (2d Cir. 2004). In this case, the factors weigh in favor of denying a stay.
A. Substantial Injury to Plaintiff Virtually all of Plaintiff’s 4,300 constituents are not in the most integrated setting appropriate to their needs, as the ADA requires. Rather, they are being warehoused in adult homes – an ongoing violation of their civil rights. These individuals – as well as any individuals who become Plaintiff’s constituents in the near future – will suffer substantial harm every day that they remain unnecessarily institutionalized in the adult homes. Just since this lawsuit began, Plaintiff’s constituents have already waited over six years for redress of these longstanding violations. Even under the court’s remedial order, full relief will take at least four years more. A stay of the remedial order would only further prolong the harm to Plaintiff’s constituents, who the court found are entitled to relief after a full trial on the merits.2
2 Amicus New York Coalition for Quality Assisted Living (“NYCQAL”), a non-profit trade organization representing many of the adult homes at issue, argues that other harms will flow to Plaintiff’s constituents if a stay is denied. (See Letter dated Mar. 5, 2010 (Docket Entry #409) 1-2.) According to NYCQAL, moving residents to supported housing as the court has ordered will result in some inappropriate placements, creating a risk for those
3

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Defendants argue that this harm is mitigated by the fact that “even absent implementation
of this Court’s order, residents are free to apply for supported housing and to move out of adult
homes.” (Def. Motion 2.) According to Defendants, the “record evidence indisputably
demonstrates” that some adult home residents have been able to move to supported housing in
the past. (Id.) Perhaps Defendants are referring to the 60 supported housing beds that the New York State Legislature forced them to set aside for adult home residents.3 Beyond this one-time
legislative set-aside, “only about 30 adult home residents have moved to supported housing since
January 2000.” (Mem. and Order dated Sept. 8, 2009 (Docket Entry #341) 201.) This means
that over the last ten years, three individuals per year, on average, have been able to leave adult
homes for supported housing. This rate of supported housing placement hardly mitigates the
substantial injury to Plaintiff’s 4,300 constituents caused by their continued unnecessary
institutionalization in adult homes.
B. Irreparable Harm to Defendants
In stark contrast to the ongoing civil rights violations suffered by Plaintiff’s constituents,
the irreparable harm Defendants claim they face absent a stay is purely financial and
administrative. (See Def. Motion 2.) Of course, any large-scale remedy will entail some such
burdens – though the claimed financial harm is extremely dubious given the court’s finding that
individuals and those around them, and will force some adult homes to close. Although the court only granted NYCQAL amicus curiae status for the limited purpose of submitting briefs regarding its views on the proposed remedial plans, (Mem. and Order dated Dec. 23, 2009 (Docket Entry #400) 2), the court nevertheless will briefly address NYCQAL’s concerns. The court does not agree that placements will pose risks to Plaintiff’s constituents or those around them, since individuals who are found to pose a danger to themselves or others will be disqualified from moving to supported housing under the court’s remedial order. Furthermore, even if NYCQAL’s dire predictions come to pass and some adult homes close, these changes will not occur overnight. Under the court’s remedial order, the issuance of Requests for Proposals (“RFP’s”) to identify supported housing providers may take as long as 120 days, and perhaps longer if the court must resolve disputes. Until providers are awarded contracts, they will not be able to begin to assess which residents are qualified to move and desire to do so, a process which must be conducted one resident at a time. 3 “This initiative was imposed on [the Office of Mental Health (“OMH”)] by the Legislature; OMH did not request it.” (Mem. and Order dated Sept. 8, 2009 (Docket Entry #341) 19 n.50.)
4

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the remedy will save the State about $146 per resident per year – but these are relatively trivial harms compared to those facing Plaintiff’s constituents. To elevate Defendants’ interest in avoiding budget woes and administrative difficulties above the civil rights of persons with mental illness would require an extremely strong likelihood of success on the merits on appeal, see Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002), a situation not present in this case.
C. Likelihood of Success on the Merits Defendants have failed to show that they are likely to succeed on the merits. The outcome in the case was not a close call; the evidence was overwhelming. Nevertheless, Defendants argue that this case presents significant legal issues warranting a stay. (Def. Motion 2.) Setting aside their importance, which has no bearing on the likelihood of a successful appeal, none of the legal issues Defendants raise suggest a strong possibility of success on the merits. Defendants argue that the applicability of the ADA’s integration mandate to cases where a state’s service system relies on privately operated facilities is an open question in this Circuit. (Def. Motion 2.) While it is true that the Second Circuit has not had the opportunity to address this question until now, numerous other courts have applied the ADA’s integration mandate to situations where a state uses private entities in meeting its obligation to deliver services to people with disabilities. See, e.g., Radaszewski v. Maram, 383 F.3d 599, 614 (7th Cir. 2004); Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003); Fisher v. Okl. Health Care Auth., 335 F.3d 1175, 1179 (10th Cir. 2003); Helen L. v. DiDario, 46 F.3d 325, 328 (3d Cir. 1995); Martin v. Taft, 222 F. Supp. 2d 940, 981 (S.D. Ohio 2002); Roland v. Celluci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999).4 Tellingly, Defendants do not identify even one case that supports their reading of the ADA. Thus, even though
4 The court provided a more detailed analysis of these cases in ruling on the parties’ cross-motions for summary judgment. (See Mem. and Order dated Feb. 19, 2009 (Docket Entry #232) 43-44.)
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the Second Circuit has yet to resolve the issue, the vast weight of authority supports the court’s ruling.
Defendants also argue that whether adult homes constitute an integrated setting turns upon interpretation of the federal regulation’s definition of integration. (Def. Motion 2.) They offer neither reason nor authority, however, to suggest that this court interpreted the regulation incorrectly. Furthermore, they completely ignore the fact that Plaintiff-Intervenor United States “fully supports this Court’s conclusions.” (U.S. Opp. 1.) Since the United States Department of Justice’s interpretation of the ADA integration regulation is entitled to deference, Bragdon v. Abbott, 524 U.S. 624, 646 (1998), its support of the court’s interpretation weighs heavily against Defendant’s likelihood of success on appeal.
As discussed above, the factors must be considered on a “sliding scale.” Thapa, 460 F.3d 334-35. If a stay is granted, Plaintiff’s constituents face continuing unnecessary institutionalization, while, absent a stay, Defendants face merely administrative inconvenience and questionable financial harm. In such a case, the injury prongs of the test weigh heavily against Defendants and their burden on the “likelihood of success” prong is proportionally higher. Mohammed, 309 F.3d at 101. Defendants’ two weak arguments as to why they are likely to succeed on appeal do not even come close to meeting that burden.
D. Public Interest Considering the public interest only further tips the scale against Defendants. As Plaintiff rightly argues, “the public has a strong interest in the prompt remediation of systemic discrimination against a vulnerable population.” (Pl. Opp. 5 (citing Kathleen S. v. Dep’t of Pub. Welfare, 10 F. Supp. 2d 476, 481 (E.D. Pa. 1998)).) That interest is even greater when the discrimination is longstanding. This case has already been pending for over six years, and implementing the remedy, even without a stay, will take at least four more. Moreover, the public
6

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interest disfavors any delay in realizing the substantial cost savings that will flow from the

remedial order at both the state and federal levels – $7,693 annually per resident. (Mem. and

Order dated Sept. 8, 2009 at 168.)

Against these weighty interests, Defendants assert only “the public interest in not unduly

interfering in the operations of State government.” (Def. Motion 3.) The court has been

sensitive to federalism concerns throughout the remedial process, which is why Defendants were

given an opportunity to propose a remedy. Unfortunately, Defendants did not take that

opportunity seriously and instead offered a proposal that was so “egregiously deficient” that the

court was forced to question their good faith in making the submission. (Mem. and Order dated

Mar. 1, 2010 at 3.) Having failed to come forward with a reasonable plan, Defendants cannot

now assert the public interest, citing undue interference with State governance, where such

interference directly results from their own failure to offer a good faith remedial proposal.

II. CONCLUSION

As set forth above, if a stay is granted, Plaintiff’s 4,300 constituents face continuing and

unnecessary institutionalization in adult homes, while Defendants face only administrative and

financial burdens absent a stay. Furthermore, Defendants have failed to raise even a small

likelihood of success on appeal and the public interest clearly favors swift implementation of the

remedial order. Accordingly, Defendants’ motion for a stay pending appeal is DENIED.

SO ORDERED.

Dated: Brooklyn, New York March 11, 2010

__/s/ Nicholas G. Garaufis__ NICHOLAS G. GARAUFIS United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------X DISABILITY ADVOCATES, INC.,

Plaintiff, -againstGEORGE PATAKI, et al.,

MEMORANDUM AND ORDER
03-CV-3209 (NGG)(RML)

Defendants. -------------------------------------------------------------X

LEVY, United States Magistrate Judge:

This is an action challenging the discharge of psychiatric patients from State hospitals

to adult homes. Plaintiffs seek declaratory and injunctive relief, including the removal of patients from

adult homes and a prohibition against their use for psychiatric patients in the future. Pending before the

court is defendants’ motion for recusal pursuant to 28 U.S.C. § 455(a) (“section 455(a)"), which

provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in

any proceeding in which his impartiality might reasonably be questioned.”

Defendants contend that recusal is required because of my prior association with

plaintiff Disability Advocates, Inc. (“DAI” or “plaintiff”) as a member of its board of directors for a

period of approximately one year ending on or about December 31, 1994, and my prior employment

as General Counsel to New York Lawyers for the Public Interest (“NYLPI”) for a one year period

ending on or about December 31, 1994. In addition, defendants argue that

disqualification is necessary because plaintiff apparently intends to “rely upon factual matters dating

from the period before [my appointment to the bench], when [I] was associated with DAI and New

York Lawyers for the Public Interest, and an active participant in litigation raising related issues.”

Case 1:03-cv-03209-NGG -MDG Document 41 Filed 04/29/04 Page 2 of 10
(Letter to court from Barbara Hathaway, Esq., dated Jan. 7, 2004 (“Hathaway Ltr.”), at 2.) Finally, they assert that my prior representation of the plaintiffs in New York State Ass’n for Retarded Children, Inc. v. Carey, 551 F. Supp. 1165 (E.D.N.Y. 1982), aff’d in part and rev’d in part, 706 F.2d 956 (2d Cir. 1983) (the “Willowbrook” case) also requires recusal because the claims in this lawsuit were allegedly “inspired” by the Willowbrook case and are purportedly similar in that they involve the deinstitutionalization of people with mental disabilities. Id.
Plaintiff opposes the motion, arguing that the caselaw interpreting section 455(a) does not require recusal because of my former association with either DAI or NYLPI, as courts have found recusal unnecessary where the relationship was closer and more recent than that alleged in this case. (See Letter to the court from Joshua Groban, Esq., dated Jan. 28, 2004.) Nor, they argue, is there any authority holding that prior representation of clients in litigation of similar issues disqualifies a judge from sitting on lawsuits raising the same or related claims.
The recusal motion also implicates ethical issues under the Code of Conduct for United States Judges (“the Code”), which, although similar to section 455(a), requires separate analysis. On January 30, 2004, I sought an advisory opinion from the Committee on Codes of Conduct of the Judicial Conference of the United States as to whether my continuing to sit on this case would violate the Code.
DISCUSSION The decision whether or not to recuse has both a legal and an ethical dimension. Under section 455(a) a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Similarly, Canon 3C(1) of the Code provides, in pertinent part, that
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a judge must disqualify himself “in a proceeding in which the judge’s impartiality might reasonably be questioned,” including but not limited to several specific instances set forth in subsections (a) through (e). The language of the statute and Canon 3C(1) is identical in all material respects.
In their letter briefs, the parties focus on the case law under section 455(a). I have reviewed the cases and find that they do not require recusal in this instance. The Second Circuit instructs that a judge “considering recusal must balance the need for ‘public confidence in the judiciary against the possibility that those questioning [the judge’s] impartiality might be seeking to avoid the adverse consequences of [his or her] presiding over their case.’” In re Initial Public Offering Secs. Litig., 294 F.3d 297, 302 (2d Cir. 2002) (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)). A judge “is as much obliged not to recuse herself unnecessarily as she is obliged to recuse herself when necessary.” Id. (internal quotations and citation omitted).
Defendants “do not suggest that [I] would be biased if [I] continued to hear the case.” (Hathaway Ltr. at 2.)1 Rather, their stated concern is that my prior association with DAI and NYLPI, as well as my “active” participation in “litigation raising related issues,” would create a public perception of bias toward the plaintiff. Id. (“in a case of this importance, involving the public policy of the State, it is especially important to be sensitive to [the public perception]” of possible bias).
My brief association with DAI and NYLPI lasted approximately one year and ended over nine years ago. At no time during that period did I, or to the best of my knowledge, DAI or NYLPI ever address the issues raised in this litigation. I have never taken a public or private position,
1 Indeed, there is no question in my mind that I would fairly and impartially hear this case. -3-

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either personally or professionally, on the merits of this case. I have no personal knowledge of the claims underlying it.
The mere fact that, in the distant past, a judge was once associated with a law firm now appearing before the court does not, without more, require recusal. See National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978); Estate of Ginor v. Landsberg, No. 95 CIV. 3998, 1997 WL 414114, at *2-3 (S.D.N.Y. July 24, 1997); see also Faulkner v. National Geographic Soc’y, 296 F. Supp. 2d 488, 491 (S.D.N.Y. 2001) (recusal was not required by trial judge’s previous membership in law firm in which a trustee of defendant magazine had also been a member, or by judge’s prior representation of one defendant); S.E.C. v. Grossman, 887 F. Supp. 649, 658 (S.D.N.Y. 1995) (mere fact that magistrate judge once worked at law firm that employed defendant provided no reasonable basis to question his impartiality), aff’d, 101 F.3d 109 (2d Cir. 1996). To rule otherwise would, for example, require all former federal prosecutors to disqualify themselves in federal criminal cases, not only where the judge had never worked on the matter before the court, but also where the case was not even under investigation in that district until after the judge had left the prosecutor’s office. Cf. United States v. Outler, 659 F.2d 1306, 1313 (5th Cir. 1981) (magistrate judge’s previous role as prosecutor, in unrelated incident involving same defendant, not sufficient to require recusal); United States v. Waters, 786 F. Supp. 1111, 1117 (N.D.N.Y. 1992) (no basis to invalidate search warrant absent concrete evidence that magistrate judge was involved in his prior capacity as Assistant United States Attorney in an investigation of defendant as an open criminal file to which he was assigned). Similarly, disqualification is not mandated where a judge served on the board of directors of a party many years in the past, and
-4-

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where neither the board nor the party had ever considered the issues raised in the lawsuit while the judge was a member of the board. Cf. Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 102-03 (4th Cir. 1991) (no disqualification required when judge who had previously served on school board had no personal knowledge about the facts or people involved in the case against the school board before him).
Defendants also suggest that a judge’s familiarity with the issues raised in the lawsuit and his past experience litigating issues in the field – in this case mental health law – require recusal, even where the judge had no prior involvement with the claims pending before the court. This argument also cuts too broadly, as it would prohibit judges from sitting on cases in areas in which they practiced as lawyers. Thus, no federal prosecutor or federal defender could ever be appointed to the bench and preside over a federal criminal case. Nor could a former civil rights attorney, such as Robert Carter, Constance Baker Motley, or Thurgood Marshall, ever sit on a civil rights case.
Finally, and in defendants’ words, “[p]erhaps most significantly,” defendants contend that plaintiff believes the Willowbrook case, in which I last represented plaintiffs nine years ago, is “highly relevant to this case.” (Hathaway Ltr. at 2.) However, the Willowbrook case involved people with mental retardation, not mental illness, and consequently somewhat different issues. During my association with the case, the focus of the litigation was on the enforcement of a consent judgment. Here, plaintiffs seek relief under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., a statute that was never applied to the Willowbrook litigation during my association with the case and that was not even enacted until relatively late in my involvement in the case.
Ultimately, defendants’ arguments boil down to this: even if, viewed individually, the -5-

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factors described above do not require recusal, when examined together, and in light of the totality of the facts and circumstances of this case, “a reasonable person knowing all the facts might reasonably question the court’s impartiality.” (Hathaway Ltr. at 1.) I disagree for the reasons described above. Under the case law, my association with DAI and NYLPI does not require recusal, and there has been no indication thus far that I have personal knowledge of any disputed evidentiary fact material to this case. Defendants have asserted that issues relating to Willowbrook or other matters with which I was involved as a lawyer might arise and require disqualification. However, this is pure speculation and insufficient to justify recusal at this time. As defendants have presented no persuasive authority to support their assertions, the court finds that recusal is not required under section 455(a).
This, however, does not end the inquiry, as federal judges have ethical duties under the Code that extend beyond the requirements of section 455(a). Although the analyses are similar, a judge’s responsibility to protect the integrity of the judicial process may be even greater under the Code than under section 455(a).
Canon 3C(1) of the Code of Conduct for United States Judges provides, in relevant part, that recusal is appropriate “in a proceeding in which the judge’s impartiality might reasonably be questioned,” including but not limited to several specific instances listed in subsections (a) through (e). Of these, only subsection (a) is relevant to defendants’ application. Subsection (a) mandates recusal if a judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” As explained above, I have no bias or prejudice concerning any party to this action, and none has been alleged. Nor do I have personal knowledge of
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any disputed evidentiary facts now before the court.2 Any knowledge I may have acquired of general
principles of mental health law would not require recusal, even if obtained as a result of my
employment at NYLPI or board membership at DAI, “because personal knowledge as to the law at
issue, as opposed to disputed evidentiary facts, does not trigger recusal under Canon 3C (1) (a).”
Advisory Opinion of the Committee on Codes of Conduct, dated Mar. 5, 2004 (“Advisory
Opinion”).3
The catch-all provision of Canon 3C(1) requires a judge’s disqualification from
pending litigation if the judge’s “impartiality might reasonably be questioned.” Code, Canon 3C(1).
This standard requires a judge to determine whether a reasonable person informed of all the
circumstances would reasonably question the judge’s impartiality. See Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 850, 860-61 (1988). It is this question that the Committee
addressed in the Advisory Opinion, relevant portions of which are excerpted below:
Various considerations must be weighed in determining whether your impartiality could reasonably be questioned. On the one hand, although Disability Advocates is a party to the pending litigation and NYLPI is counsel of record, it has been more than nine years since you were employed by NYLPI or were on the board of Disability Advocates. Your association with those organizations lasted for only one year and you have had no connection with either organization since 1995. You have not participated in or formed an opinion about the pending litigation and, in your previous legal career, you did not take a position as to the merits of the pending litigation or the underlying claims. Your letter does not state whether you ever had occasion to represent Disability Advocates in any
2 In the event a situation arose where I did have personal knowledge of a disputed evidentiary fact that would require recusal, the appropriate course would be either recusal from the specific issue before the court, or, if that is impractical, recusal from the case altogether.
3 The Advisory Opinion is both non-binding and confidential. Nonetheless, the relevant parts will be excerpted in this Order.
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litigation or the underlying claims.4 If you did, the Committee assumes that such representation occurred during the same time period discussed herein. Further, any legal arguments you may have made as a practicing attorney on behalf of a client do not alone suffice to call into question your impartiality as a judge when presiding over a different case in which you had no involvement as a private attorney, even though that case involves related legal issues. These circumstances – the limited time of your association with and possible representation of the plaintiff, the passage of considerable time, the absence of any involvement by you in the preparation of the pending litigation, as well as your belief that can be fair and unbiased in this matter–suggest that your impartiality could not reasonably be questioned.
On the other hand, before becoming a judge you devoted “a significant part of [your] legal career” to the same type of issues that are involved in the pending litigation. For many years, you served as lead counsel in litigation against the State on behalf of people with mental disabilities. You have written a book on the subject. Moreover, you currently teach the subject at law schools. The pending litigation appears to track closely with the issues to which you devoted a significant part of your prior legal career and with the subject to which you continue to devote time and energy through law school teaching. The litigation may implicate the same type of statutes, regulations and standards as were previously involved in your work as lead counsel against the State. The pending litigation also involves the same plaintiff and the same defendant (the State) as did the former litigation.5 Finally, the State, whom you previously sued in a case involving the treatment of mentally handicapped people, asked that you recuse in the pending litigation under 28 U.S.C. § 455(a). This Committee’s authority is confined to interpretation and advice under the Codes of Conduct.
Having weighed these considerations, the Committee is of the opinion that your recusal is not required. However, given your prior professional relationship while in private practice with the plaintiff and plaintiff’s counsel, your former position as a board member for the plaintiff, your prior lawsuit against the defendant, the nature of the issues you dealt with at that time, and your involvement with similar topics later in your career, the Committee shares your concern about the public perception that your prior associations might create. Our determination that recusal is not mandated by these circumstances was reached by a very close vote. As you know, the Committee functions in a strictly advisory capacity, the final decision is left to the discretion of the
4 I had no occasion to represent DAI in this or any other litigation.
5 The Committee was mistaken in this regard. The Willowbrook case did not involve the plaintiff in this action, DAI, or the same state agency defendant as in this case. In fact, I never represented DAI in any proceeding.
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judicial officer. This motion presents a unique factual situation for which there appears to be no precedent in case law. The critical distinguishing feature is that, for a short period of time in the relatively distant past, I was a member of the board of directors of the plaintiff and the general counsel of one of plaintiff’s attorneys. If the issue were actual bias, the decision would be simple: there is none. I am absolutely certain that I can be fair and unbiased in this matter, and that my familiarity with the kinds of issues that typically arise in complex mental health litigation would assist all parties in the fair and efficient resolution of this case. In deciding this motion, my overriding concern is in maintaining public confidence in the judiciary, which is at the heart of our constitutional system and essential to the ability of the courts to deliver justice. Although by itself one case is unlikely to change that perception, courts must take special care to avoid the erosion of that confidence, particularly at a time where all governmental decisions are coming under close scrutiny. This does not mean that judges should recuse themselves unnecessarily. It does suggest that in some rare instances a decision that is technically correct both legally and ethically may not ensure public confidence in the process. This is such a case. Like the Committee in its Advisory Opinion, I am concerned about the public perception that my prior associations might create. Standing alone, neither my brief membership on the DAI board nor my equally brief tenure at NYLPI nearly ten years ago should reasonably cause my impartiality to be questioned. Even when viewed together, I agree with the Committee that disqualification is not required. It is, however, advisable. As reflected in the Advisory Opinion and confirmed in numerous discussions after the Advisory Opinion was issued, reasonable people,
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Case 1:03-cv-03209-NGG -MDG Document 41 Filed 04/29/04 Page 10 of 10 including experts in judicial ethics, are closely divided on this matter. Where the question is this close, recusal is, regrettably, the wiser course.
Accordingly, under the unique circumstances of this case, defendants’ motion is granted.
SO ORDERED. Dated: Brooklyn, New York
April 29 2004 /s/
ROBERT M. LEVY United States Magistrate Judge
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X
DISABILITY ADVOCATES, INC.,

-against-

Plaintiff,

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,

MEMORANDUM & ORDER 03-CV-3209 (NGG) (MDG)

Defendants. -------------------------------------------------------------------X NICHOLAS G. GARAUFIS, United States District Judge.
Currently before the court are three motions in limine in the above-captioned action. Defendants David A. Paterson, Richard F. Daines, Michael F. Hogan, the New York State Department of Health, and the New York State Office of Mental Health (collectively, “Defendants”) seek to exclude certain exhibits and expert testimony and to limit the scope of fact witness testimony. (Def. Mot. in Limine (Docket Entry #256).) Plaintiff Disability Rights Advocates, Inc. (“DAI”) brings two motions: one seeking to exclude a proposed witness, the other seeking to exclude issues raised in Defendants’ statement of claims and defenses to be tried. (Pl. Mot. to Preclude Trial Testimony of Previously Undisclosed Witnesses (“Pl. Witness
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Mot.”) (Docket Entry #252); Pl. Mot. to Exclude from Trial Certain Issues Raised in Defs.’ Summ. of Claims & Defenses to be Tried (“Pl. Issues Mot.”) (Docket Entry #258).) The court first addresses Plaintiff’s Motion to exclude issues at trial before turning to the parties’ motions regarding exhibits and witnesses. As set forth below, Plaintiff’s Motion to exclude issues at trial is GRANTED in part and DENIED in part, Defendants’ Motion is GRANTED in part and DENIED in part, and Plaintiff’s Motion to exclude Defendants’ proposed witness is DENIED.
I. PLAINTIFF’S MOTION TO EXCLUDE ISSUES FOR TRIAL Plaintiff’s Motion seeks to exclude from trial certain issues in Defendants’ summary of
claims and defenses to be tried. (Pl. Mem. Supp. Issues Mot. (Docket Entry #259).) Plaintiff seeks to prevent Defendants from re-litigating at trial the threshold issues of standing and the applicability of Title II of the Americans with Disabilities Act (“ADA”), contending that this court conclusively ruled on those issues in resolving the parties’ motions for summary judgment. (Id. at 4-7.) Plaintiff contends that other issues presented in Defendants’ summary of claims and defenses to be tried are purely legal issues that need not be addressed at trial. (See id. at 7-9.) At the pre-trial conference on May 1, 2009, and in the court’s May 1 Order, the court directed Defendants to indicate which issues could be addressed solely by post-trial briefing, and Defendants responded in their opposition to Plaintiff’s Motions. (Def. Opp. 5-8 (Docket Entry #263).) As set forth below, the court determines that some of the issues for trial and post-trial briefing are barred and/or limited in scope by the “law of the case” doctrine.
A. Law of the Case The law of the case doctrine “commands that ‘when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case’ unless ‘cogent and compelling reasons militate otherwise.’” Johnson v. Holder, --- F.3d ---,
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2009 WL 997001, at *3 (2d Cir. 2009) (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (internal quotation marks omitted)). Such “cogent” or “compelling” reasons include “an intervening change in law, availability of new evidence, or ‘the need to correct a clear error or prevent manifest injustice.’” Id. at *4 (quoting Quintieri, 306 F.3d at 1230). The law of the case doctrine is discretionary; the Second Circuit has noted that “the law of the case doctrine ‘does not rigidly bind a court to its former decisions, but is only addressed to its good sense.’” Id. at *4 (citation omitted). Moreover, “the decision whether or not to apply law-of-thecase is, in turn, informed principally by the concern that disregard of an earlier ruling not be allowed to prejudice the party seeking the benefit of the doctrine.” United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991). The Second Circuit has explained that “in this context, prejudice does not mean harm resulting from the failure to adhere to the prior decision; rather, it refers to a lack of sufficiency of notice or a lack of sufficient opportunity to prepare armed with the knowledge that [the prior ruling is not deemed controlling].” Id. (internal quotation marks omitted). Courts have applied the law of the case doctrine to determinations made on summary judgment. See, e.g., Cary Oil Co., Inc. v. MG Refining & Mktg, Inc., 257 F. Supp. 2d 751, 764 (S.D.N.Y. 2003) (granting motion to exclude from trial evidence and argument regarding defenses that were rejected in a previous ruling on summary judgment.)
B. Issues Barred and/or Limited in Scope by the Law of the Case The court’s previous decisions resolved: (1) the admissibility of Plaintiff’s experts and certain exhibits, DAI v. Paterson (“DAI I”), No. 03-CV-3209 (NGG), 2008 WL 5378365, at *21 (E.D.N.Y. Dec. 22, 2008); and (2) the parties’ motions for summary judgment, DAI v. Paterson (“DAI II”), 598 F. Supp. 2d (E.D.N.Y. 2009). The court will not revisit issues that it resolved in DAI I and DAI II, because those decisions are the law of the case. This trial, occurring nearly
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six years after DAI filed this action, will resolve disputed issues of fact; it will not be an opportunity for Defendants to present “additional or different evidence than was before the Court on the motion for summary judgment” ( Def. Opp. 6) on issues this court already decided.
In its Order dated May 1, 2009, the court stated that it would not “revisit prior to trial its Memorandum & Order resolving Defendants’ Daubert motion to exclude Plaintiff’s experts, or issues resolved in the Memorandum & Order on the motions for summary judgment. The parties may, however, submit post-trial briefing on these issues.” (Order dated May 1, 2009, docketed between Docket Entries #261 and #262.) On further consideration of the parties’ submissions and further review of DAI I and DAI II, the court now vacates the portion of its May 1 Order stating that “[t]he parties may . . . submit post-trial briefing on these issues.”
Pursuant to the law of the case, the parties may not submit evidence at trial or post-trial briefing on any of the issues resolved in DAI I and DAI II. In particular, the court will not revisit: (1) Plaintiff’s standing, see DAI II, 598 F. Supp. 2d at 307-311 (concluding that DAI has statutory and Article III standing and rejecting Defendants’ argument that Plaintiff lacked standing to seek system-wide relief); (2) the applicability of Title II, id. at 317 (“[t]he court concludes that Title II of the ADA applies to the claims in this case”), id. at 319 (holding that DAI’s “claim falls squarely under Title II of the ADA”); and (3) whether Plaintiff’s claims under the Rehabilitation Act should be treated “as identical to the ADA claims,” id. at 311 n.25.1 In addition, this court has already determined the scope of the relevant legal inquiry as to what Plaintiff must show to establish discrimination “by reason of disability.” See id. at 311-312.2
1 The court will thus consider the ADA and Rehabilitation Act claims under the same standard, and will not entertain post-trial briefing on whether the Rehabilitation Act mandates integration or the validity of the Rehabilitation Act’s implementing regulations. 2 Defendants assert that trial is necessary on “[w]hether plaintiff’s constituents have been subject to discrimination ‘by reason of their disability.’” (Joint Proposed Pretrial Order 9.) Defendants seek to argue that “the alleged violations experienced by the plaintiff’s constituents, such as lack of access to mental health housing or a lack of
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Plaintiff’s motion to exclude issues for trial is thus granted to the extent that the court will not
revisit at trial and/or in post-trial briefing issues resolved in DAI I and DAI II; Defendants’
proposed issues are barred and/or limited in accordance with those decisions.
The court is aware that, in the event that DAI ultimately prevails at trial, Defendants
intend to preserve certain issues for appeal, and the record reflects that Defendants continue to
dispute certain determinations this court made in DAI I and DAI II. Nonetheless, the court
considers DAI I and DAI II the law of the case, and determines the scope of the trial and post-
trial briefing accordingly.
C. Evidence and Argument Regarding the Statute of Limitations is Not
Precluded by the Law of the Case
Defendants assert that the issue of whether relief is barred by the statute of limitations
and/or laches, which Defendants raised as a defense in their Answer, is an issue for trial and/or
post-trial briefing. In its Motion, Plaintiff contends that there are no disputed issues of fact
regarding the statute of limitations, which it contends is a purely legal issue and should be
excluded from trial. (Pl. Mem. Supp. Issues Mot. 8-9.)
The parties have not yet briefed this issue; the court takes no position at this time on
whether it is a purely legal question or a mixed question of law and fact. The parties may offer
access to the surrounding community while they reside in adult homes, is not due to their disability, but to where they currently live or to the manner in which the adult homes are operated.” (Def. Opp. 8.)
Defendants’ assertion in that “[w]hether the alleged discrimination is ‘by reason of’ disability is always an element of an ADA claim” is correct. See DAI II, 598 F. Supp. 2d at 311 (noting that “[t]o establish a violation of Title II of the ADA, a plaintiff must prove . . . that he or she was discriminated against by defendants, by reason of his or her disability.”). In Olmstead v. L.C., 527 U.S. 581 (1999), however, the Supreme Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id., citing Olmstead, 527 U.S. at 600 (emphasis added). A violation of the “integration mandate,” as set forth in Olmstead, the ADA, and the federal regulations, is discrimination on the basis of disability. See id. (noting that “[o]ne form of discrimination ‘by reason of . . . disability’ is a violation of the ADA’s so-called ‘integration mandate.’”) (emphasis added). The court clarifies and reiterates here that the relevant inquiry for trial and post-trial briefing as to what constitutes discrimination “by reason of disability” – as well as what constitutes a violation of the “integration mandate” – is set forth in DAI II.
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evidence and post-trial briefing on whether relief is barred by the statute of limitations and/or laches. Plaintiff’s Motion to exclude this issue is denied. II. DEFENDANTS’ MOTION
Defendants’ Motion seeks to exclude Plaintiff’s Exhibits 75, 142, 170, 228, and 229; Joint Exhibit S-103;3 and Plaintiff’s Exhibits 84, 85, 92,139, 146, 147, 148, 169, 197, 233, and 248. (Def. Mem. 3, 6, 8 (Docket Entry #257).) It also seeks to preclude Plaintiff’s fact witnesses from offering expert opinions and opining on the ultimate legal issues. (Id. at 5.) Finally, the Motion seeks to preclude the testimony of Plaintiff’s expert witnesses. (Id. at 14, 17.) The court addresses each issue in turn.
A. Exhibits 1. Plaintiff’s Exhibit 75
Plaintiff’s Exhibit 75 is a policy paper by an advocacy organization, the New York State Coalition for Adult Home Reform.4 The document is inadmissible hearsay, because it is not a public record or report and is not admissible under any other exception to the hearsay rule. See DAI I, 2008 WL 5378365, at *21 (excluding report by advocacy organization as inadmissible hearsay). Defendants’ Motion is granted in that Plaintiff’s Exhibit 75 may not be introduced for the truth of the matters asserted therein. Should Plaintiff seek to introduce that exhibit for another purpose during trial, it may make a motion orally at that time.
3 Defendants stipulated to the use of this exhibit for the limited purpose under Rule 105 of establishing that the State sought recommendations from the Adult Care Facilities Workgroup regarding adult homes and is implementing some of the recommendations as part of Defendants’ planning process. (Def. Mem. 6 (Docket Entry #257).) 4 Defendants provided a copy of this exhibit to the court at the May 1, 2009 pre-trial conference.
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2. Plaintiff’s Exhibits 142, 170, 228, and 229 The court previously denied Defendants’ earlier motion to exclude the documents now designated as Plaintiff’s Exhibits 142, 170, 228, and 229. See DAI I, 2008 WL 5378365, at *22. That decision is the law of the case, and the court will not revisit it.
3. The Adult Care Facilities Workgroup Report (Exhibit S-103) and Plaintiff’s Exhibits 84, 85, 92, 139, 146, 147, 148, 169, 197, 233, and 248
Defendants seek to exclude Exhibit S-103, the report of the Adult Care Facilities Workgroup (“Workgroup Report”), asserting that the Workgroup Report is hearsay that does not fall under Rule 803(8)(c) of the Federal Rules of Evidence, because it is not a public record and lacks trustworthiness. (See Def. Mem. 6-14.) Defendants also argue that the Workgroup Report is not admissible under any other exception to the hearsay rule. Defendants similarly assert that numerous specific documents generated or used by the Workgroup and its Sub-Workgroups, and documents created by DOH relating to Medicaid costs – Plaintiff’s Exhibits 84, 85, 92, 139, 146, 147, 148, 169, 197, 233, and 248 – are inadmissible hearsay not subject to Rule 803(8)(c), and that some of these exhibits should be excluded pursuant to Rules 402 and 403.
The parties did not include with their submissions copies of all of the exhibits at issue in this part of Defendants’ Motion, nor did the court previously rule on the admissibility of those exhibits. The court cannot evaluate the admissibility of the exhibits that were not submitted to the court in connection with Defendants’ Motion.5 Accordingly, Defendants’ Motion to exclude Plaintiff’s Exhibits 84, 139, 146, 147, 148, 169, 233, and 248 is denied without prejudice and may be renewed at trial.
5 The court has not yet received copies of the exhibits for trial, which need not be provided until the first day of trial pursuant to Section V.D of the court’s Individual Rules.
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Regarding the remaining exhibits before the court, the court concludes that the Workgroup Report and other documents generated by the Workgroup and Sub-Workgroups, Exhibit S-103 and Plaintiff’s Exhibits 85, 92, and 197 are admissible pursuant to Rule 803(8)(c), as discussed below. The “public records” exception in Rule 803(8)(c) provides in relevant part, that “factual findings resulting from an investigation made pursuant to authority granted by law” are not excluded under the hearsay rule, “unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed. R. Evid. 803(8)(c). As noted in DAI II, the Workgroup “was convened by then-Governor Pataki in 2002 to evaluate the strengths and weaknesses of the State’s adult care facility model and to develop recommendations for new approaches . . . . According to DOH official David Wollner, DOH and OMH participated in formulating these recommendations.” DAI II, 598 F. Supp. 2d at 306 n.19.
The court has reviewed the parties’ evidence cited and/or submitted in connection with Defendants’ Motion regarding the nature, composition, and activities of the Workgroup and the Sub-Workgroups and concludes that Exhibit S-103 and Plaintiff’s Exhibits 85, 92, and 197 are public records. These documents are thus admissible pursuant to Rule 803(8)(c) unless Defendants can “come forward with enough ‘negative factors’ to persuade a court that [the] report[s] should not be admitted.” Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir. 1991); see also In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804, 827-28 (2d Cir. 1994) (recognizing broad admissibility standards for reports under Rule 803(8) unless circumstances indicate untrustworthiness and setting out factors by which to evaluate trustworthiness).
Defendants assert that several findings within the Workgroup Report are untrustworthy. First, they argue that the Workgroup Report should be excluded because the Workgroup’s
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members hypothesized, in the absence of reliable and current clinical data, that adult home residents fell along a bell curve in terms of the distribution of functional ability and skills required to live independently. (See Def. Mem. 9-10.) Defendants similarly argue that the reports and drafts of the New Models Sub-Workgroup (Pl. Exs. 85, 92, and147), “from which this ‘hypothesized’ assumption originated,” should be excluded. (Id. at 11.) In response, Plaintiff contends that the Workgroup members, who were chosen by Defendants themselves specifically for their expertise and experience in adult care facilities, “developed working assumptions about the needs of adult home residents, despite the state’s failure to collect data.” (Pl. Opp. 8 (Docket Entry #264).) Plaintiff further asserts that Exhibits 85 and 92 describe the activities, investigations, meetings, and site visits that the New Models Sub-Workgroup undertook to arrive at its conclusions. (Pl. Opp. 10.) The court has reviewed these exhibits and concludes that the Workgroup Report’s “hypothesized distribution” of residents of adult care facilities, as well as the reports and draft reports of the New Models Sub-Workgroup (Pl. Exs. 85 and 92), are admissible pursuant to Rule 803(8)(c).6
Defendants also argue that the findings of the Workgroup (and its Sub-Workgroup on Payment Structure, see Pl. Exs. 137 and 197) relating to potential Medicaid savings are speculative and unreliable, because adult home residents were identified “based on a data run done by DOH” using an “address matching process” seeking to match the address of Medicaid recipients with the addresses of adult homes. (Def. Mem. 11-12.) They further argue that, given the Workgroup Report’s admission that “there are little reliable data on adult home residents . . . a comparison of Medicaid costs of the adult home population with that of populations in other settings alone cannot serve as a trustworthy method of investigation for identifying potential
6 As noted above, the court does not yet have Exhibit 147; Defendants may renew their motion to exclude this exhibit at trial.
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Medicaid savings,” so Plaintiff’s Exhibits 84, 139, 148, 169, 197, 233, and 248 at DOH 0131717-DOH0131727 should be excluded as hearsay and as irrelevant. (Id. at 11-12.) Finally, they argue that a comparison of Medicaid cost data of the adult home and supported housing populations should be excluded under Rule 403, asserting that the prejudicial effect to Defendants outweighs any probative value. (Id. at 13.)
In response, Plaintiff argues that the documents generated by the Workgroup and SubWorkgroups are public records pursuant to Rule 803(8)(c) and are trustworthy. It also argues that the documents relied on by the Workgroup and Sub-Workgroups containing cost data, which were created by Defendant DOH, are admissible under Rule 801(d)(2) as party admissions. (Pl. Opp. 10.) It also argues that the reports and documents regarding cost are relevant to DAI’s claims and Defendants’ fundamental alteration defense and should not be excluded under Rule 402, nor should they be excluded under Rule 403. (Id. at 11.)
Of the exhibits discussed above regarding Medicaid costs and savings – portions of S-103 and Plaintiff’s Exhibits 84, 137, 139, 148, 169, 197, 233, and 248 – the court can only evaluate at this time the admissibility of the findings of the Workgroup in the Workgroup Report relating to cost savings and Exhibit 197, as only those documents have been submitted to the court. The court concludes that Exhibit S-103 and Plaintiff’s Exhibit 197 are admissible pursuant to Rule 803(8)(c). The court declines to exclude Exhibit 197 under Rule 402, as it clearly appears relevant. The parties may argue the question of potential prejudice under Rule 403 at the time the exhibit is offered.
In sum, Defendants’ Motion to exclude Exhibit S-103 and Plaintiff’s Exhibits 85, 92, and 197 is denied, although Defendant may renew its Motion to exclude Plaintiff’s Exhibit 197 under Rule 403 at the time the exhibit is offered. Defendants’ Motion to exclude Plaintiff’s Exhibits
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84, 139, 146, 147, 148, 169, 233, and 248 is denied without prejudice and may be renewed at trial.
B. Scope of Testimony of Fact Witnesses Defendants seek to preclude two of Plaintiff’s fact witnesses, Clarence Sundram and Linda Rosenberg, from testifying “to the same sweeping expert opinions that the Court struck from their affidavits on summary judgment.” (Def. Mem. 5.) In particular, Defendants seek to preclude these witnesses from comparing the costs of living in supported housing and adult homes and/or testifying about clinical reasons for adult home residents to move out of adult homes, or the qualifications and/or willingness of adult home residents to move to supported housing. (See id.) In DAI I, the court set forth the proper scope of lay opinion testimony with respect to these two witnesses. See DAI I, 2008 WL 5378365, at *14-19. Defendants’ Motion is granted to the extent that it seeks to limit the scope of the testimony of Mr. Sundram and Ms. Rosenberg at trial in accordance with the previous decision, which is the law of the case. See id. As set forth in that decision, Mr. Sundram may testify as to historical facts about Defendants’ service delivery system, Defendants’ policies, his own observations over time about adult homes and adult home residents, and the types of costs associated with adult homes. Id. at *15. He may not testify as to the comparative costs of adult homes and supported housing, or the reliability of the methodologies used by Plaintiff’s experts. Id. at *16-17. In addition, Mr. Sundram may not testify as to whether there are “programmatic or clinical reasons” for adult home residents to remain in adult homes or to move out. Id. at *16. DAI I does not explicitly address whether Mr. Sundram will offer an opinion as to whether adult home residents are willing to move,
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however; to the extent that Defendants’ Motion seeks to preclude testimony from Mr. Sundram on that topic, that aspect of the Motion is denied without prejudice.7
As set forth in DAI I, Ms. Rosenberg may testify to her observations and opinions about Defendants’ policies, observations about adult homes, the relative benefits of supported housing, and Defendants’ capacity to change the programs they administer. See id. at *17-18. She may not testify as to the qualifications of adult home residents to move to supported housing, the willingness of adult home residents to move, and the comparative costs of adult homes and supported housing. See id. at 18 (striking paragraph 14 of Ms. Rosenberg’s affidavit as beyond the scope of lay opinion testimony).
Defendants also seek to exclude fact witnesses from opining on the ultimate legal issues in this case. (Def. Mem. 5.) The court denies this aspect of Defendants’ Motion. As this court previously ruled, “[l]ay opinion testimony bearing on the ultimate issue in the case is not inadmissible.” Id. at *15; Fed. R. Evid. 704(a); see Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (“The fact that the lay opinion testimony bears on the ultimate issue in the case does not render the testimony inadmissible.”); United States v. Rea, 958 F.2d 1206, 1214-15 (2d Cir. 1992).
C. Plaintiff’s Expert Witnesses Defendants seek to exclude Plaintiff’s expert witnesses. (Def. Mem. 14-17.) In particular, they seek to exclude the opinion of Ivor Groves and to “preserve and renew” their previous Daubert motion, which the court denied in its entirety in DAI I. See DAI I, 2008 WL 5378365, at *1-11. As discussed above, DAI I is the law of the case, and the court will not revisit it. Defendants’ Motion is thus denied.
7 In DAI I, the court found Mr. Sundram’s statement in paragraph 14 of his affidavit that adult home residents “are essentially captives whose presences is essential for the continuation of the proprietor's business but not for their own welfare” admissible as lay opinion testimony. Id. at *16.
12

Case 1:03-cv-03209-NGG -MDG Document 268 Filed 05/08/09 Page 13 of 14
As noted above, the court vacates the portion of its May 1, 2009 Order allowing posttrial briefing on the admissibility of Plaintiff’s experts. This court already determined that the opinions and testimony of Plaintiff’s experts on the qualifications of adult home residents to move to supported housing are admissible. Thus, while Defendants are free to conduct vigorous cross-examine of Plaintiff’s experts at trial and may argue in their post-trial briefing that the court should accord the opinions of those experts little or no weight, they may not renew their challenge to the admissibility of those opinions. III. PLAINTIFF’S MOTION TO EXCLUDE DEFENDANTS’ WITNESS
Plaintiff seeks to exclude Defendants’ witness from the Human Resources Administration (“HRA”).8 Plaintiff argues that on April 20, 2009, Defendants indicated that they would call an unnamed HRA witness, and on April 28, 2009, Defendants indicated that they would call “Kathleen Kelly or other representative” of HRA; Plaintiff contends that this witness was never disclosed previously in violation of Rule 26 of the Federal Rules of Civil Procedure. (Pl. Mem. Supp. Mot. Witness 2-3 (Docket Entry #253).) Plaintiff further argues that Defendants’ failure to disclose the HRA witness in a timely manner is neither substantially justified nor harmless, and that the witness should be excluded pursuant to Rule 37(c)(1). (Id. at 3.) In response, Defendants argue that they indicated in their initial disclosures that they would call a witness from HRA, and that many documents from HRA were subpoenaed during discovery. (Def. Opp. 2-3 (Docket Entry #263).) Defendants further assert that subject of the proposed witness’s testimony, whether an HRA application is necessary for an adult home resident to move to supported housing, is highly relevant and not duplicative of other testimony. (Id. at 3-5.)
8 Plaintiff’s Motion also seeks to exclude a witness whom Defendants have since withdrawn from their witness list; this aspect of the Motion is moot.
13

Case 1:03-cv-03209-NGG -MDG Document 268 Filed 05/08/09 Page 14 of 14

The court finds that Defendants did not comply with Rule 26 regarding the HRA witness,

but declines to preclude this witness from testifying at trial. As the court noted in DAI I, where a

party fails to comply with a disclosure requirement, “[d]espite the mandatory language of Rule

37(c)(1), the Second Circuit has held that preclusion is a discretionary remedy, even if ‘the trial

court finds that there is no substantial justification and the failure to disclose is not harmless.’”

DAI I, 2008 WL 5378365, at *12 (quoting Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d

Cir. 2006).) The Second Circuit has set forth factors for courts to consider in deciding whether

to preclude a witness where a party fails to comply with a disclosure requirement. See id. (citing

Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)). The court has considered these

factors and concludes that the subject of the testimony from the HRA witness is sufficiently

important that it declines to exclude this witness. At trial, the court will allow Plaintiff broad

latitude during cross-examination of this witness, given that Plaintiff cannot depose her prior to

trial. Plaintiff’s Motion is denied.

IV. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to exclude issues from trial (Docket

Entry #258) is GRANTED in part and DENIED in part, Defendants’ Motion (Docket Entry

#256) is GRANTED in part and DENIED in part, and Plaintiff’s Motion to preclude Defendants’

witness (Docket Entry #252) is DENIED. In addition, as provided above, the court vacates the

portion of its May 1, 2009 Order stating that the parties may submit post-trial briefing on issues

already resolved by the court.

SO ORDERED.
Dated: Brooklyn, New York May 8 , 2009

__/s/ Nicholas G. Garaufis__ NICHOLAS G. GARAUFIS United States District Judge

14

 Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 1 of 7

UNITED STATES DISTRICT COURT EASTER.,"i DISTRICT OF NEW YORK

DISABILiTY ADVOCA TES,lNC.,
Plaintiff,
v.
GEORGE PATAKI, in his official capl!.city as Governor of the State of New York, ANTONIA C. NOVELLO, in her officIal capacity as Commissioner of the New York State Department of
Health., JAM.ES STONE, in hi' official capadty ••
Commissioner of the New York State Office of Menta! Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, Al\'D THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.

03 CV 3209 (NOOK MDG) PROTECTIVE ORDER.

Pursuant to t.'le plaintiffs' motion. in order to protect against the public disclosure of information and records which are CONFIDENTIAL under federal or state law which may be obtained in the course of or in connection with frJs litigation, it is ORDERED that:
1. Tills Protective Order shall govern t'le treatment of all CONFIDENTIAL documents, inforniation and re<:.ords that have been or will be produced in connection with tills Action. whether in respor.se to a forma! discovery request purSllant to the Federal Rules ofCivil Procedure, in response to a public records requesl, or in response to an informal request tor mformatlon (collectIvely referred to below all "discovery"), and regardless of wheth::!' the prodncing person is a party or a non-party to the action. This includes, wilhau! limitation, produced documents, answers to requests for admission. answers to interrogatories, and any ae:msition transcriPt

Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 2 of 7

2. The parties, their counsel, and agents and employees of the parties

1!!\d of their counsel shall treat as CONFIDENTIAL the following:

8. Documents and infottnBtion, obtained in discovery, from

which the identity of any resident of an adult home, statc-

run psychi.trio hoapitaJ, or on individlUll with • mental

illness under the care ofmental he~lth professionals may be

deternrined and;

b. Records ofthe New York State Department of Health and the New York State Office of Mentai Health, or any

provider licensed by or contracti!!g with tho,e departments

to provide mental health services, obtained in discovery,

t.luIt are confidential under fedel'lll or state law.

3. The Court fitlds that there is good and s'Jbs!:mtial need for the

parties and their counsei, experts and consultants to have access to C01'.'FlDENTlAL

ir.fo=ation to litigate this case, including but nG! limited to records and medical records

of current residents of Queens Adult Care Center, which, given the protective features of

this order, 51gnificantlY outweighs the efiectcd individuallJ' interC:3ts in complete

confidentiality.

4. The parties shall produce CONFIDENTIAL iufom1ation 2..:',Q

records otherwise available through discovery notwithstanding their CONFIDENTIAL

character,

~

M~teri.l m~y he de,ign.ted PO CONFIDENT! A! .l'ti,,, 10

producing or fulniShing the documents or things, by stamping "Confidential" Gn each

2

Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 3 of 7
page and each thing to which the designation applies or requesting e conrt reporter to
cic:ijign..ate certain pOltioll.') of is dcposhivn transt.',ript "CoufiticJ.1..tiw.n aud to him! then.
separately.
With respect to information produced in electronic fcnn, substantially the sa.me desigl'.lltion shall be a.l'fiXed to the medium on which thll information is provided. This
designation will )", mnde by the producing party based on its good f.ith detetnli"ation that such desigI'.JItion applies,
6. Documents, infonnation and r~cords which are CONFIDENTIAL under Paragraph 2 may be used only for purposes of this litigation and !IlllY be disclosed only to the followin.£::
R. The Court; b. The Defendants, Defendants' counsel, and the employees,
agents IIl\d in-house counsel of any oflhem; c. Plaintiff, cOWlsel for the Plaintiff, and the employees,
agents and in-house counsel of any of t.l:tem; d. A person with independ~::t jella! authority to have 200ess to
the documents and information; e. CU\l!~ umci~1) lnvu\v:d ill 1.hi:; lltigation, im:hu.lh18 court
reporters; f. Potentia.! witnesses or persens noticed with depositions or
designated as trial wit::esses to the e)ttent reasonably necessa:y to preptll'e th= to testify; and
3

Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 4 of 7
g. To outside consultants or expens retained for the pU.!pcse of assisting counsel !n this litigation, or in anticipation of
such. 7. AllY person i>cing given access to CONFIDENTIAL information
pursuant te Paragraph 6 above is directed not to disclose such information to any person (f,her than those described in Paragrapll6. In addition, CONFIDENTIAL information rr.ay not be disclosed to p.,..OM in 6(1) or Ii(g), unl~". such person h•• ox.cut.d an undertaking in rubstlllliially the following form, which undertaking shall be retained by the attorney who provides the pel'Son the CONFIDENTIAL jnfonnatkm:
That slhe has read this Protective Order and agrees to be bound by it, IIl\d further, will not divulge to perSQU8 oilier than those specificlIlIy authorized by Paragraph 6 of the Protective Order and will no! copy or use, except solely for purposes afthis litigation, any CONFIDENTIAL dDcnmen! or infonnation as defmed by the Protective Order, except as provided therein. 8. The parties shall produce CONFIDENTIAL infonnation and records! without t..1e individual's CQnsent, which are otherwise discoverable notwithstanding their CONFIDENTlAL character, including but not limited to mental health records of any resident of an adult home or state-run psychiatric hospital or an individual with It menta] ilines! under the care of a mental health professional. 9. Any pleading or other documenta conll<ining CONFIDENTIAL information served on the opposL'lg party wilt be treated as CONFIDENTIAL pursuant to this Protective Order. 10. Any pleading or other docu:ments med in t'lis Court shall be filed redllcted of details identifying pa.'iicular individuals so as to avoid disclosure of CONFIDEl><'TJAL inf""""tion.
4

Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 5 of 7
11. Copies of transcripts !U1d recordings of COU.t·t proceedings or depositions may not be publicly released unless reviewed by the pa.rties and those parts designated as CONFIDENTIAL by cOlmsel a..-e redacted. Ail court reporters involved in this case shal! be provided with a copy of this Order and be bound by its telmS.
12. Depositions involving CONF'lDENTlAL infmmetion shall be conducted only in the presence of the pe."ties, their agents or employees, their representatives, their cmlm~el, their I"'.('\lmsei'a. agents or employeet.l. outside consultants or experts retained for the purpose of assisting cotm.el in d-Js litigation, the person from whom discovery is sought, his or her legal counsel a!!d a court reporter.
13. Statistical information, compilations, and analysis of information based i!l whole or in part upon CONFIDENTIAL infonnation, as well as redacted documents, may be released to the public or pre•• withont vinl.ting Ihis order, so long as the follow41g materi.l is nut released without the consent of the individual involved:
a. Informaticll, obtained in discovery, from which the identity of any resident of an adult home, state-run psychiatric hospital, or a individual with a mental illness U.llde! the C'1l'e of mental health professionals may be determined and:
b. Records that are confidential under applicable law. ;4. 1:1 the event of an inadvertent disclosure of CONFIDENTIAL infonnatioa of another party, the receiving party or producing pa:'ty making the inadvertent disclosure shall upon learning of the disclosure:
5

Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 6 of 7
a. Promptly notify the perSOll or entity to whom the
rli.o!o.ure wao maw' that it ¢cntain. CONFIDEI','TIAL
information subject to this Order~
b. Promptly mw all reasonable efforts to retrieve such
CONFIDENTIAL infonnation from, and to preclude dissemination or use by, the person or entity to whom disclmmM wa.t.l inativert~£ltly made; ani! c. Promptly notifY Ihe produciog party of the idemit}' oftne person(s) or entity to whom disclosure was inadvertently made, the clrcurostanccs of the disclosure, and the steps taken to prevent the dissemination or use of the info!ll1lltion. Nothing in this Order shall preclude any party from seeking a determination by the Court in the form of a notIced motion that any matter designated CONFIDENTIAL under this Protective On;!er is not entitled to protection, or is entitled to a more limited form of protection. 16. Records containin!? CONFIDENTIAL information shall be mttintairled in a secure a.'ld confidential location when not io use and used only by those
per,olll! listed in pllragrapn 6, above, woo need a.c<:eas \II cOnt\e.c,tiol\ with '.he \\tig'lltiOll. (If
this case. 17 < If plaintiff wishes to show to any patient or resident ("patient")
their awn clinical record. covered by New York Mental Hygiene Law ~ 33.16 which were received under this order, plaintiff shall fll'st trll1lsmit to the entity which created
6

Case 1:03-cv-03209-NGG -MDG Document 46 Filed 05/19/04 Page 7 of 7

such records (to defendlUlts' counsel if that entity is one of the defendant agencies) a list contai!ling sufficient information to enable the entity to identify the patient lUld the record. in question. Upon receipt of such a list, the entity shall reply within 10 days designating any portio1".8 of such records that the treating practitioner believes should not be shown to the patient because showing the patient those records can reasonably be expected to cause substantial lUld identifiable hann to the patient or others which would outweigh the p~ticn!'. right to nooes3, accoroing to the standard, set forth in MIlL ~ 33.16. Plaintiff will structure and submit its lists so that no more than 10 patients are
under this 10 day review period for any entity at any time. If the entity t.i.at created the
records does net reply within 10 day~, plaintiff may proceed. If the entity does So r~pJy, then plaintiff may notify the entity that it wishes to contest the prnctitioner' 8 determination. Th. plaintiff and the entity .hall cooperate in attempting to resolve the
is,,,., and if they are unable to do so, plaintiffmay seek a determination by the Court.
Umil such a detennination is rendered, plaintiff will not show to the patient any clbic.! records so designated, or any memorandum, affidavit, exhibit or other information submitted to the court or plaintiff in connection with the dispnte.
SO ORDERED

Dated:

Brooklyn, N~W YQKK May 19, 2004
signed!
MARICYN OOtAN GO rmTTF.D STATES DISTRltT JUDGE

7

 Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 1 of 143

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DISABILITY ADVOCATES, INC.,
Plaintiff,
v.
DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH
Defendants.

03 Civ. 3209 (NGG) (MDG)

DISABILITY ADVOCATES, INC.’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000
and
DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd Floor Albany, New York 12207 (518) 432-7861
July 13, 2009

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 2 of 143
BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
NEW YORK LAWYERS FOR THE PUBLIC INTEREST 151 West 30th Street, 11th Floor New York, New York 10001-4007 (212) 244-4664
MFY LEGAL SERVICES, INC. 299 Broadway, 4th Floor New York, New York 10007 (212) 417-3700
URBAN JUSTICE CENTER 123 William Street, 16th Floor New York, New York 10038 (646) 602-5667
Attorneys for Plaintiff Disability Advocates, Inc.

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 3 of 143
TABLE OF CONTENTS Page
Proposed Findings of Fact ............................................................................................... 1
Background..................................................................................................................... 1
I. Adult Homes Are Not the Most Integrated Setting for DAI’s Constituents........... 4
II. Supported Housing is A Far More Integrated Setting Than Adult Homes........... 21
III. Virtually All Of DAI’S Constituents Are Qualified For Supported Housing............................................................................................................. 26
A. Supported Housing Is for Persons with Significant Needs ...................... 26
B. The Court Credits the Conclusions of DAI’s Experts that Virtually All Adult Home Residents Could Move to Supported Housing .............. 28
1. Kenneth Duckworth ................................................................... 29
2. Elizabeth Jones........................................................................... 31
3. Dennis Jones .............................................................................. 33
C. Defendant OMH’s Own Former Senior Deputy Commissioner Believes that Virtually All Adult Home Residents Could Move to Supported Housing................................................................................. 34
D. Defendants’ Own Adult Home Workgroup Concluded that Large Numbers of Adult Home Residents Should Be Served In More Integrated Settings ................................................................................. 36
E. Defendants’ Own Survey of Adult Home Residents Establishes that Adult Home Residents Do Not Have Impairments that Would Preclude them from Supported Housing ................................................. 38
F. There Is No Material Difference Between Adult Home Residents and Supported Housing Residents .......................................................... 42
G. Supported Housing Can Serve Adult Home Residents Requiring Varying Levels of Support ..................................................................... 44
H. Supported Housing Providers Can and Do Serve Adult Home Residents ............................................................................................... 49
I. Defendants’ Own Witnesses Conceded that Significant Numbers of Residents Could Be Served In Supported Housing ............................. 51

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 4 of 143
J. OMH Does Not Require Individuals Leaving Institutional Settings to Proceed Through a “Linear Continuum” ............................................ 51
K. Dr. Geller’s Analysis of Whether Adult Home Residents Are Qualified to Move Is Deeply Flawed and Not Credible .......................... 55
IV. The Vast Majority of Adult Home Residents Would Choose to Live in Supported Housing if Given an Informed Choice............................................... 58
A. Most Adult Home Residents Had Little Or No Choice In Moving To An Adult Home ................................................................................ 58
B. The Majority of Adult Home Residents Would Choose to Live in Supported Housing if Given a Meaningful Choice ................................. 60
C. Adult Home Residents Have Continually Expressed a Preference for Supported Housing ........................................................................... 63
V. Defendants Have No Olmstead Plan for Adult Home Residents......................... 69
A. Defendants Do Not Believe an Olmstead Plan is Required for People with Mental Illness in Adult Homes............................................ 69
B. The Programs Available to Adult Home Residents Do Not Constitute An Olmstead Plan ................................................................. 76
VI. The Evidence Shows that the Requested Relief Would Cost No More Than the Current System ................................................................................... 82
A. Funding Sources and Amounts for Adult Homes and Supported Housing ................................................................................................. 83
B. The Evidence Shows that Medicaid Costs for People Living in Supported Housing Are Significantly Lower Than Medicaid Costs for Adult Home Residents...................................................................... 85
C. The State Also Fails to Consider Other Savings ..................................... 92
D. The Requested Relief Would Not Adversely Affect Other Persons with Serious and Persistent Mental Illness.............................................. 98
E. The State is Capable of Expanding its Supported Housing Program to Meet the Need of Adult Home residents............................................. 99
CONCLUSIONS OF LAW......................................................................................... 101
I. The Americans with Disabilities Act and Section 504...................................... 101
II. DAI’s Constituents are Individuals with Disabilities........................................ 105

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 5 of 143
III. Defendants are Subject to the ADA and the RA............................................... 106
IV. Defendants Have Discriminated Against DAI’s Constituents by Reason of their Disability................................................................................................. 108
A. Adult Homes are not the Most Integrated Setting Appropriate to the Needs of DAI’s Constituents .......................................................... 108
B. DAI’s Constituents are Qualified for Supported Housing ..................... 113
C. DAI’s Constituents Are Not Opposed to Receiving Services In More Integrated Settings ...................................................................... 115
D. The Relief Sought Would Not Fundamentally Alter Defendants’ Service System .................................................................................... 117
1. Defendants Do Not Have an Olmstead Plan to Enable Adult Home Residents to Receive Services In Integrated Settings .................................................................................... 119
2. The Relief DAI Seeks Would Cost No More Than Defendants’ Current System and Would Not Adversely Affect Defendants’ Other Constituents ..................................... 123
3. The Relief DAI Seeks Would Not Alter the Nature of the Services that Defendants Currently Provide .............................. 125
CONCLUSION........................................................................................................... 126

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 6 of 143

Table of Authorities CASES

Page(s)

Disability Advocates, Inc. v. Paterson, et al., 598 F. Supp. 2d 289 (E.D.N.Y. 2009).....................................................................passim

Disability Advocates, Inc. v. Paterson, et al., 598 F. Supp. 2d 289 (E.D.N.Y. 2009)........................................................................3, 61

Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005)................................................................................. 119, 120

Henrietta D. v. Bloomberg, 331 F. 3d 261 (2d Cir. 2003)........................................................................................102

Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997)...........................................................................................106

Joseph S. v. Hogan, et al., 561 F. Supp. 2d 280 (E.D.N.Y. 2009)..........................................................................103

Messier v. Southbury Training School, 562 F. Supp. 2d 294 (D. Conn. 2008) .................................................................. 119, 126

Olmstead v. L.C., 527 U.S. 581 (1999) ...............................................................................................passim

Olmstead v. L.C., 527 U.S. 581 (1999) ........................................................................................................1

Pa. Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) ....................................................................................................106

Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999).............................................................................107

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)........................................................................................103

STATUTES 29 U.S.C. § 791...........................................................................................................................1 29 U.S.C. § 794(a) ...................................................................................................... 1, 102, 107

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 7 of 143
42 U.S.C. § 12101...............................................................................................................1, 101 42 U.S.C. § 12102(2) ..............................................................................................................105 42 U.S.C. § 12102(4) ..............................................................................................................105 42 U.S.C. § 12131(1) ..............................................................................................................106 42 U.S.C. § 12131(2) ..............................................................................................................113 42 U.S.C. § 12132....................................................................................................... 1, 101, 102 42 U.S.C. § 12134(a) ...................................................................................................... 104, 108 42 U.S.C. § 12134(b) ..............................................................................................................104 N.Y. Mental Hyg. L. § 5.07.........................................................................................................2 N.Y. Mental Hyg. L. § 7.01.....................................................................................................108 N.Y. Mental Hyg. L. § 7.07.........................................................................................................2 N.Y. Mental Hyg. L. § 41.03.......................................................................................................2 N.Y. Mental Hyg. L. § 41.42.......................................................................................................2 N.Y. Mental Hyg. L. § 41.39.......................................................................................................2 N.Y. Mental Hyg. L. § 45.09(a) ..................................................................................................4 N.Y. Mental Hyg. L. § 45.10(a) ..................................................................................................4
OTHER AUTHORITIES 28 C.F.R. § 35.130(b)(7) ................................................................................................. 104, 117 28 C.F.R. § 35.130(d).........................................................................................................passim 28 C.F.R. § 41.51(d) ................................................................................................... 1, 102, 104 18 N.Y.C.R.R. § 485.1(a)............................................................................................................3 18 N.Y.C.R.R. § 487.1(b)............................................................................................................3 18 N.Y.C.R.R. § 487.2 ............................................................................................................105 18 N.Y.C.R.R. § 487.4 .............................................................................................. 44, 105, 106 18 N.Y.C.R.R. § 487.7 ............................................................................................................106

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 8 of 143
Fed. R. Civ. P. 602..............................................................................................................14, 15 Fed. R. Civ. P. 701....................................................................................................................15 Fed. R. Civ. P. 802....................................................................................................................11 Fed. R. Civ. P. 804....................................................................................................................15

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 9 of 143
Plaintiff Disability Advocates, Inc. (“DAI”) respectfully submits the following proposed findings of fact and conclusions of law.
Proposed Findings of Fact Background
1. In this action, plaintiff Disability Advocates, Inc. seeks relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 791, et seq., claiming that the defendants, the Governor of the State of New York, the Commissioners of Health and Mental Health, the Department of Health, and the Office of Mental Health (collectively, “defendants” or “the State”) have violated the ADA and the RA by consigning thousands of persons with mental illness to live and receive services in large “adult homes.”
2. Both Title II of the ADA and Section 504 of the RA require that, when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” 42 U.S.C. § 12132; 28 C.F.R. § 35.130(d); 29 U.S.C. § 794(a); 28 C.F.R. §41.51(d). The Supreme Court in Olmstead v. L.C., 527 U.S. 581, 597 (1999) explicitly recognized that “[u]njustified isolation . . . is properly regarded as discrimination based on disability,” observing that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that the persons so isolated are incapable of or unworthy of participating in community life.” Based on the evidence presented at trial, as set forth below, this Court finds that defendants have unnecessarily segregated individuals with mental illness in adult homes, violating federal law and entitling DAI to relief.

Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 10 of 143
3. DAI is a protection and advocacy organization authorized by statute to bring suit on behalf of individuals with disabilities. Its constituents are people with mental illness residing in, or at risk of entry into, adult homes in New York City with more than 120 beds and in which 25 residents or 25% of the resident population (whichever is fewer) have a mental illness, collectively, the “Adult Homes.” DAI alleges that the State plans and administers its mental health service system in a manner that unnecessarily segregates people with mental illness in institutional Adult Homes and systematically excludes them from far more integrated mental health service settings funded and developed by the State.
4. On June 30, 2003, DAI filed this action for declaratory and injunctive relief to enable Adult Home residents to receive services in integrated settings. Specifically, DAI asks the Court to require defendants to offer supported housing to all DAI constituents who qualify.
5. Defendants are the New York State Department of Health (“DOH”) and the New York Office of Mental Health (“OMH”), as well as Governor David A. Paterson and the Commissioners of DOH and OMH. The individual defendants are sued in their official capacities only.
6. DOH and OMH are defendants for purposes of DAI’s RA claim only. DOH and OMH are recipients of federal financial assistance, (P-591 (Joint Stipulations of Fact) ¶¶ 36-37)), and are therefore subject to liability under the RA. Defendants, as required by New York law, administer the State’s mental health service system, plan the settings in which mental health services are provided, and allocate resources within the mental health service system. See, e.g., N.Y. Mental Hyg. L. §§ 5.07, 7.07, 41.03, 41.42,
2

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41.39; 18 N.Y.C.R.R. §§ 485.1(a), 487.1(b). Carrying out these duties, defendants have denied DAI’s constituents the opportunity to receive services in the most integrated setting appropriate to their needs.
7. Discovery in this case concluded on November 14, 2006. On February 19, 2009, the Court denied the parties’ motions for summary judgment. In its Memorandum & Order, the Court concluded that (1) DAI has statutory and Article III standing, rejecting defendants’ argument that DAI lacks standing to seek system-wide relief on behalf of its constituents; (2) Title II of the ADA applies to the claims in this case; and (3) the Governor is a proper party. Disability Advocates, Inc. v. Paterson, et al., 598 F. Supp. 2d 289, 307-311, 313-319, 356-57 (E.D.N.Y. 2009). In addition, the Court discussed at length the elements of the fundamental alteration defense. Id. at 333-39. The Court’s ruling identified three issues for trial: (1) whether adult homes are the most integrated setting appropriate to the needs of DAI’s constituents; (2) whether DAI’s constituents are “qualified” for supported housing; and (3) whether the relief DAI seeks would work a “fundamental alteration” of New York’s mental health service system. Id. at 319-56.
8. The trial of the matter commenced on May 11, 2009, and concluded on June 16, 2009. The Court heard testimony from State officials, mental health and other experts, lay witnesses with extensive experience in New York’s care system for persons with mental illness, and current and former Adult Home residents. Twenty-nine witnesses testified at trial, over 300 exhibits were admitted into evidence, and excerpts from the deposition transcripts of 23 additional witnesses were entered into the record.
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I. Adult Homes Are Not the Most Integrated Setting for DAI’s Constituents 9. Adult Homes are not integrated settings. Nor are they the “most
integrated setting” for DAI’s constituents.
10. Adult Homes are a type of adult care facility licensed by the State of New
York and authorized to provide long-term residential care, room, board, housekeeping,
personal care, and supervision to five or more adults unrelated to the operator. (P-591
(Joint Stipulations of Fact) ¶ 2.) Adult homes in which at least 25% of the residents or 25
residents, whichever is fewer, have mental disabilities are referred to as “impacted” adult
homes. (Tr. 2996:20-2997:3 (Hart); see also Mental Hygiene Law §§ 45.09(a), 45.10(a).)
Defendants identify which homes are impacted based on information reported by the
Adult Homes themselves. (Tr. 2996:23-2997:10 (Hart).)
11. According to a DOH Adult Care Facility Census Report for 2008, which
was produced by defendants only after the trial concluded, there were 28 impacted Adult
Homes in New York City with more than 120 beds as of December 31, 2008. (P-774 (NYSDOH Adult Care Facility Annual Census Report 2008 (“2008 Census Report”).)1
1 P-774 is not in evidence. DAI’s counsel requested the census data underlying the testimony of DOH employee Mary Hart during trial. In response, counsel for defendants stated that she thought “it would be possible for [defendants] to stipulate on the final ‘08 figures for those homes.” (Tr. 3043:17-3044:4). The Court directed defendants to produce the census reports to DAI in order to work out a stipulation. (Tr. 3044:5-9.) After trial, defendants produced P-774, which is a DOH report reflecting the 2008 census data relating to impacted Adult Homes in New York City, but defendants have refused to stipulate to either (a) facts concerning the identity of currently impacted Adult Homes, or (b) the admissibility of the census report – even though the same type of census reports, for prior periods, were admitted into evidence without objection. (See P-283 (2004, 2005, and 2006 Census Reports).) Accordingly, DAI has also submitted to the Court today a motion to admit P-774 into evidence. The DOH report that was admitted into evidence as P-283 reflects that, as of December 31, 2006, the following Adult Homes were impacted: Anna Erika Assisted
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These Adult Homes are Anna Erika Assisted Living, Bayview Manor Home for Adults, Belle Harbor Manor, Bronxwood, Brooklyn Adult Care Center, Central Assisted Living, LLC (formerly known as New Central Manor), Castle Senior Living at Forest Hills, ElmYork LLC, Garden of Eden Home, Lakeside Manor Home for Adults, Long Island Hebrew Living Center, Mermaid Manor Home for Adults, New Broadview Manor Home for Adults, New Gloria’s Manor Home for Adults, New Haven Manor, Oceanview Manor Home for Adults, Park Inn Home, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor Home for Adults, Rockaway Manor HFA, Sanford Home, Scharome Manor, Seaview Manor, LLC, S.S. Cosmas and Damian Adult Home, Surf Manor Home for Adults, Surfside Manor Home for Adults, and Wavecrest Home for Adults. (Id.)
12. According to the 2008 census data, 4,242 people with mental illness lived in the Adult Homes on December 31, 2008. (P-774 (2008 Census Report).)
13. The findings set forth herein apply to all impacted homes in New York City with more than 120 beds. There are no material differences among the Adult Homes with respect to the issues in this case. (Tr. 70:7-25 (E. Jones) (testifying that there were
Living, Bayview Manor Home for Adults, Belle Harbor Manor, Bronxwood, Brooklyn Adult Care Center, Elm-York LLC, Garden of Eden Home, Lakeside Manor Home for Adults, Long Island Hebrew Living Center, Madison-York Home for Adults, Mermaid Manor Home for Adults, New Broadview Manor Home for Adults, New Central Manor, New Gloria’s Manor Home for Adults, New Haven Manor, Ocean House Center, Oceanview Manor Home for Adults, Park Inn Home, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor Home for Adults, Rockaway Manor HFA, Sanford Home, Seaview Manor, LLC, S.S. Cosmas and Damian Adult Home, Surf Manor Home for Adults, Surfside Manor Home for Adults, and Wavecrest Home for Adults. (P-283 (Census data for 2004, 2005, and 2006).)
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no significant differences between the environments and characteristics of the 23 adult homes she visited); Tr. 2916:9-23 (Kaufman) (acknowledging that Seaview Manor, Garden of Eden and Surfside Manor Home for Adult Homes were a representative sample of adult homes).) While certain details of the homes’ operations and resident population may vary, the homes share a common history and purpose and have common characteristics. (Tr. 648:6-9 (Rosenberg) (New York did not create adequate community supports for deinstitutionalization and “adult homes kind of filled the gap”); see also P68 (Letter from OMH Commissioner James Stone to Members of Mental Health Services Council (“Stone Memo”)) (adult homes developed because “community resources weren’t up to speed with state operated bed reductions” caused by deinstitutionalization).) Despite certain variations from home to home, none is an integrated setting. None of these homes is the most integrated setting for DAI’s constituents.
14. The Adult Homes are large, for-profit facilities in which residents live in close quarters entirely with other persons with disabilities. (Tr. 644:19-645:23 (Rosenberg).) Each serves more than 100 people with disabilities, and many house well over 200 people. (P-774 (2008 Census Report); P-283 (2004-2006 Census Report).) The great majority of the residents in the Adult Homes have a mental illness. (Id.) In most of the Adult Homes, more than 90% of the residents have mental illness, and in eight of the Adult Homes, 100% of the residents have mental illness. (Id.) In only four of the homes do fewer than 50% of the residents have mental illness. (Id.)
15. Adult Homes were not developed with people with mental illness in mind. (D-394 (Schimke Dep.) 289:4-15 (adult homes were designed to house the “frail elderly,”
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not persons with serious mental illness).) They became settings in which people with mental illness lived and received services, however, when New York began to deinstitutionalize its State hospitals in the early 1970s. As the former Senior Deputy Commissioner for OMH, Linda Rosenberg, explained, because New York lacked other service settings for individuals coming out of its psychiatric hospitals, the State began to rely on Adult Homes as service settings for individuals with mental illness. As a result, individuals discharged from the State’s psychiatric hospitals were placed directly into Adult Homes. (Tr. 640:10-25, 641:21-642:23, 647:18-648:14 (Rosenberg); P-68 (Stone Memo).)
16. Despite OMH’s recognition that Adult Homes are neither desirable service settings for people with mental illness nor settings that promote integration and full social inclusion (Tr. 648:6-9 (Rosenberg); P-59 (OMH Guiding Principles)), Adult Homes continue to be used as a discharge option for individuals leaving psychiatric hospitals (Tr. 658:3-17 (Rosenberg); Tr. 448:8-12 (G.L.); Tr. 2085:19-20 (Burstein); Tr. 2684:132687:7 (I.K.); S-151 (E. Jones Report at 3, 9); P-534 (L.H. Dep.) 45:18-46:10; P-540 (P.B. Dep.) 30:16-31:10; P-537 (P.C. Dep.) 46:12-47:9). OMH recently made an effort to facilitate discharges from state hospitals in the New York City area to New York City adult homes, including many of the Adult Homes at issue in this litigation. (P-363, P364, P-365 (Emails from Mitchell Dorfman to state psychiatric center directors and discharge managers regarding referrals to adult homes); Tr. 1808:10-16, 1810:18-21, 1812:23-1813:3, 1814:21-22, 1824:10-16, 1824:25-1826:1 (Dorfman).) This was not a singular effort by one official; to the contrary, OMH central office officials—up to the deputy commissioner level—were appraised of these efforts to facilitate discharges from
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state psychiatric hospitals to impacted Adult Homes, and did not halt them. (See Tr. 1808:5-9 (Dorfman).) This effort was likely undertaken to allay the concerns of Adult Home operators that recent State initiatives might reduce the number of people with mental illness who lived in the homes. (See Tr. 1836:3-18 (Dorfman).)
17. Adult Homes are institutions. (E.g. S-151 (E. Jones Report) at 2; Tr. 642:25-643:4 (Rosenberg); Tr. 75:5-76:19 (E. Jones).) Although they are in some ways less restrictive than psychiatric hospitals, and they do not serve persons who are dangerous to themselves or others as hospitals may, Adult Homes share many of the features of state psychiatric hospitals. Indeed, witnesses commented that Adult Homes had the look and feel of the “back wards” of State hospitals. (Tr. 1006:24-1007:15 (D. Jones); Tr. 865:1-5 (Duckworth) (“The adult homes are large and there’s a congregation of a tremendous number of people with psychiatric disabilities in them. This is reminiscent of a state psychiatric hospital and its culture.”); Tr. 2241:21-2242:20 (Bear); P-674 (Siskind letter to OMH Commissioner) (stating that “the adult homes are much like the psychiatric centers where our customers lived for so long”).) Like state hospitals, Adult Homes house dozens, and oftentimes hundreds of people with mental illness in a setting that can only be described as “institutional.”
18. Life in Adult Homes is highly regimented. There are inflexible schedules for meals, taking medication, receiving public benefits and other daily activities. (S-54 (Kaufman Report) at 8-9; Tr. 644:16-645:24 (Rosenberg); Tr. 809:21-810:6, 865:1868:20 (Duckworth); Tr. 2895:11-2897:13, Tr. 2911:10-2912:13 (Kaufman); Tr. 2356:21-2357:11 (Geller); Tr. 289:21-290:9 (Tsemberis); P-674 (Siskind letter to OMH Commissioner); Tr. 54:16-55:4, 75:5-76:17 (E. Jones); P-546 (A.M. Dep.) 154:25-
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155:23, 157:22-159:24; D-391 (D.W. Dep.) 76:14-23; Tr. 54:18-57:17 (E. Jones); Tr. 374:12-375:1, 376:18-377:4 (S.K.).) Residents are assigned roommates and assigned to sit at a specific seat at a specific table in the cafeteria, a practice which is atypical even in a state psychiatric center. (Tr. 2065:2-2066:1 (Burstein); Tr. 375:7-25, (S.K.), 558:16559:4 (S.P.); P-542 (L.G. Dep.) 98:6-24; P-543 (R.H. Dep.) 99:23-25; P-534 (L.H. Dep.) 74:9-21; P-544 (C.H. Dep.) 95:14-20; P-536 (D.N. Dep.) 91:10-12; D-391 (D.W. Dep. 71:25-72.10.) Most Adult Home residents line up to receive their medications and personal needs allowance at scheduled times. (Tr. 54:18-55:4, 67:10-19 (E. Jones); S151 (E. Jones Report) at 5; Tr. 360:25-361:6, 376:18-378:16 (S.K.); Tr. 2103:4-19 (Burstein); Tr. 464:21-466:16 (G.L.); P-540 (P.B. Dep.) 131:16-132:17; P-542 (L.G. Dep.) 122:15-21; P-543 (R.H. Dep.) 200:12-202:8; P-534 (L.H. Dep.) 103:7-11; P-535 (T.M. Dep.) 76:14-20; P-545 (J.M. Dep.) 76:18-80:3; P-546 (A.M. Dep.) 95:2-12.)
19. The Adult Homes bear little resemblance to the homes in which people without disabilities normally live. (Tr. 289:22-290:10 (Tsemberis).) Meals, medication, phone calls and mail deliveries are announced over a public address system, and medical and mental health staff are a constant presence. (P-543 (R.H. Dep.) 97:10-99:17; P-545 (J.M Dep.) 100:3-12; P-536 (D.N. Dep.) 236:1-238:20; S-151 (E. Jones Report) at 4-5; S54 (Kaufman Report) at 8-9; Tr. 644:18-645:24 (Rosenberg); Tr. 809:23-810:4, 865:1868:20 (Duckworth); Tr. 2895:11-2897:13, 2911:10-2912:13 (Kaufman); Tr. 2356:212357:11 (Geller); Tr. 2241:8-2242: 14 (Bear); Tr. 289:21-290:9 (Tsemberis); P-674 (Siskind letter to OMH Commissioner); Tr. 809:23-810:6 (Duckworth); Tr. 54:18-55:4, Tr. 75:5-76:19 (E. Jones); P-546 (A.M. Dep.) 154:25-155:23, 157:22-159:24.) Privacy is limited. The Adult Homes have large numbers of residents and staff, and there are few or
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no private spaces. It is difficult to receive visitors or talk on the phone in private. (Tr. 489:12-490:23 (G.L.); Tr. 360:21-361:6 (S.K.); Tr. 57:18-58:17, 150:9-14 (E. Jones); Tr. 863:23-864:5, 865:6-14 (Duckworth); D-394 (Schimke Dep.) 288:7-15; P-545 (J.M. Dep.) 53:22-54:24, 80:25-81:19, 95:23-96:8; P-546 (A.M. Dep.) 207:12-208:5); Tr. 360:25-361:6 (S.K.); Tr. 464:21-467:19, 477:20-478:10 (G.L.); Tr. 563:11-565:3, 574:12-575:5 (S.P.); P-540 (P.B. Dep.) 61:10-62:13; P-541 (S.B. Dep.) 70:10-74:17; P542 (L.G. Dep.) 116:13-117:7; P-536 (D.N. Dep.) 110:15-111:12, 128:21-129:7, 241:24244:11.)
20. Residents of Adult Homes are subject to an extensive and significant set of rules. (Tr. 62:7-64:5 (E. Jones); S-151 (E. Jones Report) at 4); Tr. 2299:18-2300:10, 2356:21-2357:11 (Geller); S-52 (Geller Report) at 11-12; S-158 (Brooklyn Manor Facility Rules and Conditions), S-159 (Garden of Eden Facility Rules and Policies), S160 (Rules for Residents of Lakeside Manor Home for Adults), S-161 (New Central Manor Facility Rules and Conditions), S-165 (Queens Adult Care Center Facility Rules).) Homes restrict when and where residents may receive visitors; restrict when residents may be absent; and require visitors to sign in and state the purpose of their visit. (Tr. 64:6-65:18 (E. Jones) (describing the procedures for gaining entry to Adult Homes, such as signing the register and producing a driver’s license for photocopying, and recounting an episode in which Surfside Manor refused entry and threatened to call the police, despite the fact that Ms. Jones was invited by residents to visit); Tr. 2103:20-21, 2104:1017 (Burstein) (Park Inn does not allow overnight visitors and residents are not provided keys to the facility); P-541 (S.B. Dep.) 84:7-85:17; P-542 (L.G. Dep.) 164:23-165:15, 166:9-20; P-534 (L.H. Dep.) 78:2-22; P-546 (A.M. Dep.) 100:15-101:10; P-536 (D.N
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Dep.) 96:13-97:14, 170:22-24 (residents must inform staff where they are going each time they leave the facility); P-744 (complaint in action by a coalition of Adult Home operators against advocacy groups to enforce restrictive guidelines for visitor access); P545 (J.M. Dep.) 159:5-7; P-537 (P.C. Dep.) 98:19-99:5 (residents at times have trouble getting back into their facility).)
21. Residents fear retaliation, and some have been arbitrarily penalized. (P534 (L.H. Dep.) 12:11-13:25 (Adult Home resident expressing fear at the beginning of her deposition that the Adult Home administrator would find out about her testimony and kick her out of the Home); Tr. 467:20-468:5 (G.L.); Tr. 563:3-7 (S.P.); P-544 (C.H. Dep.) 113:17-114:10; P-546 (A.M. Dep.) 43:14-44:19, 118:17-119:23; P-536 (D.N. Dep.) 123:12-124:22, 135:9-136:1;2 Tr. 1683:3-1684:17 (Wollner) (acknowledging that Adult Home residents expressed fear of repercussions from Adult Home staff for participating in the Adult Home assessment project).) DAI’s expert Elizabeth Jones, who spent a significant amount of time in 23 Adult Homes, wrote in her report that “Residents fear retaliation, especially psychiatric hospitalization, if they complain or do not follow the rules in the adult home. This fear is “grounded in their experiences of being sent to the hospital themselves or of witnessing the police remove other residents from the home.” (S-151 (E. Jones Report) at 7).)
22. Much of residents’ daily lives takes place inside the Adult Homes. (Tr. 148:2-3 (E. Jones) (“[T]here is a large number of people who seem to stay in the homes and don’t really go out a whole lot at all”).) Residents are assigned doctors and 2 Defendants have objected pursuant to Fed. R. Civ. P. 802 to lines 123:12-124:5,
124:12-18, and 135:9-136:1. The Court has not yet ruled on that objection.
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psychiatrists, usually on-site in the Adult Homes, and are told when to see the treatment provider. (Tr. 462:19-463:6 (G.L.); Tr. 566:9 -567:1 (S.P.); P-546 (A.M. Dep.) 109:18110:6; P-536 (D.N. Dep.) 125:6-17).) For instance, the Park Inn Home for Adults contracts with local medical facilities and psychiatric centers that provide on-site doctors, psychiatrists and social workers, and the majority of the residents of Park Inn attend onsite mental health clinics and are treated by on-site doctors and mental health professionals. (Tr. 462:19-463:6 (G.L.); Tr. 2046:18-2049:8, 2096:7-2097:18 (Burstein).) Park Inn and other Adult Homes also provide religious services at the home. (Tr. 2045:12-17 (Burstein); Tr. 150:23-151-2 (E. Jones); Tr. 2692:3-9 (I.K.)
23. Residents spend most of the day in activities organized for them by the Adult Homes and/or providers associated with the Homes. These activities typically include games, puzzles, and other child-appropriate leisure activities, and do little to help residents to regain skills. (Tr. 69:12-70:19 (E. Jones); Tr. 2560:12-2562:9 (Waizer) (describing recreational activities provided on-site for residents of Riverdale Manor, such as computer games suitable “for a three- or four-year-old”); S-166 (calendar of recreational activities at Surfside Manor, such as beads, nail painting and bingo).)
24. Unless residents are involved in a continuing day treatment program, they do not have much interaction with individuals outside of the Adult Home setting. (Tr. 2663:2-9 (Lockhart).) While Adult Home residents do leave the facility to attend continuing day treatment or other mental health programs, attending these programs contributes to residents’ isolation and separation from the mainstream of community life. Residents are generally transported together in a bus or van. (E.g. S-151 (E. Jones
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Report) at 3.) While at the programs, they spend their time with other persons with mental illness. (S-151 (E. Jones Report) at 3; Tr. 601:25-602:9 (S.P.).)
25. Moreover, the mental health programs that residents attend—both in and outside the Adult Homes—are at odds with current practices and principles in the field of mental health. These programs often have little focus on skill development. (Tr. 897:25898:11 (Duckworth).) A 2006 review of continuing day treatment programs by the New York State Commission on Quality of Care for the Mentally Disabled noted “a disconnect” between participants’ life goals of gaining independent living and job skills and the goals that the programs had set for them. (P-93 (NYS Commission on Quality of Care, Continuing Day Treatment Review) at 13). To the extent that these programs aim to teach residents independent living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice those skills in their present living situation. (S-152 (Duckworth Report) at 6-7 & n.5; Tr. 67:22-69:6, 170:7-21 (E. Jones) (explaining that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live).) While residents of supported housing can learn and practice these skills in their own homes, residents of the Adult Homes derive little benefit from this type of training. (S152 (Duckworth Report) at 7-8; Tr. 870:7-10 (Duckworth) (residents unlikely to learn to cook in adult home environment simply because a kitchen is installed); Tr. 412:14-413:5 (S.K.) (describing day treatment program in which residents learned to make cakes by being told what ingredients to put in a pan and having staff “do the rest”)). Linda Rosenberg observed that OMH is now trying to close some of these “old fashioned”
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programs. (Tr. 720:10-15, 749:24-750:8 (Rosenberg); see also Tr. 3317:1-3318:7 (Schaefer-Hayes).)
26. It is not only residents’ day programs that limit their opportunities to maintain or learn living skills; Adult Homes discourage, and generally outright prohibit, residents from cooking, cleaning, doing their own laundry, and administering their own medication. (Tr. 481:3-9 (G.L.); Tr. 553:16-555:10, 559:25-560:14 (S.P.); S-54 (Kaufman Report) at 9; P-541 (S.B. Dep.) 81:13-25; P-542 (L.G. Dep.) 70:24-71:9; P534 (L.H. Dep.) 59:18-21; P-546 (A.M. Dep.) 91:16-93:20, 95:25-96:9; P-536 (D.N. Dep.) 89:14-23,3 94:12-95:9; Tr. 54:19-55:1 (E. Jones); Tr. 376:10-377:8 (S.K.); Tr. 862:4-863:1 (Duckworth); Tr. 2917:3-2918:4 (Kaufman) (testifying about his observations that Adult Home staff were not “up-to-date” and “could benefit from education as to what is going on in the field,” what expectations are possible, and “what services could be provided, and that treatment centers and treatment programs were reorienting.”); Tr. 3425:11-13 (D. Jones) (testifying that Adult Homes are a “residencybased model which means the goal there is not really to promote independence, it’s to promote dependence and sustain dependency”).) In this and other ways, the Adult Homes foster what both DAI’s and defendants’ experts have referred to as “learned helplessness.” (Tr. 2358:21-23 (Geller); S-152 (Duckworth Report) at 8-9; Tr. 257:20-
3 Defendants have objected to lines 89:20-23 pursuant to Fed. R. Civ. P. 602. The Court has not yet ruled on that objection.
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259:21 (Tsemberis); D-182 at OMH 0043462; Tr. 2734:21-2735:2 (I.K.); P-546 (A.M. Dep.) 153:17-154:14, 211:13-213:5.)4
27. While residents are taken on trips outside the Adult Homes, these outings contribute little to residents’ integration into the community. The residents generally travel as a group, in a bus or van, and interact mainly with each other. (P-542 (L.G. Dep.) 37:20-38:5; P-543 (R.H. Dep.) 49:12-50:20; P-545 (J.M. Dep.) 43:10-44:11; Tr. 2061:4-10; Tr. 2104:19-2105:16 (Burstein); S-151 (E. Jones Report) at 3.) At Park Inn Home for Adults, for example, residents are taken on shopping excursions in the Home’s van for as many residents as can fit. (Tr. 2061:4-10 (Burstein).) The Home also organizes monthly restaurant and movie outings for groups of residents transported in ambulettes. (Tr. 2104:19-2105:16 (Burstein).) Residents of Riverdale Manor Home for Adults are taken by a mental health provider the Federation of Employment and Guidance Services (“FEGS”), on “field trips” to museums and libraries, but the visits are after hours when the facilities are closed the general public. (Tr. 2560:9-16 (Waizer).)
28. Overall, the Adult Homes provide little support or encouragement for residents to interact with non-disabled peers or become integrated into the community. (Tr. 71:15-73:2 (E. Jones); S-150 (D. Jones Report) at 9). Many residents have testified that they feel isolated living in the Adult Homes. (P-569 (G.H. Dep.) 260:20-22; P-535 (T.M. Dep.) 89:21-90:18, 110:3-112:6); P-544 (C.H. Dep.) 75:16-24.)
4 Defendants have objected to the following portions: to lines 153:17-154:14 pursuant to Fed. R. Civ. P. 804; to lines 211:23-212:3 pursuant to Fed. R. Civ. P. 602; and to lines 212:4-9 pursuant to Fed. R. Civ. P. 701.
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29. The Adult Homes limit the development of relationships with nondisabled persons, including limiting employment and social contacts. (Tr. 2916:5-8 (Kaufman); P538 (B.J. Dep.) 50:7-19; Tr. 2374:8-22 (Geller); P-535 (T.M. Dep.) 89:21-90:18, 106:23107:3, 110:3-112:6; S-151 (E. Jones Report) at 3.) Defendants’ experts acknowledged that, by virtue of the very nature and certain characteristics of the Adult Homes, choices in acquaintances and the development of social contacts are limited. (S-54 (Kaufman Report) at 10-11; Tr. 2899:10-13 (Kaufman).) Many residents testified that they lack friends outside the Home, and to the extent friendships exist, they often predate their admission to the Home. (Tr. 593:21-598:15 (S.P.); P-538 (B.J. Dep.) 50:7-19; P-540 (P.B. Dep.) 45:19-21; P-542 (L.G. Dep.) 78:17-23; P-543 (R.H. Dep.) 96:12-97:9; P-534 (L.H. Dep.) 57:21-58:14; P-535 (T.M. Dep.) 35:21-23; P-545 (J.M. Dep.) 54:21-24, 71:11-20; P-569 (G.H. Dep.) 120:7-16, 123:11-18, 126:24-127:3; P-536 (D.N. Dep.) 15:20-16:4.)
30. It is widely understood—and witnesses for both sides testified—that Adult Homes are institutional and limit community integration. Defendants themselves have recently referred to Adult Homes as “institutional settings” that are overused and in which people are “stuck.” (P-59 (OMH Guiding Principles for the Redesign of the OMH Housing and Community Support Policies, “OMH Guiding Principles”) at 1; S-71 (Statewide Comprehensive Plan, 2006-1010) at OMH 0043287; D-182 (2009-1019 Mental Health Update & Executive Budget Testimony of OMH Commissioner M. Hogan) at OMH 0043466.) The State has long characterized Adult Homes as institutions. In government reports published in 1979, for example, New York State and City officials referred to adult homes as “de facto mental institutions” and “satellite
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mental institutions.” (P-142 (Private Proprietary Homes for Adults: A Second Investigative Report (“Hynes Report”)) at DAI 2906; P-170 (The Adult Home Industry: A Preliminary Report) at DAI 3571; see also Tr. 2045:21-22, 2051:1-5, 2052:16-20, 2053:7-9 (Burstein) (repeatedly referring to the Home as a “facility”); P-59 (OMH Guiding Principles) at 1 (“As a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with a mental illness are ‘stuck’ in . . . institutional settings” including “adult homes”).)
31. The Assistant Executive Director of a large New York City mental health provider, whom defendants called as a trial witness, described the Adult Homes in Coney Island as “community-based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it.” (P-673 (Bear letter to J. Reilly enclosing materials for 1/13/04 OMH meeting); Tr. 2236:12-2238:24 (Bear).)
32. Defendants presented two experts to attempt to rebut the widely held views of people with experience in New York’s mental health system that Adult Homes are segregated settings. Defendants’ experts highlighted, for example, that the New York City Adult Homes are located in urban settings and that because residents are not locked in the facilities, they have opportunities to come and go. (See, e.g., S-54 (Kaufman Report) at 9.) But even if the Adult Homes are not as restrictive as some psychiatric hospitals in some respects, they nonetheless are segregated, institutional settings that impede integration in the community and foster learned helplessness. The State’s supported housing program is a far more integrated setting than Adult Homes. (See Tr. 2162:9-16 (Newman) (agreeing that 120 people with serious mental illness living in a
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congregate setting in which there are no residents without mental illness constitutes a segregated setting), Tr. 2162:17-21 (agreeing that supported housing provides “maximum opportunities” for community integration.).)
33. Defendants’ experts also opined that the setting in which a person with disabilities lives is irrelevant to the question of integration because people can feel isolated in any kind of setting. (Tr. 2899:21-2900:10 (Kaufman); Tr. 2292:14-22 (Geller).) The opinions of defendants’ experts, however, are based on flawed analyses, and the Court accords them little weight. One of defendants’ experts, Alan Kaufman, considered no verifiable standard at all in forming his opinions. (Tr. 2920:16-2921:20.) Defendants’ other expert, Dr. Geller, explicitly rejected the applicable legal standard for integration, testifying that he believes the Supreme Court’s finding in the Olmstead opinion that “confinement in an institution severely diminishes the everyday life activities of individuals” was wrong. (Tr. 2373:16-24; S-52 (Geller Report) at 2 (opining that, because there is no such thing as an integrated or non-integrated setting, “[t]he questions faced in this case … are not whether or not adult homes are institutions with all the connotations thereto; or whether or not adult homes are ‘segregated settings,’ whatever that might mean; or whether or not those who reside in adult homes could reside in apartments with varying degrees of support; or whether or not supported housing per se has a more positive effect on rehabilitation and recovery; or whether or not New York State had negative experiences with impacted adult homes; or whether or not New York State, pursuant to the Americans with Disabilities Act, the Olmstead decision and all other considerations has created a panoply of residential types throughout New York State.”).) Mr. Kaufman himself concedes, however, that, by and large,
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residents of supported housing feel that they are far more integrated than residents of group homes. (Tr. 2915:2-2916:4.)
34. With respect to the institutional and segregated nature of Adult Homes, defendants’ experts and other witnesses were largely in agreement with DAI’s experts, the current and former Adult Home residents, and other witnesses at trial. (See, e.g., Tr. 2162:9-16 (Newman).) Defendants’ experts acknowledged the institutional characteristics of the Adult Homes. (Tr. 2356:21-23 (Geller) (“Q. Dr. Geller, did you find that adult homes share some characteristics with institutions? A. Absolutely”); Tr. 2358: 21-23 (“Q. And in your opinion, do adult homes foster learned helplessness? A. Absolutely.”); Tr. 2425:15-17 (“Q. Do you agree that there are many people with mental illness stuck in adult homes? A. Absolutely.”); Tr. 2427:14-15 (“Q. Do you agree that there is an overuse of adult homes? A. Absolutely.”); see also 2380:20-2371:17 (adult homes have an institutional feel and institution-like characteristics, and are in some respects segregated settings); Tr. 2895:11-2896:13 (adult homes have some characteristics of large psychiatric hospitals and institutions, including a regimented food service schedule, dispensing of medication, lack of opportunity for residents to do their own laundry and housekeeping, lack of full freedom concerning choice of roommate); S54 (Kaufman Report) at 8-9 (the size, physical layout, furnishings and decorations of large adult homes give them a similar appearance to institutional settings; adult homes also share certain routines with mental health institutions, including inflexible schedules for meals and other daily activities, assigned dining hall seating, routinized program activities, public address announcements, and constant presence of medical and mental health staff). Defendant’s expert Alan Kaufman noted that there is generally no
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expectation that individuals in Adult Homes will move to another setting. (Tr. 2910:142911:9 (Kaufman).)
35. Defendants’ experts also acknowledged that characteristics of Adult Homes themselves impede the development of social contacts and work opportunities. (Tr. 2899:3-17 (Kaufman) (adult homes are large institutions that impose certain artificial limitations on residents’ ability to interact with others); S-54 (Kaufman Report) at 10 (“Understandably, a large Adult Home setting coupled with a high proportion of residents with mental illness can artificially limit the interactions of residents and constrict the diversity of friends and acquaintances.”); Tr. 2374:15-22 (Geller) (“Q. So you would agree that living in a place where the phone is answered ‘Brooklyn Adult Care Center’ diminishes your work options and social contacts? A. Yes. Q. And you would agree then that having visiting hours diminishes opportunities to cultivate social or family relationships, right? A. Right.”).)
36. As DAI’s experts concluded, the Adult Homes are segregated settings that impede community integration. Elizabeth Jones, who spent 75 hours in 23 Adult Homes in both scheduled and unannounced visits explained:
I can’t state strongly enough that these facilities are institutions. These facilities are like the institutions that I worked in when I started my career. These are settings that are caught in time almost. They are not like even the psychiatric settings of today where I’ve been a director. These are outdated institutional facilities that restrict and constrain people’s freedom and their ability to learn and exercise skills. These are the buildings and the places that were here in the ‘70s when my career started, when the court cases were first entered into. These facilities do not represent current practice in the mental health field.
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Tr. 54:19-55:5; see also Tr. 809:23-810:3 (Duckworth) (“The adult homes have . . . some of the elements of a homeless shelter and some of the elements of a state hospital. The culture is quite institutional in some ways, even more institutional than a state hospital in my opinion.”).)
37. Linda Rosenberg, Senior Deputy Commissioner of OMH from 1997 to 2004, described Adult Homes as “institutional living at, potentially, its worst.” (Tr. 645:23-24). She observed that Adult Homes “impede community integration” and are “little ghettos” with “people sitting out front from the adult home, smoking, going back in, sitting in the lobby, not much going on and not much exposure to the rest of the world.” (Tr. 645:25-646:9.) Residents live in bedrooms with strangers, eat meals only at set times, live exclusively with other people with serious mental illness, and are completely “defined by their illness.” (Tr. 644:25-645:8.) II. Supported Housing is A Far More Integrated Setting Than Adult Homes
38. Supported housing is a far more integrated setting than an Adult Home. Individuals in supported housing live in their own apartment and receive services to support their success as tenants and their integration into the community. Most supported housing in New York is “scattered site,” – that is, it is in the form of rental apartments scattered in various buildings throughout the community. (Tr. 236:12-15 (Tsemberis).) Scattered-site supported housing is the focus of DAI’s claim and the Court’s analysis. As used below, “supported housing” refers to the scattered-site supported housing that DAI seeks for its constituents.
39. The State is currently focusing on supported housing more than other forms of housing because it is cost-effective, it is a best practice, and it is what consumers
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want. (Tr. 2159:1-19 (Newman).) DAI’s expert, Elizabeth Jones, explained that the modern practice in the mental health field is to start with housing and “add and subtract the supports as that person needs them.” (Tr. 139:8-15 (E. Jones); see also S-150 (D. Jones Report) at 25.) Likewise, Linda Rosenberg testified that supported housing reflects “the most current thinking in the field.” (Tr. 650-18-651:3.)
40. Consistent with that view, OMH began to implement a supported housing program in 1990. (S-11 (Supported Housing Implementation Guidelines, 1990); see also S-150 (D. Jones Report) at 26.) Michael Newman, Director of OMH’s Bureau of Housing Development and Support, testified that supported housing is the current focus of OMH’s housing development because it is a “successful,” “cost-effective” program that gives residents “the same privacy rights as any other tenant in a landlord-tenant relationship.” (Tr. 2159:5-2160:4; see also Tr. 3172:18-3173:4 (Myers) (testifying that OMH’s development efforts are centered on supported housing and SROs, and noting that supported housing is “less expensive” than other housing models).)
41. In supported housing, people with mental illness live much like their nondisabled peers. Scattered site supported housing is a “normalized” residential setting. (Tr. 654:5-655:6 (Rosenberg).) In other words, it is a setting much like those in which non-disabled persons live. (Id.) It is the individual’s home. (S-150 (D. Jones Report) at 25-27; Tr. 252:8-21 (Tsemberis); Tr. 851:11-25 (Duckworth).)
42. Residents of supported housing sometimes live alone and sometimes share their apartment with one or more roommates. (Tr. 290:10-18 (Tsemberis).) They choose their own roommates. (Id.). Sometimes they lease the apartment directly from the
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landlord, and sometimes they lease the apartment from the provider. (Tr. 316:7-14, 317:16-21 (Tsemberis).)
43. One of the key principles of the State’s supported housing program is to “separat[e] housing from support services by assisting the resident to remain in the housing of his choice while the type and intensity of services vary to meet the changing needs of the individual.” (S-11 (Supported Housing Implementation Guidelines) at 2.) Supported housing providers and other community mental health providers offer support services that vary depending upon the needs of the resident. (S-33 (2007 RFP) at OMH 42726.)
44. In addition to support services provided by the supported housing providers, residents of supported housing can receive other support services, such as Assertive Community Treatment (“ACT”) or case management services. (Tr. 1833:10– 12 (Dorfman) (“All residents in mental health housing, if appropriate, are eligible and can access all the mental health community support services.”); Tr. 1414:20–1416:10 (Reilly) (supported housing residents can receive ACT or case management services); Tr. 3170:19–3171:14 (Myers) (some people in supported housing receive ACT or have an intensive case manager).)
45. ACT is a form of treatment that delivers comprehensive and flexible treatment, support, and rehabilitation services to individuals in their natural living settings. (S-97 (description of ACT from OMH website); see also Tr. 855:13–857:13 (Duckworth).) An ACT team is a multi-disciplinary team, typically including members from the fields of psychiatry, nursing, psychology, and social work with increasing involvement of substance abuse and vocational rehabilitation specialists, that provides
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services tailored to meet the client’s specific needs. (Id.) The purpose of ACT is to deliver comprehensive and effective services to individuals who are diagnosed with severe mental illness and whose needs have not been well met by more traditional service delivery approaches. (Id.)
46. ACT teams can assist recipients with a wide range of service needs, including teaching medication management. (Tr. 938:14–15 (Duckworth); Tr. 1535:21– 1538:24 (Madan).) ACT teams can also assist with daily activities such as personal care and safety, grocery shopping and cooking, purchasing and caring for clothing, household chores, using transportation, using other community resources, and managing finances. (P-372 (ACT Program Guidelines) at 3-4.)
47. ACT teams see clients on average about twice per week but can see individuals as often as twice per day if necessary. An ACT team assigned to a person with mental illness recently discharged from the hospital would typically see that person once or twice a day. (Tr. 228:20–229:15 (Tsemberis).)
48. The Pathways to Housing supported housing program uses ACT with roughly 80% of its incoming clients. (The remaining 20% receive less intensive case management.) (Tr. 230:11–25, 243:9–245:10 (Tsemberis).) Pathways routinely and successfully helps people overcome difficulties with activities of daily living such as laundry, cooking, or using public transportation, and further does not regard such challenges as “difficult issues” to deal with. (Id.)
49. Residents of supported housing have the same freedoms that other apartment tenants do. (Tr. 501:22-502:13 (G.L.); Tr. 2751:18-25 (I.K.); P-546 (A.M. Dep.) 204:23-205:18.) They can control their own schedules and daily lives.
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(Tr. 475:21-477:7, 483:18-487:4 (G.L.); Tr. 290:21-291:11 (Tsemberis).) They are free to come and go when they like. They can live with a significant other, marry and live with a spouse, live with their children, invite whomever they’d like for dinner, decorate their own apartment and have overnight guests. (Tr. 251:11-18 (Tsemberis).) They have the privacy rights and freedoms as any other tenant in a landlord-tenant relationship (Tr. 2160:1-4 (Newman)), including the keys to their own apartment (Tr. 251:19-21 (Tsemberis); Tr. 2751:20-25 (I.K.) (“I can limit what I eat or I can expand my choices. I can have as much salad as I like. I can have as little grease as I like. I can eat foods that were not permitted in the home . . . . I do my own shopping. I do my own food selection. It’s free. It’s freedom for me. It’s freedom. It’s being able to actually live like a human being again.”); Tr. 501:22-502:13 (G.L.) (“Q. You’ve lived five years, approximately, in the adult home, two years and some in Pathways housing, do you have a preference between the two? A. Definitely where I am now. Q. Why is that? A. I have much more freedom. Q. To do what? A. Anything, everything. Q. Would you ever….A. I can have people stay overnight. I can entertain. I couldn’t do that in the adult home. Q. Anything else? A. Visitors can come anytime. Q. And that means something to you? A. Yes. Q. Would you ever voluntarily come back to an adult home? A. No.”).)
50. As Sam Tsemberis, Executive Director of the Pathways to Housing supported housing program, explained, it is the very ordinariness of supported housing, the ability to choose when you wake up and what you eat, that residents appreciate:
You sort of say that like it’s taken for granted. When people first move into an apartment that is so much the thing they appreciate the most, because many of the people that we’re housing out of shelters and hospitals, especially, have been for years told when to wake up, what to eat,
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when to eat, what TV channels to watch, which are selected for them, what they watch, and when they watch it, when they can make phone calls. Every tiny aspect of their life is decided by someone else and what people appreciate immediately are the ordinary day to day freedoms of things, like when you can choose to wake up or go to sleep or watch a TV channel or eat when you are hungry as opposed to when it’s time to eat. They seem ordinary and mundane and are profoundly important to build a sense of well being for the person. (Tr. 290:22-291:11.) 51. Residents of supported housing live and receive services in integrated settings. (Tr. 654:22-655:9 (Rosenberg); Tr. 2915:10-2916:4 (Kaufman).) Compared to Adult Home residents, residents of supported housing have far greater opportunities to interact with non-disabled persons and be integrated into the larger community. (Tr. 653:21-655:8 (Rosenberg); Tr. 482:12-487:4 (G.L.) (supported housing resident describing the guests and family members who have visited, as well as the barbecues and holiday dinners he has prepared for guests in his own home).) In the words of Michael Newman, Director of OMH’s Bureau of Housing Development and Support, supported housing provides “maximum opportunities” for community integration. (Tr. 2162:1721.) III. Virtually All Of DAI’S Constituents Are Qualified For Supported Housing 52. The Court finds that virtually all Adult Home residents are qualified to be served in defendants’ supported housing programs.
A. Supported Housing Is for Persons with Significant Needs 53. Supported housing provides individuals with mental illness with a permanent place to live coupled with flexible support services customized to each
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resident’s specific needs. (See S-101 (1990 Supported Housing Guidelines (reformatted 2005) (“2005 Supported Housing Guidelines”) at OMH 37514; S-33 (2007 RFP) at OMH 42726–28 (describing supported housing).)
54. New York’s supported housing program is specifically targeted to people with mental illness who have significant needs. (Tr. 1505:2–9 (Madan); S-101 (2005 Supported Housing Implementation Guidelines) at OMH 37515 (supported housing is an “approach” designed to ensure that individuals with serious and persistent mental illness5 can choose where they want to live); S-17 (2005 RFP) at OMH 37306-307 (requesting supported housing proposals targeting “high-need individuals”).)
55. Contrary to defendants’ contentions, there is no requirement that individuals receiving supported housing be independent or have minimal support needs. (See, e.g., S-101 (2005 Supported Housing Implementation Guidelines) at 4 (explaining that supported housing is directed at people with serious and persistent mental illness); S17 (2005 RFP) at OMH 37307 (defining target population as “high need”); S-33 (2007 RFP) at 4 (explaining that target population may need ACT or Blended Case Management, and may have a co-occurring substance problem); S-67 (2008 RFP) at OMH 43109 (same); see also Tr. 1506:22:1507:10 (Madan) (agreeing that description of supported housing in S-33 is accurate).) Defendants have targeted for placement in supported housing individuals that, according to them, are “high-need,” defined as “a
5 To be categorized as having a severe and persistent mental illness (“SPMI”), an individual must (a) be 18 years of age or older, (b) have a designated mental illness, and (c) either (1) receive SSI or SSDI due to a designated mental illness, (2) currently have certain functional limitations due to a designated mental illness, or (3) have had certain functional limitations prior to receiving psychiatric rehabilitation and supports and/or medication. (S-17 at OMH 37314.)
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person who, as a result of psychiatric disability, presents some degree of enduring danger to self or others or has historically used a disproportionate amount of the most intensive level of mental health services.” (S-17 (2005 RFP) at OMH 37307; see also Tr. 3170:19–3171:16 (Myers) “There are . . . people that live in supported housing that have extensive psychiatric needs.”).)
56. Nor is there any reason why a person with mental illness who has significant needs could not live in supported housing with appropriate supports. As Dr. Tsemberis pointed out, “you can put someone with severe mental illness in supported housing and it doesn’t matter the degree of severity of illness as long as you match the supports to what they need.” (Tr. 266:17–20; see also Tr. 265:25–266:5 (Tsemberis) (pointing out that most people with severe mental illness in the United States live at home with family); Tr. 139:8–16 (E. Jones) (“[Y]ou start with a place for the person to live and you add and subtract the supports as that person needs them.”); Tr. 812:3–6 (Duckworth) (“[M]y experience has taught me that just about everybody can make it in Supported Housing with the appropriate level of flexible supports.”).) Even defendants’ expert, Dr. Geller, conceded that “those who reside in adult homes could reside in apartments with varying degrees of support.” (Tr. 2370:17–19.)
B. The Court Credits the Conclusions of DAI’s Experts that Virtually All Adult Home Residents Could Move to Supported Housing
57. DAI presented at trial three expert witnesses, Dr. Kenneth Duckworth, Dennis Jones, and Elizabeth Jones, all of whom testified that virtually all Adult Home residents could be appropriately served in supported housing. The Court finds the conclusions of these experts to be credible.
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1. Kenneth Duckworth 58. Dr. Kenneth Duckworth is a licensed psychiatrist with 20 years of experience serving people with serious mental illness. Dr. Duckworth is triple board certified by the American Board of Psychiatry and Neurology in Adult Forensic, and Child and Adolescent psychiatry and has worked in numerous different treatment settings including hospital inpatient, outpatient, supported housing, day treatment, emergency triage and homeless outreach. Dr. Duckworth has interviewed, directly treated, supervised and consulted about the treatment of thousands of people with schizophrenia, bipolar illness, schizoaffective disorder, and depression, among other serious psychiatric disorders. Dr. Duckworth has also served as the Medical Director and Acting Commissioner for the Massachusetts Department of Mental Health, where he was involved with, among other things, placement of hospital patients in more integrated settings and the design and implementation of Programs of Assertive Community Treatment (PACT)—Massachusetts’s version of New York’s Assertive Community Treatment (ACT) program—throughout Massachusetts. (S-152 (Duckworth Report) at 1–4 & S-155 (Duckworth Resume).) In short, Dr. Duckworth is an experienced medical professional with substantial professional experience directly relevant to assessing whether individuals with mental illness are capable of living in supported housing; he is well qualified to opine on this issue. 59. In this case, Dr. Duckworth undertook an extensive analysis of whether Adult Home residents could be served in supported housing. Dr. Duckworth’s analysis included a review of the mental health records of between 260 and 270 Adult Home residents, visits to five Adult Homes, interviews with Adult Home residents, a visit to the
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Pathways to Housing supported housing program, and the review of numerous documents relating to the case, including deposition transcripts of Adult Home residents, materials concerning New York’s supported housing programs, and responses to RFPs issued by OMH for supported housing. (S-152 (Duckworth Report) at 4–5 & Ex. 2 (list of documents considered); Tr. 932:15–22 (Duckworth) (testifying that he also read some RFP responses since drafting this report).)
60. Dr. Duckworth concluded that “there are no material clinical differences between adult home residents and supported housing clients.” (S-152 (Duckworth Report) at 5; see also Tr. 854:11–21 (“Q. And how, if at all, did the clients you visited at Pathways compare to the adult home residents you visited in this case? A. Again, these populations are identical. . . . They all want something for themselves, it seems to me, frequently to live more independently would be the most common theme but the populations don’t differ in any impressive way that stood out to me.”).)
61. Dr. Duckworth further concluded “virtually all of the [Adult Home residents] I looked at I felt would make it in Supported Housing. I looked for things that would contraindicate a person living in Supported Housing and I found relatively few of them.” (Tr. 809:17–20; see also S-152 at 18-19. (“[I]t is clear to me that existing supported housing programs in New York could appropriately serve virtually every adult home resident that I encountered.”); see also S-80 (Duckworth Reply Report) at 2; S-149 (Duckworth Corrected Reply Report) at 1.)
62. Based on Dr. Duckworth’s considerable experience in the mental health field and his extensive analysis of the Adult Homes and New York’s supported housing
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programs, the Court credits Dr. Duckworth’s conclusions, including his conclusion that virtually all Adult Home residents could be served in supported housing.
2. Elizabeth Jones 63. DAI’s expert Elizabeth Jones has over 30 years of experience in the field of mental disability, including positions as the Superintendent/Director of three institutions and the court-appointed Receiver of a psychiatric institution. Ms. Jones has focused a substantial part of her work on the management of institutions and the planning, development and management of community services for people with mental illness and mental retardation. Ms. Jones has also managed the day-to-day operations of two community mental health systems, in which she had a leadership role in planning, developing and implementing services in integrated settings as an alternative to institutional care. Ms. Jones has served as an expert consultant regarding institutional conditions and the development of alternative community-based programs in Massachusetts, Texas, North Dakota, Iowa, Michigan, Romania, Bulgaria and Paraguay. (S-151 (E. Jones Report) at 1 & S-154 (E. Jones Resume).) Ms. Jones is well qualified to render an expert opinion in this case on the question of whether DAI’s constituents are qualified to be served in supported housing. 64. In forming her expert opinion in this case, Ms. Jones visited 23 impacted Adult Homes for a total of approximately 75 hours. These visits included, in addition to six “formal” announced tours of Adult Homes that defendants’ experts also participated in, seventeen unannounced “informal” visits to various Adult Homes. (Tr. 45:4-46:4 (E. Jones); compare Tr. 2295:9-2296:11 (Geller) (describing a total of eight visits to Adult Homes, each with a “rather large group” that included attorneys and experts for both
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parties and staff and owners of the Adult Homes).) During her visits, Ms. Jones personally interviewed 179 residents, some for as long as two hours. (S-151 (E. Jones Report) at 1-2.) In addition, Ms. Jones employed three social workers who observed conditions and interviewed an additional 62 residents in Seaview Manor, Riverdale Manor and Garden of Eden adult homes and prepared summaries of their observations for Ms. Jones’s review. Ms. Jones also considered deposition transcripts and numerous other documents relating to the issues in this case in forming her expert opinion. (S-151 (E. Jones Report) at 1–2 & Ex. 3 (list of documents reviewed).)
65. The social workers employed by Ms. Jones also reviewed a number of resident records from three of the Adult Homes. (Tr. 50:10–23 (E. Jones).) Ms. Jones then reviewed the social workers’ notes on those records, and also reviewed roughly 20 or 25 of those records herself. In responding to the expert report of defendants’ expert Jeffrey Geller, Ms. Jones reviewed over one hundred additional records of Adult Home residents. (Id.)
66. On the basis of her research and experience, Ms. Jones concluded that “virtually all” Adult Home residents could be served in a more integrated setting (Tr. 100:16-21); see also S-157 (E. Jones Reply Report) (concluding that “virtually all” of the residents she reviewed in her sample “could be served” in supported housing).)
67. Ms. Jones found that “there was no reason that [adult home residents] couldn’t live in supported housing if the appropriate supports were provided to them” (Tr. 113:12–20), and that she “saw nothing in [her] visits to the adult homes that would lead [her] to believe that people required more than is available already in the community in New York or that they presented any particular challenge other than what we work
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with every day in the field of mental health.” (Tr. 80:23–81:3.) According to Ms. Jones, while there were some Adult Home residents who would need help with medication management, or various health related services, the “array of supports [that would be needed] are nothing unfamiliar to what’s commonly found in a mental health system today.” (Tr. 82:22–24.) Ms. Jones further concluded that there are “many” Adult Home residents “who could go to [supported] housing with little support.” (Tr. 83:25–84:9.)
68. Ms. Jones also found that Adult Homes are not designed for people with high needs. To the contrary, Adult Homes “do not provide intensive supervision to people, . . . they have restrictive rules and practices, but they do not provide individualized attention to people. So, many people have a place to stay and they have their meals and their medicine, but not a whole lot more than that.” (Tr. 80:7–12; see also S-157 (E. Jones Reply Report) at 1 (noting that she “does not think that the adult home setting provides supports to the extent cited as necessary in Dr. Geller’s report”).)
69. Based on Ms. Jones expertise and her extensive investigation, the Court credits Ms. Jones’s conclusions, including her conclusion that virtually all Adult Home residents could be served in supported housing.
3. Dennis Jones 70. DAI’s expert Dennis Jones served as the top mental health official for the state of Indiana from 1981 to 1988 and the top mental health official for the state of Texas from 1988 to 1994. He was also appointed by a federal district court as the transitional receiver for the Washington D.C. mental health system from 2000 to 2002 and later became a federal court monitor in the same action, a position he still holds today. As part of his role as transitional receiver, Mr. Jones developed a plan to
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completely restructure the public mental health system in the District of Columbia. Mr. Jones also served from 1994 to 2003 as the Administrator/CEO of the largest community mental health center in Indiana. (S-150 (D. Jones Report) at 1–2 & Ex. 1 (Resume of Dennis Jones); see also Tr. 984:1–14.) Mr. Jones is well qualified to opine on the ability of New York’s supported housing programs to serve adult home residents.
71. After extensive investigation, which included review of documents, visits to four Adult Homes, conversations with Adult Home residents and visits to community mental health providers, including supported housing providers (see S-150 (D. Jones Report) at 3–5 & Ex. 2 (listing materials considered)), Mr. Jones concluded that “virtually all mentally ill adult home residents are able to live in integrated community settings such as supported housing” (S-150 (D. Jones Report) at 10; see also Tr. 995:7–13 (“Q. Did you reach a conclusion about whether or not virtually all of the adult home residents residing in the adult homes at issue in this case can live in supported housing with various supports? A. I did. Q. And what was your opinion? A. That—that virtually all could.”)).
72. Based on Mr. Jones’s extensive experience and careful analysis, the Court credits Mr. Jones’s conclusion that virtually all Adult Home residents could be served in supported housing.
C. Defendant OMH’s Own Former Senior Deputy Commissioner Believes that Virtually All Adult Home Residents Could Move to Supported Housing
73. OMH’s own former Senior Deputy Commissioner, Linda Rosenberg, also testified credibly that virtually all Adult Home residents would be qualified for supported
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housing. (Tr. 710:13–15 (“Q. And would it be fair to say that virtually all adult home residents would be qualified for Supported Housing? A. Absolutely.”).)
74. Ms. Rosenberg served from 1997 to 2004 as the Senior Deputy Commissioner for OMH, where she oversaw the “community system of care for people with serious mental illnesses,” including OMH’s housing services as well as, at one point, all of New York’s state hospitals. (Tr. 636:6–18.) Ms. Rosenberg has had extensive experience dating back to the 1970s with Adult Homes and Adult Home residents, as a result of her OMH position as well as previous positions with community mental health clinics and state psychiatric hospitals. (Tr. 640:4–642:24.)
75. Ms. Rosenberg testified that, in her experience, individuals were placed in Adult Homes based on “luck of the draw,” and that Adult Home residents “by and large have similar characteristics” to residents of supported housing. (Tr. 709:2–12.)
76. Ms. Rosenberg further testified that Adult Homes offer “less support in many cases” than supported housing, “because you are left on your own devices—you are not connected to an ACT Team necessarily or even a case manager, maybe sometimes you are, and . . . the home has meals but doesn’t have much more than that going on anyway. It isn’t as if you are tak[en] care of in an intensive way, unless the home brings in a home health care agency . . . .” (Tr. 709:16–21.)
77. The Court finds that, based on her years of experience as a high-ranking OMH official, including extensive experience with adult homes, the testimony of Ms. Rosenberg that virtually all Adult Home residents could be served in supported housing is credible.
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D. Defendants’ Own Adult Home Workgroup Concluded that Large Numbers of Adult Home Residents Should Be Served In More Integrated Settings
78. Shortly after The New York Times published in 2002 a series of articles by Clifford Levy critical of living conditions in Adult Homes,6 the Governor of New York convened the Adult Care Facilities Workgroup to conduct a comprehensive review of Adult Home policies, programs and financing. (Tr. 1369:19–22 (Reilly); 1672:23– 1673:4.) Joseph Reilly, an OMH employee and staff member of the Workgroup, testified that the Workgroup was convened in a “crisis atmosphere.” (Tr. 1369:15–18.)
79. The Adult Care Facilities Workgroup was comprised of a “blue ribbon panel” of various stakeholders in the mental health system, including clinicians, mental health providers, and Adult Home operators. (Tr. 1618:21–1619:9 (Wollner).) The Workgroup members were selected by the Governor’s office and included well-known New York State experts on mental health. (Tr. 1674:20–24, 1688:21-1689:4 (Wollner).) The Governor’s office was active in shaping the Workgroup’s agenda. (Tr. 1673:15–19 (Wollner).)
80. The Workgroup was staffed by no fewer than 38 OMH and DOH employees. (Tr. 1675:19–23 (Wollner); S-103 (Report of the Adult Care Facilities Workgroup, August 1, 2002 (“Workgroup Report”) at DOH 86210–14 (listing staff).) These employees did not merely provide ministerial assistance to the Workgroup; they made editorial and conceptual contributions to the Workgroup and put together the final
6 Although the Levy articles themselves are not in evidence, DAI’s expert Dr. Duckworth testified on cross examination that “if even half of [what was reported in the Levy articles] was true, half, I [had] never seen anything as so egregious in my travels in mental health.” (Tr. 947:21-948:1.)
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Workgroup report. (D-394 (Schimke Dep.) 153:20–154:12.) The Co-Chair of the New Models Sub-workgroup, Karen Schimke, viewed the final Workgroup report as a document “submitted by the Health Department to the Health Department.” (Id.)
81. The Adult Care Facilities Workgroup proposed that 6,000 individuals with mental illness living in adult homes be helped to move to more integrated settings. (S103 (Workgroup Report) at DOH 81644; P-591 (Joint Stipulations of Fact) ¶ 13.)
82. The Workgroup’s proposal was based on its findings that Adult Home residents had similar characteristics to individuals living more independently, a finding that was made after substantial study, deliberation, and research that included presentations from a variety of experts and field visits to various types of housing. (D394 (Schimke Dep.) 123:4–8; S-103 at DOH 86217–23 (listing presentations to and site visits by the New Models Subworkgroup); Tr. 1370:4–1375:2 (Reilly) (describing research activities of the New Models Subworkgroup); see also Tr. 1376:18–21 (Reilly) (agreeing that the Workgroup “relied on a broad array of information that it gathered [after] diligent effort”).)
83. The Workgroup report noted that “[t]he operational construct for [adult home residents with mental illness] was predicated on the belief that all needed congregate level care and are too fragile to live more independently.” It rejected this premise, finding that “[a] great many people with many of the same issues and needs live every day in integrated, community settings across New York State.” (S-103 at DOH 86141; see also D-394 (Schimke Dep.) 300:4–16 (agreeing that the workgroup developed a consensus to reject the “existing paradigm that most of the residents with mental illness
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who are in adult homes are at a very low end of independence or ability for independence”).)
84. Upon its completion, the Workgroup Report was presented to the Commissioner of DOH at the time, Antonia Novello, and was accepted by her. (D-394 at 181:2–21 (noting that Novello “applauded the work of the group”).)
85. No member of the Workgroup objected to or dissented from the Workgroup’s finding that large numbers of Adult Home residents should be served in more independent settings. (See Tr. 1376:13–15 (Reilly) (“Q. Was there a dissenting report appended to the Workgroup’s report? A. There was only one report.”).)
E. Defendants’ Own Survey of Adult Home Residents Establishes that Adult Home Residents Do Not Have Impairments that Would Preclude them from Supported Housing
86. In December 2002, defendants commissioned a study from New York Presbyterian Hospital (the “Assessment Project”) to collect data regarding adult home residents. Defendants paid a total of $1.3 million to New York Presbyterian Hospital for the survey. (P-591 (Joint Stipulations of Fact) ¶ 7; Tr. 1678:14–16 (Wollner); P-583 (Bruce Dep.) 123:18–124:3 (stating that the cost of the Assessment Project totaled $1.3 million).)
87. Linda Rosenberg testified that in her view, the Assessment Project was done to “deflect[] . . . what had become a crisis for the Governor’s office.” (Tr. 739:30740:4)
88. The Assessment Project was conducted by Dr. Martha Bruce, an expert in population-based survey design and sampling procedures who had previously been involved in designing between 15 and 20 such surveys. (P-583 (Bruce Dep.) 16:22-25.)
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In addition, defendants themselves had “a great deal of input” into the design of the survey. (Id.)
89. The Assessment Project assessed 2,611 residents in nineteen adult homes. (P-591 (Joint Stipulatios of Fact) ¶ 8; P-583 (Bruce Dep.) 64:9–11.)
90. One of the purposes of the Assessment Project was to assess adult home residents’ housing needs and desires. (P-583 (Bruce Dep.) 66:20–68:13; P-555 (Liebman Dep.) 25:19–23 (testifying that part of the assessment process “was to review to see if there were people who wanted to live in other settings”), 134:20–135:8 (same).) Adult Home administrator Hinda Burstein testified that when the assessors from the Assessment Project came to her Adult Home, they informed the residents that “they would be interviewing them to see who would possibly qualify in the future for independent housing, and they did let them know that there would be independent housing available to them at some point.” (Tr. 2107:17–2108:10.)
91. The survey established that the vast majority of Adult Home residents could be served in supported housing:
• 74.1% of residents participated in the survey, a very high response rate. (P-583 (Bruce Dep.) 73:3–16.)
• Although the vast majority of adult home residents had mental illness, only 7% of residents had severe cognitive impairments; 66.4% had no cognitive impairments at all. (P-583 (Bruce Dep.) 103:16; 104:12–14;
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P-586 (Adult Home Assessment Project PowerPoint Presentation) at NYPH 1494.)7 • Only a small percentage of residents reported needing assistance with activities of daily living. (P-583 (Bruce Dep.) 101:19–102:16; see also P-586 at NYPH 1492.) • 68.4% of those surveyed had done some meaningful work in the previous two years. (Tr. 1028:12–1029:1 (D. Jones).) • 67% of those surveyed had one or no hospitalizations in the last three years, demonstrating a relatively stable psychiatric population. (Tr. 1029:21–1030:10 (D. Jones).) 92. The high degree of independence exhibited by many Adult Home residents is particularly striking given the tendency of individuals to appear more dependent and disabled when they are observed in institutional settings such as Adult Homes. (Tr. 122:14–17 (E. Jones); D-394 (Schimke Dep.) 54:13–55:2.) 93. In short, the Assessment Project data demonstrates that the vast majority of Adult Home residents are not seriously impaired and could be served in supported housing. (Tr. 1051:6–13 (D. Jones) (Assessment Project data demonstrates that “the amount of supports that people are going to need [in supported housing] are within what I would consider the range of what the New York system can accommodate”).) 94. Indeed, the generally high cognitive and ability levels of Adult Home residents reflected in the Assessment Project data demonstrates that there is “a huge 7 These statistics were not self-reported, rather they were the results of mental status examinations administered by the surveyors. (Tr. 893:10-894:7 (Duckworth).)
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mismatch” between Adult Home residents and the custodial setting in which they reside. (Tr. 1037:18–25 (D. Jones).) Dennis Jones—who has run the mental health systems of two states and the District of Columbia—credibly testified that OMH should have regarded this data as indicating “a big problem” requiring “a very serious multi-year initiative.” (Tr. 1038:1–4.)
95. The testimony of Dr. Ivor Groves confirmed that the Assessment Project data demonstrates that virtually all Adult Home residents could live in supported housing.
96. Dr. Groves has more than 35 years experience working in mental health and related areas of human services. Dr. Groves worked in a large state hospital for nine years and managed a publicly operated human services programs for 15 years, including five years in the highest mental health position in the state of Florida. Dr. Groves has served both as a project director of program evaluations and assessments and as a consumer of evaluations and assessments of adult mental health consumers and programs. He is currently a consultant developing and evaluating mental health and related human services programs for children and adults. (S-156 (Expert Report of Ivor Groves) at 1.)
97. In conducting his investigation, Dr. Groves reviewed Assessment Project data as well as the instruments and methodology for that assessment. Dr. Groves also visited two Adult Homes where he met with several Adult Home residents, visited the Pathways to Housing supported housing program, and read summaries of interviews of Adult Home residents by Elizabeth Jones. (S-156 (Groves Report) at 1-2; Tr. 3085:18– 23.)
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98. Based on his review of the Assessment Project, Dr. Groves found that Adult Home residents “are not a seriously impaired population in the vast majority; meaning, they don’t have severe cognitive deficits and they don’t have real significant problems in daily living skills.” (Tr. 3072:7–17 (Groves).) Dr. Groves testified that, in his view, “the vast majority of [adult home residents] could live in supported housing with appropriate supports.” (Tr. 3074:19–20; see also S-156 (Groves Report) at 4 (testifying that his opinion was that “most, if not all, of the residents of Adult Homes could live in the community with appropriate levels of support”).) The Court finds Dr. Groves conclusions regarding Assessment Project to be credible.
F. There Is No Material Difference Between Adult Home Residents and Supported Housing Residents
99. The evidence presented at trial establishes that Adult Home residents are no more disabled than individuals already served by defendants in supported housing.
100. Several witnesses testified, and the evidence demonstrates, that there is generally little distinction between the psychiatric characteristics of Adult Home residents and supported housing residents. (Tr. 287:12–23 (Tsemberis); Tr. 854:11–21 (Duckworth); Tr. 709:8–12 (Rosenberg); D-394 (Schimke Dep.) 50:6–52:19; S-103 (Workgroup Report) at DOH 86141.)
101. People with mental illness are often placed in Adult Homes not for clinical reasons, but because the adult home is the only housing available when they are discharged from the hospital. (Tr. 646:14–18 & 709:8–12 (Rosenberg); D-394 (Schimke Dep.) 10:10–11:10; P-68 (Stone Memo).)
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102. To cite just one example, resident S.K. testified at trial that when she was discharged from the psychiatric center, although she “wanted to really get an apartment of my own,” the only option offered to her was an adult home. (Tr. 372:10–18.) In raising four children, S.K. did all of the cooking, cleaning, and shopping for her family, and, in addition, worked for nine years as a home health aide, in which she assisted with cooking, cleaning and medication assistance. (Tr. 362:13–365:14.) S.K. further testified that she is fully capable of managing her own money and doing her own cleaning. (Tr. 380:15–16; 382:16–17.) She testified that the only support she would need in her own apartment would be “somebody to call in on me once in while just to see how thing[s] are doing. I’d like to have somebody there that I could call.” (Tr. 390:16–20.) Nevertheless, S.K. was placed in an Adult Home upon her discharge from the hospital.
103. All of the other current and former Adult Home residents who testified at trial (including defendants’ witness, I.K.) also testified that they were given little or no choice about being placed in an Adult Home. (Tr. 448:10–12 (G.L.) (only choices were a long term psychiatric facility or an adult home); Tr. 551:25–552:5 (S.P.) (only choice offered was adult home); Tr. 2685:6–8 (I.K.) (adult home “was the only thing offered” to her upon discharge from the hospital).)
104. Nor are Adult Homes designed to provide individuals with mental illness with the intensive levels of care that defendants (wrongly) claim Adult Home residents require. (D-394 (Schimke Dep.) 289:4–15 (adult homes were designed to house the “frail elderly” and not people with psychiatric disabilities); see also P-68 (Stone Memo) (adult homes developed because “community resources weren’t up to speed with state operated bed reductions” caused by deinstitutionalization); Tr. 647:24-648:9 (Rosenberg) (New
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York did not create adequate community supports for deinstitutionalization and “adult homes kind of filled the gap”).)
105. To the contrary, because supervision in Adult Homes is minimal, individuals in Adult Homes must be able to live with some degree of independence. (Tr. 142:9-11 (E. Jones) (adult homes provide “minimal supervision”); Tr. 709:16–21 (Rosenberg) (adult home residents have “less support in many cases” than supported housing residents; they are “left [to] their own devices[] a lot of the time”); Tr. 1731:14– 18 (Wollner) (adult homes appropriate for individual “who has a mental illness who is able to live independently or with some supportive services”).)
106. Indeed, Adult Homes are prohibited from admitting people who require high levels of assistance with daily living or significant medical care, or who pose a danger to themselves or others. (S-141 (18 NYCRR § 487.4) (listing categories of individuals whom Adult Homes may not admit).)
G. Supported Housing Can Serve Adult Home Residents Requiring Varying Levels of Support
107. The evidence showed that New York’s supported housing programs are remarkably flexible and are more than capable of serving virtually all Adult Home residents, including those that might have relatively high needs. (Tr. 851:8–862:3 (Duckworth); see also Tr. 288:13-289:5 (Tsemberis) (if state issued an RFP to provide supported housing to adult home residents with mental illness, many agencies could serve those individuals); D-399 (Lasicki Dep.) 203:1–9 (executive director of an association of non-profit mental health residential program providers has “no doubt” that member organizations could serve adult home residents.).)
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108. OMH’s own Requests for Proposals (“RFP”s) demonstrate the flexible nature of supported housing. These RFPs describe exactly whom OMH expects supported housing providers to serve, and they make clear that supported housing should not be limited to those with minimal support needs. For example, OMH’s 2007 RFP for supported housing for Adult Home residents states:
Recipients of Supported Housing may be able to live in the community with a minimum of staff intervention from the sponsoring agency. Others may need the provision of additional supports such as Assertive Community Treatment (ACT) team or Blended Case Management (BCM) services. Many recipients will be coping with cooccurring substance abuse disorders and be at various stages of recovery. (S-33 at OMH 42726-27 (emphasis added).) That RFP goes on to note that “[s]ervices provided by the sponsoring agency will vary, depending upon the needs of the recipient.” (Id.) Other OMH supported housing RFPs contain identical or substantially similar language. (See S-67 (2008 RFP) at OMH 43109; S-17 (2005 RFP) at OMH 37307.) 109. The responses by providers to OMH’s supported housing RFPs further demonstrates the flexible nature of supports available to residents of supported housing. In these responses, the supported housing providers make clear that they are willing and able to serve individuals in supported housing who require very high levels of support. (See, e.g., P-286 at OMH 42961 (“a significant range of functional limitations characterize the SPMI population that directly impact their ability to engage in activities associated with normal daily living”); P-394 at 2 (noting that target population “have been traditionally non-compliant with treatment while in the community (including medication regimes, seeking appropriate follow-up services, etc.)”); P-395 at 2 (targeting
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individuals “who have the highest service needs and the least likelihood of succeeding in other housing programs”), P-400 at 5-6 (service needs of clients include “how to navigate public transportation, how to shop for and prepare food, and how to access emergency services”); P-439 at 3 (target population “will need some assistance in developing or redeveloping activities of daily living. Some will require assistance in developing or redeveloping skills in self care”), P-440 at 2 (“service needs of these populations are varied” and may require ACT or intensive case management services); P-442 at 2 (target population may have ACT services and may need service planning regarding “medication compliance, symptom awareness and management, and appropriate community integration”); P-445 at 2 (“the functional limitations of this population are often varied in regard to type and severity and are often a complex mix of issues”); P-530 at 1 (target population may need assistance with “daily living skills,” may have “historically used a disproportionate amount of the most intense level of mental health services” and may “have some enduring degree of danger to self or others.”); P-532 at OMH 0043075 (target population is “institutionalized” and may require range of services, including medication management, substance abuse, budgeting, and socialization).)8
110. Like the RFPs themselves (see ¶ 108, supra), several of these supported housing providers specifically indicate in their RFP responses that supported housing
8 That there might be supported housing providers in New York who limit their services to individuals with minimal needs does not rebut DAI’s showing that even its highest needs constituents are qualified for supported housing. This is especially true in light of the significant number of supported housing providers that are committed to and capable of serving individuals with very high needs. (See Tr. 129:1-20 (E. Jones) (noting that while some supported housing providers provided “more limited supports,” most of the providers responding to the RFPs “work with people that are among the most challenging to provide supports to and supported apartments”).)
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residents with especially high service needs may need Assertive Community Treatment (ACT) while living in supported housing. (See, e.g. P-395 at 7; P-439 at 3; P-440 at 2; P442 at 2 (responses to RFPs).)
111. Linda Rosenberg also confirmed that supported housing providers know how to utilize ACT services to serve individuals with intensive support needs. (Tr. 655:13–656:21.) She testified that OMH in or around 2004 issued RFPs for supported housing and ACT that provided incentives to providers to combine the two services. (Id.) OMH received “lots of responses” to these RFPs. (Id.) According to Ms. Rosenberg, providers “know how to do [supported housing plus ACT], it is something that they have “developed expertise in,” and it is something that is “consistent with their missions.” (Id.)
112. The evidence also showed that while individuals from more institutional settings sometimes require many visits when first moving into supported housing, those visits are usually decreased as the resident becomes adjusted to more independent living. (Tr. 229:7–15 (Tsemberis) (frequency of visits to someone discharged from the hospital would “reduce over time”); Tr. 715:13–20 (Rosenberg) (“I think, people [from adult homes who moved to supported housing] would ultimately need little support, they might go to a clinic, get some treatment. They might have a case manager who checked in with them once or twice a month or telephone called them.”); Tr. 2672:22–2673:4 (Lockhart) (services to new residents of Federation supported housing were able to be decreased over time); S-33 (2007 RFP) at OMH 42727 (“It is expected that the need for services provided by the sponsoring agency will decrease over time as the recipient is more fully integrated in the community.”).)
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113. Case management services, including intensive case management, are also currently available to supported housing residents, including any adult home residents who might move to supported housing. (Tr. 1830:4–22, 1832:10–12 (Dorfman) (“All residents in mental health housing, if appropriate, are eligible and can access all the mental health community support services”); Tr. 1414:20–1415:20 (Reilly) (supported housing residents can receive ACT or case management services); Tr. 3170:19–3171:16 (Myers) (some people in supported housing receive ACT or have an intensive case manager).)
114. The evidence shows the case management services available to residents of supported housing are also flexible and that case managers can visit supported housing residents as often as once or even twice a day as necessary. (Tr. 2172:18–2173:8 (Newman); D-399 (Lasicki Dep.) 94:5–97:21 (supported housing provides “fluid” case management services); see also Tr. 2672:20–21 (Lockhart) (case managers in Federation of Organizations supported housing visited at least one resident as often as twice a day).)
115. While many Adult Home residents would not need ACT or other support services to live in supported housing (Tr. 83:24-84:10 (E. Jones); Tr. 856:14–16 (Duckworth)), the availability of ACT services means that even the highest-needs Adult Home residents could successfully be served in supported housing. (See, e.g., D-399 (Lasicki Dep.) 102:12-20 (explaining that ACT teams can help someone with medication compliance); P-395; P-439; P-440; P-442 (responses to RFPs).)
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H. Supported Housing Providers Can and Do Serve Adult Home Residents
116. The evidence at trial also showed that New York supported housing
providers do not view Adult Home residents as having needs incompatible with
supported housing; indeed, several of them already successfully serve Adult Home
residents.
117. Dr. Tsemberis of the Pathways to Housing supported housing program
testified that Pathways has served five former Adult Home residents, all of whom “did
very well” in supported housing. (Tr. 281:25- 282:22.)
118. Another supported housing provider, Transitional Services for New York,
Inc., in a response to an RFP by OMH, described its experience transitioning three Adult
Home residents into supported housing as very similar to transitioning other individuals:
TSI . . . successfully transitioned three individuals into Supported Housing from local Adult homes. All three of these individuals have remained successfully housed and their transition into independent living was similar to the non-adult home referrals. These three tenants required assistance at a level typical of a referral coming from a long term resident of an apartment treatment program; adjusting their budgeting to meet their monthly financial obligations, developing resources in the community to meet their treatment needs, developing a new daily routine, accessing recreational resources in their new neighborhood and developing vocational supports to return to work. (P-286 (TSI’s RFP Response) at OMH 42975.)
119. In 2007, seven different supported housing providers submitted proposals in response to a legislatively mandated OMH Request for Proposals9 to create 60
9 The 60-bed initiative was imposed on OMH by the legislature; OMH did not request it. (Tr. 3354:10–17 (Schaefer-Hayes); Tr. 1461:3–9 (Madan); Tr. 2142:6–9 (Newman).)
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supported housing beds for Adult Home referrals. Each of these providers plainly believed that it was capable of serving Adult Home residents in its supported housing programs. (Tr. 1509:18–1511:20 (Madan); P-293 (OMH responses to agency proposals submitted in response to 2007 RFP).)
120. OMH awarded contracts to three of these seven providers. (Tr. 1782:11– 15 (Dorfman); Tr. 1511:17-20 (Madan).) Those supported housing beds were subsequently developed, and all 60 of those beds are now either filled or in the process of being filled by adult home residents. (Tr. 1794:20–24 (Dorfman) (45 beds filled and 15 residents currently in the process of moving into the remaining beds).)
121. The Court also heard testimony from two former Adult Home residents who are now successfully living in supported housing:
122. Former resident G.L. moved from an Adult Home to a Pathways to Housing supported housing in 2006. (Tr. 443:13–18.) Prior to living in the Adult Home, G.L. did his own cooking and cleaning, managed his own medications, made and kept medical and mental health appointments, and handled his own money. (Tr. 446:21– 447:17; 492:11–14.) After living in an Adult Home for five years, G.L. successfully transitioned to supported housing. (Tr. 441:3–4.) He currently manages his own medication and finances and does his own cleaning, shopping, cooking, and laundry. (Tr. 463:21–464:21; 485:24–486:6; 495:8–27; 496:18–21; 498:8–9.) G.L. has been successful in supported housing without using ACT services. (Tr. 459:6–7.) G.L. is plainly qualified to be served in supported housing.
123. Former resident I.K. has also recently successfully moved from an Adult Home to supported housing. After 16 years in an Adult Home, I.K. now does her own
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laundry and shopping, and cooks her own meals. (Tr. 2685:9–21; 2751:10–23.) I.K. testified that she is extremely happy living in supported housing. (Tr. 2750:24–2751:25 (“I love it . . . It’s freedom. It’s being able to live like a human being again.”).) I.K. is plainly qualified to be served in supported housing.
I. Defendants’ Own Witnesses Conceded that Significant Numbers of Residents Could Be Served In Supported Housing
124. The Court finds that defendants’ own witnesses do not seriously dispute that there are many Adult Home residents who could be served in supported housing with appropriate supports. (Tr. 2409:13–17 (Geller) (“About 50 percent of the individuals who would otherwise be eligible could go to some form of supported housing either immediately, after transitional residence, with ACT, or with intensive ACT.”); Tr. 1304:15 (Reilly) (there are “undisputably” Adult Home residents who could be served successfully in supported housing); Tr. 1521:3–8 (Madan) (acknowledging that Adult Home residents have been successfully housed in supported housing); Tr. 2084:12–13 (Burstein) (“[O]ften the [adult home] residents have the ability to live independently”); P564 (Tacoranti Dep.) at 225:2–226:8 (agreeing that, based on her experience moving Adult Home residents to supported housing during Adult Home closures, there are current Adult Home residents who could be served in supported housing); P-583 (Bruce Dep.) 111:18–25 (there are individuals in adult homes who are qualified and willing to move to supported housing).)
J. OMH Does Not Require Individuals Leaving Institutional Settings to Proceed Through a “Linear Continuum”
125. The Court rejects defendants’ contention at trial that Adult Home residents are not qualified for supported housing because individuals with mental illness coming
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from institutional settings must move through a “linear continuum” of gradually less restrictive service settings over a period of years before they may “graduate” to fully integrated housing. (E.g., Tr. 1249:23–1253:6 (Reilly) (describing the so-called “linear continuum”).)
126. Although remnants of this outdated approach may still persist in the programs of some community providers, the credible evidence is that defendants’ contention that individuals must move through a “continuum” of gradually less restrictive service settings is a litigation position that is inconsistent with OMH’s own current practices and principles. (See, e.g., P-590 (2008–2009 Executive Budget Recommendation Highlights Testimony) at 4; S-67 (2008 RFP) at OMH 43108).)
127. As early as 1990, when OMH created its Supported Housing Implementation Guidelines, it acknowledged the limitations of the continuum model:
Although many individuals have received beneficial rehabilitation from the community residence program, which has helped them to live successfully in the community, the limitations of this approach have become apparent. People do not want to move each time they make progress in their rehabilitation; often affordable housing is not available for people to ‘transition’ into; and many people do not want or may not require the structure of a residential program. (S-11 (1990 Supported Housing Implementation Guidelines) at 1; S-101 (2005 Supported Housing Implementation Guidelines) at 3.) 128. Linda Rosenberg, the former Senior Deputy Commissioner of the Office of Mental Health testified that, by the time she left OMH in 2004, the linear continuum “was really being abandoned by both New York and most places.” (Tr. 755:6-8.) According to Ms. Rosenberg: “[t]he whole issue of a continuum is also an old idea. It
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used to be thought that people had to move from . . . large congregate settings, to smaller congregate settings, to having a few roommates to eventually graduating to their own apartment. Nobody really thinks that much anymore. First of all, it would be like asking me to move every few months or every year or so just because I have to. So, it’s quite disruptive, and also there is no evidence to show that people do better in the long run with you going through the continuum and, in fact, [people] could be placed directly in their own apartments with the right supports can be quite successful.” (Tr. 653:7-18.)
129. Ms. Rosenberg also made clear that OMH did not develop different types of service settings as part of any deliberate effort to create a “linear continuum” through which individuals needing housing would transition; rather, OMH over time began creating more integrated forms of housing as its thinking evolved about the best way to promote recovery. (Tr. 755:14–756:7.)
130. In recent testimony to the legislature, OMH’s own commissioner disavowed the “linear continuum” model touted by defendants in this litigation. In his January 29, 2008 testimony, OMH Commission Michael Hogan stated that while “many staff and advocates have come to believe” in the linear continuum model, that model is “inherently problematic” because “moving is especially stressful for people with psychiatric disabilities and can contribute to problems and re-hospitalization.” According to Hogan, New York has now shifted its focus to creating “safe, decent and affordable housing that is available long term, linked to flexible services that can be increased or decreased as needed”—in other words, supported housing. (P-590 (2008–2009 Executive Budget Recommendation Highlights Testimony) at 4.)
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131. OMH’s supported housing RFPs further demonstrate that defendants do not really believe that individuals leaving institutional settings must transition through gradually less restrictive service settings before “graduating” to supported housing. In recent years, OMH has issued several RFPs for supported housing that specifically target individuals leaving institutions such as psychiatric centers, Article 28 hospitals, prisons, and adult homes. (See, e.g., S-33, S-67, S-17; see also Tr. 1530:22–1531:1 (Madan) (in some of its RFPs OMH has required supported housing providers to accept referrals from psychiatric centers and prisons).)
132. DAI’s experts, all of whom have worked in the mental health field for decades, testified that the “linear continuum” approach is no longer widely accepted. Dr. Duckworth testified that “the idea that people need to go through transitional housing, another move, another step, I think has been debunked pretty definitively in our field.” (Tr. 846:25–27.) Elizabeth Jones testified that the continuum approach is “outdated” and the accepted approach in the states where she has worked is to provide individuals with permanent housing and add or subtract supports based on their specific needs. (Tr. 136:25–138:10.) Dennis Jones testified that the continuum model is “archaic” and that New York’s views on it have “changed pretty significantly” in the last five to ten years. (Tr. 1140:1–6.)
133. Even Frances Lockhart, the former Federation of Organizations employee called by defendants to testify that Federation still followed the “continuum” approach in operating its programs, acknowledged that Federation sometimes accepts individuals into their supported housing programs directly from psychiatric centers without requiring those individuals to go through a continuum. (Tr. 2670:25–2671:10.)
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134. Finally, to the extent the linear continuum of care model has ever been OMH policy, Adult Homes are simply not a part of that continuum. (D-394 (Schimke Dep.) 48:20–49:18; Tr. 872:3–7 (Duckworth) (adult homes are “not part of a continuum of care”).) The evidence shows that Adult Homes are not transitional residences designed to prepare residents for more independent living; rather, they are permanent “destinations” in which residents are expected to “age in place” until they die. (Tr. 75:25–76:6 (E. Jones) (Adult Homes “permanent placements” not designed for transition; people stay “20 or 30 years with no hope of moving to a community setting”); Tr. 872:8 (Duckworth) (Adult Homes are “destinations”); Tr. 2910:14–2911:9 (Kaufman) (agreeing that OMH views Adult Homes as “permanent” placements and “does not view adult homes as rehabilitati[ve] settings designed to transition consumers from supervised to independent settings”); Tr. 2951:18–19 (Zucker) (Adult Homes are “permanent placements where people are expected to age in place, which means stay there until they die”).) Certainly no evidence was elicited at trial showing that any Adult Home residents actually move through any continuum.
K. Dr. Geller’s Analysis of Whether Adult Home Residents Are Qualified to Move Is Deeply Flawed and Not Credible
135. The Court declines to credit Dr. Geller’s conclusion that only about half of adult home residents could ever be served in supported housing. The Court finds that Dr. Geller’s conclusions ignore important evidence, and are based on a fundamental misapprehension about the characteristics of current Adult Home residents.
136. Dr. Geller drew his conclusions without adequately investigating the ability and willingness of New York’s supported housing providers to serve Adult Home
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residents. In forming his opinion about the capabilities of New York’s supported housing providers, Dr. Geller reviewed only two responses to OMH’s supported housing RFPs, both of which categorically excluded Adult Home residents from applying for beds developed under those RFPs. (Tr. 2412:5–17, 2414:17–25.) Dr. Geller conceded that he was unaware of, and did not review a single response to, OMH’s 2007 RFP to create 60 supported housing beds specifically for Adult Home referrals. (Tr. 2415:18–2416:10.) Nor did Dr. Geller visit Pathways to Housing. (Tr. 2379:13–15.)
137. In concluding from two inapplicable RFP responses that New York’s supported housing providers could not provide the level of services that Adult Home residents purportedly would require, Dr. Geller also did not consider that supported housing residents can obtain services such as ACT or intensive case management to assist them with support needs that are beyond the capabilities of the supported housing provider. (Tr. 2412:5-2414:1.)
138. Dr. Geller’s conclusion that many Adult Home residents were not appropriate for supported housing is flawed for the additional reason that it was based on his mistaken belief that some Adult Home residents posed an immediate danger to themselves or others. (Tr. 2368:1–3 (asserting individuals who pose a danger to themselves or others can be placed in adult homes); see also Tr. 2328:25–2330:7 (contending that DAI’s expert failed to take into account whether adult home residents placed in supported housing might “jump off a roof” or “set fires”).) In fact, as Dr. Geller acknowledged on cross-examination, Adult Homes are not permitted to admit such individuals. (Tr. 2368:25-2369:4.)
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139. Dr. Geller’s analysis of the service needs of certain Adult Home residents is also flawed, and likely overestimates the amount of services they would require in supported housing. Dr. Geller estimated the number of hours of services various Adult Home residents would require if they moved to supported housing without considering the extent to which the residents currently receive these services in the Adult Home. (Tr. 2403:25–2404:22.) Particularly in light of the evidence that Adult Homes provide very minimal assistance with activities of daily living, (see supra ¶¶ 104-06), Dr. Geller’s conclusion likely substantially overstates the amount of services Adult Home residents would require in supported housing. (See Tr. 89:16–20 (E. Jones) (Geller analysis flawed because adult home residents were not receiving in the adult home the services Geller claimed they would need in supported housing).)
140. Indeed, DAI’s experts provided several examples of residents whom Dr. Geller had deemed unfit for supported housing but who in fact appeared to have fairly limited support needs. (See Tr. 122:21–123:15 (E. Jones) (describing a resident Geller classified as needing 24/7 support despite evidence that the individual lived fairly independently at the adult home); Tr. 842:23–850:23 (Duckworth) (discussing three examples in which Geller mistakenly determined that an Adult Home resident could not live in supported housing).)
141. In short, the evidence adduced at trial, including the testimony of DAI’s experts, testimony of OMH’s own current and former employees, and admissions contained in defendants’ own documents overwhelmingly demonstrates that New York’s supported housing program can and does serve individuals with a wide range of support needs and that the support needs of Adult Home residents could, in virtually every case,
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easily be addressed in supported housing. The Court therefore finds that virtually all of DAI’s constituents are qualified for supported housing. IV. The Vast Majority of Adult Home Residents Would Choose to Live in
Supported Housing if Given an Informed Choice 142. This Court finds that the vast majority of Adult Home residents would, if given an opportunity to make a truly informed choice, choose to live in an independent setting such as supported housing rather than in an Adult Home. A. Most Adult Home Residents Had Little Or No Choice In Moving To
An Adult Home 143. By and large, people with mental illness entered Adult Homes neither by choice nor because a mental health professional determined that the Adult Home was the most appropriate setting to serve their needs. DAI’s constituents entered Adult Homes because they had nowhere else to go. According to Linda Rosenberg, OMH’s former Senior Deputy Commissioner, when thousands of patients were discharged from the state’s psychiatric centers, “housing was scarce” and “beds were available” in the Adult Homes. (Tr. 646:10:18; see also P-68 (Stone Memo) (explaining that “adult homes developed in response to a need – lack of community based housing resources”); id. (“Deinstitutionalization happened and the community resources weren’t up to speed with state operated bed reductions.”); D-394 (Shimke Dep.) 10:15-11:10 (“Residents in adult homes, particularly residents with psychiatric disabilities, often were placed there simply because it was . . . four o’clock on a Friday afternoon and they had no other options, not because it was necessarily the place of choice.”).) 144. DAI’s expert Elizabeth Jones reported that she “met very few residents who were offered options other than an adult home.” (S-151 (E. Jones Report) at 3.)
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Many residents had previously been “confined to a state or community psychiatric hospital and were eager to leave that setting,” or had been “homeless and were desperate for an alternative to a shelter.” (Id.)
145. Numerous Adult Home residents testified that they had little or no choice regarding whether to move in to an adult home.
146. Former Adult Home resident, I.K., explained that when she was discharged from the hospital, an Adult Home was “the only thing offered” to her as a housing option. (Tr. 2685:6-8 (I.K.).) The only alternative she was offered to the Adult Home was “another adult home.” (Tr. 2685:22-2686:1 (I.K.).)
147. Similarly, G.L. testified that he was given “two choices” when he was discharged from the hospital: a “long term psychiatric facility” or an Adult Home. (Tr. 448:8-12 (G.L.).) Because he had “already been in a psychiatric facility” and “had no desire to go back into one,” he “decided to take [his] chances with the adult home,” although he had “absolutely no idea” what it would be like. (Tr. 449:14-18 (G.L.).) See also P-537 (P.C. Dep.) 46:12-47:9 (upon discharge from hospital, social worker told her that she should could either move to an adult home or go to a shelter), 187:21-188:14 (she knows that many residents at her adult home “want to move into different housing,” but believes “[t]here are not that many programs for disabled people with mental disabilities in the city”); P-536 (D.N. Dep.) 192:15-201:6 (upon discharge from hospital, was told if she did not take adult home placement, she would not be allowed in that hospital again); P-541 (S.B. Dep.) 137:15-138:18 (resident was discharged from the hospital to a nursing home because he had “nowhere else to go,” and social worker at the nursing home arranged for him to move to an adult home when his “insurance ran out”);
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P-540 (P.B. Dep.) 30:16-31:10 (when she was discharged from hospital, she was sent to Ocean House adult home because her social worker “picked it for [her],” and she was not accepted anywhere else).
B. The Majority of Adult Home Residents Would Choose to Live in Supported Housing if Given a Meaningful Choice
148. The Adult Home Assessment Project found that, of the approximately 2,000 residents with mental illness reviewed, more than 56% expressed an interest in leaving the Adult Home, with 35.5% desiring to move to their own apartment and another 21.2% wanting to move in with family. (P-583 (Bruce Dep.) 94:23-95:6.) A total of approximately 75% of the residents assessed either expressed an explicit interest in living elsewhere or did not express a preference for living in the Adult Home where they were residing. (Tr. 1050:13-1051:13 (D. Jones) (noting that an analysis of the Columbia Presbyterian Assessment data showed that 75% of adult home residents assessed were not opposed to moving).)
149. These statistics, impressive in their own right, likely far underestimate the numbers of Adult Home residents who would express a preference for moving if given a truly meaningful choice.
150. The surveyors conducting the assessments did not educate Adult Home residents about supported housing or other housing options prior to asking them whether they would like to move out of the Adult Home, nor did they inquire as to whether the residents had any understanding of these options. (P-583 (Bruce Dep.) 97:19-98:13.)
151. It is clear from the record that, in fact, most Adult Home residents are entirely uninformed about other housing options and about the wide range of assistance
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that would be available to them in supported housing and other settings. (See, e.g., Tr. 663:5-12 (Rosenberg) (testifying that “for many people in adult homes,” the Adult Home Assessment Project “may have been the first time they heard the words ‘Supported Housing,’ and I’m sure most of the people had no idea in the world [what] Supported Housing was . . . .”); Tr. 2663:15-2664:16 (Lockhart) testifying that residents who have not participated in a case management program would not likely be familiar with alternative housing opportunities); S-151 (E. Jones Report) at 11 (residents “have not been informed about the array of housing options provided by the state of New York, the benefits available to them, or the complement of providers experienced in supporting adults with mental illness”). This testimony supports the Court’s previous finding that “OMH does not provide information about alternative housing options to adult home residents ‘on a routine basis’.” Disability Advocates, 598 F. Supp. 2d at 345.
152. As Dr. Kenneth Duckworth explained, because the residents who were assessed were not presented with a “legitimate alternative that was concrete and believable,” the 56% of residents who reported a preference to move out of the Adult Home is merely “a floor” with regard to who would truly be willing to move if given the proper “coaching” and “encouragement.” (Tr. 810:5-13, 872:10-873:8, 874:18-20, 876:24-877:5.) Indeed, Dr. Duckworth estimates that “probably four out of five” residents would be willing to move to more independent settings if provided with a meaningful option. (Tr. 874:21-875:1.) According to Dr. Duckworth, “the only way we can know the actual choice individuals would make is if we support them in a true choice, including by making options available.” (S-81 (Duckworth Reply Report) at 6.)
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153. Elizabeth Jones likewise opined that, of the 179 residents with whom she spoke during her visits to Adult Homes, “[t]he great majority – 91% . . . wants to live somewhere else,” and would choose to do so if given the opportunity to make an informed choice. (S-151 (E. Jones Report) at 9; see also Tr. 44:17-25 (testifying that “virtually all of the Adult Home residents [she] spoke with would choose independent living or supported housing if they were given a choice of that”).)
154. DAI’s third expert witness, Dennis Jones, reached the same conclusion. In Mr. Jones’ experience, “[i]ndividuals with mental illness routinely choose to live in integrated community settings when they understand their options and are assured that appropriate, reliable supports will be available during the transition and beyond.” (S-150 (D. Jones Report) at 11.) Accordingly, Mr. Jones concluded that, if provided with information about the nature of supported housing along with the programmatic and financial supports available, “the great majority of adult home residents will very likely choose to move to integrated settings.” (Id.; see also Tr. 1020:22-1022:6 (percentage of residents expressing a preference to live in supported housing as opposed to an Adult Home would be “much higher” than the Assessment Project data reflects if they were adequately informed).)
155. Defendants unequivocally acknowledge the importance to mental health consumers of “informed choice” with respect to the settings in which they receive services. According to OMH’s website, “[r]esearch suggests that when people have adequate information regarding their options and are supported in their decision making, they are likely to make healthier and more positive choices. The person who advocates for his/her own choices in regards to services and/or course of treatment is likely to
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recover more quickly.” (S-97 (OMH website (describing ACT) at 3 (internal citations omitted).) “Studies conducted by [OMH]” have revealed that “[p]eople who reported the most satisfaction with their housing choices also reported significantly higher overall quality of life.” (P-527 (OMH, Progress Report on New York State’s Public Mental Health System, January 2001) at 20; see also Tr. 712:18-713:17 (Rosenberg) (testifying that if Adult Home residents were educated about what supported housing is, a “majority” would choose to live in their own apartments rather than an Adult Home).
C. Adult Home Residents Have Continually Expressed a Preference for Supported Housing
156. The conclusions of DAI’s experts are powerfully underscored by the responses of Adult Home residents to the housing forums OMH has conducted in eleven Adult Homes in 2008 and 2009.
157. Hinda Burstein, the administrator of the Park Inn Adult Home, testified that after housing forums were held at Park Inn, residents were “very excited” to learn “that there’s something out there for them.” (Tr. 2083:19-22.) She explained that the path to independent housing for Adult Home residents has historically been unclear, fraught with “very long waiting lists” and bureaucratic hurdles. (Tr. 2083:23-25.) “[H]aving an informational setting where the residents can get all the information they would need to move on was just very, very informative, and it was very encouraging, and it gave residents a lot of hope.” (Tr. 2084:1-4; see also Tr. 2084:12-22 (“O]ften the residents have the ability to live independently . . . and here were real-life people saying . . . ‘you can come live independently,’ and . . . that made them very encouraged.”).)
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158. Documents in the record reflect similarly enthusiastic responses to the other forums. An e-mail from an OMH employee describing a forum at Anna Erika states that when the administrator of the home asked the residents to indicate, by a show of hands, who wanted to move out of the facility, “all of the residents raised their hands,” and “[s]ome of the residents comment[ed] . . . that they feel ‘trapped’ living in the adult home and have no money to move out on their own.” (P-357 (Dorfman e-mail re: Anna Erika housing forum, June 19, 2008).) DAI expert Dennis Jones noted that the residents’ responses, in light of the “intimidating” circumstances, were an indication that the residents are “pretty highly motivated” to leave the Adult Home. (Tr. 1074:17-1075:8.) See also P-354 (Dorfman e-mail re: Brooklyn Adult Care Center housing forum, June 3, 2008) (“Overall, the residents that were in the forum expressed much interest in obtaining supported housing.”); P-355 (Dorfman e-mail re: Sanford Home housing forum, June 6, 2008) (noting that five residents in attendance “expressed a lot of interest in living independently” and asked the housing providers “a lot of on point questions”); P-356 (Dorfman e-mail re: Riverdale Manor housing forum, June 12, 2008) (describing the forum as a “success judging by the number of residents that expressed interest in housing and the numerous questions asked at the end of the forum”); P-358 (Dorfman e-mail re: Rockaway Manor housing forum, June 26, 2008) (residents “asked a lot of good questions at the end of this forum and agreed to participate in the groups that will help them move to independent living”).)
159. That adult home residents are eager to move to more integrated housing is not new information. Lisa Wickens, a Deputy Director at DOH, testified that when she conducted town hall meetings with Adult Home residents about the Assessment Project
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in 2002, residents asked, “When I do the assessment, when can I leave?” (P-566 (Wickens Dep.) 74:19-22.)
160. Numerous Adult Home residents offered testimony about the importance to them of living independently. (See P-540 (P.B. Dep.) 168:17-170:2 (she would prefer an apartment where it would be “much cleaner and you [could] be on your own and you could do what you want to do, and you don’t have to be in at a certain time,” and where she “wouldn’t have to depend” on others to prepare her meals); P-541 (S.B. Dep.) 89:2490:10 (he would like to have his own apartment with his girlfriend); P-542 (L.G. Dep.) 102:15-103:8 (she does not like living in the Adult Home and has wanted to move to her own apartment for a long time.); P-546 (A.M. Dep.) 203:19-204:8 (wanted to move out of the Adult Home so that he could ‘grow” and become “more independent”).
161. I.K., a former Adult Home resident who recently moved to supported housing, provided particularly compelling testimony regarding how moving out of the Adult Home changed her life: “Q. How do you like living in your new apartment? A. I love it. . . . Q. Do you cook your own meals now? A. Yes. . . . Q. What’s different about cooking your own meals versus having them cooked for you? A. I can limit what I eat or I can expand my choices. I can have as much salad as I like. I can have as little grease as I like. I can eat foods that were not permitted in the home. . . . I do my own shopping. I do my own food selection. It’s free. It’s freedom for me. It’s freedom. It’s being able to actually live like a human being again.” (Tr. 2750:24-2751:25.)
162. Other residents testified that, after expressing to case managers or other mental health providers an interest in moving to more independent housing, they received little or no assistance, and were often actively discouraged. S.K. testified that, when she
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has asked her case manager about other options, the case manager “kind of just puts me off,” telling her that “there’s nothing available right now.” (Tr. 390:21-25.) A.M. testified that when he requested assistance from his social worker with filling out the HRA 2000 form—a form that is admittedly complex and that requires input and signatures from various mental health professionals— he was repeatedly put off. P-546 (A.M. Dep.) 140:7-142:22; see also P-536 (D.N. Dep.) 150:17-153:2; 154:10-22; 155:7156:22 (testifying that when she asked her social worker to help her obtain an HRA application, the social worker responded “we don’t do that here,” and told her that she should apply on her own).)
163. As OMH has acknowledged, one of the harms of long term institutionalization is that it instills learned helplessness, making it difficult for some who have been institutionalized to move to more independent settings. (D-182 (2009 Budget Testimony) at OMH 0043461-63.) Several of DAI’s witnesses explained that people with mental illness who have spent much of their lives in an institutional setting tend to be highly reluctant to move on, even if they are eminently capable of living independently. (See, e.g., Tr. 810:8-13, 874:9-20) (Duckworth) (explaining that people with mental illness who have suffered a “history of broken promises” at the hands of the mental health system “tend to be conservative” with respect to change); Tr. 91:5-9 (E. Jones) (testifying that reluctance “isn’t uncommon when people come out of institutional settings where they’ve been dependent for so many years.”); S-151 (E. Jones Report) at 11 (“Many people with mental illness who have been institutionalized are reluctant to make changes in their lives.”); Tr. 258:18-25 (Tsemberis) (describing a “certain passivity and helplessness and demoralization that sets in” among people with mental illness who
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are institutionalized).) As a result, some residents may be reluctant or ambivalent about leaving their Adult Home.
164. Such fear and reluctance is hardly unique to Adult Home residents. The State has long encountered this issue in its psychiatric facilities and has developed effective methods for combating it. Lewis Campbell, who testified regarding the administration of the State’s psychiatric centers, conceded that individuals who have spent long periods of time in a psychiatric facility often become “institutionalized” – that is, they become fearful of, and resistant to, leaving the hospital, even if they are quite capable of living in an integrated community setting. (Tr. 1582:11-1583:10).) Mr. Campbell explained that it is becoming increasingly common for hospitals to incorporate into their discharge policies efforts to assist patients who are “resistive to discussion and/or involvement with the discharge plan.” (Tr. 1583:16-1584:25).) The discharge policy for Manhattan Psychiatric Center, for example, includes a program called “Bridger Services,” which designates a staff person to “accompany patients on formal interviews and trial visits,” “network with community providers so as to provide a smooth transition for their patients,” and “provide follow up during the [post-discharge transition] period to ensure a continuum of care.” (D-11 at OMH 703.) The “Bridgers” “maintain services as necessary until a Community Intensive Case Manager and/or Supportive Case Manager has connected with their patient.” (Id.) Bridger Services have been implemented in the hospital Mr. Campbell administers and are “very effective” in assisting patients with the transition to the community. (Campbell Tr. 1584:4-1585:11.)
165. Having a stable, safe and permanent place to call home is a universal desire. People with mental illness are no different than anyone else in this regard. (See
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Tr. 294:15-19 (Tsemberis) (testifying that a ‘home’, and not merely ‘housing’, provides a “sense of ontological security,” and is an essential “foundation” without which a person will not “be able to consider their treatment needs, or their higher order needs”); Tr. 851:15-23 (Duckworth) (“Most people have the dream of having their own place whether they’ve been saddled with schizophrenia or not. It’s an American phenomen[on] to want to have your own place . . . .”); Tr. 1010:20-1011:8 (D. Jones) (when people have a safe and permanent home, they can “meaningfully go to work on the other aspects of their lives, including . . . treatment engagement”).)
166. Indeed, OMH’s own “guiding principles” state that “[h]ousing is a basic need and necessary for recovery. Most people want permanent integrated housing that is not bundled with support services (housing as housing).” (P-59 (OMH Guiding Principles) at 2); see also P-527 (OMH, Progress Report on New York State’s Public Mental Health System) at 19 (“For most of us, achieving a sense of community belonging hinges on having a decent place to call home.”); Tr. 2159:1-4 (Newman) (agreeing with the proposition that, “by and large, supported housing is what mental health consumers are telling the Office of Mental Health they want today”).)
167. This Court concludes that the vast majority of Adult Home residents would, over time, choose to leave the Adult Home if given sufficient information and assistance. This Court further finds that, to the extent some long-term Adult Home residents express reluctance or ambivalence regarding their preferences to stay in an Adult Home or move to another setting, it is incumbent upon defendants to provide the education and support necessary to enable residents to make truly informed decisions.
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V. Defendants Have No Olmstead Plan for Adult Home Residents 168. The State does not have a comprehensive or effective Olmstead plan to
enable Adult Home residents to receive services in more integrated settings. (P-553 (Kuhmerker Dep.) 29:8-30:3.) There is no written Olmstead plan for Adult Home residents. (P-553 (Kuhmerker Dep.) 29:21-23 (explaining that with regard to the “comprehensive statewide plan” mandated in the MISCC statute, “there is no one specific document that one could point to”).) At trial, not one witness testified to the existence of a plan—either written or unwritten—to enable DAI’s constituents to move to more integrated settings.
A. Defendants Do Not Believe an Olmstead Plan is Required for People with Mental Illness in Adult Homes
169. Defendants have repeatedly stated that there is no need for an Olmstead plan for Adult Home residents because, they argue, Adult Homes are community-based facilities. (S-133 (Defs’ Obj. & Resp. to P.’s First Set of Requests for Admissions) at 9; S-87 (Defs.’ Amended Obj. & Resp. to Pl.’s First Set of Requests for Admissions) at 2).)
170. Indeed, the evidence presented at trial established that the State considers Adult Homes to be permanent placements rather than settings designed to transition residents to more integrated settings. (Tr. 1580:24-1581:2 (Campbell); see also S-54 (Kaufman Report) at 5-6; Tr. 690:23-691:3 (Rosenberg) (testifying that “certainly no one seems to leave unless they get rehospitalized or get ill and go to the hospital for a physical reason).) As defendants’ expert Mr. Kaufman explained, OMH does not view Adult Homes “as designed to transition consumers from supervised to independent living.” (S-54 (Kaufman Report) at 5.)
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171. Consistent with defendants’ view that Adult Home residents are not entitled to an Olmstead plan, the Most Integrated Setting Coordinating Council (“MISCC”) established by the State legislature in 2002 has no plan to move Adult Home residents to more integrated settings. (S-133 at 12.) The statutorily mandated purpose of the MISCC is, among other things, to “develop and implement a plan to reasonably accommodate the desire of people of all ages with disabilities to avoid institutionalization and be appropriately placed in the most integrated settings possible.” (S-133 at 12, citing N.Y. Exec. Law § 700.) The Legislature mandated that the MISCC “develop and oversee the implementation of a comprehensive statewide plan for providing services to individuals of all ages with disabilities in the most integrated setting.” (S-133 at 12, citing N.Y. Exec. Law § 703.) The MISCC statute requires the MISCC to put together a plan for how the State will ensure that people are able to reside in the most integrated settings. (P-553 (Kuhmerker Dep.) 27:4-9.)
172. To date, however, MISCC has not developed, and is not developing, a plan to move residents of Adult Homes. (S-133 at 12.) In fact, the MISCC has not done anything specific with regard to assisting adult home residents to move to more integrated settings. (P-553 (Kuhmerker Dep.) 31:4-7; id. 53:20-54:2.) The MISCC has no plan “for placing adult home residents who otherwise meet the criteria for living in supported housing or OMH community housing into any of [those] types of residential programs.” (P-553 (Kuhmerker Dep.) 33:12-24; see also id. 31:4-15 (providing testimony pursuant to Rule 30(b)(6) that “I don’t believe there’s been anything specific that the MISCC has done to specifically address in any way, shape or form individuals who happen to reside in adult homes,” other than that there were “occasional discussions”
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regarding adult home residents).)) And nothing in the MISCC’s 2006 annual plan shows any effort to address integration of adult home residents. (Tr. 1083:11-1087:13 (D. Jones); see also P-589 (MISCC 2008 Annual Report).) Indeed, the State denies that MISCC has any obligation to do so. (S-133 at 12.)
173. Defendants argue that they have demonstrated a long-standing commitment to providing community-based services to people with mental illness. (Tr. 30:4-10.) However, much of the evidence presented at trial concerning New York’s commitment to providing community-based services to people with mental illness had little to do with Adult Home residents. For example, defendants presented evidence that over the last several decades, the State has reduced the census in state psychiatric hospitals and described the policies and procedures for discharging patients from psychiatric hospitals to other settings. (Tr. 1557:7-8; 1567:1-1577:25, Tr. 1559:3-1560:6 (Campbell).) This evidence is not relevant, however, to the issue of whether defendants have a comprehensive or effective plan to enable Adult Home residents to move to alternative settings. Indeed, the reduction in the census of state psychiatric hospitals over the past several decades was made possible in significant part because the State used Adult Homes as settings in which to discharge patients from the State’s institutions. (Tr. 647:14-648:14 (Rosenberg); P-68 (Stone Memo); Tr. 1577:13-25 (Campbell); Tr. 1004:11-22 (D. Jones).)
174. Similarly, defendants presented evidence concerning activities of OMH’s Division of Children and Family Services and forensic unit. (Tr. 3148:7-3153:23 (Myers).) Evidence of defendants’ general commitment to deinstitutionalization and development of community programs and services for people with mental illness other
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than Adult Home residents, however, is irrelevant to the issue of whether an Olmstead plan for Adult Home residents exists.
175. Defendants also cited the development of OMH community housing as part of their Olmstead plan. They presented evidence that between 1995 and 2009, OMH increased the number of beds in operation in its community housing program from 18,940 to 32,633 and that defendants currently fund 13,557 supported housing beds. (Tr. 1936:12-1941:22 (Newman); D-350 (OMH Community-based Bed Chart, Mar. 31, 2009).) But because of the way defendants administer the supported housing program, Adult Home residents have gained access to very few supported housing beds.
176. The State develops new supported housing beds through a request for proposal (“RFP”) process. (Tr. 1927:16-1929:8 (Newman) (explaining that RFPs “are the State of New York’s way to allocate resources”).) When OMH develops supported housing, it identifies a target population for the housing as a “priority” that will receive a preference for new housing being developed. (See, e.g., S-17 (2005 RFP).) The system is administered to effectuate the target or priority populations, and it is very unlikely that somebody who is not a member of a priority population will receive a supported housing bed. (Tr. 2189:3-23 (Newman); Tr. 1532:10-1533:3 (Madan) (“We expect that the providers who are awarded beds under this particular—under any one particular RFP adhere to the priority populations listed in that RFP. . . . [A]ny opening would be filled by someone who belongs to one of the priority categories”); Tr. 1312:25-1316:6 (Reilly) (“So there are priority populations that when a referral is being made to a residential provider that the residential provider is expected to have – to accept a referral from these priority populations…”).)
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177. Adult Home residents have not, historically, been a target group for supported housing. (See S-11 (1990 Supported Housing Implementation Guidelines); S101 (2005 Supported Housing Implementation Guidelines); Tr. 2176:1-11 (Newman).) The Supported Housing Implementation Guidelines developed in April 1990 set forth a number of target populations to be served in Supported Housing, including “individuals ready to leave certified community residences; individuals discharged from psychiatric centers; and individuals who are currently homeless, living in shelters, depots or on the streets.” (S-11 at 3.) The target populations did not include Adult Home residents. (Id.)
178. Adult Home residents were not identified as a target population until 2005. (Tr. 1534:16-22 (Madan); S-17 (2005 RFP).) Thus, prior to 2005, Adult Home residents were effectively excluded from Supported Housing beds developed by OMH. (Tr. 1532:10-1534:22 (Madan).) The designation in the 2005 RFP was only effective for new supported housing OMH was in the process of developing; it did not grant Adult Home residents access to older supported housing already developed by OMH. If and when beds developed under a particular RFP are vacated, they must be filled with members of the priority populations enumerated in the RFP which created the beds. (Tr. 2193:152195:9 (Newman); Tr. 1532:24-1534:22 (Madan).)
179. Even after Adult Home residents were designated as a priority population for newly developed supported housing, they continued, for the most part, to be denied access to supported housing because members of other priority populations received higher priority. (Tr. 660:12-23, 662:6-18 (Rosenberg); Tr. 1089:15-1091:4 (D. Jones); Tr. 2165:11-2166:17, 2198:9-2199:2 (Newman).) Indeed, Linda Rosenberg testified that
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neither OMH’s Single Point of Access (“SPOA”) 10 program nor the designation of Adult Home residents as a priority population in RFPs had any impact on Adult Home residents’ access to supported housing beds. (Tr. 662:11-13 (Rosenberg) (“[They] didn’t have access before and they continued not to have access for the most part”); Tr. 3500:14-3501:6 (D. Jones) (“The state has demonstrated that it has the will and the ability to create additional supported housing slots . . . . The sad reality is that in doing that, it left behind a whole group of people over in adult homes who have not had access to that”).)
180. In 2007, the New York legislature set aside 60 supported housing beds exclusively for people with mental illness residing in Adult Homes. (Tr. 1460:25-1461:9 (Madan).) OMH did not propose or advance this initiative, and defendants made clear that there is no plan to undertake a similar initiative in the future. (Id.; see also Tr. 1510:8-10 (Madan).) In fact, Adult Home residents appear no longer to be a priority population for supported housing beds. (P-748 (2009 RFP).)
181. Although defendants assert that some Adult Home residents have moved to alternative settings (Tr. 3182:16-3183:17 (Myers)), the evidence demonstrates that from 2002 to 2006, only nineteen Adult Home residents moved to supported housing in New York City (P-149 (OMH Response to FOIA Request Re: Movement of Adult Home Residents to OMH Adult Residential Programs since 2002); Tr. 1080:20-1081:25 (D.
10 “SPOA” refers to a program in which all applications for OMH Housing for Persons with Mental Illness are sent to a centralized source rather than to individual supported housing providers. (Tr. 1468:3-1469:10 (Madan); see also Disability Advocates, Inc., 598 F. Supp. 2d at 305.)
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Jones)). According to OMH itself, the majority of Adult Home residents who moved to OMH housing from 2001-2006 were in counties outside of New York City. (P-149.)
182. It is difficult to measure the number of Adult Home residents who have attempted to receive supported housing and failed because defendants do not maintain waiting lists for residents of Adult Homes who have expressed a desire to move to more integrated housing. (S-133 (Defs.’ Obj. & Responses to Pl.’s First Set of Requests for Admissions) at 10-11; S-130 (Defs.’ Resp. to Pl’s. Statement Pursuant to R. 56.1) ¶ 42; P-555 (Liebman Dep.) 19:2-5.) Although the Center for Community Services (“CUCS”), the SPOA provider for housing programs in New York City, maintains a list of housing program vacancies, defendants do not maintain any waiting list for any of the OMH Housing Programs, let alone one for Adult Home residents. (S-130 ¶ 67; Tr. 1464:11465:22 (Madan).) Kathleen Kelly, a representative of the New York City Human Resources Administration, the agency that processes applications for OMH community housing in New York City, testified that while 807 Adult Home residents applied for OMH housing between the years 2000 and 2006, HRA does not know the outcome of the applications because it does not keep track of placements, acceptances into, or rejections from OMH community housing. (Tr. 1911:14-20; 1913:2-1914:9.)
183. In 2005, the Legislature passed a law that would have required OMH to establish a community housing waiting list for adults “who have been referred to or applied for but have not yet received supported, supportive, supervised or congregate housing services.” (S-23 (Veto of Assembly Bill No. 2895-A) at 1.) Unfortunately, Governor Pataki vetoed that bill “based on objections raised by OMH.” (Id.)
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B. The Programs Available to Adult Home Residents Do Not Constitute An Olmstead Plan
184. Notwithstanding their assertion that an Olmstead plan for Adult Home residents is not required, the State has also argued that certain of defendants’ activities are “targeted specifically at adult home residents” to enable them to be integrated in the community and to move from Adult Homes. (Tr. 30:19-25.)
185. For example, the State presented evidence concerning programs that residents attend outside the Adult Homes, such as continuing day treatment programs and mental health clinics. Defendants argued that such programs are intended to teach Adult Home residents the skills to be able to live in more independent settings. But the evidence showed that these programs are ineffective and wasteful. (Tr. 1380:9-1382:24 (Reilly) (agreeing that there were substantial problems with continuing day treatment programs in New York State).) Many programs provided to Adult Home residents are grossly infantilizing. (P-568 (M.B. Dep.) 54:15-55:23; P-569 (G.H. Dep.) 73:8-20; P-537 (P.C. Dep.) 43:14-43:6; Tr. 2561:24-2562:9 (Waizer) (explaining that computer skills groups consist of software “we would use with my granddaughter, for a three- or fouryear-old”).) The continuing day treatment programs that enroll Adult Home residents are characterized by deficient treatment planning; group TV and movie watching; and coloring books. (See generally P-93 (New York State CQC, Continuing Day Treatment Review); D-65 (DOH Letter to Jewish Board re Continuing Day Treatment Programs); Tr. 1432:7-1435:6 (Madan) (explaining citations by OMH of a continuing day treatment program provider for deficiencies in medication management training, client assessments and treatment plans).) Although many residents were interested in finding work or learning skills for work, less than 20% of these programs’ treatment plans reviewed in a
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study had treatment objectives for finding work, and only 14% had objectives for obtaining vocational training. (P-93 at 13.) Indeed, the Chief Fiscal Officer of OMH explained that the State has shifted resources away from supporting continuing day treatment programs because they are outdated. (Tr. 3317:1-3318:7 (Schaefer-Hayes).)
186. Defendants also pointed to certain initiatives undertaken by the State related to Adult Homes, including the Case Management Initiative and the EnAble Program. In 2002, OMH created the Case Management Initiative, which was designed to provide independent service coordinators, who are not employed by the Adult Home, to be responsible for working with Adult Home residents to identify goals, coordinate services and put together a service plan. (Tr. 1307:-1308:13 (Reilly). The program also included a mental health peer to work with the case manager. (Tr. 1308:14-1309:14 (Reilly).) The State initially implemented the program for 690 residents in three homes, Brooklyn Adult Care Center, Riverdale Manor and Queens Adult Care Center. (Tr. 1321:2-14; Tr. 1325:11-19 (Reilly).) The program was eventually implemented in eight additional Adult Homes, and as of 2007, provided services for 2100 Adult Home residents. (Tr. 1338:22-1339:1 (Reilly).) OMH has no plan to expand the program into additional Adult Homes. (Tr. 1834:24-1835:5 (Dorfman).) Thus, the Case Management Initiative can only assist less than half of the Adult Home residents at issue in this case.
187. The initial RFP for the Case Management Initiative does not mention, as part of the services to be provided, assistance with locating alternative housing for Adult Home residents interested in moving. (Tr. 1384:19-1385:25 (Reilly).) Additionally, defendants have not determined whether the Case Management Initiative has actually been effective at assisting Adult Home residents to move to more integrated settings. (Tr.
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1835:15-18 (Dorfman); Tr. 1704-23-1705:2 (Wollner) testifying that he does not know of any analysis); Tr. 2918:19-2919:6 (Kaufman).)
188. But the Case Management Initiative will not enable them to achieve independent living as long as there are few, if any, supported housing beds available to them. (Tr. 1172:1-1173:2 (D. Jones) (“[I]f case management – primarily what it does is to arrange services within the existing setting and not really deal – not deal frontally with the issue of where people live, then it is not accomplishing very much. . . . [U]nless you have a systemic initiative here that moves to create significant numbers of supported housing slots into which people can go and there is a clear organizational commitment to make that happen up and down the line, no individual case manager is going to do anything more than what I think they have been doing, which is doing the best they can, without any commitment. And that translates into the status quo.”).)
189. Currently, the vacancy rate in supported housing is less than 2% (Tr. 1503:9-1504:2 (Madan)), and as described above, because of the way the supported housing program is administered, Adult Home residents are by and large unable to access supported housing.
190. In the majority of impacted Adult Homes, which do not have the Case Management Initiative, there is no effective assistance with accessing supported housing. (Tr. 2917:3-2918:4 (Kaufman) (testifying about his observations that Adult Home staff were not “up-to-date” and “could benefit from education as to what is going on in the field,” what expectations are possible, and “what services could be provided . . .”); Tr. 2663:15-2664:16 (Lockhart) (witness who oversaw a 25-bed supported housing apartment program from 2000 to 2008 testified that residents who have not participated
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in a case management program would not likely be familiar with alternative housing opportunities).) While defendants’ witnesses repeatedly testified that they “expected” Adult Home case managers to follow up on residents’ expressed desires to move to more integrated housing, (Tr. 1500:13-1502:3 (Madan); Tr. 1365:16-1366:11 (Reilly)), they conceded that they have no idea whether residents receive any information from those case managers about alternatives. (Tr. 1835:15-18 (Dorfman).) Moreover, because some Homes have been cited for a failure to follow up on residents’ expressed desire to move (see supra, ¶¶ 162 (Joint Stipulations of Fact ¶ 22)), the assumption that those case managers are effective at assisting residents is unwarranted. Indeed, several current and former Adult Home residents testified that standard case management is ineffective at moving people to supported housing. (Tr. 390:23-391:17 (S.K.) (testifying that she spoke with her case manager about moving to alternative housing about a year ago, but has not heard anything further from the case manager); P-540 (P.B. Dep.) 123:7-21 (testifying that the Adult Home’s case manager is not effective). Indeed, if defendants truly believed that the existing programs and activities were effective, they would not have undertaken the Case Management Initiative in eleven Adult Homes.
191. Defendants have also referenced the EnAble Program as part of their Olmstead plan for Adult Home residents. (Tr. 3404:16-25 (Rule 50 arguments).) The Department of Health initiated the EnAble program in 2004 to provide $100,000 to a few Adult Homes in order to provide certain activities and services within the facilities. (Tr. 2902:18-2903:9 (Kaufman) (describing the provision of teaching kitchens and laundry facilities in a few Adult Homes); Tr. 2084:23-2085:6 (Burstein) (explaining her understanding that the EnAble Program is “an opportunity for adult homes to receive
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funding from the Department of Health to do projects or programs for the enhancement of the residents”).)
192. Only eight Adult Homes at issue in this litigation have received EnAble grants, (D-132, D-133, D-135-139), and the State has not determined whether the EnAble Program has resulted in any Adult Home resident moving to more integrated settings as a result of any Enable grant in any Home. (Tr. 1717:5-13 (Wollner).)
193. Even if the EnAble Program were teaching independent living skills, the training is meaningless as long as Adult Home residents do not have the opportunity to apply the skills. Both parties’ experts testified that independent skills training is effective only if coupled with the opportunity to apply such skills in real life. (Tr. 67:20-69:6 (E. Jones) (“These are more artificial activities that have been set up with the idea that you can teach people skills in the adult home that they will then take with them to a community placement if that ever becomes available and actually, that’s not the practice in the mental health field. We know that people with serious mental illness have difficulty in generalizing information and that the most successful way to teach people skills and to help them recover skills and retain skills is to have them practice them on an ongoing basis in the place where they live or work”); (Tr. 2360:9-2361:1 (Geller) (“[I] believe the system needs to have that person exist in an environment where they can use the skills and, in addition, have whatever additional resources for security that they need”); Tr. 1387:6-1388:2 (Reilly) (acknowledging that medication management is an important skill, but that many Adult Homes do not afford residents the opportunity to demonstrate that skill).) So training residents in how to cook, for example, is not helpful because they are not permitted to cook their own meals in the Homes. (P-552 (Kerr
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Dep.) 190:2-5 (explaining that DOH prohibits Adult Home residents from cooking their own meals.)
194. In fact the recent initiatives developed by defendants will not be effective because the Adult Home model is at odds with the development of independent living skills, discourages residents from moving to more independent settings, and actually fosters dependence. Adult Homes are for-profit institutions, and as such, they have no incentive to support residents to move on. (Tr. 1384:19:1385:25 (Reilly) (explaining that a concern of OMH in implementing the Case Management Initiative was that Adult Homes would be resistant to permitting the program to operate in the Homes); (P-536 (D.N. Dep.) 150:17-152:21 (testifying that adult home staff is unhelpful with assisting residents to move out); P-541 (S.B. Dep.) 97:11-98:24 (testifying that adult home staff was unhelpful when resident expressed desire to move).) The Adult Home model is a dependency-based model that impedes the prospect of moving to other settings. (Tr. 2734:21-2735:2 (I.K.) (former adult home resident currently living in supported housing who explained that she was initially ambivalent about moving out of the Adult Home “because the adult home fosters complete dependency upon them to do everything for you, discourages independence, does not provide information about services to help you get out of the home”); Tr. 1011:9-1013:11 (D. Jones) (“I think there are many aspects of what happens in adult homes that really has to do singularly with, to use a little bit kinder word, with sort of maintenance of the status quo. . . . [W]e want today to look like yesterday and tomorrow to look like today . . . .”).)
195. Instead of evidencing components of a commitment or plan to enable Adult Home residents to move to more integrated settings, the recent State initiatives
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targeted specifically to Adult Home residents evidence a commitment to supporting the continued use of Adult Homes as settings in which to provide services to people with mental illness. VI. The Evidence Shows that the Requested Relief Would
Cost No More Than the Current System 196. The State has the burden of proving its fundamental alteration defense, including the financial impact of the costs of the relief sought by DAI. The State has not, however, done an analysis to determine the financial impact of serving people in supported housing instead of Adult Homes. (Tr. 3368:7-3369:8 (Schaefer-Hayes).) 197. Defendants’ witnesses assert that if the State were required to serve thousands of Adult Home residents in scattered-site supported housing, the State’s costs to serve those persons would increase. (See D-398 (Chart prepared by Gregory Kipper); D-441 (Chart prepared by Martha Schaefer-Hayes); Tr. 2774:20-2775:1 (Kipper); 3341:6-3342:9 (Schaefer-Hayes).) DAI’s witnesses assert, however, that the State fails to take into account savings that would occur in a number of areas if adult home residents were served instead in supported housing. (See generally P-773 (D. Jones Summary of Cost Evidence); S-150 (D. Jones Report) at 20-28; S-148 (D. Jones Rebuttal Report) at 1-6.) After considering all the evidence, as described in detail below, the Court finds that it would cost no more for the State to serve DAI’s constituents in supported housing instead of Adult Homes.11
11 As shown below, the costs to the federal government would be significantly lower as well.
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A. Funding Sources and Amounts for Adult Homes and Supported Housing
198. In general, residents of Adult Homes and supported housing use Supplemental Security Income (“SSI”), an income supplement for low income people with disabilities, to pay for all or part of the cost of their housing. (See P-591 (Joint Stipulations of Fact) ¶¶ 9, 28.)
199. Adult Homes are classified as Congregate Care Level III housing for the purposes of determining the SSI benefit level that Adult Home residents receive. (Id. ¶ 14.) Currently, Adult Home residents in New York City receive $16,416 per year in SSI; the federal government pays $8,088 of that amount, and the State pays $8,328. (Id. ¶ 27.) An Adult Home resident uses most of the SSI benefit to pay the Adult Home for room, board, three meals a day, housekeeping, personal care and supervision. (Id. ¶ 28.) Residents keep a small portion of the SSI benefit as a Personal Needs Allowance (“PNA”). (Id.) In 2009, in New York City, the PNA for adult home residents is $2,136 per year, or $178 per month. (Id.)
200. Scattered site supported housing consists of apartments scattered among various buildings. (Id. ¶ 11.) Scattered site rental apartments are funded directly by OMH in the form of a rental stipend, and through the individual resident’s income, which often consists only of SSI. (Id. ¶ 29.) The State pays a per-resident stipend directly to supported housing providers. The current per bed stipend paid by OMH for supported housing is $14,654.12 (Id. ¶ 33.) Individuals residing in supported housing receive the
12 Some portion of the amount of money the State currently pays to supported housing providers as a rental stipend goes to provide case management services that are potentially eligible for Medicaid reimbursement. (Tr. 3268:17-3269:15 (SchaeferHayes).) If the State were to seek to make that expense coverable by Medicaid, it could share the cost of those services with the federal government. (Id.) OMH has
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SSI Living Alone Rate and are required to pay 30% of this payment, i.e. 30% of their income, toward housing costs to the not-for-profit provider. (Id. ¶¶ 9, 30.) The 2009 Living Alone rate was $9,132 per year ($761 per month), of which the State’s share is $1,044 per year ($87 per month). (D-347 (SSI Benefit Levels Chart effective January 1, 2009).)
201. Defendants’ argument that there would be increased cost to the State is based on the premise that the only relevant costs are the OMH rental stipend and SSI. Based on that faulty premise, the State asserts it would cost an additional $7,370 for each Adult Home resident served in supported housing instead of an Adult Home, which is the amount by which the OMH rental stipend of $14,654 and the State contribution of $1,044 to SSI for an individual in supported housing exceeds the State’s contribution to SSI for an individual living in an Adult Home. (Tr. 2780:22-25 (Kipper); D-441 (Chart prepared by M. Schaefer-Hayes); D-398 (Chart prepared by G. Kipper).) Defendant’s analysis, however, fails to consider all of the relevant costs to the State to serve residents in Adult Homes.
declined, however, to seek Medicaid reimbursement for that portion, arguing that the potential recovery “is not substantial enough to invest or require providers to invest in Medicaid billing systems to try to go after that.” (Tr. 3276:22-3277:1 (SchaeferHayes).) However, Ms. Schaefer-Hayes testified that 10-15% of the rental stipend funds go to case management. (Tr. 3276:13-15.) Accordingly, the amount of Medicaid recovery to the State from the federal government if those funds were sought could be nearly $10 million. (The amount of the stipend ($14,654) x 10% x approximately 13,500 supported housing beds (see ¶ 175, supra), divided by half because the State pays half of Medicaid = $9.9 million.)
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B. The Evidence Shows that Medicaid Costs for People Living in Supported Housing Are Significantly Lower Than Medicaid Costs for Adult Home Residents
202. Residents of Adult Homes and supported housing receive services funded by Medicaid, which is paid for jointly by the State and the federal government. (S-55 (Kipper Report) at 7-8 & n.4.) For Medicaid-eligible individuals, the State pays for half the costs of Medicaid-funded services, including primary care, hospital care, psychiatric care, prescriptions, psychologists, Medicaid transportation, case management, and various other medical services. (See generally P-63 (DOH Analysis of Medicaid Expeditures in Impacted Adult Homes (“State’s Analysis”).) Defendants’ comparison of the costs of Adult Homes versus supported housing ignores Medicaid costs. (Tr. 2788:15-19, 2789:20-23 (Kipper); Tr. 3382:25-3384:8 (Schaefer-Hayes); Tr. 3438:223439:16 (D. Jones Rebuttal).)
203. At DAI’s request, the State undertook a comparison of the Medicaid costs for residents of Adult Homes and residents of supported housing for the fiscal year 20042005. 13 (Tr. 3421:8-12 (D. Jones Rebuttal); see P-63 (State’s Analysis).) In that analysis, the overall annual Medicaid costs for a person residing in an Adult Home was, on average, roughly $15,000 higher than the average Medicaid costs for an individual with mental illness in supported housing. (P-63 (State’s Analysis) at DOH 0131663-64; P-773 (D. Jones Summary of Cost Evidence) at 1; Tr. 3424:2-14 (D. Jones Rebuttal); S55 (Kipper Report) at 8; see also generally P-228 (New York State Commission on Quality of Care, Adult Homes Serving Residents with Mental Illness: A Study on Layering
13 The 2004-2005 data is the latest data available. (See Tr. 3440:21-3441:1 (D. Jones Rebuttal).
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of Services, August 2002) at 17 (finding that adult home residents receive services that are “costly,” “sometimes unnecessary,” and that appear in many instances to be “revenue driven”); S-103 (Workgroup Report) at DOH 86205-86209 (discussing potential Medicaid savings from reforming services to adult home residents); P-94 (Commission on Quality of Care and Advocacy for Persons with Disabilities, A Review of Assisted Living Programs in “Impacted” Adult Homes, June 2007 (“ALP Report”)) at i (finding that assisted living services provided to adult home residents “were not commensurate with the increased charges to Medicaid”).)
204. As demonstrated in Table 1 below, the total average Medicaid expenditures, including the State and federal shares, were $31,530 per Medicaid-eligible individual in the Adult Homes at issue, and $16,467 per Medicaid-eligible individual with mental illness in supported housing. (P-63 (State’s Analysis) at DOH 131663-64; see also S-150 (D. Jones Report) at 21; S-55 (Kipper Report) at 8.) In fact, the State pays more for services to Adult Home residents than for services to residents of supported housing across a “spectrum of services,” including in-patient hospitalization costs and pharmacy costs. (Tr. 2789:13-19 (Kipper).)
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Table 1: Summary Comparison of Medicaid Expenditures in FY 2004-2005

Average Per Person Cost

Population Cuts

Supported Housing

Adult Homes

Resident Populations in SFY 2004-2005

$16,467

$31,530

Severely and Persistently Mentally Ill (SPMI)

$20,370

$36,109

(a) SPMI and Medically Involved

$28,108

$46,772

(b) SPMI and Not Medically Involved

$18,644

$32,163

Not SPMI

$11,882

$25,289

(a) Not SPMI and Medically Involved

$27,006

$39,677

(b) Not SPMI and Not Medically Involved
Source for Table 1: P-63 (State’s Analysis) at DOH 131663-64).

$9,628

$19,711

205. The State further parsed the Medicaid data to compare persons with higher or lower medical needs and higher or lower psychiatric needs in both residential settings. (See P-63 (State’s Analysis) at DOH 131663-64); see also generally Tr. 3471:8-72:18 (D. Jones Rebuttal).) No matter which sub-category it analyzed, there were significant savings—between $10,000 and $18,700, depending on the category—for residents of supported housing. (P-63 at DOH 131663-64.)
206. The parties dispute whether and to what extent serving Adult Home residents in supported housing would reduce the amount the State spends on Medicaid costs. (E.g. S-55 (Kipper Report) at 8; S-150 (D. Jones Report) at 21-22.) The dispute centers around the question whether the higher cost for Adult Home residents is due to the setting in which a person with mental illness is served or the characteristics of a person living in that setting. Defendants’ expert, Gregory Kipper, concluded that “those costs wouldn’t necessarily change due to a change in your address, a change in your housing situation.” (Tr. 2789:22-23 (Kipper).) DAI’s expert, Dennis Jones, however,

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testified that it is the nature of the provision of services in Adult Homes that causes the disparity, not the residents themselves. (Tr. 3425:2-3426:10 (D. Jones Rebuttal).)
207. One of the primary reasons for the increased Medicaid expenditures in Adult Homes is what Mr. Jones described as the “dependency-based model” of Adult Homes, as compared to the “recovery-based model” of supported housing. (Tr. 1010:171011:18 (D. Jones), 3425:2-3426:10, 3475:7-3476:23 (D. Jones Rebuttal).) Mr. Jones testified that the recovery model looks at people’s strengths: looking at what they are capable of doing and how best to promote those strengths. (Tr. 3475:9-18 (D. Jones Rebuttal).) It is the opposite of a dependency-based model as found in adult homes, which says “I’ll do it for you, I’ll bill Medicaid for it.” (Tr. 3476:17-19.) Mr. Jones illustrated the concept this way:
If you want somebody to learn how to ride the bus, you don’t pull up with a van every day and say, Hop in, we’re going, and bill Medicaid. That’s an old-style model. You go out and you help people to learn how to ride public transportation. You do that in stages, teaching and training. (Tr. 3476:7-12.) According to Mr. Jones, “[i]t’s the difference between doing for and doing with.” (Tr. 3476:3-4.) The dependency-based model is a significant factor causing the high Medicaid costs found in Adult Homes. 208. Another reason why Medicaid expenses are higher in Adult Homes is because of the great deal of “layering of services” that occurs in Adult Homes that does not occur in supported housing. (Tr. 712:4-11 (Rosenberg); 3425:2-3426:10 (D. Jones Rebuttal).) In August 2002, the New York Commission on Quality of Care issued a report titled Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services (the “Layering Report”). (P-228.) The Layering Report found that it was “not
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uncommon to see multiple practitioners and providers . . . located on-site in adult homes and acting independently of each other” in serving a “captive adult home population.” (P-228 at CQC 96.) Calling the service system in Adult Homes “fundamentally flawed,” the report concluded that “many residents received multiple layers of services from different providers that were costly, fragmented, sometimes unnecessary, and often appeared to be revenue-driven, rather than based on medical necessity.” (Id. at CQC 114; see also Tr. 710:16-711:10 (Rosenberg) (describing layering of “all of the medical services, all of the support services that could be billed through Medicaid that the adult home operator [ ] brought into the home,” with the most egregious instances involving unnecessary cataract surgery); Tr. 3491:13-3492:10 (D. Jones Rebuttal) (describing significant Medicaid over-utilization occurring in adult homes but not supported housing); see also S-103 (Workgroup Report) at DOH 86205-86209; P-94 (ALP Report).) The Layering Report, which used then current figures, found that it cost the State $37,000 per year for an Adult Home resident to live in an Adult Home when Medicaid billing was added to room and board charges. (P-228 at CQC 101.)
209. Linda Rosenberg, the former Senior Deputy Commissioner for the Office of Mental Health, explained that there is a fiscal relationship between Adult Home operators and providers that rent space in the homes to provide Medicaid-billable services to adult home residents. (Tr. 712:13-17 (Rosenberg).) For example, she testified that on a site visit to an Adult Home, she observed that the Adult Home had arrangements with providers “where they could come into the home and would treat everybody in the home; and it was unclear, you know, how much the residents had a say in whether that’s who they wanted to treat them or would they have preferred to go see somebody else.” (Tr.
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645:9-21 (Rosenberg).) One Adult Home resident testified that the Adult Home administrator makes appointments for him every three weeks to see the doctor assigned to him by the home in an office connected to the Home, and that Medicaid pays for those appointments. (Tr. 566:9-567:4 (S.P.).)
210. Ms. Rosenberg also testified that Adult Home residents at times had home health aides billed to Medicaid that worked for agencies owned by the Adult Home operators, and that the residents were unaware they had a home health aide. (Tr. 709:22710:4 (Rosenberg); See also Tr. 3431:12-3432:19 (D. Jones Rebuttal) (explaining Workgroup’s Payment Subworkgroup’s finding that there was over-utilization of nursing services and home health aides in adult homes).) As Mr. Jones explained, “You’ve got very aggressive private for profit providers who are operating in largely a fee for service Medicaid world who are highly [incented] to bill as much Medicaid as they can bill. You put [that together with the dependency model] and you end up here with an exceedingly high cost for Medicaid.” (Tr. 3425:14-18.) Ms. Rosenberg said it this way: “[I]t’s institutional living, and in some ways because they’re for-profits[,] [i]t’s institutional living at, potentially, its worst.” (Tr. 645:22-24 (Rosenberg).)
211. Defendants have not done any analysis to determine whether their theory of the cause of the disparity in Medicaid costs between persons living in supported housing and persons living in Adult Homes has any validity. (S-55 (Kipper Report) at 8; S-144 (Kipper Reply Report) at 4-5; Tr. 3388:17-22 (Schaefer-Hayes); Tr. 3459:203460:23 S-150 (D. Jones Report) at 21 (“New York has not done any detailed fiscal analysis on the relief sought.”).) Instead, defendants dismiss the possibility of cost savings if current Adult Home residents were served instead in supported housing as
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“speculative.” (S-55 (Kipper Report) at 8; S-144 (Kipper Reply Report) at 5; Tr. 3384:15-21, Tr. 3398:20-3399:11 (Schaefer-Hayes); see also S-148 (D. Jones Rebuttal Report) at 4.) Defendants’ witnesses, merely, assumed that Adult Home residents are somehow different from persons living in supported housing, and that difference must explain the increased costs of Medicaid in Adult Homes. That notion, however, is belied by the facts. When the State analyzed the comparative costs for 2004-2005, even persons deemed to have higher psychiatric needs and higher medical needs were served much more cheaply in supported housing than they were in Adult Homes. (P-63 (State’s Analysis) at DOH 131663-64; see also P-773 (D. Jones’ Summary of Cost Evidence) at 1; S-148 (D. Jones Rebuttal Report) at 4.) Moreover, whether a person lives in a supported apartment or an Adult Home is not a function of his or her functional abilities or medical needs. Instead, as Linda Rosenberg testified, whether a person with mental illness lives in supported housing or an Adult Home is “the luck of the draw for the most part.” (Tr. 709:8-12.) As she explained, if one were to visit both a supported apartment and an Adult Home, “the residents would by and large have similar characteristics.” (Id.)
212. As shown in Table 2 below, after adding the average Medicaid cost for a person in supported housing ($16,467) to the amount of the stipend ($14,654) and the amount of SSI paid to a resident of supported housing ($9,132), the total amount paid by the State and federal governments is $40,253. (P-773 (D. Jones Summary of Cost Evidence) at 2; Tr. 3437:23-3438:2 (D. Jones Rebuttal).) The State share of the cost is 100% of the stipend ($14,654), half of the Medicaid ($8,234), and $1,044 of the SSI, for a total State cost of $23,932. (P-773 at 2.)
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Table 2: Supported Housing (“SH”) Average Per Person Costs vs. Baseline Adult Home (“AH”) Average Annual Costs

Supported Housing

State

Total

SH Stipend $14,654 $14,654

Medicaid $8,234 $16,467

SSI

$1,044 $9,132

TOTAL $23,932 $40,253

Adult Homes

State Total

SH Stipend $0

$0

Medicaid $15,750 $31,530

SSI

$8,328 $16,416

TOTAL $24,078 $47,946

213. After adding the Medicaid cost for a person in an Adult Home ($31,350) to the cost of SSI for a person in an Adult Home ($16,416), the total paid for a person served in an Adult Home is $47,946. (P-773 at 2.) The State share of the cost is half of the Medicaid ($15,750) and $8,328 of the SSI, for a total State cost of $24,078. (Id.)
214. When the cost of Medicaid is included, it saves the State of New York $146 to serve an individual in supported housing instead of an Adult Home. (Id.; see also Tr. 3439:6-16 (D. Jones Rebuttal).) The overall cost is $7,693 less when the federal government share is also included. (P-773 at 2.)
C. The State Also Fails to Consider Other Savings 215. Medicaid costs are not the only expenses that the State fails to include in its analysis. The State also incurs additional expenses for Adult Home residents that it does not incur for residents of supported housing. (Tr. 3439:17-3440:3, 3459:20-3460:23 (D. Jones Rebuttal); see generally P-773 at 3-12.) 216. For example, the State has spent at least $28 million on a program called the Quality Incentive Payment (“QuIP”) program since its inception (Tr. 1671:8-10, 1710:12-15 (Wollner); P-773 at 3-12), and $26.4 million since this lawsuit was filed (P-

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733 at 3-12). QuIP money is allocated as a funding subsidy to Adult Home operators that “maintain compliance with DOH regulations.” (S-55 (Kipper Report) at 5; see also S148 (D. Jones Rebuttal Report) at 2-3.) QuIP funds are allocated to those Adult Homes who apply for and are awarded grants based on the number of SSI-eligible residents living in the home. (S-148 at 2.) Homes receiving grants under the QuIP program are authorized to use funds for capital improvements in Adult Homes, such as new roofs or new furniture, and for training and education of adult home staff.14 (Tr. 1709:20-1710:6 (Wollner).) QuIP money goes to Adult Home owners and operators, not to Adult Home residents. (Tr. 1709:17-19 (Wollner).) QuIP money is not designed to assist Adult Home residents to move to more integrated settings; that “was not the intent of the legislation.” (Tr. 1710:23-1711:3 (Wollner).)
217. DOH has spent at least $26.4 million on QuIP since the inception of this litigation. (P-773 at 3-12.) DOH spent $4 million on QuIP in 2002-2003, of which $972,742 was distributed to Homes at issue in this litigation. (P-773 at 3; P-264 (QuIP Final Payment List 2002-2003).) DOH allocated $6 million to QuIP in 2003-2004, of which $1,982,129 was spent in Homes at issue in this litigation. (P-773 at 4; P-263 (QuIP Final Payment List 2003-2004); see also S-148 (D. Jones Rebuttal Report) at 3.) DOH allocated $2.75 million to QuIP in 2005-2006 (P-773 at 8); $2.75 million in 20062007 (P-773 at 9; Tr. 1709:2-5 (Wollner)); $5.5 million in 2007-2008 (P-773 at 11); and $5.46 million in 2008-2009 (P-773 at 12). In 2003-2004, QuIP funds allocated to Homes
14 As with other programs related to Adult Homes, there have been allegations that QuIP funds have not been put to their intended use, but instead have been used by some homes to subsidize operating expenses like workers compensation. (Tr. 1711:7-17 (Wollner).)
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at issue in this litigation amounted to $542.81 per resident. (S-148 (D. Jones Rebuttal Report) at 3.)
218. In conducting its analysis of the comparative cost of serving a person in an Adult Home or in supported housing, the State did not consider the cost of the QuIP program. (Tr. 2786:16-2787:3 (Kipper); S-148 (D. Jones Rebuttal Report) at 2-3; S-55 (Kipper Report) at 9 n.6; S-144 (Kipper Reply Report) at 2-3; D-441 (Chart prepared by M. Schaefer-Hayes); Tr. 3381:11-3382:24 (Schaefer-Hayes).)
219. The State has also allocated substantial additional funds for capital improvements. (P-773 at 3-12.) In 2004-2005, the Legislature appropriated $1.5 million for an Infrastructure Capital Program. (P-773 at 6; Tr. 1707:1-12 (Wollner); P-659 (“Dear Colleague” letter from David Wollner announcing the availability of funding under the program).) Six of the Homes at issue in this litigation received Infrastructure grants. (P-773 at 6; P-245 (ACF Infrastructure Improvements—List of Approved Applications).) In 2006-2007, the State spent $2.8 million on air conditioning for Adult Homes (P-773 at 9; see also Tr. 1709:2-5 (Wollner) (testifying that the State had spent $2 million).) Many of the Homes at issue in this litigation received funds for air conditioning. (P-773 at 9-10; P-722 (DOH Press Release, “51 Adult Care Facilities Share $2.8 Million in Grants to Increase Air Conditioning in Resident Rooms,” dated Apr. 25, 2007).) The State did not consider the cost of these programs in conducting its cost analysis in this case. (S-144 (Kipper Reply Report) at 3; Tr. 2786:16-2787:3 (Kipper); S-148 (D. Jones Rebuttal Report) at 3; D-441 (Chart prepared by M. SchaeferHayes); Tr. 3381:11-3382:24 (Schaefer-Hayes); see also Tr. 3460:20-24 (D. Jones Rebuttal).)
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220. The “EnAbLE” program—Enhancing Abilities and Life Experiences—is a grant-funded program that is administered by DOH. (Tr. 1647:17-25 (Wollner).) The program provides funding to Adult Home operators for numerous activities, initiatives, and programs targeted at adult home residents. (Id.; see also Section VB, ¶¶ 191-193, supra (describing the program).) The State has spent many millions of dollars on EnAbLE since its inception. (See P-773 at 3-12.) The State spent $2 million on EnAbLE in 2004-2005, and three homes at issue in this litigation received grants (P-773 at 6; see also P-244 (NYSDOH—Office of Health Systems Management, Enhancing Abilities Life Experience (EnAbLE) Program Grant Awards) (listing awards to Queens Adult Care Center, Park Inn, Rockaway Manor, and Ocean House15); $2.75 million in 2005-2006 (see P-773 at 8 (discussing allocation for “general adult home initiatives”); Tr. 1650:1-11, 1714:8-10 (Wollner)); $2.2 million in 2006-2007 (P-773 at 9; see also Tr. 1714:11-13 (Wollner) (stating that $2.75 million was allocated)), of which $491,908 was allocated to Homes at issue in this litigation (P-773 at 9; D-136; D-135; D-137; D-138; D-139 (letters notifying adult homes that EnAbLE grants have been approved)). Additional funds were allocated for EnAbLE as part of a $6.55 million budget package in 2007-2008 (P-773 at 11), and $3 million was allocated to the program in 2008-2009 (id. at 12).
221. In conducting its analysis of the comparative cost of serving a person in an Adult Home or in supported housing, the State did not consider the cost of the EnAble
15 Interestingly, this award to Ocean House was made shortly before Ocean House was closed because of “very serious concerns as it relates to quality of care that was not provided to the residents” and “allegations of fraud and misuse of governmental funding that had been provided to the owners and operators.” (Tr. 1729:14-17 (Wollner).)
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program. (S-144 (Kipper Reply Report) at 3; Tr. 2786:16-2787:3 (Kipper); Tr. 3460:2024 (D. Jones Rebuttal); S-148 (D. Jones Rebuttal Report) at 3; D-441 (Chart prepared by M. Schaefer-Hayes); Tr. 3381:11-14 (Schaefer-Hayes).)
222. The State has also invested in Adult Homes through its Case Management Initiative. The initiative was originally funded with $1.2 million in 2003-2004 to roll out case management in three Homes at issue in this litigation. (P-773 at 4-5.) $1.275 million was allocated to case management in 2004-2005. (Id. at 7.) In 2005-2006, the State allocated $5.25 million to case management. (Id. at 8; S-127 (OMH Aid to Localities 2005-2006 Enacted Budget—Summary of Legislative changes) at 1.) The State has spent at least $5.25 million per year since 2005 on the Case Management Initiative. (Tr. 1702:23-1703:4 (Wollner).) On a per resident basis, the State spends approximately $1,514 annually in direct State aid for each Adult Home resident that receives services through the Case Management Initiative. (D-348 (2008-2009 Case Management Funding Models).)
223. The State did not consider the cost of the Case Management Initiative in conducting its analysis of the comparative cost of serving a person in an Adult Home versus the cost of serving a person in supported housing. (S-144 (Kipper Reply Report) at 2; Tr. 2786:16-2787:3 (Kipper); Tr. 3460:20-24 (D. Jones Rebuttal); S-148 (D. Jones Rebuttal Report) at 2.)
224. In addition to the other specific programs described, in 2003-2004, the State budget allocated $2 million to Adult Home initiatives. (P-773 at 4.) In 2005-2006, the State allocated $350,000 “for services and expenses to promote programs to improve the quality of care for residents in adult homes.” (P-773 at 8; P-756 at 76 (Excerpt from
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Senate Bill 554-E).) For example, the State spent approximately “a couple hundred thousand dollars” on medication management training for Adult Home staff. (Tr. 1718:222 (Wollner).) The program was not designed to help Adult Home residents to learn how to self-administer medication. (Tr. 1719:1-7 (Wollner).) Rather, the program was necessary because of the nature of concerns about medication handling by Adult Home staff. (Tr. 1719:20-1720:7 (Wollner).) These costs also were not included in the State’s analysis. (See generally D-398 (Chart prepared by G. Kipper); D-441 (Chart prepared by Schaefer-Hayes); S-55 (Kipper Report) at 8-9.)
225. In the past, the State has demonstrated its ability to redirect funds as individuals move from one setting to another. When State hospitals have closed hospital beds, the Reinvestment Act of 1993 enabled the State to transfer money from the budget for State hospitals to the budget for OMH community services. (Tr. 3261:2-3263:4 (Schaefer-Hayes); S-150 (D. Jones Report) at 22-23; Tr. 1947:14-20 (Newman); Tr. 1613:15-24 (Wollner).) In total, the State was able to redirect more than $210 million in savings from the closure of psychiatric hospital beds into community programs. (Tr. 1613:15-24 (Wollner); Tr. 3262:8-3265:4, 3316:7-14 (Schaefer-Hayes); S-25 (Excerpt from New York State 2004-2005 Executive Budget, Appendix I: Agency Presentations re: OMH) at 120-21 (describing reinvestment); S-26 (Excerpt from New York State 2005-2006 Executive Budget, Appendix I: Agency Presentations re: OMH) at 120-21 (same).) In 2005, OMH closed 100 beds in psychiatric centers and used the savings to fund 600 Supported Housing beds. (Tr. 3373:1-7 (Schaefer-Hayes); see also Tr. 3370:14-3371:4 (Schaefer-Hayes).) Ms. Schaefer-Hayes also testified that OMH has internally reallocated items in its budget in order to shift resources away from outdated
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programs to more effective programs. (Tr. 3317:1-3318:7 (Schaefer-Hayes); see also S150 (D. Jones Report) at 27-28 (describing $10 million savings by OMH through implementation of the PROS program).)
226. The evidence shows that the State could follow a similar strategy here. Dollars currently allocated to those residents under DOH’s budget for Adult Home care could be moved from DOH’s budget to OMH’s budget for service in supported housing. Both Linda Rosenberg, the former Senior Deputy Commissioner of OMH and Martha Schaefer-Hayes, the Chief Fiscal Officer of OMH, testified that money can be transferred from one State agency to another when the need arises. (Tr. 731:14-732:23 (Rosenberg) (testifying that with proper coordination, money could be moved from the DOH budget to the OMH budget), Tr. 3370:6-13; 3395:2-23 (Schaefer-Hayes) (money can be moved from one agency to another if legislature and the governor agree).)
D. The Requested Relief Would Not Adversely Affect Other Persons with Serious and Persistent Mental Illness
227. Defendants argue that the relief DAI requests would force them to cut back on services to other needy populations. (See, e.g. Tr. 29:24-25 (Defendants’ Opening Statement).) However, as described above, the evidence in this case is to the contrary. Mr. Jones, the only expert to conduct an analysis that considers all the relevant costs, showed convincingly that serving Adult Home residents in supported housing instead of Adult Homes would not increase the State’s costs. (See supra, ¶¶ 202-214.) Accordingly, defendants’ argument that the relief would entail cutbacks fails. The State would not be required to cut programs or prejudice others who seek supported housing. (See S-150 (D. Jones Report) at 21-22; S-148 (D. Jones Rebuttal Report) at 1-6.)
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E. The State is Capable of Expanding its Supported Housing Program to Meet the Need of Adult Home residents
228. New York is capable of expanding its supported housing program to meet
the needs of Adult Home residents. DAI’s expert, Dennis Jones, concluded that “the
community provider system has the demonstrated ability to expand services (housing,
clinical, and support) to serve persons with mental illness now living in adult homes . . .
.” (S-150 (D. Jones Report) at 20-21; see also Tr. 656 (Rosenberg) (Supported housing
providers “know how to do it”); D-399 (Deposition of Antonia Lasicki) 203:1-9
(testifying that she did not “have any doubt that [her] member organizations [housing
providers] could serve any client who’s in an adult home with mental illness”); Tr.
281:11-282:25 (Tsemberis) (testifying that Pathways has served people who have come
from Adult Homes and they have done well in supported housing), 287:12-23
(Tsemberis) (stating that Adult Home residents would do very well in supported
housing), 288:14-289:6 (Tsemberis) (testifying that if the State issued an RFP to provide
supported housing to Adult Home residents with mental illness, many agencies could
serve them).) As Mr. Jones described, the “very clear and consistent message” he got in
conversations with providers was::
We know how to do this, we believe in the philosophy around community integration, we have a strong track record of doing it, and what we need from the state here, as a part of all of this, is to come up with a clear plan, which would presumably be a multi-year plan, be very clear about how it’s going to get funded so there’s no question about commitment, do it in an incremental way, and support it. And if you can do those things at a state leadership level, we can and will deliver . . . . The local providers were not in the least bit hesitant about expressing . . . their ability to serve folks who are today in adult homes, not in the least. (Tr. 3477:19-3478:9 (D. Jones Rebuttal).)
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Case 1:03-cv-03209-NGG-MDG Document 325 Filed 07/13/09 Page 108 of 143 229. Mr. Jones testified that New York is capable of developing supported
housing beds for Adult Home residents at a rate of approximately 1500 per year for several years. (Tr. 3478:10-3479:14; 3482:5-3487:21) (D. Jones) (noting that OMH had received responses to its 2005 supported housing RFP that proposed to develop a total of 1500 beds, that many supported housing providers have established working relationships with landlords, and that OMH has a history of taking on “big projects” such as the New York/New York Initiative, which planned for the development of 9000 beds in its third phase alone).) Mr. Jones, who is familiar with the real estate market in New York City, indicated that it would be possible to identify a sufficient number of units of appropriate housing to achieve this goal. (Tr. 3482:18-3483:1)
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CONCLUSIONS OF LAW In its Memorandum and Order of February 19, 2009, (the “Order”), the Court resolved a host of legal issues concerning the meaning and application of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. See Disability Advocates, Inc. v. Paterson, et al., 598 F. Supp. 2d 289, 311-22, 331, 333-39 (E.D.N.Y. 2009). The Order fully explains the Court’s resolution of those issues. Below, the Court sets forth the core legal holdings in its Order and applies them to the facts shown at trial. I. The Americans with Disabilities Act and Section 504 230. The Americans with Disabilities Act (ADA) was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). In enacting the ADA, Congress recognized that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). Congress found that “individuals with disabilities continually encounter various forms of discrimination, including . . . segregation. Id. § 12101(a)(5). 231. Title II of the ADA prohibits discrimination in connection with access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; Disability Advocates, 598 F. Supp. 2d at 311.
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232. To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is a “qualified individual” with a disability; (2) that the defendants are subject to the ADA; and (3) that he or she was denied the opportunity to participate in or benefit from the defendants’ services, programs, or activities, or was discriminated against by defendants, by reason of his or her disability. Henrietta D. v. Bloomberg, 331 F. 3d 261, 272 (2d Cir. 2003); Disability Advocates, 598 F. Supp. 2d at 311.
233. Section 504 of the Rehabilitation Act (“Section 504”) similarly prohibits disability-based discrimination, providing that: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a). Because claims under the two statutes are treated identically unless – unlike here – one of the “subtle differences” in the two statutes is pertinent to a claim, the Court treats the claims under Section 504 as identical to the ADA claims. Henrietta, 331 F.3d at 272; Disability Advocates, 598 F. Supp. 2d at 311 n. 25.
234. One form of discrimination “by reason of…disability” is a violation of the “integration mandate” of Title II of the ADA and Section 504. This mandate—arising out of Congress’s explicit findings in the ADA, regulations of the Attorney General implementing Title II, and the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999)—requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” 42 U.S.C. § 12132; 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d); Olmstead, 527 U.S. at 607.
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235. Delineating the scope of the integration mandate, the Supreme Court in Olmstead explicitly held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. The Court noted that “in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’” Id. at 600. The Court recognized that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes individuals’ everyday activities.” Id.
236. In its analysis of the integration mandate, the Supreme Court deferred to the Attorney General’s interpretation of Title II. See id. at 598 (“It is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (internal quotation marks and citations omitted). Thus, following Olmstead, courts have looked to the language of the Attorney General’s regulations, as well as the holding in Olmstead as the standard by which to determine a violation of the ADA’s integration mandate. Townsend v. Quasim, 328 F.3d 511, 516, 520 (9th Cir. 2003) (“[t]he plain language of the integration regulation [28 C.F.R. § 35.130(d)], coupled with the reasoning and holding of Olmstead, direct our analysis in this case.”); Joseph S. v. Hogan, et al., 561 F. Supp. 2d 280, 289-290 (E.D.N.Y. 2009) (“A failure to provide placement in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible violates the ADA’s integration mandate.”).
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237. The Attorney General’s regulations implementing Title II provide that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”16 28 C.F.R. § 35.130(d) (“integration regulation”); see also 42 U.S.C. § 12134(a) (requiring Attorney General to issue implementing regulations). The regulations define the “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A.
238. A state’s compliance with the integration mandate is excused only when it would result in a “fundamental alteration” of the state’s service system. Olmstead, 527 U.S. at 603. The “fundamental alteration” defense is derived from the “reasonable modifications” regulation, which states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). According to the Supreme Court:
Sensibly construed, the fundamental-alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.
16 As Congress directed, see 42 U.S.C. § 12134(b), this regulation is consistent with a similar regulation implementing Section 504 of the Rehabilitation Act, which requires recipients of federal funds to administer programs and activities “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
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Olmstead, 527 U.S. at 604.
II. DAI’s Constituents are Individuals with Disabilities 239. The ADA defines “disability,” with respect to an individual, as “(A) a
physical or mental impairment that substantially limits one or more major life activities of such individual, (B) a record of such an impairment, or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). In recently amending the ADA, Congress mandated that the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” 42 U.S.C. § 12102(4)(A).
240. By virtue of a major mental illness, such as schizophrenia, bipolar disorder, depression and others, DAI’s constituents have mental impairments that substantially limit one or more major life activities, including thought processes. The Adult Homes are intended for people who are substantially unable to live independently without supports.17 See generally 18 N.Y.C.R.R. § 487.4 (listing admission standards); 18 N.Y.C.R.R. § 487.2 (defining “adult home”); see also generally Tr. 837:19-838:16, 854:11-21, 814:5-10, 824:4-827:19, 828:7-835:11, 839:7-840:7, 847:10-26 (Duckworth); Tr. 52:8-53:15 (E. Jones); Tr. 282-83 (Tsemberis) (testifying that Adult Home residents suffer from the same sort of mental illness as clients of Pathways); S-33 (2007 RFP) at
17 The evidence is clear that, with appropriate and varying supports, DAI’s constituents could live in supported housing, which is designed for people (a) 18 years of age or older, (b) with a designated mental illness, and who (c) either (1) receive SSI or SSDI due to a designated mental illness, (2) currently have certain functional limitations due to a designated mental illness, or (3) have had certain functional limitations prior to receiving psychiatric rehabilitation and supports and/or medication. (S-17 (2005 RFP) at OMH 37314.)
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OMH 42726.) Furthermore, due to their “mental disability,” residents with mental illness in “impacted” adult homes are eligible for OMH services, which must be available in the homes. See 18 N.Y.C.R.R. §§ 487.4(n), 487.7(b)–(c); see also Tr. 2203:12-2208:17 (Bear) (describing mental health programs serving people with mental illness in Adult Homes); Tr. 2620:2-2623:12 (Lockhart) (same); Tr. 2498:20-2500:25, Tr. 2504:52405:13 (Waizer) (same).)
241. Moreover, defendants plainly consider DAI’s constituents to have disabilities. Indeed, in an effort to rebut DAI’s claims, defendants have argued throughout these proceedings that, due to their disabilities, DAI’s constituents are not capable of living in supported housing. (See e.g., Tr. 20:1-8 (Defs.’ Opening Statement), 3403:20-3404:10 (Schaefer-Hayes); see also Tr. 2308:22-2311:18, 2343:8-2344:21 (Geller); S-52 (Geller Report) at 36-38; S-53 (Geller Reply Report) at 6-15.) Thus, it is undisputed that DAI’s constituents qualify for protection under the ADA and the RA. III. Defendants are Subject to the ADA and the RA
242. Title II of the ADA applies to “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1). Accordingly, all defendants in this action are subject to the ADA.18 Pa. Dep’t of Corrections v. Yeskey, 524 U.S. 206, 209 (1998); see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997) (holding that zoning decisions are subject to the ADA and noting that “programs, services, or activities” is a “catch-all phrase that prohibits all discrimination by a public
18 Defendants do not dispute that their actions are covered by the ADA. Their dispute is with the Court’s and DAI’s interpretation of the ADA’s requirements.
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entity, regardless of the context.”), rev’d on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n.7 (2d Cir. 2001). Additionally, defendants have stipulated that their programs or activities “receiv[e] federal financial assistance.” (P-591 (Joint Stipulations of Fact) ¶¶ 36 & 37.) As such, defendants are covered by Section 504. 29 U.S.C. § 794(a).
243. In its February 19, 2009 Order, this Court held that Title II applies to DAI’s claims in this case. Disability Advocates, 598 F. Supp. 2d at 317 (“The court concludes that Title II of the ADA applies to the claims in this case.”); id. at 319 (holding that DAI’s “claim falls squarely under Title II of the ADA”). In doing so, the Court rejected defendants’ argument that the State is not liable under the ADA because the Adult Homes are privately owned, and found that it is “immaterial that DAI’s constituents are receiving mental health services in privately operated facilities.” Id. at 317; Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999). Public entities are required under the ADA to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
244. As the Court previously held, defendants’ actions at issue here – including the allocation of State resources among various service settings – involve “administration.” Defendants, as required by New York law, administer the State’s system of mental health care, including residential and treatment services provided by both public and private entities. Disability Advocates, 598 F. Supp. 2d at 317. They plan how and where services for individuals with mental illness will be provided, and they allocate the State’s resources accordingly. Id. Defendants are also required under State
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law to develop a “comprehensive, integrated system of treatment and rehabilitative services for the mentally ill” that assures “the adequacy and appropriateness of residential arrangements” and relies on “institutional care only when necessary and appropriate.” N.Y. Mental Hyg. L. § 7.01; see also id. § 7.07; Disability Advocates, 598 F. Supp. 2d at 318 (“The State cannot evade its obligation to comply with the ADA by using private entities to deliver services that are planned, implemented, and funded as part of a statewide system of mental health care”). IV. Defendants Have Discriminated Against DAI’s Constituents by Reason of
their Disability 245. Defendants have violated the ADA in carrying out their planning and administrative duties and activities. They have designed and operated a service system for individuals with mental illness that ensures that thousands of individuals with mental illness will needlessly live and receive services in the institutional setting of an Adult Home, instead of the more integrated setting of supported housing. See supra ¶¶ 175183. A. Adult Homes are not the Most Integrated
Setting Appropriate to the Needs of DAI’s Constituents 246. As discussed above, supra ¶¶ 234-37, the Attorney General’s regulations implementing Title II of the ADA provide that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (“integration regulation”); see also 42 U.S.C. § 12134(a) (requiring Attorney General to issue implementing regulations). An integrated setting is “a setting that enables individuals
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with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A.
247. In its February 19, 2009, the Court resolved the parties’ dispute regarding the meaning of the federal regulations defining Title II’s “integration mandate.” The Court rejected defendants’ argument that the appropriate standard is whether persons with disabilities have opportunities for contact with nondisabled persons, concluding that “the proper inquiry is whether DAI’s constituents are in the ‘most integrated setting appropriate to their needs,’ defined as ‘enabl[ing] individuals with disabilities to interact with non-disabled persons to the fullest extent possible.’” Disability Advocates, 598 F. Supp. 2d at 321 (citing 28 C.F.R. § 35.130(d) & App.) (finding that “the federal regulations mean what they say”).
248. Defendants did not seriously try to prove that Adult Homes were as integrated as supported housing. (See, e.g., Tr. 18:6-7 (Defs.’ Opening Statement) (framing the issue as whether Adult Home residents “have ample opportunities for contact with nondisabled persons”); Tr. 3402:24-25 (Defs.’ Rule 50 motion) (framing the issue as simply “whether or not they are in an integrated setting”).) Defendants’ interpretation of the standard renders the “most integrated” and “fullest extent possible” requirements of the regulation meaningless. As the Court previously held, “[i]nquiring simply ‘whether’ individuals with disabilities have any opportunities for contact with non-disabled persons ignores the ‘most integrated setting’ and the ‘fullest extent possible’ language of the regulations.” Disability Advocates, 598 F. Supp. 2d at 321.
249. Defendants also took issue with the Supreme Court’s finding that confinement in an institution diminishes everyday life activities of individuals. (Tr.
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3403:10-11 (Defs.’ Rule 50 motion) (“integration isn’t necessarily determined by where someone lives”); Tr. 2373:16–24 (Geller) (Supreme Court was “wrong” that “confinement in an institution severely diminishes the everyday life activities of individuals including family relations, social contact, work options, economic independence, educational advancement and cultural enrichments”). The Court finds that defendants’ interpretation of the integration mandate is inconsistent with the ADA, the federal regulations, and the Supreme Court’s decision in Olmstead. It is also inconsistent with the evidence in this case. Numerous witnesses, including defendants’ witnesses, testified that Adult Home residents are defined by the institutional setting in which they live and that the very setting itself diminishes opportunities for contacts with nondisabled persons. (Tr. 645:6-10 (Rosenberg) (“[W]e know now that people with serious mental illness … don’t have to be defined by their illness; and yet, when you’re in an adult home, that’s completely what you’re defined by.”); (P-538 (B.J. Dep.) 50:7-19 (testifying that when people in the neighborhood find out where she’s from they avoid her); S-54 (Kaufman Report) at 10 (stating “that adult homes can artificially limit the interactions of residents and constrict the diversity of friends and acquaintances”); Tr. 2374:15-22 (Geller) (acknowledging that certain characteristics of the Adult Homes diminish work options and social contacts, as well as opportunities to cultivate social or family relationships); P-673 at JBFCS at 354.)
250. The Court finds that the large, impacted Adult Homes at issue in this case do not enable interactions with non-disabled persons to the fullest extent possible, and that the State’s supported housing programs offer a setting that enables interactions with nondisabled persons to a far greater extent.
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251. Adult Homes are institutions. They house well over 100 people, all of whom have disabilities and most of whom have mental illness. (See supra ¶¶ 9-14.) They are designed to manage and control large numbers of people and do so by establishing inflexible routines, restricting access, and limiting personal choice and autonomy. (See supra ¶¶ 18-20.)
252. Residents line up to receive meals, medication and money at inflexibly scheduled times during the day. (See supra ¶¶ 18-19.) They are assigned seats in the cafeteria, roommates and treatment providers. (See supra ¶¶ 18, 22.) They have next to no privacy or autonomy in their own daily lives, and they are discouraged, and most often prohibited, from managing their own activities of daily living, such as cooking, taking medication, cleaning and budgeting. (See supra ¶¶ 19, 26.)
253. Defendants maintain that Adult Homes residents are in an integrated setting because they are free to come and go from the Adult Homes and because they have access to rehabilitative services intended to facilitate integration. Defendants’ argument is inconsistent with both the law and the facts. As stated above, the applicable law requires the State to provide services in a setting that enables interaction with nondisabled persons to the fullest extent possible. But even under defendants’ standard, Adult Home residents have significant restrictions on their ability “to come and go as they please,” and the “rehabilitative” programs available to them do not facilitate integration. Given the inflexible schedules and rules to which residents must adhere, they have many practical limits on when they can come and go from the facility. (See supra ¶¶ 18, 20.) Given the lack of privacy and the restrictions on when and where visitors can be received, the residents’ ability to develop and maintain relationships with people outside
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the Adult Home is limited. (See supra ¶¶ 19, 20, 35, 36.) Given the very nature of the Adult Homes, the opportunities to develop social and work contacts are extremely limited. (See supra ¶¶ 24, 27-29.) The evidence established that the mental health programs to which Adult Home residents have access do not facilitate integration. In addition to the evidence demonstrating serious problems with such programs, both sides experts’ agreed that teaching skills in a setting in which they cannot be applied or practiced is ineffective and does not foster independent living skills or integration. (See supra ¶¶ 25-26.) Moreover, even if Adult Homes are in some ways less restrictive than psychiatric hospitals, they are not nearly as integrated as the State’s supported housing programs. (See supra ¶ 32.)
254. Supported housing is an integrated, community-based setting. People who live in supported housing have the autonomy to live like non-disabled persons and to participate in their communities like non-disabled persons. (See supra ¶¶ 38-42.) Simply put, they are not defined by the setting in which they receive services. Indeed, defendants’ witnesses themselves testified that supported housing is a more integrated setting than Adult Homes. (Tr. 2915:2-2916:4 (Kaufman) (“As a whole, I believe that people in supported housing are participating or feel more integrated in the community than those that are in group homes.”); (Tr. 2162:9-21 (Newman) (agreeing that a housing setting shared by 120 people, all of whom have serious mental illness, is a “segregated” setting).)
255. As discussed below, DAI’s constituents could be successfully served by defendants in supported housing. Thus, it is evident that defendants are not serving DAI’s constituents in the most integrated setting appropriate to their needs. Without
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question, supported housing is a more integrated setting in which to live and receive services than Adult Homes. Supported housing provides far greater opportunities for interaction with non-disabled persons and enables far greater integration into the community life. As OMH’s Director of Housing Development testified, supported housing provides “maximum opportunities” for integration into the community. (Tr. 2162:17-21 (Newman) (supported housing “is a type of housing that provides residents with maximum opportunities to be integrated in the community….”).)
B. DAI’s Constituents are Qualified for Supported Housing 256. Virtually all of DAI’s constituents are qualified to live in supported housing—a far more integrated setting than the adult homes where they presently live— because they meet the essential eligibility requirements of the program. 257. Under the ADA, an individual is qualified when he or she “with or without reasonable modifications to rules, policies or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). In Olmstead, the Court found the plaintiffs “qualified individual[s]” because they met “the essential eligibility requirements” to receive community-based services. Olmstead, 527 U.S. at 601-603. 258. The evidence in this case demonstrates that DAI’s constituents meet the essential eligibility requirements of New York’s supported housing program and that virtually all could be successfully served in supported housing. 259. Supported housing is specifically designed and intended for individuals with severe mental illness who have varying levels of need for supportive services; it is not limited to individuals with minimal support needs. (See supra, ¶ 53-56, 107-123.)
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Particularly if combined with ACT or intensive case management—services that are available to every supported housing resident—supported housing is capable of serving individuals with very high needs. (See supra ¶¶ 107-15.) Defendants’ own RFPs for supported housing—some of which specifically target adult home residents and other institutionalized populations—make clear that supported housing is intended to serve a broad range of individuals, including those with “high needs.” (See supra, ¶ 108.)
260. Nor do DAI’s constituents have especially high or unusual support needs relative to other populations with mental illness. To the contrary, the evidence shows that Adult Home residents have very similar characteristics and needs as current supported housing residents. (See supra ¶¶ 60, 99-106.) The Assessment Project commissioned by Defendants shows that the vast majority of Adult Home residents have few if any cognitive impairments and that only a small percentage of residents need assistance with activities of daily living. (See supra, ¶¶ 86-98.) These findings are not surprising, as Adult Homes do not provide residents with a particularly intensive level of support: services are generally limited to little more than meals and medication management. (See, supra, ¶¶ 68, 104-105.) Indeed, Adult Homes are not permitted to admit individuals who require high levels of assistance with daily living or significant medical care, or who pose a danger to themselves or others. (See, supra, ¶ 106.)
261. Although some Adult Home residents moving to supported housing may require initial assistance in re-learning independent living skills lost while living in institutional Adult Homes, the need for such assistance will likely dissipate over time and can in the meantime effectively be addressed by existing support services. (See supra, ¶¶ 109, 110, 112.)
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262. That Adult Home residents meet the essential eligibility requirements of supported housing is further evidenced by the fact that New York’s supported housing providers already serve Adult Home residents. (See supra ¶¶ 116-123.) As a result of initiative created by the legislature, 60 Adult Home residents are either currently being served in, or will imminently be served in, supported housing. (See supra, ¶¶ 119-120.) When OMH issued the RFP to create these 60 beds for Adult Home referrals, seven different supported housing providers responded with proposals to serve this population. (Id.) Further, the evidence showed that although few Adult Home residents have had real access to supported housing outside of the 60-bed initiative, the handful of residents who have managed to obtain supported housing have lived there successfully. (See supra, ¶¶ 121-123.)
263. In short, DAI has met its burden to demonstrate that its constituents meet the essential eligibility requirements for supported housing.
C. DAI’s Constituents Are Not Opposed to Receiving Services In More Integrated Settings
264. As the Supreme Court explained in Olmstead, the ADA does not impose accommodations on individuals who do not want them, and accordingly it does not force individuals who oppose moving to a more integrated setting to do so. See Olmstead, 527 U.S. at 587, 602. DAI does not seek to impose supported housing on Adult Home residents who, after having a meaningful opportunity to make an informed choice, oppose moving to supported housing. The evidence shows, however, that the vast majority of DAI’s constituents, would choose to live in supported housing if given a meaningful choice. (See supra ¶¶ 143-167.)
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265. Analyses conducted by both DAI’s experts and defendants themselves demonstrate that large numbers of Adult Home residents would choose to live in settings other than the Adult Homes. (P-583 (Bruce Dep.) 94:23-6; S-151 (E. Jones Report) at 11.) DAI’s expert, Elizabeth Jones, concluded that based upon her interviews of 179 residents of 23 Adult Homes, more than 90% of the residents want to live someplace other than the Adult Home. (S-151 (E. Jones Report) at 3.) Based on his analysis, Dr. Duckworth concluded that four out of five Adult Home residents would be willing to move to more independent settings if provided with a meaningful option. (Tr. 874:21875:1.)
266. These findings are confirmed by the enthusiastic responses of residents to the recent housing forums held by OMH in connection with the legislative set-aside of 60 supported-housing beds. Hinda Burstein, the Park Inn Adult Home administrator, described the reactions of Adult Home residents to the housing forum as follows:
I think they were very excited that there’s something out there for them. This is the first time ever that agencies have approached them. Usually it’s – there have historically been very long waiting lists for independent housing and there have been – the path wasn’t clear. So having an … information setting where the residents can get all the information they would need to move on .. was very encouraging, and it gave residents a lot of hope …, (See, e.g., Tr. 2083:19-2084:22 (Burstein); see also P-357 (E-mail regarding Anna Erika forum); P-354 (E-mail regarding Brooklyn Adult Care Center forum).) Additionally, numerous Adult Home residents have described their desire to live more independently. (See supra ¶¶ 159-162; see also, e.g., P-540 (P.B. Dep.) 168:17-170:2; P-541 (S.B. Dep.)
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89:24-90:10; P-542 (L.G. Dep.) 102:15-103:8; P-546 (A.M. Dep.) 203:18-204:8; Tr. 2750:24-2751:25.)
267. Accordingly, the Court finds that, with accurate information and a meaningful choice, the vast majority of Adult Home residents would choose to live and receive services in a more independent setting, such as supported housing, rather than an adult home.
D. The Relief Sought Would Not Fundamentally Alter Defendants’ Service System
268. The Court fully analyzed the law of fundamental alteration in its Memorandum & Order on Summary Judgment, and will not repeat that analysis here. See Disability Advocates, 598 F. Supp.2d at 333-56. In short, the “fundamental alteration” defense is derived from the “reasonable modifications regulation,” which states that [a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 32.130(b)(7). In Olmstead, the Court explained:
Sensibly construed, the fundamental-alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Olmstead, 527 U.S. at 604.
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269. The United States Supreme Court also explained in Olmstead that a state might show that a proposed modification was a fundamental alteration if it demonstrated that it already had a “comprehensive, effectively working plan” for placement of persons with mental illness in “less restrictive settings” (an “Olmstead plan”) and a “waiting list that moved at a reasonable pace.” 527 U.S. at 605-606.
270. While this Court concluded on summary judgment that an Olmstead plan is not a requirement in order for the state to mount a fundamental alteration defense, “[a] state’s efforts to comply with the integration mandate with respect to the population at issue are nonetheless an important consideration in determining the extent to which the request relief would be a permissible ‘reasonable accommodation’ or an impermissible ‘fundamental alteration.’” Disability Advocates, 598 F. Supp. 2d at 339, citing Martin v. Taft, 222 F. Supp. 2d 940, 985-86 & n.42 (S.D. Ohio 2002). Moreover, the Court agrees with the Third Circuit’s view that a state must make efforts to comply with the integration mandate in order to show that specific relief requested would be too costly. Disability Advocates, 598 F. Supp. 2d at 339 (“If a state does not make a genuine attempt to comply with the integration mandate in the first instance, it cannot establish that compliance would be a fundamental alteration of its programs and services . . . .”) citing Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005).
271. Finally, as this Court concluded on summary judgment, “[w]here individuals with disabilities seek to receive services in a more integrated setting—and the state already provides services to others with disabilities in that setting—assessing and moving the particular plaintiffs to that setting, in and of itself, is not a ‘fundamental
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alteration.’” Disability Advocates, 598 F. Supp. 2d at 335; see also Messier v. Southbury Training School, 562 F. Supp. 2d 294, 345 (D. Conn. 2008) (holding that where community placement can be accommodated through existing programs, it would not be a fundamental alteration to require the state to assess class members for determination whether they were appropriate for those programs).
272. After considering all of the evidence in this matter, for the reasons described below, the Court finds that the State has not shown that the relief DAI seeks would amount to a fundamental alteration of its policies, practices, or procedures or that immediate relief would be inequitable to others.
1. Defendants Do Not Have an Olmstead Plan to Enable Adult Home Residents to Receive Services In Integrated Settings
273. The evidence at trial established that defendants do not have an Olmstead plan to enable DAI’s constituents to receive services in the most integrated setting appropriate to their needs. To the contrary, defendants have routinely and systematically excluded Adult Home residents from their efforts to comply with the integration mandate. (See supra ¶¶ 168-195.)
274. Courts have made clear that an Olmstead plan must communicate a commitment to integration “for which [the state] can be held accountable by the courts.” Frederick L., 364 F.3d 487, 500 (3rd Cir. 2004). “General assurances” and expressions of “good faith intentions” are not enough. Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 158 (3d Cir. 2005). Instead, an Olmstead plan must set forth “reasonably specific and measurable targets for community placement.” Id. It must, “at a bare minimum,” specify four things: “(1) the time-frame or target date for placement in a more
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integrated setting; (2) the approximate number of patients to be placed each time period; (3) the eligibility for placement; and (4) a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community.” Id. at 160; see also Olmstead, 527 U.S. at 605-06 (describing a plan as a “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.”).
275. As described supra, Section V (¶ 169), no witness testified at trial concerning any plan to enable Adult Home residents to move to more integrated settings, much less a plan that contains the legally required components described above. To the contrary, defendants do not even believe an Olmstead plan is necessary for Adult Home residents because they believe Adult Homes already provide permanent, integrated housing. (See ¶¶ 169-183.) Consistent with that view, the Most Integrated Settings Coordinating Council (“MISCC”), a state entity whose statutorily mandated purpose is “to develop and implement a plan to reasonably accommodate people of all ages with disabilities … to be appropriately placed in the most integrated settings possible,” has no plan that covers Adult Home residents. (See supra ¶¶ 171-172.)
276. At trial, defendants presented testimony from various State officials describing various activities conducted by their respective agencies and divisions, many of which had no apparent connection to Adult Home residents, nor any connection to enabling DAI’s constituents to receive services in the most integrated setting appropriate to their needs. (See ¶¶ 173-174, 184-195.)
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277. A few defense witnesses discussed the development of community housing beds, including supported housing beds. (See supra, ¶¶ 175-176.) The evidence demonstrated, however, that Adult Home residents have been systematically excluded from the vast majority of those beds. (See ¶¶ 177-183.) Despite their inclusion as a target population for supported housing (for the first time) in 2005, Adult Homes residents continued to be denied access to the program because other populations of mentally ill persons received higher priority. (See ¶¶ 178-179.) Excluding the 60 supported housing units allocated to Adult Homes residents by the New York Legislature, only a handful of other Adult Home residents have been able to obtain supported housing. (See supra, ¶ 181; P-149.) Additionally, it now appears that Adult Home residents have been once again excluded from newly developed supported housing beds. (See supra ¶ 180; P-748 (2009 RFP.) Thus, while the State has developed a number of supported housing beds in recent years, because Adult Home residents have not been afforded meaningful access to those beds, those efforts cannot realistically be considered part of a commitment or Olmstead plan designed to enable Adult Home residents to receive services in the most integrated setting appropriate to their needs.
278. Defendants also presented evidence about certain programs they license and/or fund, such as case management, the EnAbLE program, continuing day treatment programs, and mental health clinics, arguing that those programs teach Adult Home residents independent living skills. (See supra, ¶¶ 185-194.) The evidence showed, however, that these programs suffer from serious deficiencies and have not meaningfully aided Adult Home residents to move to more integrated settings.
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279. Continuing day treatment programs, for example, are, by the State’s own admission, “outdated,” ineffective, and wasteful. ((Tr. 3318:7 (Schaefer-Hayes); Tr. 1380:9-1382:20 (Reilly); see also supra ¶ 25) The State made no real effort at trial to demonstrate that CDTs or clinics had any effect at all on enabling Adult Home residents to move to more integrated settings.
280. Defendants also put on evidence at trial about OMH’s Case Management Initiative, which it rolled out in 2002 and has gradually expanded to eleven of the homes at issue in this litigation. (See supra, ¶¶ 186-190.) The Case Management Initiative has obvious shortcomings, including the fact that it is not present in all of the homes at issue in this litigation and in fact, does not even reach all of the residents in the homes it is in. (See supra, ¶ 190.) Most importantly, there was no evidence at trial that the Case Management Initiative has been effective at assisting Adult Home residents to move to more integrated settings. (See supra, ¶ 187.)
281. Finally, the State argues that its EnAbLE program is also designed to, among other things, teach Adult Home residents independent living skills. (See supra, ¶ 191.) With grants from the EnAbLE program, a small number of Adult Homes have installed teaching laundry rooms and kitchens, and purchased vans to take residents to community activities. (Id.) No evidence was adduced at trial, however, that showed that the program has actually been effective at teaching residents independent living skills. (See supra, ¶ 192.) Moreover, experts for both parties agree that independent skills training is effective only if recipients of the training have a meaningful opportunity to exercise such skills in real-life situations (See supra ¶¶ 193-194; Tr. 65:14-69:11 (E. Jones); Tr. 2360:9-2361:1 (Geller)). The State was unable to say whether any Adult
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Home resident in any one of the Adult Homes to receive grants under the EnAbLE program had moved to more integrated settings as a result of the program. (Tr. 1717:513 (Wollner).)
282. The Court is unpersuaded that these programs and initiatives, singly or collectively, amounts to an Olmstead plan for Adult Home residents. Even if these programs are viewed as some effort by the State to comply with the integration mandate, they are a far cry from an effective Olmstead plan.
283. Because the State has not made a genuine attempt to comply with Olmstead’s integration mandate with regard to Adult Home residents, it cannot establish that compliance would be a fundamental alteration of its programs and services. See Disability Advocates, 598 F. Supp. 2d at 339. For that reason alone, its defense fails.
2. The Relief DAI Seeks Would Cost No More Than Defendants’ Current System and Would Not Adversely Affect Defendants’ Other Constituents
284. Even if the State had genuinely attempted to comply with Olmstead’s integration mandate, the State’s fundamental alteration defense would nonetheless fail because the requested relief here would cost no more than the manner in which DAI’s constituents are currently being served.
285. The fundamental alteration standard set forth under Olmstead permits a state to show that, “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 604. In considering the resources available to the State, the relevant budget is the “mental health budget,” which includes any money the State
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receives, allots for spending, and/or spend on services and programs for individuals with mental illness. Disability Advocates, 598 F. Supp. 2d at 350. That means that for purposes of this case, the resources available to the State include funds that OMH, DOH, the Governor, or the Legislature spend on persons with mental illness. The analysis includes not only current spending on mental health services and programs, but also savings that will result if the requested relief is implemented. Id.
286. Defendants have the burden of demonstrating by a preponderance of the evidence that the relief DAI seeks on behalf of Adult Home residents would inequitably affect the allocation of resources among defendants’ other constituents. This they have not done. Neither defendants nor their experts conducted a sufficient analysis of the financial impact of the relief sought by DAI. (See supra Section VI (¶¶ 196-97).)
287. The perfunctory cost analysis presented by the State failed to consider a number of costs associated with providing services to people with mental illness residing in Adult Homes, including Medicaid costs. (See supra, ¶¶ 202-214.) If the cost of Medicaid services for individuals in Adult Homes and supported housing is considered, the cost to the State of serving an Adult Home resident in supported housing is on average actually $146 cheaper than the cost of serving that resident in an Adult Home. (P-773; see also supra ¶¶ 212-214.)
288. DAI also demonstrated that in addition to the savings to be realized in Medicaid costs if Adult Home residents moved to supported housing, there are millions of dollars currently being spent by the State on programs and services for Adult Homes that the State also failed to consider in its analysis. (See supra, ¶¶ 215-26.) For example, the State has spent more than $28 million on the QuIP program, which is used to fund
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capital improvements in adult homes. (See supra, ¶¶ 216-218.) In addition, many millions of dollars have been spent on the Infrastructure Capital Program, the EnAbLE program, on air conditioning for homes, and on the Case Management Initiative. (See supra, ¶¶ 220-221.) Although these costs are not as easily analyzed on a per person basis, clearly any savings that could be realized in these programs as a result of the movement of Adult Home residents to supported housing would also lead to substantial savings to the State.
289. Upon the review of all the facts and opinions related to the cost of the proposed relief in this case, the Court finds that it would cost the State no more to serve Adult Home residents in supported housing, and indeed will likely cost less. Accordingly, implementation of the relief will not interfere with defendants’ ability to serve other individuals with mental illness.
3. The Relief DAI Seeks Would Not Alter the Nature of the Services that Defendants Currently Provide
290. Finally, the relief DAI seeks—access to supported housing for residents of Adult Homes—clearly would not alter the nature of the services defendants currently provide. (See supra, ¶¶ 227-229.) That DAI is seeking access to an existing program is not, in and of itself, a fundamental alteration. As this Court concluded on summary judgment, “[w]here individuals with disabilities seek to receive services in a more integrated setting—and the state already provides services to others with disabilities in that setting—assessing and moving the particular plaintiffs to that setting, in and of itself, is not a ‘fundamental alteration.’” Disability Advocates, Inc., 598 F. Supp. 2d at 336; Messier, 562 F. Supp. 2d at 345.
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291. Nor does the argument that such relief would require a “set-aside” of supported housing beds for Adult Home residents render it a fundamental alteration of the State’s programs. Defendants regularly use set-asides to allocate supported housing beds to particular target populations (including homeless individuals with mental illness and individuals with mental illness discharged from prisons, from psychiatric facilities, and in one instance, Adult Home residents). (E.g. Tr. 1460:8-24 (Madan); S-145 (2008 RFP.) As this Court held on summary judgment: “That Defendants have already issued a set-aside of supported housing beds for adult home residents and other target populations is evidence that doing so is not a ‘fundamental alteration’ of their programs and services. Disability Advocates, 598 F. Supp. 2d at 355-56; see also Messier, 562 F. Supp. 2d at 344-45 (noting that defendant agency’s “public commitment to further enhancing a system of community placement” was “entirely inconsistent with its fundamental alteration claim.”).)
292. In sum, the evidence at trial established that (1) DAI’s constituents are not in the most integrated setting appropriate to their needs; (2) virtually all of DAI’s constituents are qualified for supported housing; and (3) the relief sought by DAI will not work a fundamental alteration of the State’s mental health service system.
CONCLUSION 293. The injuries experienced by DAI’s constituents are immediate and severe. As a direct result of defendant’s long-standing policies and practices, thousands of people with mental illness have been, and remain, unnecessarily segregated in the institutional settings of Adult Homes. (See supra Section I.) DAI’s constituents have been subjected to isolation and stigma, and relegated to settings that foster dependence and impede the
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opportunity to become participating members of their communities and to realize their full potential. (Id.) Entry of judgment in favor of DAI is warranted.
294. The Court has thoroughly reviewed the record in this case to identify the actions necessary to afford DAI’s constituents adequate and timely relief. It has considered, among other evidence, the testimony of DAI’s expert, Dennis Jones, the former Commissioner of Mental Health in the States of Indiana and Texas, the testimony of Linda Rosenberg, the former Senior Deputy Commissioner of the Office of Mental Health in New York State, and the testimony of State employees and mental health service providers concerning the process of developing supported housing beds and the designation of priority populations. (Tr. 1038-39, 1069-71, 1092, 3467, 3485 (D. Jones) (describing the importance of a clear process, timeline and plan; attention to the commitment of resources; in-reach into Adult Home to build trust, ensure accurate information, and conduct housing assessment; and expansion of housing); Tr. 697-698 (Rosenberg) (describing a process for identification of residents and housing providers, and education about supported housing and its benefits); (Tr. 1275-1283 (Reilly) (describing the process of facilitating the transfer of Adult Home residents to other settings when an Adult Home closes); (Tr. 1511, 1531 (Madan) (describing the RFP process and the number of supported housing providers who applied to serve Adult Home Residents).) The Court concludes that the following relief is necessary to protect the rights of DAI’s constituents and to remedy the existing violations of their rights.
295. Judgment will be entered for DAI. The Court will issue a permanent injunction, directing defendants to take such steps as are necessary to enable DAI’s constituents—people with mental illness residing in, or at risk of entry into, all impacted
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adult homes in New York City with more than 120 beds—to receive services in the most integrated setting appropriate to their needs. These steps shall include the expansion of supported housing and the end to practices that steer individuals with mental illness into Adult Homes instead of supported housing.
296. The injunction will issue against the Office of Mental Health, the Department of Health, and the individual defendants in their official capacities. Concerted action by all defendants is needed to ensure adequate relief.
297. Defendants shall have 90 days to develop a plan that will enable DAI’s constituents to receive services in the State’s supported housing program. The plan will be finalized as provided in paragraph 298 below.
298. The plan shall contain and describe the following elements:
(a) Goal of plan and period of transition. The Court recognizes that it will take time to remedy the legal violations found by the Court. The Court has determined that four years is a reasonable and sufficient time for defendants to correct these violations. Accordingly, the plan will ensure that, within four years of its approval: (i) all current Adult Home residents who desire placement in supported housing have been afforded such a placement if qualified, (ii) all future Adult Home residents who desire placement in supported housing are afforded such a placement if qualified, and (iii) no individual who is qualified for supported housing will be offered placement in an Adult Home at public expense unless, after being fully informed, he or she declines the opportunity to receive services
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in supported housing. “Future Adult Home residents,” for purposes of this paragraph, includes both individuals admitted to the Adult Homes during the four year transition period and individuals admitted to the Adult Homes after the four year transition period who desire placement in supported housing.
(b) Duration of plan. Defendants’ obligation to operate their service system consistent with paragraph (a) shall be permanent and ongoing. Such persons who initially decline the opportunity to receive services in supported housing will have their preferences regularly reviewed pursuant to paragraph (h) of this order.
(c) Expansion of supported housing. Defendants will develop at least 1,500 supported housing beds per year until such time as there are sufficient supported housing beds for all DAI constituents who desire such housing. The plan will ensure that no fewer than 4,500 supported housing beds are developed. The Court is persuaded that, over time, at least 4,500 DAI constituents who qualify for supported housing will chose to receive services in supported housing. The plan will describe steps to be taken to ensure that, when current residents move from Adult Homes, the Homes will not be refilled with similar individuals who, if fully informed, would choose instead to receive services in supported housing.
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(d) Supported Housing Providers. Supported housing providers will be identified and awarded contracts to: provide scattered site supported housing and supports, secure residents of such housing access to needed services, and conduct in-reach to residents of Adult Homes. For some DAI constituents, needed services will include Assertive Community Treatment (ACT).
(e) Eligibility for supported housing. DAI’s constituents shall be treated as qualified for supported housing, unless they have one of the following specific characteristics: severe dementia, a high level of skilled nursing needs that cannot be met in supported housing with services provided by Medicaid home care or waiver services, or are likely to cause imminent danger to self or others. If a constituent has one of the foregoing characteristics, they will nonetheless be treated as eligible for supported housing if, upon an assessment by a supported housing provider, the assessor has determined that they could be served successfully in supported housing.
(f) Educating DAI’s constituents about supported housing. Defendants shall require case managers, clinicians, adult home staff and others who discuss housing options with DAI’s constituents to accurately and fully inform them about supported housing, its benefits, the array of services and supports available to those in supported housing, and the SSI, rental subsidy, and other income they will receive while in supported
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housing. Defendants shall carefully monitor whether DAI’s constituents are being pressured to refrain from exploring alternatives to adult homes, and, if so, take corrective action.
(g) Transition to supported housing. Once supported housing providers have been selected, they will conduct in-reach in the Adult Homes to build trust and actively support DAI’s constituents in moving to supported housing, including explaining fully the benefits and financial aspects of supported housing and accompanying DAI’s constituents on visits to supported housing apartments. The supported housing providers will assess constituents’ interests in supported housing and, for those interested, identify, develop and provide the services needed for a successful transition to supported housing.
(h) Reviewing housing preferences on a regular basis. For any DAI constituents who express opposition to, or ambivalence about, moving to supported housing, defendants will ensure that supported housing providers review the individuals’ preferences frequently and that the reasons for individuals’ opposition are explored and addressed.
(i) Detailed description of the responsibilities of the different State agencies in carrying out the plan. The plan will include a detailed description of the responsibilities of each of the defendants in carrying out
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the plan, including the development of inter-agency agreements, requests for proposals and funding necessary to implement the relief.
(j) Timeline for accomplishing all aspects of the plan. The plan will include timelines for accomplishing all tasks. 299. The Court will appoint an independent and impartial Special Master who is experienced in the development, management, and oversight of community programs serving people with mental illness, including supported housing. See Fed. R. Civ. P. 53. The Special Master shall be compensated by the defendants at a rate to be set by the Court. Within 20 days of this Order, the parties shall submit to the Court their joint recommendation or separate nominations for a Special Master. The parties shall endeavor to agree on a single candidate for Special Master. If the parties cannot agree, plaintiff and defendants shall each submit to the Court the names of no more than two qualified professionals or organizations. Each party will have seven days to comment on the qualifications of the other party’s candidate, following which the Court shall then select the Special Master from the names submitted by the parties. 300. The duties and powers of the Special Master will be detailed in an order accompanying the Special Master’s appointment. The duties shall include monitoring defendants’ compliance with this Order, identifying potential areas of non-compliance, facilitating the resolution of compliance issues without Court intervention, and recommending appropriate action by the Court in the event an issue cannot be resolved by discussion and negotiation among the Special Master
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and the Parties. When the parties submit their nomination(s) for Special Master, they shall also submit to the Court a joint proposed order or separate proposed order detailing the duties and powers of the Special Master. 301. No less than every sixty days, defendants shall provide the Special Master, plaintiff and plaintiff’s counsel with a detailed report containing data and information sufficient to evaluate defendants’ compliance with the Order. The report shall contain, among other components, information describing, (a) the number of DAI constituents offered supported housing, (b) the number of DAI constituents who have accepted supported housing, (c) the identity of the supported housing providers serving such individuals and providing in-reach to adult home residents, (d) reasons why DAI constituents, if any, declined supported housing, (e) in-reach efforts, (f) the number of new admissions to each Adult Home and source of payment, and (g) the current census of each Adult Homes. The Special Master shall file twice a year reports with the Court to enable the Court and plaintiff to evaluate defendants’ compliance or noncompliance with the Order. The Special Master may file additional reports as necessary, and reports of the Special Master shall be served on all parties. 302. Within 90 days of this Order, defendants shall provide the Special Master, plaintiff and plaintiff’s counsel with a draft of the plan. Within 30 days of receipt, the Special Master and plaintiff will comment on the sufficiency of the plan to ensure adequate relief. If the Special Master or plaintiff raises concerns about the sufficiency of the plan, the parties, with the aid of the Special Master, shall try to resolve these concerns. If the concerns have not been resolved within six months
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of the date of this Order, the matter shall be submitted to the Court, along with a recommendation from the Special Master. 303. The plaintiff shall be awarded attorneys’ fees and costs. 42 U.S.C. § 12205 (2006); 29 U.S.C. § 794a(b) (2006). The parties are directed to confer and submit to the Court a briefing schedule for DAI’s fee application. 304. All of the foregoing constitutes the Court’s findings of fact and conclusions of law. To the extent that the factual recitals also constitute legal conclusions and to the extent legal conclusions also constitute factual recitals, such recitals, findings and conclusions will be so construed. Dated: July 13, 2009
Respectfully submitted,
By: ____/__s_/__A_n__n_e__S_.___R_a_i_s__h________
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Andrew G. Gordon Anne S. Raish Sandra Sheldon Jonathan R. Bolton Gayle S. Gerson Liad Levinson Francine N. Murray araish@paulweiss.com 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000
- and -
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DISABILITY ADVOCATES, INC. Cliff Zucker 5 Clinton Square, 3rd floor Albany, NY 12207 (518) 432-7861
BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Burnim* Jennifer Mathis* 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
NEW YORK LAWYERS FOR THE PUBLIC INTEREST John Gresham 151 West 30th Street, 11th floor New York, NY 10001-4007 (212) 244-4664
MFY LEGAL SERVICES, INC. Jeanette Zelhof Kevin M. Cremin 299 Broadway, 4th floor New York, NY 10007 (212) 417-3700
URBAN JUSTICE CENTER Charlyne M. Brumskine Peay 123 William Street, 16th floor New York, NY 10038 (646) 602-5667
Attorneys for Plaintiff
* admitted pro hac vice
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DISABILITY ADVOCATES, INC.,
Plaintiff,
v.
DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.

03 Civ. 3209 (NGG) (MDG)

DISABILITY ADVOCATES, INC.’S RESPONSE TO DEFENDANTS’ _PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW_

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000
and
DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd Floor Albany, New York 12207 (518) 432-7861
July 22, 2009

Case 1:03-cv-03209-NGG-MDG Document 330 Filed 07/22/09 Page 2 of 143
BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
NEW YORK LAWYERS FOR THE PUBLIC INTEREST 151 West 30th Street, 11th Floor New York, New York 10001-4007 (212) 244-4664
MFY LEGAL SERVICES, INC. 299 Broadway, 4th Floor New York, New York 10007 (212) 417-3700
URBAN JUSTICE CENTER 123 William Street, 16th Floor New York, New York 10038 (646) 602-5667
Attorneys for Plaintiff Disability Advocates, Inc.

Case 1:03-cv-03209-NGG-MDG Document 330 Filed 07/22/09 Page 3 of 143
Table of Contents Page
Introduction .................................................................................................................... 1 RESPONSE TO DEFENDANTS’ PROPOSED FINDINGS OF FACT .......................... 5
I. DAI’s Constituents Are Not in the Most Integrated Setting ...................... 5 A. Adult Homes Are Institutions ....................................................... 6 B. Adult Home Residents Are Not Integrated in the Community ................................................................................ 11 C. “Rehabilitative” Mental Health Services Available to Adult Home Residents Do Not Facilitate Integration ............................ 18
II. DAI’s Constituents Are Qualified for Supported Housing ...................... 21 A. Defendants Have Abandoned the Linear Continuum Model........ 21 B. Supported Housing Is Intended for Individuals Needing Varying Levels of Support.......................................................... 25 C. Adult Home Residents Are No More Disabled than Individuals In Supported Housing............................................... 37 D. Whether Adult Home Residents Have Been Approved for Supported Housing by HRA Is Irrelevant to Whether They Are Qualified for Supported Housing ......................................... 39 E. Defendants’ Attacks on the Testifying Adult Home Residents Have No Basis............................................................ 42 F. Defendants’ Attacks On DAI’s Experts Are Without Merit......... 46 G. Dr. Geller’s Conclusions Are Not Credible................................. 59
III. DAI’s Constituents Are Systematically Excluded From Defendants’ Supported Housing Program............................................... 61
IV. Defendants Have No Comprehensive or Effective Plan to Enable Adult Home Residents to Receive Services in the Most Integrated Setting ................................................................................................... 66
V. Defendants Have Not Shown that the Requested Relief Would Increase Costs........................................................................................ 76
i

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A. Defendants’ Analysis is Fatally Flawed Because They Failed to Consider All the Costs of Serving Adult Home Residents in Adult Homes .......................................................... 77
B. There Is No Evidence that Many Adult Home Residents Would Require the Services of an ACT Team if they Were Served in Supported Housing ..................................................... 83
C. The State Also Fails to Consider Other Savings.......................... 87
D. The State Need Not, and Should Not, “Backfill” Beds Vacated by Adult Home Residents ............................................. 88
RESPONSE TO DEFENDANTS’ PROPOSED CONCLUSIONS OF LAW................. 93
I. Basic Principles of the ADA and the Integration Mandate...................... 93
II. DAI’s Constituents Are Not in the Most Integrated Setting .................... 94
III. DAI Has Demonstrated That Virtually All Adult Home Residents Meet the Essential Eligibility Requirements of Supported Housing ...... 105
A. Providing DAI’s Constituents With Meaningful Access to Supported Housing Will Not “Change the Nature of Supported Housing” ................................................................. 107
B. DAI’s Experts Used A Rigorous and Reliable Methodology to Determine That Virtually All Adult Home Residents Could Move ............................................................................. 108
C. DAI Is Not Required To Show That Each of its Constituents Has Been Deemed Eligible for Supported Housing by A Treatment Provider ............................................ 111
D. DAI’s Experts Gave Credible and Persuasive Testimony Based on Reliable Data and Methodologies .............................. 113
IV. Defendants Have Not Reasonably Accommodated DAI’s Constituents ......................................................................................... 117
V. DAI’s Proposed Relief Would Not Fundamentally Alter the State’s Programs.............................................................................................. 120
A. Defendants’ Fundamental Alteration Defense Fails Because They Have Made No Genuine Attempt to Comply with the Integration Mandate ................................................................. 120
ii

Case 1:03-cv-03209-NGG-MDG Document 330 Filed 07/22/09 Page 5 of 143 B. Defendants Failed to Prove That the Cost of the Relief Would Amount to a Fundamental Alteration............................. 124 C. DAI’s Constituents Can Be Served In Supported Housing Without Altering the Nature of the State’s Programs ................ 127
VI. DOH and Commissioner Daines are Proper Defendants ....................... 130 VII. The Court Has The Authority To Order The Injunctive Relief
Requested ............................................................................................ 132 Conclusion.................................................................................................................. 134
iii

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Table of Authorities

CASES

Page(s)

ARC of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005).....................................................................122, 123

Ass’n of Surrogates v. New York, 966 F. 2d 75 (2d. Cir. 1992)......................................................................126, 133

Dean v. Coughlin, 804 F.2d 207 (2d Cir. 1986)......................................................................126, 127

Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009)..........................................................passim

Disability Advocates, Inc. v. Paterson, No. 03-cv-3209 (NGG) (MDG), 2008 WL 5378365 (E.D.N.Y. Dec. 22, 2008) .................................................. 109

Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003)........................................................................ 127

Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001)................................................. 112, 113, 129

Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004)......................................................................126, 127

Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005)......................................................................118, 124

Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008).............................................................. 112

Long v. Benson, No. 4:08v26-RH/WCS, 2008 WL 4571904 (N.D. Fla. Oct. 14, 2008).......112, 113

Milliken v. Bradley, 433 U.S. 267 (1977) ........................................................................................ 133

Olmstead v. L.C., 527 U.S. 581 (1999) ....................................................................................passim

Pa. Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005)......................................................................123, 124

iv

Case 1:03-cv-03209-NGG-MDG Document 330 Filed 07/22/09 Page 7 of 143
Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)...................................................................122, 123
Schwartz v. Dolan, 86 F.3d 315 (2d Cir. 1996)........................................................................132, 133
Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977)............................................................................... 133
Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001) ................................................................... 89
STATUTES, REGULATIONS, AND RULES 28 C.F.R. § 35.130 ...................................................................................................... 105 28 C.F.R. § 41.51........................................................................................................ 105 Fed. R. Civ. P. 602.............................................................................................10, 19, 20 Fed. R. Civ. P. 701.................................................................................................. 10, 20 Fed. R. Civ. P. 802.................................................................................................. 10, 66 Fed. R. Civ. P. 804........................................................................................................ 20 N.Y. Soc. Serv. Law § 461-b......................................................................................... 92 N.Y. Soc. Serv. Law § 461(1) ....................................................................................... 91 N.Y. Soc. Serv. Law § 461(2) ....................................................................................... 91 N.Y. Ment. Hyg. Law § 33.01 ......................................................................................... 9 N.Y. Ment. Hyg. Law Art. 81.......................................................................................... 9 18 N.Y.C.R.R. § 487.4 ............................................................................................ 26, 92 18 N.Y.C.R.R. § 485.3 ................................................................................................ 132 18 N.Y.C.R.R. § 485.5 ...........................................................................................92, 132 18 N.Y.C.R.R. § 487.1 ................................................................................................ 132 18 N.Y.C.R.R. § 487.4 .................................................................................................. 89
v

Case 1:03-cv-03209-NGG-MDG Document 330 Filed 07/22/09 Page 8 of 143 OTHER AUTHORITIES
Olmstead v. L.C., Petitioner’s Reply Brief, No. 98-536, 1999 WL 220130 (S. Ct. Apr. 14, 1999)....................................... 100
vi

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Plaintiff Disability Advocates, Inc. (“DAI”) respectfully submits this Response to the Proposed Findings of Fact and Conclusions of Law of defendants the Governor of the State of New York, the Commissioners of Health and Mental Health, the Department of Health and the Office of Mental Health of the State of New York (collectively, “defendants” or “the State”).
Introduction 1. Defendants submitted findings of fact that lack record support and ignore controlling law. They hinge their contentions on conclusory assertions without any evidentiary support. (See, e.g., Defs.’ PFF ¶¶ 132–133, 169.) They ignore extensive evidence, including evidence from their own documents and witnesses, that contradict their assertions. (See, e.g., Defs.’ PFF ¶¶ 45, 51, 53; S-33; P-590.) They distort evidence in the record. (See, e.g., Defs.’ PFF ¶¶ 15–27, 169.) They cite materials that are not in evidence. (See Defs.’ PFF ¶ 65 (citing S-21) and notes 2, 5, 6, 9, 16, 17, 34, 39, 51, 68 (citing deposition transcript excerpts that have not been designated).) And they raise issues that are irrelevant to the claims in this case, or were previously rejected by the Court in its Order resolving the parties’ motions for summary judgment. (See Defs.’ PFF ¶¶ 182–185.) 2. But these tactics cannot conceal what the record evidence conclusively shows: Adult Homes are Institutions in Which People with Mental Illness Are Segregated 3. Adult Homes are institutions. Throughout these proceedings, defendants and their experts engaged in a semantic exercise, arguing that, while Adult Homes are
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institutional, they are not institutions.1 But, when not staking out a litigation position, defendants themselves acknowledge—as do Adult Home staff and many other people involved in the New York mental health services system—that Adult Homes are in fact institutions.2
4. Adult Homes are segregated settings. Virtually every aspect of the lives of Adult Home residents is conducted with scores of other people with mental illness. (See DAI’s PFF ¶¶ 14, 18, 22.) Although residents are permitted to leave the facilities, their daily life activities are managed and controlled by Adult Home staff who impose rules and regimentation in order to maximize the efficiency of these large, congregate facilities. (See id. ¶¶ 18, 20.) Meals, medication, phone calls and mail deliveries are announced over a public address system, and medical and mental health staff are a constant presence. (See id. ¶ 19.) Adult Homes have inflexible schedules for meals, taking medication and receiving public benefits. (See id. ¶ 18.) Residents are assigned roommates and seats at the cafeteria table, and line up to receive their medications and personal needs allowance at scheduled times. (See id.) These and many other characteristics described more fully below and in DAI’s Proposed Findings of Fact and Conclusions of Law restrict and impede the opportunity for DAI’s constituents to interact with nondisabled persons and to be integrated in their communities. 1 See Defs.’ PFF ¶ 44 (“[A]dult homes are not institutions, although they have some
institutional qualities.”); Tr. 2897: 10-13 (Kaufman) (“So on balance, while I thought that they shared characteristics with inpatient psychiatric facilities, I did not think that they were actually mental health institutional settings per se.”); see also Tr. 2357 (Geller). 2 See P-59 (OMH Guiding Principles); P-284 (OMH Guiding Principles); P-142 (Hynes Report) at DAI 2906; P-170 (Adult Home Industry Report) at DAI 3571; Tr. 642:25-643:2 (Rosenberg); Tr. 289:21-290:9 (Tsemberis); Tr. 2045:21-22, 2051:1-5, 2052:16-20, 2053:7-9 (Burstein); Tr. 2241:21-2242:14 (Bear).
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5. Supported housing is a far more integrated setting than Adult Homes and enables interactions with nondisabled persons to the fullest extent possible. In supported housing, people with mental illness receive services in apartments scattered throughout the community. (Tr. 236:12–15 (Tsemberis).) Recipients of supported housing have the same freedoms as other apartment tenants do; they can control their own daily lives, maintain their privacy, and have visitors whenever and wherever they like. (DAI’s PFF ¶¶ 41–42, 49–51.) Compared to Adult Home residents, supported housing residents have far greater opportunities to interact with nondisabled persons and participate in their communities. DAI’s Constituents Are Qualified for Supported Housing
6. Throughout these proceedings, defendants characterized supported housing in a manner completely inconsistent with their own guidelines, practices and public statements. Defendants asserted that supported housing is solely for individuals who are largely independent and need no more than minimal support. (Defs.’ PFF ¶¶ 52– 55, 63.) But their own guidelines and requests for proposals explicitly state that while “recipients of supported housing may be able to live in the community with a minimum of staff intervention from the sponsoring agency … [o]thers may need the provision of additional supports such as Assertive Community Treatment (ACT) team, or Blended Case Management (BCM) services.” (S-33 (2007 OMH) at OMH 42726–27.) Defendants similarly argued that individuals with mental illness must proceed through a “linear continuum” of settings before they may “graduate” to supported housing. (Defs.’ PFF ¶¶ 45–50.) But the public statements of State officials proved that this is false. (See infra ¶¶ 34-40.) Indeed, the evidence showed that defendants issued requests for
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proposals in which they required mental health service providers to accept persons with mental illness directly from psychiatric hospitals and prisons. (See, e.g. infra ¶ 36.) Thus, the evidence conclusively established that supported housing can and does serve individuals with a wide variety of support needs.
7. The evidence established that DAI’s consituents are qualified for supported housing. As DAI’s experts concluded, virtually all Adult Home residents can be appropriately served in supported housing. (See DAI’s PFF ¶¶ 57–72.) None of defendants’ attacks on DAI’s experts has any merit. Each of DAI’s experts has decades of experience overseeing the provision of services to people with serious mental illness in the community, and each expert based his or her opinions on reliable methodologies and extensive research, including numerous visits to Adult Homes, conversations with dozens of Adult Home residents, and reviews of thousands of pages of mental health records and numerous documents relating to defendants’ supported housing program and support services. (See infra, ¶¶ 209-215.) Not only were the opinions of DAI’s experts based on sound methodologies and reliable data, they were entirely corroborated by the other evidence in the record. (See DAI’s PFF ¶¶ 73–106.) Defendants Failed to Prove that the Relief Sought Would Constitute a Fundamental Alteration
8. Because of the way defendants administer their mental health service system, DAI’s constituents have been systematically excluded from supported housing. (See id. ¶¶ 175–183; infra, ¶¶ 126-131.) But far from developing a plan to enable DAI’s constituents to receive services in integrated settings, the evidence at trial showed that defendants are committed to maintaining the status quo reliance on Adult Homes as settings in which to provide services to people with mental illness. In fact, defendants
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admit they have no Olmstead plan for Adult Home residents. (See infra, ¶¶ 134-149.) Thus, defendants failed to show any attempt, genuine or otherwise, to comply with the integration mandate, and their fundamental alteration defense therefore fails.
9. Additionally, while defendants assert that the relief sought by DAI would impose additional costs on the State, they failed to conduct an analysis to support that assertion and failed to consider several relevant components of the cost to the State of providing services to people with mental illness. (See DAI’s PFF ¶ 196; infra, ¶¶ 150174.) In fact, the evidence showed that providing services to DAI’s constituents in supported housing would cost the State less than providing services to them in Adult Homes. (DAI’s PFF ¶¶ 201–26.) Thus, the relief sought would not adversely affect other needy individuals, or work a fundamental alteration of the State’s system of care. It also would not alter the nature of the State’s mental health programs. DAI simply seeks access to the State’s existing supported housing program for all of its qualified constituents.
10. For these reasons, and the reasons set forth more fully below and in DAI’s Proposed Findings of Fact and Conclusions of Law (“DAI’s Proposed Findings”), DAI respectfully requests that the Court find in DAI’s favor and order the relief requested by DAI.
RESPONSE TO DEFENDANTS’ PROPOSED FINDINGS OF FACT I. DAI’s Constituents Are Not in the Most Integrated Setting 11. Defendants propose that the Court find that the large, institutional, dependency-based Adult Homes at issue in this case are every bit as integrated as supported housing apartments in which individuals with mental illness reside on their
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own or with a roommate in apartments scattered throughout the community. In doing so, defendants ignore reams of evidence from their own witnesses and documents, quote snippets of testimony from Adult Home residents taken out of context, and ignore extensive resident testimony concerning the regimented, segregated, and restricted lives they lead in Adult Homes.
A. Adult Homes Are Institutions 12. While DAI need not prove that Adult Homes are institutions, the overwhelming evidence adduced at trial conclusively established that Adult Homes are, in fact, institutions. Defendants claim that DAI’s contention that Adult Homes are institutions is based on a particular set of practices, such as the fact that residents are forced to wait on lines to receive their medications rather than being permitted to selfadminister their own medication. (E.g., Defs.’ PFF ¶¶ 38.) To the contrary, Adult Homes are institutions for all the many reasons that they are considered to be so by the current OMH Senior Deputy Commissioner for Adult Services, the former Senior Deputy Commissioner of OMH, a former deputy attorney general, a former New York City councilmember, the assistant director of the Jewish Board of Family and Children’s Services, the Executive Director of Pathways to Supported Housing and Adult Home residents.3 They are large, congregate facilities that house dozens of mentally disabled
3 See P-142 (Private Proprietary Homes for Adults: A Second Investigative Report (the “Hynes Report”)) at DAI 2906 (referring to Adult Homes as “de facto mental institutions”); P-170 (The Adult Home Industry: A Preliminary Report) at DAI 3571 (referring to Adult Homes as “satellite mental institutions”); P-59 (OMH Guiding Principles) at 1 (“many people with a mental illness are ‘stuck’ in . . . institutional settings” including “adult homes”); Tr. 642:25–643:2 (Rosenberg) (calling Adult Homes “mini institutions”); Tr. 289:21–290:9 (Tsemberis) (testifying that Adult Homes have “absolutely an institutional feel. . . institutional look . . . [and] institutional manner”); Tr. 2241:21–2242:14 (Bear) (stating that Adult Homes are
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individuals and impose restrictive rules and practices that impede opportunities for interactions with non-disabled persons.4 (See DAI’s PFF ¶¶ 9–37.)
13. Defendants attempt to downplay many of the restrictions imposed on Adult Home residents. They acknowledge that homes “require residents to sit in assigned seats at mealtimes” (Defs.’ PFF ¶ 42), but they urge this Court to disregard it, because occasionally a resident has managed to get his assigned seat changed to another assigned seat. (Id.) Defendants trivialize the loss of freedom that is imposed by assigned seating, which impairs the ability to freely interact with others, and which insures that it is virtually impossible to have dinner with a non-disabled guest.5
14. Many Adult Home residents cannot freely choose their medical providers, because Adult Homes usually hold their Medicaid cards. (Defs.’ PFF ¶ 41; P-542 (L.G. Dep.) 101:8–17; P-569 (G.H. Dep.) 170:21–171:22 (“Q. Can you choose your own doctors if you want to? A. Ha ha. Good luck. Q. What do you mean by that? A. In other words, we can’t change them ourselves. They give them to us, and, as they leave, somebody else comes in.”).) While acknowledging residents generally do not keep their Medicaid cards, defendants urge the Court to disregard that fact because “it is not true for
“much like the psychiatric centers where [Jewish Board’s] consumers lived for so long”); P-546 (A.M. Dep.) 153:17–155:14) (stating that his Adult Home is “like an institution to me”). 4 Defendants’ expert, Dr. Geller, admitted that living in an Adult Home diminishes one’s work options and social contacts. (Tr. 2374:8-14.) 5 Defendants offered no evidence that such restrictions on socialization at meals are imposed even in a locked psychiatric hospital, and several witnesses testified that this is not the practice in psychiatric hospitals. (DAI’s PFF ¶ 18.) Defendants, who license Adult Homes and heavily regulate their operation, have not enacted rules or regulations which insure the right to eat meals with persons of one’s choosing in a seat of one’s choosing, or the right to have meals with guests.
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all” residents. (Defs.’ PFF ¶ 41 (citing an example of one former resident who managed
to keep his Medicaid card) (emphasis added).) Defendants minimize the loss of
autonomy and the potential for exploitation that result from the lack of choice of a
medical treatment provider. Because they generally cannot hold their Medicaid cards,
residents must ask the Adult Home for permission to access community-based medical
care, which certainly chills access to integrated medical care. Many Adult Home operators have a financial interest in controlling who provides medical care to residents.6
As a result, many residents are steered to medical providers who have a business
relationship with the Adult Homes. This practice both inflates Medicaid costs and deprives residents of opportunities to obtain medical care in an integrated setting.7
15. Defendants admit that most Adult Home residents are not permitted to administer their own medication,8 but contend that “the decision about whether a resident
6 Tr. 1405:3–1407:10 (Reilly) (Adult Homes often rent office space to medical providers at inflated rates which amount to referral fees, and residents are “lined up” to see the medical providers, raising concerns about over utilization of Medicaid).
7 Defendants have not enacted rules or regulations which insure the right to hold one’s Medicaid card.
8 Tr. 1387:6–1388:2 (Reilly) (acknowledging that medication management is an important skill, but that many Adult Homes do not afford residents the opportunity to demonstrate that skill); see also P-546 (A.M. Dep.) 91:16–93:20 (lack of autonomy concerning medication and health decisions), 94:9–18 (regimented medication schedule), 95:2–8 (long medication line), 95:25–96:9 (did not look into self administration because he was told staff must administer medication), 163:6–23 (could not get his medication if he missed the scheduled time); P-538 (B.J. Dep.), 60:12–62:15 (adult homes impose rigid schedules for meals and medications); P-536 (D.N. Dep.) 88:23–89:23 (Adult Home prohibits/discourages residents from taking their own medication); P-545 (J.M. Dep.) 76:9–79:13 (describing medication lines and difficulty getting permission to take one’s own medication); Tr. 471:16–23 (G.L.) (resident was not allowed to administer his own medicine while in the Adult Home ); Tr. 66–67 (E. Jones) (describing waiver form from Mermaid Manor authorizing Home to retain Medicaid card and to assist resident with medication, regardless of
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administers his own medication is not made by the adult home but rather by a physician.”
(Defs.’ PFF ¶ 138.) This mischaracterizes the medication administration procedures
imposed by the Adult Homes. Adult Homes generally require residents to sign a waiver
form upon admission to the home, which provides the Adult Homes with authority over
medication assistance, whether or not the resident is capable of self-administration. (See,
e.g., P-166 (consent to accept assistance in medication administration). Thus, it is Adult
Homes, not physicians, that make the decision to deem all residents presumptively
incapable of managing their own medication.
16. Defendants also attempt to minimize this fact by noting that “some” Adult
Home residents have managed to regain their right to hold their own medications. (Defs.’
PFF ¶ 39.) Given that residents must repeatedly return to the facility for medication, this restriction severely limits the ability to be fully integrated in the community.9 Thus,
defendants’ assertion that Adult Homes do not have rules that limit residents’ time
outside the facility (Defs.’ PFF ¶¶ 176–177) is simply not accurate.
ability to administer medication); P-542 (L.G. Dep.) 70:24–71:9 (“they give you a hard time if you hold you[r] medications”). 9 Defendants, who heavily regulate the operation of Adult Homes, have not enacted rules or regulations which prohibit Adult Homes from presuming that residents cannot manage their medication. Under New York Law, all adults are presumed competent to handle their own affairs unless they have been adjudicated incapacitated in a guardianship proceeding. N.Y. Ment. Hyg. § 33.01 (McKinney’s 2009) (“Notwithstanding any other provision of law, no person shall be deprived of any civil right, if in all other respects qualified and eligible, solely by reason of receipt of services for a mental disability . . . .”); see generally N.Y. Ment. Hyg. Art. 81 (McKinney’s 2009) (guardianship statute requiring due process and court hearing before a person can be deprived of control over one’s own affairs). Thus Adult Home residents should be presumed to have the capacity to administer their own medication, to choose whom they eat with, and to hold their Medicaid card and other valuable papers.
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17. While there is no formal privilege system, many of the rules and practices of the Adult Homes limit opportunities to leave the facility and to interact with persons outside. And while defendants are able to muster one example of a resident, I.K., who successfully fought to maintain control of her own medication,10 and one example of a resident, G.L., who was able to hold his Medicaid card after “insist[ing]” that he do so,11 these isolated examples do not in any way rebut the overwhelming evidence that most residents have not been permitted to retain that autonomy and that the very nature of Adult Homes deprives residents of autonomy and control over most aspects of their daily lives. (See DAI’s PFF ¶¶ 17–21.) And what is more, both I.K. and G.L., despite having succeeded in maintaining some control over their lives in Adult Home, testified that since moving to supported housing, they finally have freedom in their own lives. (Tr. 501:22– 502:13 (G.L.); Tr. 2751:16–25 (I.K.).)
18. Defendants state that unlike psychiatric hospital patients (1) Adult Home residents are not prohibited from smoking at certain times of day or carrying matches; (2) Adult Home residents are not precluded from accessing their mail;12 and (3) Adult Home residents are not subject to the same privilege system that is applied to psychiatric patients. However, these facts do not refute the overwhelming evidence that Adult 10 Tr. 2685:22–2686:9 (I.K.) (explaining that she chose one Adult Home over another
because she had “a dispute between [her] and the people who managed the first home I interviewed at about whether or not I would be able to manage my medications, which I had always done”). 11 Tr. 543:7-12 (G.L.). 12 While Adult Homes may not preclude residents’ access to mail, numerous residents testified that Adult Home staff open their mail before they receive it. (D-391 (D.W. Dep.) 114:9–116:16; P–541 (S.B. Dep.) 70:10–72:18; P-540 (P.B. Dep.) 85:4–86:2 (Defendants object to this testimony pursuant to Fed. R. Civ. P. 602, 701, 802); P-545 (J.M. Dep.) 100:2–12.)
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Homes are institutions and that they are far less integrated than supported housing. (See DAI’s PFF ¶¶ 17,18,30–32, 34.)
B. Adult Home Residents Are Not Integrated in the Community 19. Defendants assert that “adult home residents are in an integrated setting.” (Defs.’ PFF at 8 (Heading II).) In an effort to support this assertion, defendants selectively quote testimony taken out of context and rely on testimony that is not in the record. For example, defendants cite a selection of testimony of Adult Home resident, P.B., for the proposition that many homes “permit [ ] residents to come and go as they please.” (Defs.’ PFF ¶ 15 & n.5.) But P.B. testified that the Adult Home would probably prevent her from leaving if she were to try to leave at certain hours. (P-540 (P.B. Dep.) 66:20–67:9.) Similarly, defendants cite testimony of S.B. for the proposition that residents “spend time at the houses of religious leaders” (Defs.’ PFF ¶ 20), but S.B. testified that Adult Home staff told him to stop going to his minister’s house (P-541 (S.B. Dep.) 57:11–59:18). As defendants concede, many Homes have curfews and lock the doors at a certain hour, after which residents must be admitted by staff. (Defs.’ PFF ¶ 15; P-538 (B.J. Dep.) 69:5–13; P-545 (J.M. Dep.) 159:5–7; P-541 (S.B. Dep.) 57:11–58:9 84:7–85:17; P-536 (D.N. Dep.) 170:22–24 (every time resident leaves the facility she has to tell the staff where she is going).) Additionally, because of the rigid schedules for meals and medication administration, residents are limited in the times and duration they can be absent from the facilities. (Tr. 142:16–19 (E. Jones) (“People have to be back, for example, for the medicine line. They have to be back for lunch at a specific time. They have to be back to meet the regulations of the adult home, which says that the doors are locked at a certain time.”).)
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20. Defendants rely extensively on the testimony of G.H. for the proposition that “every resident living in his adult home eats outside the home at least twice per week, every resident walks around the neighborhood, almost every resident goes out of the home to go shopping approximately ten to fifteen times a year . . . .” (Defs.’ PFF ¶ 18 (citing P-569 (G.H. Dep.) 136–145).) In the testimony cited by defendants, however, G.H. explained that while he goes out of the facility to get food, he does “most of [his] eating in the building up in [his] room,” and that residents eat out to the extent their monthly funds allow it because the quality of food at the facility is so bad. (P-569 (G.H. Dep.) 136:5–137:15.) He also testified that no more than three residents go to parks outside the Home (id. at 140:12–142:8), and that residents go outside the facility to shop for toiletries and other items roughly 10 to 15 times over the course of a year (id. at 137:16–138:13). He also testified that all residents leave the facility to go to clinic, which he described as a “Medicare mill.” (Id. at 139:17–23.)
21. Defendants maintain that “[r]esidents visit their families, sometimes staying overnight, and family, friends and others visit residents at the homes.” (Defs.’ PFF ¶ 23.) To the contrary, the evidence showed that there are significant restrictions on receiving visitors, such as visiting hours and requirements that visitors sign in. (DAI’s PFF ¶ 20.) As the administrator of Park Inn testified, only about 10% of the residents visit family outside of the facility. (Tr. 2069:9–14 (Burstein).) G.L. testified that his stepfather visited him in the Adult Home but that his stepfather and others visit him more frequently now that he is in supported housing because in the Adult Home there was nowhere to have a private conversation, the visiting areas were small, guests could not join in meals, guests had to sign in, guests were not allowed to stay overnight, and
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visiting hours ended at 8 p.m. (Tr. 477:20–479:25, 482:12 483:16 (G.L.).) In contrast, G.L. described the holiday dinners and barbeques he has hosted since living in supported housing and testified that he would never opt to go back to an Adult Home because he can now have visitors any time. (Tr. 483:18–485:21, 502:1–11 (G.L.) (“I can have people stay overnight. I can entertain. I couldn’t do that in the adult home. Q. Anything else? A. Visitors can come any time. Q. And that means something to you? A. Yes.”).)
22. Defendants also assert that six residents, A.M., J.M., D.W., M.B., B.J., and L.H. have met acquaintances outside the Homes. But L.H. testified that she does not know people “on the outside” of her Adult Home. (P-534 (L.H. Dep.) 57:21–58:14.) And while A.M. testified that he once met a woman walking her dog and had played chess with a man in the neighborhood, he has no other friends who live outside the Home (P-546 (A.M. Dep) 80:17–22) and lost touch with his family for a period of time because he did not receive his messages from calls received on the Adult Home’s phone (id. at 74:15–75:14). While J.M. testified that he talked to people in the neighborhood and visited a woman in her home, he never saw other residents of his Adult Home speaking to people in the neighborhood. (P-545 (J.M. Dep.) 71:11–20 (“I never seen any other resident talking to peoples that live in the neighbor[hood]. They would be going to the store and they come right back.”).) J.M. further testified that he has seen only a handful of residents leave the facility to go shopping, go to the park, or attend religious services. (Id. at 50:23–51:6, 51:14–52:8.) Many other residents testified that they do not have relationships with people outside the Homes. B.J. testified that when people in the neighborhood find out where she’s from, they avoid her. (P-538 (B.J. Dep.) 50:7–19.) P.B. testified that she has no friends who are not Adult Home residents. (P-540 (P.B.
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Dep.) 45:18–21.) L.G. testified that she receives no visitors other than family members (P-542 (L.G. Dep.) 78:17–19), and that they cannot spend time with her at the Home because the aides get in the way (id. 164:23–165:15). R.H. testified that he has no friends outside the Adult Home and has lost touch with his family. (P-543 (R.H. Dep.) 96:12– 97:9.) Many residents testified that they lack friends outside the Home, and to the extent friendships exist, they often predate their admission to the Home. (Tr. 593:21–598:15 (S.P.); P-535 (T.M. Dep.) 35:21–23; P-569 (G.H. Dep.) 120:7–16, 123:11–18, 126:24– 127:3.)
23. While it is true that Adult Home residents are not locked in the facilities, the fact that a few residents may leave the facility to buy food when they receive their personal needs allowance, or walk along the boardwalk to escape the crowds in the Adult Homes, or occasionally visit a family member, or that a handful of residents have had jobs, does not by any measure rebut the evidence that Adult Homes are segregated settings that impede interaction with nondisabled persons. As defense witness Susan Bear wrote, Adult Homes are “psychiatric ghettos” in which groups of people with mental illness are “located in a community but never helped to become a part of it.” (P-673 (Letter from S. Bear to J. Reilly, Jan 9, 2004) at JBFCS 354).) The only inference that can be fairly drawn from the testimony cited by defendants is that there are many residents who are capable of living in more independent settings. (Tr. 143:19–144:21 (E. Jones) (the people who come and go from the homes can live in apartments and require little support); Tr. 2333:7–11 (Geller) (“But there are certainly some percentage who are, you know, about on their own going places who were just never there when they did the assessment. We would think that these people might be highly likely to be able to go to
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supported housing.”); Tr. 2384:2–6 (Geller) (“Q. And I think you also testified earlier that residents who get out and about are highly likely to be able to live in supported housing. Was that your testimony? A. Yes.”).)
24. Defendants’ own witnesses agree that Adult Homes are segregated settings and that supported housing is more integrated. Defendants’ Director of Housing Programs, Michael Newman, admitted that 120 people living in a congregate setting in which everyone is seriously mentally ill is a “segregated setting” (Tr. 2162:9–16) and that a scattered site apartment is more integrated than an Adult Home (Tr. 2169:7–2170:5). Similarly, defendants’ expert Alan Kaufman testified that “[a]s a whole, I believe that people in supported housing are participating or feel more integrated in the community than those that are in group homes.” (Tr. 2915:2–2916:4.) Another of defendants’ experts, Dr. Geller, admitted that Adult Homes are, in some ways, segregated settings. (Tr. 2371:15–17.)
25. Defendants claim that DAI’s experts “attempt to paint a bleak picture of adult home life, but it is not borne out by the testimony of residents who actually live there.” (Defs.’ PFF ¶ 33.) To the contrary, the observations of DAI’s experts were entirely borne out by the testimony of the residents who live in Adult Homes. (See, e.g., Tr. 389:20–21 (S.K.) (“[I] don’t think anybody should live like that; it’s warehousing people.”); Tr. 2734:23–25 (I.K.) (“[T]he adult home fosters complete dependency upon them to do everything for you, discourages independence . . . .”); P-546 (A.M. Dep.) 153:17–155:23 (“[W]hen you go to an adult home, number one, you’re treated like a little kid. And if you stay there long enough, you’re going to act like a little kid and you ain’t going to want to leave because you being taken care of . . . it’s like an institution to me
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. . . . The hospital I was in was a lot better than [the Adult Home].”); P-541 (S.B. Dep.) 45:6–22 (“Sometimes when you’re in an adult home, you have to—you have to deal with a lot of things. You know, sometimes you have to deal with people that get very nonprofessional at times.”); P-536 (D.N. Dep.) 236:13–23 (describing the public address announcements that blare loudly throughout the day and night directly outside her door, waking her up); P-569 (G.H. Dep.) 260:20–22 (“[T]he first seven years I lived at [the Adult Home] I basically gained 135 pounds feeding my loneliness.”); P-545 (J.M. Dep.) 27:6–8 (referring to Adult Home as a “concentration camp”); P-535 (T.M. Dep.) 111:3– 112:2 (“You’re in program, you’re in home. All your energy is surrounded with the home, so it’s hard to meet different people.”).)
26. Defendants also assert the baseless claim that “Elizabeth Jones’s testimony that Adult Homes are not integrated settings is not credible,” (Defs.’ PFF at 19, (Subheading 1)), and that her opinions are based on conversations with a limited sample of Adult Home residents (Defs.’ PFF ¶¶ 34–37). Ms. Jones based her observations and conclusions on visits to 23 impacted Adult Homes in New York City—more than the number of Homes visited by defendants’ experts combined and certainly more than the number of Homes visited by State witnesses who had never set foot in an impacted Adult Home in New York City. (Tr. 45:4–48:22 (E. Jones); Tr. 2377:7–2378:24 (Geller); Tr. 2916:9–1917:2 (Kaufman); Tr. 1499:24–1500:1 (Madan); Tr. 1579:3–5 (Campbell).) Additionally, while defendants’ experts visited Adult Homes only on pre-announced, formal tours attended by attorneys for both sides and DOH officials, Ms. Jones visited Adult Homes informally and unannounced, and revisited several Homes on many occasions. (Tr. 45:4–48:22 (E. Jones).) Moreover, contrary to defendants’ assertions,
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Ms. Jones did not limit her conversations to residents who were known by MFY Legal Services; she had extensive conversations with many other residents and, in total, spent 75 hours in the Homes speaking with 179 residents. (S-151 (E. Jones Report); Tr. 45:4– 48:22 (E. Jones).)
27. Defendants’ claim that Ms. Jones’s observations were contradicted by resident testimony is equally baseless. As they do in their Proposed Findings of Fact, defendants selectively excerpted testimony from a handful of Adult Home residents and in their questioning tried to obtain Ms. Jones’s agreement on broad-brush conclusions based on those excerpts. But as Ms. Jones explained when asked repeatedly to agree that “[n]othing precludes residents from leaving the adult home . . . to go out into the neighborhood”:
I think that paints a very deceptive picture and I’m very reluctant to say, yes, to what you are saying. What you have forgotten in asking me that question is the impact of living in an adult home with a hundred to four hundred other people and what that does to you in terms of exercising independence and being able to initiate what your day or what your life is like[.] [T]he literature going back to the old days when the institutions looked like adult homes, the literature is replete with examples of how living in that type of situation, the fear of authority and the reluctance to take initiative. (Tr. 142:25–143:13.) 28. Ms. Jones is not alone in her conclusion that Adult Homes are not integrated settings. As discussed in DAI’s Proposed Findings of Fact, OMH’s Director of Housing Programs, OMH’s former Senior Deputy Commissioner, and defendants’ expert Alan Kaufman, among others, agree with Ms. Jones’s observations. (See DAI’s PFF ¶ 13.)
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C. “Rehabilitative” Mental Health Services Available to Adult Home Residents Do Not Facilitate Integration
29. Defendants assert that “rehabilitative” services available to Adult Home residents “facilitate” integration (Defs.’ PFF ¶¶ 11–14, 28–32), but the evidence established that the exact opposite is true. While Adult Home residents leave the facility to attend continuing day treatment or other mental health programs, attending these programs contributes to residents’ isolation and separation from the mainstream of community life. Residents are generally transported together in a bus or van. (E.g., S-151 (E. Jones Report) at 3.) While at the programs, they spend their time with other persons with mental illness. (Id.; Tr. 601:25–602:9 (S.P.).)
30. Moreover, the mental health programs that residents attend—both in and outside the Adult Homes—are at odds with current practices and principles in the field of mental health. These programs often have little focus on skill development. (Tr. 897:25– 898:11 (Duckworth).) A 2006 review of continuing day treatment programs by the New York State Commission on Quality of Care for the Mentally Disabled noted “a disconnect” between participants’ life goals of gaining independent living and job skills and the goals that the programs had set for them. (P-93 (NYS Commission on Quality of Care, Continuing Day Treatment Review) at 13.) To the extent that these programs aim to teach residents independent living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice those skills in their present living situation. (S-152 (Duckworth Report) at 6–7 & n.5; Tr. 67:22–69:6, 170:7–21 (E. Jones) (explaining that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live).) While residents of supported housing can learn and practice these skills in their own
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homes, residents of the Adult Homes derive little benefit from this type of training. (S-152 (Duckworth Report) at 7–8; Tr. 870:7–10 (Duckworth) (residents unlikely to learn to cook in Adult Home environment simply because a kitchen is installed); Tr. 2360:9– 2361:1 (Geller) (“the system needs to have that person exist in an environment where they can use the skills”); Tr. 412:14–413:5 (S.K.) (describing day treatment program in which residents learned to make cakes by being told what ingredients to put in a pan and having staff “do the rest”); P-569 (G.H. Dep.) 198:4–9 (“Q. Do you feel you’ve gained confidence in your abilities while you’ve lived at [the Adult Home]? A. It’s tough to say because I’ve never been able to utilize them. I don’t know.”).) Linda Rosenberg observed that OMH is now trying to close some of these “old fashioned” programs. (Tr. 720:10–15, 749:24–750:8 (Rosenberg); see also Tr. 3317:1–3318:7 (Schaefer-Hayes) (OMH Chief Fiscal Officer testifying that defendants are directing monies away from continuing day treatment programs because they are outdated).)
31. It is not only residents’ day programs that limit their opportunities to maintain or learn living skills; Adult Homes discourage, and generally outright prohibit, residents from cooking, cleaning, doing their own laundry, and administering their own medication. (Tr. 481:3–9 (G.L.); Tr. 553:16–555:10, 559:25–560:14 (S.P.); S-54 (Kaufman Report) at 9; P-541 (S.B. Dep.) 81:13–25; P-542 (L.G. Dep.) 70:24–71:9; P-534 (L.H. Dep.) 59:18–21; P-546 (A.M. Dep.) 91:16–93:20, 95:25–96:9; P-536 (D.N. Dep.) 89:14–23,13 94:12–95:9; Tr. 54:19–55:1 (E. Jones); Tr. 376:10–377:8 (S.K.); Tr. 862:4–863:1 (Duckworth); see also Tr. 2917:3–2918:4 (Kaufman) (testifying about his observations that Adult Home staff were not “up-to-date” and “could benefit from 13 Defendants have objected to lines 89:20–23 of this testimony pursuant to Fed. R. Civ.
P. 602. The Court has not yet ruled on that objection.
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education as to what is going on in the field,” what expectations are possible, and “what services could be provided, and that treatment centers and treatment programs were reorienting”); Tr. 3425:11–13 (D. Jones) (testifying that Adult Homes are a “residencybased model which means the goal there is not really to promote independence, it’s to promote dependence and sustain dependency”).) In this and other ways, the Adult Homes foster what both DAI’s and defendants’ experts have referred to as “learned helplessness.” (Tr. 2358:21–23 (Geller); S-152 (Duckworth Report) at 8–9; Tr. 257:20– 259:21 (Tsemberis); D–182 (2009–2010 Mental Health Updated Executive Budget testimony) at OMH 43462; Tr. 2734:21–2735:2 (I.K.); P-546 (A.M. Dep.) 153:17– 154:14, 211:13–213:5.)14
32. Additionally, while residents are taken on trips outside the Adult Homes, these outings contribute little to residents’ integration into the community. The residents generally travel as a group, in a bus or van, and interact mainly with each other. (P-542 (L.G. Dep.) 37:20–38:5; P-543 (R.H. Dep.) 49:12–50:20; P-545 (J.M. Dep.) 43:10– 44:11; Tr. 2061:4–10; Tr. 2104:19–2105:16 (Burstein); S-151 (E. Jones Report) at 3.) At Park Inn Home for Adults, for example, residents are taken on shopping excursions in the Home’s van for as many residents as can fit. (Tr. 2061:4–10 (Burstein).) The Home also organizes monthly restaurant and movie outings for groups of residents transported in ambulettes. (Tr. 2104:19–2105:16 (Burstein).) Residents of Riverdale Manor Home for Adults are taken by a mental health provider, the Federation of Employment and Guidance Services (“FEGS”), on “field trips” to museums and libraries, but the visits are
14 Defendants have objected to the following portions of this testimony: to lines 153:17–154:14 pursuant to Fed. R. Civ. P. 804; to lines 211:23–212:3 pursuant to Fed. R. Civ. P. 602; and to lines 212:4–9 pursuant to Fed. R. Civ. P. 701.
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after hours when the facilities are closed to the general public. (Tr. 2560:9–16 (Waizer).) Thus, the activities described in Defendants’ Proposed Findings of Fact do nothing to alter the institutional and segregated nature of Adult Homes. II. DAI’s Constituents Are Qualified for Supported Housing
33. Defendants propose that this Court find that DAI failed to establish at trial that its constituents meet the “essential eligibility requirements” for supported housing. Defendants’ Proposed Findings of Fact on this issue not only ignore much of the voluminous testimony and evidence on this issue that DAI adduced at trial and set forth in its own Proposed Findings of Fact (see DAI’s PFF ¶¶ 52–141), they also in many cases mischaracterize that evidence that they do discuss.
A. Defendants Have Abandoned the Linear Continuum Model 34. In support of their contention that supported housing cannot serve individuals coming directly from institutional settings, defendants continue to maintain, despite the overwhelming evidence at trial to the contrary, that DAI’s constituents must proceed through a “linear continuum” of gradually less restrictive service settings before they may “graduate” to supported housing. (See Defs.’ PFF ¶¶ 45–50.) Although defendants ask the Court to find that “many” mental health professionals and providers (although they cite only three) continue to employ this “continuum” model (id. at ¶ 50), glaringly absent from defendants’ Proposed Findings of Fact is any suggestion that defendants themselves endorse the “continuum” approach in its residential programs. 35. In fact, as demonstrated in DAI’s Proposed Findings of Fact, OMH has abandoned this obsolete model both in policy and practice. (See DAI’s PFF ¶¶ 125–34.) OMH’s own commissioner recently testified to the legislature that the “continuum” approach is “inherently problematic” and does not reflect current OMH policy. (P-590
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(2008–2009 Executive Budget Recommendation Highlights Testimony) at 4.) OMH’s former Senior Deputy Commissioner testified that the linear continuum approach was being abandoned by OMH when she left in 2004. (Tr. 755:4–13 (Rosenberg).) As early as 1990, defendants, in their Supported Housing Implementation Guidelines, expressed concerns that the continuum approach had “limitations,” particularly that “[p]eople do not want to move each time they make progress in their rehabilitation.” (S-11 at OMH 37268; see also P-59 (OMH Guiding Principles for the Redesign of the OMH Housing and Community Support Policies (“OMH Guiding Principles”)) at 2 (“[m]ost people want permanent, integrated housing that is not bundled with support services (housing as housing)”).) Even defendants’ expert Dr. Geller testified, on direct examination, that “there’s no such thing as a linear continuum of residential programs.” (Tr. 2319:23– 2320:7.) Dr. Geller explained that residential programs “don’t line up saying I can go from A to B to C to D and I’m going progressively less restrictive more integrated.” (Id.)
36. Nor does OMH follow the continuum model in practice. Several of OMH’s recent RFPs for supported housing specifically target individuals being discharged from institutional settings. (E.g., P-748 (2009 RFP) at 4 (targeting current residents of OMH psychiatric centers who have resided there for one year or longer); S-67 (2008 RFP) at OMH 43108 (targeting psychiatric center patients, prison inmates, individuals with AOT orders); S-17 (2005 RFP) at OMH 37306 (targeting psychiatric center patients, prison inmates, acute psychiatric unit patients, individuals with AOT orders).) These RFPs received numerous responses from supported housing providers eager to serve these populations. (Tr. 3478:10–3479:4 (D. Jones) (30 to 40 providers
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proposing roughly 1,500 beds responded to 2005 RFP); see also Tr. 1060:23–1065:12 (D. Jones) (identifying numerous RFP responses).)
37. Defendants cite to Dr. Tsemberis to support their contention that some providers continue to use the “linear continuum” approach. (Defs.’ PFF ¶ 51.) But in fact Dr. Tsemberis strongly disagreed that the linear continuum is the dominant model in New York. Dr. Tsemberis testified that, while there may be “some” providers who still use it, the clinicians he is aware of do not agree with the linear continuum approach. (Tr. 299:13–300:6 (Q. Would you agree that most clinicians prefer the linear model of housing for persons with serious mental illnesses? A. Certainly not the ones that I know. I think that probably was true ten years ago when we first introduced [Pathways to Housing]. . . . I think, today [the Pathways to Housing approach] is a very widely accepted kind of approach to working with people with severe mental illnesses. I think there has been a real [sea] change in that opinion.”).)
38. Defendants also misrepresent the testimony of DAI’s expert Dennis Jones regarding the “linear continuum” model. Simply put, Mr. Jones did not testify, as defendants assert in their Proposed Findings of Fact, that the linear continuum model is “widely utilized” in New York. (See Defs.’ PFF ¶ 51.) Quite the opposite: when defense counsel asked him to agree that the model was “widely utilized,” Mr. Jones declined to do so, conceding only that New York “still had a range of different housing options.” In his answer to counsel’s previous question about the “linear continuum,” Mr. Jones had testified that at the time he wrote his report, “New York was very much in the process of moving to . . . supported housing for people with a variety of needs.” (Tr. 1140:21– 1141:7.) Then, in response to a question from the Court asking when the continuum
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model was considered standard practice, Mr. Jones testified that it was used “in the
1970’s and eighties.” Mr. Jones elaborated on why and how the model became obsolete:
That was kind of the time period and then 1990’s came around and then from there on forward is really when the field began to question because of, one, you know, costly when you develop where you have 24-hour staff who are there. That was one factor. The other was consumer input saying, you know, you put me in these temporary residences and then, you know, I have to keep graduating. When do I get my own home? So, I think there was that recognition.
The other thing was that providers have gotten smarter about the fact that, you know, we can do things on-site. So, the availability which came in the early 1990’s as the Medicaid rehab option which allowed for services to be provided out of clinics and in actual locations where people existed was a huge boon to the field to, if you will, catch up with where consumers, what they said they wanted. So, all three of those I think really worked to develop really more of a what I would call a contemporary model.
(Tr. 1143:6–25.)
39. In light of these facts, that a handful of supported housing providers may
still follow an “defunct” and “archaic” approach to rehabilitation (Tr. 871:10–11
(Duckworth); Tr. 1140:1–6 (D. Jones)) in no way rebuts DAI’s showing that its
constituents are qualified to receive services in OMH-funded supported housing.
40. Indeed, defendants’ inability to counter DAI’s overwhelming evidence
that OMH has abandoned the “linear continuum” approach is also dispositive of their
claim that supported housing is only for people who need “minimal supports.” If
New York does not expect or require institutionalized individuals to transition through
more restrictive service settings before moving into supported housing, it must follow
that New York does not limit its supported housing programs to individuals who have
“minimal” support needs.
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B. Supported Housing Is Intended for Individuals Needing Varying Levels of Support
41. At trial, and as set forth in its Proposed Findings of Fact, DAI established that New York’s supported housing program can appropriately serve individuals with a wide variety of support needs, from those with minimal support needs—the bulk of DAI’s constituents—to the small number of DAI’s constituents who will need more intensive supports. Each of DAI’s three experts testified to the flexible nature of supported housing, as did Dr. Tsemberis of Pathways to Housing and OMH’s own former Senior Deputy Commissioner. Indeed, OMH’s own documents demonstrate that it is official OMH policy to target supported housing to those with high needs for support. (See DAI’s PFF ¶¶ 52–141.)
42. Nevertheless, defendants propose that the Court find that New York’s supported housing programs are incapable of serving individuals with more than the most minimal needs for support. (See Defs.’ PFF ¶ 53.)
43. As an initial matter, defendants’ apparent premise that most of DAI’s constituents could not be served in a setting that required individuals to have only “minimal needs” is false. In its Proposed Findings of Fact, DAI set forth extensive evidence that Adult Home residents “by and large have similar characteristics” to residents of supported housing. (Tr. 709:8–12 (Rosenberg); see also DAI’s PFF ¶¶ 99– 106.) DAI’s expert Elizabeth Jones, after visiting with 179 Adult Home residents, concluded that “many people” in Adult Homes could move to supported housing with “little or no support.” (Tr. 83:24–84:9 (E. Jones).) The data gathered by defendants’ own New York Presbyterian Hospital Assessment Project (the “Assessment Project”) showed that Adult Home residents are “not a seriously impaired population in the vast
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majority,” with few residents having severe cognitive deficits or significant problems with daily living skills. (Tr. 3072:7–17 (Groves); see also DAI’s PFF ¶¶ 86–98; Tr. 1048:9–1050:12 (D. Jones) (explaining that the Assessment Project data demonstrated that the vast majority of Adult Home residents assessed would need only a low level of support).) These conclusions are fully consistent with the admission criteria for Adult Homes, which do not permit admission of people requiring high levels of assistance with daily living or significant medical care, or who pose a danger to themselves or others. (S-141 (18 N.Y.C.R.R. § 487.4).)
44. As for those who would need more extensive supports, the evidence at trial established that such supports are available, and in fact routinely provided by supported housing providers. In alleging the contrary, defendants simply ignore the overwhelming evidence DAI adduced on this issue at trial.
45. Most strikingly absent from defendants’ Proposed Findings of Fact on this issue is any mention whatsoever of OMH’s own requests for proposals (RFPs) to create supported housing beds and supported housing providers’ responses to those RFPs. As DAI set forth its Proposed Findings of Fact, OMH’s recent RFPs all describe supported housing as capable of offering “varying” levels of supports and, further, expressly contemplate that, while some residents of supported housing may have minimal support needs, others may require extensive supports, including Assertive Community Treatment (ACT) or intensive case management. (See DAI’s PFF ¶¶ 55, 108.) Indeed, a number of OMH’s RFPs for supported housing specifically target residents of various institutional settings, such as psychiatric centers, Article 28 hospitals, and prisons—not to mention Adult Homes themselves—demonstrating that OMH can and does already serve in
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supported housing precisely the populations it claims in this litigation cannot be served in supported housing. (See DAI’s PFF ¶ 131.) These RFPs are the best evidence of what kinds of individuals OMH in practice expects supported housing providers to serve.
46. The responses to those RFPs by supported housing providers confirm that there are numerous supported housing providers in New York that are not only willing, but eager to serve even highly institutionalized populations, such as long-term residents of psychiatric centers, hospitals, and the Adult Homes themselves. As set forth in DAI’s Proposed Findings of Fact, when OMH was forced by the legislature to issue an RFP for 60 supported housing beds for Adult Home referrals, it received proposals from seven different supported housing providers wishing to serve DAI’s constituents in supported housing. (See DAI’s PFF ¶ 119.) Three of those providers were awarded contracts and are now serving at least 45 Adult Home residents, with another 15 residents in the process of filling the remaining beds. (See DAI’s PFF ¶ 120.)
47. Also conspicuously absent from defendants’ Proposed Findings of Fact is any mention of the fact that defendant OMH’s own former Senior Deputy Commissioner, Linda Rosenberg, based on more than three decades of experience working with adult homes and adult home residents, testified that virtually all Adult Home residents could be appropriately served in New York’s supported housing programs. (DAI’s PFF ¶¶ 73– 77.) According to Ms. Rosenberg, Adult Home residents “by and large have similar characteristics” to residents of supported housing, and are placed in Adult Homes by “luck of the draw” rather than any clinical determination that it is an appropriate placement. (Tr. 709:2–12.) Ms. Rosenberg was a disinterested third-party witness: she described OMH as “a very good place to work” that was “very good to me.” (Tr.
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772:16–18.) Her only motive in testifying was “improving the lives of people with serious mental illness.” (Tr. 772:20–23.) Defendants’ Proposed Findings of Fact offer no reason why the Court should disregard Ms. Rosenberg’s persuasive and unimpeached testimony.
48. Ignoring completely the above evidence, defendants in their Proposed Findings of Fact cite to purported evidence that they claim demonstrates that supported housing can only serve those with minimal needs. (Defs.’ PFF ¶ 53.) None of this evidence proves what defendants say it does; indeed, some of it shows precisely the opposite.
49. The very first document that defendants cite as evidence of their “minimal needs” contention is Exhibit S-11, OMH’s 1990 Supported Housing Implementation Guidelines. (Id.) Defendants provide no pin-cite showing where they contend the Guidelines say that supported housing is for people with minimal needs. Nor could they, as the Guidelines say no such thing. What the Guidelines do say is that supported housing is a program created in “recognition” of the fact that “[p]eople do not want to move each time they make progress in their rehabilitation.” (S-11 at OMH 37268; see also S-101 (Supported Housing Implementation Guidelines, reformatted 2005) at OMH 37514.) It is instead a program of “permanent” housing in which residents receive “recipient-specific support services designed to assist people in succeeding in their housing.” (Id.) The Guidelines further identify as a target population of supported housing “individuals discharged from psychiatric centers” (S-11 at OMH 372270)—a highly institutionalized population with significant needs. (See Tr. 229:2–10 (Tsemberis) (person just discharged from the hospital would likely need daily or even twice daily
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visits); 310:20–311:8 (recently hospitalized individual would need help “disengaging from the perceived need for services”) (Tsemberis); 2560:2–4 (Waizer) (describing newly discharged patients from psychiatric hospital as “very disabled”).) The Guidelines thus make clear that supported housing is designed to serve individuals with varying levels of need.
50. In support of their implausible “minimal needs” assertion, defendants also cite to S-60 and S-19, documents produced by FEGS, a supported housing provider, and the testimony of a former Federation of Organizations (“Federation”) employee, Frances Lockhart, who testified regarding Federation’s 25-bed supported housing program. (See Defs.’ PFF ¶ 53.) Defendants’ citation to the FEGS documents is inexplicable: S-60 is a document outlining eligibility criteria for a FEGS apartment treatment program, not a supported housing program, and S-19 provides brief descriptions of FEGS residential programs with no mention of eligibility requirements.
51. As for Ms. Lockhart’s testimony about Federation’s small supported housing program, she acknowledged that Federation has previously accepted Adult Home residents (Tr. 2640:9–10) and even individuals from state psychiatric centers (Tr. 2670:25–2671:3) directly into its supported housing program; that, despite her view that supported housing was only for individuals who are substantially independent (Tr. 2639:19–2640:6), some Adult Home residents could live in supported housing (Tr. 2636:19–21); and that, with at least one new supported housing resident she was aware of, case managers visited the apartment twice-daily to assist with the transition to supported housing (Tr. 2672:8–21).
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52. In any event, FEGS and Federation are only two of dozens of service providers in New York City offering supported housing. As DAI noted in its Proposed Findings of Fact, the fact that some supported housing providers may provide fewer supports in their programs does not rebut DAI’s showing that there are many other providers willing and able to serve individuals with much higher needs. (See DAI’s PFF ¶ 109 n.8.)
53. Incredibly, defendants also cite for their “minimal needs” contention the testimony of Dr. Sam Tsemberis of the Pathways to Housing supported housing program—a program that specializes in serving individuals with very high needs. (Tr. 247:8–11 (Tsemberis).) In asserting that Dr. Tsemberis testified that “clients graduate into supported housing because it has minimal supports” (Defs.’ PFF ¶ 53; see also id. ¶ 63), defendants mischaracterize Dr. Tsemberis’s testimony. What Dr. Tsemberis actually said was, “[y]ou can put someone with severe mental illness in supported housing and it doesn’t matter the degree of severity of illness as long as you match the supports to what they need.” (Tr. 265:15–267:25.)
54. Aside from the self-serving trial testimony of OMH employees—which, as noted above and in DAI’s Proposed Findings of Fact, is contradicted by OMH’s own RFPs, its own former Senior Deputy Commissioner, and numerous other OMH documents (see, e.g., DAI’s PFF ¶¶ 55 (Supported Housing Guidelines and RFPs), 81–82 (Adult Care Facilities Workgroup Report (the “Workgroup Report”)), 93 (Assessment Project), 108 (RFPs), 130 (testimony of OMH Commissioner Stone))—the only evidence cited by defendants that actually uses the term “minimal support” in reference to supported housing is a document prepared by a third-party, Center for Urban Community
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Services (CUCS), which purports to describe various “supportive housing models for people with mental illness and other special needs.” (See S-40 (CUCS, A Guide To Supportive Housing Models for People With Mental Illness and Other Special Needs), at JG 250; S-70 (CUCS, Supportive Housing Options NYC (2009 ed.) at OMH 43225 (updated version of S-40).) As DAI’s expert Dennis Jones explained at trial, this document describes supported housing in terms that are “inconsistent” with OMH’s stated approach to supported housing in numerous other documents. (Tr. 1154:5–6.) Kathleen Kelly, the witness from HRA, testified that HRA does not rely on the eligibility criteria set forth by CUCS in approving individuals for supported housing. (See Tr. 1892:21–1893:25 (Q. So does your group rely on the eligibility criteria set forth by CUCS? A. No. We—the eligibility criteria is set up by, in this particular case, by, say, for NY/NY III I think six or seven agencies signed on to that . . . Q. Does HRA rely on the eligibility criteria set forth by CUCS? A. No.) And even the CUCS document acknowledges that “in practice and over time, variations with [each housing] model have developed.” (S-40 at JG 244; S-70 at OMH 43219.)
55. Defendants claim in their Proposed Findings of Fact that to live in supported housing, individuals must be capable of seeking assistance and taking their medication independently, must demonstrate “a significant period of psychiatric stability,” must be able to “meet their own daily needs” and “maintain their apartment” with “minimal assistance,” and, in many cases, must even maintain their sobriety. (Defs.’ PFF ¶ 54.) But the record shows that people who have difficulties with each of these issues are successfully served by New York’s supported housing providers every day. (See, e.g., Tr. 82:16–23 (E. Jones) (although “not many” Adult Home residents would
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need medication management or health-related services in supported housing, those supports “are nothing unfamiliar to what’s commonly found in a mental health system today”); Tr. 316:19–317:15 (Tsemberis) (explaining the “whole range of options” to assist supported housing residents with medication); S-101 (Supported Housing Guidelines, reformatted 2005) at OMH 37516 (targeting newly-discharged psychiatric hospital patients for supported housing); P-394 at 2 (RFP response seeking to serve individuals who have been “non-compliant with treatment,” including medication regimes); P-439 at 3 (RFP response seeking to serve individuals needing assistance “developing or re-developing activities of daily living” and self-care skills); P-442 (RFP response seeking to serve individuals who need service planning regarding “medication compliance and symptom awareness and management”).) Indeed, recent OMH RFPs have forbidden providers from screening out applicants because of substance abuse issues. (P-748 (2009 RFP) at 8 (“Agencies cannot reject someone for housing based solely on the past history or current substance use of potential residents”); S-33 (2007 RFP) at OMH 42730 (“no exclusionary admission criteria related to past or current substance use may be imposed”); Tr. 1528:19–21 (Madan).)
56. Defendants also claim, wrongly, that individuals are “normally” visited by a case manager once a month, or perhaps if they have a supportive or intensive case manager, once per week. (Defs.’ PFF ¶ 55.) In fact, the evidence demonstrated that the number of visits can vary widely depending on the needs of the resident, up to as often as twice per day. (Tr. 2172:18–2173:8 (Newman); Tr. 2672:8–2673:4 (Lockhart) (testifying that she is aware of individuals who were seen by supported housing case manager twice per day, twice per week, and every other day).) In the Pathways to Housing supported
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housing program, the average is about twice per week. (Tr. 228:24 (Tsemberis).) Individuals in supported housing who receive ACT services are required to be visited at least six times per month by members of the ACT team. (P-372 (ACT Program Guidelines 2007) at 5.)
57. As defendants acknowledge, supported housing providers fully expect to visit individuals more frequently as they are transitioning into supported housing from institutional settings. (See Defs.’ PFF ¶ 55.) As new residents acquire the skills they need to live more independently, the frequency of visits can typically be decreased. (Tr. 229:5–10 (Tsemberis); Tr. 2672:23–2673:4 (Lockhart); see also DAI’s PFF ¶ 112.)
58. While defendants claim that the “supported housing model in New York” does not include services “other than limited case management related primarily to maintaining the housing and resolving housing issues,” defendants acknowledge, as they must, that residents are also eligible to obtain supportive or intensive case management services to assist them with other issues. (Defs.’ PFF ¶ 55.) Dr. Tsemberis, whom defendants cite for the proposition that supported housing case management relates primarily to housing issues, agreed that it is “common” for supported housing residents to have additional case management services to assist them with issues that are not housing related. (Tr. 237:10–13.)
59. The evidence at trial also demonstrated that those with the highest needs can receive services from Assertive Community Treatment (ACT) teams. (See DAI’s PFF ¶¶ 45–48, 115.) As demonstrated in DAI’s Proposed Findings of Fact, ACT provides intensive, cross-disciplinary treatment to individuals with high needs living in a variety of different settings, including supported housing. (Id.) OMH’s own guidelines
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for ACT are clear that, contrary to defendants’ contention (see Defs.’ PFF ¶ 59), ACT teams can not only provide individuals with mental health treatment, but can also assist them with independent living skills such as medication management, money management, cooking, laundry, and use of public transportation. (P-372 (ACT Program Guidelines 2007) at 3–4; Tr. 818:2–10 (Duckworth); see also Tr. 279:2–11, 243:7– 246:16 (Tsemberis).) Also contrary to defendants’ assertion (see Defs.’ PFF ¶ 59), ACT teams can and do visit their clients daily or even twice daily when necessary. (Tr. 134:19–135:12 (E. Jones); Tr. 229:2–4 (Tsemberis) (“no prescribed number of contacts; some people seen up to twice a day”).) Any individual living in supported housing can apply to receive ACT services. (Tr. 1832:6–12 (Dorfman); Tr. 1414:20–1416:10 (Reilly); Tr. 3170:19–3171:14 (Myers).)
60. In their Proposed Findings of Fact, defendants contend that Adult Home residents are ineligible for ACT services. (Defs.’ PFF ¶¶ 59–63.) In essence, defendants argue that Adult Home residents, while too disabled to be served in supported housing without ACT, are not disabled enough to qualify for ACT. In defendants’ view, Adult Home residents fall into a sort of public-health “no-man’s land,” in which they are deemed too psychiatrically stable to be provided with the services defendants themselves contend are necessary to allow them to live independently.
61. According to defendants’ Proposed Findings of Fact, ACT services in New York City are only available to individuals who “demonstrate a high use of inpatient hospitalizations or emergency room services,” have an inpatient hospitalization during the last year that lasted 90 days or longer, or are under a court’s Assisted Outpatient Treatment Order. (Defs.’ PFF ¶ 61.)
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62. These alleged eligibility requirements for ACT come from a document prepared by the Center for Urban Community Services (CUCS), a third party who is contracted to run the SPOA in New York City. (See D-279.) Defendants’ witness, Christine Madan, testified at trial that these eligibility requirements do not reflect OMH’s statewide ACT policy guidelines, but instead represented “more stringent” guidelines for New York City agreed upon by OMH and the “local government unit,” i.e., New York City. (1447:15–1478:4.)
63. The eligibility requirements in OMH’s statewide ACT guidelines are broader than those set forth in the CUCS document: they require simply that the applicant have “a severe and persistent mental illness . . . that seriously impairs their functioning in the community,” with a “priority” given to individuals with “continuous high service needs that are not being met in more traditional service settings.” (P-372 at 4.)
64. Even the alleged more stringent guidelines, if applied, would not preclude large numbers of Adult Home residents from receiving services in supported housing. As DAI’s witnesses testified, Adult Home residents have needs and characteristics similar to those of current supported housing residents. (See DAI’s PFF ¶¶ 99–106.) DAI’s expert, Elizabeth Jones, testified that many Adult Home residents could live in supported housing with no additional services at all. (Tr. 83:24–84:9 (E. Jones); see also Tr. 856:14–16 (Duckworth) (not all Adult Home residents would require ACT).) Many of those who would need additional services could obtain what they needed through intensive case management or blended case management. (Tr. 1833:10–12 (Dorfman); Tr. 1414:20–1416:10 (Reilly); Tr. 3170:19–3171:14 (Myers).) And those with the very highest needs may well “demonstrate a high use of inpatient hospitalizations or
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emergency room services,” as defendants claim is required to receive ACT in New York City. (Tr. 1125:17–19 (D. Jones) (some Adult Home residents would meet alleged more stringent New York City ACT guidelines in D-279).)
65. In any event, the alleged “more stringent” eligibility requirements for New York City are the result of an agreement between OMH and New York City; they do not reflect statewide OMH policy. (Tr. 1447:15–1478:4. (Madan).) If it were necessary to apply the statewide ACT guidelines in New York City to ensure that Adult Home residents transitioning into supported housing receive the services necessary for them to succeed, OMH could easily do so.15 (Tr. 1125:24–1126:1 (D. Jones).)
66. In asserting that ACT is for individuals with higher needs than Adult Home residents, defendants once again take out of context the testimony of Dr. Tsemberis. Defendants cite Dr. Tsemberis as the sole support for their contention that ACT is not frequently used in supported housing because supported housing is for people “who do not require a lot of support.” (Defs.’ PFF ¶ 62.) But Dr. Tsemberis testified that he thought “most people” receiving ACT services did not live in OMH housing of any kind—rather, they mostly lived either completely independently or with their families. (Tr. 329:18–330:2.) Additionally, Dr. Tsemberis testified that although most individuals participating in his supported housing program receive ACT services when they enter the program, their service needs decrease over time. (Tr. 230:23–25.)
15 Requiring the State to permit residents of New York City access to the same services it already provides to other New York State residents would not amount to a fundamental alteration. See Disability Advocates, 598 F. Supp. 2d 289, 335 (E.D.N.Y. 2009) (finding that where State already provides services in an integrated setting, “assessing and moving the particular plaintiffs to that setting, in and of itself, is not a fundamental alteration). Defendants have pointed to no important reason for limiting access to ACT services for DAI’s constituents.
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C. Adult Home Residents Are No More Disabled than Individuals In Supported Housing
67. As set forth in DAI’s Proposed Findings of Fact, the evidence at trial established that Adult Home residents with mental illness are no more disabled, and indeed, due to the absence of meaningful supports in Adult Homes, may often be less disabled, than residents of supported housing. (DAI’s PFF ¶¶ 99–103.)
68. DAI’s evidence that Adult Home residents have generally similar characteristics to supported housing residents included its experts’ analyses of the Assessment Project commissioned by DOH, the findings of the Adult Care Facilities Workgroup, and its experts’ analyses of the mental health files of numerous Adult Home residents. DAI’s evidence also included firsthand observations of numerous Adult Home residents by, among others, its expert Elizabeth Jones, who met with 179 Adult Home residents during the course of her investigation, and Linda Rosenberg, the former Senior Deputy Commissioner of OMH, who, in more than three decades working in Adult Homes and with Adult Home residents, estimates that she has met “probably literally thousands” of Adult Home residents. (S-151 (E. Jones Report) at 1–2; Tr. 773:15–22 (Rosenberg).) Both of these witnesses testified that, in their view, residents of Adult Homes had the same characteristics as individuals in supported housing and could be appropriately served in supported housing. (Tr. 709:8–12 (Rosenberg); Tr. 52:20–53:4 (E. Jones).)
69. In claiming that Adult Home residents are, contrary to the observations of DAI’s witnesses, “very disabled,” defendants rely heavily on the testimony of Jonas Waizer, the Chief Operating Officer of FEGS, which provides case management services in one Adult Home. (Defs.’ PFF ¶ 58; Tr. 2504:15–18.) Mr. Waizer is a senior executive
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at FEGS who oversees roughly 3,000 employees. (Tr. 2575:22–25) Mr. Waizer’s only firsthand knowledge of Adult Home residents comes from his observations of, in his estimate, between 30 and 40 residents of Riverdale Manor. (Tr. 2577:7–15.) Mr. Waizer did not analyze residents’ abilities to live in other settings, rather, he made his observations while visiting Riverdale Manor to negotiate and oversee the implementation of a FEGS case management program at the Adult Home. (Tr. 2558:12–19; 2577:7–15.)
70. Mr. Waizer testified that the Adult Home residents he observed had “pacing behavior,” had difficultly “hold[ing] a conversation,” and had difficulty “sitting in a group.” (Tr. 2559:12–2560:7.) Based on these three characteristics, Mr. Waizer concluded that the residents he observed were “about as bad as the newly-discharged patients from Manhattan Psych.” (Id.) Neither Mr. Waizer nor defendants in their Proposed Findings of Fact explained how pacing, poor conversational skills, or difficulty sitting in a group would disqualify individuals from supported housing—a service setting that, after all, requires one to have a serious mental illness in order to be eligible. (S-101 (Supported Housing Guidelines, reformatted 2005) at OMH 37515; Tr. 1505:2–5 (Madan).) Notably, the newly discharged psychiatric center patients to whom Mr. Waizer compared these Adult Home residents are themselves one of the three original target populations of supported housing and continue to be targeted in OMH's current supported housing RFPs. (S-11 (Supported Housing Guidelines) at OMH 37270; P-749 (2009 RFP); S-67 (2008 RFP); S-17 (2005 RFP).)
71. Defendants also rely on the testimony of Susan Bear of the Jewish Board and Frances Lockhart of Federation of Organizations for the proposition that “adult home residents often require more services than supported housing offers.” (Defs.’ PFF ¶ 57.)
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However, both of these witnesses made clear that their organizations still adhered to the old “linear continuum” approach. (2654:12–17 (Lockhart); 2216:7–13 (Bear).) The fact that these two supported housing programs provide little support to clients reflects limitations in those providers’ supported housing programs, not in the supported housing model as espoused by OMH and practiced by numerous other providers.
D. Whether Adult Home Residents Have Been Approved for Supported Housing by HRA Is Irrelevant to Whether They Are Qualified for Supported Housing
72. Defendants wrongly suggest in their Proposed Findings of Fact that Adult Home residents are not “qualified” for supported housing unless they have been approved for supported housing by New York City’s Human Resources Administration (HRA). (Defs.’ PFF ¶¶ 64–67.) As this Court found on summary judgment, however, completing the HRA form is not an “essential eligibility requirement” to receive community-based services. Disability Advocates, 598 F. Supp. 2d at 309. The evidence shows, moreover, that HRA is merely a “clearinghouse” for OMH-funded housing whose determinations are often subject to change and that, in any event, many Adult Home residents lack a meaningful opportunity to submit an application to HRA for the housing of their choice.
73. OMH currently requires individuals seeking to live in any OMH-funded housing in New York City to first submit an application to HRA, a division of the New York City Department of Social Services. Defendants’ witness Christine Madan described HRA as a “clearinghouse for receiving applications for housing for persons with mental illness in the city.” (Tr. 1461:25–1462:5; see also Disability Advocates, 598 F. Supp. 2d at 309, 333 n.44 (describing the HRA process as nothing more than “a bureaucratic avenue to access housing programs”).) Based on this application, HRA
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decides which types of housing the applicant may apply for. (Tr. 1463:20–25 (Madan); Tr. 1913:2–6 (Kelly).)
74. The evidence at trial made clear that an HRA determination of eligibility for a particular level of housing is not a reliable indication of the type of housing in which an individual could successfully be served.16 (Tr. 347:4–8.) Kathleen Kelly of HRA also testified that HRA determinations are “not written in stone.” To the contrary, it is a “flexible process,” in which a service provider can “call the reviewer” or “transmit additional information” if the service provider disagrees with HRA’s determination. (Tr. 1908:7–13.) Ms. Kelly further acknowledged the experience level of the reviewer may impact the type of housing an applicant is approved for. (1910:11–19.)
75. Approved HRA applications are also an inappropriate measure of how many Adult Home residents are qualified for supported housing because of the inability of many residents to meaningfully utilize the HRA process. It is undisputed that Adult Home residents must rely on others to complete the application and submit it to HRA. The application is a complicated electronic form that is designed to be completed by a “referring agency,” not the individual seeking housing. (Tr. 1462:8–20 (Madan) (HRA application is filed electronically; resident wishing to complete application process would speak with a mental health provider); Tr. 1894:16–21 (Kelly) (“referring agency” is supposed to complete the HRA application).) It requires detailed assessments of the applicant from both a psychiatrist and a social worker. (Tr. 1897:23–1898:9 (Kelly) &
16 Indeed, the Court has already recognized this fact in denying defendants’ summary judgment motion, noting that the HRA process “is unrelated to the characteristics of the individual seeking services that would make him or her suitable for supported housing.” Disability Advocates, 598 F. Supp. 2d at 333 n.44.
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2107:2–7 (Burstein) (HRA application requires psychosocial history signed by a social worker, as well as a psychiatric evaluation signed by a psychiatrist).)
76. The evidence at trial showed that many Adult Home residents may not have anyone to assist them in completing an application. Over half of the Adult Homes do not participate in OMH’s case management initiative and, in any event, case managers are not always willing to assist residents in completing the application or in applying for the type of housing that the resident desires. (Tr. 1501:18–1502:7 (Madan) (treatment provider completing the application, not resident, ultimately determines what kind of housing to apply for); Tr. 1834:24–1835:5 (Dorfman) (outside case management in eleven homes and defendants have no plan to expand it), 1835:16–18 (unaware of what information about housing opinions is provided to residents in homes without OMH case management), 1858:6–1859:5; see also Tr. 390:19–391:19 (S.K.) (testifying that she spoke with her case manager about moving to more integrated housing about a year ago, but has not heard anything further from the case manager); P-540 (P.B. Dep.) 123:7–20 (case manager not helpful); P-546 (A.M. Dep.) at 169:6–14 (had to “fight” to get HRA application filled out by case manager, who then failed to complete it properly).)
77. Staff or social workers employed by the Adult Home also have a motive to be unhelpful to residents seeking to move: the Adult Homes are for-profit enterprises that lose revenue with each resident who secures alternative housing. DAI’s expert Dr. Duckworth testified that the care providers he observed working in the Adult Home seemed to have “lost their professional autonomy” and “basically showed up to work and saw whoever the operator directed them to see.” (Tr. 870:11–15.) Linda Rosenberg testified that the operators themselves would threaten to close down whenever OMH
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suggested initiatives that would result in residents leaving Adult Homes. (Tr. at 698:9– 12.)
78. In addition, several witnesses, including defendants’ witnesses, testified at trial that Adult Home residents are simply not aware of other types of housing that may be available to them. (See, e.g., S-151 (E. Jones Report) at 11; Tr. 663:15–18 (Rosenberg) (during her tenure at OMH, residents had only the “vaguest” information about housing alternatives); 2416:15–18 (Geller) (agreeing residents are not adequately informed of housing options); 2083:21–2084:4 (Burstein) (“path wasn’t clear” to Adult Home residents seeking alternative housing); 2664:8–11 (Lockhart) (Adult Home residents not participating in case management may not be familiar with alternative housing options).) Residents cannot be expected to take steps to move to more integrated housing if they have not been given the information they would need to make a meaningful choice to do so.
79. In light of the above, it is clear that Adult Home residents need not have obtained a determination from HRA to be qualified to be served in—that is, to meet the essential eligibility requirements for—supported housing.
E. Defendants’ Attacks on the Testifying Adult Home Residents Have No Basis
80. DAI called to testify two current Adult Home residents, S.K. and S.P. Each of these witnesses made clear in their testimony they were both willing and able to live in supported housing. Defendants nevertheless ask the Court to find that neither S.K. and S.P. would be qualified for supported housing.
81. Defendants, contrary to all available evidence, describe S.K. as a person who has “been unable to survive in the community” due to her depression. (Defs.’ PFF
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¶ 71.) In fact, S.K. lived with clinical depression successfully in the community for almost 20 years before being placed in the Adult Home. (Tr. 361:13–14.) S.K. raised a family of four children living in her own home on Long Island, where she cooked, cleaned, shopped, and did the yard work. (Tr. 361:15–364:12.) When her husband died, she moved to an apartment in Astoria and worked for five years as a nurse’s aide, where she took care of patients and administered their medications. (Tr. 364:11–366:8.) S.K. then moved to Georgia to live with her daughter, and worked there for 5 years at a supermarket deli. (Tr. 367:7–369:21.) S.K. moved back to New York to live with her sister, but was then voluntarily hospitalized due to an episode of severe depression. (Tr. 370:7–371:11; 397:12–13.)
82. After her hospitalization, S.K.’s sister refused to allow her to move back in with her because the sister “couldn’t cope with” S.K.’s depression. (Tr. 371:15–19.) Although S.K. wanted to live in an apartment, the psychiatric hospital instead discharged S.K. to an Adult Home. (Tr. 371:12–372:14.)
83. S.K. testified of her ability to live independently. She testified that she is “well able to take care of a place on [her] own” (Tr. 372:16–18), that she is able to manage her own money (Tr. 380:13–15), and that the only supports she would need would be “somebody to call in on me once in a while just to see how thing are doing.” (Tr. 390:12–16.)
84. Defendants contend that S.K. cannot live in supported housing because she was unable on the witness stand to name the medications that the Adult Home administers to her for depression. (Defs.’ PFF ¶ 72) But defendants fail to mention that, despite the fact that the Adult Home does not permit S.K. to administer her own
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medications (Tr. 377:5–8), S.K. still carried a list of her medications—Klonopin, Effexor XR, Requip, and Remeron (D-349 at 4)—with her in her bag. (Tr. 395:11–14.) S.K. herself said that she would be “well able to manage my own medication,” in a supported apartment. (Tr. 378:16.) That assessment that was shared by S.K.’s social worker at the psychiatric hospital from which she was discharged into the Adult Home, who wrote in her psychosocial evaluation that S.K. “has been medication compliant” and “is able to manage her medication independently,” and would need only reminders to take her medications. (D-349 at 8.) In any event, as noted above, supported housing residents can be provided assistance with medication management. (See Tr. 316:19–317:15 (Tsemberis).)
85. S.K.’s HRA application also reflects that she could easily be served in supported housing. According to S.K.’s application, her only psychiatric disorder is major depressive disorder, with no current “Symptoms/Behaviors” and no substance abuse issues. (D-349 at 5 & 7.) The application indicates that S.K. needed no assistance with personal hygiene, traveling, keeping her room clean, or laundry, and desired only a “low” level of support. (Id. at 8.) As noted above, S.K.’s social worker felt that S.K. “is able to manage her medication independently.” (Id. at 13.) The social worker concluded that that S.K.—“a pleasant, educated and motivated woman” who “has always lived in private residences throughout her life”—needs only “minimal support and would do fine with attending an outpatient mental health program.” (Id.)
86. Finally, while defendants argue that DAI failed to present evidence that S.K. ever applied for supported housing, they fail to mention that when S.K. has tried to talk to her case worker about moving to an apartment, the case worker “kind of just puts
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[her] off,” saying that “there’s nothing available right now.” (Tr. 390:21–25.) Defendants do not explain how S.K. is expected to submit an application to HRA if her case worker will not assist her in doing so.
87. Defendants also question whether Adult Home resident S.P. is qualified for supported housing. (Defs.’ PFF ¶¶ 74–75.) S.P. testified that prior to coming to the Adult Home he did his own cooking, cleaning, and laundry, and had his own bank account. (Tr. at 560:12–23 574:6–8; 576:3–12, 22–24.) S.P. further testified that while residing at the Adult Home, he has held a part-time job as a porter at a hospital, and regularly navigates public transportation. (Tr. 567:23–568:10; 592:5–23.) S.P. has been actively searching for alternative housing for over a year, but has so far been unsuccessful. (Tr. 615:24–616:13.) S.P. also testified that his social worker at the Adult Home “started on [the HRA application], but he didn’t finish it.” (Tr. 615:5.) As with S.K., it is difficult to understand how S.P. is to be expected to complete an HRA application without the assistance of the case management.
88. Defendants also discuss the testimony of G.L., a current resident of supported housing who previously resided in an Adult Home. (Defs.’ PFF ¶¶ 76–78.) Defendants do not try to suggest, however, that G.L. is unqualified to live in supported housing. To the contrary, G.L.’s testimony makes clear that he is flourishing in supported housing. (See, e.g., Tr. 463:19–464:21; 485:22–486:4; 495:6–25; 496:16–19; 498:8–9.) While G.L.’s medical records during his time in the Adult Home may reflect some ambivalence about moving to more independent housing, nothing in his medical records impeaches his testimony about the difficulties he experienced trying to get assistance from the care providers at the Adult Home in securing alternative housing.
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(See Tr. 452:1–456:17.) Further, G.L.’s eventual success in that setting only proves the point that, due to institutionalization, some individuals may need support, encouragement, and education before they are able to make a meaningful choice about whether to live in the community. (See DAI’s PFF ¶¶ 163–64.)
F. Defendants’ Attacks On DAI’s Experts Are Without Merit 89. As set forth in DAI’s Proposed Findings of Fact, each of DAI’s three expert witnesses testified credibly that virtually all Adult Home residents could be appropriately served in defendants’ supported housing program. (DAI’s PFF ¶¶ 57–72.) Defendants’ suggestion in their Proposed Findings of Fact that the testimony of DAI’s experts “was not based upon reliable scientific principles or methods” and was not “credible” is without merit. (Defs.’ PFF ¶ 79.) 90. Defendants’ central critique of all three of DAI’s experts—that they did not perform in-person clinical assessments of each of DAI’s constituents to determine whether they were qualified for supported housing ignores that such individualized assessments are not necessary to determine whether any individual can be served in supported housing. Rather, as DAI’s experts explained, such assessments are only necessary to determine the specific supports that each resident would need once placed in supported housing. (Tr. 53:14–54:12 (E. Jones) (clinical assessment unnecessary “because, at this point, I’m not making individual determinations as to the exact array of supports that people will need when they live in the community setting.”); Tr. 811:20– 812:15 (Duckworth) (clinical assessment unnecessary because expert could “screen people looking for specific contraindications to why they might not be able to live in the community”).)
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91. By claiming that DAI’s experts’ conclusions are unreliable because they did not perform in-person clinical assessments, defendants are holding DAI to a higher standard than they hold their own programs. Kathleen Kelly of HRA testified that HRA does not conduct clinical assessments of individuals before determining whether they are eligible for supported housing. Instead, HRA relies entirely on the electronic application submitted by the referring agency. (Tr. 1908:1–5) (Kelly) (HRA makes determination by reading the application).) As Ms. Kelly explained, “because we’re not seeing the client, we’re relying very heavily on what the referring agency’s telling us about the client.” (Id.)
92. Finally, defendants’ expert Dr. Geller admitted that he did not perform clinical interviews of Adult Home residents to assess them for supported housing either, in part because he felt it would be “unfair” because it would “lead to the expectation by the adult home resident being interviewed that the interview would translate into some action in a timely fashion and that was not going to happen here.” (Tr. 2379:24–2380:5.)
93. With regard to defendants’ remaining attacks against DAI’s expert witnesses, all are without merit and should be rejected: Kenneth Duckworth
94. As set forth in DAI’s Proposed Findings of Fact, Dr. Kenneth Duckworth, a board certified psychiatrist with more than 20 years of experience serving individuals with severe mental illness, including as Medical Director and then Acting Commissioner of the Massachusetts Department of Mental Health, concluded after an extensive investigation that “there are no material clinical differences between adult home residents and supported housing clients” and that “virtually all of the [Adult Home residents] I
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looked at I felt would make it in Supported Housing.” (DAI’s PFF ¶¶ 58–62; S-152 (Duckworth Report) at 5; Tr. 809:17–20.)
95. Defendants first suggest that Dr. Duckworth is somehow biased because he currently works part-time for an organization dedicated to “improving the lives of individuals and families affected by mental illness” (Tr. 880:6–10) and because he expressed support for DAI’s decision to bring this lawsuit. (Defs.’ PFF ¶ 80.) First, if defendants want to suggest that Dr. Duckworth’s current part-time employment with an organization dedicated to helping individuals with mental illness renders his expert opinion somehow suspect, then the testimony of defendants’ expert, Dr. Geller, who makes his living in part by testifying around the country as a defense expert in cases brought against state mental health systems, must surely be ignored completely. (See Tr. 2374:23–2377:6.) Second, defendants claim that Dr. Duckworth is somehow biased because he wrote in an email, “I wish you the best of luck and will be pulling for you.” (Defs.’ PFF ¶ 80 (citing D-222).) As Dr. Duckworth’s testimony at trial demonstrated, he did so not because he had prejudged the question of whether Adult Home residents are qualified to live in supported housing, but because he was horrified by the “egregious” conditions in Adult Homes described in Clifford Levy’s New York Times articles. (Tr. 947:21–948:1.)
96. Defendants attempt to criticize Dr. Duckworth’s conclusions because he had “only” visited five Adult Homes and spoken to “approximately 38 residents” before drafting his initial report. (Defs.’ PFF ¶ 81.) However, defendants do not explain why these numbers are somehow inadequate for Dr. Duckworth to form an opinion on whether Adult Home residents could live in supported housing, particularly given his
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extensive clinical experience. Dr. Geller, visited a total of eight Adult Homes before submitting his expert report; Gregory Kaufman visited a total of three. Defendants also fail to mention that Dr. Duckworth, in addition to his visits to Adult Homes, reviewed the medical records of 70 Adult Home residents prior to drafting his initial report, and an additional 203 randomly selected medical records prior to drafting his reply report. (Tr. 813:14–26, 819:4–17, see also Tr. 817:2–4 (total volume of the records reviewed occupies one-third of Dr. Duckworth’s basement).) Dr. Duckworth also reviewed a number of deposition transcripts of Adult Home residents. (Tr. 813:22–814:2.) In short, Dr. Duckworth’s investigation of the qualifications of Adult Home residents was wideranging and thorough.
97. Defendants are mistaken that Dr. Duckworth simply “presumed” that nearly all Adult Home residents could live in supported housing. (Defs.’ PFF ¶ 82.) Dr. Duckworth in fact based his conclusion on his interviews with residents, his review of resident mental files, his review of resident depositions, and his comparison of Adult Home residents he met with people he had served in supported housing in his work in Massachusetts and the residents he met at Pathways to Housing. (Tr. 813:14–814:2, 854:11–21.) With regard to the last, he found that “[t]hese are the same populations[;] these are individuals living with serious and persistent mental illness who frequently have another associated vulnerability or two.” (Tr. 814:8–10.)
98. Dr. Duckworth also identified, as defendants acknowledge (Defs.’ PFF ¶ 82), specific “stop signs” such as dementia or nursing needs, that would require further investigation before placing the individual in supported housing. Thus, far from “presuming” that all Adult Home residents could be served in supported housing, he
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specifically considered the extent to which these “stop signs” were present in the Adult Home population. (Tr. 812:15–813:13, 907:9–10.) Dr. Duckworth’s conclusions that virtually all people could move were thus based not on his presumptions but on his thorough examination of the evidence—including nearly 270 medical records—and his long experience in Massachusetts with serving individuals in supported housing.
99. Defendants also attack Dr. Duckworth’s analysis based on his trial testimony regarding a handful of his roughly 270 summaries of resident records, cherrypicked by defendants. (Defs.’ PFF ¶¶ 83–84.) Dr. Duckworth testified that, in the case of some of defendants’ residents, he would need more information to determine whether the particular individual would be appropriate for supported housing. (See, e.g., Tr. 911:3, 912:15–24.) However, in testifying on direct examination, Dr. Duckworth identified a number of examples of residents whom, based on his review of their records, were well qualified for supported housing. (See, e.g., Tr. at 826:25–827:19 (“This is a man that I could take in Supported Housing in a day.”); Tr. 832:10–833:1 (“This person can live in Supported Housing”).) Dr. Duckworth also gave detailed testimony about why Dr. Geller, in his review of resident records, greatly overestimated the supports that individuals would need to be served appropriately in supported housing. (See, e.g., 843:3–844:19.) In short, the fact that not every single resident record that Dr. Duckworth reviewed demonstrated beyond a doubt that the resident could be appropriately served in supported housing in no way undermines Dr. Duckworth’s conclusion that “virtually” all could be so served. Indeed, Dr. Duckworth’s candid assessment of these records in his testimony only bolsters his credibility.
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Elizabeth Jones 100. As set forth in DAI’s Proposed Findings of Fact, Ms. Jones, an expert in
community integration of individuals with mental illness with over 30 years of experience running mental health programs and developing community-based services for individuals with mental illness, reached her conclusion that virtually all Adult Home residents could be served in supported housing after an extensive investigation that included formal and unannounced visits to 23 Adult Homes and in-depth interviews with 179 Adult Home residents. (See DAI’s PFF ¶¶ 63–69.)
101. Defendants try to discredit Ms. Jones by claiming that she “supported Plaintiff’s position in this case before she completed her research.” (Defs.’ PFF ¶ 86.) Defendants point to a memorandum written by Ms. Jones some nine months after she began her investigation, in which she states some of the conclusions that appeared in her final report. (Tr. 190:18–191:4.) By this time, Ms. Jones had already visited 13 Adult Homes—already more than any of defendants’ witnesses in their entire investigations— and had spoken to “numerous residents.” (Tr. 198:3–6.) Ms. Jones explained that, based on those visits and conversations, she had “formed the clear conviction that [Adult Home residents] could live in supported housing with supports.” (Id.) Ms. Jones explained that the memo simply reflected her then-current thinking on how her report would be structured; she would have revised her conclusions if the remaining 10 Adult Homes she subsequently visited had been different than the first 13. (Tr. 192:14–20.) They were not. (Tr. 192:24–193:1.)
102. Defendants also insinuate that Ms. Jones, in assessing Adult Home residents’ qualifications for supported housing, only spoke with residents and not with their care providers. (Defs.’ PFF ¶ 89) But this is simply wrong: Ms. Jones testified that
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in fact she did speak to clinicians, nurses, social workers, and a psychiatrist at some of the homes she visited (Tr. 102:11–103:2) and also had some conversations with social workers about particular residents. (Tr. 103:6–15.)
103. Defendants allege that Ms. Jones “proceeded from the assumption” that Adult Home residents could reside in supported housing. (Defs.’ PFF ¶ 88) This is also incorrect. Ms. Jones clearly described in her testimony the factual bases for her judgment that Adult Home residents could live in supported housing: (1) that “adult homes do not provide intensive supervision to people”; in other words, people “have a place to stay and they have their meals and their medicine, but not a whole lot more than that” (Tr. 80:1– 11); and (2) that, based on her observations, Adult Home residents in supported housing would not “require more than is available already in the community in New York or that they presented any particular challenge other than what we work with every day in the field of mental health.” (Tr. 80:20–81:6.)
104. Defendants assert that Ms. Jones could not name another supported housing provider that uses the Pathways to Housing model. But Ms. Jones testified that, while she was aware of no agency that precisely duplicates the Pathways to Housing program, there were many supported housing providers that utilize a similar model and would be willing to serve Adult Home residents:
the principles for Pathways to Housing are espoused by other community agencies, and, in fact, that was highlighted in my reading of the proposal[s] submitted to your requests for proposals for new units of housing for adult home residents. So, maybe the agencies have different names or they are not constructed exactly like Pathways to Housing or they didn’t start with homeless people, but the idea of housing first, separation of housing from treatment, providing flexible supports that are tapered based on the individual’s needs, those are principles that
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are not only consistent with what other agencies have said, but they’re consistent with your goals for the mental health system in New York. (Tr. 199:7–200:4.) Ms. Jones continued that Pathways to Housing is simply “one excellent example of an agency that’s worked with very challenging people; but the principles are espoused by other agencies that have applied to apply to provide housing to adult home residents.” (Tr. 200:11–17.) 105. Defendants also complain that Ms. Jones was referred by MFY Legal Services to some of the 179 Adult Home residents whom she interviewed. (Defs.’ PFF ¶ 87.) But when Ms. Jones was asked whether these residents were different than the other residents she spoke to, she testified: “I don’t think so, nothing in a significant way . . . in terms of what their life experiences were or the conditions that they were experiencing in the adult homes or the preferences they had, they were very similar, more similar than different I would say.” (Tr. 48:11–22.) 106. Finally, defendants assert that Ms. Jones “assumed” that Adult Home residents with high needs could be served in supported housing with the provision of ACT services. (Defs.’ PFF ¶ 90.) Defendants claim that Ms. Jones did not provide evidence that “ACT services are commonly used” in New York in conjunction with supported housing. (Id.) Yet, as noted above, the evidence is overwhelming that supported housing residents in New York can and do receive ACT services. (See, e.g., supra ¶¶ 56, 59, 60.) Defendants’ own RFPs describe supported housing as targeted to people who may be receiving ACT services. (See S-17 (2005 RFP), S-33 (2007 RFP), S-67 (2008 RFP), P-748 (2009 RFP).) DAI called a witness, Dr. Tsemberis, who runs a supported housing program specifically designed around the provision of ACT services to residents. (Tr. 330:16–331:3.) Linda Rosenberg, the former Senior Deputy
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Commissioner of OMH, testified that OMH has issued RFPs specifically aimed at encouraging supported housing providers to create ACT teams, and that the response from supported housing providers showed that they “know how to do [supported housing plus ACT]” (Tr. 655:13–656:23.) Defendants’ own witnesses confirmed that individuals in supported housing are eligible to receive ACT services if they otherwise qualify. (Tr. 1833:10–12 (Dorfman); Tr. 1414:20–1416:1 (Reilly); Tr. 3170:19–3171:14 (Myers).) Thus, to the extent Ms. Jones’s conclusions are at all based on an “assum[ption]” about the availability of ACT services to residents of supported housing, that assumption was borne out at trial by overwhelming evidence. Dennis Jones
107. As set forth in DAI’s Proposed Findings of Fact, DAI’s expert Dennis Jones, who has run the mental health systems of two states and the District of Columbia, concluded after a thorough investigation that “virtually all mentally ill adult home residents are able to live in integrated community settings such as supported housing.” (S-150 at 10.) Mr. Jones’s conclusions were formed after he visited four Adult Homes, spoke with residents, visited community mental health providers and reviewed numerous documents, including the Adult Care Facilities Workgroup Report and the Assessment Project data. (See DAI’s PFF ¶¶ 70–72.)
108. Defendants in particular take issue with Mr. Jones’s reliance on the Assessment Project data and the Workgroup Report in forming his conclusion that virtually all Adult Home residents could move to supported housing. (Defs.’ PFF ¶¶ 82– 84.)
109. The Assessment Project, commissioned by DOH and conducted by Dr. Martha Bruce of Columbia University, found, among other things, that Adult Home
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residents were not a seriously impaired population, and relatively few had serious difficulties with activities of daily living. (See DAI’s PFF ¶¶ 86–98.)
110. Defendants assert that the Assessment Project “was never intended to be used as an assessment tool for determining what type of housing individuals were qualified for and able to reside in.” (Defs.’ PFF ¶ 94) But this is misleading at best. Dr. Bruce testified at her deposition that one of the intended uses for the Assessment Project data was to “screen for residents who might benefit from a changing housing to more supportive or more independent” (P-583 (Bruce Dep.) 66:21–67:7) and that, to the best of her understanding, OMH officials such as Glenn Liebman and Lisa Wickens understood this purpose (id. 67:24–68:13). Dr. Bruce testified that she participated in conference calls with OMH and advocacy groups in which the housing-related questions were devised and refined. (Id. 202:15–203:7.) OMH official Glenn Liebman testified that “[t]here were obviously questions in the assessment geared to individuals’ desire to live more independently. There were questions about cognition and executive functioning and how symptomatic they were. That would all be part of any determination if people wanted to move forward . . . .” (P-555 (Liebman Dep.) 54:12– 23.) Lisa Wickens testified that she was actually concerned about the survey used by the Assessment Project because the questions might lead residents to believe that they would be offered alternative housing if they participated in the survey. (P-566 (Wickens Dep.) 74:19–22.) Adult home administrator Hinda Burstein testified that residents were specifically told by the assessors that the surveys would be used to assess them for alternative housing. (Tr. 2107:17–2108:10.)
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111. In any event, regardless of the purpose of the Assessment Project, it is indisputable that the information collected about residents’ cognitive levels, ability levels, and housing preferences are directly relevant to the question of whether Adult Home residents could be served in more integrated housing. (See P-555 (Liebman Dep.) 54:12– 23.) Mr. Jones testified that the data collected by the Assessment Project showed a “huge mismatch” between the abilities of Adult Home residents and the custodial setting in which they lived, and represented “a big problem” requiring “a very serious multi-year initiative.” (Tr. 1037:18–1038:4.)
112. Mr. Jones, working with Dr. Ivor Groves, an expert in data analysis, devised an algorithm that allowed them to assess whether the Adult Home residents in 15 Adult Homes at issue in this case in which the Assessment was conducted were not opposed to moving, and also whether those residents would need a high or low level of support. That algorithm determined that of the 2,080 residents in the sample, 1,769 would be able to live in supported housing with less support, and 311 would need greater support. The algorithm also determined that 1,536 would not be opposed to moving to supported housing and 544 would be resistant. Of those who were non-resistant, only 199 would need a high level of support. (Tr. 1048:9–1050:12.)
113. In his testimony as a witness for defendants, Dr. Groves stated his bottomline conclusion from the Assessment Project data: Adult Home residents “are not a seriously impaired population in the vast majority; meaning, they don’t have severe cognitive deficits and they don’t have real significant problems in daily living skills.” (Tr. 3072:7–17.) Thus, “the vast majority of [Adult Home residents] could live in supported housing with appropriate supports.” (Tr. 3074:19–20.)
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114. Mr. Jones reached the same conclusion from the Assessment data. He testified that the analysis showed “a large majority of people who, given the right situation, would chose to [move to supported housing]” and “the amount of supports that people are going to need out there are within what I would consider the range of what the New York system can accommodate.” (Tr. 1051:6–13.)
115. Strikingly, defendants’ Proposed Findings of Fact contain not a word criticizing Dr. Groves’s methodology or the accuracy of his conclusions. Defendants do not suggest, for example, that Dr. Groves’s algorithm was flawed or his interpretation of the data incorrect. The only criticism defendants’ can muster is that Dr. Groves’s conclusions were derived from “aggregate data” and were not the result of in-person clinical interviews with each of the 2,080 residents in the 15 Adult Homes who participated in the Assessment. (Defs.’ PFF ¶ 95.) But, as argued above, in-person clinical assessments are simply not necessary to determine whether DAI’s constituents are qualified for supported housing.
116. Defendants’ only other criticism of Dr. Groves’s analysis is that he revised his algorithm based on concerns that the original algorithm he designed was undercounting individuals that were both qualified and unopposed to living in supported housing. Defendants point to the fact that the algorithm was revised, but never explain why the Court should not credit the legitimate concern underlying the change. (See Defs.’ PFF ¶ 96.) As Dr. Groves explained, after running the original analysis, DAI’s experts determined that the results were “under-representative” of the persons in the homes who could live in supported housing. (Tr. 3091:1–17.) Dr. Groves explained that he revised the algorithm so that it filtered out individuals with “severe cognitive
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impairments or real problems in adaptive living,” as well as those who had expressed that they “definitely don’t want to leave” the Adult Home, as opposed to all residents who did not express an affirmative desire to leave. (Id.) In short, the new algorithm reflects an entirely reasonable approach to determining the numbers of Adult Home residents qualified for and not opposed to moving to supported housing.
117. Defendants also attack Mr. Jones’s alleged reliance on the Workgroup Report for his conclusion that virtually all Adult Home residents could live in supported housing. (Defs.’ PFF ¶ 92.)
118. As DAI set forth in its Proposed Findings of Fact, the Adult Care Facilities Workgroup was a blue ribbon commission created by defendants to make policy recommendations regarding Adult Homes in response to the “crisis atmosphere” created by the Levy articles. Defendants themselves were intimately involved in shaping the recommendations that were included in the Workgroup’s final Report. That Report recommended, among other things, that the state move roughly 6,000 adult home residents into more integrated settings, including supported housing. Because the state had never systematically collected data on adult home residents, a key basis for the Workgroup’s recommendation that 6,000 should move was its finding, after extensive research and investigation, that adult home residents had the same characteristics as other populations with mental illness who were living more independently. (See DAI’s PFF ¶¶ 78–85.)
119. The Workgroup Report’s recommendation that 6,000 people should be moved to more integrated service settings is significant in that it is, in effect, an admission by defendants that very large numbers of adult home residents are
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inappropriately housed in adult homes. Defendants’ assertion, however, that the Workgroup Report was somehow integral to Mr. Jones’s conclusions that virtually all Adult Home residents could be served in supported housing ignores Mr. Jones’s own testimony regarding the Report. Mr. Jones explained that while he found it significant and worth considering in his report that a “very serious and diligent group of many highlevel people across the departments” concluded that 6,000 people could be served in more integrated settings than adult homes, “I didn’t conclude that 6,000 people could be moved.” (Tr. 1127:9–18; see also 1128:20–21 (“I feel like I’m repeating myself. I did not conclude that 6,000 people could move. I had no basis around which to make that determination. I was simply citing a work group that had met very diligently over a period of time, made a number of recommendations; and that was one.”).)
G. Dr. Geller’s Conclusions Are Not Credible 120. DAI has set forth at length in its Proposed Findings of Fact why Dr. Geller’s conclusion that most Adult Home residents could not be served in supported housing is based on a deeply flawed analysis that is not credible. (See DAI’s PFF ¶¶ 135–141.) Among other things, Dr. Geller determined the capacity of supported housing providers to serve Adult Home residents without reviewing the RFP responses of supported housing providers who actually propose to serve Adult Home residents, without considering the admission criteria of Adult Homes, which prohibit admission of individuals with many of the conditions that Dr. Geller said would bar Adult Home residents from supported housing, and without considering the limited nature of the supports that are available to residents of Adult Homes. Nothing in defendants’ Proposed Findings of Fact addresses these glaring flaws in Dr. Geller’s analysis. (Id.)
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121. A particularly glaring problem with Dr. Geller’s testimony is his failure to consider a single response to one of defendants’ supported housing RFPs that actually target Adult Home residents. While each of DAI’s experts considered such RFP responses in assessing whether New York’s supported housing providers could serve Adult Home residents (see Tr. 1064:17–1065:12 (D. Jones); Tr. 83:9–14 (E. Jones); Tr. 857:23–862:3 (Duckworth)), Dr. Geller testified that the only RFP responses he reviewed were two responses from providers seeking to exclusively serve homeless individuals, a different population that is less likely to need support with issues of institutionalization. (Tr. 2412:5–17, 2414:17–25.)
122. Defendants also fail to grapple in their Proposed Findings of Fact with Dr. Geller’s testimony on the stand that every single current resident of an Adult Home could be served in supported housing with varying degrees of support. (Tr. 2370:17–19.) Dr. Geller further conceded that 50% of Adult Home residents whose records he reviewed could eventually be appropriately served in supported housing with or without ACT services. (Tr. 2409:13–17.) Thus, even Dr. Geller analysis shows that many, many Adult Home residents are currently housed inappropriately in Adult Homes.
123. Finally, defendants point to Dr. Geller’s testimony that placing virtually all Adult Home residents in supported housing would be “inhumane” and “possibly dangerous” because, for example, individuals may “set[] a fire while learning to cook,” and that individuals should therefore be taught independent living skills in the Adult Homes first, and then moved to more independent settings. (Defs.’ PFF ¶ 102.)
124. But Dr. Geller’s testimony on this point was contradicted by numerous other witnesses. Several witnesses, including Dr. Geller himself, testified that
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independent living skills cannot be taught effectively in institutional settings, because the individuals are unable to practice the skills that are taught. (Tr. 1140:10–14 (D. Jones) (teaching independent living skills in congregate settings is a “waste of good public time and money” because “[p]eople don’t transfer skills from one setting another”); Tr. 67:20– 69:6 (E. Jones); Tr. 2360:9–2361:1 (Geller).) In contrast, ACT teams can assist individuals with learning these independent living skills in their own homes. (See Tr. 938:12–14 (Duckworth) (ACT teams expect to teach people medication management); P-372 (2007 ACT Program Guidelines) at 3–4 (listing independent living skills taught by ACT team).) OMH’s own commissioner has rejected the notion that individuals must progress through “transitional” housing before they may be served in a permanent, independent setting. (P-590 (2008–2009 Executive Budget Recommendation Highlights Testimony) at 4.) Finally, Dr. Tsemberis’s Pathways to Housing program, which specifically seeks out and successfully serves some of the hardest-to-serve individuals in the mental health system, is proof that supported housing providers can safely serve individuals with a very wide range of support needs. (Tr. 247:8–11 (Tsemberis) (“Q. So, would it be fair to say you wouldn’t shy away from difficult-to-serve clients? A. I think we seek them out and sometimes you actually have to fight the system to get them.”).)
125. In short, defendants’ contentions in their Proposed Findings of Fact that Adult Home residents could not be appropriately served in supported housing is contradicted by the overwhelming evidence and should be rejected. III. DAI’s Constituents Are Systematically Excluded
From Defendants’ Supported Housing Program 126. Defendants assert that Adult Home residents who are able to live in supported housing have access to supported housing. (Defs.’ PFF ¶¶ 2, 103.) The
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evidence conclusively established that the exact opposite is true. DAI’s constituents have historically and systematically been excluded from supported housing, and the recent initiatives have done nothing to accommodate them. As a result, people with mental illness remain “stuck” in Adult Homes, and Adult Homes remain “overuse[d]” settings in which to provide services to people with mental illness. (P-59 (OMH Guiding Principles) at 1; S-71 (Statewide Comprehensive Plan, 2006–1010) at OMH 43287; D-182 (2009– 2010 Mental Health Update & Executive Budget Testimony of OMH Commissioner M. Hogan) at OMH 43466; Tr. 2424:13–2427:15 (Geller).)
127. The numbers defendants include in their Proposed Findings of Fact show that their assertion is false that all who can and want to live in supported housing have access. Defendants acknowledge that while Adult Home residents submitted more than 800 applications for OMH-sponsored housing from January 2000 through January 2006 (Defs.’ PFF ¶ 108), only twenty-one Adult Home residents moved to supported housing in New York City from January 2002 through January 2006 (Defs.’ PFF ¶ 111), and only sixty-five Adult Home residents moved to other forms of OMH community housing in that same time period (Defs.’ PFF ¶ 112). Thus, based on the most recent census data (P-774 (2008 Census Report)), only 0.5% of people with mental illness living in impacted Adult Homes, and only 2.6% of individuals submitting HRA applications, were able to access supported housing in a five-year period. If other forms of OMH housing are included, only 2% of people with mental illness living in impacted Adult Homes, and only 10% of people who submitted HRA applications, were able to access any form of OMH community housing. By no measure do these statistics evidence an effective
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Olmstead plan, and by all measures they show that defendants’ assertion that all who can live in supported housing have access to the program is false.
128. Given that Adult Home residents have virtually no access to supported housing, defendants’ assertions—that Adult Home residents are a target population and that mental health providers and others are expected to assist residents who want to move by filling out applications or educating them about their options—are simply beside the point. Even with respect to the relatively few supported beds for which Adult Home residents have been designated as a target population, Adult Home residents are still largely denied access because the current vacancy rate is less than 2% (Tr. 1503:9– 1504:2 (Madan)), residential mental health service providers have “exorbitant waiting lists” (Tr. 1874:11–20 (Dorfman); (Tr. 2983:19–2084:4 (Burstein)), and members of other priority populations receive higher priority (Tr. 660:12–20, 662:6–18 (Rosenberg); Tr. 1089:15–1091:4 (D. Jones); Tr. 2165:11–2166:17, 2198:9–2199:2 (Newman)).
129. The negligible rate at which Adult Home residents have accessed supported housing beds and the success of the recent legislative mandate to fill 60 supported housing beds set aside by the New York State legislature exclusively for Adult Home residents (see Tr. 1461:3–9 (Madan)), demonstrate that without a specific allocation of beds for DAI’s constituents, no amount of case management or assistance will enable Adult Home residents to have access to supported housing.
130. Once the 60 supported housing beds are filled, the pipeline of supported housing beds for Adult Home residents will be closed. OMH did not propose or advance this initiative (Tr. 1460:25–1461:9, 1510:8–10 (Madan); Tr. 2141:17–2142:9 (Newman); Tr. 3354:10–17 (Schaefer-Hayes)), and defendants have made it clear that they are
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opposed to set-asides for this population (see Defs.’ Mem. of Law in Support of Motion for Summ. Judg. at 71 (arguing that “requiring the State to earmark its resources to conduct housing assessments of, and to develop and set aside Supported Housing beds . . . for New York City adult home residents” would constitute a fundamental alteration of the state’s services and programs)).
131. Even if there were more supported housing beds available to Adult Home residents, the evidence shows that defendants’ assertion that Adult Home residents are assisted in efforts to move out of the Adult Homes has little support. Defendants maintain that OMH-funded case managers “educate residents about housing options available to them,” and “assist residents who are interested in moving” by filing the necessary applications and interfacing with housing providers. (Defs.’ PFF ¶¶ 104–105.) Yet Frances Lockhart testified that, in her eight years working for Federation of Organizations, which provided case management services in four Adult Homes, she recalled two residents who moved to supported housing, whom Federation assisted to fill out the HRA form and go on interviews. (Tr. 2630:25–2632:4.) Jonas Waizer, the chief operating officer FEGS, a case management and housing provider, testified that he is “really not aware” of any residents of Riverdale Manor, where FEGS operates, who have been placed into FEGS’s supported housing program. (Tr. 2551:19–2552:16 (Waizer).) Adult Home administrator Hinda Burstein testified that since the OMH Case Management Initiative began in Park Inn Adult Home three years ago, not one resident has been discharged to supported housing. (Tr. 2079:17–2080:16 (“I don’t think we discharged any to supported [housing].”).)
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132. Moreover, the Case Management Initiative is in only a minority of the Adult Homes at issue in this litigation, and defendants concede that residents who live in one of the Homes that does not participate in the Initiative are unlikely ever to be informed about, or receive assistance with, securing alternative housing. (Tr. 2917:3– 2918:4 (Kaufman) (testifying about his observations that Adult Home staff and on-site treatment providers were not “up-to-date” and “could benefit from education as to what is going on in the field,” what expectations are possible, and “what services could be provided . . .”); Tr. 2663:15–2664:16 (Lockhart) (stating that residents who have not participated in a case management program would not likely be familiar with alternative housing opportunities).) While defendants’ witnesses repeatedly testified that they “expected” Adult Home case managers and social workers and other mental health professionals to follow up on residents’ expressed desires to move to more integrated housing (Tr. 1500:13–1502:3 (Madan); Tr. 1365:16–1366:17 (Reilly)), they conceded that they have no idea whether residents receive any information from those case managers about alternatives (Tr. 1835:15–18 (Dorfman)). Given that some Adult Homes have been cited for a failure to follow up on residents’ expressed desire to move (Joint Stipulations of Fact ¶ 22), the assumption that those case managers are effective at assisting residents is unwarranted.
133. The record is replete with testimony from residents explaining that they received no help—and often outright discouragement—from case managers, social workers and Adult Home staff, in exploring and securing alternative housing options. (See, e.g., Tr. 614:20–615:13 (S.P.) (his case managers started filling out an HRA 2000 application for him but “didn’t finish it,” and did not, to his knowledge, ever submit it);
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Tr. 390:21–25 (S.K.) (case managers “put [her] off,” telling her “there’s nothing available right now”); Tr. 452:1–454:22 (G.L.) (conversations with his social worker about housing were “very discouraging.” She provided “very, very little” information about what might be available and what the process would be, and “never talked about doing any paperwork.” “She would throw a phone number at me and say, why don’t you give them a call,” following up with “don’t be disappointed if they can’t help you”); P-536 (D.N. Dep.) 150:17–153:2, 154:10–22 (when she asked for help obtaining an application for New York City housing, one social worker told her it would be “better if you stay here,” and another refused to assist her); see also id. Tr. 155:7–156:22 (when she asked for assistance in moving to independent housing, the case manager responded “we don’t do that here”); P-540 (P.B. Dep.) 185:17–19, 186:5–1417 (she “tried to move out once and they tell me no, they want me to stay. . . . I have to stay”); P-542 (L.G. Dep.) 105:25– 106:24 (testifying that although her therapist encouraged her to move out of the Adult Home, she never mentioned supported or any other type of OMH housing, and never discussed the application process; resident testified she “[does] everything on [her] own”).) IV. Defendants Have No Comprehensive or Effective Plan to Enable
Adult Home Residents to Receive Services in the Most Integrated Setting 134. Defendants have no comprehensive or effective plan to enable DAI’s constituents to move to more integrated settings. Instead, defendants have maintained throughout this litigation that no plan is needed for people with mental illness residing in Adult Homes. (S-133 (Defs.’ Obj. & Resp. to Pl.’s 1st Set of Reqs. for Admissions) at 9
17 Defendants object to the admissibility of this testimony pursuant to Fed. R. Civ. P. 802.
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(“there is no need for an Olmstead plan for adult home residents”); S-87 (Defs.’ Am. Obj. & Resp. to Pl.’s 1st Set of Reqs. for Admissions) at 2 (same); see also Defs.’ PFF ¶ 238 (“Assuming arguendo . . . that Olmstead were to be expanded to require a “plan” for adult home residents . . .”); Defs.’ PFF ¶ 122 (arguing that New York’s Olmstead plan is designed with the intention of providing services outside of a hospital).) Thus, defendants do not believe Olmstead requires a plan for Adult Home residents; they do not believe a plan is needed; and they have therefore declined to develop a plan to enable Adult Home residents to move to more integrated settings. In other words, they admit there is no Olmstead plan to enable people with mental illness in Adult Homes to receive services in an integrated setting. Indeed, the evidence presented at trial—including evidence of significant expenditures to Adult Homes for infrastructure and other improvements and of the facilitation of referrals of patients from state psychiatric hospitals to Adult Homes—established that defendants are committed to maintaining the status quo.
135. Despite their admission that they have not developed a plan, defendants describe in their Proposed Findings of Fact a number of activities which, according to them, comprise a “comprehensive, effective Olmstead plan.” (See Defs.’ PFF ¶¶ 116– 143.) Defendants have assembled this purported Olmstead plan entirely post hoc for their post-trial submission. Not one State official or other witness at trial identified or described a comprehensive plan to enable Adult Home residents to receive services in more integrated settings. Not one State official or other witness at trial identified any of the activities now listed in defendants’ brief as part of a plan to enable Adult Home residents to move to more integrated settings.
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136. The activities listed by defendants’ attorneys in their post-trial submission do not—either alone or together—comprise a comprehensive, effective plan to enable DAI’s constituents to receive services in more integrated settings. Indeed, several activities described in defendants’ Proposed Findings of Fact have nothing to do with people with mental illness who reside in Adult Homes. (See, e.g., Defs.’ PFF ¶¶ 118–20, 125 (describing activities relating to the children’s division, the forensic division, research and the deinstitutionalization of people from state psychiatric hospitals).) Defendants have also characterized as part of their Olmstead plan for Adult Home residents certain services for which they have claimed DAI’s constituents are not eligible. For example, defendants assert that ACT team slots are part of their purported Olmstead plan for Adult Home residents (Defs.’ PFF ¶¶ 126–27) but elsewhere in their brief they assert (albeit wrongly) that ACT teams “are not appropriate for” Adult Home residents. (Defs.’ PFF at 31 (Heading III.C).)
137. Defendants claim that “[m]uch of [their] Olmstead planning is reflected in OMH’s Statewide Comprehensive Plans for Mental Health Services, referred to as 5.07 plans.” (Defs.’ PFF ¶ 123 (citing various 5.07 plans: S-5, S-6, S-8, S-38, S-39).) None of defendants’ witnesses at trial, however, testified about the 5.07 plans or their connection to any purported Olmstead plan for Adult Home residents, and indeed the documents contain no reference to any plan to enable Adult Home residents to move to more integrated settings. Defendants cite to an appendix in the January 2004 5.07 plan, titled “Interagency Adult Home Initiative.” (Defs.’ PFF ¶ 123 (citing S-5 at OMH 6136– 38).) The appendix does not appear in any of the other 5.07 plans cited by defendants. (See S-6 (2005 Plan), S-8 (2006 Plan), S-38 (2002 Plan), S-30 (2001 Plan).) The
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activities enumerated in the appendix focus on improving the quality of life and care for residents in Adult Homes, rather than taking steps to enable residents of Adult Homes to move to more integrated settings. To the extent the document mentions housing, it describes “assisting residents in homes that are closing.” (S-5 at OMH 6138.) While the document references “[i]ncreas[ing] access to 31,000 community residential beds,” it does not describe how such access was to be improved. (Id.) Indeed, the evidence demonstrated that Adult Home residents have been categorically excluded from most OMH community residential beds and do not receive priority for others, such that they are effectively excluded. (See DAI’s PFF ¶¶ 177–79; see also supra ¶¶ 126-28.) Finally, defendants’ most recent 5.07 plan update, dated October 2008, acknowledges that adult homes are “overuse[d].” (S-71 at OMH 43287) and identifies no plan to solve the problem.
138. Surprisingly, defendants assert that the Most Integrated Settings Coordinating Council (“MISCC”) and the Coalition to Promote Community Based Care are aspects of “the State’s more formal efforts to ensure compliance with the Olmstead decision.” (Defs.’ PFF ¶ 133.) As in other sections of their Proposed Findings of Fact, defendants cite to no record evidence in support of their assertion.18 Indeed, with respect to the so-called Coalition to Promote Community Based Care in particular, there was no mention of it at trial in either testimony or exhibits. Thus, it cannot be considered by the Court. With respect to MISCC, it is undisputed that MISCC did not develop a plan to
18 Similarly, in paragraph 132 of their Proposed Findings, defendants describe various “[a]dditional components of defendants’ Olmstead plan,” without citing to a single piece of documentary or testimonial evidence. Because defendants cite no support for their assertions in paragraph 132, there is no basis for a finding of fact as to those assertions and they should be rejected.
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enable Adult Home residents to receive services in more integrated settings. (Defs.’ PFF ¶ 133; see also DAI’s PFF ¶¶ 171–72.) Defendants assert without evidentiary support that MISCC addressed “the adequacy of and access to community services for all individuals with disabilities, including adult home residents,” but their designated Rule 30(b)(6) witness, Kathryn Kuhmerker, testified that other than “occasional discussions” regarding Adult Home residents:
I don’t believe there’s been anything specific that the MISCC has done to specifically address in any way, shape, or form individuals who happen to reside in adult homes. (P-553 (Kuhmerker Dep.) 31:4–7; see also id. 33:12–24 (explaining that the MISCC has no plan for placing Adult Home residents who otherwise meet the criteria for living in supported housing or OMH community housing into any of those types of residential programs).) 139. The majority of the activities listed by defendants as part of their purported Olmstead plan entail efforts to improve safety and quality of services in the Adult Homes, as opposed to enabling Adult Home residents to move from the Adult Homes to more integrated settings. (See Defs.’ PFF ¶¶ 129–131, 134–138, 142.) Defendants assert that DOH’s licensure and enforcement of regulations governing Adult Homes are part of their Olmstead plan (Defs.’ PFF ¶ 131) but they cite no evidentiary support for this assertion nor do they explain how these activities enable Adult Home residents to move to more integrated settings. Defendants also claim that the InterAgency Committee on Adult Homes and the OMH Adult Home Team have “addressed issues of quality of care in adult homes,” “developed a mechanism for joint inspections,” “took steps to strengthen the Do Not Refer list,” “enhanced the oversight of mental health programs providing services to residents on-site in adult homes and off-site,” and
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“investigated complaints.” (Defs.’ PFF ¶¶ 135–36.) All of these activities, even if successful, relate to improving conditions for Adult Home residents in Adult Homes, and therefore cannot seriously be considered part of a plan or commitment to enable individuals in Adult Homes to move to more integrated service settings.19 Indeed, one of the witnesses whose testimony defendants cite for the proposition that the Adult Home Team is part of their Olmstead plan testified that OMH does not do anything to investigate whether there are residents of Adult Homes who would be more appropriately placed in supported housing and that, to her knowledge, no one is assessing whether residents of Adult Homes would be more appropriately situated in supported housing. (P-564 (Tacoronti Dep.) 202:12–203:6.) If anything, the activities enumerated by defendants evidence a commitment to maintaining the status quo.
140. Despite attempting elsewhere to disown the work of the Adult Care Facilities Workgroup and the New York Presbyterian Hospital Assessment Project (see, e.g., Defs.’ PFF ¶¶ 92–94) defendants claim that those initiatives are part of their Olmstead plan for Adult Home residents (see Defs.’ PFF ¶¶ 137–138). With respect to the Adult Care Facilities Workgroup, defendants rejected the Workgroup’s recommendation that proposed a timeline for moving 6,000 people with mental illness from adult homes into supported housing. (Tr. 1640:23–1645:12 (Wollner).) Most of the
19 Defendants cite no evidence suggesting that any of these efforts have been successful in improving the lives of Adult Home residents, as they allege. In support of their assertion, they cite an excerpt from the deposition of one Adult Home resident, R.H., but the excerpt they cite has not been admitted into evidence. (Defs.’ PFF ¶ 134.) In any event, it has nothing to do with any “acknowledgment that these steps have improved conditions and the quality of life for residents.” (P-543 (R.H. Dep.) 130:9131:15 (testifying that while he was pleased that there was a $14 increase in PNA allowance, it needed to be more because he and other residents have to rely on donations for clothing).)
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recommendations that were implemented by defendants had to do with curbing the abuses that had been occurring in the Adult Homes, as opposed to taking steps to enable Adult Home residents to move to more integrated settings. (Tr. 1623:18–1639:19 (Wollner) (describing (1) medication training for adult home staff (not adult home residents); (2) changes in the ability of DOH to fine homes that were endangering residents; (3) expanding the Do Not Refer list to include prohibiting the Department of Corrections and Parole from referring individuals to homes with serious deficiencies).) Defendants implemented the Workgroup’s recommendations relating to assessments and case management, but as discussed further below and in DAI’s Proposed Findings of Fact, those activities have not had any meaningful effect on the ability of Adult Home residents to access supported housing or OMH community housing.
141. In December 2002, DOH contracted with New York Presbyterian Hospital to conduct an assessment of residents in 19 adult homes in New York City, resulting in the New York State Adult Home Assessment Project. (P-591 (Joint Stipulations of Fact) ¶¶ 7–8; Tr. 1678:10–13 (Wollner).)
142. One of the original purposes of the Assessment Project was to assess adult home residents’ needs and desires regarding the settings in which they received services. (P-583 (Bruce Dep.) 66:21–68:13; P-555 (Liebman Dep.) 25:19–23 (testifying that “part of the assessment process was to review to see if there were people who wanted to live in other settings”), 134:20–135:8 (testifying that one of the aims of the assessments was to contribute to housing decisions for adult home residents); Tr. 1676:22–1678:9 (Wollner); Tr. 2108:6–10 (Burstein).)
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143. The data collected in the Assessment Project could have been useful to
assist the State in identifying and assisting Adult Home residents to move to more
integrated settings. (P-583 (Bruce Dep.) 52:20–53:9, 55:21–25.) As DAI’s expert
Dennis Jones explained:
[T]his was a very rich set of data, frankly better than you get in most decision-making projects, where you really knew something about the psychiatric history, you knew something about the level of impairment and you knew something about the physical history, the degree of cooperation, all those sorts of things.
So when I looked at this, I guess several things jumped out at me. One is that, yes, we do have a group of people who are in the main, have an identifiable diagnosable mental illness. No question about that we’re dealing with. And— but, secondly, that when you get down to the question of, is that psychiatric impairment or the concomitant physical impairment such that people need to be in a 24-hour setting? I would say the answer was a very clear no, they do not. That our technology allows us to care for people in integrated settings and provide both the mental health supports that they need, the life supports that they need and whatever physical supports that they need in an integrated setting.
(Tr. 1036:7–1037:11 (D. Jones).) When asked whether he would have considered the
Assessment Project data to be relevant and important when he was a state mental health
commissioner, Mr. Jones explained:
Absolutely. I mean this is just a what I’d call an in-yourface sort of report. And I mean what it says, which, you know, certainly anecdotally and in terms of part reports, you know, I came in understanding or believing might be the case was that we had this huge mismatch between people who ended up in these settings and the settings themselves and what they can and should be able to do. So you’ve got a huge, a huge mismatch.
And so if I were commissioner looking at this, I would say, wow, we’ve got a big problem here and we’re going to
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have to put together a very serious multi-year initiative to deal with this. (Tr. 1037:18–1038:4.) 144. Despite the validity of the Assessment Project data, the State embargoed the results because of this litigation. (P-583 (Bruce Dep.) 43:2–9.) The State also prohibited Dr. Bruce from performing analyses for use in her own research. (P-583 (Bruce Dep.) 54:8–21; see also P-566 (Wickens Dep.) 90:1–15 (stating that ColumbiaPresbyterian had not analyzed Assessment data to determine how many Adult Home residents could live in integrated settings).) 145. In the end, the State used the data collected in the Assessment Project in a very limited manner. (Tr. 1348:3–12 (Reilly).) The data was disseminated to OMHfunded case managers in a minority of impacted Adult Homes several years after it was collected. (Id.) Defendants presented no evidence that the data has been used to enable Adult Home residents to move to more integrated settings, or in connection with their strategic planning. (Tr. 1623:2–17 (Wollner).) Nor have defendants shared the data with the MISCC or the Adult Care Facilities Workgroup so that it might be used in their planning. (P-566 (Wickens Dep.) 93:10–13, 94:8–95:2.) Indeed, while the evidence showed that one of the initial purposes of the Assessment Project was to assess Adult Home residents’ needs and desires relating to the settings in which they receive services, see supra ¶ 110, the defendants argued at trial and in their Proposed Findings of Fact that “the [Assessment Project] was never intended to be used as an assessment tool for determining what type of housing individuals were qualified for and able to reside in.” (Defs.’ PFF ¶ 94.) Thus, they admit the Assessment Project is not part of any plan to enable Adult Home residents to move to more integrated settings.
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146. The Assessment Project, which at its inception had the potential to aid Adult Home residents, instead turned out to be window dressing. Indeed, a former highranking OMH official, Linda Rosenberg, testified that, in her view, the assessments were done to “deflect[] . . . what had become a crisis for the Governor’s office.” (Tr. 740:2–3 (Rosenberg); see also P-543 (R.H. Dep.) 28:16–29:3 (Adult Home resident explaining that after the assessments were done, they never heard anything back).)
147. Defendants also claim that the EnAble, case management and peer support program that have been implemented in a minority of the impacted Adult Homes in New York City also constitute part of their Olmstead plan for Adult Home residents. (Defs.’ PFF ¶ 141.) As discussed in DAI’s Proposed Findings of Fact, however, these initiatives have had and will continue to have very little, if any, effect on enabling Adult Home residents to receive services in more integrated settings. (See DAI’s PFF ¶¶ 186– 195.) As both sides’ experts testified, the provision of independent skills training is effective only if coupled with the opportunity to apply such skills in real life. (DAI’s PFF ¶ 193.) As long as Adult Home residents are excluded from supported housing and remain in dependency-based settings where they are not permitted to conduct their own activities of daily living, they will not have the opportunity to enhance their independent living skills. (Id.) As DAI’s expert Dennis Jones explained:
[I]f case management—primarily what it does is to arrange services within the existing setting and not really deal—not deal frontally with the issue of where people live, then it is not accomplishing very much. . . . [U]nless you have a systemic initiative here that moves to create significant numbers of supported housing slots into which people can go and there is a clear organizational commitment to make that happen up and down the line, no individual case manager is going to do anything more than what I think they have been doing, which is doing the best they can,
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without any commitment. And that translates into the status quo. (Tr. 1172:1–1173:2.) 148. Finally, defendants claim as part of their Olmstead plan the fact that Adult Home residents were added as a target population for housing licensed or funded by OMH. (Defs.’ PFF ¶ 143.) As discussed above, however, supra ¶ 128, and in DAI’s Proposed Findings of Fact, even after being designated as a target population for the first time in 2005, Adult Home residents have continued, for the most part, to be denied access to supported housing because other target populations continue to receive priority to the exclusion of Adult Home residents. (DAI’s PFF ¶ 179.) 149. Moreover, Adult Home residents appear no longer to be a priority population for supported housing beds. (See P-748 (2009 RFP).) While defendants claim that some Adult Home residents have in fact moved from Adult Homes (Defs.’ PFF ¶ 143), the data regarding the small number of residents who have moved to OMH community housing show that any efforts defendants have taken are a far cry from an effective or comprehensive plan. V. Defendants Have Not Shown that the Requested Relief Would Increase Costs 150. The State has the burden of proving its fundamental alteration defense by a preponderance of the evidence. Although the State argues that the proposed relief would increase the cost to the State if current Adult Home residents were instead served in supported housing (Defs.’ PFF ¶¶ 144–61, 221–27; see also D-398 (chart prepared by Gregory Kipper); D-441 (chart prepared by Martha Schaefer-Hayes); Tr. 2774:20–2775:1 (Kipper); Tr. 3341:6–3342:9 (Schaefer-Hayes)), it has not done any analysis to determine
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the financial impact of the requested relief (Tr. 3368:7–3369:8 (Schaefer-Hayes)). Its fundamental alteration defense fails for that reason alone.
151. Recognizing that its failure to conduct an adequate analysis is fatal to its fundamental alteration defense, the State claims that it “could not put on more specific evidence of the costs in support of its fundamental alteration defense” because it needed information about the precise number of residents DAI believes could be served in supported housing and the exact mix of supports each individual would need for that to occur. (Defs.’ PFF ¶ 223.) Defendants’ cost expert, Mr. Kipper, however, conceded that there are any number of ways that an estimate could have been done to arrive at approximate figures. (Tr. 2834:21–2835:24; see also Tr. 3464:19–21 (D. Jones Rebuttal) (explaining that “there are probably multiple ways that one could slice and dice” the data).)
152. For example, the State identifies its programs by unique “program codes” (Tr. 3241:7–11 (Schaefer-Hayes).) The State could have used its own Medicaid database to compare services for former Adult Home residents before and after they moved to supported housing using those codes. (Tr. 2834:21–2835:24 (Kipper); Tr. 3464:22–25 (D. Jones).) As Mr. Jones testified, because the Medicaid data is categorized by codes for various programs, the State could have looked at what it was “spending for those people while they were in adult homes and what [] it [is] now spending for them subsequently in supported housing.” (Tr. 3465:1–6.)
A. Defendants’ Analysis is Fatally Flawed Because They Failed to Consider All the Costs of Serving Adult Home Residents in Adult Homes
153. Both residents of Adult Homes and residents of supported housing receive services funded by Medicaid, which is paid for jointly by the State and the federal
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government. (S-55 (Kipper Report) at 7–8 & n.4.) As discussed in DAI’s Proposed Findings of Fact ¶¶ 202–14, defendants’ comparison of the cost of serving a person with mental illness in an Adult Home versus the cost of serving that person in supported housing ignores significant savings that could be achieved in Medicaid costs by serving such persons in supported housing.
154. The State’s own analyses show (a) that Medicaid costs are, on average, $15,000 higher per person for Adult Home residents than they are for residents of supported housing (P-63 (State’s Analysis) at DOH 0131663–64; see also P-773 (D. Jones Summary of Cost Evidence) at 1; Tr. 3424:2–14 (D. Jones Rebuttal); S-55 (Kipper Report) at 8), and (b) that there has historically been a pattern of “over-utilization”—if not outright fraud—with regard to Medicaid expenditures in Adult Homes (P-94 (Commission on Quality of Care and Advocacy for Persons with Disabilities, A Review of Assisted Living Programs in “Impacted” Adult Homes, June 2007 (“2007 ALP Report”)); P-228 (New York State Commission on Quality of Care, Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services, August 2002 (“Layering Report”))).
155. Rather than delve into their own data, the State glosses over these facts by assuming that the over-utilization problem has been remedied (see Defs.’ PFF ¶¶ 225–26 (stating that there is no “evidence of current Medicaid abuse”); Tr. 2833:7–25 (Kipper) (testifying that he “thought the problem would have been addressed”)), or alternatively, asserting that the difference in cost can be attributed to the characteristics of the persons living in the Adult Homes rather than the nature of the Adult Homes themselves (see Defs.’ PFF ¶¶ 155, 227; see also S-144 (Kipper Report) (opining that there is no “causal link between Medicaid spending and residential setting”)). The State undertook no
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analysis to prove either assertion, however, and neither is supported by the evidence in the record.
156. The Layering Report, released by the New York State Commission on Quality of Care in 2002, was only one of several studies that were highly critical of the Adult Home system of care. (See generally P-228.) The Layering Report did not report a mild concern with a temporary situation. Instead, the Report called the entire Adult Home system of care “fundamentally flawed” and in need of “reform.” (Id. at CQC 114– 15.) The Report documented ingrained “structural problems” that had been ongoing for “more than 25 years” (id. at CQC 97), describing a system
in which services are often not sought by the recipient, but initiated by the practitioner; in which providers fail to communicate with one another on treatments and medications, even on such matters as the need for surgery; and, in which the primary care physician plays no role in assuring that services are coordinated effectively. (Id. at CQC 96.) 157. The findings in the Layering Report are entirely consistent with findings reached in other reviews and reports. (See D-385 (Commission on Quality of Care, Health Care in Impacted Adult Homes: A Survey, May 2006 (“Health Care Report”) (finding that because primary care physicians and specialists provided services on-site at Adult Homes, “this sometimes meant that individuals were seen monthly by their primary care physician even when they had no complaints and had made no request to see him/her” and that “individuals were screened by specialists [such as dermatologists and gynecologists] when they had no documented need for such”); P-94 (2007 ALP Report) at i (finding that assisted living services provided to Adult Home residents “were not commensurate with the increased charges to Medicaid”); S-103 (Workgroup Report) at
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DOH 86205–209 (discussing potential Medicaid savings from reforming services to Adult Home residents).)
158. Several witnesses also identified the same problems as the Layering Report. (E.g., Tr. 709:22–710:4 (Rosenberg) (testifying that Adult Home residents had home health aides that worked for agencies owned by the Adult Home operators and billed their services to Medicaid, but that residents were unaware they even had home health aides); Tr. 3431:12–3432:19 (D. Jones Rebuttal) (explaining Workgroup’s Payment Subworkgroup’s finding that there was over-utilization of nursing services and home health aides in Adult Homes).) Given the magnitude of the problems found with Adult Home Medicaid services, and the fact that they had been going on for decades, the State’s professed belief that the problems had been resolved is difficult to swallow.
159. In fact, defendants’ assertion that the problems identified in the Layering Report had been resolved before Mr. Kipper’s analysis in this case is flatly contradicted by the numbers themselves. The Layering Report found that the average Medicaid costs in Homes it analyzed exceeded $27,000 per resident, a figure that it called “expensive” and indicative of “uncoordinated” and “unnecessary” services. (P-228 at CQC 96.) When the State analyzed the Medicaid data for this litigation for the fiscal year 2004– 2005, two years after the Layering Report was issued, the average cost in all the Homes analyzed totaled $31,830 per resident—nearly $5,000 more per resident on average than the $27,000 figure found in only the eleven largest Homes in 2002. (P-63 (State’s Analysis) at DOH 131637.) The State’s Analysis found that twenty Homes still had expenditures in excess of $27,000 per resident, and seven Homes had costs exceeding $35,000 per resident—a 30% increase in costs since the release of the Layering Report.
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(P-63 at DOH 131637.) The State’s assumption that these cost problems have somehow been fixed is thus impossible to reconcile with the facts.
160. Nor were the problems identified in the Layering Report limited to a few isolated Homes, as defendants suggest. Rather, the Layering Report found that financial abuses existed in at least “the 11 largest adult homes in the greater New York City area,” Homes that together “cared for about one-fifth of the total population of ‘impacted adult homes.’” (P-228 at CQC 99.) Most of those Homes continue to serve Adult Home residents to this day. (See P-774 (2008 Census Report).)
161. The State continues to blame Adult Home residents for the higher Medicaid costs in Adult Homes, asserting that their “needs are greater than those of the average supported housing resident.” (See Defs.’ PFF ¶¶ 155, 226–27.) There is no evidence in the record to support that proposition. The Layering Report, for example, showed that the problem is with the system of care, not with the residents subject to the system. There is no discussion in the Report about characteristics of the residents leading to high costs. Instead, the Report details at length the “multiple layers of services from different providers that [are] costly, fragmented, sometimes unnecessary, and often appear[] to be revenue-driven, rather than based on medical necessity.” (P-228 at CQC 100.) Far from being driven by the needs of Adult Home residents, the Report found that services were “characterized by their lack of individualization,” and that the “breadth” and “volume” of services is instead “attributed to easy accessibility and the absence of a gatekeeper or service coordinator.” (Id.)
162. The State’s Analysis of the comparative Medicaid data for 2004–2005— an apples to apples comparison of Adult Home residents with similarly-diagnosed
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residents of supported housing—also demonstrates that the problem is with the system of care and not with the residents. (See generally P-63 (State’s Analysis).) Defendants’ expert, Mr. Kipper, agreed that the State’s Analysis of the comparative Medicaid data “divide[d] [the two] populations into subgroups that had similar characteristics” “based on diagnosis codes in the Medicaid database.” (Tr. 2827:6–2828:16.) Mr. Kipper also agreed that “no matter how you cut the data you get the same kind of result, it’s considerably higher in the adult home than in supported housing.” (Tr. 2830:19–24.) In fact, the data showed plainly that for every category, the savings in supported housing were staggering, ranging from $10,000 to $18,700 per person. (P-63 (State’s Analysis) at DOH 131663–64.) That is, for persons with a given diagnosis, the State was likely to pay many thousands of dollars more per year for that person if he or she lived in an Adult Home than if he or she lived in supported housing. (See id.)
163. Similarly, at trial Mr. Kipper pointed to D-385, the Health Care Report, as one source of his view that Adult Home residents had higher needs than residents of supported housing. (Tr. 2789:11–2792:6.) The reference to that report, however, is misleading. That report compared the medical needs of Adult Home residents with the medical needs of the general population, not with the medical needs of residents of supported housing. (See D-385 at 2–3 (describing the fact that Adult Home residents had higher incidences of certain disorders than “the general American population”).) In fact, the report explained that its findings were not surprising because people with serious psychiatric disorders “may [be] predispose[d] . . . to certain health risks” because of lifestyle choices, the psychotropic medications they take, and their limited incomes. (Id. at 2–3.) None of those factors are unique to Adult Home residents, but instead are
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generally applicable to persons with mental illness whether they are served in an Adult Home or in supported housing. There is nothing in this report that supports defendants’ argument that Adult Home residents are a needier population than residents of supported housing.
164. Finally, the State argues that residents of Adult Homes must be needier than residents of supported housing because supported housing “is the most independent type of mental health housing.” (Defs.’ PFF ¶ 155.) The record is replete, however, with evidence showing that many Adult Home residents are very independent and that very few receive meaningful supervision from Adult Homes. (Tr. 122:11–17 (E. Jones); D394 (Schimke Dep.) 54:13–54:22 (explaining her frustration when Adult Home residents are called “low-functioning”); see also generally Tr. 359:11–420:3 (testimony of S.K.); Tr. 438:7–547:9 (testimony of G.L.); Tr. 548:16–620:10 (testimony of S.P.); 2679:18– 2708:10, 2714:6–2753:18 (testimony of I.K.) (fact that these current and former Adult Home residents were able to appear in court and withstand the stress of testifying indicates a high level of independence); DAI’s PFF ¶¶ 86–98; supra, ¶¶ 67-71.) The evidence is also clear that whether or not a person with mental illness is placed in an Adult Home rather than in supported housing is the “luck of the draw.” (See Tr. 709:8– 12 (Rosenberg); see also Tr. 646:14–18; D-394 (Schimke Dep.) 10:10–11:10; P-68 (Stone Memo).) For these reasons, too, defendants’ argument that Adult Home residents are somehow needier than residents of supported housing should be rejected.
B. There Is No Evidence that Many Adult Home Residents Would Require the Services of an ACT Team if they Were Served in Supported Housing
165. Defendants wrongly assert that DAI’s experts “conceded that many, if not all, of plaintiff’s constituents will need additional services to live in scatter site supported
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housing” (Defs.’ PFF ¶ 160) despite clear testimony to the contrary (e.g., Tr. 83:24–84:8 (E. Jones) (concluding that “many people” in Adult Homes could move to supported housing with “little or no support”); Tr. 3072:7–17 (Groves) (testifying that Adult Home residents are “not a seriously impaired population in the vast majority”); see also DAI’s PFF ¶¶ 86–98). Based solely on that assertion, defendants argue that “it is likely that many [Adult Home residents] would need the services of an ACT team.” (Defs.’ PFF ¶ 160.) Alternatively, they hypothesize that some Adult Home residents might require an “Intensive Case Manager” or “additional services that cannot be provided by an ACT team or a case manager, such as a home health aide.” (Id.)
166. As a threshold matter, defendants’ argument ignores the fact that current supported housing residents receive these services already (Tr. 223:3–16, 224:9–14, 237:10–18 (Tsemberis); Tr. 2413:9–2414:1 (Geller); P-286 (TSI proposal in response to RFP) as OMH 42968), and the cost of these services is already included in the Medicaid comparison between Adult Home residents and supported housing residents (see D-441 (chart prepared by Schaefer Hayes) (showing the Medicaid percentages the State pays)).
167. Moreover, showing that it is possible that Adult Home residents might need additional services is a far cry from proving it is so by a preponderance of the evidence. As with the other figures necessary for their fundamental alteration defense, the State has made no showing that many Adult Home residents would require ACT (see Tr. 3464:19:20–21 (D. Jones Rebuttal)); neither have defendants presented the Court with any analysis comparing the cost of ACT with the cost of the various mental health services those residents currently receive.
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168. To the contrary, there is evidence that a great number of residents would require very little support to live in supported housing. (See Tr. 83:24–84:8 (E. Jones); Tr. 856:12–14 (Duckworth).) Dr. Tsemberis testified, for example, that “there is nothing about [Adult Home residents] that make[s] them a different class [of] people with mental illness than any other people with severe mental illness that are getting services in all kinds of other settings . . . .” (Tr. 287:4–22.) Plaintiff’s expert, Dr. Duckworth, also found that the population of Adult Home residents and the population of persons in supported housing was “identical.” (Tr. 854:11–855:1, 856:12–14.) S.K., a current Adult Home resident, was asked what she would need in order to live in more independent housing. Her response was simply that she “would like to have somebody to call in on me once in a while just to see how things are doing. I’d like to have somebody there that I could call.” (Tr. 390:12–16.) Similarly, G.L., a former Adult Home resident that now lives in a Pathways to Housing home, testified that he does not use ACT services. (Tr. 459:5–16 (G.L.).) Even defendants’ expert Dr. Geller conceded that 29% of current Adult Home residents in his sample could go to supported housing “without ancillary services.” (Tr. 2406:6–16.) Clearly, there is no basis to assume that Adult Home residents will require ACT services more than anyone else in supported housing.
169. Nor have the defendants presented any evidence comparing the cost of supported housing with ACT services to the cost of supported plus the other Medicaid Services that supported housing residents receive when they do not utilize an ACT team. As Mr. Jones testified, “ACT is a bundled set of services, so that if you’re in an ACT team, that . . . ACT team really provides the full gamut of what you’re going to need in terms of mental health services.” (Tr. 3462:23–3463:1.) Thus, residents with an ACT
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team will not be incurring the expense of other programs offered by the State. As OMH’s website explains, ACT services are carried out “at the locations where problems occur and support is needed rather than in hospital and clinic settings.” (S-97 (OMH website describing ACT) at 1.) That shift in the locus of services means that costs formerly borne by the State are avoided: “Studies have shown that recipients who receive ACT services experience greater reductions in psychiatric hospitalization rates and a higher level of housing stability. Research has also shown that ACT . . . is no more expensive than other types of community-based care.” (Id.; see also Tr. 3428:11–3429:8 (D. Jones); P-725 (SAMSHA Report) at 5–6 (federal agency’s study found that supported housing with ACT services cost less than supported housing coupled with traditional community services, and that residents who received ACT spent less time in psychiatric hospitals than persons receiving traditional community services).) Thus, even if many of DAI’s constituents would need ACT services, the defendants have not proven it would be more costly.
170. The State also argues that the cost of assessments of Adult Home residents should be included in the cost of DAI’s requested relief, and argues that that cost will “undoubtedly” be more than the $1.3 million it spent on the Assessment Project. (Defs.’ PFF ¶ 222.) That argument is without support in the record. Defendants’ bald assertions ignore that supported housing providers, as part of their work, routinely do assessments to identify supports and services. (See P-748 at 4 (2009 RFP) (requiring supported housing providers to “provide in-reach, develop coordinated discharge/admission plans with PC staff, and identify/provide services and supports to ensure successful transition to the community”).) It also ignores that case managers are already expected to assist
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Adult Home residents to move to more integrated settings. (Tr. 1500:13–1502:3 (Madan); Tr. 1365:16–1366:17 (Reilly).) There is thus no evidence in the record that the State would need to expend money hiring an outside contractor to conduct assessments.
171. Finally, the State argues that “increased administrative and staff costs for OMH of overseeing additional supported housing should also be considered.” (Id.) There is no evidence in the record, however, demonstrating whether such costs would reasonably be incurred or how much they might be—another failure of proof that further dooms defendants’ fundamental alteration defense. Moreover, if an expansion of the State’s supported housing program would require additional oversight and costs, surely the concommitant reduction in Adult Home beds would save the State oversight expense.
C. The State Also Fails to Consider Other Savings 172. Medicaid costs are not the only expenses that the State fails to include in its analysis. The State also incurs additional expenses for Adult Home residents that it does not incur for residents of supported housing, such as costs for the QUIP program, the EnAble program, and the Case Management Initiative. (See DAI’s PFF ¶¶ 215–226; see also Tr. 3439:17–3440:3, 3459:20–3460:23 (D. Jones Rebuttal); P-773 (D. Jones Summary of Cost Evidence) at 3–12.) Defendants argue, however, that “it is . . . not appropriate to consider [those] costs” for two reasons. (Defs.’ PFF ¶ 227.) First, they argue that it is inappropriate to consider those costs because “adult homes are likely to remain full.” (Id.) Second, they argue that these programs should not be included in a cost analysis because they are “not entitlements like SSI, issued to each resident separately.” (Id.)
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173. The first point is discussed extensively infra, ¶¶ 175-82. As discussed there, because backfilling vacated Adult Home beds would be inappropriate and unnecessary, that is not a reason to discount the possible savings in those programs.
174. Defendants’ second point—that Adult Home programs “are not entitlements” is nonsensical. All told, the State has expended at least $68.7 million dollars—and possibly quite a bit more—on various initiatives and programs targeted at Adult Home residents that are routinely funded year after year. (Tr. 3460:5-23 (D. Jones).) That the State would intentionally omit significant sums clearly directed at Adult Homes renders their analysis meaningless. The State has expended more than $28 million on the QuIP program. It has also expended at least $10.5 million on EnAble in the past five years, and perhaps significantly more. It has allocated $23.5 million towards the Case Management Initiative for Adult Homes. The State has also appropriated $1.5 million for an Infrastructure Capital Program; $2.8 million for air conditioning for Adult Homes; $2 million to Adult Home initiatives in 2003–2004; and, in 2005–2006, $350,000 “for services and expenses to promote programs to improve the quality of care for residents in adult homes.” (See DAI’s PFF ¶¶ 215-226.)
D. The State Need Not, and Should Not, “Backfill” Beds Vacated by Adult Home Residents
175. The State also argues that its costs would increase even further if beds vacated by Adult Home residents were “backfilled” by other individuals with mental illness. (Defs.’ PFF ¶¶ 224–225.) Once again they have done no analysis of the issue. Defendants’ own cost expert flatly stated that he undertook no such inquiry. (Tr. 2784:21–2785:14 (Kipper) (“Q. [D]o you have an opinion whether backfill would occur
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if adult home residents moved to alternative settings? A. No.”); see also Tr. 2786:12–15 (stating that he did not include the potential for backfill in his analysis).)
176. The State has seized on the backfill issue because some courts have recognized that states are not always able to take advantage of savings associated with moving institutionalized individuals to more integrated settings because the need for the institution may remain. See Olmstead, 527 U.S. at 605 (explaining that “some individuals . . . ‘may need institutional care from time to time to stabilize acute psychiatric symptoms”) (internal quotation marks omitted); see also Williams v. Wasserman, 164 F. Supp. 2d 591, 636 (D. Md. 2001) (same). Here, however, Adult Homes do not serve the purpose of providing the care and treatment of acute or other psychiatric symptoms.20 They were not designed to be treatment settings for people with serious mental illness; instead they filled a void caused by the unavailability of community-based housing. (See, e.g., P-68 (Stone Memo).) Accordingly, defendants’ argument that the State has a need to keep Adult Home beds filled has limited, if any, relevance here where the institutions do not serve a necessary mental health treatment purpose.
177. Moreover, the evidence shows that virtually all of the people with mental illness currently served in Adult Homes could be served instead in supported housing. (See supra ¶¶ 89-119; DAI’s PFF ¶¶ 52–141.) For this reason, it is unlikely that the State could refill the Adult Homes at issue here without recreating the very legal violation that is the subject of this suit—the unlawful segregation of individuals with mental illness in Adult Homes. (See Tr. 2954:17–21 (Zucker) (testifying that if New York does not take 20 Indeed, state regulations prohibit Adult Homes from admitting or retaining anyone
with acute psychiatric symptoms. (S-141 (18 N.Y.C.R.R. 487.4) at (b)(2).)
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the money it is currently spending on Adult Homes and use it to create sufficient supported housing beds, there is a danger that more people will end up in Adult Homes).)
178. Defendants also did not put on any evidence demonstrating that backfill would result in increased costs to the State. Instead, the evidence is to the contrary. The evidence indicates that the persons most likely to fill vacant Adult Home beds are homeless persons and persons being discharged from State psychiatric hospitals. (See, e.g., Tr. 2156:5–2157:7 (Newman); Tr. 3198:13–3200:4 (Myers); Tr. 1311:3–1312:10 (Reilly); Tr. 2905:7–25 (Kaufman).) The evidence also shows that if Adult Home beds were backfilled with persons in those populations, those individuals would likely be served less expensively in an Adult Home than in the settings from which they were coming. For example, a person with mental illness who is homeless costs, on average, $40,000 a year in Medicaid expenses alone, and can cost as much as $100,000 per year. (Tr. 292:1–17 (Tsemberis).) That is more than the average $31,530 in Medicaid expenditures for Adult Home residents. (See P-773 at 1–2.) Similarly, a person that has come from an inpatient psychiatric setting, such as a State hospital, will have come from a much higher cost setting than an Adult Home. (Tr. 3372:8–12 (Schaefer-Hayes (estimating that in 2007, the State saved $73,000 for each psychiatric center bed it closed); Tr. 3428:14–3429:8 (D. Jones) (stating that “when you darken the door of an inpatient psychiatric unit, that is not only the most intensive part of treatment, but it’s also the most expensive and so, to the degree to which you can maintain people avoiding that is a major factor in keeping costs down”).)
179. Whether backfilling occurs is a matter within the State’s control. New York State has no obligation to insure that vacated Adult Home beds are backfilled.
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To the contrary, the law permits the State to regulate admissions to Adult Homes, and also permits the State to downsize or close Adult Homes for which there is no public need.
180. New York has the authority to limit or prohibit the admission of persons with serious and persistent mental illness into impacted Adult Homes if it finds that the Adult Homes are not suitable places to provide care and treatment. New York Social Services Law § 461(1) gives DOH the authority to make and amend regulations “effectuating the provisions of this title, including but not limited to establishing fiscal, administrative, architectural, safety, nutritional and program standards which apply to all adult care facilities subject to its inspection and supervision.” New York Social Services Law § 461(2) further gives the State the ability to promulgate new regulations governing “the necessity for and content of programs designed to protect the health and well-being” of persons with mental illness. DOH has already exercised this authority to prohibit the admission of some persons with mental and physical illnesses into Adult Homes because they are inappropriate for Adult Homes. (See generally S-141 (18 N.Y.C.R.R. § 487.4) (listing descriptions of persons who may not be served in Adult Homes).) Thus, New York could certainly prevent admission when the Adult Home is not the most integrated setting appropriate to the person’s needs and the person prefers to live in supported housing instead.
181. New York also could reduce the number of Adult Home beds in New York City by downsizing or closing Adult Homes. DOH is the State entity that issues operating certificates for Adult Homes. (P-591 (Joint Stipulations of Fact) ¶¶ 3, 4.) DOH may “suspend, limit, modify or revoke an operating certificate of . . . [an] adult
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home upon determining that such action would be in the public interest in order to conserve resources by restricting the number of beds, or the level of services, or both, to those which are actually needed, after taking into consideration the total number of beds necessary to meet the public need, and the availability of facilities or services such as ambulatory, home care or other services which may serve as alternatives or substitutes for the whole or any part of a facility. . . .” N.Y. Soc. Serv. Law § 461-b; 18 N.Y.C.R.R. § 485.5(m)(1)(i); see also P-591 (Joint Stipulations of Fact) ¶ 5 (“Operating certificates must be reissued at least every four years and may be revoked or suspended if the DOH determines that if [sic] the facility does not comply with State regulations.”); Tr. 3047:25–3048:4 (Hart). In fact, Linda Rosenberg testified that if Adult Home beds are not backfilled, Adult Homes might even voluntarily close their doors. (See Tr. 698:7–13 (Rosenberg) (testifying that Adult Homes threatened to close if beds were not backfilled).)
182. It is clear, then, that New York can extricate itself from reliance on Adult Homes to serve persons with mental illness if it chooses to do so. What it needs is a plan and the will to follow through with that plan. (See S-150 (D. Jones Report); Tr. 3477:19– 3478:9 (D. Jones Rebuttal); Tr. 772:23–773:9 (Rosenberg) (stating that sufficient supported housing could be created for all the needy populations “because if there was the will to close Adult Homes, and I think it will take political will, that money could be shifted and used for the services people in supported apartments would need”).)
183. The State avows that the economic crisis has “required OMH to make significant budget cuts” (Defs.’ PFF ¶ 158), suggesting that the cuts would make it difficult to execute the proposed relief in this matter. The State also points to the fact that
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capital expenditures have been frozen in the current budget cycle. (Defs.’ PFF ¶¶ 219– 20.) However, the requested relief here is the provision of supported housing beds, and it is undisputed that creation of new supported housing beds does not require an outlay of capital (e.g., Tr. 2159:5–2160:4 (Newman)); those are not the beds whose creation has been frozen. The record is devoid of any evidence showing that the current fiscal difficulties have had any impact on OMH’s ability to develop supported housing. In fact, while this trial was ongoing, the State issued an RFP for 230 beds of new supported housing. (See P-748 (2009 RFP) at 2.) Moreover, DAI’s proposed relief would result in overall savings to the State (see supra, ¶¶ 153-64) and that the savings earned could be redirected to pay for supported housing (Tr. 3261:2–3263:4 (Schaefer-Hayes); S-150 (D. Jones Report) at 22–23; Tr. 1947:14–20 (Newman); Tr. 1613:15–24 (Wollner).) Because the proposed relief here would not only remedy an untenable situation for DAI’s constituents, but also ultimately lead to savings to the State, the State’s arguments should be rejected.
RESPONSE TO DEFENDANTS’ PROPOSED CONCLUSIONS OF LAW I. Basic Principles of the ADA and the Integration Mandate 184. Defendants’ contentions that the ADA requires neither “equal results” from public programs nor a “standard of care” for medical services are beside the point. (See Defs.’ PFF ¶ 164.) DAI seeks neither equal results from public programs nor a particular standard of care. Rather, DAI seeks to have defendants administer services to DAI’s constituents in the most integrated setting appropriate to their needs. Olmstead explicitly states that its holding does not “impose[] on the States a ‘standard of care’ for
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whatever medical services they render, or . . . require[] States to ‘provide a certain level of benefits to individuals with disabilities,” but does require states to adhere to the ADA’s nondiscrimination mandate and administer their services to these individuals in the most integrated setting appropriate to their needs. Olmstead v. L.C., 527 U.S. 581, 603 n.14 (1999).
185. Defendants misstate the holding of Olmstead in arguing that the Court “must consider the cost of providing community-based care to everyone eligible for and desirous of it.” (Defs.’ PFF ¶ 166.) Rather, Olmstead requires the Court to consider whether the state has shown “that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” 527 U.S. at 604. Defendants have failed to show that the relief sought by DAI’s constituents would be inequitable to other individuals with mental disabilities. To the contrary, the relief sought would be no more costly to the State than serving DAI’s constituents in Adult Homes, and thus would not interfere with defendants’ ability to serve other individuals with mental disabilities. II. DAI’s Constituents Are Not in the Most Integrated Setting
186. Defendants maintain that Adult Homes are integrated settings and that they “enable individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” (Defs.’ PFF ¶ 167.) In support of this assertion, defendants make several arguments. First, they claim that Adult Homes enable interaction with nondisabled persons to the fullest extent possible because they are located in “residential areas” close to “stores, restaurants, religious institutions, libraries, parks and/or beaches and boardwalks.” (Defs.’ PFF ¶ 168.) Second, they argue that Adult Home residents
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come and go from the facilities and “take full advantage of the benefits afforded by living in New York City.” (Defs.’ PFF ¶ 169.) Third, they argue that the OMH-funded case managers and other mental health providers available to Adult Home residents “facilitate integration.” (Defs.’ PFF ¶¶ 170, 172.) And finally, they argue that Adult Homes organize outings and on-site entertainment and activities. (Defs.’ PFF ¶ 171.) None of these factors, however, even if they were accurately characterized by defendants (which they are not), render Adult Homes integrated settings or settings that enable interaction with nondisabled persons to the fullest extent possible, either on their own or as compared to supported housing. Adult Homes are institutions. They house dozens and, in some cases, hundreds, of people with mental illness in one setting controlled by rigid rules and regimented routines that restrict residents’ daily lives and impede opportunities for interaction with non-disabled persons.
187. Defendants’ argument that Adult Homes are the most integrated setting because they are close to stores and other establishments is without merit. Given that the Adult Homes at issue in this case are by definition large, impacted Adult Homes in New York City, they are of course located in urban settings nearby to the kinds of establishments and services one usually finds in an urban setting such as New York City. But that does not render them integrated settings. By that measure, any large psychiatric facility located in an urban setting would be a setting that is integrated in the community, no matter how institutional. As described by the Assistant Executive Director of the Jewish Board of Family and Children’s Services, rather than being integrated settings, Adult Homes are “community-based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it.” (P-673
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(Bear letter to J. Reilly) at JBFCS 354; Tr. 2236:12–2238:24 (Bear).) Contrary to defendants’ assertion, the fact that Adult Homes are physically located in New York City does not make them part of the community, does not make residents feel any less segregated, and does not make them any less institutional. (See also P-535 (T.M. Dep.) 89:21–90:18, 110:3–112:2); P-544 (C.H. Dep.) 75:16–24).)
188. Defendants’ characterization that “residents frequently avail themselves of these opportunities and take full advantage of the other benefits afforded by living in New York City” is a gross distortion of the record evidence. (Defs.’ PFF ¶ 169.) Indeed, defendants fail to cite to one item of record evidence to support their assertion. (See Defs.’ PFF ¶ 169.) Instead, they cobble together isolated and unsupported examples of activities in order to suggest that many residents engage in a variety of activities outside the Homes. (Id.) For example, defendants state that “[r]esidents explore educational and vocational opportunities including GED classes for GEDs at local schools . . . .” (Defs.’ PFF ¶ 169.) But in defendants’ Proposed Findings of Fact, defendants cite only one circumstance in which a resident obtained her GED and, based on the testimony cited, it is not even clear that she pursued her GED while living in the Adult Home. (See Defs.’ PFF ¶ 21 (citing P-538 (B.J. Dep.) 19:10–21:20).) Viewed in its entirety, the record evidence established that Adult Homes impede the ability of Adult Home residents to participate in their communities outside the Homes. Among other factors, because of inflexible schedules for medication, meals and other activities, there are significant restrictions on when residents can be absent from the Homes. (See supra ¶¶ 12–18; DAI’s PFF ¶¶ 18–23.) Because of the large numbers of people, the lack of privacy, and
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restrictions on visitors, residents are limited from developing relationships with people inside or outside the Homes. (See id.; DAI’s PFF ¶14, 19–20, 29.)
189. Defendants’ argument that OMH-funded case managers and other mental health providers “facilitate integration” is similarly without merit. The evidence established that the programs offered by mental health providers on-site or off-site at day programs contribute further to the isolation and segregation of residents and, as defendants’ own expert acknowledged, have virtually no effect on the enhancement of independent living skills. (See supra ¶¶ 29-30; DAI’s PFF ¶¶ 23–27, 193.) While Adult Home residents sometimes leave the facility to attend continuing day treatment or other mental health programs, they are generally transported together in a bus or van, (e.g., S-151 (E. Jones Report) at 3), and spend their time there with other persons with mental illness (id.; Tr. 601:25–602:9 (S.P.)). Moreover, the mental health programs that residents attend—both in and outside the Adult Homes—are at odds with current practices and principles in the field of mental health. These programs often have little focus on skill development (Tr. 897:25–898:11 (Duckworth); see generally P-93 (Commission on Quality of Care, Continuing Day Treatment Review, Dec. 2006)), and to the extent that these programs aim to teach residents independent living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice those skills in their present living situation (S-152 (Duckworth Report) at 6–7 & n.5; Tr. 67:22–69:6, 170:7–171:1 (E. Jones) (explaining that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live)). While residents of supported housing can learn and practice these skills in their own homes, residents of the Adult Homes derive
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little benefit from this type of training. (S-152 (Duckworth Report) at 7–8; Tr. 870:7–10 (Duckworth) (residents unlikely to learn to cook in Adult Home environment simply because a kitchen is installed); Tr. 412:14–413:5 (S.K.) (describing day treatment program in which residents learned to make cakes by being told what ingredients to put in a pan and having staff “do the rest”)). Indeed, the evidence established that OMH is now trying to close some of these “old fashioned” programs. (Tr. 720:10–15, 749:24– 750:8 (Rosenberg); see also Tr. 3317:1–3318:7 (Schaefer-Hayes).)
190. With respect to the OMH-funded case managers that have been recently placed in Adult Homes, defendants acknowledge that they are present in only eleven facilities. (Defs.’ PFF ¶ 172.) And even as to those eleven Adult Homes, the presence of case managers does not alter the segregated nature of the setting in which DAI’s constituents receive services. It simply arranges services within the existing institutional setting. (Tr. 171:8–22 (E. Jones); Tr. 1172:1–1173:2 (D. Jones).)
191. Finally, defendants’ assertion that Adult Homes enable integration because residents are taken on trips outside the Homes or provided with recreational activities and entertainment inside the Homes is equally baseless. The evidence at trial showed that outings outside the Homes contribute little to residents’ integration into the community. The residents generally travel as a group, in a bus or van, and interact mainly with each other. (P-542 (L.G. Dep.) 37:20–38:5; P-543 (R.H. Dep.) 48:12–50:18; Tr. 2061:4–10, 2104:19–2105:16 (Burstein); S-151 (E. Jones Report) at 3.) At Park Inn Home for Adults, for example, residents are taken on shopping excursions in the Home’s van with as many residents as can fit. (Tr. 2061:4–10 (Burstein).) The Home also organizes monthly restaurant and movie outings for groups of residents transported in
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ambulettes. (Tr. 2104:19–2105:16 (Burstein).) Residents of Riverdale Manor Home for Adults are taken by a mental health provider, the Federation of Employment and Guidance Services (“FEGS”), on “field trips” to museums and libraries, but the visits are after hours when the facilities are closed the general public. (Tr. 2561:9–16 (Waizer).) Accordingly, the outings cited by defendants do nothing to facilitate interaction with nondisabled persons.
192. Defendants claim that DAI presented evidence of “characteristics of Adult Homes that defendants allege are “irrelevant to an analysis of integration.” (Defs.’ PFF ¶ 173.) For instance, defendants claim—perhaps because they cannot seriously dispute that Adult Homes are institutions—that the fact that Adult Homes have institutional qualities does “not render Adult Homes non-integrated.” (Defs.’ PFF at 75, (Heading 1).) The institutional nature, however, renders them segregated in the exact way the institution in which L.C. received services in Olmstead was segregated. As the Supreme Court in Olmstead stated, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and institutional confinement “severely diminishes” individuals’ everyday activities. 527 U.S. at 600– 601. The discriminatory effects of institutional placement recognized by the Supreme Court are inherent in the Adult Home model. As the former Senior Deputy Commissioner of OMH explained, people with mental illness do not “have to be defined by their illness; yet when you’re in an adult home, that’s completely what you’re defined by.” (Tr. 645:6–8 (Rosenberg).)
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193. Defendants attempt to distinguish the setting in Olmstead on the basis that Adult Home residents are not locked in the facilities.21 (Defs.’ ¶¶ 175–76.) But in Olmstead, the plaintiff L.C., left the institution on a regular basis and:
Receive[d] a wide variety of community-care services … leaving during the day … via public transportation for persons with disabilities, to attend a daily community-based program that included social activities, vocational opportunities and field trips; L.C. returned on the bus each evening to the institution. Pet. Reply Br., Olmstead v. L.C., No. 98-536, 1999 WL 220130, at *17–18 (S. Ct. Apr. 14, 1999). Thus, that residents have opportunities to come and go from the facilities is not dispositive and does not lead to the inference that Adult Home residents are in the most integrated setting. 194. Defendants claim that DAI presented evidence of other “considerations [that] are irrelevant to an analysis of integration” (Defs.’ PFF ¶¶ 173–182); namely, the population of the Homes, the lack of autonomy and independence, the actual number of contacts with disabled persons, and the quality of mental health programs. But these are all relevant characteristics that contribute to create a setting that is institutional and does not enable interaction with non-disabled persons to the fullest extent possible. 195. The population of Adult Homes is relevant to the issue of integration. That dozens of people with mental illness live in one setting without any nondisabled persons renders the Adult Homes institutions and also contributes to the segregation of DAI’s constituents. (Tr. 2162:9–21 (Newman) (agreeing that a housing setting shared by 120 people, all of whom have serious mental illness, is a “segregated” setting).) 21 As discussed above, supra ¶¶ 18-22, defendants create a misleading portrayal of the extent to which residents come and go from the facilities and interact with others in their communities.
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Additionally, because they are designed to manage large numbers of people, Adult Homes establish inflexible routines for the convenience of staff, impose rules and regulations, and implement measures to maximize efficiency. (See, e.g, Tr. 2065:4–5 (Burstein) (“[T]here are assigned seats because we are required to take attendance. It would be impossible to do so with 180 clients.”).) Because Adult Home residents live under these rules and routines, they are limited in their ability to interact with nondisabled persons. (See supra ¶¶ 12-18; DAI’s PFF ¶¶ 18–24.) Additionally, the large number of people residing in one setting and sharing relatively few living areas also contributes to the lack of privacy that impedes residents’ ability to develop relationships with others. (See supra ¶¶ 20-21, 197; DAI’s PFF ¶¶ 14, 18–24, 29.)
196. Similarly, the lack of autonomy and isolation of residents are also relevant. Rehashing the arguments made by their expert witness Dr. Geller, who disagrees with the Olmstead decision, defendants assert that autonomy and isolation are not functions of where DAI’s constituents live; they are a matter of “whether a resident takes advantage of opportunities for contact with nondisabled persons.” (Defs.’ PFF ¶¶ 180, 182.) But it is the very opportunity itself that is impeded by virtue of receiving services in an Adult Home. (P-535 (T.M. Dep.) 111:3–112:1 (“You’re in program, you’re in a home. All your energy is surrounded with the home, so it’s hard to meet different people.”).) As Dr. Geller himself conceded, living in a place where the phone is answered “Brooklyn Adult Care Center” diminishes work options and social contacts, and being subject to visiting hours diminishes opportunities to cultivate social or family relationships. (Tr. 2374:15–22 (Geller); see also S-54 (Kaufman Report) at 10–11 (“Understandably, a large Adult Home setting coupled with a high proportion of residents
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with mental illness can artificially limit the interactions of residents and constrict the diversity of friends and acquaintances.”); Tr. 2899:10–13 (Kaufman).)
197. With respect to defendants’ assertion that DAI is taking issue with the quality of services provided to its constituents, it was primarily defendants, not DAI, who raised arguments concerning the quality of services in mental health programs available to Adult Home residents, arguing that the programs “facilitate” integration and are part of the State’s Olmstead Plan. (The evidence conclusively established that the programs neither facilitate integration nor comprise any part of a purported plan.) Contrary to defendants’ assertions, DAI seeks neither equal results from public programs nor a particular standard of care. Rather, DAI seeks to have defendants administer services to DAI’s constituents in integrated settings.
198. Perhaps most baseless of defendants’ arguments is the assertion that DAI failed to show “that supported housing is any more integrated than Adult Homes.” (Defs.’ PFF ¶ 186.) To the contrary, the testimony of I.K. and G.L.—two former Adult Home residents who now live in supported housing—establishes that supported housing is a setting that enables interaction with nondisabled persons to the fullest extent possible and that it is far more integrated than an Adult Home. I.K. testified that the Adult Home “discourage[d] independence” and “foster[ed] complete dependency upon them to do everything for [her].” (Tr. 2734:21–2735:2.) She explained that now that she lives in supported housing she feels “free;” she is “able actually to live like a human being again.” (Tr. 2751:24–25.) G.L. testified that guests visit him more frequently now that he is in supported housing because in the Adult Home there was nowhere to have a private conversation, the visiting areas were small, guests could not join in meals, guests
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had to sign in, guests were not allowed to stay overnight, and visiting hours ended at 8
p.m. (Tr. 477:20–480:3, 483:13–16 (G.L.).) G.L. described the holiday dinners and
barbeques he has hosted since living in supported housing and testified that he would
never opt to go back to an Adult Home because he can now have visitors any time. (Tr.
501:22–502:13 (G.L.) (“I can have people stay overnight. I can entertain. I couldn’t do
that in the adult home. Q. Anything else? A. Visitors can come any time. Q. And that
means something to you? A. Yes.”).)
199. The testimony of I.K. and G.L. is fully consistent with OMH documents
describing supported housing and the testimony of State officials and many others
concerning supported housing. As Sam Tsemberis, Executive Director of the Pathways
to Housing supported housing program, explained, it is the very ordinariness of supported
housing, the ability to choose when you wake up and what you eat, that residents
appreciate:
You sort of say that like it’s taken for granted. When people first move into an apartment that is so much the thing they appreciate the most, because many of the people that we’re housing out of shelters and hospitals, especially, have been for years told when to wake up, what to eat, when to eat, what TV channels to watch, which are selected for them, what they watch, and when they watch it, when they can make phone calls. Every tiny aspect of their life is decided by someone else and what people appreciate immediately are the ordinary day to day freedoms of things, like when you can choose to wake up or go to sleep or watch a TV channel or eat when you are hungry as opposed to when it’s time to eat. They seem ordinary and mundane and are profoundly important to build a sense of well being for the person.
(Tr. 290:22–291:11.)
200. In supported housing, people with mental illness live much like their non-
disabled peers. Scattered site supported housing is a “normalized” residential setting.
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(Tr. 654:5–655:6 (Rosenberg).) In other words, it is a setting much like those in which non-disabled persons live. (Id.) It is the individual’s home. (S-150 (D. Jones Report) at 25–27; Tr. 252:8–21 (Tsemberis); Tr. 851:10–25 (Duckworth).)
201. Residents of supported housing have the same freedoms that other apartment tenants do. (Tr. 501:22–502:13 (G.L.); Tr. 2751:18–25 (I.K.); P-546 (A.M. Dep.) 204:23–205:18.) They can control their own schedules and daily lives. (Tr. 475:21–477:7, 483:18–487:4 (G.L.); Tr. 290:21–291:11 (Tsemberis).) They are free to come and go when they like. They can live with a significant other, marry and live with a spouse, live with their children, invite whomever they would like for dinner, decorate their own apartment and have overnight guests. (Tr. 251:11–18 (Tsemberis).) They have the same privacy rights and freedoms as any other tenant in a landlord-tenant relationship (Tr. 2160:1–4 (Newman)), including the keys to their own apartment (Tr. 251:19–21 (Tsemberis)).
202. Residents of supported housing live and receive services in integrated settings. (Tr. 654:22–655:9 (Rosenberg); Tr. 2915:10–2916:4 (Kaufman) (“As a whole, I believe that people in supported housing are participating or feel more integrated in the community than those that are in group homes.”).) Compared to Adult Home residents, residents of supported housing have far greater opportunities to interact with nondisabled persons and be integrated into the larger community. (Tr. 653:21–655:8 (Rosenberg); Tr. 482:12–487:4 (G.L.) (supported housing resident describing the guests and family members who have visited, as well as the barbecues and holiday dinners he has prepared for guests in his own home).) As Michael Newman, Director of OMH’s
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Bureau of Housing Development and Support, acknowledged, supported housing provides “maximum opportunities” for community integration. (Tr. 2162:17–21.) III. DAI Has Demonstrated That Virtually All Adult Home Residents
Meet the Essential Eligibility Requirements of Supported Housing 203. The ADA and RA provide that individuals with disabilities are entitled to receive services in the most integrated setting that is “appropriate” to their needs. 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(a). In Olmstead, the Supreme Court held that a setting is “appropriate” for individuals if those individuals meet the “essential eligibility requirements for habilitation in a community based program.” 527 U.S. at 603; see also Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 331 (E.D.N.Y. 2009). As the Court noted in its Memorandum & Order denying summary judgment, “[n]ot every eligibility requirement is an ‘essential eligibility requirement.’” Disability Advocates, 598 F. Supp. 2d at 333 (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001). 204. DAI’s constituents meet the essential eligibility requirements of supported housing. The evidence at trial demonstrated that defendants expect New York’s supported housing programs to serve individuals with serious mental illness who have a wide range of support needs—including individuals transitioning directly from institutional settings. (See supra ¶¶ 40, 43, 48-49, 52-58, 62.) The evidence at trial further demonstrated that the supports that Adult Home residents would need to live independently are well within the capabilities of New York’s supported housing providers to accommodate; indeed, many of DAI’s constituents would need minimal supports or none at all. (See supra ¶¶ 42, 67, 80-84, 87.) 205. DAI’s evidence on this issue included:
• The conclusions of DAI’s three experts, after extensive investigations that included interviews with hundreds of
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residents and the review of hundreds of mental health records, that virtually all Adult Home residents could be served in supported housing (see supra ¶¶ 7, 88, 93, 99, 106);
• The testimony of OMH’s own former Senior Deputy Commissioner agreeing with the conclusions of DAI’s experts that virtually all Adult Home residents could be appropriately served in supported housing (see supra ¶¶ 42, 163);
• OMH’s own supported housing RFPs targeting the very institutionalized individuals—including Adult Home residents themselves—that defendants claim cannot be served in supported housing (see supra ¶¶ 35, 46, 53);
• Numerous responses to these RFPs by supported housing providers indicating that these providers are willing and able to serve individuals needing a wide variety of supports relating to managing their illness and learning independent living skills (see supra ¶¶ 36, 45, 46, 120, 121; see infra ¶¶ 208, 227);
• The successful transition of 60 Adult Home residents into supported housing by OMH (when required to do so by the legislature) (see supra ¶¶ 46, 129);
• Testimony to the legislature by the Commissioner of OMH and testimony at trial by OMH’s former Senior Deputy Commissioner that OMH has abandoned the “linear continuum” model that requires institutionalized individuals to transition through gradually less restrictive forms of housing before moving to supported housing (see supra ¶¶ 33-39.);
• The findings of the Assessment Project—a study commissioned by defendants—that Adult Home residents are not a particularly disabled population and that few residents would be opposed to moving to more integrated settings (see DAI’s PFF ¶¶ 91–98);
• The recommendation of the Adult Care Facilities Workgroup Report, in a 2002 report significantly shaped by defendants, that 6,000 Adult Home residents be moved to more integrated settings (see supra ¶ 225);
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• Dr. Tsemberis’s testimony that his Pathways to Housing program routinely and successfully serves individuals needing all manner of supports, and, that Pathways does not regard many of the independent living issues cited by defendants as absolute barriers to independent living to be “difficult issues” to resolve (see supra ¶¶ 37, 47, 49, 53, 55, 58, 66, 124).
206. This evidence demonstrates overwhelmingly that DAI’s constituents meet the essential eligibility requirements to be served in supported housing.
A. Providing DAI’s Constituents With Meaningful Access to Supported Housing Will Not “Change the Nature of Supported Housing”
207. In response to this overwhelming evidence that virtually everyone in an Adult Home could be served appropriately in supported housing, defendants nevertheless maintain that DAI is somehow seeking to “change the nature of supported housing.” (Defs.’ PFF ¶¶ 191–92.) In support of that contention, defendants rely on the testimony of (a) a handful of mental health providers that apparently still employ the “linear continuum” housing model despite its abandonment by OMH, (b) the self-serving testimony of their own employees, and (c) a written description of supported housing by a third party, CUCS. (Id. ¶¶ 53, 54, 57, 58.)
208. None of defendants’ evidence comes close to demonstrating that the relief requested by DAI would somehow change the nature of supported housing. The numerous RFP responses in evidence demonstrate that the “linear continuum” approach apparently employed by the three mental health providers called by defendants is not shared by other supported housing providers. The testimony of defendants’ OMH witnesses that supported housing cannot serve individuals from institutions was contradicted by OMH’s own documents, particularly the various RFPs, which all acknowledge that individuals served in supported housing need “varying” levels of
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support (including, for some, ACT or intensive case management). (See supra ¶ 45.) The testimony of the OMH witnesses was also premised on their assumption that Adult Home residents would need extremely intensive supports, when in fact most would not. Finally, with regard to the CUCS documents purporting to describe supported housing, not only are those documents inconsistent with OMH’s own descriptions of supported housing, defendants’ own witness, Kathleen Kelly of HRA, testified that HRA does not rely on CUCS eligibility criteria in reviewing applications for supported housing. (Tr. 1892:21–1893:23.)
B. DAI’s Experts Used A Rigorous and Reliable Methodology to Determine That Virtually All Adult Home Residents Could Move
209. Defendants also argue that DAI has not established that its constituents are qualified for supported housing because DAI’s experts did not conduct in-person clinical examinations of each of DAI’s constituents to determine whether each is eligible for supported housing. (Defs.’ PFF ¶¶ 69, 85, 89, 91, 92, 95, 196–200.)
210. This Court has already rejected defendants’ argument that DAI’s experts were required to conduct in-person clinical assessments of each Adult Home resident. In its Memorandum & Order denying defendants’ motion to exclude DAI’s experts, the Court held that a clinical assessment was not a necessary requisite for any experts’ opinion and found that each of DAI’s experts’ opinions was “based on substantial experience, sufficient facts and data, and reliable methodologies.” See Disability Advocates, Inc. v. Paterson, No. 03-cv-3209 (NGG) (MDG), 2008 WL 5378365, *3 (E.D.N.Y. Dec. 22, 2008); id. at *5 (“That [Dr. Duckworth] did not conduct a clinical examination of each patient does not render his methodology unreliable or his opinion inadmissible.”); id. at *6 (“Mr. Jones’s failure to conduct or order a clinical assessment of
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each adult home resident does not render his testimony inadmissible”); id. at *9 (Ms. Jones’ analysis was reliable without having performed clinical assessments because an assessment does not address “whether or not an adult home resident is capable of living in alternative housing; rather, it addresses what individualized planning and support an individual would need upon moving to alternative housing”).)
211. The evidence at trial demonstrated that not only were DAI’s experts’ methodologies on this issue reliable, they in fact produced credible and persuasive results. In-person clinical assessments are unnecessary to determine whether an individual could be served in supported housing. As DAI’s expert Dr. Duckworth explained, because supported housing is capable of serving people with a wide range of support needs, the applicable analysis for determining whether someone qualifies for supported housing is to screen individuals for specific “stop signs,” such as dementia or nursing needs, that would require further investigation before placing the individual in a supported apartment. (Tr. 812:3–813:15, 907:9–10 (Duckworth).) Clinical assessments would then be used after the individual was admitted to supported housing to determine the precise mix of supports that would be necessary for that individual. (Tr. 944:24– 945:1.) DAI’s other experts confirmed that this was the correct approach to assessing residents for supported housing.
212. Dr. Duckworth in fact performed this analysis on the roughly 270 records that he reviewed as part of his investigation, and found that very few Adult Home residents’ records contained such “stop signs.” (Tr. 813:14–814:2.) Defendants attempt to attack Dr. Duckworth’s analysis by arguing that the first 70 records that Dr. Duckworth reviewed were records from the Adult Homes and not records of the
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individual’s mental health provider. (See Tr. 888:2–889:5.) Dr. Duckworth explained, however, that those Adult Home records included sufficient information to determine whether any “stop signs” were present. (Tr. 889:15–24.) Defendants also fail to mention that, in addition to those 70 records, Dr. Duckworth also reviewed all of the allegedly superior mental health records that Dr. Geller reviewed and concluded that each of those individuals could also be served in supported housing as well. (S-149 (Duckworth R. Report) at 3.)
213. Defendants’ assertion that DAI cannot determine whether its constituents are qualified for supported housing without doing clinical assessments also seeks to hold DAI to a higher standard than that to which defendants hold themselves. The evidence at trial established that OMH does not perform clinical assessments of individuals to determine their eligibility for supported housing. HRA relies entirely on written information provided to them by the referring agency to determine whether an individual is eligible for supported housing; no in-person clinical assessment is conducted. (See Tr. 1902:16–25 (Kelly).) OMH’s most recent RFP for supported housing describes an “inreach” process in which individuals are assessed to determine the necessary supports after they are accepted into the program (P-748 (2009 RFP at 2.) Even defendants’ own expert, Dr. Geller, did not perform such assessments before opining on whether DAI’s constituents could live in supported housing. (Tr. 2379:20–2380:5.)
214. Finally, although defendants assert that “it is impossible to know whether an individual can live safely in a particular type of housing without knowing what supports the person would need,” they make no effort to explain why this is so. (See Defs.’ PFF ¶ 196.) DAI’s experts determined, after rigorous investigation, that the
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supports needed by Adult Home residents are well within the range of what is currently offered by New York’s supported housing providers. DAI has thus demonstrated that all residents could live “safely” in supported housing. It is not DAI’s burden to go further and assess the specific supports that each resident would need in order to be served in supported housing; that is a job for the supported housing provider once the resident is placed.
215. In short, the methods employed by DAI’s experts in assessing Adult Home residents—which included reviewing hundreds of medical records, interviewing hundreds Adult Home residents, and analyzing data regarding over 2,000 residents’ cognitive abilities and needs for support—formed a reliable basis for their conclusions that virtually all Adult Home residents could be served in supported housing.
C. DAI Is Not Required To Show That Each of its Constituents Has Been Deemed Eligible for Supported Housing by A Treatment Provider
216. Defendants next claim that, no matter how persuasive DAI’s evidence that virtually all Adult Home residents could be served in supported housing, the Court must disregard it because Olmstead requires DAI to show that each of its constituents have been determined to be eligible for supported housing by a “treatment provider.” (Defs.’ PFF ¶¶ 195, 201–202.)
217. That is not the law. Olmstead holds that a state “generally may rely on the reasonable assessments of its own professionals” in determining whether an individual is qualified. Olmstead, 527 U.S. at 602. Olmstead contains no requirement, however, that a plaintiff alleging discrimination under the ADA present evidence that he or she has been assessed by a “treatment provider” and found eligible to be served in a more integrated setting. See Joseph S. v. Hogan, 561 F. Supp. 2d 280, 291 (E.D.N.Y. 2008)
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(holding that no eligibility determination from “state’s mental health professionals” is required and that “it is not clear whether Olmstead even requires a specific determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting”); see also Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 540 (E.D. Pa. 2001) (finding that Olmstead does not require a formal recommendation from a treatment provider for community placement); Long v. Benson, No. 4:08v26-RH/WCS, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) (rejecting State’s argument that state professional should determine who in the plaintiff class is qualified to be served in integrated settings).
218. “Olmstead does not allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Frederick L., 157 F. Supp. 2d at 540; see also Long, 2008 WL 4571904, at *2 (“[The State] cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.”).
219. Yet here, defendants’ position that the ADA applies to an Adult Home resident only if that resident’s “treatment provider” determines that the individual is qualified to receive services in a more integrated setting would render the ADA effectively inapplicable to Adult Homes. The evidence at trial established that OMH considers Adult Homes to be permanent placements and is focused almost exclusively on improving services in the Adult Homes rather than helping residents leave. The evidence further established that the for-profit Adult Homes (and the treatment providers employed
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by them) have no incentive—and in fact make little effort—to assist people in moving to alternative housing. To hold under these circumstances that the ADA does not apply to Adult Home residents who are concededly qualified for supported housing simply because those residents have not obtained an eligibility determination from their “treatment provider” would essentially reward defendants for the very failures that necessitated this lawsuit in the first place. Simply put, if the ADA’s integration mandate is to have any meaning at all in this context, defendants’ proposed “treatment provider” requirement must be rejected.
D. DAI’s Experts Gave Credible and Persuasive Testimony Based on Reliable Data and Methodologies
220. Finally, defendants claim that DAI’s experts should not have relied upon the Assessment Project data or the Workgroup Report, and in general did not give credible testimony. Defendants’ arguments should be rejected.
221. Defendants first attack DAI’s reliance on the Assessment Project, which found that Adult Home residents were not a seriously impaired population and had relatively few difficulties with activities of daily living. In claiming that the Assessment Project “was never intended to be used to assess housing and support needs for adult home residents,” defendants mischaracterize the testimony of Dr. Bruce as well as their own employees. Dr. Bruce specifically testified in her deposition that one of the purposes of the Assessment Project was to “screen for residents who might benefit from” a change in housing and that this view was shared by DOH officials. (P-583 (Bruce Dep.) 66:21–67:10.) Dr. Bruce’s liaison at DOH, Glenn Liebman, agreed that much of the data collected by the Assessment Project was directly relevant to the question of
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whether the individual could live in an a more integrated setting. (E.g., P-555 (Liebman Dep.) 25:19–26:9.)
222. Defendants next claim that there were “serious flaws and limitations” to the Assessment Project (see Defs.’ PFF ¶ 203), despite the fact that defendants themselves helped design the housing portion of the survey instrument (see DAI’s PFF ¶ 88). Indeed, Dennis Jones described the Assessment Project data as “a very rich set of data, frankly better than you get in most decision-making projects, where you really knew something about the psychiatric history.” (Tr. 1172:1–1173:2.)
223. Defendants point to some “limitations” of the Assessment Project data identified by Dr. Groves in his testimony, such as the fact that the surveyors were strangers to the residents and that some residents may have underreported substance abuse issues. But Dr. Groves in fact confirmed that overall he felt that the survey data was reliable:
At one point, I sat down and said: What are all of the possible issues around the Columbia Presbyterian data? And I made a list. And those, those were the items that I thought about. In terms of the analysis we did and the data we used, do I think that that, those limitations significantly affected that analysis in the data? The answer is no. (Tr. 3095:25–3096:6 (emphasis added).) 224. Defendants also point to Dr. Geller’s argument that the Assessment Project did not provide an accurate cross-section of Adult Home residents. (Defs.’ PFF ¶ 203.) Dr. Geller is mistaken. The Assessment Project surveyed over 2,000 Adult Home residents and had a response rate of 74%. (P-583 (Bruce Dep.) 73:3–16.) The large number of residents surveyed and very high response rate make it highly unlikely that the data is skewed. Even if, as Dr. Geller posits, the non-responding residents were,
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on average, more disabled than the responding residents, the effect on the overall percentages would be small. But in fact, Dr. Geller acknowledged that some of those whom the assessment missed were probably “on their own going places” and would therefore likely be less disabled that the individuals who participated in the Assessment. (Tr. 2333:2–11.)
225. Next, defendants try to disown their own Workgroup Report, arguing that the Report’s proposal that 6,000 individuals be moved to more independent housing is “not based on sufficient data” to be reliable. DAI’s experts, however, have never endorsed the Workgroup’s “6,000” figure, which no one disputes was not based on quantitative data (as defendants had never collected any). Rather, the Workgroup Report is probative because it is shows that a group of accomplished New York experts on mental health chosen by defendants and working diligently over a year-long period with a large staff provided by defendants, unanimously concluded that there were large numbers of Adult Home residents that could be more appropriately served in more integrated settings. This is precisely the light in which DAI’s experts considered it. (See supra ¶ 119.)
226. Finally, defendants allege that DAI’s experts are not credible because they started with the “assumption” that virtually anyone can live in supported housing and because “[DAI’s] counsel . . . influenced their conclusions.” (Defs.’ PFF ¶ 205.) Both of these assertions are untrue.
227. DAI’s experts “assumed” nothing about the nature of supported housing in New York. Rather the evidence shows that they carefully considered the range of supports available in New York’s supported housing programs to reach the conclusion
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that the range of available supports was adequate to address the needs of the Adult Home population. DAI’s experts visited supported housing programs, met with ACT teams and supported housing residents, and—in stark contrast to Dr. Geller—reviewed the RFP responses of supported housing providers actually proposing to serve Adult Home residents and other institutionalized populations. (See supra, ¶ 121.)
228. Nor did DAI’s experts “assume” anything about the needs of Adult Home residents. Ms. Jones interviewed 179 residents in 23 different Adult Homes; Dr. Duckworth reviewed roughly 270 mental health records of Adult Home residents, including all of the records reviewed by Dr. Geller; Mr. Jones and Dr. Groves performed an analysis of data concerning the cognitive abilities, skills, and desires of over 2,000 Adult Home residents. (See generally supra, ¶¶ 94–118.) In short, the record reflects an exceedingly thorough and unbiased investigation by each of DAI’s experts.
229. Defendants’ allegation that DAI’s counsel somehow “influenced” the conclusions of DAI’s experts is categorically false. Ms. Jones’s outline in which she is alleged to have prejudged the issues in the case was written after Ms. Jones had already visited thirteen Adult Homes—five more than Dr. Geller would ever visit. (Tr. 192:9–22 (E. Jones).) Dr. Duckworth’s expression of support for DAI’s lawsuits was prompted solely by his revulsion at the conditions in adult homes reported by Clifford Levy in the New York Times and had nothing to do with his opinion on whether Adult Home residents are qualified for supported housing. (Tr. 947:19–948:1.) Moreover, the “changes” that Dr. Duckworth made to his report “after he discussed it with plaintiffs’ counsel,” were nothing more than an effort to “tighten up” the draft. (Tr. 944:10–13.) Finally, while Dr. Groves revised his algorithm for analyzing the Assessment Project
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data, he did so on the basis of a well-founded concern that the first algorithm was underrepresenting individuals who were willing and able to be served in supported housing. (Tr. 3093:10–3094:4.)
230. In short, DAI has met its burden to establish that its constituents meet the essential eligibility requirements for supported housing. IV. Defendants Have Not Reasonably Accommodated DAI’s Constituents
231. Defendants misread Olmstead to the extent they are suggesting that it recognizes a “reasonable accommodation” defense that is separate and distinct from the fundamental alteration defense. Olmstead states that a “reasonable accommodation” analysis requires “taking into account the resources available to the State and the needs of others with mental disabilities.” 527 U.S. at 607. Olmstead makes clear, then, that in order to demonstrate “reasonable accommodation,” defendants must show either compliance with the integration mandate of Olmstead or that the relief requested would require unreasonable modifications to the State’s programs, i.e. a fundamental alteration. Defendants cannot simply assert, as they try to do here, that they are making a good-faith effort to comply with Olmstead and call it a reasonable accommodation. See Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 158 (3d Cir. 2005) (“good faith intentions” insufficient).
232. Defendants nevertheless contend that they have “taken a number of steps that constitute a reasonable accommodation of any right the [Adult Home] residents may have to access supported housing.” (Def’s. PFF ¶ 207.) They point to the designation of residents as a target population for OMH housing, programs that teach “independent living skills,” and case managers who “discuss housing alternatives with residents.” (Id. ¶ 208.) These alleged efforts, however, cannot obscure the fact that defendants operate
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their mental health system in a manner that effectively excludes Adult Home residents from the vast majority of supported housing beds.
233. When OMH issues a Request For Proposals (“RFP”) for the development of new housing, it designates specific target populations to receive priority access to those beds. (Tr. 1927:16–1929:8 (Newman) (explaining the RFP process); see e.g., S-17 (2005 RFP).) Defendants’ policies ensure that any individual who is not a member of one of these target populations is highly unlikely to ever secure a bed. (See DAI’s PFF ¶ 176.)
234. The state did not designate Adult Home residents as a target population for supported housing until 2005. (Tr. 1534:16–22 (Madan); S-17 (2005 RFP).) Residents were therefore effectively excluded from all supported housing beds prior to 2005. (Tr. 1532:10–1534:22 (Madan).) Moreover, the priority designation of Adult Home residents in 2005 applied only to new beds being developed pursuant to that particular RFP; residents have continued to be excluded from all previously-developed beds, even as vacancies occur. Those beds remain exclusively accessible to members of priority populations enumerated in the RFPs under which the beds were created. (Tr. 2193:15– 2195:9 (Newman); Tr. 1534:18–22 (Madan).)
235. Even the designation of Adult Home residents as a priority population in 2005 has made very little difference in residents’ ability to access supported housing beds. The current supported housing vacancy rate is less than 2 percent (Tr. 1503:13–23 (Madan)), and applicants languish for years on housing providers’ “exorbitant waiting lists.” (Tr. 1874:11–20 (Dorfman).) When vacancies do occur, other target populations
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are routinely given higher priority that Adult Home residents. (Tr. 660:12–18, 662:6–18 (Rosenberg).)
236. The numbers place this reality in stark relief: It is undisputed that only twenty-one individuals with mental illness living in impacted Adult Homes were able to access supported housing from January 2002 through January 2006, and only 65 such individuals have secured any other type of OMH community housing. (Defs.’ PFF ¶¶ 111–12.) This rate of movement is strikingly low, particularly in light of the fact that more than 800 residents submitted HRA applications from January 2000 through January 2006. (Defs.’ PFF ¶ 108.)
237. While defendants seek to claim credit for “facilitat[ing] access” to the 60 supported housing beds allocated to Adult Home residents by the legislature (Def’s. PFF ¶ 208), this allocation was imposed on defendants, who have no intention of pursuing similar set-asides in the future. (See supra ¶ 130.) The fact that 45 residents have moved to supported housing since the 60-bed initiative began less than two years ago, with an additional 15 residents in the process of moving (see DAI’s PFF ¶ 120), demonstrates that without a specific allocation of beds to DAI’s constituents, none of defendants’ other “reasonable accommodations” will make a difference.
238. As DAI’s expert, Dennis Jones, explained with respect to the OMHfunded case management program that exists in 11 Adult Homes,
[U]nless you have a systemic initiative here that moves to create significant numbers of supported housing slots into which people can go and there is a clear organizational commitment to make that happen up and down the line, no individual case manager is going to do anything more than what I think they have been doing, which is doing the best they can, without any commitment. And that translates into the status quo.
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(Tr. 1172:1–1173:2 (D. Jones).) 239. Similarly, defendants’ attempt to claim credit for programs that “teach
independent living skills” to DAI’s constituents is also belied by the evidence. The programs that Adult Home residents attend often have little focus on skill development, and to the extent that these programs do aim to teach independent living skills, residents have little or no opportunity to practice those skills in their present living situation. (See supra ¶¶ 29-31.)
240. Perhaps more importantly, teaching residents independent living skills does little to ensure that they can receive services in more integrated settings if such settings are not available to them. Defendants ignore the plain meaning of Olmstead: public entities are required to make reasonable modifications to their service systems to enable individuals with disabilities to receive services in integrated, community-based settings. In other words, the type of reasonable modification required by Olmstead is the opportunity to live and receive services in the most integrated setting appropriate, not merely to learn independent living skills or discuss housing alternatives. V. DAI’s Proposed Relief Would Not Fundamentally Alter the State’s Programs
241. Defendants have failed to meet their burden to demonstrate that the relief proposed by DAI would be a fundamental alteration of the State’s programs.
A. Defendants’ Fundamental Alteration Defense Fails Because They Have Made No Genuine Attempt to Comply with the Integration Mandate
242. As this Court previously held, a state must make efforts to comply with the integration mandate in order to show that the specific relief requested would be too costly. Disability Advocates, 598 F. Supp. 2d at 339. Defendants argue that the Court should not order the relief sought by DAI because their “‘Olmstead plan’ is sufficient”
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(Defs.’ PFF ¶ 235), and cite cases following Olmstead that hold that, when a state has developed a comprehensive, effective plan to provide services in integrated settings, a court should not interfere with the state’s administration of its service system and allocation of resources (Defs.’ PFF ¶¶ 212–215 (citing Sanchez v. Johnson, 416 F.3d 1051, 1067–68 (9th Cir. 2005) (“[W]hen there is evidence that a State has in place a comprehensive deinstitutionalization scheme, which, in light of existing budgetary restraints and the competing demands of other services that the State provides, including the maintenance of institutional care facilities, . . . is ‘effectively working,’ . . . the courts will not tinker with that scheme.”); ARC of Wash. State, Inc. v. Braddock, 427 F.3d 615, 620 (9th Cir. 2005) (“So long as states are genuinely and effectively in the process of deinstitutionalizing disabled persons ‘with an even hand,’ we will not interfere.”))).
243. Contrary to Sanchez and ARC of Washington, however, the defendants here have not developed—and indeed deny that they are required to develop—a genuine or effective plan or commitment to enable DAI’s constituents to move to less restrictive settings. In Sanchez and ARC of Washington, the defendants had demonstrated a genuine commitment to a plan that actually included the plaintiffs in those cases. In Sanchez, the plaintiffs were individuals with disabilities residing in institutional facilities called developmental centers. Sanchez, 416 F.3d at 1066. Defendants in Sanchez had developed individualized community placement plans to move individuals residing in developmental centers to community residential settings. Id. at 1064–1066. The plans included the identification of supports required by residents to live in the community. Id. at 1065. Additionally, the defendants had reduced the percentage of developmentally
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disabled persons living in developmental centers from 6% of the developmentally disabled population to 2% of the developmentally disabled population. Id. at 1066.
244. In stark contrast to Sanchez, the defendants here have not developed a plan to move DAI’s constituents from Adult Homes to community-based settings, and there has been no reduction in the percentage of mentally ill people receiving services in Adult Homes. Moreover, in Sanchez, the State developed individualized community placement plans that, among other things, identified supports necessary to enable the residents to live successfully in the community. See id. at 1064–65. Here, the State concedes that no one is doing any such assessments and argues that it would be a fundamental alteration to implement them.
245. Similarly, in ARC of Washington, defendants had implemented a plan to enable persons in the plaintiff class of developmentally disabled persons to move to the community, including maintaining a waiting list and ensuring that vacancies in community based programs were available to all eligible disabled persons based solely on their mental health needs and position on the waiting list. 427 F.3d at 617, 622. The defendants had also reduced the census of the institutions in which plaintiffs were receiving services. Id. Here, defendants have failed to implement a waiting list, and continue to facilitate the referrals of people with mental illness to Adult Homes.
246. Unlike here, the actions taken by defendants in Sanchez and ARC of Washington actually applied to the plaintiffs at issue in those cases. In this case, the State has disavowed any obligation to develop a plan to enable Adult Home residents to move to more integrated settings and has evidenced a commitment to the continued use of Adult Homes as a service setting for persons with mental illness. (See supra ¶¶ 134; see
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also DAI’s PFF ¶ 169; see also Defs.’ PFF ¶ 238 (arguing that if “Olmstead were to be expanded to require a ‘plan’ for adult home residents, the fundamental alteration defense would logically need to be modified . . . .) Accordingly, there can be no serious dispute that defendants have no plan for Adult Home residents, much less a plan that is sufficient. See Pa. Prot. & Advocacy, Inc., 402 F.3d at 383 (finding that admissions made by defendant during litigation that it did not require planning for community-based services for the residents of the facility at issue “foreclose[d] the genuine contention that it ha[d] made a commitment to . . . compliance with the ADA and RA).
247. Defendants also argue that this Court should reject the Third Circuit’s definition of an integration plan under Olmstead. The Third Circuit, however, appropriately applied the standard set forth by the Supreme Court in Olmstead. In Olmstead, the Supreme Court held that an integration plan must be “comprehensive,” “effectively working” and contain “a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 605–606. In other words, as the Third Circuit held, “general assurances” and expression of “good faith intentions” are not enough. Frederick L., 422 F.3d at 158. 2005). There must be “a plan that adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization” for which defendants “may be held accountable.” Id. at 157. Any less specific standard would render the requirement of a plan meaningless. Defendants’ activities fall short of the standards set forth in Olmstead and all of the circuit courts interpreting Olmstead. Far from articulating even a “general assurance,” the defendants have rejected the notion that an integration plan of any kind is required for DAI’s constituents and have evidenced a continued commitment to
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maintaining the status quo reliance on Adult Homes as service settings. Because defendants have not developed a plan to enable Adult Home residents to move to less restricted settings, they cannot establish that compliance with the integration mandate would be a fundamental alteration of their mental health service system.
B. Defendants Failed to Prove That the Cost of the Relief Would Amount to a Fundamental Alteration
248. The State has the burden of proof to show by a preponderance of the evidence that the increase in cost of the proposed relief, if any, would amount to a fundamental alteration. Here again, defendants fail to meet their burden of proof. The relevant budget for purposes of analyzing the cost of DAI’s proposed relief is the “mental health budget,” which “includes the budgets of OMH, DOH (which includes the Medicaid program), and other State expenditures on individuals with mental illness”— essentially, “any money the State receives, allots for spending, and/or spends on mental health services and programs.” Disability Advocates, 598 F. Supp. 2d at 349. Defendants concede that the relevant budget for purposes of evaluating their fundamental alteration defense is the State’s mental health budget. (Defs.’ PFF ¶ 97 (citing Bryson v. Stephen, 2006 U.S. Dist. LEXIS 71775, at *22 (D.N.H. Sept. 29, 2006); Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 493 n.6 (3d Cir. 2004); Bruggeman v. Blagojevich, 219 F.R.D. 430, 435 (N.D. Ill. 2004)).)
249. When the State’s entire mental health budget is considered, it is clear that serving persons with mental illness in Adult Homes is more expensive than serving them in supported housing. See supra, Section V. The cost analysis is simple and straightforward. The evidence also shows that if the State were to serve current Adult Home residents in supported housing rather than in Adult Homes, some of the money that
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is currently being expended in Adult Homes could be redirected to serve those residents in supported housing (see DAI’s PFF ¶¶ 215–26); the remaining money could be put to use on other community services.
250. The State cites a number of cases that attempt to muddy the waters on this issue. For example, defendants cite Frederick L., 364 F.3d at 497, for the proposition that the State’s budget process is “beyond judicial scrutiny,” implying that this Court is somehow hamstrung from effecting relief out of deference to the State budgetary process. (Defs.’ PFF ¶ 97.) In Frederick L., however, plaintiff/appellants sought an order requiring the state agency to request money in its budget for “the full amount necessary to fund all of the community placements requested.” Id. The state agency successfully proved, however, that it would not have been able to do so because of requirements in the budget process. Id. The Third Circuit reasonably found that it could not “require the agency to request[] additional funding beyond that which it was permitted under the Governor’s guidelines.” Id. DAI has not requested that remedy, so this holding is not on point. Moreover, the state budgetary process may not trump the court-ordered measures necessary to remedy defendants’ violations of the ADA. See Ass’n of Surrogates v. New York, 966 F. 2d 75, 79 (2d. Cir. 1992) (holding that “state budgetary processes may not trump court-ordered measures necessary to undo a federal constitutional violation”).
251. Defendants also cite Frederick L. for the proposition that a court may not order a state to “shift[] funds from other programs to fund additional community placements.” (Defs.’ PFF ¶ 97.) Here again, defendants mischaracterize that case. Frederick L. does not bar the shifting of funds from one area of the budget to another. As the portion of the case quoted by defendants makes clear, what Frederick L. proscribes is
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“fund-shifting that would disadvantage other segments of the mentally disabled population.” 364 F.3d at 497 (emphasis added). Because the relief sought here could be accomplished by redirecting funds currently being spent on Adult Home residents in Adult Homes to serve those same persons in supported housing, it neither affects “other segments of the mentally disabled population” nor causes any “disadvantage.”
252. The State makes much of the fact that it, “along with the rest of the country, has [lately] experienced a significant economic crisis not seen since the Depression.” (Id.) The State avows that the economic crisis has “required OMH to make significant budget cuts” (id.), suggesting that the cuts would make it difficult to execute the proposed relief in this matter. In Frederick L., the Third Circuit, vacating the decision and remanding, agreed with plaintiffs “that states cannot sustain a fundamentalalteration defense based solely upon the conclusory invocation of vaguely defined fiscal constraints.” 364 F.3d at 496. Similarly, the Tenth Circuit held in Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1182–83 (10th Cir. 2003), that “the fact that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion” that providing the community services that plaintiffs sought would be a fundamental alteration. Id. (citing Townsend v. Quasim, 328 F.3d 511, 520 (9th Cir. 2003)). As the Fisher Court observed, Congress was clearly aware when it passed the ADA that “[w]hile the integration of people with disabilities will sometimes involve substantial short-term burdens, both financial and administrative, the long-range effects of integration will benefit society as a whole.’. . . If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.” Fisher, 335 F.3d at 1183.
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253. Defendants did not present any evidence showing a nexus between the current state of the economy and the specific relief DAI seeks.22 Indeed, because the evidence showed that the State’s cost would actually decrease if the DAI’s proposed relief were effected, defendants cannot prove their fundamental alteration defense on that ground.
C. DAI’s Constituents Can Be Served In Supported Housing Without Altering the Nature of the State’s Programs
254. In denying summary judgment to defendants, the Court held that “where individuals with disabilities seek to receive services in a more integrated setting—and the state already provides services to others with disabilities in that setting—assessing and moving the particular plaintiffs to that setting, in and of itself, is not a ‘fundamental alteration.’” Disability Advocates, 598 F. Supp. 2d at 335. Here, the evidence at trial established that defendants already fund supported housing programs that successfully serve individuals with the same support needs as DAI’s constituents. (See supra ¶¶ 36, 41-71.)
255. Defendants nevertheless assert that they cannot serve DAI’s constituents in supported housing without “altering the nature” of their programs. Defendants list five ways in which the relief sought by DAI would supposedly alter their current programs: (1) it would force defendants to create “a new program” to “assess and place” Adult Home residents in supported housing; (2) it would alter the purported “minimal needs” requirement of supported housing; (3) it would require the State to abandon its alleged
22 For example, Defendants state that 1673 “pipeline beds” have been “frozen” due to the economy (Defs.” PFF ¶ 128), but none of those beds are supported housing beds. (Tr. 1966.) Indeed, defendants issued an RFP to develop 230 supported housing beds shortly before this trial. (P-748.)
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“linear continuum” approach; (4) it would somehow prevent the State from considering the needs of other populations in need of mental health services; and (5) it would alter the nature of the ACT program. (Defs.’ PFF ¶¶ 230–34.)
256. Defendants apocalyptic predictions are simply not supported by the evidence. To the contrary, the evidence shows that DAI’s constituents could be appropriately served by the State’s existing supported housing program and require no more than meaningful access to programs defendants already have in place.
257. First, as noted above, the Court has already squarely rejected the proposition that the relief requested in this action could fundamentally alter the State’s programs merely because it would require defendants to “assess and place” Adult Home residents in a more integrated setting. Disability Advocates, 598 F. Supp. 2d at 335 (“assessing and moving” plaintiffs to integrated setting in which the state already provides services to others not a fundamental alteration). Indeed, the ADA requires defendants to conduct such assessments;23 defendants’ claim that assessments would fundamentally alter the State’s current programs is tantamount to an admission that it has no functioning Olmstead plan for Adult Home residents. See Frederick L., 157 F. Supp. 2d at 540 (“Olmstead does not allow the state to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.”). Moreover, defendants’ contention that they would have to “staff and fund” a “new program” to assess and place DAI’s constituents in supported housing does not even make sense: the evidence at trial showed that it is the supported housing providers, not the State, that assess which
23 See Olmstead, 527 U.S. at 605–06.
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supports individuals will need. (See, e.g., D-749 (2009 RFP) at 4 (supported housing provider must “identify/provide supports”); Tr. 1486:23–1487:10 (Madan) (applicants for supported housing must interview with the supported housing provider).)
258. Second, DAI has conclusively shown—most notably through OMH’s own RFPs—that OMH does not recognize a “minimal needs” requirement for supported housing, and to the contrary, often targets populations, such as long-term residents of psychiatric hospitals (see, e.g., P-749 (2009 RFP)), that are far more likely to have high support needs than Adult Home residents. (See supra ¶¶ 36.) Thus, the small number of DAI’s constituents who have significant support needs could be served in supported housing without any change to OMH’s current policies and practices.
259. Third, DAI has also conclusively shown that OMH has abandoned the obsolete “linear continuum” approach to serving individuals with serious mental illness. (See supra ¶¶ 34–40.) Rather than forcing individuals to transition through a series of gradually less restrictive transitional service settings, OMH has moved to a model of “long term” housing “linked to flexible services that can be increased or decreased as needed.” (See, e.g., P-590 (OMH 2008–2009 Executive Budget Recommendation Highlights Testimony) at 4.) Placing residents of Adult Homes directly into supported housing, rather than forcing them to transition through a “continuum of care” would not fundamentally alter current State policy and practice.
260. Fourth, defendants’ argument that, if relief is granted in this matter, it will prevent defendants from “consider[ing] the needs of all State residents with mental illness” is premised on a false dilemma. Defendants have failed to prove that serving Adult Home residents in supported housing would divert one penny from services
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currently provided to other needy populations. (See supra ¶¶ 150–174.) Moreover, the dismal numbers of Adult Home residents who have actually been able to move to supported housing (other than through the 60-bed initiative) under the current system shows that the system does not “consider” the needs of Adult Home residents at all; rather, it systematically excludes them from supported housing. (See supra ¶¶ 126–130.)
261. Finally, defendants assert that the relief sought by DAI would alter the “nature and eligibility requirements” of the ACT program. But the evidence showed that OMH’s statewide ACT guidelines contain broad eligibility criteria that would plainly cover any high-needs Adult Home residents (See supra ¶¶ 60–64.) Although OMH contended at trial that it uses “more stringent” eligibility criteria in New York City, OMH would hardly be fundamentally altering its programs merely by applying its own statewide guidelines in New York City. In any event, there is no evidence that large numbers of Adult Home residents would require ACT in order to be served in supported housing. In fact, the evidence is to the contrary. (See supra ¶¶ 165–168.) Moreover, there may well be Adult Home residents who would be qualified for ACT under the allegedly more stringent New York City guidelines. (See supra ¶ 64.)
262. In short, the evidence at trial demonstrated that New York’s supported housing providers successfully serve individuals just like DAI’s constituents every day. Defendants have failed to demonstrate that serving DAI’s constituents in supported housing would require significant changes to any of the State’s programs and services. VI. DOH and Commissioner Daines are Proper Defendants
263. Defendants DOH and DOH Commissioner Richard Daines should not be dismissed as parties. These defendants are necessary to afford DAI full relief with respect to its Olmstead claims. While defendants correctly note that DAI, in its summary
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judgment briefing, withdrew claims based on defendants’ failure to take adequate measures to redress poor conditions in impacted Adult Homes, DOH and Daines remain proper defendants for purposes of DAI’s Olmstead claims. DOH participates in the administration of the State’s service system for individuals with mental illness and controls the number of Adult Home beds certified by the State.
264. DOH is responsible for promoting the “development of sufficient and appropriate residential care programs for dependent adults.” 18 N.Y.C.R.R. §§ 485.3(a)(1), 487.1(b). As part of those activities, DOH issues operating certificates to establish and operate adult homes. 18 N.Y.C.R.R. § 485.3(a)(3). These operating certificates must be reissued at least every four years and may be revoked or suspended if the DOH determines that such an action is in the public interest because it would conserve resources. Id. § 485.5(m)(1)(i). DOH can use this authority to restrict the number of Adult Home beds to those “actually needed, after taking into consideration the total number of beds necessary to meet the public need, and the availability of facilities or services such as ambulatory, home care or other services which may serve as alternatives or substitutes for the services provided by . . . [an] adult home.” Id. § 485.5(m)(1)(i). To support the reallocation of resources from Adult Homes to supported housing, DOH may need to certify fewer Adult Home beds.
265. Additionally, a number of the activities required to effect relief in this case will occur in or require coordination with the Adult Homes, including, importantly, the in-reach and education of DAI’s constituents concerning supported housing. As DOH regulates the Homes, its participation in the relief is necessary to ensure these activities can be conducted appropriately. DOH’s participation may also be necessary in order to
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reallocate certain funds, such as QUIP money, from the Adult Homes in order to finance the relief. VII. The Court Has The Authority To Order The Injunctive Relief Requested
266. Appropriate consideration must be given to principles of federalism in framing equitable relief, and “remedies that intrude unnecessarily on a state’s governance of its own affairs should be avoided.” Schwartz v. Dolan, 86 F.3d 315, 319 (2d Cir. 1996). This is so because unnecessarily detailed remedial orders may inject federal courts into the business of “regulating a state’s administration of its own facilities,” and courts are ill-equipped “for formulation and day-to-day administration of detailed plans designed to assure [compliance with the law].” Dean v. Coughlin, 804 F.2d 207, 213–14 (2d Cir. 1986).
267. Nevertheless, when discrimination has been shown, the Court has a duty to act and “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Milliken v. Bradley, 433 U.S. 267, 281 (1977) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971), see also Ass’ of Surrogates, 966 F.2d at 9. The remedy “must be designed as nearly as possible to restore victims of discrimination to the position they would have occupied” absent the discrimination. Milliken, 433 U.S. at 280 (citing Swann, 402 U.S. at 746); see also Todaro v. Ward, 565 F.2d 48, 54 n.7 (2d Cir. 1977) (stating that courts have broad discretion to fashion equitable relief that is commensurate with the scope of the violation).
268. A remedial order must therefore “strike a balance between the court’s obligation to identify and take steps toward the elimination of constitutional [or statutory] violations” and the state’s right to administer its own facilities or systems; the state
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should be given responsibility to devise and carry out a plan to come into compliance in the manner directed by the court.” Dean, 804 F.2d at 214.24
269. The relief in this case strikes the appropriate balance. It identifies the essential elements necessary to afford relief to DAI’s constituents: (1) a timeframe for ensuring that all of DAI’s constituents are afforded supported housing if they are qualified for it and desire it; (2) a minimum number of supported housing beds to be developed for DAI’s constituents; (3) a requirement that DAI’s constituents be treated as qualified for supported housing unless they have certain characteristics; and (4) identification of several issues to be addressed by the plan, including selection of supported housing providers to develop housing and conduct in-reach to Adult Home residents, education of DAI’s constituents concerning supported housing, regular review of the housing preferences of DAI’s constituents, a description of each defendant’s responsibilities, and timelines for accomplishing tasks. (See DAI’s PFF ¶¶ 297–98.) Under DAI’s requested relief, defendants are required to report certain basic information on a regular basis to a Special Master, who will monitor defendants’ compliance. (Id. ¶¶ 299–302.) These elements of the relief are necessary to remedy defendants’ past discrimination as well as its present effects, such as the “learned helplessness” and lack of confidence experienced by many of DAI’s constituents as a result of prolonged institutionalization.
270. The relief is needed—and appropriately tailored—to ensure that DAI’s constituents have a meaningful opportunity to receive services in the most integrated
24 Dean v. Coughlin involved preliminary injunctive relief, and the court noted that it would expect a remedial order “issued after a full-scale lengthy trial to be more detailed than a preliminary injunction.” 804 F.2d at 214.
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setting appropriate to their needs. DAI’s requested relief leaves it up to the defendants, however, to determine how best to accomplish these goals in light of their expertise. Under DAI’s requested relief, defendants will propose the measures that they believe are most appropriate to implement in light of their expertise—for example, the process for selecting providers to develop supported housing and to conduct in-reach to DAI’s constituents, the process for working with Adult Home operators to conduct in-reach, the process of selecting residents for supported housing targeted to DAI’s constituents, and the process of reviewing the housing preferences of DAI’s constituents.
Conclusion 271. For the forgoing reasons, DAI respectfully requests that the Court adopt in their entirety the Proposed Findings of Fact and Conclusions of Law of Plaintiff Disability Advocates, Inc. Dated: July 22, 2009
Respectfully submitted,
By: ____/__s_/__A_n__n_e__S_.___R_a_i_s__h________
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Andrew G. Gordon Anne S. Raish Sandra Sheldon Jonathan R. Bolton Gayle S. Gerson Liad Levinson Francine N. Murray araish@paulweiss.com 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000
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- and -
DISABILITY ADVOCATES, INC. Cliff Zucker 5 Clinton Square, 3rd floor Albany, NY 12207 (518) 432-7861
BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Burnim* Jennifer Mathis* 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
NEW YORK LAWYERS FOR THE PUBLIC INTEREST John Gresham 151 West 30th Street, 11th floor New York, NY 10001-4007 (212) 244-4664
MFY LEGAL SERVICES, INC. Jeanette Zelhof Kevin M. Cremin 299 Broadway, 4th floor New York, NY 10007 (212) 417-3700
URBAN JUSTICE CENTER Charlyne M. Brumskine Peay 123 William Street, 16th floor New York, NY 10038 (646) 602-5667
Attorneys for Plaintiff
* admitted pro hac vice
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10-235-cv(L)

10-251-cv(CON), 10-767-cv(CON), 10-1190-cv(CON)
To Be Argued By: Patricia A. Millett
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT

Disability Advocates, Inc. and United States of America,
Plaintiffs-Appellees,

against

New York Coalition for Quality Assisted Living, Inc. and Empire State Association of Assited Living,
Movants-Appellants, and (caption continued on inside front cover)

On Appeal from the United States District Court for the Eastern District of New York in Civil Action No. 03-cv-3209
BRIEF FOR NEW YORK COALITION FOR QUALITY ASSISTED LIVING, INC.

Patricia A. Millett Akin Gump Strauss
Hauer & Feld LLP
1333 New Hampshire Ave., NW Washington, D.C. 20036 202-887-4000

Steven M. Pesner Robert H. Pees James P. Chou Christopher M. Egleson Akin Gump Strauss
Hauer & Feld LLP
One Bryant Park New York, New York 10036 212-872-1070

Attorneys for New York Coalition for Quality Assisted Living, Inc.

Case: 10-235 Document: 211 Page: 2 07/23/2010 75168 93
David A. Paterson, in his official capacity as Governor of the State of New York, Richard F. Daines, in his official
capacity as Commissioner of the New York State Department of Health, Michael F. Hogan, in his official capacity as
Commissioner of the New York State Department of Mental Health, New York State Department of Health and New York
State Office of Mental Health,
Defendants-Appellants.

Case: 10-235 Document: 211 Page: 3 07/23/2010 75168 93
TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................................................................... iii JURISDICTION.........................................................................................................1 ISSUES PRESENTED FOR REVIEW .....................................................................2 STATEMENT OF THE CASE...................................................................................3 FACTS........................................................................................................................5
A. Legal Framework ..................................................................................5 B. Factual Background...............................................................................7 SUMMARY OF ARGUMENT................................................................................15 STANDARDS OF REVIEW ...................................................................................18 ARGUMENT ...........................................................................................................18 I. THE COALITION WAS ENTITLED TO INTERVENE AT
THE REMEDIAL STAGE. .................................................................18 A. The Coalition’s Substantial Interest in the Litigation, the
Absence of Adequate Representation, and the Relative Timeliness of the Motion Warranted Intervention....................18 1. The Coalition’s Legal Interests Are Direct and
Substantial.......................................................................19 2. The Coalition’s Interests Were Not Adequately
Represented.....................................................................22 3. The Motion Was Timely .................................................24 B. Permissive Intervention Was Also Warranted...........................27 II. THERE IS NO JURISDICTION BECAUSE DAI LACKS STANDING .........................................................................................28 A. DAI Has No Legal Rights at Stake ...........................................28 B. DAI Lacks Associational Standing ...........................................29 1. DAI Lacks Members and Is Not Controlled by the
Individuals Whose Rights It Asserts...............................30 2. DAI’s Litigation Can Hurt Its “Constituents” ................36 3. The Claims Asserted Require Individual
Participation ....................................................................40
i

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III. THE ADA DOES NOT REQUIRE MASSIVE EXPANSION AND RECONFIGURATION OF THE STATE’S SUPPORTED-HOUSING PROGRAM ..............................................45 A. Treatment Professionals Reasonably Determined That Adult Home Placement Was Appropriate .................................46 B. Sufficient Evidence of the Preferences of Individuals With Disabilities Was Lacking..................................................51 C. The Judgment Impermissibly Results in the Fundamental Alteration of State Services.......................................................52
CONCLUSION ........................................................................................................61 ADDENDUM
U.S. Const. art. III.........................................................................Addendum 1 Americans with Disabilities Act
42 U.S.C. § 12101 .................................................................................3 42 U.S.C. § 12102 .................................................................................3 42 U.S.C. § 12131 .................................................................................5 42 U.S.C. § 12132 .................................................................................6 42 U.S.C. § 12133 .................................................................................7 42 U.S.C. § 12134 .................................................................................7 Rehabilitation Act 29 U.S.C. § 794 .....................................................................................8 Protection & Advocacy for Individuals with Mental Illness Act 42 U.S.C. § 10801 ...............................................................................10 42 U.S.C. § 10802 ...............................................................................10 42 U.S.C. § 10803 ...............................................................................11 42 U.S.C. § 10804 ...............................................................................11 42 U.S.C. § 10805 ...............................................................................12 42 U.S.C. § 10806 ...............................................................................14 42 U.S.C. § 10807 ...............................................................................14 Attorney General Regulations 28 C.F.R. § 35.130...............................................................................16 Fed. R. Civ. R. 24 ..........................................................................................19
ii

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TABLE OF AUTHORITIES
CASES Amchem Prods. Inc. v. Windsor,
521 U.S. 591 (1997) .............................................................................................39 American Council of the Blind v. Paulson,
525 F.3d 1256 (D.C. Cir. 2008) ............................................................................53 American Legal Found. v. FCC,
808 F.2d 84 (D.C. Cir. 1987) ................................................................................32 Anderson v. Rochester-Genesee Reg’l Transp. Auth.,
337 F.3d 201 (2d Cir. 2003)..................................................................................18 Associated Gen. Contractors of Cal., Inc. v. Coal. for Economic Equity,
950 F.2d 1401 (9th Cir. 1991) ..............................................................................40 Associated Gen. Contractors v. Otter Tail Power Co.,
611 F.2d 684 (8th Cir. 1979).................................................................................39 Association for Retarded Citizens v. Dallas County,
19 F.3d 241 (5th Cir. 1994) ..................................................................................32 Bano v. Union Carbide Corp.,
361 F.3d 696 (2d Cir. 2004)........................................................................... 40, 42 Blum v. Yaretsky,
457 U.S. 991 (1982) .............................................................................................36 Brennan v. New York City Bd. of Educ.,
260 F.3d 123 (2d Cir. 2001)..................................................................................19 Bridgeport Guardians, Inc. v. Delmonte,
602 F.3d 469 (2d Cir. 2010)....................................................................... 1, 18, 26 Brody v. Spang,
957 F.2d 1108 (3d Cir. 1992)......................................................................... 24, 26 Building & Const. Trades Council v. Downtown Dev., Inc.,
448 F.3d 138 (2d Cir. 2006)..................................................................................13 Butler, Fitzgerald & Potter v. Sequa Corp.,
250 F.3d 171 (2d Cir. 2001)..................................................................................23 Cascade Natural Gas Corp. v. El Paso Natural Gas Co.,
386 U.S. 129 (1967) .............................................................................................20
iii

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Catanzano v. Wing, 103 F.3d 223 (2d Cir. 1996)..................................................................................26
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................................................................28
Diamond v. Charles, 476 U.S. 54 (1986) ........................................................................................ 33, 39
Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998)............................................................................. 45, 55
Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999)...............................................................................35
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) .................................................................................................36
Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995)......................................................................................55
Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009)....................................................................................18
Fund Democracy, LLC v. SEC, 278 F.3d 21 (D.C. Cir. 2002) ................................................................................33
Georgia Advocacy Office, Inc. v. Camp, 172 F.3d 1294 (11th Cir. 1999).............................................................................33
Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449 (1900) .............................................................................................40
Hodgson v. United Mine Workers of Am., 473 F.2d 118 (D.C. Cir. 1972) ..............................................................................26
HOPE, Inc. v. DuPage County, 738 F.2d 797 (7th Cir. 1984) ................................................................................33
Horne v. Flores, 129 S. Ct. 2579 (2009) .........................................................................................22
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977) ..................................................................................... passim
In re Holocaust Victim Assets Litig., 225 F.3d 191 (2d Cir. 2000)..................................................................................30
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Case: 10-235 Document: 211 Page: 7 07/23/2010 75168 93
In re Lease Oil Antitrust Litig., 570 F.3d 244 (5th Cir. 2009) ................................................................................27
Lewis v. Casey, 518 U.S. 343 (1996) ...................................................................................... 59, 60
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................................... 28, 34
Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d 1246 (4th Cir. 1991) ..............................................................................39
McClune v. Shamah, 593 F.2d 482 (3d Cir. 1979)..................................................................................44
Missouri Protection & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803 (2007)..............................................................................................32
National Maritime Union v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C. Cir. 1987) ............................................................................40
New York Pub. Interest Research Group, Inc. v. Regents of Univ. of State of N.Y., 516 F.2d 350 (2d Cir. 1975)..................................................................................20
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) .............................................................................................44
NRDC v. New York State Dep’t of Env’tl Conservation, 834 F.2d 60 (2d Cir. 1987)............................................................................. 23, 25
O’Shea v. Littleton, 414 U.S. 488 (1974) .............................................................................................36
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ..................................................................................... passim
Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003)........................................................................ 34, 35
P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990)................................................................................49
Pianta v. HM Reich Co., 77 F.2d 888 (2d Cir. 1935)....................................................................................44
Polaroid Corp. v. Disney, 862 F.2d 987 (3d Cir. 1988)..................................................................................39
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Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856 (7th Cir. 1996) ........................................................................... 36, 39
Rizzo v. Goode, 423 U.S. 362 (1976) .............................................................................................58
Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999)....................................................................... 6, 53, 55
Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124 (2d Cir. 1984)..................................................................................21
Selevan v. New York Thruway Auth., 584 F.3d 82 (2d Cir. 2009)....................................................................................40
Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) ..............................................................................23
Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir. 1984)................................................................................49
St. Joseph Hosp. of Cheektowaga v. Novello, 840 N.Y.S.2d 263 (N.Y. App. Div. 2007) .............................................................21
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ...............................................................................................28
The Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005) ................................................................................56
UAW v. Brock, 477 U.S. 274 (1986) .............................................................................................42
United States v. Harrell, 268 F.3d 141 (2d Cir. 2001)..................................................................................41
United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994)......................................................................................26
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) ................................................................................ 34, 35, 58
Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) .............................................................................................29
Warth v. Seldin, 422 U.S. 490 (1975) ...................................................................................... 35, 36
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Washington v. Harper, 494 U.S. 210 (1990) .............................................................................................49
Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................................................49
Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .............................................................................................51
STATUTES & REGULATIONS 28 C.F.R. § 35.130 .............................................................................................. 6, 52 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. § 1331........................................................................................................1 29 U.S.C. § 794................................................................................................ passim 42 U.S.C. § 10805................................................................................... 7, 30, 35, 43 42 U.S.C. § 10807....................................................................................................43 42 U.S.C. § 12117 ....................................................................................................29 42 U.S.C. § 12131......................................................................................... 6, 29, 46 42 U.S.C. § 12132............................................................................................... 6, 49 42 U.S.C. §§ 10801-07 ..............................................................................................3 42 U.S.C. §§ 12131-12165 ........................................................................................6 N.Y. EXEC. LAW § 63................................................................................................25 RULES Fed. R. Civ. P. 24.............................................................................................. passim
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JURISDICTION Appellant New York Coalition for Quality Assisted Living, Inc. (“Coalition”) appeals from an order of the U.S. District Court for the Eastern District of New York, issued on December 23, 2009, denying the Coalition’s motion to intervene, and from the final judgment entered by the same court on March 1, 2010. The district court exercised jurisdiction under 28 U.S.C. § 1331, but jurisdiction was absent due to the plaintiff’s lack of standing. The Coalition timely filed on January 20, 2010 a notice of appeal from the order denying its intervention motion (JA915), which this Court has jurisdiction to review under 28 U.S.C. § 1291 (Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010)). The State and the Coalition filed timely notices of appeal from the final judgment on March 3 and 31, 2010. JA917, JA918-19. This Court has jurisdiction over those appeals under 28 U.S.C. § 1291.
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ISSUES PRESENTED FOR REVIEW 1. Whether the district court erred in denying the Coalition’s motion to inter-
vene under Federal Rule of Civil Procedure 24 after the court’s liability ruling established both that the remedial phase of the litigation would directly affect the legal interests of Coalition members and that the existing parties could no longer adequately represent those interests. 2. Whether plaintiff lacked Article III standing to prosecute sweeping institutional reform litigation when plaintiff itself suffered no legal injury from the defendants’ conduct, plaintiff has no members to support associational standing, and plaintiff failed to join a single affected individual with a disability as a party. 3. Whether referring individuals with disabilities to adult homes and subsidizing their care violates Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, where the individual’s choice of residence is voluntary and the State’s treatment professionals have not determined that placement in a less restrictive environment is appropriate. 4. Whether a court order requiring the State to “change the way” it “manage[s] . . . mental health services” violates the Title II regulations’ directive that States need not “fundamentally alter” government services to comply with the Americans with Disabilities Act.
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STATEMENT OF THE CASE Plaintiff-Appellee Disability Advocates, Inc. (“DAI”) is an advocacy organization operating under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMIA”), 42 U.S.C. §§ 10801-07. SPA24. DAI filed this institutional reform litigation in its own name on July 1, 2003, alleging that the Governor of New York State and various state commissioners and agencies charged with overseeing the state’s mental health system (collectively, the “State”) had violated Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act by failing to create a system of supported housing for adults with mental disabilities. SPA9. The State offers subsidies to adults with mental disabilities, but leaves to the individual the voluntary choice of whether to live in state-sponsored housing such as an adult home. DX(2)-368; SPA144. At times, the State refers certain individuals to adult homes. SPA87 & n.44. DAI alleged that the ADA requires the State to provide several thousand individuals with mental disabilities who have chosen to reside in adult homes with more “integrated” “supported housing,” which involves subsidized independent apartment living with supplementary outside services and support. SPA9. The Coalition is a non-profit entity that represents fourteen of the adult homes at issue in this case. SPA206. The homes are private businesses that the State licenses and regulates. SPA83. Most of their several thousand residents receive state stipends
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to pay for their residency, which entails “long-term residential care, room, board, housekeeping, personal care, and supervision.” SPA83, SPA172-73.
After four years of proceedings, the district court judge revealed to the parties that his wife sat on the board of Fountain House, a non-profit organization dedicated to placing individuals with mental disabilities in supported housing. See Tr. (Mar. 22, 2007) at 10. DAI stated that it perceived no conflict; the record discloses no response from the State. Id.
On September 8, 2009, following a bench trial, the court found that the State’s reliance on adult homes rather than supported housing violated the ADA and Section 504, and invited the parties’ remedial proposals. SPA77. At that juncture, the United States, the Coalition, and the Empire State Association for Assisted Living (“Empire”) moved to intervene in the litigation’s remedial phase. SPA206. The district court granted the United States’ motion but denied the Coalition’s and Empire’s as untimely. See SPA205 (Garaufis, J.). Both the Coalition and Empire appealed. JA915-16 (Nos. 10-235-cv & 10-251-cv, respectively).
After the parties submitted remedial proposals, the district court issued a final order commanding the State to, inter alia, create 4,500 new supported housing beds for adult-home residents over three years. SPA232-42. The State and the Coalition each appealed the final judgment. JA917-19 (Nos. 10-767-cv & 101190-cv). The Coalition also moved to intervene in the State’s appeal, and DAI
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moved to dismiss the Coalition’s appeal, and those motions were referred to the

merits panel. No. 10-235-cv, Dkt. No. 196. This Court authorized the Coalition to file a brief in support of the State’s appeal. Id.1

A. Legal Framework

FACTS

1. Federal Rule of Civil Procedure 24(a) (Addendum 19-20) provides

that, on timely motion, the district court shall permit intervention by anyone who,

inter alia:

claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a)(2).

Rule 24(b) provides for permissive intervention by anyone who, upon timely

motion, “has a claim or defense that shares with the main action a common ques-

tion of law or fact.” Fed. R. Civ. P. 24(b).

1 If the Court denies the Coalition’s appeal in No. 10-235-cv and the Coalition‘s motion to intervene in No. 10-767-cv, and also dismisses its appeal as a nonparty in No. 10-1190-cv, the Coalition respectfully moves that, for the reasons outlined in its motions, the Court treat those portions of its argument addressed to the merits of the district court’s final judgment as an amicus curiae brief. The balance of the brief is the Coalition’s party appeal of the denial of intervention.
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2. Title II of the ADA (Addendum 3-7), provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132. A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2). Title II’s prohibition on “discrimination,” however, does not require any public entity to “fundamentally alter the nature of the service[s]” it provides. 28 C.F.R. § 35.130(b)(7) (Addendum 17).
3. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Addendum 8), is Spending Clause legislation that generally imposes equivalent obligations on the State to avoid discrimination against individuals with disabilities. Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999). It is undisputed that New York receives federal funding that subjects it to the Rehabilitation Act. SPA82.
4. PAIMIA (Addendum 10-15) provides for the establishment of organizations with authority to “investigate incidents of abuse and neglect of individuals with mental illness” and to “pursue administrative, legal, and other appropriate
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remedies to ensure the protection” of “individuals” who are receiving or who have recently received care or treatment in particular states. Id. § 10805(a)(1). Not-forprofit PAIMIA organizations must have governing boards composed of people “who broadly represent or are knowledgeable about the needs of the clients served by the system.” Id. § 10805(c)(1)(B)(i).
B. Factual Background 1. New York State’s mental health care system provides care to more than 600,000 individuals with a wide range of disabilities and needs. SPA188. 2. Adult homes are adult-care facilities that provide long term residential care. SPA83. The adult homes at issue in this suit—homes within New York City with at least 120 residents, at least 25% of whom have a mental disability (SPA77)—are home to approximately 4,300 residents (SPA86). They provide basic case management services, and are required to enter into written agreements with a provider of mental health services for ‘‘assistance with the assessment of mental health needs, the supervision of general mental health care and the provision of related case management services.” SPA101-02 & n.169. They provide residents with food, housekeeping, and laundry services, and dispense medication. SPA107 n.214. They also provide personal care and offer 24-hour on-site staff. JA918.
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Scattered-site “supported housing” entails living independently in an apartment either alone or with a roommate (SPA109), with periodic or as-needed visits by support personnel (SPA110). The State’s Office of Mental Health (“OMH”) develops supported housing by issuing requests for proposals and awarding contracts to supported-housing providers who agree to deliver the services. SPA109. The providers then select existing rental apartments scattered among various buildings across New York City. Id. Providers offer basic case management services, which may be supplemented by additional support providers. SPA110.
Other types of OMH housing include congregate treatment (also called “group homes” or “supervised community residences”); “apartment treatment”; and “community residence-single room occupancy.” SPA108 n.221.
3. To obtain any of those types of OMH-funded housing in New York City, a mentally disabled individual submits an application to the City’s Human Resources Administration (“Administration”). SPA144; SPA145 n.508. Generally, the individual’s treatment provider assists in completing the application and advises what kind of housing to apply for. SPA145 n.511. The application requires “detailed assessments of the applicant from both a psychiatrist and a social worker,” including a “professional clinical assessment, and a recommendation as to what type of housing and services the client requires.” SPA145 & n.508. The Administration determines the type of housing for which the applicant is eligible.
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SPA144. The individual then applies to housing providers of his choosing for which he has been deemed eligible, either using the city’s “Single Point of Access” program or applying directly. Id. The Single Point of Access Program guarantees the applicant three interviews with providers, and offers applicants who are not accepted with any provider the option of a case conference with OMH, the housing provider, the applicant, and the applicant’s treatment provider to determine whether the applicant’s placement could be improved. SPA144 & n.501. Individual housing providers make the final determination whether to accept an applicant into their residential programs. SPA144.
4. In 2007, the State issued an RFP seeking to develop 60 supportedhousing units earmarked for adult-home residents. SPA247. The State conducted informational forums in adult homes to inform residents of the option. SPA264. After two and a half years, 15 of the apartments remained unclaimed. JA493 (Tr. 1794).
C. Procedural History 1. DAI filed suit against the State in its own name. It did not join any individuals with disabilities, adult-home residents, or their legal guardians as coplaintiffs. Its complaint did not identify a single adult-home resident by name or medical condition. The complaint sought sweeping reform of the State’s mental health housing system, asking the court to “shift[] residents and funds [away] from
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impacted adult homes to community-based residential programs” and to halt “[t]he State’s practice of knowingly placing and maintaining individuals with serious mental illness in impacted adult homes.” Compl. ¶¶ 118, 165.2
Although individual adult homes cooperated with the discovery process as requested by court or parties, neither the individual adult homes nor the Coalition intervened at the liability stage. SPA207. The State’s defense of the litigation, at that time, was coextensive with the legal interests of the adult homes.
At a bench trial on liability, DAI presented the testimony of several supported-housing experts. E.g., JA100 (Tr. 223), JA209 (Tr. 659), JA245 (Tr. 801). DAI also called as witnesses two adult-home residents, and one former adult-home resident who now lives in supported housing.3 DAI did not introduce individual medical records for the 4,300 residents at issue.
2. The district court ruled that the State was denying en masse adults with mental disabilities “the opportunity to receive services in the most integrated setting appropriate to their needs,” in violation of the ADA and Section 504. SPA78. First, the court found that “virtually all” adult-home residents would qual-
2 “Impacted” refers to adult homes in which “at least 25% of the residents or 25 residents (whichever is fewer) have mental disabilities.” SPA84.
3 In addition to the witness testimony, DAI submitted into evidence designated transcript excerpts from twelve current and former adult-home residents.
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ify for supported housing. SPA83. In so finding, the court rejected the selection criteria used by almost all of the State’s existing supported-housing providers, relying instead on the proposals that would-be supported housing providers submitted in response to the State’s RFPs and which asserted that, if accepted, their admission criteria would be less stringent. See SPA120-23 & nn.297-301, 308, 316. The court ruled that the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), that a State may generally “rely on the reasonable assessments of its own professionals” does not apply when the State referral system makes placement decisions on request rather than by conducting “ongoing assessments.” SPA148-49.
Second, the court also found, based on the testimony of three current and two former adult-home residents (SPA155), and plaintiff’s experts, that “DAI’s constituents, as a whole,” would want to leave their current homes and move to supported housing, wherever located. SPA150. The court further held that the State was liable under Title II and Section 504 for having failed to detect that individuals wanted to move to supported housing. SPA157.
Finally, the court disagreed with the evidence submitted by the State’s financial professionals and found that moving adult-home residents into supported hous-
Those witnesses were not cross-examined at trial. The transcript excerpts are sealed and remain unavailable to the public. See PX(3)-479-90.
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ing would save the State money. The court found that a supported-housing apartment costs $7,370 more annually than an adult-home bed. SPA175. It also found that the medical care needed by each Medicaid-eligible adult-home resident cost $31,530 annually, while supported-housing residents generally needed on average only $16,467 in Medicaid care. The court found that these Medicaid services provided to adult-home residents constituted “over-utilization.” SPA177. The court therefore found that, by moving individuals from adult homes to supported housing, the State could cut back on the amount of medical care it provided to those individuals, and thus that moving adult-home residents to supported housing would save $146 per person. SPA181, SPA196. Finally, the court concluded that mandating the provision of 4,500 new apartments over three years solely to adult-home residents would not divert funding from programs for the homeless and others in critical need of housing. SPA189.
3. Following its liability ruling, the district court solicited the parties’ remedial submissions. The United States, the Coalition, and Empire each moved to intervene in the remedial phase. In its motion papers, the Coalition explained that it sought only to intervene in “proceedings relating to the fashioning of relief.” Coalition Intervention Mot. at 1. The Coalition emphasized that, during the trial phase, “the State of New York was vigorously defending the case,” and was “taking the same positions that” the Coalition “would have taken” had it been involved
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in the liability phase (Coalition Intervention Mot., Ex. 1 at 3), and the Coalition accordingly had not attempted to intervene at that time. The Coalition further explained that, following the district court’s liability determination, the State’s and the Coalition’s interests diverged for the first time. Id. at 11. Specifically, the Coalition explained that, in formulating a remedy, the Court might, directly or indirectly, compel the State to close down adult homes (id. at 9), and that the State, unlike the adult homes, would have no legal interest in avoiding that remedial result (id. at 11).4
The court allowed the United States to intervene in support of DAI, deeming its motion “timely,” but denied the Coalition’s and Empire’s motions to intervene on the State’s side as “untimely” because they had known of the litigation since the discovery stage. Ord. (Nov. 23, 2009); SPA216, SPA209-11. With respect to the prior adequacy of the State’s defense, the district court ruled that the Coalition and the State’s interests were “not coterminous.” SPA212. The district court also expressed concern that the Coalition would inject issues “regarding their economic entitlements” into the litigation. SPA213. The district court granted the Coalition
4 There is no dispute in this case that the Coalition has associational standing. See Building & Const. Trades Council v. Downtown Dev., Inc., 448 F.3d 138, 144-50 (2d Cir. 2006).
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and Empire amicus status. SPA206; SPA234. Both the Coalition and Empire appealed.
The district court subsequently adopted DAI’s remedial proposal. SPA234. The court ordered that “no individual with mental illness who is qualified for supported housing [shall] be offered placement in an adult home unless, after being fully informed, he or she declines the opportunity to receive services in supported housing.” Id. To accommodate the anticipated demand, the order required the State to create 4,500 new supported-housing apartments within three years. SPA236. That undertaking, the court suggested, could be financed by revoking adult homes’ operating certificates, terminating payments to adult homes, and shrinking the number of licensed adult home beds. SPA181-84, SPA201 n.904.
The order also mandates that the State “conduct frequent and effective inreach—that is, going into the Adult Homes and developing relationships with DAI’s Constituents.” SPA237. In addition, the State must “require that . . . Adult Home staff . . . accurately and fully inform [their residents] about supported housing, its benefits, [and] the array of services and supports available to those in supported housing.” SPA239. Finally, the order obligates the State to “carefully monitor” adult-home operators and “take corrective action” if it finds that adulthome operators are “discourag[ing]” residents from exploring alternative housing. SPA241.
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SUMMARY OF ARGUMENT 1. The district court erred in denying the Coalition’s motion to intervene at the remedial stage of the litigation. As the terms of the court’s order evidence, the legal interests of the Coalition’s members were directly at stake and are affected by the court’s formulation of a remedial plan because the singular purpose of the remedial order is to close down adult homes, strip them of their clients, and deny them state financial support for the residents who remain in their care. The district court’s reason for denying intervention was that the Coalition’s motion was untimely because it had long been aware of the litigation. But that reasoning overlooked that, as is often true in litigation that seeks to reform a state institution, the Coalition’s interest in defeating liability was identical to the State’s, and thus the Coalition’s interests were already adequately represented by the State throughout the liability stage of the litigation. Rule 24, by its plain terms, precluded the Coalition from intervening unless and until “existing parties” could no longer “adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). The Coalition thus did exactly what Rule 24 mandates and waited to intervene until its and the State’s interests diverged, which was at the remedial stage where the State’s primary interest was limiting its economic exposure, while the Coalition’s was in maintaining the homes’ ability to care for residents and their contractual relationships.
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2. The district court’s judgment must be vacated because DAI lacked Article III standing. DAI filed suit seeking broadly to reform New York State’s mental health housing system, but it did so without including a single individual with a disability as a party and without even knowing their individual diagnoses or their individual housing desires. The protections against disability discrimination created by the ADA that the State allegedly violated belong to individuals with disabilities. But there are none in this lawsuit. Not one. DAI is not an individual with a disability, nor is it a membership association composed of individuals with disabilities. The individuals on whose behalf DAI claims to litigate have never given it the right to do so; neither have their legal guardians. The individuals have no power to control DAI’s litigation decisions, and cannot disassociate themselves from it if they do not like its positions. As a result, none of the individuals with disabilities living or potentially living in adult homes in New York had any control over this litigation that was purportedly brought on their behalf and to vindicate their rights under federal law.
DAI claims that those individuals are its “constituents.” But Article III requires more than such vague labels, and associational standing only exists when it is a mechanism for those whose legal rights are at stake to litigate through an entity whose decisionmaking they can control or opt out of. There was no such showing here, and in the absence of any showing that there was a party before the court
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whose legal rights were directly affected by the State’s program, constitutional, statutory, and prudential standing were absent.
3. Finally, the court’s order must be reversed because its requirement of sweeping changes in residency for the mentally disabled reflects a profound misapprehension both of the manner in which the ADA regulates governmental services and of the proper role of a federal court in ensuring a sovereign state’s compliance with federal law. The court cast aside the Supreme Court’s rule that, in complying with the ADA a state “may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community based program.” Olmstead, 527 U.S. at 602. It did so in not only overruling the State system’s own eligibility determinations—and the very criteria that system uses to make those determinations—but also by devising a new regime that cuts the State out of the process of deciding who may be safely treated in the State’s own programs. The court’s failure to safeguard the State’s role in the treatment process was compounded by its rejection of the State’s concerns about the budgetary disaster that the court’s order would cause and the profound harm the order would cause to other individuals with disabilities and vulnerable citizens competing for the same scarce housing resources. The ADA and Supreme Court precedent forbid that result.
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STANDARDS OF REVIEW A district court’s denial of intervention is reviewed for an abuse of discretion, which exists when the court has “based its ruling on an erroneous view of the law” or “made a clearly erroneous assessment of the evidence.” Bridgeport Guardians, 602 F.3d at 473. This Court “review[s] questions of standing de novo.” Fulton v. Goord, 591 F.3d 37, 41 (2d Cir. 2009). Whether the ADA imposes liability when an individual’s treatment professionals have determined that a resident’s placement is appropriate, and whether the relief ordered is consistent with the ADA and Section 504, are questions of law reviewed de novo. Anderson v. Rochester-Genesee Reg’l Transp. Auth., 337 F.3d 201, 207 (2d Cir. 2003).
ARGUMENT I. THE COALITION WAS ENTITLED TO INTERVENE AT THE
REMEDIAL STAGE. A. The Coalition’s Substantial Interest in the Litigation, the Absence
of Adequate Representation, and the Relative Timeliness of the Motion Warranted Intervention Because its legal interests in the remedial litigation were so substantial and those interests were no longer aligned with the State’s after liability was resolved, the Coalition’s motion to intervene was timely and should have been granted. A party has a right to intervene if (i) disposition of the action might, as a practical matter, impair its interests, (ii) the existing parties will not adequately protect those
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interests, and (iii) its application is timely. Brennan v. New York City Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001). The Coalition satisfied all three.
1. The Coalition’s Legal Interests Are Direct and Substantial The Coalition members have “direct, substantial, and legally protectable” interests that, as the district court’s remedial order documents, were significantly affected by the disposition below. Brennan, 260 F.3d at 129. The thrust of the court’s remedial order is to move “virtually all” (SPA77) residents out of the Coalition members’ adult homes, to terminate State referrals, to open up the adult homes to third parties seeking to take away their clients, and to monitor adult-home staff members’ conversations with their clients. The resulting loss of current residents and cutoff of referrals for new residents will empty the homes and force them to close, leaving those residents who continue to want or need the adult homes’ extra services and care without appropriate housing and support and potentially rendering them homeless. That will happen faster if the State terminates the subsidies that supplement the homes’ earnings, as the court invited the State to do. Currently, adult-home residents receive yearly Supplemental Security Income (“SSI”) payments of $8,088 from the federal government and $8,328 from the State, all but a small portion of which is paid to the adult homes in exchange for providing room, board, housekeeping, supervision, and personal care. SPA17273. Because the remedial order is specifically designed to reduce the overall occu-
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pancy of the adult homes at issue by more than 33% within the first year, and nearly 100% within three years (SPA236), the order’s devastation of the adult homes’ businesses and direct effect on their survival and continued ability to care for residents who need and want their services is of such a magnitude as to warrant intervention.
In addition, the Coalition’s members are eligible to receive, and historically have received, Quality Incentive Payment (“QuIP”) and Infrastructure Capital Program grants from the State which each year provide the Coalition members hundreds of thousands of dollars with which to make capital improvements for the benefit of residents, as well as other grants such as those from the Enhancing Abilities and Life Experiences (“EnAbLE”) program, which fund activities and services for residents. SPA182-84. The district court’s order, however, is predicated on the redirection of those funds from adult homes to the operators of supported housing.
The homes’ foundational interest in basic economic survival, their continued ability to care for residents, and in protecting their licenses and cooperative relationship with the State support intervention. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135-136 (1967) (economic interest in competitive market sufficient for intervention); New York Pub. Interest Research Group, Inc. v. Regents of Univ. of State of N.Y., 516 F.2d 350, 351-352 (2d Cir. 1975) (pharmacists’ interest in regulation prohibiting advertising price of prescrip-
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tion drugs supported intervention because of effect on their businesses); cf. RosoLino Beverage Distribs., Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124, 125-126 (2d Cir. 1984) (the loss of “an ongoing business representing many years of effort and the livelihood of its . . . owners, constitutes irreparable harm”).
Beyond basic patient care and economic survival, the Coalition’s members also had a legal interest in the effect of the remedial litigation on their operating certificates, which the court’s order suggested should be revoked to pay for the ordered relief. SPA201 n.904. The homes’ operating certificates are property protected by New York law. St. Joseph Hosp. of Cheektowaga v. Novello, 840 N.Y.S.2d 263, 267 (N.Y. App. Div. 2007). The court’s plan that those operating certificates be either directly or constructively terminated thus concretely and materially affects the legal interests and rights of Coalition members.
The order’s impact does not stop there. The Coalition’s members have an interest in controlling access to their property, including both a legal interest in their right to control their property and a practical interest in maintaining security and protecting their residents and employees. That interest is directly imperiled by the order’s requirement that the homes allow myriad supported-housing workers into their facilities to conduct “frequent . . . in-reach.” SPA237. The homes also have an interest in what they say and do not say to their residents, including both constitutional protections under the First Amendment and an interest in avoiding
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the administrative burdens and expense of training and policing scores of daily staff-to-resident communications. That interest is directly affected by the provision of the court’s order restricting the homes’ power to discuss with residents the potential disadvantages of moving to supported housing and the provision that will require the homes to provide information to residents about supported housing.
In short, the adult homes have an array of affected interests that are sufficient to warrant intervention. Indeed, as an on-the-ground target of the litigation and a business with substantial experience administering day-to-day care for the individual residents whose rights are truly at stake in this litigation, intervention was particularly warranted because the Coalition could offer both a legal and experiential lens on the claims and the practical effect of the district court’s orders that was not represented by any of the institutional parties to this litigation. Bringing the voice of the adult homes to the table would have assisted the court in overseeing relief and in mediating the challenges that the Supreme Court has identified are inherent in such complex, institutional-reform litigation. Horne v. Flores, 129 S. Ct. 2579, 2594 (2009).
2. The Coalition’s Interests Were Not Adequately Represented At the liability stage of this case, the adult homes’ and the State’s legal interests were coextensive, given the State’s active defense on the merits. The legal interests of the Coalition’s members thus coincided with and were adequately
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represented by the State throughout the merits stage of the case, making intervention by the Coalition at that time not only unnecessary but impermissible: “where there is an identity of interest,” the court must presume “adequate representation by the party already in the action.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179-80 (2d Cir. 2001). See NRDC v. New York State Dep’t of Env’tl Conservation, 834 F.2d 60, 61-62 (2d Cir. 1987) (state and private party’s common interest in defeating liability precluded intervention); Fed. R. Civ. P. 24(a) (intervention forbidden if intervenors’ interests are adequately represented). See also Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (intervention timely when, at earlier stage, intervenor’s “interests were fully consonant with” the Government’s and so had been “adequately represented by the Government[]”).
That all changed, however, once the liability phase ended and the remedial stage commenced. At that point, the State’s and the Coalition’s interests diverged because the State developed a distinct interest in, inter alia, minimizing the cost and administrative burden of any remedy, which put it at odds with the adult homes’ interest in continuing to serve the residents who have chosen to stay with them. Advancing the State’s interest may mean, for example, shutting down adult homes. Reinforcing the point, the injunction operates quite differently upon the State and the adult homes. It is the adult homes, not the State, whose property is opened up to access by the very persons trying to destroy their system of care and
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existing client relationships. It is the adult homes, not the State, whose businesses will—quite intentionally—be destroyed by the injunction. And it is the homes, not the State, whose right to free speech is restrained by the injunction. That “divergence of interests argument . . . is a strong one . . . [at] the remedial stage of the litigation.” Brody v. Spang, 957 F.2d 1108, 1124 (3d Cir. 1992). Indeed, in Brody, just as here, the court recognized that intervention was improper in the merits phase because at that point the governmental defendant (a school) adequately represented the intervening students’ interests, but that in the “remedial phase” those “interests have clearly diverged” and made intervention proper. Id.
3. The Motion Was Timely The district court’s central rationale for denying intervention was the Coalition’s perceived untimeliness in seeking intervention years after the litigation commenced. But timeliness under Rule 24 is contextual, not purely chronological, and remedial-stage intervention like that sought by the Coalition is common and appropriate, “particularly in institutional reform litigation.” Brody, 957 F.2d at 1116. That is because, “while only some individuals may be held liable for the unlawful conduct, and thus have an interest in the determination of liability, a larger number of persons’ interests may be infringed on at the remedial stage of the litigation.” Id. Because the Coalition’s motion was filed promptly upon its deter-
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mination that its interests were no longer adequately represented by the State, the motion was timely.
The district court reasoned, however, that the State could not have represented the Coalition’s interests during the liability stage because the Attorney General’s statutory obligation was to “protect the interest of the state.” SPA212 (quoting N.Y. EXEC. LAW § 63(1)). But that would mean that intervention is always appropriate by every interested party in every case, because the existing parties to litigation always and inherently protect their own interests and do not formally represent the interests of non-parties.
That is not what Rule 24 envisions. Instead, what is relevant is whether legal interests converge—not whether they are perfectly coterminous—and their “adequate[]”—albeit not perfect—representation by the existing parties. In NRDC, for example, the State was held to adequately represent the interest of a non-party in fighting liability even though the Attorney General just as much there, as here, formally represented only the interests of the state. 834 F.2d at 61-62. Here, as there, because the Coalition’s and the State’s interests were identical during the liability phase, the Attorney General’s compliance with his duty had the practical effect of representing the Coalition’s interests at the liability stage.
Further underscoring the distinctive shift that occurred at the remedial stage was the district court’s decision to allow the United States permissive intervention.
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“A motion for permissive intervention, like one for intervention of right, must be timely.” Catanzano v. Wing, 103 F.3d 223, 234 (2d Cir. 1996); see Fed. R. Civ. P. 24(b) (timeliness required). If it was timely for the United States to seek intervention after the liability phase, it was also timely for the Coalition to do so.
Indeed, both this Court and other courts have long recognized that, when a party seeks to intervene in a remedial stage, the court should “separately evaluat[e] whether the applicant has a right to intervene at the merits stage and whether he or she may intervene to participate in devising the remedy.” Brody, 957 F.2d at 1116. In Bridgeport Guardians, this Court reversed a denial of intervention sought in a remedial proceeding more than 25 years after judgment was entered. 602 F.3d at 473-474. Similarly, in Hodgson v. United Mine Workers of America, 473 F.2d 118 (D.C. Cir. 1972), intervention was first sought “after the action was tried, and some seven years after it was filed” (id. at 129). In finding the application in Hodgson timely, the D.C. Circuit relied on the fact that the proposed intervenors “sought only to participate in the remedial, and if necessary the appellate, phases of the case.” Id. That same precedent and rationale control here.
The only other explanation afforded by the district court was its concern that intervention would be prejudicial to the existing parties. See United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994). But if the mere intervention of additional parties constituted prejudice, then the United States’ motion should have
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been denied as well. Beyond that, any concern that the Coalition might “inject collateral issues” into the action should have been addressed by limiting the scope of intervention rather than by simply denying it outright, given the extent of the prejudice to the Coalition’s substantial legal interests from not being able to fully protect its members during the formulation of a remedial order that aims to close them down and leave their residents without proper care. SPA214; see, e.g., In re Lease Oil Antitrust Litig., 570 F.3d 244, 249 (5th Cir. 2009) (applicant would be prejudiced if denied intervention because of an inability to appeal).
B. Permissive Intervention Was Also Warranted Permissive intervention under Rule 24(b)(1)(B) was also appropriate because the Coalition “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The Coalition’s defenses share common questions of law with the main action, including questions relating to DAI’s standing, federalism concerns, liability issues pertaining to the district court’s interpretation and application of the Supreme Court’s decision in Olmstead, and statutory and constitutional limitations on the proper scope of the remedial order. Finally, simply bringing the full story to the table about the realworld practical and legal impact of the district court’s decision on adult-home residents would have been beneficial, not prejudicial, to the court and the parties.
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In the end it was the Coalition that was prejudiced by being denied intervention. Its amicus curiae submission was necessarily and explicitly more limited than the full-fledged remedial proposal it would have offered as a party. See Letter from J. Sherrin to Judge Garaufis (Nov. 25, 2009). Remedying the problem requires vacating the remedial order and allowing the Coalition the opportunity to be heard in full. II. THERE IS NO JURISDICTION BECAUSE DAI LACKS STANDING
A. DAI Has No Legal Rights at Stake If a plaintiff lacks standing, the federal “courts have no business deciding [the case], or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-41 (2006). They only have jurisdiction to dismiss the suit. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). The “irreducible constitutional minimum of standing” requires, inter alia, that the plaintiff have “suffered an ‘injury in fact’” through the “invasion of a legally protected interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The party invoking the court’s jurisdiction bears the burden of demonstrating standing, a burden that is “substantially more difficult” to meet when, as here, the plaintiff files suit to remedy an injury to someone else. Id. at 562. DAI filed suit by itself and in its own name, but has never asserted that it has suffered injury or that its legal rights have been invaded. DAI is not a disabled in-
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dividual, let alone a “qualified individual with a disability” entitled to the ADA’s protections. 42 U.S.C. § 12131(2). Nor does DAI reside in adult homes or seek appropriate placement for itself. Neither does DAI purport to stand in the shoes of the United States as a law enforcement agency empowered under federal law and the Constitution to bring enforcement actions against States, nor would Article III and the Eleventh Amendment permit such outsourcing in these circumstances. Contrast 42 U.S.C. § 12117 (allowing Attorney General to sue to enforce Title I of the ADA); see Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) (delegation of federal enforcement power to private entities limited to assignee/assignor relationship).
B. DAI Lacks Associational Standing The district court viewed DAI as suing on behalf of its “constituents.” SPA25. Whatever that label means, it does not suffice for Article III. An association may sue for its “members” only when “(a) the members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose, and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977) (emphases added). DAI fails that test.
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1. DAI Lacks Members and Is Not Controlled by the Individuals Whose Rights It Asserts
The short answer to DAI’s assertion of associational standing is that it is not an association of members at all. In fact, it has no members.
While in “some unusual cases,” “an organization without ‘members’ in a traditional sense may be deemed a membership organization for purposes of standing” (In re Holocaust Victim Assets Litig., 225 F.3d 191, 196 (2d Cir. 2000)), DAI does not qualify for such “unusual” treatment. That treatment is confined to entities that (i) serve a specialized community, (ii) possess “the indicia of membership,” such as electing leaders, financing activities, and directing the association’s activities, and (iii) whose fortunes are “closely tied to those of its constituency” such that the entity will suffer if the litigation fails. Hunt, 432 U.S. at 344-45. DAI fails that test too.
DAI has purported to sue on behalf of all “residents in large New York City adult homes and those at risk of entry into such homes,” which would include all 600,000 “individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(A). Those 600,000 “constituents” have broadly varied levels of disability, consume different mental health and housing services, and have widely divergent interests that may be antagonistic because they compete for the same resources. None of those individuals is even nominally a “member” of DAI, nor is it likely—and certainly it has not been shown—that any significant
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percentage is even aware of DAI’s existence, let alone its vicarious enforcement of their rights.
Most critically for Article III purposes, those individuals do not choose to become DAI’s “constituents,” have no power to control DAI’s activities or litigation decisions, do not elect its directors, do not make budget decisions, do not contribute funding, and cannot withdraw from the “constituency” if they disagree with DAI. Indeed, there is no evidence that DAI ever even notified a small percentage of its “constituents” or any of their legal guardians that it was filing this suit purportedly on their behalf, or permitted any of them to opt out. Quite the opposite, when it filed suit, DAI named not a single adult-home resident it thought had been injured. After a year and a half of litigating, it named two. JA49. Ultimately, it introduced the testimony of ten current adult-home residents—only two of which are in the public record. It never introduced the medical records or evidence of the housing desires of the hundreds of residents whose housing arrangements it claimed violated the law.
It is precisely to avoid this kind of litigation in bulk and without consent that the Fifth Circuit concluded that a PAIMIA organization like DAI lacks standing: “most of its ‘clients’ . . . are unable to participate in and guide the organization’s efforts” and so the organization “bears no relationship to traditional membership
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groups.” Association for Retarded Citizens v. Dallas County, 19 F.3d 241, 244 (5th Cir. 1994).
The Eighth Circuit agrees, holding that a PAIMIA organization cannot sue “without the participation of one or more individual wards with specific claims based upon a particular incapacity.” Missouri Protection & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 810 (2007). The presence of such individuals not only obviates Article III concerns but also ensures, as Article III’s case-or-controversy requirement envisions, that legal issues are analyzed with the participation of those whose rights are directly at stake. That is how the federal courts are supposed to work.
Because organizations like DAI “possess [none] of the indicia of membership in an organization” that Hunt (432 U.S. at 344) and Article III require, DAI cannot evade Article III’s requirement by self-asserting a “constituency’’ and then claiming to sue on behalf of individuals it has not met, who have given it no authority, who have no control over it, and who are likely completely unaware of what is happening with their rights. See American Legal Found. v. FCC, 808 F.2d 84, 90 (D.C. Cir. 1987) (no “watchdog” standing for group whose constituents do not “play any role in selecting [its] leadership, guiding [its] activities, or financing those activities”).
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In short, DAI lacks standing because it “cannot be described as ‘but the medium through which individual[s] . . . seek to make more effective the expression of their own views” because there is no evidence its constituents or their legal guardians—those whom the legal system has actually charged with enforcing their individual rights—“seek” or want the help it offers, or that their views and DAI’s are coextensive. Id. at 90. Simply pursuing “advocacy initiatives” for individuals with disabilities does not make them “the equivalent of members.” Fund Democracy, LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002); see also HOPE, Inc. v. DuPage County, 738 F.2d 797, 814-15 (7th Cir. 1984) (en banc) (rejecting standing to sue for nonmembers).
Those cases hew to the Supreme Court’s Article III admonition against putting the decision to sue “in the hands of ‘concerned bystanders,’” rather than with those who “have a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62 (1986). And Georgia Advocacy Office, Inc. v. Camp, 172 F.3d 1294 (11th Cir. 1999), proves that the Article III problem is more than constitutional theory; it has serious practical ramifications in the lives of the individuals whose interests are at stake. There the PAIMIA organization attempted to sue for an individual with a mental disability, but that individual herself “had no interest in being represented by” the plaintiff—a problem that the court only discovered by interviewing her in camera. Id. at 1297.
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In this case, DAI—whose burden it is to establish standing (Lujan, 504 U.S. at 561)—offered not a shred of evidence that it consulted with, let alone is controlled or even influenced by the individuals with mental disabilities it claims as “constituents,” that the group as a whole or even adult-home residents in particular support this suit, that it considered whether winning the suit would harm any of its 600,000 constituents, such as those who critically need adult home support, or that it even consulted with a percentage of those “constituents” whose housing arrangements DAI has turned upside down and on whose behalf it has reconfigured New York’s entire mental health housing program. “Article III . . . is not merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 475 (1982). The Case-or-Controversy requirement limits federal courts’ power in order to protect individuals and to ensure that those whose rights are at stake do not find them used and dissipated by strangers. Surely the ADA (in addition to Article III) preserves that same autonomy for individuals with disabilities, depriving DAI of both statutory and prudential standing as well.
To be sure, the Ninth Circuit found standing in Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003). But the court wrongly relied on the duty of a PAIMIA governing board to “broadly represent” or be “knowledgeable about” the
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“needs of the clients served by the system” (42 U.S.C. § 10805(c)(1)(B)), and the requirement that the “board of advisors” include individuals with disabilities in the affected system (id. § 10805(a)(6)). Mink, 322 F.3d at 1111-12. Article III is not so elastic. Much more than “concerned bystanders[’]” knowledge about a legal claim is required. See Valley Forge, 454 U.S. at 473. And a board of advisors only advises; it does not control. Nor is there any requirement that those advisors have the precise interest and injury at stake in the litigation for which standing is claimed. The presence of some individuals with disabilities somewhere within an organization does not satisfy Article III. Indeed, Congress’s command that DAI listen when “the public” “comment[s] on” its “priorities” and “activities” means the group must be responsive to the interests of nonconstituents. 42 U.S.C. § 10805(8). In any event, the record evidence regarding the makeup of the organization’s board that was dispositive in Mink, 322 F.3d at 1112, is absent here.
Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999) is of no help to DAI either, both because its standing analysis is as wrong as Mink’s, but also because Stincer, following Warth v. Seldin, 422 U.S. 490 (1975), still required proof that the legal rights of at least one of the group’s “constituents” had been violated. Stincer, 175 F.3d at 886-88 (dismissing for lack of standing where the plaintiff claimed that “many” of its constituents had been wronged, but never alleged wrong against a particular individual). Proof of a single ADA violation with respect to an identified
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person is absent here, a gap that Article III will not tolerate. See Warth, 422 U.S. at 516 (no standing where “[t]he complaint refers to no specific project of any of its members that is currently precluded”). “It is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected.” Blum v. Yaretsky, 457 U.S. 991, 999 (1982). See O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (in class actions, “if none of the named plaintiffs . . . establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class” they purport to represent).
2. DAI’s Litigation Can Hurt Its “Constituents” An association lacks standing if winning its suit “would cause a direct detriment to the interests of some of its members.” Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 864 (7th Cir. 1996). That is both because harming its members cannot be “germane to the organization’s purpose” (Hunt, 432 U.S. at 343), and because a suit that will harm members “requires the participation of individual members in the lawsuit” (id.) to protect their interests. See also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004) (no jus tertii standing where interests of litigant and third party are “not parallel and, indeed, are potentially in conflict”).
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The relief that DAI sought (and won) will directly injure some of the very adult-home residents that DAI has appointed itself to represent. Many residents affirmatively want to stay in their homes. See SPA155-56. At least anywhere from 390 (9% of 4,300 (SPA153)) to 1,890 (44% (id.)) “constituents” expressed no interest in moving.
But the court’s order inevitably will close a large number, if not almost all, adult homes by barring referrals, revoking licenses, and cutting off funding for “virtually all” residents. The very premise of the court’s financial calculations was that, “if there was a will to close Adult Homes . . . that money could be shifted and used for the services people in supported apartments would need.” SPA188. The court also emphasized that state law “permits the State to downsize or close Adult Homes” (SPA197), and held that the Department of Health was a necessary defendant precisely because it can “conserve resources by ‘revok[ing] operating certificates for particular Adult Homes’” (SPA201 n.904).
The end result of DAI’s litigation thus will be to force hundreds or perhaps thousands of adult-home residents out of their current homes, regardless of their wishes or individual ability to live in supported housing, because the relief DAI sought and obtained is predicated on the closure of many, if not most, adult homes. The two cannot feasibly co-exist.
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Compounding the harm is the reality that the affected “constituents” are those who are least able to care for themselves in a crisis. “[M]oving is especially stressful for people with psychiatric disabilities and can contribute to problems and re-hospitalization.” SPA142. As Justice Kennedy explained in Olmstead, “‘[f]or a substantial minority . . . deinstitutionalization has been a psychiatric Titanic,” whereby “‘[s]elf-determination’ often means merely that the person has a choice of soup kitchens,” and the “‘least restrictive setting’ frequently turns out to be a cardboard box, a jail cell, or a terror-filled existence plagued by both real and imaginary enemies.’” Olmstead, 527 U.S. at 609 (Kennedy, J., concurring).
Furthermore, the relevant group for evaluating conflict is not just adult-home residents, but all 600,000 New Yorkers with mental disabilities whom DAI claims as “constituents.” Some of them—those on the streets, in homeless shelters, or in psychiatric institutions, at whom supported housing has long been targeted (SPA164)—will be significantly hurt by the judicial order that forces the State to put adult-home residents at the front of the housing line when it comes to the allocation of acutely scarce subsidized apartments in New York City. The multilayered harms that DAI’s litigation has set in motion underscore that “[t]he exercise of judicial power . . . [can] profoundly affect the lives, liberty, and property of those to whom it extends,” and that is precisely why the decision to sue “must
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therefore be placed ‘in the hands of those who have a direct stake in the outcome.’” Diamond, 476 U.S. at 62.
Four other circuits have agreed, holding that conflicting interests within an association’s membership (let alone within a putative “constituency”) destroy the association’s power to sue for any of its members. See Retired Chicago Police Ass’n, 76 F.3d at 866 (association cannot challenge a pension-related settlement because the requested relief would reduce some members’ benefits); Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1252-53 (4th Cir. 1991) (association cannot challenge constitutionality of a law where the requested relief would hurt business for some members); Polaroid Corp. v. Disney, 862 F.2d 987, 999 (3d Cir. 1988) (“associational standing has never been granted in the presence of serious conflicts of interest”); Associated Gen. Contractors v. Otter Tail Power Co., 611 F.2d 684, 691 (8th Cir. 1979) (no associational standing where some members will be hurt by victory). Here, as in those cases, the interests of DAI’s “constituents” are “too diverse and the possibilities of conflict too obvious to make [DAI] an appropriate vehicle” to assert some of those individuals’ claims. Maryland Highways, 933 F.2d at 1252; cf. Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) (conflict among class members defeats adequacy of representation).5
5 While cases from the Ninth and D.C. Circuits have taken the opposite tack, their reasoning only applies to an organization that its members control. See Asso-
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3. The Claims Asserted Require Individual Participation DAI’s claim of associational standing fails for yet another reason: “the involvement of individual members” was “necessary” to granting the relief it requested. Bano v. Union Carbide Corp., 361 F.3d 696, 716 (2d Cir. 2004); see Hunt, 432 U.S. at 343. Under Title II, a claim that the State failed to provide treatment in the least restrictive setting requires proof that the individual is a “qualified individual with a disability,” in that (i) “the State’s treatment professionals determine[d] that [a supported-housing] placement is appropriate,” (ii) “the affected persons do not oppose such treatment,” and (iii) “the placement can be reasonably accommodated.” Olmstead, 527 U.S. at 607. The first and second elements make the participation of the affected individuals with disabilities indispensable and, indeed, this Court warned in Bano that it could not imagine “a medical monitoring program that would not require the participation of the organizations’ individual members.” Id. at 715. That is dispositive here. 6
ciated Gen. Contractors of Cal., Inc. v. Coal. for Economic Equity, 950 F.2d 1401, 1409 (9th Cir. 1991) (“an organization’s internal conflicts should be resolved through its own internal procedures”); see National Maritime Union v. Commander, Military Sealift Command, 824 F.2d 1228, 1233 (D.C. Cir. 1987) (“conflicts are typically resolved by the association’s internal procedures or political structure”).
6 Hunt’s third prong is prudential. Prudential standing requirements are “limits on the exercise of federal jurisdiction” (Selevan v. New York Thruway Auth., 584 F.3d 82, 91 (2d Cir. 2009)), and thus must be considered even if never raised (Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). In any event,
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The undisputed evidence is that a “treatment team” must determine, on a case-by-case basis, whether an individual is qualified to live in supported housing, (see, e.g., JA74 (Tr. 118-19)), and is thus a qualified individual under Title II. The “detailed assessments of the applicant from both a psychiatrist and a social worker” include a “professional clinical assessment, and a recommendation as to what type of housing and services the client requires.” SPA145 & n.508. Such an assessment will review, inter alia, an individual’s clinical, psychosocial, and medical history as well as his experiences with medication, substance abuse and domestic violence (JA519 (Tr. 1895)), and consider a comprehensive psychiatric evaluation and placement recommendation from a doctor who has done a mental status examination (JA521 (Tr. 1904)). Determining whether an individual wants to move also requires a case-by-case assessment that is complicated by the need to distinguish between reasoned preference and desires fueled by the mental disability itself, as where a resident wanted to move out only to escape the “demon” living in his room (JA620 (Tr. 2299)), and to address a resident’s concern that he might not “want to be so far away that I would be isolated.” JA158 (Tr. 455).
Tellingly, though the district court agreed that case-by-case assessment would be required (SPA238-39), the court just declared the violation and pre-
the district court “passed upon” Hunt’s third prong (SPA25 n.22), thereby preserving it (United States v. Harrell, 268 F.3d 141, 146 (2d Cir. 2001)).
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scribed the remedy first, making the identification of a Title II qualified individual a purely post hoc administrative matter.
But that very acknowledgment indicted the district court’s decision to order the sweeping creation of extensive supported housing predicated on the displacement and closing of adult homes without hearing from any significant number of affected individuals about the appropriate balance of adult home and supported living residences across the State system. The same type of individual medical assessments that dictated dismissal in Bano, 361 F.3d at 715, will be required here. And the district court could not outsource that standing problem by prescribing extra-judicial medical assessments. Bano denied standing precisely because the outof-court medical monitoring program would require individual participation. Id. Furthermore, if those post hoc case-by-case assessments produce a large number of individuals who wish to remain in adult homes—as the State’s experience finding only 45 people willing to occupy the 60 units it has already created suggests may be the case—it will be too late. The district court’s order, which has already swung into effect, will have driven many of those individuals’ homes out of business.
The district court’s reliance (SPA25 n.22) on UAW v. Brock, 477 U.S. 274 (1986), was misplaced. The Brock plaintiffs sought an answer to a “pure question of law” (id. at 287). DAI sought much more here, attempting to formulate by litigation a major overhaul of the State’s housing program for individuals with mental
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disabilities, which Olmstead held must be predicated on factual determinations about the abilities and desires of the individuals. 527 U.S. at 587. After-the-fact consultations with those whose rights have already been adjudicated by the supported-housing providers themselves, rather than state professionals, will not do. SPA238-39.7
Finally, the district court ruled that Congress abrogated Hunt’s individualparticipation rule for PAIMIA organizations. SPA25 n.22. But there is no evidence that Congress did that or intended to supplant the individuals’ legal guardians from their traditional protective role. In fact, PAIMIA only authorizes DAI to bring suits for “individuals.” 42 U.S.C. § 10805(a)(1)(B)-(C). DAI may investigate individual cases of abuse, seek any relief for individuals still in the system, and seek remedies for past violations for recently discharged individuals (42 U.S.C. § 10805(a)(1)), provided it first exhausts its client’s administrative remedies (id. § 10807(a)).8
And the law should not be construed to go any further than that, given the substantial constitutional concerns raised by outsourcing individualized legal
7 Only after its liability ruling did the district court require any notice at all informing residents of the issues involved in the case—a time when the court declared that intervention by private individuals would be “untimely.” SPA216.
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claims to entities that the individuals have no knowledge of, let alone control over, not to mention allowing those private entities to sue States protected by the Eleventh Amendment. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (statutes must be construed to avoid “serious constitutional questions”). It stands the ADA on its head to adopt an enforcement mechanism that denies individuals with disabilities any voice in such important decisions with such a significant dayto-day impact on their own lives.
Finally, the United States’ intervention solely in the case’s remedial phase does not cure the jurisdictional problem. “[I]f jurisdiction is lacking at the commencement of the suit, it cannot be aided by the intervention of a [party] with a sufficient claim.” Pianta v. HM Reich Co., 77 F.2d 888, 890 (2d Cir. 1935). Indeed, the court lacked jurisdiction to even order the United States’ intervention, since the plaintiff’s lack of standing means that there was no case in which to intervene. It is “axiomatic” that “intervention will not be permitted to breathe life into a ‘nonexistent’ lawsuit” and cannot “cure a situation in which plaintiffs may have stated causes of action that they have no standing to litigate.” McClune v. Shamah, 593 F.2d 482, 486 (3d Cir. 1979).
8 DAI never showed which constituents had exhausted administrative remedies, and indeed one of its own witnesses testified that his application for new housing was in process while the case was at trial. JA198 (Tr. 616).
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III. THE ADA DOES NOT REQUIRE MASSIVE EXPANSION AND RECONFIGURATION OF THE STATE’S SUPPORTED-HOUSING PROGRAM At bottom, the court held that, because the State makes supported housing
available to some individuals with disabilities, the ADA and Section 504 mandate that the State create an extensive system of supported housing and affirmatively channel adult-home residents into it, while largely terminating state support for the adult home system, notwithstanding the continued need and desire of many individuals for adult-home care. That claim, however, bears no resemblance to the “discriminatory animus against the disabled” that Title II combats (Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)), and is foreclosed by precedent from the Supreme Court and this Court.
In Olmstead, the Supreme Court held that Title II creates a “qualified” right on the part of individuals “confine[d]” by the State (527 U.S. at 593) to “community-based treatment” if (i) “the State’s treatment professionals determine that such placement is appropriate,” (ii) “the affected persons do not oppose such treatment,” and (iii) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities” (id. at 607).
Ordering the wholesale creation of an extensive and expensive housing program dedicated to a particular subset of the mentally disabled population who are
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not confined and who voluntarily chose to reside in adult homes—without the participation in the litigation of the very individuals whose housing rights are at stake and without a single finding that any individual housing placement decision by state officials was unreasonable—lacks any basis in Title II or Olmstead.9
A. Treatment Professionals Reasonably Determined That Adult Home Placement Was Appropriate
Title II is neither a manual for a state-wide mental health program nor is it a mandate to preferentially divert limited governmental resources to create benefit programs that do not exist, and certainly not for one subgroup of individuals with disabilities at the expense of other disabled individuals. Title II, instead, requires that States not exclude or discriminate in the administration of the services and programs they already “provide[].” 42 U.S.C. § 12131(2). The discrimination in Olmstead occurred because the State itself had determined that there was no need to “confine” the plaintiffs in psychiatric hospitals and because the State could reasonably accommodate less restrictive placement. 527 U.S. at 602-03. The test under Title II turns upon the reasonableness of the State’s treatment determination. Id. at 602.
9 Contrary to the district court’s decision, the Supreme Court has not determined that the Rehabilitation Act considers the absence of community placement to be a form of discrimination. Olmstead, 527 U.S. at 600 n.11.
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In this case, however, there has been no finding that the State’s treatment of a single individual with a disability was unreasonable. Each individual in the adult homes at issue in this case—and in all State-supported housing for the mentally ill—obtained housing following an individualized assessment and referral by the system the State administers and which is designed precisely to offer people the opportunity to choose appropriate services. JA410 (Tr. 1462). The individualized assessment provided by the State’s system evaluates psychiatric stability, ability to comply with a treatment program, suicide risk, medication management, and other factors bearing on the level of support and supervision a mentally disabled individual would need to have a successful housing placement. JA522-23 (Tr. 1907-11). No individual is required to move into any particular housing situation, and any individuals who choose to enter adult homes are free to leave at any time.
There is nothing unreasonable about designing a voluntary housing referral system that depends upon individualized assessments of ability and needs, or that offers individuals different housing options. Nor was it unreasonable for the State to include adult homes as one of the available options because of the large number of individuals with mental disabilities who either need or want the level of support and supervision that adult homes provide. Beyond that, the record is devoid of any finding that any individual housing assessment or referral was unreasonable. Indeed, only two of the 4,300 current residents of the adult homes at issue testified—
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none were parties—and even as to those two, the district court did not undertake an individualized review of their assessments and referrals based on the full record before their treatment professionals.
Instead, the court ruled globally that the State discriminated against individuals with disabilities by not conducting, sua sponte, ongoing reviews of every individuals’ eligibility for a change in referral. That was wrong for three reasons.
First, simply finding that there is a different way of evaluating housing needs—state initiated rather than individually initiated—does not mean that the existing way is unreasonable or discriminatory. That is particularly true when, as here, there is no record basis for concluding that any significant percentage of the 4,300 individuals’ original assessments would have changed had the State initiated a systemic reassessment program using its own criteria rather than those the court has scripted.
Second, the court went much further here and ordered the State to “deem” “virtually all” adult-home residents “qualified for supported housing unless they have . . . (a) severe dementia, (b) a high level of skilled nursing needs that cannot be met in supported housing with services provided by Medicaid home care or waiver services, or (c) are likely to cause imminent danger to themselves or others.” SPA238-39. That categorical determination that supported housing is warranted on such a mass scale, without any individualized State review of the 4,300
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adult-home residents’ needs, capabilities, and desires, ran roughshod over Olmstead’s rule that a state “generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community based program.” 527 U.S. at 602. And Justice Kennedy insisted that the State’s medical judgment be afforded “the greatest of deference.” Id. at 610 (Kennedy, J., concurring).10
Olmstead’s focus on the determination made by the State’s referral system under its own criteria is critical because the ADA prohibits exclusion and “discrimination” on the basis of disability (42 U.S.C. § 12132), and if a State program has reasonably determined that a more integrated setting is not appropriate for someone, then the State cannot have “discriminated” against that person simply by referring that individual to housing that the State deems best serves that individual’s needs. Moreover, if the State’s system had made an unreasonable determination in an individual case, the proper remedy is to remand for proper decisionmak-
10 See also, e.g., Washington v. Harper, 494 U.S. 210, 230 n.12 (1990) (“deference . . . is owed to medical professionals,” who “possess, as courts do not, . . . knowledge and expertise.”); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (“decisions made by the appropriate professional are entitled to a presumption of correctness”): P.C. v. McLaughlin, 913 F.2d 1033, 1042 (2d Cir. 1990) (mandating deference to the “judgment exercised by qualified professionals”); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1248 (2d Cir. 1984) (“courts should defer to . . . professional judgment.”).
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ing, not for the court to take over the entire housing program for the mentally disabled and replace it with one facially skewed toward a particular housing outcome.
The district court here went even further and displaced State decisionmaking altogether by not just redesigning the housing program, but also ordering that, going forward, placement evaluations would be made not by the State’s referral system, which relies on the assessment of a resident’s treating medical experts, but by supported housing providers meeting a resident for the first time. SPA239 (determination of “whether such a condition exists shall be made by the providers awarded contracts to develop supported housing and conduct in-reach”). Nothing in Title II licenses reform organizations or courts, without a single individualized finding of unreasonable State decisionmaking, to push the State out of the treatment process altogether and order them simply to write the checks for housing decisions made by private housing providers.
Third, there is nothing unreasonable about the State determining, in the context of voluntary placement decisions by individuals, that re-evaluations will be made on the request of the individual rather than on a continuous basis by the State itself. Under New York’s program, the State is not confining anyone or even making the actual housing decision. It simply provides a stipend with a referral system. SPA144, SPA172-73. It makes little sense to impose on the State the burden of constantly reevaluating the needs of individuals who are not under their control
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or day-to-day supervision and who themselves are continuously choosing by their actions whether or not to maintain their current placements. That intervening independent choice breaks the “circuit between government and [individual]” (Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002)), and thus precludes a finding of discrimination by the State. Beyond that, there could be nothing discriminatory about requiring those same individuals whom DAI insists can live independently, care for themselves independently, and maintain their medical care independently to also exercise the independent initiative of simply requesting re-assessment through the State’s referral system.
B. Sufficient Evidence of the Preferences of Individuals With Disabilities Was Lacking
Title II invests individuals with disabilities with the right to appropriate, non-discriminatory treatment. It does not, however, compel those individuals to abandon private housing choices or permit third parties (other than legal guardians, who also were not consulted in this case) to make treatment choices for them without their participation or consultation. The record in this case, in fact, documented the absence of either a large need or desire on the part of adult-home residents to move to supported housing. The State’s earlier creation of a sixty-unit supported housing program took two years just to fill 45 slots. JA493 (Tr. 1794).
The autonomy and even-handed treatment that Title II promotes is not advanced by third-party litigation that, while invoking disabled individuals as “con-
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stituents,” leaves those individuals on the litigation sidelines and seeks a comprehensive overhaul of a state housing program without even consulting the affected individuals, let alone presenting evidence that any significant percentage of the affected individuals desire such change. But now those individuals will have no choice and no say about an adult-home preference, because the remedy ordered in this proxy-litigation of their ADA rights is specifically designed to and inevitably will result in the massive downsizing, if not total closure, of almost all adult home facilities.
C. The Judgment Impermissibly Results in the Fundamental Alteration of State Services
The trial court also violated the third prong of Olmstead, and the underlying regulation on which it rested, by ordering relief that will “fundamentally alter” the nature of the services the State provides. See 28 C.F.R. § 35.130(b)(7).
First, and most basically, the State program at issue under Title II provided financial stipends and housing referrals mediated by the private choice of the disabled individual. The district court has now ordered the State (i) to develop an expansive supported housing program that adds 4,500 new low cost supported-living apartments in New York City dedicated exclusively to current or potential adulthome residents, (ii) to step aside while supported housing providers, rather than the State’s referral system, determine appropriate housing placements, and (iii) to finance the overhaul by cutting back on Medicaid treatment for the individuals and
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by largely terminating state support for adult homes, notwithstanding the undisputed appropriateness of the adult home setting for some individuals with disabilities. That is a profoundly fundamental change.
“[W]here the plaintiffs seek to expand the substantive scope of a program or benefit, they likely seek a fundamental alteration to the existing program or benefit.” American Council of the Blind v. Paulson, 525 F.3d 1256, 1267 (D.C. Cir. 2008). Here, the State’s supported-housing referrals were “exclusively for people with mental illness who are able to live independently with minimal support services” (SX(3)-239; see SX(2)-160), and were in “serious jeopardy” of being placed in the community without proper support (i.e., made homeless). 14 N.Y.C.R.R. 575.6(b)(3) (defining eligibility for community support services (“CSS”)); see SX(1)-597 (requiring CSS-eligibility for supported housing). The court’s decision, however, mandates the creation of new housing for every adult-home resident— individuals who are not in “serious jeopardy” of being left on the street without support services, excluding only those who need extensive nursing care, are severely demented, or pose a risk of harm. SPA238-39. That is a “mandate [for] the provision of new benefits,” not the non-discriminatory administration of existing benefits, which the ADA does not permit. Rodriguez, 197 F.3d at 619.
Furthermore, the court’s design of a program predicated on the termination of state funding and support for another program—adult homes—defies the Su-
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preme Court’s admonition in Olmstead that “the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk.” 527 U.S. at 604.
So too, the district court’s determination that the State can finance the courtdesigned supported housing program by cutting back medical services for disabled individuals is in the teeth of Justice Kennedy’s warning that it “would be unreasonable, it would be a tragic event, then, were the . . . [ADA] to be interpreted so that States . . . dr[o]ve those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” Olmstead, 527 U.S. at 610 (Kennedy, J., concurring). Yet that is precisely what the district court did when it ruled—without a single disabled individual before it as a party or any evidence of any particular resident’s medical needs—that adult-home residents “over-utiliz[e]” medical care and thus can safely be denied, e.g., frequent primary care physician visits that the court concluded were wasteful in every case. SPA177.
Fundamentally, the court erred in defining the relevant Title II program to be not what the State does provide, but what theoretically it could provide. Proving the point, the court defined the eligibility requirements for supported housing by looking to the criteria that aspiring housing providers proposed, rather than to the State’s more focused supported housing program. See SPA120-23 & nn.297-301,
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308, 316. But Title II only applies to individuals who meet “the essential eligibility requirements for the receipt of services” that are actually “provided by” a public entity. Rodriguez, 197 F.3d at 618. It does not license courts to imagine the optimal program—to the exclusion of budgetary realities and all the competing demands on State resources, including by other individuals with disabilities—and order the State to “change the way” it “manage[s] . . . mental health services.” SPA228.
Second, Olmstead made clear that Title II does not command States to rob Peter to pay Paul. “In evaluating a State’s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, . . . the range of services the State provides to others with mental disabilities, and the State’s obligation to mete out those services equitably.” Olmstead, 527 U.S. at 597. That is because “the purposes of [the ADA and the Rehabilitation Act] are to eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and the able-bodied.” Pfrommer, 148 F.3d at 82. Challenges not to discriminatory treatment or exclusion, but instead “to the allocation of resources among the disabled,” like the challenge here, “are disfavored.” Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995) (Rehabilitation Act); Pfrommer, 148 F.3d at 82 (ADA). Accordingly, under Title II’s “integration mandate . . . courts must not tinker with comprehensive, effective state programs for providing care to
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the disabled.” The Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005). Courts must “be sympathetic to fundamental alteration defenses, and . . . give states ‘leeway’ in administering services for the disabled.” Id.
The district court’s order did the opposite, ordering the preferential dedication of a substantial number of exceedingly scarce housing units to individuals who already have safe housing. That decision necessarily comes at the expense of those mentally disabled individuals who are competing for the same limited housing resources from a much more vulnerable position, such as homelessness, temporary shelters, or transitional programs. See JA372 (Tr. 1310-12) (opening supported housing to a large group of adult-home residents would “affect other groups competing for similar housing” by reducing the number of beds available); JA582-83 (Tr. 2150-51). After all, the supported housing program relies on the availability of affordable housing in the New York City rental market (JA736 (Tr. 2802); see also JA404 (Tr. 1437-39)), where there are “never enough housing resources to meet the needs of anywhere near the people that are in the mental health system” (JA835 (Tr. 3198-99)). Subsidized housing for the mentally disabled, in other words, is a zero sum game: setting aside a large portion of those apartments for one group of individuals (adult-home residents) inevitably denies supported housing to other mentally disabled individuals whom the State deems more immediately needy.
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The court’s answer was simply to order the State to create enough supported housing to accommodate everyone. SPA235. But the State cannot just conjure up cheap apartments in New York City. OMH can only “pay up to the approved stipend amount” of $15,000 per individual per year, which must cover “rent, utilities, insurance, rent deposits” as well as “furniture” and all “case management.” JA539 (Tr. 1978). While free apartments with limitless care for all who want and need it is a laudable goal, Title II does not cast aside the realities of limited housing resources or the very real financial constraints governing the benefit programs that States must make, particularly at a time when State budgets are under extraordinary strain.
Third, Olmstead respects budgetary realities by requiring courts to “tak[e] into account the resources available to the State” (527 U.S. at 607), a determination that itself requires deference to State budgetary judgments. The district court’s finding that its sweeping relief would not “increase costs to the State” (SPA200) disregarded the contrary conclusion of the State’s budget experts. But it is the states, not federal courts, that have the experience juggling state-wide budgets and balancing the extensive demands of the entire population on fiscal resources, and it is the states, not federal courts, that the taxpayers will hold accountable for the choices made.
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To illustrate, the district court predicted that supported-housing apartments will cost 0.5% less than adult-home beds, for a savings of $146. But that conclusion overlooked uncontroverted testimony that, when supported housing providers apply for financing assistance from the State, the cost of their supported housing increases by $11,600 per year, per unit, turning the court’s predicted $146 savings into a $11,454 cost. JA730 (Tr. 2776). Basic federalism principles foreclose Monday-morning accounting via institutional reform litigation. See Olmstead, 527 U.S. at 610 (noting the “federalism costs inherent in referring state decisions regarding the administration of treatment programs and the allocation of resources to the reviewing authority of the federal courts”) (Kennedy, J., concurring); Rizzo v. Goode, 423 U.S. 362, 380 (1976) (“principles of federalism which play such an important part in governing the relationship between federal courts and state governments” apply “where injunctive relief is sought . . . against those in charge of an executive branch of an agency of state or local governments”).
Fourth, the lack of participation by the affected individuals with disabilities fatally infects the remedy the court ordered. Direct participation by those whose rights are at stake assures “that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, 454 U.S. at 472. Only two current adult-home residents tes-
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tified in support of DAI’s position, and not one of them was a party.11 The rest of the testimony was a battle between advocates and former policymakers on the one hand and current agency experts on the other.
While such debates are appropriate for the policy arena, it is profoundly wrong to employ them as the basis for judicially reconstructing state mental health programs in the purported names of individuals who have had no say in and absolutely no control over the litigation that adjudicates their housing rights and desires. Such expansive and consequential relief cannot be predicated on a record that did not find that the ADA rights of a single individual had been violated, did not find that anyone in particular was entitled to be moved to supported housing, and did not order that the State relocate any individual.
In Lewis v. Casey, 518 U.S. 343 (1996), the plaintiffs similarly put on evidence that they claimed showed the likely violation of the constitutional rights of thousands of inmates. But they proved “actual injury on the part of only one named plaintiff.” Id. at 358. The district court ordered sweeping relief to transform the prison library system. The Supreme Court held that, because only two
11 Plaintiffs submitted sealed depositions of eight current and four former adult-home residents. Even so the voices of just sixteen individuals were heard, a fraction of the 4,300 who live in the relevant homes. And the submitted testimony was not subject to cross-examination and is not part of the public record. Secret, untested evidence cannot provide an appropriate basis for massively overhauling a state housing program.
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specific examples of violations had been proven, the district court could only order a remedy for those two individuals.
Lewis controls here and obligated the court to limit its relief to the individual unreasonable placement decisions it found in this case—of which there were none. While it “is the role of courts to provide relief to claimants . . . who have suffered, or will imminently suffer, actual harm,” it is not the court’s role “to shape the institutions of government in such fashion as to comply with the laws and the Constitution” in the absence of particularized findings of violations of the law. Id. at 349. Those individualized determinations are at the core of Olmstead’s recognition of a right to appropriate placement. Litigation that proceeds both without individual parties, without individual treatment records, and without a single individualized finding of erroneous placement is not what the ADA licenses.
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ADDENDUM

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8

CONSTITUTION OF THE UNITED STATES

lic Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
3 The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
SECTION 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
SECTION 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
ARTICLE III.
SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
SECTION 2. 1 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States will be a party;—to Controversies between two or more States;—between a State and Citizens of another State; 10—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
2 In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
3 The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed

10 This clause has been affected by amendment XI.

Addendum 1
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CONSTITUTION OF THE UNITED STATES

9

within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
SECTION 3. 1 Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
2 The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

ARTICLE IV.
SECTION 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
SECTION 2. 1 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2 A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.11
SECTION 3. 1 New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
2 The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
SECTION 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ARTICLE V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which,

11 This clause has been affected by amendment XIII.

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Sec. 12206. 12207. 12208. 12209. 12210. 12211. 12212. 12213.

Technical assistance. Federal wilderness areas. Transvestites. Instrumentalities of Congress. Illegal use of drugs. Definitions. Alternative means of dispute resolution. Severability.

§ 12101. Findings and purpose
(a) Findings
The Congress finds that— (1) some 43,000,000 Americans have one or
more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
(8) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity

to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity. (b) Purpose
It is the purpose of this chapter— (1) to provide a clear and comprehensive na-
tional mandate for the elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.
(Pub. L. 101–336, § 2, July 26, 1990, 104 Stat. 328.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out below and Tables.
SHORT TITLE
Section 1(a) of Pub. L. 101–336 provided that: ‘‘This Act [enacting this chapter and section 225 of Title 47, Telegraphs, Telephones, and Radiotelegraphs, amending section 706 of Title 29, Labor, and sections 152, 221, and 611 of Title 47, and enacting provisions set out as notes under sections 12111, 12131, 12141, 12161, and 12181 of this title] may be cited as the ‘Americans with Disabilities Act of 1990’.’’
STUDY BY GENERAL ACCOUNTING OFFICE OF EXISTING DISABILITY-RELATED EMPLOYMENT INCENTIVES
Pub. L. 106–170, title III, § 303(a), Dec. 17, 1999, 113 Stat. 1903, provided that, as soon as practicable after Dec. 17, 1999, the Comptroller General was to undertake a study to assess existing tax credits and other disability-related employment incentives under the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and other Federal laws, specifically addressing the extent to which such credits and other incentives would encourage employers to hire and retain individuals with disabilities; and that, not later than 3 years after Dec. 17, 1999, the Comptroller General was to transmit to the appropriate congressional committees a written report presenting the results of the study and any appropriate recommendations for legislative or administrative changes.
§ 12102. Definitions
As used in this chapter: (1) Auxiliary aids and services
The term ‘‘auxiliary aids and services’’ includes—
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually deliv-

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ered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions. (2) Disability
The term ‘‘disability’’ means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment. (3) State
The term ‘‘State’’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.
(Pub. L. 101–336, § 3, July 26, 1990, 104 Stat. 329.)
TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.
SUBCHAPTER I—EMPLOYMENT
§ 12111. Definitions
As used in this subchapter: (1) Commission
The term ‘‘Commission’’ means the Equal Employment Opportunity Commission established by section 2000e–4 of this title. (2) Covered entity
The term ‘‘covered entity’’ means an employer, employment agency, labor organization, or joint labor-management committee. (3) Direct threat
The term ‘‘direct threat’’ means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. (4) Employee
The term ‘‘employee’’ means an individual employed by an employer. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. (5) Employer
(A) In general
The term ‘‘employer’’ means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

(B) Exceptions
The term ‘‘employer’’ does not include— (i) the United States, a corporation
wholly owned by the government of the United States, or an Indian tribe; or
(ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of title 26.
(6) Illegal use of drugs
(A) In general
The term ‘‘illegal use of drugs’’ means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.
(B) Drugs
The term ‘‘drug’’ means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act [21 U.S.C. 812].
(7) Person, etc.
The terms ‘‘person’’, ‘‘labor organization’’, ‘‘employment agency’’, ‘‘commerce’’, and ‘‘industry affecting commerce’’, shall have the same meaning given such terms in section 2000e of this title.
(8) Qualified individual with a disability
The term ‘‘qualified individual with a disability’’ means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
(9) Reasonable accommodation
The term ‘‘reasonable accommodation’’ may include—
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(10) Undue hardship
(A) In general
The term ‘‘undue hardship’’ means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

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apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Nuclear Regulatory Commission); and
(C) employees comply with the standards established in such regulations of the Department of Transportation, if the employees of the covered entity are employed in a transportation industry subject to such regulations, including complying with such regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Department of Transportation). (d) Drug testing (1) In general
For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination. (2) Construction
Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results. (e) Transportation employees
Nothing in this subchapter shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transportation of authority to—
(1) test employees of such entities in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and
(2) remove such persons who test positive for illegal use of drugs and on-duty impairment by alcohol pursuant to paragraph (1) from safety-sensitive duties in implementing subsection (c) of this section.
(Pub. L. 101–336, title I, § 104, July 26, 1990, 104 Stat. 334.)
REFERENCES IN TEXT
The Drug-Free Workplace Act of 1988, referred to in subsec. (c)(3), is subtitle D (§§ 5151–5160) of title V of Pub. L. 100–690, Nov. 18, 1988, 102 Stat. 4304, which is classified generally to chapter 10 (§ 701 et seq.) of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 41 and Tables.
§ 12115. Posting notices
Every employer, employment agency, labor organization, or joint labor-management committee covered under this subchapter shall post notices in an accessible format to applicants, employees, and members describing the applicable provisions of this chapter, in the manner prescribed by section 2000e–10 of this title.
(Pub. L. 101–336, title I, § 105, July 26, 1990, 104 Stat. 336.)
§ 12116. Regulations
Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an acces-

sible format to carry out this subchapter in accordance with subchapter II of chapter 5 of title 5.
(Pub. L. 101–336, title I, § 106, July 26, 1990, 104 Stat. 336.)
§ 12117. Enforcement
(a) Powers, remedies, and procedures
The powers, remedies, and procedures set forth in sections 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.
(b) Coordination
The agencies with enforcement authority for actions which allege employment discrimination under this subchapter and under the Rehabilitation Act of 1973 [29 U.S.C. 701 et seq.] shall develop procedures to ensure that administrative complaints filed under this subchapter and under the Rehabilitation Act of 1973 are dealt with in a manner that avoids duplication of effort and prevents imposition of inconsistent or conflicting standards for the same requirements under this subchapter and the Rehabilitation Act of 1973. The Commission, the Attorney General, and the Office of Federal Contract Compliance Programs shall establish such coordinating mechanisms (similar to provisions contained in the joint regulations promulgated by the Commission and the Attorney General at part 42 of title 28 and part 1691 of title 29, Code of Federal Regulations, and the Memorandum of Understanding between the Commission and the Office of Federal Contract Compliance Programs dated January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations implementing this subchapter and Rehabilitation Act of 1973 not later than 18 months after July 26, 1990.
(Pub. L. 101–336, title I, § 107, July 26, 1990, 104 Stat. 336.)
REFERENCES IN TEXT
The Rehabilitation Act of 1973, referred to in subsec. (b), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355, as amended, which is classified generally to chapter 16 (§ 701 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 29 and Tables.
SUBCHAPTER II—PUBLIC SERVICES
PART A—PROHIBITION AGAINST DISCRIMINATION AND OTHER GENERALLY APPLICABLE PROVISIONS
§ 12131. Definitions
As used in this subchapter:
(1) Public entity
The term ‘‘public entity’’ means— (A) any State or local government; (B) any department, agency, special pur-
pose district, or other instrumentality of a State or States or local government; and

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(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) 1 of title 49).
(2) Qualified individual with a disability
The term ‘‘qualified individual with a disability’’ means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
(Pub. L. 101–336, title II, § 201, July 26, 1990, 104 Stat. 337.)
REFERENCES IN TEXT
Section 24102 of title 49, referred to in par. (1)(C), was subsequently amended, and section 24102(4) no longer defines ‘‘commuter authority’’. However, such term is defined elsewhere in that section.
CODIFICATION
In par. (1)(C), ‘‘section 24102(4) of title 49’’ substituted for ‘‘section 103(8) of the Rail Passenger Service Act’’ on authority of Pub. L. 103–272, § 6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation.
EFFECTIVE DATE
Section 205 of Pub. L. 101–336 provided that: ‘‘(a) GENERAL RULE.—Except as provided in subsection (b), this subtitle [subtitle A (§§ 201–205) of title II of Pub. L. 101–336, enacting this part] shall become effective 18 months after the date of enactment of this Act [July 26, 1990]. ‘‘(b) EXCEPTION.—Section 204 [section 12134 of this title] shall become effective on the date of enactment of this Act.’’
EX. ORD. NO. 13217. COMMUNITY-BASED ALTERNATIVES FOR INDIVIDUALS WITH DISABILITIES
Ex. Ord. No. 13217, June 18, 2001, 66 F.R. 33155, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to place qualified individuals with disabilities in community settings whenever appropriate, it is hereby ordered as follows:
SECTION 1. Policy. This order is issued consistent with the following findings and principles:
(a) The United States is committed to communitybased alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans.
(b) The United States seeks to ensure that America’s community-based programs effectively foster independence and participation in the community for Americans with disabilities.
(c) Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 [12131] et seq. States must avoid disability-based discrimination unless doing so would fundamentally alter the nature of the service, program, or activity provided by the State.
(d) In Olmstead v. L.C., 527 U.S. 581 (1999) (the ‘‘Olmstead decision’’), the Supreme Court construed Title II of the ADA [42 U.S.C. 12131 et seq.] to require States to place qualified individuals with mental disabilities in community settings, rather than in institu-
1 See References in Text note below.

tions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the State can reasonably accommodate the placement, taking into account the resources available to the State and the needs of others with disabilities.
(e) The Federal Government must assist States and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life.
SEC. 2. Swift Implementation of the Olmstead Decision: Agency Responsibilities. (a) The Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration shall work cooperatively to ensure that the Olmstead decision is implemented in a timely manner. Specifically, the designated agencies should work with States to help them assess their compliance with the Olmstead decision and the ADA [42 U.S.C. 12101 et seq.] in providing services to qualified individuals with disabilities in community-based settings, as long as such services are appropriate to the needs of those individuals. These agencies should provide technical guidance and work cooperatively with States to achieve the goals of Title II of the ADA [42 U.S.C. 12131 et seq.], particularly where States have chosen to develop comprehensive, effectively working plans to provide services to qualified individuals with disabilities in the most integrated settings. These agencies should also ensure that existing Federal resources are used in the most effective manner to support the goals of the ADA. The Secretary of Health and Human Services shall take the lead in coordinating these efforts.
(b) The Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration shall evaluate the policies, programs, statutes, and regulations of their respective agencies to determine whether any should be revised or modified to improve the availability of community-based services for qualified individuals with disabilities. The review shall focus on identifying affected populations, improving the flow of information about supports in the community, and removing barriers that impede opportunities for community placement. The review should ensure the involvement of consumers, advocacy organizations, providers, and relevant agency representatives. Each agency head should report to the President, through the Secretary of Health and Human Services, with the results of their evaluation within 120 days.
(c) The Attorney General and the Secretary of Health and Human Services shall fully enforce Title II of the ADA, including investigating and resolving complaints filed on behalf of individuals who allege that they have been the victims of unjustified institutionalization. Whenever possible, the Department of Justice and the Department of Health and Human Services should work cooperatively with States to resolve these complaints, and should use alternative dispute resolution to bring these complaints to a quick and constructive resolution.
(d) The agency actions directed by this order shall be done consistent with this Administration’s budget.
SEC. 3. Judicial Review. Nothing in this order shall affect any otherwise available judicial review of agency action. This order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
GEORGE W. BUSH.
§ 12132. Discrimination
Subject to the provisions of this subchapter, no qualified individual with a disability shall,

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by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
(Pub. L. 101–336, title II, § 202, July 26, 1990, 104 Stat. 337.)
§ 12133. Enforcement
The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.
(Pub. L. 101–336, title II, § 203, July 26, 1990, 104 Stat. 337.)
§ 12134. Regulations
(a) In general
Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 12143, 12149, or 12164 of this title. (b) Relationship to other regulations
Except for ‘‘program accessibility, existing facilities’’, and ‘‘communications’’, regulations under subsection (a) of this section shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of title 29. With respect to ‘‘program accessibility, existing facilities’’, and ‘‘communications’’, such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under section 794 of title 29. (c) Standards
Regulations under subsection (a) of this section shall include standards applicable to facilities and vehicles covered by this part, other than facilities, stations, rail passenger cars, and vehicles covered by part B of this subchapter. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204(a) of this title.
(Pub. L. 101–336, title II, § 204, July 26, 1990, 104 Stat. 337.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables.
EFFECTIVE DATE
Section effective July 26, 1990, see section 205(b) of Pub. L. 101–336, set out as a note under section 12131 of this title.

PART B—ACTIONS APPLICABLE TO PUBLIC TRANSPORTATION PROVIDED BY PUBLIC ENTITIES CONSIDERED DISCRIMINATORY
SUBPART I—PUBLIC TRANSPORTATION OTHER THAN
BY AIRCRAFT OR CERTAIN RAIL OPERATIONS
§ 12141. Definitions
As used in this subpart:
(1) Demand responsive system
The term ‘‘demand responsive system’’ means any system of providing designated public transportation which is not a fixed route system.
(2) Designated public transportation
The term ‘‘designated public transportation’’ means transportation (other than public school transportation) by bus, rail, or any other conveyance (other than transportation by aircraft or intercity or commuter rail transportation (as defined in section 12161 of this title)) that provides the general public with general or special service (including charter service) on a regular and continuing basis.
(3) Fixed route system
The term ‘‘fixed route system’’ means a system of providing designated public transportation on which a vehicle is operated along a prescribed route according to a fixed schedule.
(4) Operates
The term ‘‘operates’’, as used with respect to a fixed route system or demand responsive system, includes operation of such system by a person under a contractual or other arrangement or relationship with a public entity.
(5) Public school transportation
The term ‘‘public school transportation’’ means transportation by schoolbus vehicles of schoolchildren, personnel, and equipment to and from a public elementary or secondary school and school-related activities.
(6) Secretary
The term ‘‘Secretary’’ means the Secretary of Transportation.
(Pub. L. 101–336, title II, § 221, July 26, 1990, 104 Stat. 338.)
EFFECTIVE DATE
Section 231 of Pub. L. 101–336 provided that: ‘‘(a) GENERAL RULE.—Except as provided in subsection (b), this part [part I (§§ 221–231) of subtitle B of title II of Pub. L. 101–336, enacting this subpart] shall become effective 18 months after the date of enactment of this Act [July 26, 1990]. ‘‘(b) EXCEPTION.—Sections 222, 223 (other than subsection (a)), 224, 225, 227(b), 228(b), and 229 [sections 12142, 12143(b) to (f), 12144, 12145, 12147(b), 12148(b), and 12149 of this title] shall become effective on the date of enactment of this Act.’’
§ 12142. Public entities operating fixed route systems
(a) Purchase and lease of new vehicles
It shall be considered discrimination for purposes of section 12132 of this title and section 794 of title 29 for a public entity which operates a fixed route system to purchase or lease a new

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Subsec. (b). Pub. L. 100–630, § 206(c)(2), substituted ‘‘refused’’ for ‘‘refuses’’.
Subsec. (c). Pub. L. 100–630, § 206(c)(3), substituted ‘‘which the President’’ for ‘‘which The President’’ and ‘‘when the President’’ for ‘‘when The President’’.
1986—Subsec. (a). Pub. L. 99–506, §§ 103(d)(2)(C), 1002(e)(3), substituted ‘‘individuals with handicaps’’ for ‘‘handicapped individuals’’ and ‘‘section 706(8) of this title’’ for ‘‘section 706(7) of this title’’.
Subsec. (b). Pub. L. 99–506, §§ 103(d)(2)(B), (C), 1001(f)(2), substituted ‘‘individual with handicaps’’ for ‘‘handicapped individual’’, ‘‘individuals with handicaps’’ for ‘‘handicapped individuals’’, and ‘‘a contract’’ for ‘‘his contract’’.
Subsec. (c). Pub. L. 99–506, § 1001(f)(3), substituted ‘‘The President’’ for ‘‘he’’ in two places and substituted ‘‘the reasons’’ for ‘‘his reasons’’.
1978—Subsec. (a). Pub. L. 95–602 substituted ‘‘section 706(7) of this title’’ for ‘‘section 706(6) of this title’’.
§ 794. Nondiscrimination under Federal grants and programs
(a) Promulgation of rules and regulations
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.
(b) ‘‘Program or activity’’ defined
For the purposes of this section, the term ‘‘program or activity’’ means all of the operations of—
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or
(B) a local educational agency (as defined in section 7801 of title 20), system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3);
any part of which is extended Federal financial assistance.
(c) Significant structural alterations by small providers
Small providers are not required by subsection (a) of this section to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on March 22, 1988.
(d) Standards used in determining violation of section
The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201–12204 and 12210), as such sections relate to employment.
(Pub. L. 93–112, title V, § 504, Sept. 26, 1973, 87 Stat. 394; Pub. L. 95–602, title I, §§ 119, 122(d)(2), Nov. 6, 1978, 92 Stat. 2982, 2987; Pub. L. 99–506, title I, § 103(d)(2)(B), title X, § 1002(e)(4), Oct. 21, 1986, 100 Stat. 1810, 1844; Pub. L. 100–259, § 4, Mar. 22, 1988, 102 Stat. 29; Pub. L. 100–630, title II, § 206(d), Nov. 7, 1988, 102 Stat. 3312; Pub. L. 102–569, title I, § 102(p)(32), title V, § 506, Oct. 29, 1992, 106 Stat. 4360, 4428; Pub. L. 103–382, title III, § 394(i)(2), Oct. 20, 1994, 108 Stat. 4029; Pub. L. 105–220, title IV, § 408(a)(3), Aug. 7, 1998, 112 Stat. 1203; Pub. L. 107–110, title X, § 1076(u)(2), Jan. 8, 2002, 115 Stat. 2093.)
REFERENCES IN TEXT
The amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, referred to in subsec. (a), mean the amendments made by Pub. L. 95–602. See 1978 Amendments note below.
The Americans with Disabilities Act of 1990, referred to in subsec. (d), is Pub. L. 101–336, July 26, 1990, 104 Stat. 327, as amended. Title I of the Act is classified generally to subchapter I (§ 12111 et seq.) of chapter 126 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of Title 42 and Tables.
AMENDMENTS
2002—Subsec. (b)(2)(B). Pub. L. 107–110 substituted ‘‘section 7801 of title 20’’ for ‘‘section 8801 of title 20’’.
1998—Subsec. (a). Pub. L. 105–220 substituted ‘‘section 705(20)’’ for ‘‘section 706(8)’’.
1994—Subsec. (b)(2)(B). Pub. L. 103–382 substituted ‘‘section 8801 of title 20’’ for ‘‘section 2891(12) of title 20’’.
1992—Subsec. (a). Pub. L. 102–569, § 102(p)(32), substituted ‘‘a disability’’ for ‘‘handicaps’’ and ‘‘disability’’ for ‘‘handicap’’ in first sentence.

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TITLE 29—LABOR

§ 794b

Subsec. (d). Pub. L. 102–569, § 506, added subsec. (d). 1988—Subsec. (a). Pub. L. 100–630, § 206(d)(1), substituted ‘‘her or his handicap’’ for ‘‘his handicap’’. Pub. L. 100–259, § 4(1), designated existing provisions as subsec. (a). Subsec. (b). Pub. L. 100–259, § 4(2), added subsec. (b). Subsec. (b)(2)(B). Pub. L. 100–630, § 206(d)(2), substituted ‘‘section 2891(12) of title 20’’ for ‘‘section 2854(a)(10) of title 20’’. Subsec. (c). Pub. L. 100–259, § 4(2), added subsec. (c). 1986—Pub. L. 99–506 substituted ‘‘individual with handicaps’’ for ‘‘handicapped individual’’ and ‘‘section 706(8) of this title’’ for ‘‘section 706(7) of this title’’. 1978—Pub. L. 95–602 substituted ‘‘section 706(7) of this title’’ for ‘‘section 706(6) of this title’’ and inserted provision prohibiting discrimination under any program or activity conducted by any Executive agency or by the United States Postal Service and requiring the heads of these agencies to promulgate regulations prohibiting discrimination.
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107–110 effective Jan. 8, 2002, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 107–110, set out as an Effective Date note under section 6301 of Title 20, Education.
EXCLUSION FROM COVERAGE
Amendment by Pub. L. 100–259 not to be construed to extend application of this chapter to ultimate beneficiaries of Federal financial assistance excluded from coverage before Mar. 22, 1988, see section 7 of Pub. L. 100–259, set out as a Construction note under section 1687 of Title 20, Education.
ABORTION NEUTRALITY
Amendment by Pub. L. 100–259 not to be construed to force or require any individual or hospital or any other institution, program, or activity receiving Federal funds to perform or pay for an abortion, see section 8 of Pub. L. 100–259, set out as a note under section 1688 of Title 20, Education.
CONSTRUCTION OF PROHIBITION AGAINST DISCRIMINATION UNDER FEDERAL GRANTS
Rights or protections of this section not affected by any provision of Pub. L. 98–457, see section 127 of Pub. L. 98–457, set out as a note under section 5101 of Title 42, The Public Health and Welfare.
COORDINATION OF IMPLEMENTATION AND ENFORCEMENT OF PROVISIONS
For provisions relating to the coordination of implementation and enforcement of the provisions of this section by the Attorney General, see section 1–201 of Ex. Ord. No. 12250, Nov. 2, 1980, 45 F.R. 72995, set out as a note under section 2000d–1 of Title 42, The Public Health and Welfare.
EXECUTIVE ORDER NO. 11914
Ex. Ord. No. 11914, Apr. 28, 1976, 41 F.R. 17871, which related to nondiscrimination in federally assisted programs, was revoked by Ex. Ord. No. 12250, Nov. 2, 1980, 45 F.R. 72995, set out as a note under section 2000d–1 of Title 42, The Public Health and Welfare.
§ 794a. Remedies and attorney fees
(a)(1) The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), including the application of sections 706(f) through 706(k) (42 U.S.C. 2000e–5(f) through (k)), shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final

action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.
(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.
(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
(Pub. L. 93–112, title V, § 505, as added Pub. L. 95–602, title I, § 120(a), Nov. 6, 1978, 92 Stat. 2982.)
REFERENCES IN TEXT
The Civil Rights Act of 1964, referred to in subsec. (a)(2), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241, as amended. Title VI of the Civil Rights Act of 1964 is classified generally to subchapter V (§ 2000d et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
§ 794b. Removal of architectural, transportation, or communication barriers; technical and financial assistance; compensation of experts or consultants; authorization of appropriations
(a) The Secretary may provide directly or by contract with State vocational rehabilitation agencies or experts or consultants or groups thereof, technical assistance—
(1) to persons operating community rehabilitation programs; and
(2) with the concurrence of the Access Board established by section 792 of this title, to any public or nonprofit agency, institution, or organization;
for the purpose of assisting such persons or entities in removing architectural, transportation, or communication barriers. Any concurrence of the Access Board under paragraph (2) shall reflect its consideration of cost studies carried out by States.
(b) Any such experts or consultants, while serving pursuant to such contracts, shall be entitled to receive compensation at rates fixed by the Secretary, but not exceeding the daily equivalent of the rate of pay for level 4 of the Senior Executive Service Schedule under section 5382 of title 5, including travel time, and while so serving away from their homes or regular places of business, they may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5 for persons in the Government service employed intermittently.
(c) The Secretary, with the concurrence of the Access Board and the President, may provide, directly or by contract, financial assistance to

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Sec. 10825. 10826. 10827.

Technical assistance. Administration. Authorization of appropriations.

SUBCHAPTER II—RESTATEMENT OF BILL OF RIGHTS FOR MENTAL HEALTH PATIENTS

10841. Restatement of bill of rights.

SUBCHAPTER III—CONSTRUCTION

10851.

Construction of subchapters I and II; ‘‘individual with mental illness’’ defined.

SUBCHAPTER I—PROTECTION AND ADVOCACY SYSTEMS

PART A—ESTABLISHMENT OF SYSTEMS

§ 10801. Congressional findings and statement of purpose

(a) The Congress finds that— (1) individuals with mental illness are vul-
nerable to abuse and serious injury; (2) family members of individuals with men-
tal illness play a crucial role in being advocates for the rights of individuals with mental illness where the individuals are minors, the individuals are legally competent and choose to involve the family members, and the individuals are legally incompetent and the legal guardians, conservators, or other legal representatives are members of the family;
(3) individuals with mental illness are subject to neglect, including lack of treatment, adequate nutrition, clothing, health care, and adequate discharge planning; and
(4) State systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate.
(b) The purposes of this chapter are— (1) to ensure that the rights of individuals
with mental illness are protected; and (2) to assist States to establish and operate
a protection and advocacy system for individuals with mental illness which will—
(A) protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and
(B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.
(Pub. L. 99–319, title I, § 101, May 23, 1986, 100 Stat. 478; Pub. L. 102–173, §§ 3, 10(2), Nov. 27, 1991, 105 Stat. 1217, 1219.)

REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 99–319, May 23, 1986, 100 Stat. 478, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note below and Tables.

AMENDMENTS
1991—Subsec. (a). Pub. L. 102–173, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ in three places.
Subsec. (a)(2) to (4). Pub. L. 102–173, § 3, added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.

Subsec. (b). Pub. L. 102–173, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ in three places.
SHORT TITLE OF 1991 AMENDMENT
Section 1 of Pub. L. 102–173 provided that: ‘‘This Act [amending this section and sections 10802 to 10807, 10821, 10824, 10826, 10827, 10841, and 10851 of this title] may be cited as the ‘Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991’.’’
SHORT TITLE OF 1988 AMENDMENT
Pub. L. 100–509, § 1, Oct. 20, 1988, 102 Stat. 2543, provided that: ‘‘This Act [amending sections 10802, 10804 to 10806, 10821, 10822, 10825, and 10827 of this title and enacting a provision set out as a note under section 10827 of this title] may be cited as the ‘Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1988’.’’
SHORT TITLE
Pub. L. 99–319, § 1, May 23, 1986, 100 Stat. 478, as amended by Pub. L. 106–310, div. B, title XXXII, § 3206(a), Oct. 17, 2000, 114 Stat. 1193, provided that: ‘‘This Act [enacting this chapter and section 247a of this title and enacting provisions set out as a note below] may be cited as the ‘Protection and Advocacy for Individuals with Mental Illness Act’.’’
SUPERSEDURE OF BALANCED BUDGET PROVISIONS
Section 402 of Pub. L. 99–319 provided that: ‘‘This Act [see Short Title note above] shall not be construed as superseding any of the balanced budget provisions set forth in section 3(7) of the Congressional Budget and Impoundment Control Act of 1974 [2 U.S.C. 622(7)].’’
§ 10802. Definitions
For purposes of this subchapter: (1) The term ‘‘abuse’’ means any act or fail-
ure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to a 1 individual with mental illness, and includes acts such as—
(A) the rape or sexual assault of a 1 individual with mental illness;
(B) the striking of a 1 individual with mental illness;
(C) the use of excessive force when placing a 1 individual with mental illness in bodily restraints; and
(D) the use of bodily or chemical restraints on a 1 individual with mental illness which is not in compliance with Federal and State laws and regulations.
(2) The term ‘‘eligible system’’ means the system established in a State to protect and advocate the rights of persons with developmental disabilities under subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 [42 U.S.C. 15041 et seq.].
(3) The term ‘‘facilities’’ may include, but need not be limited to, hospitals, nursing homes, community facilities for individuals with mental illness, board and care homes, homeless shelters, and jails and prisons.
(4) The term ‘‘individual with mental illness’’ means, except as provided in section 10804(d) of this title, an individual—
1 So in original. Probably should be ‘‘an’’.

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§ 10804

(A) who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State; and
(B)(i)(I) who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of such inpatient or resident are unknown;
(II) who is in the process of being admitted to a facility rendering care or treatment, including persons being transported to such a facility; or’’; 2
(III) who is involuntarily confined in a municipal detention facility for reasons other than serving a sentence resulting from conviction for a criminal offense; or
(ii) who satisfies the requirements of subparagraph (A) and lives in a community setting, including their own home.
(5) The term ‘‘neglect’’ means a negligent act or omission by any individual responsible for providing services in a facility rendering care or treatment which caused or may have caused injury or death to a 1 individual with mental illness or which placed a 1 individual with mental illness at risk of injury or death, and includes an act or omission such as the failure to establish or carry out an appropriate individual program plan or treatment plan for a 1 individual with mental illness, the failure to provide adequate nutrition, clothing, or health care to a 1 individual with mental illness, or the failure to provide a safe environment for a 1 individual with mental illness, including the failure to maintain adequate numbers of appropriately trained staff.
(6) The term ‘‘Secretary’’ means the Secretary of Health and Human Services.
(7) The term ‘‘State’’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands.
(8) The term ‘‘American Indian consortium’’ means a consortium established under part C of the Developmental Disabilities Assistance and Bill of Rights Act 3 (42 U.S.C. 6042 et seq.).
(Pub. L. 99–319, title I, § 102, May 23, 1986, 100 Stat. 478; Pub. L. 100–509, § 3, Oct. 20, 1988, 102 Stat. 2543; Pub. L. 102–173, §§ 4, 10(1), Nov. 27, 1991, 105 Stat. 1217, 1219; Pub. L. 106–310, div. B, title XXXII, § 3206(b), Oct. 17, 2000, 114 Stat. 1194; Pub. L. 106–402, title IV, § 401(b)(13)(A), Oct. 30, 2000, 114 Stat. 1739.)
REFERENCES IN TEXT
The Developmental Disabilities Assistance and Bill of Rights Act of 2000, referred to in par. (2), is Pub. L. 106–402, Oct. 30, 2000, 114 Stat. 1677. Subtitle C of the Act probably means subtitle C of title I of the Act, which is classified generally to part C (§ 15041 et seq.) of subchapter I of chapter 144 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 15001 of this title and Tables.
The Developmental Disabilities Assistance and Bill of Rights Act, referred to in par. (8), is title I of Pub. L. 88–164, as added by Pub. L. 98–527, § 2, Oct. 19, 1984, 98
2 So in original. 3 See References in Text note below.

Stat. 2662, as amended, which was repealed by Pub. L. 106–402, title IV, § 401(a), Oct. 30, 2000, 114 Stat. 1737. Part C of the Act was classified generally to subchapter III (§ 6041 et seq.) of chapter 75 of this title. For complete classification of this Act to the Code, see Tables.
AMENDMENTS
2000—Par. (2). Pub. L. 106–402 substituted ‘‘subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000’’ for ‘‘part C of the Developmental Disabilities Assistance and Bill of Rights Act’’.
Par. (4). Pub. L. 106–310, § 3206(b)(1)(A), inserted ‘‘, except as provided in section 10804(d) of this title,’’ after ‘‘means’’ in introductory provisions.
Par. (4)(B). Pub. L. 106–310, § 3206(b)(1)(B), designated existing provisions as cl. (i), redesignated former cls. (i) to (iii) as subcls. (I) to (III), respectively, of cl. (i), and added cl. (ii).
Par. (8). Pub. L. 106–310, § 3206(b)(2), added par. (8). 1991—Par. (1). Pub. L. 102–173, § 10(1), substituted ‘‘individual with mental illness’’ for ‘‘mentally ill individual’’ wherever appearing. Pars. (3) to (7). Pub. L. 102–173 added par. (3), redesignated former pars. (3) to (6) as (4) to (7), respectively, and substituted ‘‘individual with mental illness’’ for ‘‘mentally ill individual’’ wherever appearing in pars. (4) and (5). 1988—Par. (1). Pub. L. 100–509, § 3(1), inserted ‘‘or death’’ after ‘‘caused, injury’’. Par. (3)(B). Pub. L. 100–509, § 3(2), designated existing provisions as cl. (i), substituted ‘‘, even if the whereabouts of such inpatient or resident are unknown;’’ for period at end, and added cls. (ii) and (iii). Par. (4). Pub. L. 100–509, § 3(3), inserted ‘‘or death’’ after ‘‘injury’’ in two places and inserted before period at end ‘‘, including the failure to maintain adequate numbers of appropriately trained staff’’.
TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.
§ 10803. Allotments
The Secretary shall make allotments under this subchapter to eligible systems to establish and administer systems—
(1) which meet the requirements of section 10805 of this title; and
(2) which are designed to— (A) protect and advocate the rights of indi-
viduals with mental illness; and (B) investigate incidents of abuse and ne-
glect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.
(Pub. L. 99–319, title I, § 103, May 23, 1986, 100 Stat. 479; Pub. L. 102–173, § 10(2), Nov. 27, 1991, 105 Stat. 1219.)
AMENDMENTS
1991—Par. (2). Pub. L. 102–173 substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ in two places.
§ 10804. Use of allotments
(a) Contracts
(1) An eligible system may use its allotment under this subchapter to enter into contracts with State agencies and nonprofit organizations which operate throughout the State. In order to be eligible for a contract under this paragraph—

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(A) such an agency shall be independent of any agency which provides treatment or services (other than advocacy services) to individuals with mental illness; and
(B) such an agency or organization shall have the capacity to protect and advocate the rights of individuals with mental illness.
(2) In carrying out paragraph (1), an eligible system should consider entering into contracts with organizations including, in particular, groups run by individuals who have received or are receiving mental health services, or the family members of such individuals, which,1 provide protection or advocacy services to individuals with mental illness.
(b) Obligation of allotments; technical assistance and training
(1) If an eligible system is a public entity, the government of the State in which the system is located may not require the system to obligate more than 5 percent of its allotment under this subchapter in any fiscal year for administrative expenses.
(2) An eligible system may not use more than 10 percent of any allotment under this subchapter for any fiscal year for the costs of providing technical assistance and training to carry out this subchapter.
(c) Representation of individuals with mental illness
An eligible system may use its allotment under this subchapter to provide representation to individuals with mental illness in Federal facilities who request representation by the eligible system. Representatives of such individuals from such system shall be accorded all the rights and authority accorded to other representatives of residents of such facilities pursuant to State law and other Federal laws.
(d) Definition for purposes of representation of individuals with mental illness; priority
The definition of ‘‘individual with a mental illness’’ contained in section 10802(4)(B)(iii) of this title shall apply, and thus an eligible system may use its allotment under this subchapter to provide representation to such individuals, only if the total allotment under this subchapter for any fiscal year is $30,000,000 or more, and in such case, an eligible system must give priority to representing persons with mental illness as defined in subparagraphs (A) and (B)(i) of section 10802(4) of this title.
(Pub. L. 99–319, title I, § 104, May 23, 1986, 100 Stat. 479; Pub. L. 100–509, § 7(a), (b)(1), Oct. 20, 1988, 102 Stat. 2544; Pub. L. 102–173, §§ 5, 10(2), Nov. 27, 1991, 105 Stat. 1217, 1219; Pub. L. 106–310, div. B, title XXXII, § 3206(c), Oct. 17, 2000, 114 Stat. 1194.)
AMENDMENTS
2000—Subsec. (d). Pub. L. 106–310 added subsec. (d). 1991—Subsec. (a). Pub. L. 102–173, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ in three places. Subsec. (c). Pub. L. 102–173, § 5, added subsec. (c). 1988—Subsec. (a)(2). Pub. L. 100–509, § 7(a), substituted ‘‘including, in particular, groups run by individuals

who have received or are receiving mental health services, or the family members of such individuals, which’’ for ‘‘which, on May 23, 1986’’.
Subsec. (b)(2). Pub. L. 100–509, § 7(b)(1), substituted ‘‘10’’ for ‘‘5’’.
§ 10805. System requirements
(a) Authority; independent status; access to facilities and records; advisory council; annual report; grievance procedure
A system established in a State under section 10803 of this title to protect and advocate the rights of individuals with mental illness shall—
(1) have the authority to— (A) investigate incidents of abuse and ne-
glect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred;
(B) pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State; and
(C) pursue administrative, legal, and other remedies on behalf of an individual who—
(i) was a 1 individual with mental illness; and
(ii) is a resident of the State,
but only with respect to matters which occur within 90 days after the date of the discharge of such individual from a facility providing care or treatment;
(2) be independent of any agency in the State which provides treatment or services (other than advocacy services) to individuals with mental illness;
(3) have access to facilities in the State providing care or treatment;
(4) in accordance with section 10806 of this title, have access to all records of—
(A) any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access;
(B) any individual (including an individual who has died or whose whereabouts are unknown)—
(i) who by reason of the mental or physical condition of such individual is unable to authorize the system to have such access;
(ii) who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and
(iii) with respect to whom a complaint has been received by the system or with respect to whom as a result of monitoring or other activities (either of which result from a complaint or other evidence) there is probable cause to believe that such individual has been subject to abuse or neglect; and
(C) any individual with a mental illness, who has a legal guardian, conservator, or

1 So in original. The comma probably should not appear.

1 So in original. Probably should be ‘‘an’’.

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other legal representative, with respect to whom a complaint has been received by the system or with respect to whom there is probable cause to believe the health or safety of the individual is in serious and immediate jeopardy, whenever—
(i) such representative has been contacted by such system upon receipt of the name and address of such representative;
(ii) such system has offered assistance to such representative to resolve the situation; and
(iii) such representative has failed or refused to act on behalf of the individual;
(5) have an arrangement with the Secretary and the agency of the State which administers the State plan under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for the furnishing of the information required by subsection (b) of this section;
(6) establish an advisory council— (A) which will advise the system on poli-
cies and priorities to be carried out in protecting and advocating the rights of individuals with mental illness;
(B) which shall include attorneys, mental health professionals, individuals from the public who are knowledgeable about mental illness, a provider of mental health services, individuals who have received or are receiving mental health services, and family members of such individuals, and at least 60 percent the membership of which shall be comprised of individuals who have received or are receiving mental health services or who are family members of such individuals; and
(C) which shall be chaired by an individual who has received or is receiving mental health services or who is a family member of such an individual;
(7) on January 1, 1987, and January 1 of each succeeding year, prepare and transmit to the Secretary and the head of the State mental health agency of the State in which the system is located a report describing the activities, accomplishments, and expenditures of the system during the most recently completed fiscal year, including a section prepared by the advisory council that describes the activities of the council and its assessment of the operations of the system;
(8) on an annual basis, provide the public with an opportunity to comment on the priorities established by, and the activities of, the system;
(9) establish a grievance procedure for clients or prospective clients of the system to assure that individuals with mental illness have full access to the services of the system and for individuals who have received or are receiving mental health services, family members of such individuals with mental illness, or representatives of such individuals or family members to assure that the eligible system is operating in compliance with the provisions of this subchapter and subchapter III of this chapter; and
(10) not use allotments provided to a system in a manner inconsistent with section 14404 of this title.

(b) Annual survey report; plan of corrections
The Secretary and the agency of a State which administers its State plan under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] shall provide the eligible system of the State with a copy of each annual survey report and plan of corrections for cited deficiencies made pursuant to titles XVIII and XIX of the Social Security Act [42 U.S.C. 1395 et seq., 1396 et seq.] with respect to any facility rendering care or treatment to individuals with mental illness in the State in which such system is located. A report or plan shall be made available within 30 days after the completion of the report or plan.
(c) Governing authority
(1)(A) Each system established in a State, through allotments received under section 10803 of this title, to protect and advocate the rights of individuals with mental illness shall have a governing authority.
(B) In States in which the governing authority is organized as a private non-profit entity with a multi-member governing board, or a public system with a multi-member governing board, such governing board shall be selected according to the policies and procedures of the system. The governing board shall be composed of—
(i) members (to be selected no later than October 1, 1990) who broadly represent or are knowledgeable about the needs of the clients served by the system; and
(ii) in the case of a governing authority organized as a private non-profit entity, members who broadly represent or are knowledgeable about the needs of the clients served by the system including the chairperson of the advisory council of such system.
As used in this subparagraph, the term ‘‘members who broadly represent or are knowledgeable about the needs of the clients served by the system’’ shall be construed to include individuals who have received or are receiving mental health services and family members of such individuals.
(2) The governing authority established under paragraph (1) shall—
(A) be responsible for the planning, design, implementation, and functioning of the system; and
(B) consistent with subparagraph (A), jointly develop the annual priorities of the system with the advisory council.
(Pub. L. 99–319, title I, § 105, May 23, 1986, 100 Stat. 480; Pub. L. 100–509, §§ 4–6(a), 7(c), Oct. 20, 1988, 102 Stat. 2543–2545; Pub. L. 102–173, §§ 6, 10, Nov. 27, 1991, 105 Stat. 1218, 1219; Pub. L. 105–12, § 9(m), Apr. 30, 1997, 111 Stat. 28.)
REFERENCES IN TEXT
The Social Security Act, referred to in subsecs. (a)(5) and (b), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles XVIII and XIX of the Social Security Act are classified generally to subchapters XVIII (§ 1395 et seq.) and XIX (§ 1396 et seq.) of chapter 7 of this title, respectively. For complete classification of this Act to the Code, see section 1305 of this title and Tables.
AMENDMENTS
1997—Subsec. (a)(10). Pub. L. 105–12 added par. (10). 1991—Subsec. (a). Pub. L. 102–173, § 10, substituted ‘‘individual with mental illness’’ for ‘‘mentally ill individ-

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§ 10806

Page 2494

ual’’ and ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ wherever appearing.
Subsec. (a)(4). Pub. L. 102–173, § 6(a), inserted ‘‘as a result of monitoring or other activities (either of which result from a complaint or other evidence)’’ before ‘‘there is’’ in subpar. (B)(iii) and added subpar. (C).
Subsec. (a)(6). Pub. L. 102–173, § 6(b), substituted ‘‘60 percent’’ for ‘‘one-half’’ in subpar. (B) and added subpar. (C).
Subsec. (a)(9). Pub. L. 102–173, § 6(c), inserted before period at end ‘‘and for individuals who have received or are receiving mental health services, family members of such individuals with mental illness, or representatives of such individuals or family members to assure that the eligible system is operating in compliance with the provisions of this subchapter and subchapter III of this chapter’’.
Subsec. (b). Pub. L. 102–173, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’.
Subsec. (c)(1). Pub. L. 102–173, §§ 6(d), 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ in subpar. (A) and inserted at end of subpar. (B) ‘‘As used in this subparagraph, the term ‘members who broadly represent or are knowledgeable about the needs of the clients served by the system’ shall be construed to include individuals who have received or are receiving mental health services and family members of such individuals.’’
1988—Subsec. (a)(4)(B). Pub. L. 100–509, § 6(a), inserted ‘‘(including an individual who has died or whose whereabouts are unknown)’’ after ‘‘any individual’’.
Subsec. (a)(6). Pub. L. 100–509, § 4(1), substituted ‘‘an advisory council’’ for ‘‘a board’’.
Subsec. (a)(7). Pub. L. 100–509, § 5, substituted ‘‘, including a section prepared by the advisory council that describes the activities of the council and its assessment of the operations of the system;’’ for period at end.
Subsec. (a)(8), (9). Pub. L. 100–509, § 7(c), added pars. (8) and (9).
Subsec. (c). Pub. L. 100–509, § 4(2), added subsec. (c).
EFFECTIVE DATE OF 1997 AMENDMENT
Amendment by Pub. L. 105–12 effective Apr. 30, 1997, and applicable to Federal payments made pursuant to obligations incurred after Apr. 30, 1997, for items and services provided on or after such date, subject to also being applicable with respect to contracts entered into, renewed, or extended after Apr. 30, 1997, as well as contracts entered into before Apr. 30, 1997, to the extent permitted under such contracts, see section 11 of Pub. L. 105–12, set out as an Effective Date note under section 14401 of this title.
§ 10806. Access to records
(a) An eligible system which, pursuant to section 10805(a)(4) of this title, has access to records which, under Federal or State law, are required to be maintained in a confidential manner by a provider of mental health services, shall, except as provided in subsection (b) of this section, maintain the confidentiality of such records to the same extent as is required of the provider of such services.
(b)(1) Except as provided in paragraph (2), an eligible system which has access to records pursuant to section 10805(a)(4) of this title may not disclose information from such records to the individual who is the subject of the information if the mental health professional responsible for supervising the provision of mental health services to such individual has provided the system with a written determination that disclosure of such information to such individual would be detrimental to such individual’s health.

(2)(A) If disclosure of information has been denied under paragraph (1) to an individual—
(i) such individual; (ii) the legal guardian, conservator, or other legal representative of such individual; or (iii) an eligible system, acting on behalf of an individual described in subparagraph (B),
may select another mental health professional to review such information and to determine if disclosure of such information would be detrimental to such individual’s health. If such mental health professional determines, based on professional judgment, that disclosure of such information would not be detrimental to the health of such individual, the system may disclose such information to such individual.
(B) An eligible system may select a mental health professional under subparagraph (A)(iii) on behalf of—
(i) an individual whose legal guardian is the State; or
(ii) an individual who has a legal guardian, conservator, or other legal representative other than the State if such guardian, conservator, or representative does not, within a reasonable time after such individual is denied access to information under paragraph (1), select a mental health professional under subparagraph (A) to review such information.
(C) If the laws of a State prohibit an eligible system from obtaining access to the records of individuals with mental illness in accordance with section 10805(a)(4) of this title and this section, section 10805(a)(4) of this title and this section shall not apply to such system before—
(i) the date such system is no longer subject to such a prohibition; or
(ii) the expiration of the 2-year period beginning on May 23, 1986,
whichever occurs first. (3)(A) As used in this section, the term
‘‘records’’ includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.
(B) An eligible system shall have access to the type of records described in subparagraph (A) in accordance with the provisions of subsection (a) of this section and paragraphs (1) and (2) of subsection (b) of this section.
(Pub. L. 99–319, title I, § 106, May 23, 1986, 100 Stat. 481; Pub. L. 100–509, § 6(b), Oct. 20, 1988, 102 Stat. 2544; Pub. L. 102–173, § 10(2), Nov. 27, 1991, 105 Stat. 1219.)
AMENDMENTS
1991—Subsec. (b)(2)(C). Pub. L. 102–173 substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’.
1988—Subsec. (b)(3). Pub. L. 100–509 added par. (3).
§ 10807. Legal actions
(a) Prior to instituting any legal action in a Federal or State court on behalf of a 1 individual
1 So in original. Probably should be ‘‘an’’.

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§ 10822

with mental illness, an eligible system, or a State agency or nonprofit organization which entered into a contract with an eligible system under section 10804(a) of this title, shall exhaust in a timely manner all administrative remedies where appropriate. If, in pursuing administrative remedies, the system, agency, or organization determines that any matter with respect to such individual will not be resolved within a reasonable time, the system, agency, or organization may pursue alternative remedies, including the initiation of a legal action.
(b) Subsection (a) of this section does not apply to any legal action instituted to prevent or eliminate imminent serious harm to a 1 individual with mental illness.
(Pub. L. 99–319, title I, § 107, May 23, 1986, 100 Stat. 482; Pub. L. 102–173, § 10(1), Nov. 27, 1991, 105 Stat. 1219.)
AMENDMENTS
1991—Pub. L. 102–173 substituted ‘‘individual with mental illness’’ for ‘‘mentally ill individual’’ in subsecs. (a) and (b).
PART B—ADMINISTRATIVE PROVISIONS
§ 10821. Applications
(a) Submission for allotment; contents
No allotment may be made under this subchapter to an eligible system unless an application therefor is submitted to the Secretary. Each such application shall contain—
(1) assurances that amounts paid to such system from an allotment under this subchapter will be used to supplement and not to supplant the level of non-Federal funds available in the State in which such system is established to protect and advocate the rights of individuals with mental illness;
(2) assurances that such system will have a staff which is trained or being trained to provide advocacy services to individuals with mental illness and to work with family members of clients served by the system where the individuals with mental illness are minors, legally competent and do not object, and legally incompetent and the legal guardians, conservators, or other legal representatives are family members;
(3) assurances that such system, and any State agency or nonprofit organization with which such system may enter into a contract under section 10804(a) of this title, will not, in the case of any individual who has a legal guardian, conservator, or representative other than the State, take actions which are duplicative of actions taken on behalf of such individual by such guardian, conservator, or representative unless such guardian, conservator, or representative requests the assistance of such system; and
(4) such other information as the Secretary may by regulation prescribe.
(b) Satisfaction of requirements regarding trained staff
The assurance required under subsection (a)(2) of this section regarding trained staff may be satisfied through the provision of training by individuals who have received or are receiving

mental health services and family members of such individuals.
(c) Duration of applications and assurances
Applications submitted under this section shall remain in effect for a 4-year period, and the assurances required under this section shall be for the same 4-year period.
(Pub. L. 99–319, title I, § 111, May 23, 1986, 100 Stat. 482; Pub. L. 100–509, § 7(d), Oct. 20, 1988, 102 Stat. 2545; Pub. L. 102–173, §§ 7, 10(2), Nov. 27, 1991, 105 Stat. 1218, 1219; Pub. L. 102–321, title I, § 163(c)(3)(A), July 10, 1992, 106 Stat. 377.)
AMENDMENTS
1992—Subsec. (c). Pub. L. 102–321 substituted ‘‘4-year’’ for ‘‘3-year’’ in two places.
1991—Subsec. (a)(1). Pub. L. 102–173, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’.
Subsec. (a)(2). Pub. L. 102–173, §§ 7(1), 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ and inserted before semicolon at end ‘‘and to work with family members of clients served by the system where the individuals with mental illness are minors, legally competent and do not object, and legally incompetent and the legal guardians, conservators, or other legal representatives are family members’’.
Subsecs. (b), (c). Pub. L. 102–173, § 7(2), (3) added subsec. (b) and redesignated former subsec. (b) as (c).
1988—Pub. L. 100–509 designated existing provisions as subsec. (a) and added subsec. (b).
EFFECTIVE DATE OF 1992 AMENDMENT
Amendment by Pub. L. 102–321 effective Oct. 1, 1992, with provision for programs providing financial assistance, see section 801(c), (d) of Pub. L. 102–321, set out as a note under section 236 of this title.
§ 10822. Allotment formula and reallotments
(a)(1)(A) Except as provided in paragraph (2) and subject to the availability of appropriations under section 10827 of this title, the Secretary shall make allotments under section 10803 of this title from amounts appropriated under section 10827 of this title for a fiscal year to eligible systems on the basis of a formula prescribed by the Secretary which is based equally—
(i) on the population of each State in which there is an eligible system; and
(ii) on the population of each such State weighted by its relative per capita income.
(B) For purposes of subparagraph (A)(ii), the term ‘‘relative per capita income’’ means the quotient of the per capita income of the United States and the per capita income of the State, except that if the State is Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Marshall Islands, the Federated States of Micronesia, the Republic of Palau, or the Virgin Islands, the quotient shall be considered to be one.
(2)(A) The minimum amount of the allotment of an eligible system shall be the product (rounded to the nearest $100) of the appropriate base amount determined under subparagraph (B) and the factor specified in subparagraph (C).
(B) For purposes of subparagraph (A), the appropriate base amount—
(i) for American Samoa, Guam, the Marshall Islands, the Federated States of Micronesia, the Commonwealth of the Northern Mariana

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Department of Justice

§ 35.130

Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.
§ 35.105 Self-evaluation.
(a) A public entity shall, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.
(b) A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the self-evaluation process by submitting comments.
(c) A public entity that employs 50 or more persons shall, for at least three years following completion of the selfevaluation, maintain on file and make available for public inspection:
(1) A list of the interested persons consulted;
(2) A description of areas examined and any problems identified; and
(3) A description of any modifications made.
(d) If a public entity has already complied with the self-evaluation requirement of a regulation implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this section shall apply only to those policies and practices that were not included in the previous self-evaluation.
(Approved by the Office of Management and Budget under control number 1190–0006)
[56 FR 35716, July 26, 1991, as amended by Order No. 1694–93, 58 FR 17521, Apr. 5, 1993]
§ 35.106 Notice.
A public entity shall make available to applicants, participants, beneficiaries, and other interested persons

information regarding the provisions of this part and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
§ 35.107 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited by this part. The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.
(b) Complaint procedure. A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part.
§§ 35.108–35.129 [Reserved]
Subpart B—General Requirements
§ 35.130 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—
(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

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28 CFR Ch. I (7–1–09 Edition)

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program;
(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;
(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;
(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.
(4) A public entity may not, in determining the site or location of a facility, make selections—
(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or
(ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities.
(5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.
(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.
(c) Nothing in this part prohibits a public entity from providing benefits,

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Department of Justice

§ 35.134

services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part.
(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
(e)(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.
(2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.
(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.
(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.
§ 35.131 Illegal use of drugs.
(a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual’s current illegal use of drugs.
(2) A public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who—
(i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.

(b) Health and drug rehabilitation services. (1) A public entity shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services.
(2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.
(c) Drug testing. (1) This part does not prohibit a public entity from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.
(2) Nothing in paragraph (c) of this section shall be construed to encourage, prohibit, restrict, or authorize the conduct of testing for the illegal use of drugs.
§ 35.132 Smoking.
This part does not preclude the prohibition of, or the imposition of restrictions on, smoking in transportation covered by this part.
§ 35.133 Maintenance of accessible features.
(a) A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.
[56 FR 35716, July 26, 1991, as amended by Order No. 1694–93, 58 FR 17521, Apr. 5, 1993]
§ 35.134 Retaliation or coercion.
(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part.

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Rule 23.2

FEDERAL RULES OF CIVIL PROCEDURE

32

(1) allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiff’s share or membership later devolved on it by operation of law;
(2) allege that the action is not a collusive one to confer jurisdiction that the court would otherwise lack; and
(3) state with particularity: (A) any effort by the plaintiff to obtain the desired ac-
tion from the directors or comparable authority and, if necessary, from the shareholders or members; and
(B) the reasons for not obtaining the action or not making the effort. (c) SETTLEMENT, DISMISSAL, AND COMPROMISE. A derivative action may be settled, voluntarily dismissed, or compromised only with the court’s approval. Notice of a proposed settlement, voluntary dismissal, or compromise must be given to shareholders or members in the manner that the court orders.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23.2. Actions Relating to Unincorporated Associations
This rule applies to an action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties. The action may be maintained only if it appears that those parties will fairly and adequately protect the interests of the association and its members. In conducting the action, the court may issue any appropriate orders corresponding with those in Rule 23(d), and the procedure for settlement, voluntary dismissal, or compromise must correspond with the procedure in Rule 23(e).
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 24. Intervention
(a) INTERVENTION OF RIGHT. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. (b) PERMISSIVE INTERVENTION.
(1) In General. On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact. (2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on:
(A) a statute or executive order administered by the officer or agency; or

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33

FEDERAL RULES OF CIVIL PROCEDURE

Rule 25

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. (c) NOTICE AND PLEADING REQUIRED. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 25. Substitution of Parties
(a) DEATH. (1) Substitution if the Claim Is Not Extinguished. If a party dies
and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
(2) Continuation Among the Remaining Parties. After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.
(3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district. (b) INCOMPETENCY. If a party becomes incompetent, the court may, on motion, permit the action to be continued by or against the party’s representative. The motion must be served as provided in Rule 25(a)(3). (c) TRANSFER OF INTEREST. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3). (d) PUBLIC OFFICERS; DEATH OR SEPARATION FROM OFFICE. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

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10-235-cv(L)

10-251 (CON),10-767cv(CON), 10-1190cv(CON)
United States Court of Appeals for the Second Circuit
DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA, Plaintiffs-Appellees,
v. NEW YORK COALITION FOR QUALITY ASSISTED LIVING,
EMPIRE STATE ASSOCIATION OF ASSISTED LIVING,
Movants-Appellants, -andDAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Department of Mental Health, NEW YORK STATE DEPARTMENT OF HEALTH, NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants-Appellants.
On Appeal from the United States District Court for the Eastern District of New York

BRIEF FOR NEW YORK STATE APPELLANTS

BARBARA D. UNDERWOOD Solicitor General
BENJAMIN N. GUTMAN Deputy Solicitor General CECELIA C. CHANG LAURA R. JOHNSON STEVEN C. WU Assistant Solicitor General
of Counsel

ANDREW M. CUOMO Attorney General of the State of New York
Attorney for New York State Appellants 120 Broadway New York, New York 10271 (212) 416-6279
Dated: July 23, 2010

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES...................................................................... iv

PRELIMINARY STATEMENT.................................................................. 1

ISSUES PRESENTED ............................................................................... 3

STATEMENT OF JURISDICTION........................................................... 4

STATEMENT OF THE CASE ................................................................... 4

A. Background............................................................................... 4

B. Adult Homes............................................................................. 7

C. Supported Housing ................................................................ 12

D. Proceedings Below.................................................................. 17

1. Summary Judgment ....................................................... 19

2. Bench Trial...................................................................... 20

3. The Court’s Injunction.................................................... 22

SUMMARY OF ARGUMENT .................................................................. 24

STANDARD OF REVIEW........................................................................ 27

ARGUMENT .......................................................................................... 28

POINT I

- THE STATE HAS NOT DISCRIMINATED AGAINST DAI’S CONSTITUENTS BY FAILING TO GUARANTEE THEM SUPPORTED HOUSING .... 28

A. The ADA Claim Recognized by Olmstead Relied Upon a Showing of State-Mandated Segregation. ......... 30
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B. State-Mandated Segregation Is Not at Issue Here........ 33
C. Title II Does Not Encompass Challenges—Like DAI’s Here—to the Level of State-Funded Benefits. ..... 38
D. The Attorney General’s Integration Regulation Does Not Require Increased Levels of SupportedHousing Benefits. ............................................................ 45
E. Public Policy Supports the Distinction Between Level-of-Benefit and Discrimination Claims.................. 48
POINT II - THE STATE NEED NOT MODIFY ITS PROGRAMS TO GRANT DAI’S CONSTITUENTS A PREFERENTIAL ENTITLEMENT TO SUPPORTED HOUSING................................................ 50
A. An Entitlement to Enhanced Supported-Housing Benefits Is Not a Reasonable Modification under Title II. ............................................................................. 51
B. DAI’s Requested Relief Would Fundamentally Alter Existing State Services and Programs.................. 52
C. The State Is Not Required to Implement a New Entitlement Program Based on Projected Cost Savings that May Not Occur........................................... 59
D. DAI’s Request for a Preferential Entitlement Jeopardizes Services for Other Individuals with Disabilities. ...................................................................... 64
POINT III - THE REMEDIAL ORDER IS OVERBROAD................. 66
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POINT IV - DAI LACKS STANDING TO ASSERT CLAIMS IN ITS OWN NAME ON BEHALF OF ADULT-HOME RESIDENTS .................................................................... 74
CONCLUSION ......................................................................................... 82
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PAGE
CASES
Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973) ............................................................... 49
Alexander v. Choate, 469 U.S. 287 (1985) ........................................................................ 38, 39
ARC of Wash. State, Inc. v. Braddok, 427 F.3d 615 (9th Cir. 2005)...........................................................55-56
Ass’n for Retarded Citizens v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994).................................................................. 76
Baker v. City of Concord, 916 F.2d 744 (1st Cir. 1990) ...........................................................62-63
Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir 2004) .................................................................. 79
Bernstein v. Pataki, 233 F. App’x 21 (2d Cir. Apr. 3, 2007)........................................... 79, 80
Bowen v. Owens, 476 U.S. 340 (1986) ........................................................................ 40, 48
Califano v. Boles, 443 U.S. 282 (1979) .............................................................................. 40
Cercpac v. Health & Hosps. Corp., 147 F.3d 165 (2d Cir. 1998) ................................................................. 39
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) .............................................................................. 48
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PAGE
County of Oneida v. Berle, 49 N.Y.2d 515 (1980)............................................................................ 15
DaimlerChrysler Corp v. Cuno, 547 U.S. 332 (2006) .............................................................................. 63
Dandridge v. Williams, 397 U.S. 471 (1970) .............................................................................. 42
Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999).............................................................. 76
Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003)............................................................ 33
Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004) ................................................................. 33
Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005) ................................................................. 56
Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557 (7th Cir. 2003)................................................................ 36
Graham v. Richardson, 403 U.S. 365 (1971) ............................................................................. 62
Hackner v. Guar. Trust Co., 117 F.2d 95 (2d Cir. 1941) ................................................................... 81
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ......................................................... passim
Horne v. Flores, 129 S. Ct. 2579 (2009).......................................................................... 72 v

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PAGE
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977) .............................................................................. 75
Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 477 U.S. 274 (1986) .............................................................................. 78
Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998) ................................................................. 75
Jefferson v. Hackney, 406 U.S. 535 (1972) .............................................................................. 40
Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) .................................17, 58, 77-78
Knight v. Alabama, 476 F.3d 1219 (11th Cir. 2007)............................................................ 73
Leocata v. Wilson-Coker, 343 F. Supp. 2d 144 (D. Conn. 2004), aff’d sub nom. Loecata v. Leavitt, 148 F. Appx. 64 (2d Cir. 2005) ............................. 34
Lewis v. Casey, 518 U.S. 343 (1996) ...................................................................... passim
Lyng v. Int’l Union, United Auto., Aerospace & Agricultural Implement Workers of Am., 485 U.S. 360 (1988) .............................................................................. 63
Mathews v. Diaz, 426 U.S. 67 (1976) ................................................................................ 63
Missouri v. Jenkins, 495 U.S. 33 (1990) ................................................................................ 70
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PAGE
Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803 (8th Cir. 2007)................................................................ 76
N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 631 F.2d 162 (2d Cir. 1980) ................................................................. 15
Olmstead v. L.C., 527 U.S. 581 (1999) ...................................................................... passim
Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003).............................................................. 76
Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005) ................................................................. 33
Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004)................................................................ 33
Rodriguez v. City of N.Y., 197 F.3d 611 (2d Cir. 1999) ......................................................... passim
Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)........................................................ 56, 58
Schweiker v. Wilson, 450 U.S. 221 (1981) .............................................................................. 42
Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 (1979) .............................................................................. 39
Tenn. Prot. & Advocacy, Inc. v. Bd. of Educ., 24 F. Supp. 2d 808 (M.D. Tenn. 1998) ................................................ 76
Tennessee v. Lane, 541 U.S. 509 (2004) .............................................................................. 44
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United States ex rel. Tex. Portland Cement Co. v. McCord, 233 U.S. 157 (1911) .............................................................................. 80
United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ........................................................................ 42, 43
Vill. of Oakwood v. State Bank & Trust Co., 481 F.3d 364 (6th Cir. 2007)................................................................ 80
Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006)................................................................ 51
Wright v. Giuliani, 230 F.3d 543 (2d Cir. 2000) ........................................................... 39, 52
STATUTES
28 U.S.C. § 1291...................................................................................................... 4 § 1331...................................................................................................... 4 § 1343...................................................................................................... 4
29 U.S.C. § 794.................................................................................... 18, 28
42 U.S.C. § 1396n ........................................................................................... 40, 46 §§ 10801-10851..................................................................................... 75 § 10805.................................................................................................. 77 § 12132.............................................................................................. 2, 28
Social Services Law § 2(21) ..................................................................................................... 7 §§ 207-212............................................................................................... 6
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REGULATIONS 18 N.Y.C.R.R.
§ 485.2..................................................................................................... 7 § 487.5..................................................................................................... 8 § 487.7................................................................................................. 7, 8 28 C.F.R § 35.130.............................................................................. passim 42 C.F.R. § 440.180................................................................................... 41 45 C.F.R. § 85.21....................................................................................... 46 56 Fed. Reg. 35,694 (July 26, 1991) ......................................................... 44
OTHER AUTHORITIES 7C Charles A. Wright et al., Federal Practice and Procedure
§ 1917 (3d ed. 2007) ............................................................................. 80 Brief for Respondent, Olmstead v. L.C., 1999 WL 144128..................... 30 Complaint, Messiah S. v. Alexander,
07-cv-1367 (S.D.N.Y. filed Feb. 22, 2007) ........................................... 17 Devlin Barret & M.H. Saul, State Budget In for a Loss,
Wall St. J., July 20, 2010, at A21........................................................ 60 N.Y. State, New York State Annual Action Plan:
Program Year 2010 (2010), available at http://nysdhcr.gov/ Publications/ActionPlan10/ActionPlan2010_Approved.pdf ............... 41
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Press Release, N.Y. State Assembly, Significant Action Taken on State Budget (June 14, 2010), available at http://assembly.state.ny.us/Press/20100614/...................................... 61
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PRELIMINARY STATEMENT New York has been a national leader in developing communitybased services for individuals with mental illness. Persons in New York with mental illness are eligible for a broad array of community-based programs, including a range of voluntary community-housing options. One housing option is an adult home: a privately owned and operated facility licensed by the State to provide residential care in a congregate setting. Another is supported housing, an arrangement where the State subsidizes individual apartments and supportive services offered by private providers. New York currently subsidizes one of the most generous allocations of supported housing in the country—over 15,000 supported-housing apartments, each of which costs the State more than $14,500 annually. Plaintiff Disability Advocates, Inc. (“DAI”) brought this action on behalf of persons with mental illness who reside in certain adult homes in New York City. DAI alleged that these private adult homes do not provide a sufficiently “integrated setting” to satisfy the Americans with Disabilities Act (“ADA”), and that the State must therefore ensure that residents receive private supported-housing apartments instead.

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Following a bench trial, the United States District Court for the Eastern District of New York (Garaufis, J.) issued a permanent injunction requiring defendants—the Governor, the Department of Health (“DOH”), the Office of Mental Health (“OMH”), and the agencies’ commissioners—to guarantee supported housing and whatever additional services are necessary to maintain residents safely and successfully in such housing to thousands of current and future adulthome residents in New York City.
The injunction rests on a fundamental misunderstanding of the scope of the ADA and the holding of Olmstead v. L.C., 527 U.S. 581 (1999). The ADA prohibits discrimination “by reason of . . . disability.” 42 U.S.C. § 12132. Olmstead recognized that unwarranted institutional confinement by the State can be a form of potential discrimination. But adult-home residents are not involuntarily confined by the State. New York does not require individuals to live in an adult home or condition any state services on adult-home residence.
At its core, DAI’s complaint is that the State does not fund enough supported-housing benefits to guarantee subsidized private apartments to all individuals with mental illness who are dissatisfied with their
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current housing options. But as Olmstead itself recognized, the ADA does not compel the State to provide any particular level of benefits to individuals with disabilities. Because the district court held otherwise, its judgment should be reversed, and the injunction vacated.
ISSUES PRESENTED 1. Does the State discriminate against adult-home residents with mental illness “by reason of . . . disability” because it does not offer all of them sufficient benefits to ensure that they can have private apartments? 2. Is it a reasonable modification under the ADA to require the State to increase supported-housing benefits and to grant adult-home residents a preferred entitlement to the new benefits? 3. If a violation of the ADA were established here, was it proper for the district court to enter an injunction whose terms go far beyond preventing discrimination and which deprives state officials of flexibility in deciding how to remedy the violation?
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4. Does DAI have standing to pursue claims in its own name on behalf of alleged “constituents” when those individuals have no control over or input into DAI’s litigation choices?
STATEMENT OF JURISDICTION DAI invoked the district court’s jurisdiction under 28 U.S.C. §§ 1331 and 1343. As explained in Point IV below, however, DAI lacks standing here. The district court entered a final judgment on March 1, 2010, and defendants filed a timely notice of appeal on March 3, 2010 (JA924). This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE CASE A. Background New York has a large, multi-faceted mental health system that serves over 600,000 individuals annually through 2,500 licensed programs. SPA188; SX(1)-303.1 Service models for individuals with mental
1 Defendants’, plaintiff’s, and stipulated exhibits are cited as DX, PX, and SX (volume)-[page]. The trial transcript that appears in the Joint Appendix is cited JA[page]:[transcript page]. The deposition
(continued on next page)
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illness have changed dramatically over time, evolving from an institutional paradigm to the modern trend of community-based treatment. New York has been at the vanguard of this transition, serving as a leader in developing community-based options for mentalhealth care. Defendants have successfully expanded a broad range of community-based programs statewide, which serve a diverse and growing number of individuals. As a result of those efforts, the number of persons with mental illness who are institutionalized has fallen from more than 90,000 in 1955 to less than 4,000 today. SPA162-63.
The State also generally attempts to increase housing options for individuals with special needs, including individuals with mental illness and other forms of disability. Many individuals with serious mental illness receive Supplemental Security Income (“SSI”), a federal benefit that provides recipients with cash to pay for food, shelter, and clothing. JA918 ¶ 26. Individuals whose sole source of income is SSI may not be able to obtain desired housing on the open market. This is
transcripts admitted as sealed exhibits are similarly cited as SLX[page]:[transcript page].
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especially true in New York City, where there is a severe shortage of low-income housing. PX(4)-297; JA539:1976-77; JA774:2955. New York supplements federal SSI benefits for many recipients, increasing the amount of money they can use for housing. See Social Services Law §§ 207-212. The State also licenses and provides various forms of direct and indirect funding to support a wide range of community-housing options operated by private providers, which are available to persons with special needs, including those with mental illness. Options for individuals with mental illness include congregate housing in various types of group residences, as well as transitional housing in shared apartments, and extended-stay programs where residents have their own room in a multi-unit building or their own apartment. JA917-18 ¶¶ 17, 24-25; SPA108 n.221.
This case involves two of these living arrangements: adult homes and supported housing. Both options are purely voluntary and are offered by private providers, not the State itself. SPA83, 108-09; JA403: 1441-42.
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B. Adult Homes Adult homes are a type of privately operated “adult care facility,” Social Services Law § 2(21), licensed by the State to provide “long-term residential care, room, board, housekeeping, personal care and supervision to five or more adults.” 18 N.Y.C.R.R. § 485.2(b). They are meant for individuals who do not need the level of care provided by a hospital or nursing home, but who are nonetheless “unable or substantially unable to live independently” due to age or disability. Social Services Law § 2(21). As a result, adult homes must offer designated services to their residents such as assistance with personal care and medication management. 18 N.Y.C.R.R. § 487.7(e)-(f). The State does not directly pay for the housing or services provided by adult homes. Most adult-home residents use SSI benefits to pay for room and board in adult homes, and adult-home providers use the SSI funds to cover housing, meals, and the other services they must offer. The State’s annual supplement to SSI for an individual in an adult home is $8,328. JA918-19 ¶¶ 26-28. Although adult homes—like any congregate setting—may have some institutional features, like set mealtimes and assigned room-
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mates, state regulations aim to make adult homes as integrated with the local community as possible. Residents have the right to come and go from the home into the community. 18 N.Y.C.R.R. § 487.5(a)(3)(xii). Homes must also provide services “to support . . . resident[s] in maintaining independence of function and personal choice,” including “assisting each resident to maintain family and community ties and to develop new ones” as well as “encouraging resident participation in facility and community activities.” Id. § 487.7(g); see also JA784:299293. Adult homes are also required to provide a program of activities in the community and to arrange “for resident participation in communitybased and community-sponsored activities.” Id. § 487.7(h); JA784:2992.
Consistent with these regulations, adult-home residents may— and in fact do—visit their families, sometimes overnight, and receive visits at the homes from family and friends.2 While some residents may feel isolated (SPA99), others have formed relationships with people who
2 JA164:477; JA165:481,484; SLX-15:54-55; SLX-24-25:93-94; SLX-57:79; SLX-210:50-52; SLX-269-70:133-34; SLX-338:14-15; SLX340-342:25-26, 29, 31; SLX-368:135-36; SLX-549:79-80; SLX-608:94-95; SLX-663-65:77-84; SLX-668-76:97-99, 102-28; SLX-719-20:25-28; SLX749-50:153-54; SLX-756:181.
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live in their neighborhoods,3 and regularly engage in routine activities in the community, such as walking, visiting stores, doing laundry, eating out, going to the library, attending church, using public transportation, voting, having jobs, volunteering, and participating in advocacy organizations.4
In addition to regulating adult homes, New York has also used state funds to enhance the overall quality of homes, to encourage residents’ engagement with the community, to make homes more integrated settings, and to ensure that residents who wish to leave receive assistance in gaining necessary skills and in applying for other housing options. Since the mid-1990s the Legislature has appropriated funds to assist adult homes in improving their physical infrastructure and to improve staff training. JA448-49:1614 & 1616; JA471:1704-05; JA880-81:3379-80. State agencies have also increased efforts to investi-
3 SLX-493-94:64-66, 72; SLX-549-50:79-82; SLX-721:32; SLX754:172.
4 JA176-78:526, 531-33; SLX-55:70-71; SLX-374:158-59; SLX384:16-18; SLX-387-88:27-33; SLX-412:127-28; SLX-482-83:21-24; SLX647-48:11-16; SLX-650-51:22-29; SLX-745:134.
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gate resident complaints and to enhance oversight of adult-home services and quality of life. JA361-63:1265-74; PX(3)-626.
The State has also invested resources towards directly assisting adult-home residents. OMH, for example, has instituted independent case-management and peer-support programs in adult homes through contracts with private nonprofit service agencies. JA375-78:1323-29 & 1330-34; SX(1)-609-72; SX(2)-1-83 & 192-215. A major goal of these programs is to provide access to a wide variety of services, including housing, and case managers are expected to assist—and have assisted— residents who need or desire alternate forms of housing. JA374-75:131721; JA452-53:1630-31; JA482:1747-48; JA488:1772-73; JA674:2554.
Adult homes serve many different classes of individuals who need assistance with their daily activities, not just individuals with mental illness. Such individuals, however, constitute a substantial portion of the population in some adult homes. SX(4)-33 (noting that 25%-30% of adult-home residents have a psychiatric disability). Up until the 1990s, as DAI’s own experts admit, supervised congregate facilities were widely seen as an appropriate housing option for individuals with mental illness, including those newly discharged from state hospitals.
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JA119:298-99; JA329-30:1139-43. Accordingly, adult homes and similar options were seen nationally as well as in New York as a potential source of affordable community housing. JA205:642; JA209:660; JA527:1930.
In particular, adult homes proved highly valuable to residents known to have difficulty caring for themselves or taking medication, since well-run adult homes provide personal care, medication oversight, a safe environment, and typically access to a case manager from the mental-health system as well. JA836:3202-03. While past problems (sometimes significant) existed in individual homes that failed to meet state regulatory standards, the State took corrective measures and brought appropriate enforcement actions, closing non-compliant homes. See SPA167 (noting that the State’s “strengthened monitoring and enforcement activities are commendable”).
The State’s oversight over adult homes is accordingly not challenged in this action. SPA227 (DAI “does not seek increased enforcement of State regulations applicable to Adult Homes”). Although DAI initially alleged that defendants had failed to bring enforcement actions to redress substandard conditions in adult homes,
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it later conceded that this was not the case. DAI Mem. in Opp’n To Def. Mot. for S.J., at 79.
C. Supported Housing Supported housing is not a defined statutory or regulatory term, but it is the common shorthand for a newer community residence model where individuals with mental illness live in their own apartments scattered throughout the community and receive supportive services. JA504:1441-42. Unlike adult homes, supported housing is targeted specifically towards individuals with mental illness and is available only to such persons. SX(3)-239. New York began to develop permanent supported housing for persons with mental illness in the early 1990s and was one of the first States to do so. Since then, New York has been a leader in expanding such housing. SX(1)-593-608; JA23233:752-73, JA330:1142; SPA163. In the 1990s many clinicians considered supported housing to be suitable only for a small group of high-functioning individuals. JA119:300). Today, however, supported housing is considered the preferred community-housing model for many persons with mental illness. OMH shares that conviction, and its development efforts are now
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centered on supported housing and other single-room-occupancy settings rather than older congregate housing models. JA829:3172-73; PX(4)-299; SX(3)-271-72.
But expanding supported housing opportunities is challenging. PX(4)-297. The very feature that makes supported housing unique— the fact that residents are provided with their own apartments—also makes the expansion of supported housing and similar options particularly resource-intensive. PX(4)-299 (explaining that “OMH is working with residential providers to emphasize a supportive-housing model” within limits of “Federal and State funding constraints”). To expand supported housing, the State contracts with private providers to provide a set number of supported-housing apartments. SPA-109; JA356:124653). As in adult homes, supported-housing residents typically receive SSI, some of which they use to pay private providers for rent. JA919 ¶¶ 29-30. But SSI, even with the state supplement, is generally not enough to cover market rent for an apartment in New York City plus other living expenses. PX4-297; JA670:2538. To induce providers to offer supported housing to individuals with this level of income, OMH also pays providers an extra $14,654 per year for each supported-
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housing apartment, up to the fixed number of apartments set by the contract with the provider. JA919 ¶ 33.
The supportive services necessary to maintain individuals safely in their own apartments are also costly and require a heavy investment of public resources. Although some supported-housing residents may require just a monthly or weekly visit from a case worker (JA405:144344, JA696:2642-43), others receive an intensive form of state-funded services known as assertive community treatment (“ACT”), which involves at least semi-weekly visits by a multidisciplinary team of specialists in psychiatry, nursing, psychology, social work, substance abuse, and vocational rehabilitation (SX(4)-1-4; JA101:228-29, JA258: 855-57; SPA110). ACT services are in high demand statewide by many groups of individuals with mental illness, and each new ACT client requires thousands of dollars in additional state expenditures. JA82425:3155-56; JA826:3162-63; SPA184-85.
The funding and programmatic limitations described above currently prevent OMH from expanding supported housing to all individuals with mental illness in New York who may desire such housing. JA551:2026. For a person in supported housing, the state
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supplement to SSI and the supported-housing subsidy add up to $7,370 more than the state supplement to SSI for a person in an adult home.5 And while OMH believes that supported housing will prove to be a “successful” and “cost-effective” option for many individuals and “fight[s] very hard to get new housing money” (JA232:749; JA585:215960), the agency is limited by its legislative appropriations, which determine the extent to which the agency can expand supported-housing benefits. JA534:1957; JA866:3323; JA884:3395 (explaining that funds cannot be transferred between state agencies or programs without legislative authorization); see also N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 631 F.2d 162, 164-65 (2d Cir. 1980) (funding for programs is controlled by legislative appropriation); County of Oneida v. Berle, 49 N.Y.2d 515, 523 (1980) (same).
The State has made a genuine commitment to expanding options like supported housing. New York currently subsidizes over 32,000
5 For a person living in an adult home, which is classified as Congregate Level III housing, the state supplement is $8,328. JA91718 ¶¶ 14, 27. For a person living in supported housing, the state’s supplement is $1,044, but the State also pays providers an extra $14,654 per bed, for a total cost to the State of $15,698. JA916, 919 ¶¶ 9, 30, 33. The difference is $7,370.
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community-housing beds, including over 15,000 supported-housing apartments, one of the most generous allocations in the country. SPA163; JA530:1941 (“there are more housing units for persons with serious mental illness” and “more housing beds available per capita in New York State than any other state”). But the Legislature has capped the number of supported-housing apartments available and expanded the benefit in stages, subsidizing approximately 700 new apartments each year since the early 1990s. JA590:2180-81.
Because the State funds a limited level of supported-housing benefits, demand exceeds supply, particularly in popular and expensive areas like New York City. JA234:757; JA420:1503; JA551-52:2026-27. To allocate available benefits, OMH has focused on especially vulnerable “target populations,” such as “individuals who are currently homeless, living in shelters, depots or on the streets,” or people coming out of transitional housing or psychiatric hospitals who face imminent risk of becoming homeless. SX(1)-597; JA209:660; JA212:671-72. Since 2005, adult-home residents have also been included as a target population. JA428:1534; SX(2)-86.
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In allocating supported-housing benefits, the State must balance competing and divergent needs. JA456:1645; JA539:1977, JA552:202730; JA582-83:2150 & 2152-53; JA682:2585; JA758:2891). Many individuals seek supported-housing apartments or similar subsidized housing. See, e.g., Messiah S. v. Alexander, 07-cv-1367 (S.D.N.Y. complaint filed Feb. 22, 2007) (class action by New York City parolees with mental illness seeking “supportive housing”); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 292-93 (E.D.N.Y. 2008) (suit by nursing-home residents seeking more integrated community-based housing). At the same time, the State also has ongoing obligations to other communitybased programs, which serve individuals who may not need housing but who do need mental-health services to function successfully and avoid hospitalization. JA281:946; JA758:2891; JA762:2907; JA829:3174-3175.
D. Proceedings Below In 2003, DAI filed this lawsuit on behalf of certain “constituents,” individuals with mental illness who reside in or who are “at risk of being placed” in adult homes with more than 120 beds in which at least
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25% of the residents have a mental illness (Compl. ¶¶ 33-34).6 DAI alleged that defendants had “placed” these residents in these “impacted” adult homes instead of providing them with their own apartments through supported housing (Compl. ¶¶ 26-43). Complaining that the Legislature had not “shifted funding from adult homes to community-based residential services” (Compl. ¶¶ 114-116, 118), DAI asserted that the defendants had “require[ed] thousands of individuals to live and receive services in adult homes” (Compl. ¶ 124), thereby violating Title II of the ADA, 42 U.S.C. §§ 12131 and 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Compl. ¶¶ 120-165).
6 DAI identifies these adult-home residents as “constituents” although they have no ability to vote on, participate in, or control any of DAI’s actions (Compl. ¶ 9). DAI also claims authority to represent as a constituent any individual with mental illness receiving care or treatment in New York (Compl. ¶ 8).
For ease of reference, the State uses the term “DAI’s constituents” to refer to the subset of individuals that DAI purports to represent in this action out the much larger class of individuals with mental illness that DAI claims as constituents.
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1. Summary Judgment After discovery, the defendants moved for summary judgment, challenging: (1) DAI’s lack of standing, (2) DAI’s ability to state cognizable discrimination claims, and (3) the scope of DAI’s requested relief—an entitlement to supported-housing benefits—as impermissibly requiring a “fundamental alteration” of state programs and services. DAI also moved for partial summary judgment on defendants’ fundamental-alteration defense. The district court denied both motions. SPA8-74. The court concluded that DAI had standing to assert claims on behalf of adult-home residents and that DAI asserted cognizable discrimination claims because defendants had allegedly failed to “plan, fund, and administer the State’s existing [mental health] service system,” including by “allocate[ing] . . . resources differently,” to ensure that adult-home residents could receive services in the most integrated form of community housing. SPA34-36. The court also declined to grant summary judgment on the State’s fundamental-alteration defense, concluding that the State could establish a viable defense only
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if defendants had a specific, targeted plan in place to move residents of impacted adult homes to supported-housing apartments. SPA58.
2. Bench Trial The case proceeded to a five-week bench trial, and following the trial, the court ruled in DAI’s favor. The court held that defendants violated the ADA and the Rehabilitation Act by not ensuring that adulthome residents were “receiving services in the most integrated setting appropriate to their needs.” SPA77. The court found that adult homes were “institutions” that tended to segregate persons with mental illness from the community (SPA88-108), and that supported housing fostered greater integration with the community because people who lived there had greater independence, choice, and privacy (SPA108-13). While DAI failed to present proof of any adult-home resident who had applied for and been denied supported housing, the court found that DAI’s alleged constituents would want to live in supported housing if they were fully informed about it. SPA149-57. Relying in large part on testimony that virtually anyone could live in supported housing if provided with sufficient services (SPA117-48), the court also concluded that nearly all adult-home residents—including those who might move
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to adult homes in the future—were qualified for supported housing and that individual assessment by a treating professional was unnecessary (SPA148-49).
Finally, the court held that requiring defendants to guarantee DAI’s constituents supported-housing benefits would not fundamentally alter existing state programs and services. SPA157-201. Although it was undisputed that the State pays $7,370 more per year (in SSI supplements and rent subsidies) for an individual living in supported housing than for an individual residing in an adult home (see supra at 15 n.5), the court accepted DAI’s claim that the significant cost difference could be made up in projected Medicaid savings. The State’s average annual Medicaid expenses have historically been higher for adult-home residents than for persons in supported housing. PX(6)-332. The court adopted the conclusion of DAI’s expert that the difference resulted from overuse of expensive and unnecessary treatment services in adult homes (due to a setting that fosters dependence), not because adult-home residents have greater medical needs. SPA179.
The Court accepted this theory even though defendants submitted evidence that DAI’s cost projections were speculative. For example,
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there are significant disparities in average Medicaid costs even for the categories of care that would seem to be least dependent on an adulthome setting, such as prescription costs and hospitalization. SX(4)-18889. Moreover, DAI’s witnesses had not done any assessments of the services adult-home residents moving to supported housing would need, although the witnesses conceded that such assessments would eventually be necessary. JA65:82; JA274:917; JA324:1119-20. The district court nonetheless credited DAI’s argument, concluding that with predicted future Medicaid savings factored in the State would actually spend $146 less annually for each adult-home resident who moved to supported housing. SPA 181. The court also concluded that the State could cut other subsidies to adult homes, such as grants for capital improvements, to cover the cost of expanding supported housing for DAI’s constituents. SPA181-84.
3. The Court’s Injunction More than a month after the district court issued its trial ruling, the United States and two adult-home associations moved to intervene. The court allowed the United States to intervene but denied the
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contemporaneous motions of the adult-home associations as belated. SPA205-17.
Following the submission of proposed remedial plans, the court issued a permanent injunction granting DAI essentially all the relief it sought. The court ordered the State to create 1,500 new supportedhousing beds annually for the next three years for DAI’s constituents alone. SPA236 ¶ 4. Within four years, the State must guarantee supported housing to every current—or future—resident in an impacted adult home who desires such housing and who qualifies under a new court-imposed standard. SPA234-35 ¶¶ 1-2. That standard deems every resident qualified with narrow exceptions, such as individuals suffering from severe dementia or those likely to cause an imminent danger to themselves or others. SPA238-39 ¶ 10.
The determination of whether an individual meets the court’s criteria is made not by the State or a medical professional, but rather by the private providers who offer supported housing. SPA239 ¶ 10. The State is also required to provide DAI’s constitutents with whatever support services are necessary to maintain them successfully in supported housing without limitation, even at the risk of displacing
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other persons who may need such services. Moreover, despite its predictions of future cost savings, the court declined to incorporate any cost-containment measures into its injunction—instead ordering the State to guarantee DAI’s constituents supported housing regardless of the “ultimate[] increase [in] costs to the State” even if no legislative appropriation is available to fund expanded benefits. SPA226. To oversee implementation of the injunction, the court appointed a monitor whose salary and expenses (including a staff) will be paid by the State. SPA240-41 ¶ 15.
Defendants promptly appealed and sought a stay. A single judge of this Court granted a temporary stay; a motions panel later denied a stay but ordered expedited briefing. The State’s appeal (No. 10-767) has been consolidated with three other appeals by the adult-home associations that were denied intervention.
SUMMARY OF ARGUMENT 1. This case does not involve any form of discrimination prohibited by Title II of the ADA. Olmstead held that two types of state action may constitute unlawful discrimination under Title II:
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(1) conditioning access to state services on residence in an institution; and (2) forcing individuals to remain confined in segregated state institutions when such confinement is not medically warranted. But the State does not require anyone to live in an adult home as a condition of receiving state services or benefits. And adult homes are private residences, not state institutions. While some adult-home residents may lack other housing options, that is not because of stateimposed restrictions but rather because of their low incomes and the severe affordable-housing shortage in New York City.
DAI’s claim for supported housing is thus not a claim of discrimination, but rather a claim that the State should provide a higher aggregate level of housing benefits. But the ADA does not require any particular level of benefits, so long as the State does not discriminate on the basis of disability in allocating those benefits. Indeed, the ADA does not require any benefits at all. Consistent with the ADA, the State may, as here, fund housing benefits on a limited basis to some individuals with disabilities while it evaluates whether and how quickly to expand the benefit to others.
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2. DAI’s claim for guaranteed supported housing plus all the services needed to ensure that individuals succeed in supported housing is not a request for a reasonable modification of any of the State’s existing programs or services.
It is irrelevant that the district court predicted that funding supported housing plus services for an individual will be no greater than the cost of maintaining the individual in an adult home. The court’s injunction orders expansion of supported housing benefits even if future costs exceed the court’s estimates. Moreover, even if the court’s cost projections were an accurate prediction, they would leave so little room for error that it would be reasonable for the State to proceed cautiously. The State may choose to expand benefits in stages rather than making an immediate and permanent commitment to thousands of new supported-housing apartments. Requiring an immediate expansion would deprive the State of the opportunity to test and assess concrete data about the actual costs of expanding benefits and to account for unforeseen future developments.
3. Even if the district court had correctly found a violation of the ADA and the Rehabilitation Act, its injunction would go far beyond
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remedying any actual discrimination that might exist, essentially mandating a new court-created and court-supervised benefit program. If there were cognizable statutory violations, defendants should retain discretion in implementing the appropriate remedy, one that potentially affects many other state programs and services for other individuals with disabilities.
4. The judgment also should be vacated on the jurisdictional ground that DAI lacks standing to bring these claims in its own name, rather than on behalf of named individual plaintiffs. DAI cannot rely on associational standing to assert claims on behalf of those it claims as its “constituents” because those constituents have no voice in or control over its litigation choices. And the United States’ intervention following trial and a ruling on liability cannot cure DAI’s lack of standing at the outset.
STANDARD OF REVIEW This Court “review[s] a district court’s bench trial findings of fact for clear error and its conclusions of law de novo.” Henrietta D. v. Bloomberg, 331 F.3d 261, 271 (2d Cir. 2003). The Court may overturn
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“an order granting a permanent injunction if the district court relied upon a clearly erroneous finding of fact or incorrectly applied the law.” Rodriguez v. City of N.Y., 197 F.3d 611, 614 (2d Cir. 1999) (quotation marks omitted).
ARGUMENT POINT I
THE STATE HAS NOT DISCRIMINATED AGAINST DAI’S CONSTITUENTS BY FAILING TO GUARANTEE THEM SUPPORTED HOUSING The ADA is a nondiscrimination statute. Title II of the ADA provides that “that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”7 42 U.S.C. § 12132 (emphasis added). In Olmstead, the Supreme Court held that two
7 Section 504 of the Rehabilitation Act likewise prohibits discrimination against qualified persons with disabilities “under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Because the Rehabilitation Act and the ADA typically impose similar requirements, courts generally consider the claims in tandem. Rodriguez, 197 F.3d at 618; Henrietta D., 331 F.3d at 272.
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specific but narrow types of state action may constitute unlawful discrimination under Title II: (1) conditioning access to state services on institutional confinement, and (2) unwarranted confinement in segregated state institutions.
Neither form of discrimination is at issue here. New York does not limit state services and benefits to individuals in institutional care, nor does it mandate the institutionalization of individuals who reside in private adult homes. Instead, New York offers a broad array of community-based services and supports a range of community-housing options—like adult homes—that individuals with disabilities may choose but are not required to accept. As part of that effort, the State provides supported-housing benefits, although not at a level sufficient to guarantee supported housing to every individual with mental illness who may desire it.
The State’s provision of a benefit to some but not all individuals with mental illness is not a violation of Title II. The ADA does not “require[] States to provide a certain level of benefits to individuals with disabilities.” Olmstead, 527 U.S. at 603 n.14 (quotation marks omitted). Because DAI seeks increased levels of supported-housing benefits,
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rather than the nondiscriminatory provision of those benefits, it fails to state a claim under Title II.
A. The ADA Claim Recognized by Olmstead Relied Upon a Showing of State-Mandated Segregation.
In Olmstead, the Court addressed discrimination claims by two women who had been confined for years in the locked ward of a Georgia psychiatric hospital although state doctors had determined that their treatment needs could be met in an existing community program with available, open slots. 527 U.S. at 593-94, 601; Brief for Respondent at 6-7, Olmstead v. L.C., 1999 WL 144128. The women alleged that Georgia officials had violated Title II by refusing to offer them treatment in an available community-based setting rather than in an institution.
The Court held that the institutionalized plaintiffs had stated an ADA claim under two related theories. A majority of the Justices recognized that disparate treatment in the provision of services to persons with disabilities may violate Title II, a reading of the statute fully “consistent with the normal definition of discrimination” as prohibiting “differential treatment of similarly situated groups.” 527 U.S. at 614
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(Kennedy, J., concurring); see id. at 599-601. If a State provides essential services to individuals with mental disabilities only in segregated institutions, it subjects those individuals to state-mandated isolation, a burden not imposed on individuals without mental disabilities. Id. at 600-01.
A slimmer majority of the Court also concluded that the “unjustified institutional isolation” of persons with disabilities by the State “is a form of discrimination” even if no disparate treatment is shown, because state-mandated institutional confinement perpetuates the unwarranted and highly stigmatizing assumption that individuals with disabilities are incapable and unworthy of participating in community life. Id. Stigmatic injury is a type of harm often associated with government-sanctioned discrimination, and the harm is magnified if state officials reinforce damaging stereotypes about individuals with disabilities by segregating such individuals in institutions when an appropriate community placement is available. Id. at 599-600.
Only when one of these forms of underlying discrimination is shown will the State be required to move individuals with disabilities from institutions to community-based programs. And even then, the
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affected individuals must also show that “the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated.” Id. at 607.
The district court incorrectly read this latter language—which is a limitation of the State’s responsibilities even when predicate discrimination has been shown—as a freestanding “integration mandate.” SPA80. But Olmstead did not jettison the essential element of discrimination. Under Olmstead, when a State provides an existing service to individuals with disabilities, it cannot condition access to that service on residence in an institution or acceptance of institutional confinement. Similarly, state officials cannot continue to confine persons with disabilities in segregated state institutions if those individuals’ needs could be appropriately accommodated in the community. Both requirements may be viewed as integration mandates, but they are mandates grounded in the specific forms of discrimination Olmstead recognized as covered by Title II.
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B. State-Mandated Segregation Is Not at Issue Here. Unlike other cases in which courts have allowed Olmstead claims to proceed, this case does not involve either form of discrimination recognized in Olmstead. See, e.g., Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 378 (3d Cir. 2005) (conditioning medical care on residence in a state psychiatric facility); Radaszewski v. Maram, 383 F.3d 599, 600 (7th Cir. 2004) (conditioning around-the-clock care on nursing-home residence); Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 489-90 (3d Cir. 2004) (confining individuals unnecessarily at a segregated state institution); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003) (conditioning full prescription coverage on “agree[ment] to enter a nursing home”). New York has decoupled state services and benefits from institutional care. The State does not condition access to state services or benefits on residence in particular housing. Recipients of SSI or Medicaid, for example, remain eligible for those benefits regardless of where they live. And no state law, regulation, or policy forces individuals with mental disabilities to accept any form of community
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residence, including adult homes. If residents are dissatisfied with living in an adult home, they may leave.
Contrary to the district court’s suggestion (see SPA150), adulthome residence is not state-mandated institutionalization merely because residents may lack other, better options. See Leocata v. WilsonCoker, 343 F. Supp. 2d 144, 151 & 154-56 (D. Conn. 2004) (rejecting claim that plaintiff was “confined” in violation of Olmstead because government benefits are insufficient to guarantee individuals optimal residential options), aff’d sub nom. Loecata v. Leavitt, 148 F. Appx. 64 (2d Cir. 2005). If adult-home residents lack better housing options, it is not—as in Olmstead—because of state-imposed restrictions, but because DAI’s constituents rely on SSI to live in New York City, one of the most expensive housing markets in the nation. SSI alone—even with the state supplement—may not be sufficient to cover the market rent for an apartment as well as other living expenses. JA539:1976-77; JA670:2538.
New York invests significant resources towards increasing housing options for low-income individuals with special needs, including committing hundreds of millions of dollars each year to subsidize and
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support community-housing options for individuals with mental illness. DX(2)-387. Even that funding, however, does not guarantee every person with mental illness the preferred housing of his or her choice. SPA187 (noting that “no state” including New York “has been able to provide subsidized housing for all . . . residents with mental illness). For individuals whose sole income is SSI, there may be no better option than a private adult home if that individual wants to live in New York City, use SSI to pay for room and board, and take advantage of the additional services that adult homes provide.
Individuals with mental illness who have family support, independent income, and additional financial resources will likely have a broader range of housing options, as will individuals willing to relocate to a less expensive housing market. The difference in the range of options, however, is caused by differences in income and location—not because defendants have engaged in discrimination “by reason of . . . disability.” See Henrietta D., 331 F.3d at 276 (“[T]he ADA and Rehabilitation Act are addressed to rules . . . that hurt [individuals] by reason of their handicap, rather than that hurt them solely by virtue of what they have in common with other people. . . . [T]here must be
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something different about the way the plaintiff is treated ‘by reason of . . . disability.”) (quotation marks and citations omitted). The ADA prohibits restrictions that harm individuals because of their disability. It does not mandate special benefits to cure pre-existing disadvantages that DAI’s constituents share “with other people” who are not disabled, “such as [having] a limited amount of money to spend on housing.” Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003) (quotation marks omitted).
Nor does Olmstead impose liability on the State merely because some adult homes in New York City have “institutional” characteristics. SPA89. To the extent that homes may have a curfew, set meal times, or a “physical layout, furnishings, and decorations” that “give an appearance similar to . . . an institutional setting” (SPA89) (quotation marks omitted), those features are common in other congregate residential settings, and importantly those features are not imposed by the State. Title II of the ADA does not make the State liable for “[t]he programs or activities” of licensed entities. 28 C.F.R § 35.130(b)(6); SPA35. And while the State does regulate adult homes, DAI does not challenge the scope or enforcement of those regulations.
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While the features noted by the district court—such as diminished privacy because of the presence of staff and other residents—may make adult homes and other forms of congregate housing less desirable to residents than individual apartments, they do not constitute discrimination or state-mandated segregation of individuals with disabilities. Adult-home residents have the ability to engage in community life and are encouraged rather than barred from participating in community activities. The evidence at trial confirmed, for example, that adulthome residents have jobs, visit family and friends, take classes, go shopping, and engage in other activities in the community. To be sure, “[s]ome residents testified that they feel isolated living in Adult Homes,” but, as the court acknowledged, individuals can “feel isolated in any setting, including supported housing.” SPA99 (emphasis added); JA132-33:352-53 & 355-56. And individual isolation by itself—when it is not mandated by the State—is not sufficient to establish unlawful discrimination. The ADA and the Rehabilitation Act seek to ensure evenhanded treatment, not to guarantee “equal results” in terms of actual community ties or actual community involvement for individuals
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with disabilities. See Alexander v. Choate, 469 U.S. 287, 304 (1985); Rodriguez, 197 F.3d at 618.
C. Title II Does Not Encompass Challenges—Like DAI’s Here—to the Level of State-Funded Benefits.
As explained above, DAI does not seek nonsegregated access to state benefits or services or the termination of unwarranted institutional confinement by the State, rights that Olmstead recognized are protected by Title II. Instead, DAI seeks to compel New York to increase its level of supported-housing benefits. But Title II does not encompass that type of claim.
Olmstead applied “the ADA’s nondiscrimination requirement” to the services that States “in fact provide.” 527 U.S. at 603 n.14. The Court interpreted the ADA as barring discrimination in the provision of existing services and benefits, not as prescribing what services and benefits that States must offer. Id. As this Court recognized in Rodriguez, Olmstead did not compel the provision of any service or benefit to individuals with disabilities even if the service or benefit may “provide . . . individuals with the opportunity to remain out of institutions.” 197 F.3d at 619. Likewise, Olmstead emphasized: “We do
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not hold . . . that the ADA imposes on the States a standard of care for whatever [] services they render, or that the ADA requires States to provide a certain level of benefits to individuals with disabilities.” 527 U.S. at 603 n.14 (quotation marks omitted).
The law has long recognized Olmstead’s distinction between nondiscrimination in existing programs and the creation of a new subsidy—or a higher level of subsidy—for persons with disabilities. See, e.g., Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 407-12 (1979); Alexander, 469 U.S. at 303. This Court has likewise routinely held that the ADA and the Rehabilitation Act require nondiscriminatory access to existing services and benefits but do not mandate “additional or different” services or benefits for “the disabled, no matter how great their need for the services” or benefits may be. Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000); see also Rodriguez, 197 F.3d at 619; Cercpac v. Health & Hosps. Corp., 147 F.3d 165, 168 (2d Cir. 1998) (the federal “disabilities statutes do not guarantee any particular level of medical care for disabled persons, nor assure maintenance of service previously provided”).
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Olmstead’s narrow scope also reflects the Supreme Court’s long recognition that States may address social welfare problems “one step at a time,” Jefferson v. Hackney, 406 U.S. 535, 546 (1972), “proceed[ing] cautiously” and incrementally in extending public welfare benefits, Bowen v. Owens, 476 U.S. 340, 348 (1986). Rather than immediately creating a statewide entitlement, New York has expanded supported housing in incremental steps, targeting the limited benefits towards individuals with the most acute needs such as persons at risk of homelessness. The State’s choice to “concentrate limited funds where the need is likely to be greatest” is not discriminatory. Califano v. Boles, 443 U.S. 282, 296 (1979).
Although supported housing may be the preferred option for many individuals with mental illness, the State has legitimate, nondiscriminatory reasons to fund and develop a number of slots that is not unlimited. There are limited resources available for community housing of any form. And while the Medicaid waiver program partly reimburses States for providing “community-based services,” Medicaid denies reimbursement for “room and board,” 42 U.S.C. § 1396n(c)(1),
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and restricts waiver services for adults with mental illness. See 42 C.F.R. § 440.180(d)(2).
The need for affordable housing options is great and affects many individuals beyond DAI’s constituents. JA397:1410; JA539:1977; JA670:2538). New York invests significant state resources towards addressing those needs for many populations. See, e.g., N.Y. State, New York State Annual Action Plan: Program Year 2010 49-54 (2010), available at http://nysdhcr.gov/Publications/ActionPlan10/ActionPlan 2010_Approved.pdf. Individuals with mental illness are not excluded from those efforts. The State expends hundreds of millions of dollars each year to increase housing options for persons with mental illness by supplementing SSI, directly subsidizing over 32,000 communityhousing beds, and offering other forms of assistance to communityhousing providers. Supported-housing benefits are one part of that vast effort. SPA163; DX(2)-387.
But the very feature that makes supported housing desirable and “more integrated” in the district court’s view—the fact that residents are provided with their own apartment—also makes the expansion of supported-housing particularly resource-intensive. To develop a single
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supported-housing apartment, without even taking into account the additional services the court also ordered, OMH pays an annual stipend of over $14,500. JA919 ¶ 33. This is a significant financial investment not only for one year but also for the long term, since supported housing is designed to provide individuals “with a permanent place to live.” SPA118. But there are over 350,000 people in New York with serious mental illness, and many more with less severe mental illness. Funding supported housing for all those individuals would exceed OMH’s total annual budget, leaving no room for other mental health services and programs. If the State is to administer statewide services effectively and distribute benefits equitably, the level of supported housing benefits must be capped at some point. JA829:3174-75.
Absent invidious classifications, a State’s decision about “allocating limited public welfare funds” is not “discrimination.” Dandridge v. Williams, 397 U.S. 471, 487 (1970). When there are many competing demands for public assistance and only limited public funds, States “must necessarily engage in a process of line-drawing” in extending benefits. United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980); accord Schweiker v. Wilson, 450 U.S. 221, 243 (1981) (“the
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apportionment of scarce benefits” for public welfare “requires painful but unavoidable line-drawing”). Where that line is drawn will necessarily disappoint some individuals who may desire and who could benefit from supported housing, but that decision is a policy choice “for legislative, rather than judicial, consideration.” Fritz, 449 U.S. at 179.
Because “[n]o State has unlimited resources, . . . each must make hard decisions on how much to allocate” for state-funded benefits like supported housing. Olmstead, 527 U.S. at 612 (Kennedy, J., concurring). That “judgment, however, is a political one . . . not within the reach of the [ADA].” Id. As this Court has explained, absent proof of discrimination, “it is not [the court’s] role to determine what . . . benefits New York must provide,” Rodriguez, 197 F.3d at 619, or which individuals with disabilities should be given priority in the distribution of benefits.
Olmstead itself emphasized this point. Even when individuals are involuntarily institutionalized by the State, which none of DAI’s constituents are, the Court explained that it would suffice for the State to have a “waiting list” for community placement. 527 U.S. at 606 (plurality op.). In other words, even actual, state-mandated
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institutionalization is not unlawful if the reason for confinement is a level of services and benefits insufficient to guarantee all institutionalized individuals immediate community placement. Id. The Attorney General’s Title II regulations likewise explain that public entities may provide “benefits, services, or advantages” to some persons with disabilities, 28 C.F.R. § 35.130(c), without “incurring additional obligations to . . . other classes of individuals with disabilities.” 56 Fed. Reg. 35,694, 35,705 (July 26, 1991). Questions about the level of benefits and priority among classes of persons with disabilities implicate important policy concerns, and States may make wise or unwise policy choices. But those choices are not “discrimination” as defined by Title II of the ADA.
As Justice Kennedy noted in his Olmstead concurrence, it would raise “[g]rave constitutional concerns” if the ADA were read to “permit court intervention” in “basic” political decisions about state budgeting and resource allocation. 527 U.S. at 612-13 (Kennedy, J., concurring). While Congress may enact prophylactic legislation like the ADA “to remedy or prevent unconstitutional discrimination,” Tennessee v. Lane, 541 U.S. 509, 520 (2004), the Constitution does not require States to
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guarantee any level of benefits to persons with disabilities, nor does it authorize Congress to enact legislation that mandates such benefits. If the ADA were read to do so, it would raise serious constitutional questions. Olmstead prudently reads the ADA as avoiding potential constitutional conflict by addressing only discrimination, not level-ofbenefits claims.
D. The Attorney General’s Integration Regulation Does Not Require Increased Levels of Supported-Housing Benefits.
In finding a violation of Title II, the district court relied in part on the Attorney General’s integration regulation, which requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The district court erred to the extent it read into the integration regulation an affirmative mandate requiring the State to guarantee “integrated” housing whenever it provides any service to an individual with a disability. Under that reading, public entities could not offer services in the community without also providing housing benefits for the recipients of those
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services. The regulation does not compel that extraordinary and counterproductive result.
That conclusion is confirmed by decades of federal practice under parallel Rehabilitation Act regulations, which long have governed the activities of federal agencies and the recipients of federal funds. Those parallel regulations have never been interpreted as mandating housing benefits whenever the federal government provides other public services. For example, the Department of Health and Human Services, which administers Medicaid, has an almost identical Rehabilitation Act regulation that requires the agency to “administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.” 45 C.F.R. § 85.21(d). Many of the services at issue in this case are in fact Medicaid services jointly funded by the state and federal government. But Medicaid does not provide housing benefits, let alone ensure individuals with disabilities the “most integrated” housing possible. Even the Medicaid waiver program, which enables States to use a portion of their Medicaid funds to subsidize home and community-based services, specifically excludes reimbursement for room and board. 42 U.S.C. § 1396n(c)(1). Just as
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the federal government’s provision of Medicaid services without corresponding housing benefits would not violate the Rehabilitation Act’s integration requirements, so too here there is no violation of Title II’s integration requirement merely because the State offers community services without also guaranteeing particular forms of community housing.
Nor is it proper to apply the integration regulation to challenge decisions about how defendants administer the entire New York mental health system. See SPA34-36, 78, & 82-83. Threshold determinations about the scope and extent of different state programs and services are legislative and political judgments, Olmstead, 527 U.S. at 612-13 (Kennedy, J., concurring), not administrative decisions about the implementation of existing “services, programs and activities.” 28 C.F.R. § 35.130(d). The integration regulation could not validly cover the type of threshold resource-allocation decisions DAI seeks to challenge. Cf. Olmstead, 527 U.S. at 592 (declining to determine the integration regulation’s validity). The Attorney General’s implementing regulations, however broad in scope, cannot permissibly impose liability
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for conduct beyond the ADA’s express reach. See, e.g., Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984).
E. Public Policy Supports the Distinction Between Level-of-Benefit and Discrimination Claims.
Extending Title II to cover DAI’s level-of-benefit claim is also flawed as a matter of public policy and would ultimately impair rather than advance the ADA’s underlying goals. New York has been at the forefront in promoting a broad array of community-based services for individuals with disabilities. JA232:752; SPA162-63. But other States would have scant incentive to follow New York’s lead if they risked a lawsuit every time they offered a new service or benefit but did not immediately extend that service or benefit to all potentially eligible persons with disabilities. See Bowen, 476 U.S. at 348 (a “rule that would invalidate . . . attempts to proceed cautiously in awarding increased benefits might deter [legislatures] from making any increases at all”).
Deterring state and local governments in this fashion would be particularly harmful to the very individuals DAI purports to represent. Under the district court’s broad view of “integration,” individuals with mental illness could always be more integrated if more comprehensive
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benefits and services were provided. Cf. JA637:2370 (“virtually anyone with a chronic, debilitating psychiatric disorder can be provided care and treatment” in the community “with sufficient services provided”). States would accordingly risk ADA liability if they attempted to test new community program models by funding additional benefits and services for a limited number of individuals through pilot projects or trial initiatives. A rule that called these programs into question would discourage the very type of “controlled experimentation” that has led to critical innovations like supported housing. Cf. Aguayo v. Richardson, 473 F.2d 1090, 1109 (2d Cir. 1973) (States should not be placed “in a vise where [their] only choices in dealing with the problems of welfare are to do nothing or plunge into statewide action”). By confirming the ADA’s distinction between level-of-benefit and discrimination claims, this Court would allow States to continue to develop new programs that benefit individuals with disabilities.
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POINT II THE STATE NEED NOT MODIFY ITS PROGRAMS TO GRANT DAI’S CONSTITUENTS A PREFERENTIAL ENTITLEMENT TO SUPPORTED HOUSING Reversal is also required because the relief that DAI requests, an entitlement to supported housing, is not a “reasonable modification” under the ADA as a matter of law. The new entitlement will cost $65 million the first year, taking into account only presently quantifiable costs, and costs will escalate sharply thereafter. Ordering preferential expansion of supported housing on such a vast and untested scale—for DAI’s constituents alone—fundamentally alters existing levels of supported-housing subsidies and impermissibly dictates the State’s “allocation of available resources” generally. Olmstead, 527 U.S. at 604 (plurality op.). The district court nonetheless rejected defendants’ fundamentalalteration defense based upon its prediction that the State might reap future cost savings by increasing supported housing. But the court’s remedial order does not condition the State’s obligations on whether that prediction is borne out. To the contrary, it requires defendants to guarantee supported housing to thousands of additional individuals—
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including future adult-home residents—regardless of the “increase [in] costs to the State” and regardless of future resource constraints. SPA226. The court also assumed that defendants would divert money from other mental-health programs and close adult homes if necessary to fund a new entitlement for DAI’s constituents. But those measures will decrease the services available to other persons with disabilities, perhaps eliminating services for some people entirely. Olmstead does not require that inequitable result.
A. An Entitlement to Enhanced SupportedHousing Benefits Is Not a Reasonable Modification under Title II.
Title II’s regulations require public entities to “make reasonable modifications to policies, practices, or procedures . . . to avoid discrimination because of disability.” 28 C.F.R. § 35.130(b)(7). A benefit may be required as a reasonable modification only if the plaintiff demonstrates that “‘but for’ its disability, it would have received the ultimate benefit sought.” Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 755 (7th Cir. 2006) (en banc). DAI’s constituents are not being deprived of supported housing—or any housing, for that matter— because of their disabilities. Rather, they are not guaranteed supported
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housing because of funding constraints that limit the number of available apartments. JA551-52:2026-27.
Rather than seeking a modification to avoid discrimination because of disability, DAI seeks to expand current levels of supportedhousing funding and to set aside additional benefits for its constituents alone, a preferential entitlement no other individuals would have. But a grant of “special substantive rights” such as “enhanced rental assistance . . . provided only to the plaintiff class” is not a reasonable modification under the ADA as a matter of law. Henrietta D., 331 F.3d at 282-83; see also Wright 230 F.3d at 548.
B. DAI’s Requested Relief Would Fundamentally Alter Existing State Services and Programs.
Even if a new entitlement program with increased benefits were a reasonable modification, the State would not be required to make modifications that—like the modifications here—“fundamentally alter the nature of the service, program, or activity” at issue. 28 C.F.R. § 35.130(b)(7). The fundamental-alteration defense grants States broad “leeway” in attempting to meet the diverse needs of individuals with mental disabilities. Olmstead, 527 U.S. at 605 (plurality op.); see also
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id. at 610 (Kennedy, J., concurring) (fundamental alteration should be evaluated “with appropriate deference to the program funding decisions of state policymakers”).
For example, even when plaintiffs seek placement into an existing community program with open and available slots, States may weigh the broader impact of immediate transfer on other state programs and services. While it was undisputed in Olmstead that Georgia would save thirty to sixty thousand dollars by moving plaintiffs into an available community program, the Court nonetheless remanded for consideration of the need and desire for community placement of other individuals with mental disabilities, the State’s ability to actually realize immediate cost savings, and the State’s need to maintain institutionalcare options even if community placement were offered. Id. at 604-05 & n.15 (plurality op.).
The Court also noted that Title II’s reasonable-modification standard would be satisfied if a State has implemented an “effectively working plan” to move individuals from state institutions to “less restrictive settings.” Id. at 605-06 (plurality op.). And an effective plan may include a waiting list “for community-based treatment,” so long as
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the waiting list “move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Id. In such circumstances, it would work a fundamental alteration to give plaintiffs immediate, preferential access to community placement, thereby displacing others. Id. at 606 (plurality op.).
Here, in contrast to Olmstead, DAI does not seek placement of individuals into an existing program with open slots. The modification in this case is the creation of thousands of additional supported-housing apartments—4,500 new units at a minimum. Funding even just the first year’s 1,500 units will require an additional $65 million in annual appropriations beyond what the Legislature has currently authorized. And DAI’s constituents would be granted preferential access to those newly funded benefits—displacing other persons with mental illness who also would want supported housing and whose current circumstances may be far more dire than those of the adult-home residents.
Olmstead does not require that result. It directs courts to measure fundamental alteration in light of the State’s “allocation of available resources” and the “responsibility the State has undertaken,” not by ordering sweeping new responsibilities and allocation of millions
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in additional funds. Id. at 604 (plurality op.). By any measure, an expansion on DAI’s requested scale for one target population alone fundamentally alters existing levels of supported-housing benefits.
DAI’s request for a new, preferential entitlement to supported housing is especially inappropriate because New York has implemented “an effectively working plan” to deinstitutionalize individuals from state facilities. Id. at 605-06 (plurality op.). The State has successfully “downsized and closed” many state-operated psychiatric facilities, “reinvest[ing] funds toward community-based services.” SPA162. Indeed, the State has been recognized as a national leader in successfully expanding community-based programs, including community services and housing options like supported housing. SPA162-64; PX(4)-299 (explaining that New York “has the nation’s most extensive” community-housing program for individuals with mental illness).
Such uncontested proof that the State is effectively implementing a plan to “deinstitutionalize disabled persons,” and to maintain a range of services for individuals with disabilities, is more than sufficient to sustain a fundamental-alteration defense when plaintiffs seek an award of special, enhanced benefits. ARC of Wash. State, Inc. v. Braddok, 427
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F.3d 615, 620 (9th Cir. 2005) (“So long as States are genuinely and effectively in the process of deinstitutionalizing disabled persons ‘with an even hand’ we will not interfere.”); Sanchez v. Johnson, 416 F.3d 1051, 1067-68 (9th Cir. 2005) (“when there is evidence that a State has in place a comprehensive deinstitutionalization scheme, which, in light of existing budgetary constraints and the competing demands of other services . . . is effectively working, . . . courts will not tinker with that scheme”) (citations and quotation marks omitted).
The district court acknowledged that New York engages in appropriate “Olmstead planning in a broad sense” (SPA193), but faulted defendants for not having a specific plan with defined numerical targets for moving adult-home residents to supported housing (SPA194-95). But Olmstead does not require such specific plans outside the context of unjustified institutionalization in state facilities. This case is not about the State’s “obligation to deinstitutionalize eligible patients.” Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 157 (3d Cir. 2005). New York has already met that goal with respect to individuals who reside in adult homes, a form of community housing. And while States do not have to offer additional benefits like supported housing as well, New
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York has voluntarily done so and has further expanded supportedhousing subsidies to levels largely unmatched in the nation. JA530:1940-41. These are reasons to defer to the State’s administration of its own programs and services, not justifications for greater intrusion.
In rejecting defendants’ fundamental-alteration claim, the district court also found that adult-home residents had been “excluded” from supported housing because the State’s initial supported-housing efforts targeted individuals with the most urgent needs: the homeless, individuals residing in state psychiatric hospitals, and individuals leaving state prisons. SPA164, 200. But the fact that other “persons with mental illness have received higher priority” (SPA193) is evidence of planning and priority-setting in the expansion of community-based services, not discrimination. This is precisely what Olmstead leaves in state hands so long as the State is making genuine efforts, as New York has undisputedly done here.
In any event, DAI’s constituents are in no way excluded from the State’s current efforts. Adult-home residents have been included as a target population for supported housing since 2005. SPA163. Even
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when individuals remain institutionalized by the State, a form of discrimination absent in this case, see supra Point I(B), Olmstead confirms that it is reasonable to ask individuals to wait for available community-program slots if, as here, the delay is attributable to funding constraints and priority determinations. 527 U.S. at 606 (plurality op.); Sanchez, 416 F.3d at 1067.
Moreover, if DAI’s legal theory were correct, the State might have responsibilities reaching far beyond this case that should be considered in the fundamental-alteration analysis. DAI itself, for example, has filed an almost identical Title II suit seeking “more integrated” community housing for nursing-home residents. Joseph S., 561 F. Supp. 2d at 292-93. The possible needs of those individuals, however, were not considered in this action. As a result, DAI’s claimed constituents in this case may receive benefits not based on the equitable distribution of state funds and available state resources, but simply because their complaint was filed first. But as Olmstead warned, benefits and services should not be distributed based on “who commenced civil actions” rather than the State’s assessments of relative need and priority. 527 U.S. at 606 (plurality op.).
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C. The State Is Not Required to Implement a New Entitlement Program Based on Projected Cost Savings that May Not Occur.
The district court justified its injunction by predicting, based on the analysis of DAI’s experts, that the State would ultimately save money by expanding supported housing because adult homes “overutilize Medicaid services,” billing for costly and unnecessary medical care. SPA176-77. The court estimated that Medicaid usage would be so much lower if DAI’s constituents moved to supported housing that even taking into account the additional $7,370 cost of funding rental subsidies, the State would save $146 annually for each individual that moved from an adult home into a supported-housing apartment. SPA176-77, 181.8
8 The court did not base its prediction on validated studies. To calculate $146 in savings, the court simply compared past Medicaid costs for adult-home and supported-housing residents. But adult-home residents may incur higher Medicaid costs not because they receive unnecessary services, but because they require more treatment than individuals in supported housing, a model designed for individuals with more minimal treatment and supervision needs. This Court need not resolve that issue, however, to conclude that the district court’s analysis was flawed for the reasons stated in the text.
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But if that prediction is the linchpin of the court’s fundamentalalteration analysis, the prediction should also have been incorporated into the court’s remedy. Instead, the court ordered defendants to guarantee supported housing regardless of cost even if projected savings fail to materialize. SPA226. The omission of the very cost-savings limitation the court found critical is itself legal error.
The omission also reveals the underlying flaw in the court’s analysis. DAI’s cost estimates are precisely that—estimates, which rely on predictions about future savings and funding sources that may or may not occur. The entitlement program that DAI seeks, after all, is new and untested. There is no data to show, for example, how many former adult-home residents will require ACT or other intensive services to function safely and successfully in supported housing. Similarly, while the district court projected Medicaid savings, even maintenance of current Medicaid funding is not assured. See Devlin Barret & M.H. Saul, State Budget In for a Loss, Wall St. J., July 20, 2010, at A21 (explaining that “New York’s budget took another blow . . . as Congress pulled away from providing more than $1 billion in expected [Medicaid] health-care funding”). Nor is stable funding for any
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other mental-health program guaranteed in the current financial crisis; a recent emergency spending bill enacted over $325 million in cuts to mental hygiene and social services. See Press Release, N.Y. State Assembly, Significant Action Taken on State Budget (June 14, 2010), available at http://assembly.state.ny.us/Press/20100614/. The district court built in none of those unknown funding contingencies when it attempted to predict what future expenditures will ultimately be required.
The district court did not ignore the inherent uncertainty of DAI’s predictions. But rather than finding this uncertainty a reason to refrain from ordering sweeping changes to state programs and services, the court faulted the State for failing to rebut DAI’s claims about future savings. SPA184. That is a deeply flawed way to apply the fundamental-alteration defense. Conclusive proof about future cost and impact—particularly when pervasive changes are requested and broad new entitlements claimed—will rarely if ever be available. Defendants could not have produced concrete data for a hypothetically restructured system that has never been implemented. State officials are not charged with compiling data for programs that do not exist.
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Moreover, defendants have good reason to proceed cautiously here, because the consequences of being wrong are potentially devastating. Once the State embarks on a radical expansion of supported housing, it cannot easily change course midway if costs exceed estimates. To develop supported housing, the State signs multiyear contracts with private providers that cannot easily be rescinded, and once individuals are in supported housing it may be harmful to try to move them elsewhere even if costs escalate. See PX(4)-299 (“moving is especially stressful for people with psychiatric disabilities and can contribute to problems and re-hospitalization”). And if DAI’s constituents need additional high-demand services such as ACT, those services may be reduced or made unavailable to other individuals with mental illness, persons who are not involved in this litigation. To administer services and benefits on a system-wide basis, defendants must plan for all of these contingencies, and they must do so responsibly when future levels of mental-health funding remain deeply uncertain. See, e.g., Graham v. Richardson, 403 U.S. 365, 374-75 (1971) (ensuring the fiscal integrity of government programs is a legitimate state interest); Baker v. City of Concord, 916 F.2d 744, 750 (1st Cir.
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1990) (States may reasonably administer benefit programs for persons with disabilities “in a fiscally conservative fashion”).
The district court’s approach, by contrast, would require States to make multimillion-dollar bets on new benefit programs whenever a State cannot conclusively disprove a plaintiff’s theory of future cost savings, even when the margin is as slim as the $146 here. Such a rule would improperly establish federal courts “as virtually continuing monitors of the wisdom and soundness of state fiscal administration,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 346 (2006) (quotation marks omitted), a task that the Supreme Court has instead left to state discretion. See Olmstead, 527 U.S. at 605 (plurality op.); see also Mathews v. Diaz, 426 U.S. 67, 86 (1976) (government benefits may appropriately be limited even if the limitation is broader “than necessary to protect the fiscal integrity” of the program as a whole); Lyng v. Int’l Union, United Auto., Aerospace & Agricultural Implement Workers of Am., 485 U.S. 360, 373 (1988) (same).
Moreover, the district court’s cost comparison is flawed on its own terms. If the court were correct that adult-home residents overuse Medicaid services, that fact should not require the State to move those
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residents to another form of housing that will lock in the State’s higher costs. The State might instead choose to step up enforcement actions against the providers that offer unnecessary services to adult-home residents. The appropriate comparison in assessing future costs for fundamental-alteration purposes is not to past Medicaid reimbursement levels that—according to DAI’s own allegations—are both unnecessary and avoidable.
D. DAI’s Request for a Preferential Entitlement Jeopardizes Services for Other Individuals with Disabilities.
The district court’s order also effects a fundamental alteration of New York’s services and programs to the extent it assumes that funds will be diverted from other mental-health programs, such as programs that support adult homes, to subsidize supported housing for DAI’s constituents. DAI’s suit covers fewer than 30 of the more than 380 adult homes statewide and only in one geographic location, New York City. SPA84-85. Reallocating resources from programs that assist homes statewide to benefit DAI’s constituents in New York City will inequitably reduce services and affect living conditions for thousands of other adult-home residents.
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It is undisputed that adult homes are a beneficial option for some individuals, and sometimes they are the only option—for example, some residents may be disabled but are ineligible for supported housing because they are not mentally ill. If homes close because support programs are terminated or because operating costs become too high after large numbers of residents leave all at once for supported housing, individuals with disabilities who need or desire adult-home residences would potentially be displaced from their chosen residence with no guarantee of alternate housing. And closure will adversely affect other individuals who desire adult-home residence in the future. The district court’s order thus jeopardizes services for both current and future residents, placing those individuals at risk of homelessness or other inappropriate living situations. Guaranteeing DAI’s constituents preferred housing—by reducing and potentially denying other persons with disabilities any housing option at all—would be “inequitable” and a fundamental alteration of existing programs and services. Olmstead, 527 U.S. at 604 (plurality op.).
For the same reason, reallocating resources across the entire state mental-health budget—at a time when many other services and
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programs are at risk because of New York’s fiscal crisis—is not a reasonable modification under Title II. See supra at 60; JA847:3245-47. OMH serves over 600,000 New Yorkers with mental illness through thousands of programs that it licenses, oversees, funds, or operates. JA824-26:3155-61; JA827:3164; JA850:3259). It may be impossible to undo the type of systemic changes the district court ordered if the court’s cost predictions are incorrect or if underlying assumptions—for example, about available funding for maintaining essential mentalhealth services—prove untrue. “[T]he ADA is not reasonably read to impel States” to place other persons with disabilities “at risk” to grant DAI’s constituents enhanced benefits. Olmstead, 527 U.S. at 604 (plurality op.).
POINT III THE REMEDIAL ORDER IS OVERBROAD Even if DAI had established a violation of Title II of the ADA, the scope of the court’s Remedial Order would be overbroad. While the district court might in that case have been justified in entering a declaratory judgment, it would not have been justified in issuing a
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Remedial Order so sweeping that it deprives state officials of authority to implement and administer the very program the court mandates.
The Order improperly requires the State to finance a program whose essential components are dictated and controlled by other parties. For example, it denies the State the power to draft and negotiate its own contracts with private supported-housing providers. See SPA238 ¶ 7 (requiring defendants to submit requests for proposals to DAI and the United States for review and approval and to “negotiate” with plaintiffs over the contracts’ terms, subject to final resolution by the court). And it places critical eligibility determinations—including assessments of whether individuals will likely be an “imminent danger to themselves or others” if housed in supported housing (SPA238-39 ¶ 10)—not in the hands of treatment professionals, as Olmstead requires, but in the exclusive control of private supported-housing providers who do not have to rely on professional assessments. Olmstead, 527 U.S. at 587 (mandating community placement only “when the State’s treatment professionals have determined that community placement is appropriate”); id. at 610 (Kennedy, J., concurring) (“[t]he opinion of a responsible treating physician in
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determining” whether community placement is appropriate is of “central importance”).
In addition to barring the State from determining if an individual may be unsafe in supported housing, the court also expanded eligibility to individuals without the level of need the State previously required. Although “[t]he evidence at trial demonstrate[d]” that supported housing was “expect[ed] . . . to serve individuals with serious mental illness” (SPA147) (emphasis added)—an eligibility requirement reaffirmed whenever the State solicited proposals from private providers to expand supported housing9—the court’s Remedial Order extends benefits to individuals with almost any form of mental illness serious or not (SPA225, 238-39 ¶ 10).
9 See, e.g., SX(1)-596 (“[t]he intent of Supported Housing” is to create housing opportunities for “individuals who are seriously and persistently mentally ill”); SX(2)-86 (supported housing “must be targeted to adults with serious and persistent mental illness”); SX(2)220 (supported housing targeted at adult-home residents “who suffer from a serious and persistent mental illness”); SX(3)-142 (“announc[ing] the availability of funds for the development of Supported Housing for persons with serious mental illness”); SX(4)-194 (same); SX(4)-222 (same).
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What discretion defendants retain under the Remedial Order to implement the new supported housing program is subject to two layers of review—first by a court-appointed monitor (and the monitor’s staff) and then by the court itself, which retains ultimate authority to resolve continuing questions about future program implementation. SPA240 ¶ 13. Those questions will be extensive and ongoing. Despite mandating a sweeping new entitlement, the court’s injunction leaves many practical questions about day-to-day implementation unresolved. For example, it is unclear what additional services must be provided to DAI’s constituents. The court ordered defendants to evaluate the need for additional services continually and to report every ninety days on a wide array of similar implementation issues. SPA238, 241 ¶¶ 8, 16. All of these detailed decisions about the practical administration of the injunction remain subject to future dispute, litigation, and resolution by the court rather than by the officials charged with overseeing the State’s mental health system.
The court’s injunction thus imposes the very “federalism costs” that Justice Kennedy cautioned against in Olmstead: of referring every state decision regarding “the administration of treatment programs and
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the allocation of resources to the reviewing authority of the federal courts.” 527 U.S. at 610. The Supreme Court has repeatedly emphasized that state officials should be granted “the opportunity to devise their own solutions,” Missouri v. Jenkins, 495 U.S. 33, 52 (1990), before a court issues a structural injunction that “enmeshe[s]” the court “in the minutae” of state program administration, Lewis v. Casey, 518 U.S. 343, 361-62 (1996) (quotation marks omitted). “The difference between the two approaches is far more than a matter of form.” Jenkins, 495 U.S. at 51. Permitting state officials “to devise and implement [their own] remedies not only protects the function” of state agencies; it also “places the responsibility” of formulating a remedy on those with greatest familiarity and expertise in administering complex state programs. Id. at 51-52.
As a result, before taking the “drastic step” of “not only intrud[ing] on [state] authority but circumvent[ing] it altogether . . . the District Court was obliged to assure itself that no permissible alternative would have accomplished the required task.” Id. at 51. Here there was a permissible and far less intrusive alternative. The district court could have issued a declaratory judgment identifying the relevant statutory
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violation without prescribing the specific program the State must adopt, and without denying state officials the opportunity to administer and implement that program. There is no reason to believe the court will do a better job than defendants in expanding supported housing, a task defendants have undertaken since 1990—by all accounts successfully and well, even if not to the extent DAI would like. Neither the ADA nor basic federalism principles permit displacement of state agencies and divestiture of a State’s control over its own programs when there is no reason to doubt that state officials will fully and faithfully comply with a declaratory judgment defining their obligations under Title II.10
Here, retaining state discretion and flexibility in expanding supported housing is especially important. The entitlement program the court ordered is new and untested. There is no model to follow: no other State offers even remotely comparable benefits on the scale the
10 While the district court criticized defendants for failing to submit a remedial plan it found satisfactory, that is no reason to presume bad faith in implementing the court’s judgment. Had defendants failed to advocate for a more limited injunction, they risked being penalized on appeal for not “vigorously . . . oppos[ing]” the injunction’s terms. Lewis, 518 U.S. at 363 n.8 (noting the dissent’s position that the State was responsible for the scope of the challenged injunction by not contesting the injunction’s terms).
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court has required. And defendants are operating not with guaranteed program appropriations but during a time of debilitating program cuts. SPA188; supra at 60. Implementing the court’s remedy in any form will require myriad day-to-day judgments with spillover effects across multiple state programs, and each program choice will affect not only the safety and stability of DAI’s constituents but many other individuals with mental illness. “Broad remedial decrees” like the injunction in this case improperly “strip state administrators of . . . the flexibility necessary to make reasonable judgments on short notice under difficult circumstances.” Lewis, 518 U.S. at 385 (Thomas, J., concurring).
That result is particularly troubling when the federal “decree has the effect of dictating state . . . budget priorities” for years into the future. Horne v. Flores, 129 S. Ct. 2579, 2594 (2009). The court’s fundamental-alteration analysis, even if correct, is unavoidably static. It cannot account for changing circumstances, evolving budgetary constraints, or new policy insights. Defendants cannot predict, for example, what the State’s mental-health budget will be in the future and what other public-welfare needs will arise. Federal courts have no
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expertise in operating community-housing programs or balancing priorities across a statewide mental-health system, yet the Remedial Order places these decisions under the court’s continuing control.
The Remedial Order is also overly broad because it is not tailored to remedy the violations of Title II that the court found to exist. See Lewis, 518 U.S. at 357; see also Knight v. Alabama, 476 F.3d 1219, 1229 n.19 (11th Cir. 2007) (the “request for a remedy untethered to a constitutional violation . . . misunderstands the nature of judicial power”). The court enjoined defendants against whom no ADA violations were even asserted. See SPA201 (declining to dismiss DOH and the Commissioner of DOH despite DAI’s withdrawal of claims against both defendants). And although DAI failed to identify a single adult-home resident who had applied for and been denied supported housing, the court nonetheless mandated an entirely new, extensive “inreach” protocol that requires providers to promote supported housing even to individuals “who decline” or “are ambivalent” about moving to supported housing. SPA237-38 ¶ 6. Similarly, the Remedial Order guarantees supported housing to future adult-home residents who have not been subject to any type of cognizable injury under Title II.
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SPA234-35 ¶ 1. Individuals who are currently living in their own privately funded housing, for example, could voluntary elect to move into an adult home and would then be guaranteed state-funded supported housing under the Court’s order.
“[H]arm from one particular inadequacy in government administration” does not authorize an injunction that redefines how an entire program should be administered. Lewis, 518 U.S. at 357. Because the Remedial Order improperly divests state officials of discretion to implement the supported-housing program the court found necessary and does so in the absence of actual injury to support many of the injunction’s requirements, it should be vacated.
POINT IV DAI LACKS STANDING TO ASSERT CLAIMS IN ITS OWN NAME ON BEHALF OF ADULTHOME RESIDENTS The district court’s judgment should also be vacated for an entirely independent jurisdictional reason: DAI lacks standing. To establish standing, an organization suing in its own name must establish either a direct injury to itself or injury to its members under
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the doctrine of associational standing. Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998). Because DAI does not allege any direct harm to its own organization from the state actions it challenges, it has standing only if it can assert the rights of the adulthome residents themselves.
A traditional membership organization has associational standing if, among other prerequisites, “its members would otherwise have standing to sue in their own right.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). DAI, however, is not a traditional membership organization. It is an advocacy organization established under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. §§ 10801-10851. Its alleged “constituents”— persons with mental illnesses—are not actually members of DAI.
In Hunt, the Supreme Court held that such nontraditional organizations may nevertheless have associational standing if, among other things, their constituents “possess all of the indicia of membership in an organization,” such as electing the organizations’ leadership and financing the organizations’ activities. 432 U.S. at 344-45. But DAI does not claim that its constituents have any active affiliation with the
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organization, let alone authority to guide its actions. DAI in effect deems any person with mental illness whom it could potentially represent as a client as a “constituent,” a class of persons defined by potential legal claims rather than organizational ties to DAI (Compl. ¶¶ 8-9).
For these reasons, courts have properly held that PAIMI organizations like DAI do not have associational standing to sue in their own name on behalf of potential clients. See Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007); Ass’n for Retarded Citizens v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994); Tenn. Prot. & Advocacy, Inc. v. Bd. of Educ., 24 F. Supp. 2d 808, 815 (M.D. Tenn. 1998). Although two other courts have found that PAIMI organizations do have associational standing, see Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1112 (9th Cir. 2003); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999), those rulings cannot be reconciled with Hunt.
Under Hunt, a nonmembership organization has associational standing only if its constituents enjoy two key indicia of membership: representation and control. It is not enough that the organization may
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have an advisory board, a majority of which is made up of individuals with mental illness or their family members. See 42 U.S.C. § 10805(a)(6)(B). Representation means more than the mere presence of some constituents in the organization’s leadership; rather, as in the voting context, it signifies a meaningful opportunity for each affected constituent to have his or her individual interests reflected in the organization’s actions. Similarly, control means that constituents as a whole have some meaningful way of directing the organization’s activities, whether through funding or some direct role in decisionmaking. The Ninth and Eleventh Circuit decisions erroneously permit PAIMI organizations to sue as plaintiffs in their own name when their leadership is not chosen by their constituents and when their activities are accordingly divorced from any meaningful control by the persons they purport to represent.
DAI’s lack of standing to sue in its own name will not impair its mission. PAIMI organizations may file suit by identifying specific affected individuals and by bringing actions in their names. Indeed, DAI itself has done so in other actions seeking similar relief. See, e.g., Joseph S., 561 F. Supp. 2d 280 (suit naming three nursing-home
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residents as plaintiffs). The need to identify and litigate on behalf of specific plaintiffs, however, does serve a critical, threshold purpose. It ensures that an organization is actually acting as a true representative of its constituents rather than pursuing an independent policy agenda. When an association has members, “the very forces that cause individuals to band together . . . provide some guarantee that the association will work to promote their interests.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 477 U.S. 274, 290 (1986). When that safeguard is missing, the vital interests of some constituents may go unheard and remain unprotected.
For this reason, associational standing requirements are not mere formalism. They serve a protective function similar to Federal Rule of Civil Procedure 23, which governs class actions, in preserving basic fairness and ensuring appropriate safeguards when the “collective adjudication of common rights” is at issue. Brock, 477 U.S. at 290. Ignoring threshold standing limitations leads to litigation like this case—where the asserted right is not “common” to all individuals with mental illness, but is rather a preferential right for some to receive state benefits before others. Unlike cases where true associational
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standing is shown, it cannot “reasonably be supposed that the remedy, if granted, will inure to the benefit” of all persons with mental illness who could be deemed DAI’s constituents. Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (quotation marks omitted). The remedy here requires the State to guarantee preferential benefits to a subset of DAI’s constituents ahead of others who may also seek state services or benefits.
Requiring PAIMI organizations to file suit on behalf of named, identifiable individuals avoids this problem by making the scope and purported impact of the litigation transparent. It forces organizations to act more directly in their constituents’ interests, thus promoting the purpose of PAIMI, rather than filing actions where the interests of some constituents may be advanced at the expense of others who are not named or even advised of the suit.11
11 This Court’s nonprecedential order in Bernstein v. Pataki, 233 F. App’x 21, 24-25 (2d Cir. Apr. 3, 2007), does not compel a contrary result. That case was a putative class action, and one of the organization’s constituents had been named as a plaintiff in addition to the organization’s director. Although this Court declined to dismiss the complaint on standing grounds, it reserved the question of “whether the participation of individual patients may become necessary in
(continued on next page)
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The eleventh-hour intervention of the United States at the remedial phase cannot cure the lack of standing at the time this case was brought. “Intervention cannot cure any jurisdictional defect that would have barred the federal court from hearing the original action.” 7C Charles A. Wright et al., Federal Practice and Procedure § 1917, at 581 (3d ed. 2007). For example, courts have dismissed cases when the initial lawsuit was filed prematurely, even though the intervenors’ claims were timely, see United States ex rel. Tex. Portland Cement Co. v. McCord, 233 U.S. 157, 163-64 (1911) (“The intervention could not cure this vice in the original suit.”), and when the initial lawsuit involved purely state-law claims between nondiverse parties, even when a federal agency seeks to intervene and the mere presence of the agency would normally confer federal jurisdiction, see Vill. of Oakwood v. State Bank & Trust Co., 481 F.3d 364, 368-69 (6th Cir. 2007). And while courts may have the discretion to treat the complaint of an intervenor as a separate action and to continue ongoing litigation on that basis (assuming that the intervenor meets all other jurisdictional
subsequent stages of this litigation” after the denial of motions to dismiss. Id. at 25 n.1.
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requirements), see Hackner v. Guar. Trust Co., 117 F.2d 95, 98-99 (2d Cir. 1941), there is no basis for doing so here, because the United States did not litigate the issue of liability.
Because DAI lacks standing to sue in its own name, the district court’s judgment should be vacated and the complaint dismissed.
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CONCLUSION
The Court should vacate the injunction and enter judgment in
defendants’ favor.
Dated: New York, NY July 23, 2010
Respectfully submitted,
ANDREW M. CUOMO Attorney General of the State of New York
Attorney for State Appellants

BARBARA D. UNDERWOOD Solicitor General
BENJAMIN N. GUTMAN Deputy Solicitor General
CECELIA C. CHANG LAURA R. JOHNSON STEVEN C. WU
Assistant Solicitors General of Counsel

By: ____________________________ Cecelia C. Chang Assistant Solicitor General
120 Broadway New York, NY 10271 Telephone (212) 416-6279

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, Oren L. Zeve, an employee in the Office of the Attorney General of the State of New York, hereby certifies that according to the word count feature of the word processing program used to prepare this brief, the brief contains 14,613 words, as permitted by this Court’s July 15, 2010 order, and complies with the type-volume limitations of Rule 32(a)(7)(B).
______________________________ Oren L. Zeve

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CERTIFICATE OF SERVICE
I, Cecelia C. Chang, do hereby certify that on the 23rd day of July, 2010, I served or caused to be served a copy of the attached Brief, Joint Appendix, and Special Appendix via the CM/ECF System as required under L.R. 25.1(h)(2) upon the following counsel of record:
Zelhof, Jeanette, -: jzelhof@mfy.org Clune, Timothy -: tac@disabilityadvocates.info, tclune@taconic.net Gordon, Andrew, -: agordon@paulweiss.com, mao_fednational@paulweiss.com Ludmerer, Nancy B.,: nancy.ludmerer@davispolk.com, ecf.ct.papers@davispolk.com Cremin, Kevin M., -: kcremin@mfy.org Ms. Raish, Anne S., Attorney: araish@paulweiss.com, Mr. Zucker, Clifford H., Attorney: cz@disabilityadvocates.org, mail@disabilityadvocates.info Mr. Bearden, Roger, -: rbearden@nylpi.org Mr. Luntz, David T., -: dluntz@hinmanstraub.com Ms. Millett, Patricia Ann, Attorney: pmillett@akingump.com, abowen@akingump.com, rpees@akingump.com, bellj@akingump.com, jchou@akingump.com Silver, Jessica Dunsay, -: jessica.d.silver@usdoj.gov Ms. Kwong, Teresa, Attorney: teresa.kwong@usdoj.gov
Additionally, I served or caused to be served one electronic copy of the Trial Exhibits upon:
Julie Fink 1285 Sixth Avenue New York, NY 10019-6064 jfink@paulweiss.com
________________________________ Cecelia C. Chang

 Case: 10-235 Document: 217 Page: 1 07/29/2010 78566 41
10-235 (L) -CV    10-251-cv(CON), 10-767-cv(CON), 10-1190-cv(CON)

IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT

DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA, Plaintiffs-Appellees, v.
NEW YORK COALITION FOR QUALITY ASSISTED LIVING, Movant-Appellant,
– AND –
DAVID A. PATERSON, in his official capacity as Governor of the State of New York, Plaintiffs-Appellees,
(caption continued on next page)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF OF THE STATES OF CONNECTICUT ARKANSAS, TENNESSEE, UTAH, AND WYOMING, AS AMICI CURIAE IN
SUPPORT OF NEW YORK STATE APPELLANTS

DUSTIN McDANIEL ATTORNEY GENERAL OF ARKANSAS ROBERT E. COOPER, JR. ATTORNEY GENERAL OF TENNESSEE MARK L. SHURTLEFF ATTORNEY GENERAL OF UTAH BRUCE A. SALZBURY ATTORNEY GENERAL OF WYOMING
*Counsel of Record

RICHARD BLUMENTHAL ATTORNEY GENERAL OF CONNECTICUT
HUGH BARBER* Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel. (860) 808-5210 Fax (860) 808-5385 Email: hugh.barber@ct.gov

Case: 10-235 Document: 217 Page: 2 07/29/2010 78566 41
(caption continued from front cover)
EMPIRE STATE ASSOCIATION OF ASSISTED LIVING, Movant-Appellant,
RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in
his official capacity as Commissioner of the New York State Department of Mental Health, NEW YORK STATE DEPARTMENT OF
HEALTH, NEW YORK STATE OFFICE OF MENTAL HEALTH, Defendants-Appellants,

Case: 10-235 Document: 217 Page: 3 07/29/2010 78566 41
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................... ii INTEREST OF THE AMICI STATES................................... 1 STATEMENT OF THE FACTS AND PROCEEDINGS......................... 4 ARGUMENT...................................................... 12
I. THERE IS NO PROPER BASIS FOR RELIEF AGAINST THE GOVERNOR, DOH, OR THE DOH COMMISSIONER ..................12
II. PLAINTIFF LACKS STANDING TO ASSERT THE CLAIMS RAISED IN THIS ACTION ..........................................14
III.PLAINTIFF’S CONSTITUENTS DID NOT RECEIVE GOVERNMENTAL SERVICES, PROGRAMS, OR ACTIVITIES THAT WERE PROVIDED IN A DISCRIMINATORY MANNER ..............................22
IV. THE ORDER BELOW INAPPROPRIATELY INTRUDES ON THE AUTHORITY OF THE STATE TO DESIGN PROGRAMS, SET ELIGIBILITY STANDARDS, AND ASSESS CLIENT ELIGIBILITY FOR COMMUNITY-BASED PROGRAMS ULITIZING ITS OWN TREATMENT PROFESSIONALS .................................29
V. THE RELIEF ORDERED BELOW WILL WORK A “FUNDAMENTAL ALTERATION” .............................................31
CONCLUSION.................................................... 32
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Cases

TABLE OF AUTHORITIES

Alexander v. Choate, 469 U.S. 287 (1985)........... 2, 20, 27, 28

American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987) 16

Assoc. for Retarded Citizens v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994) .................................................. 16, 17n

Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999)............ 14

Community for Creative Non-Violence v. Pierce, 814 F.2d 663 (D.C. Cir. 1987). ........................................... 14

Connecticut Dep’t of Income Maintenance v. Heckler, 471 U.S. 524 (1985) .................................................. 7n

Dahlberg v. Becker, 748 F.2d 85 (2d Cir. 1984)................ 13

Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998)............ 2, 19, 20

Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999)................ 17n

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977)............. 12

Ex parte Young, 209 U.S. 123 (1908)........................... 13

Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ....................................................... 29

Fleming v. New York University, 865 F.2d 478 (2d Cir. 1989)... 21

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) 26, 29, 30

Hope, Inc. v. County of Du Page, 738 F.2d 797 (7th Cir. 1984). 16

Hunt v. Washington State Apple Adver. Group, 432 U.S. 333 (1977) .................................... 15, 16, 16n, 17n

Innovative Health Sys. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) ................................................. 25n

Judicial Watch, Inc. v. United States Senate, 340 F. Supp. 2d 26 (D. D.C. 2004) .............................................. 17

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Klostermann v. Cuomo, 126 Misc. 2d 247, 481 N.Y.S.2d 580 (N.Y. Sup. Ct. 1984) .................................... 24, 26
Leocata v. Leavitt, 148 Fed. Appx. 64 (2d Cir. 2005)....... 2, 27 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....... 12, 18 Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002)...... 22, 29 Messier v. Southbury Training Sch., 1999 U.S. Dist.
LEXIS 1479 (D. Conn. Jan. 5, 1999). ............ 13, 13n, 22, 29 Mo. Prot. & Advocacy Servs. v. Carnahan, 499 F.3d 803
(8th Cir. 2007) ........................................ 16, 17n O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) 13, 26 Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999).......... passim Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003).. 17n People Organized for Welfare & Employment Rights v. Thompson,
727 F.2d 167 (7th Cir. 1984) ................................ 16 Rizzo v. Goode, 423 U.S. 362 (1976)........................... 13 Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999) passim Scherman v. New York State Banking Dep’t, 2010 U.S. Dist. LEXIS
26288 (S.D.N.Y. Mar. 19, 2010) .............................. 26 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26 (1976). .................................................. 18 State Office of Prot. & Advocacy for Persons with Disabilities
v. Connecticut, 2010 U.S. Dist. LEXIS 31601 (D. Conn. Mar. 31, 2010) .................................................... 4, 28 Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)...... 13, 26 Traynor v. Turnage, 485 U.S. 535 (1988)....................... 27 United Food & Commer. Workers Union Local 751 v. Brown Group, 517 U.S. 544 (1996) ......................................... 17 Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) ....... 12, 18
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Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002)............... 21 Warth v. Seldin, 422 U.S. 490 (1975).......................... 16 Weisshaus v. Swiss Bankers Ass'n (In re Holocaust Victim Assets
Litig.), 225 F.3d 191 (2d Cir. 2000) ....................... 17n Whitmore v. Arkansas, 495 U.S. 149 (1990)..................... 14 Zimmerman v. Oregon DOJ, 170 F.3d 1169 (9th Cir. 1999)... 25n, 26
Federal Statutes 42 U.S.C. § 1396n(c)....................................... 2, 7n 42 U.S.C. § 1396r(e)(7)....................................... 28 42 U.S.C. § 10805........................................ 15, 17n 42 U.S.C. § 12131(2).......................................... 25 42 U.S.C. § 12132..................................... 19, 24, 26
New York State Statutes N.Y. Mental Hyg. Law § 5.07................................ 8, 23 N.Y. Mental Hyg. Law § 7.07................................ 8, 23 N.Y. Mental Hyg. Law § 41.03................................... 8 N.Y. Mental Hyg. Law § 41.39................................... 8 N.Y. Mental Hyg. Law § 41.42................................... 8 Federal Regulations 28 C.F.R. § 35.130(d).............................. 2, 24, 25, 29 42 C.F.R. § 483.116........................................... 28 42 C.F.R. § 483.120............................................28 New York State Regulations 18 NYCRR § 485.2(b)............................................ 4 18 NYCRR § 487.2(a)............................................ 4
iv

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INTEREST OF THE AMICI STATES This brief amici curiae is submitted by the states of Connecticut, Arkansas, Tennessee, Utah and Wyoming, by their respective Attorneys General. The amici states provide a range of services, within available resources, on behalf of their residents. Chronically mentally ill individuals who satisfy financial and other eligibility requirements frequently qualify for “entitlement” programs, such as Medicaid and Food Stamps, which are generally available to all needy, “disabled” persons in the state. These “entitlement” programs are typically administered by “state welfare” or “state Medicaid” agencies. In addition, the states administer programs and services through designated state mental health agencies that are targeted for mentally ill individuals. The states are fully committed to providing community-based mental health care, whenever feasible. However, any state’s ability to assist is limited by the practical need to meet the educational, public health, and public safety needs of all of its residents, and the need to maintain the economic vitality of the state and its citizens through reasonable taxation. Accordingly, no state provides state-administered mental health service to its citizens as open-ended entitlements. The Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act forbid discrimination on the basis of
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disability in the “services, programs, or activities” that are,

in fact, provided by a state. To date, courts have carefully

construed the ADA as being primarily concerned with ensuring

evenhanded treatment of the disabled with respect to their

ability to participate in programs that the government

administers, and not as requiring a state to provide a “level of

services” or to “prevent institutionalization.” Alexander v.

Choate, 469 U.S. 287 (1985); Doe v. Pfrommer, 148 F.3d 73 (2d

Cir. 1998); Rodriguez v. City of New York, 197 F.3d 611 (2d Cir.

1999). In a series of cases based upon the “integration

mandate” to the ADA, 28 C.F.R. § 35.130(d), this Court ruled

that the ADA does not require a state to alter the scope of

services that are covered under optional Medicaid Home and

Community-Based Waiver programs, 42 U.S.C. § 1396n(c), by

covering additional services, notwithstanding that the

individual could otherwise avoid “institutionalization” in a

nursing facility if the Waiver program were modified as

requested. Rodriguez, supra; Leocata v. Leavitt, 148 Fed. Appx.

64 (2d Cir. 2005). In each of these cases, an otherwise-

eligible plaintiff identified the governmental program at issue

and requested a specific modification that allegedly could be

reasonably accommodated.

This Court, however, found no

obligation to make the requested modification.

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Advocates for the disabled, however, have filed a series of recent cases on behalf of mentally ill individuals who reside in privately operated facilities arguing that the state governmental defendants are liable under the ADA’s “integration mandate” for their “institutionalization,” without identifying any particular governmental service, program or activity, any discriminatory method of administration, or any state conduct that “caused” the institutionalization. The District Court in this case specifically disavowed any obligation on Plaintiff to identify any particular discriminatory “service, program, or activity,” finding liability under the ADA merely because of Defendants’ mental health system planning responsibilities, and Defendants’ failure to affirmatively ensure that mentally ill individuals reside in State-subsidized “supported housing,” receiving whatever additional support services they need, instead of residing in privately-administered Adult Homes. The District Court also precluded the State from setting eligibility criteria for supported housing, or from assessing mentally ill individuals’ eligibility for such services by utilizing its own treatment professionals. The decision of the court below is unprecedented, contradicts this Court’s decision in Rodriguez, and grossly interferes with the prerogatives of the State by creating open-ended entitlements to housing and support services. A recent decision by another district court in this
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Circuit has followed this holding. See, State Office of Prot. & Advocacy for Persons with Disabilities v. Connecticut, 2010 U.S. Dist. LEXIS 31601 (D. Conn. Mar. 31, 2010)(denying motion to dismiss).
The amici states are most concerned about this potential boundless liability to “prevent institutionalization” without any identified discriminatory administration of a governmental service, program, or activity, and urge reversal of the Judgment below.
STATEMENT OF THE FACTS AND PROCEEDINGS The amici states refer to and incorporate the statement of facts and proceedings of the New York Defendants-Appellants, but wish to emphasize certain facts that demonstrate that the Defendants did not injure Plaintiff’s “constituents,” that the relief entered below is not based upon New York’s discriminatory provision of governmental “services, programs, or activities,” and that the relief ordered below will work a “fundamental alteration.” “Adult Homes” are privately operated “room and board” facilities that are licensed by the New York Department of Health (“DOH”) to provide “long-term residential care, board, housekeeping, personal care and supervision to five or more adults.” 18 NYCRR §§ 485.2(b), 487.2(a). They are not medical facilities that are eligible to participate in the Title XIX
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Medicaid program, and they are not considered to be “mental
health facilities,” which are licensed by New York’s Office of
Mental Health (“OMH”).
While a state statute authorizes OMH to discharge mentally
ill individuals from state psychiatric hospitals into Adult
Homes, relatively few such individuals have been transferred out
of state facilities into Adult Homes, especially in recent
years. The overwhelming majority of mentally ill residents in
Adult Homes arranged for their own admission, with OMH playing no role in their decision to reside there.1 Furthermore, OMH
does not “pay for” their care in the Adult Homes. Instead, the
residents are legally liable to pay for their own cost of care, and to apply their own funds towards their costs of care.2
1 The Judgment of the court below is not dependent on the limited extent that OMH may have arranged for the transfer of some mentally ill individuals into Adult Homes. 2 The amici states understand that the majority of chronically mentally ill Adult Home residents are eligible for, and participate in, the federal Supplemental Security Income (“SSI”) program and the state program of State Supplement to SSI (“State Supplement”). The SSI program is administered by the Social Security Administration (“SSA”) and provides periodic (monthly) cash (welfare) assistance for needy, aged, blind and disabled individuals for “basic needs,” such as food and shelter. State Supplement is an optional supplement to SSI that provides additional cash assistance at state expense, and at state election, to needy, aged, blind and disabled persons. The State Supplement program is administered by another state agency, the Office of Temporary and Disability Assistance, which is not a defendant in this action.
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Accordingly, the only connection that OMH has to the Adult Homes or to their mentally ill residents is that state statute authorizes OMH to “monitor” the services that are provided to mentally ill residents of such facilities, and OMH has given grants to non-profit organizations to provide case management services on behalf of mentally ill residents in approximately ten of the “impacted” Adult Homes in question in this lawsuit.3
The OMH, and the state mental health agencies in the amici states, operate and fund a range of mental health residential treatment programs that vary in their intensity, location, target populations, and cost. However, the states are not responsible for, and do not undertake to provide residential mental health services for all of its mentally ill residents of each state. The receipt of state-provided or state-funded mental health services, including mental health residential services, is not an “entitlement.” OMH and the amici states inevitably make service provision determinations based upon priorities that include the extent of the individual’s need for mental health services. Many mentally ill individuals are simply unknown to OMH and/or other state mental health agencies, and are not part of their service networks or considered to be
3 The Judgment does not depend on whether OMH has provided grant funds for case management and/or day treatment services at the Adult Homes.
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their “clients.” To the extent that their mental illness is sufficiently severe to render them “disabled,” such individuals are typically eligible for the federal SSI program, any State Supplement, and the state-administered Medicaid and Food Stamp programs. The Title XIX Medicaid program, in particular, can fund the cost of federally-prescribed mental health services.4
The trial court explicitly rejected Defendants’ contention that Plaintiff must identify a “specific act or policy” that discriminated against Plaintiff’s constituents based upon their “disability,” mental illness. 598 F. Supp. 2d 289, 319 (E.D.N.Y. 2009) (Ruling at Summary Judgment). The trial court ruled that “if Defendants allocated their resources differently, adult home residents could receive services in a more integrated setting.” Id. (emphasis added). The only “programmatic” tie that the court identified between mentally ill Adult Home residents, Defendants, and the possibility of Plaintiff’s constituents residing in alternative settings was various sections of N.Y. Mental Hygiene Law, including N.Y. Mental Hyg.
4 Medicaid-funded mental health services are typically provided without any involvement of the state mental health agency. Generally, residential care in mental health facilities cannot be funded by State Medicaid programs due to the “Institution for Mental Disease” exclusion in the federal Medicaid statute. See, Connecticut Dep’t of Income Maintenance v. Heckler, 471 U.S. 524 (1985). In addition, room and board costs cannot be covered by any optional Medicaid Waiver program that the state may administer. 42 U.S.C. § 1396n(c).
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Law §§ 5.07, 7.07, 41.03, 41.39, and 41.42, which require OMH to engage in system planning functions. Id., at 313, 314. Specifically, the court justified its decision by ruling that, “Defendants are required under New York law to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill. N.Y. Mental Hyg. Law § 7.01,” 653 F. Supp. 2d 184, 188 (E.D.N.Y. 2009) (emphasis added).5 The Court also cited DOH regulations, both at summary judgment and at trial. Id. at 194; 598 F. Supp. 2d at 314, 315. These DOH regulations only authorize DOH to take specific regulatory action with respect to Adult Homes pursuant to its inspection and licensure authority. The regulations do not authorize or require DOH to take any action with respect to the development of community-based residential or day treatment services for mentally ill persons.
Specifically, with respect to the Governor, the trial court “justified” retaining him as a defendant at summary judgment by indicating that he “plays a key role in shaping the State’s mental health policies,” and because he “has access to resources unavailable to the other defendants, such as the Governor’s capital budget … .” Id. At trial, the court below imposed
5 Notwithstanding the plural s referring to all Defendants, the New York Mental Hygiene Law only applies to defendant OMH and to its Commissioner. Said statutes create no right or duties with respect to DOH, the DOH Commissioner, or the Governor.
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liability on the Governor solely by utilizing the plural s with respect to the “Defendants” alleged planning and service responsibilities with respect to the mentally ill under N.Y. Mental Hygiene Law. 653 F. Supp. 2d at 188.
The trial court ultimately found all Defendants liable for “violating the ADA,” essentially because they had not affirmatively acted to develop sufficient supported housing programs, and had not affirmatively ensured that no mentally ill individual resided in an Adult Home unless the individual voluntarily chose to reside in such a setting after being afforded an informed choice to receive “supported housing” instead. The trial court did not identify any “services, programs, or activities” that Defendants administered in a discriminatory fashion (other than that Defendants failed to affirmatively plan for, and to provide, alternatives). Instead, the trial court held that the ADA affords a right for Plaintiff’s constituents to receive a subsidized apartment and “whatever” support services are necessary to “prevent institutionalization.”
The District Court also found that many mentally ill Adult Home residents have “expressed the desire” to move to alternative housing arrangements. The District Court, however, only identified resident responses to “surveys” conducted during discovery, and did not find that the residents had informed
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Defendants of their “desire” to move to alternative settings, or that Defendants had denied any such requests. Indeed, the record indicates that to the extent that Adult Home residents followed prescribed procedures and applied to OMH for assistance utilizing the OMH-prescribed application form, HRA 2000, OMH evaluated their applications and approved community-based alternatives, when appropriate.
The District Court summarily rejected OMH’s position that supported housing is only appropriate for individuals with mild impairments by accepting Plaintiff’s contention that “whatever support services are necessary” may be brought into supported housing settings. The Court, however, made no findings as to whether sufficient psychiatric, psychological, case management, social work, nursing and direct care staff are available in the community. The Court also employed historic supported housing cost figures in addressing New York’s fundamental alteration defense, notwithstanding that the cost of providing supported housing will obviously balloon if New York is required to afford “whatever supportive services are necessary.”6
Plaintiff’s “constituents” are not currently participating in any OMH-funded residential mental health service, program or
6 Supported housing is a cost-effective option for many individuals; however, it becomes cost prohibitive, and therefore unreasonable, if it is necessary to bring in extensive medical, nursing, case management, direct care, and other services into dispersed apartment settings.
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activity, but, by virtue of the mere fact that the constituents elected (without OMH involvement or funding) to reside in privately-operated “Adult Homes,” the Judgment of the Court below entitles them to receive an apartment, substantially paid for by Defendants, and “whatever” support services they require. Remedial Order and Judgment, March 1, 2010, ¶ 1. Moreover, Defendants are enjoined to ensure that no individual with mental illness is offered placement in an Adult Home unless the individual declines supported housing. Therefore, any mentally ill individual who even “thinks about” living in an Adult Home in the future is now entitled, solely by the Court’s Judgment, to receive an apartment and whatever supported services he or she requires. Id.
The availability of this “entitlement” is not even limited by the severity of an individual’s mental illness or his or her comparative need for assistance. See, 2010 U.S. Dist LEXIS 17949, *15,*16 (Memorandum and Order, March 1, 2010)(rejecting Defendants’ proposal to limit the scope of the Judgment to individuals in Adult Homes with “severe” mental illness).
Moreover, the Judgment precludes OMH from following its standards defining when Plaintiff’s “constituents” are “qualified” for supported housing. Instead, OMH must provide supported housing unless the individual has very narrowly defined characteristics, set entirely by the Court.
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Specifically, the Court requires Defendants to determine that

the individual is “qualified” unless he or she has “severe

dementia,” a “high level” of skilled nursing needs that “cannot”

be met in supported housing with services provided by Medicaid

home care or waiver services, or is “likely to cause imminent

danger to themselves or others.” Remedial Order and Judgment,

¶ 10.

ARGUMENT

I. THERE IS NO PROPER BASIS FOR RELIEF AGAINST THE GOVERNOR, DOH, OR THE DOH COMMISSIONER

The Governor, the Commissioner of DOH, the DOH and similar

officials and agencies in the amici states need to devote their

attention to their assigned public responsibilities, and should

not be found liable for violating the ADA, or be compelled to

participate in implementing the remedies afforded by a Court

when they are not responsible for and did not cause the “injury”

that is claimed in this action. The constitutional case or

controversy

requirement

ensures

that

particularized

demonstrations of “injury in fact” and causation are made with

respect to each claim, and with respect to each defendant.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Valley

Forge Christian College v. Americans United for Separation of

Church & State, 454 U.S. 464, 472 (1982); Duchesne v. Sugarman,

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566 F.2d 817 (2d Cir. 1977); Dahlberg v. Becker, 748 F.2d 85 (2d Cir. 1984).
Declaratory or injunctive relief may not enter against a defendant in the absence of an “affirmative link between the occurrences of the various incidents … and the adoption of any plan or policy … showing their authorization or approval of such misconduct.” Rizzo v. Goode, 423 U.S. 362 (1976)(emphasis added). Furthermore, a suit may not be brought against a governor “based upon the theory … [that] as the executive of the state, [the governor] was, in a general sense, charged with the execution of all of its laws.” Ex parte Young, 209 U.S. 123, 157 (1908).
Even if Plaintiff claimed that DOH failed to exercise its limited health inspection and licensure responsibilities appropriately (which is not the case here), the agency’s discretionary exercise of its licensure authority only indirectly benefits residents of facilities subject to licensure. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005); O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980). Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479 (D. Conn. Jan. 5, 1999).7
7 Unlike Plaintiff in this action, the plaintiffs in Messier claimed that the alleged failure of the health inspection agency to properly fulfill its health inspection functions resulted in improper medical treatment of disabled persons. The district
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Furthermore, DOH also cannot be held responsible for any “discriminatory” conduct by the private Adult Homes, in the absence of allegations and proof that the “discriminatory conduct” of such third parties was substantially motivated by DOH’s regulatory choices. Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990); Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 669 (D.C. Cir. 1987).
Accordingly, no proper basis exists for the entry of relief against the Governor, DOH, or the Commissioner of DOH.
II. PLAINTIFF LACKS STANDING TO ASSERT THE CLAIMS RAISED IN THIS ACTION
The District Court improperly held that Plaintiff Disability Advocates, Inc. (“DAI”) had standing to sue on behalf of its constituents by relying upon the “well-established [authority] in this district that P&A organizations have standing to sue on behalf of their constituents … .” 598 F. Supp. 2d at 309, citing Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999). Respectfully, the Court erred because the “well-established authority” in the District is predicated solely upon the terms of a federal funding statute that
court nevertheless dismissed the claim against the health inspection agency in the absence of pleading that the agency’s misconduct was “a substantial factor motivating the third parties action,” due to standing and causation requirements. Id., at *76-80.
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authorizes funded organizations to engage in advocacy activities. That “well-established authority” is erroneous because the federal funding statute, by its terms, only authorizes funded organizations to engage in advocacy, including litigation. The text of the funding statute does not purport to displace the normal, constitutional “case or controversy” requirement that a plaintiff must have suffered injury in fact in order to have standing to sue. If Congress intended to take such a radical step as removing constitutional standing requirements, that intention would have been apparent in the text of the statute and in the history of the provision when it was first enacted, yet the text and history indicate no Congressional intent to confer standing in 42 U.S.C. § 10805.
In any event, Congress lacks the constitutional authority to confer standing by mere legislation since “injury in fact” is a bedrock constitutional requirement that cannot be abrogated by an Act of Congress. See, Hunt v. Washington State Apple Adver. Group, 432 U.S. 333 (1977). To the extent that the Court below recognized that constitutional requirements for “associational standing” must be satisfied, the Court erred by determining that those requirements could be met by injury to “constituents.”
In order for an association to have standing, it must allege and prove that its members or member equivalents have been injured and would otherwise have standing to sue in their
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own right. Warth v. Seldin, 422 U.S. 490 (1975); Hunt, supra.8 The injury of mere “constituents” is insufficient. Mo. Prot. & Advocacy Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007)(ruling that “those persons are only MOPAS constituents,” and that “as the Fifth Circuit held in A.R.C. of Dallas, 19 F.3d at 244 the ‘constituents of MOPAS have no such relationship to the organization [that was analogous to the relationship between apple growers and the Apple Commission in Hunt].’”); Assoc. for Retarded Citizens v. Dallas County Mental Health & Mental Retardation Ctr., Bd of Trustees, 19 F.3d 241, 244 (5th Cir. 1994); Hope, Inc. v. County of Du Page, 738 F.2d 797 (7th Cir. 1984); American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987); People Organized for Welfare & Employment Rights v. Thompson, 727 F.2d 167, 173 (7th Cir. 1984).
The District Court erroneously found that Plaintiff DAI satisfied associational standing requirements based upon the injury of mere “constituents,” without finding that those constituents were, in fact, members of a membership organization
8 “Member equivalent” status was satisfied in Hunt based upon the fact that the advocacy entity was controlled by injured apple growers who alone served on its governing board and financed its activities, making the organization the functional equivalent of a membership organization.
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or “member equivalents” of a non-membership organization. Hunt,

supra.9

Moreover, even if DAI demonstrated that its “constituents”

were “members” or “member equivalents,” DAI nevertheless lacks

standing to sue because it has not demonstrated that its

“constituents” have been injured by Defendants’ conduct in a

manner that would allow the constituents to bring this action

directly on their own behalf.

“Standing” requires a

demonstration of “injury in fact,” a causal relationship between

the injury and the challenged conduct, and a likelihood that the

injury will be redressed by a favorable decision. United Food &

Commer. Workers Union Local 751 v. Brown Group, 517 U.S. 544

(1996). It further requires proof that the challenged conduct

violates the “legal rights” of plaintiffs, Judicial Watch, Inc.

9 Two circuit cases disagree with the holdings of the Fifth and Eighth Circuits in A.R.C. and MOPAS, and find that the Protection and Advocacy organizations involved in those cases are “membership equivalent” organizations, under the facts of each case. See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) and Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999). The amici disagree with the holdings of these Circuits because the Courts gave inordinate weight to the Protection and Advocacy funding statute, 42 U.S.C. § 10805, in violation of the requirements of Hunt, and because the extent of the constituents’ involvement in the governance of the organizations was nowhere comparable to the extent of the apple growers’ involvement in Hunt. See Weisshaus v. Swiss Bankers Ass’n (In re Holocaust Victim Assets Litig.), 225 F.3d 191, 192 (2d Cir. 2000) wherein this Court remanded a case to the District Court with directions to apply the Hunt criteria in making membership equivalent determinations.

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v. United States Senate, 340 F. Supp. 2d 26 (D. D.C. 2004), and a demonstration that the injury is “concrete,” “particularized,” “actual” and “imminent.” Lujan, 504 U.S. at 560. Also, in order to satisfy “causation” requirements, Plaintiff must demonstrate that the “injury” can be “fairly traced” to the challenged conduct of the Defendant. Valley Forge Christian College, 454 U.S. at 472; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42 (1976).
The trial court determined that the mere fact that Plaintiff’s mentally ill constituents reside (or could potentially reside in the future) in an Adult Home when they “could be” served in an alternative supported housing program enough to satisfy “injury in fact” requirements. 598 F. Supp. 2d at 309-10. However, the fact that Plaintiff’s constituents live in Adult Homes is not a legal injury because Defendants are not required to “prevent institutionalization.” See Olmstead v. L.C. by Zimring, 527 U.S. 581, 603 fn. 14 (1999)(ADA does not impose a “standard of care,” or require a “level of benefits” to be provided, and only requires “that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.”); Rodriquez, 197 F.3d at 619 (“Olmstead does not, therefore, stand for the proposition that states must provide disabled individuals with the opportunity to remain out of institutions. Instead, it holds only that states must adhere
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to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.”); Doe v. Pfrommer, supra, (finding that the purpose of ADA is to guarantee that the disabled receive fair access to governmental services in comparison to the access of non-disabled persons, and not to ensure that the disabled receive “adequate” services). Accordingly, “legal injury” requires more than mere physical presence in an Adult Home; it requires the identification of a governmental “service, program, or activity” that was administered by Defendants in a discriminatory fashion, specifically causing harm to Plaintiff’s constituents.
The closest the court below came to identifying a governmental service, program, or activity at issue is the claim that “Defendants … are responsible for determining what services to provide, in what settings to provide them, and how to allocate funds for each program.” 598 F. Supp. 2d at 319. Respectfully, this observation cannot really apply to DOH or its Commissioner, which only perform licensure functions and do not administer or fund mental health programs. It likewise cannot apply to the Governor. Even as to the state mental health agency, the planning or allocation of resources between the various programs OMH administers does not constitute a “service, program or activity” within the meaning of 42 U.S.C. § 12132 (discussed infra).
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The State Defendants, furthermore, did not cause the claimed “injury” since Plaintiff’s constituents reside in privately-operated facilities on their own volition, and there is no claim or finding that the State required (or even authorized or approved) their admission into such facilities. Plaintiff claims that its constituents had “no choice” but to voluntarily seek admission into such facilities due to the absence of alternatives; however, the alleged lack of alternatives cannot constitute legal injury since the ADA only prohibits the discriminatory provision of services, programs, or activities that are, in fact, administered by the State, and does not require the states to meet the needs, or to provide the level of services, “required” by disabled persons. Alexander, supra; Doe v. Pfrommer, supra; Rodriguez, supra.
Moreover, Plaintiff’s constituents are not aggrieved by Defendants’ failure to provide them with “supported housing” or any other community-based alternatives to Adult Homes because of the absence of allegations and findings that the constituents applied for and were denied such alternatives by Defendants. In only one fact scenario has the Supreme Court ever suggested that state governments have an affirmative obligation to consider, and to provide, a “less restrictive alternative,” in the absence of an affirmative request for such assistance. Namely, in Olmstead, the state agency was actually providing a service,
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residential mental health care in an institutional setting. The State’s own readily-available treatment professionals had already determined that the individual could more appropriately be served in a community-based setting, and the State had already provided alternative, community-based residential care through State-funded group home and supported housing arrangements. Under such circumstances, Olmstead held that the State violated the ADA by not affirmatively taking steps to transfer the individual to the alternative setting, in the absence of “opposition” by the individual and in the absence of a “fundamental alteration” defense. Id. None of the foregoing facts applies to this case as Plaintiff’s constituents are not participating in any governmental “services, programs, or activities” that are provided by Defendants in a discriminatory fashion, and as Defendants’ treatment professionals are not readily available and have not assessed them. Under these circumstances, Plaintiffs are not aggrieved by Defendants’ “conduct,” which has not “caused” the claimed “injury,” in the absence of the constituents affirmatively submitting an application to Defendants for community-based care, with such application being denied by Defendants for reasons that are discriminatory. See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002); Fleming v. New York University, 865 F.2d 478 (2d
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Cir. 1989); Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Ohio 2002); Messier, supra.
III. PLAINTIFF’S CONSTITUENTS DID NOT RECEIVE GOVERNMENTAL SERVICES, PROGRAMS, OR ACTIVITIES THAT WERE PROVIDED IN A DISCRIMINATORY MANNER In Olmstead, it was apparent that the plaintiff, who
resided in a state psychiatric hospital, was receiving governmental “services, programs, or activities.” However, the Defendants in this case properly argued below that the “service, program, or activity” requirement was not satisfied merely by the “constituents’” residence in institutions in the absence of pleading and proof that Defendants were responsible for the institutionalizations. The Court below severely criticized Defendants’ position, citing cases where the ADA had been held to apply notwithstanding plaintiff’s residence in private institutions, such as private nursing facilities funded by Medicaid. 598 F. Supp. 2d at 317-319. In each of the cited cases, however, the State operated community-based programs that might have afforded an alternative to state-financed institutional care, and the plaintiff applied for the alternative program and requested a “modification” to the program which allegedly would have allowed him or her to receive community-based services. At issue in each of these cases was
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the state’s refusal to modify the alternative community-based program.
What is different about this case is Plaintiff’s tactical decision not to identify, or to apply for, or to request a modification of, any identified alternative, but to instead claim that the ADA is “violated” whenever a state fails to allocate its resources in a manner that ensures that no individual with a disability resides in a private facility. Respectfully, the pertinent question is whether the discriminatory provision of a governmental “service, program, or activity” harmed Plaintiff’s constituents, not whether the constituents reside in a private facility.
The Court below disavowed any obligation on Plaintiff to plead and prove that any specific, discriminatory “service, program, or activity” caused “injury” to their constituents, and imposed liability on Defendants based solely upon the planning and service provisions of N.Y. Mental Hygiene Law and on the Court’s determination that Defendants could “reasonably” serve Plaintiff’s constituents in supported housing by reallocating their resources. However, even the hortatory planning statutes recognize that resources are limited, and require periodic revision of the plans for reasons that include budgetary concerns. N.Y. Mental Hyg. Law §§ 5.07, 7.07. The statutes have not been construed by the New York courts as creating an
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“entitlement” for mentally ill individuals to receive any
particular treatment or level of care, or to have any such
treatment provided in any particular setting.
The cited sections of the Mental Hygiene Law do not, as plaintiffs argue, provide a “comprehensive mandate” to furnish to plaintiffs with any particular level of care and treatment. On the contrary these provisions define the general mission, or goal of the Office of Mental Health, and were not designed by the Legislature to vest particular rights in the public at large. … [T]he New York courts have firmly linked the “right to adequate treatment” to those whom the State has either confined or assumed custody over … . Since plaintiffs are not presently in the care or custody of the State, they have no general claim to a particular type of care and treatment whether “least restrictive” or otherwise.
Klostermann v. Cuomo, 126 Misc. 2d 247, 251, 481 N.Y.S. 2d 580,
584 (N.Y. Sup. Ct. 1984)(internal citations deleted).
The New York Mental Health planning statutes cannot justify
the relief that was ordered in this case. Title II of the ADA
provides that, “no qualified individuals with a disability
shall, by reason of such a disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis
added). The second clause in § 12132, “or be subjected to
discrimination,” is implemented and defined by the regulatory
“integration mandate.” 28 C.F.R. § 35.130(d). As a practical
matter, the “integration mandate” is the basis for relief sought
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in this action. That “mandate,” by its terms, applies to governmental “services, programs, or activities.” 28 C.F.R. § 35.130(d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”)
Furthermore, the phrase “be subjected to discrimination” refers back to and applies to “qualified individuals,” who are, in turn, defined by reference to their ability to “meet[] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (emphasis added).10 Accordingly, the phrase “or be subjected to discrimination” is also limited and bound by the individual’s eligibility for participation in governmental “services, programs, or activities.”
In context, the term “services, programs, or activities” refers to a governmental “output that is generally available,
10 To the extent that this Court may have suggested in Innovative Health Sys. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), that the second phrase, “or be subjected to discrimination” applies to all governmental actions without regard to any “service, program, or activity” limitation, this Court did not consider the terms of the “integration mandate,” which applies in this case. This Court also did not consider the definition of a “qualified individual,” which is also limited by reference to particular services, programs, or activities. See Zimmerman v. Oregon DOJ, 170 F.3d 1169 (9th Cir. 1999).
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and that an individual seeks to participate in.” Zimmerman, 170 F.3d at 1174. See also, Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003)(defining “benefits of the services, programs, or activities” in 42 U.S.C. § 12132 as meaning the legal entitlements the individual is entitled to receive); Scherman v. New York State Banking Dep’t, 2010 U.S. Dist. LEXIS 26288 *30 (S.D.N.Y. Mar. 19, 2010)(citing Zimmerman with approval and noting that Title II defines a “qualified individual” by reference to the individual’s “ability to receive services or participate in programs or activities”).
“Planning” and “resource allocation” are not governmental “services, programs, or activities” that the public participates in within the meaning of the ADA. The New York “planning statutes” expressly confer planning responsibilities on designated advisory councils and OMH, subject to review and approval by the Governor and the legislature. These statutes do not assure that mentally ill individuals will receive any mental health service from OMH, or that they will receive “supported housing.” Klostermann, supra. They are intended to benefit the public generally rather than benefitting any particular mentally ill individual. Town of Castle Rock, supra; O’Bannon, supra.
Moreover, even if “planning” or “resource allocation” determinations were a governmental “service, program, or activity” that is subject to the ADA, a governmental entity does
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not “discriminate” by failing to ensure that no individual with

mental illness will reside in an Adult Home without first being

offered a state-subsidized apartment and “whatever” support

services are required. The relief ordered below effectively

requires the State to provide a “level of benefits” and to

“prevent institutionalization,” without regard to the existence

of governmental discrimination in any identified governmental

service, program, or activity, in direct conflict with the

holdings of Olmstead and Rodriguez.

Only by carefully identifying the “service, program, or

activity” at issue and carefully examining its purposes and

methods of administration is it possible to determine whether

any requested modification is reasonable. Moreover, many of the

ADA cases involving private providers take place at the

intersection of two federal statutes: the federal Medicaid or

the federal Vocational Rehabilitation and the ADA.

See

Alexander, supra; Rodriguez, supra; Leocata, supra. In these

cases, the courts read the non-discrimination requirements of

the ADA in harmony with the terms of the underlying federal

statute, giving full effect to both, if possible, but giving

controlling effect to the more specific substantive provision of

the federal funding statute in the event of conflict. See,

Traynor v. Turnage, 485 U.S. 535 (1988) (requiring terms of

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underlying federal statute to be given effect); Alexander, supra(same).
The similar case that is pending in the District of Connecticut, State Office of Prot. & Advocacy, supra, involves a claim on behalf of mentally ill individuals who reside in privately operated nursing facilities. In fact, nearly all of these individuals are eligible for, and participate in, the Title XIX Medicaid program, which pays for their care at the nursing facility. Under federal Medicaid law, the state Medicaid agency is required to authorize their nursing home admission, and to pay for their nursing facility care, if they meet nursing facility level of care requirements. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.116, 483.120. However, the plaintiff in the State Office of Protection and Advocacy case does not even allege that its “constituents” are Medicaideligible, or claim that the State administered the Medicaid program improperly in any respect. By not identifying the pertinent “service, program, or activity” at issue, and by not identifying any claimed discriminatory method of administration, the focus and intent of the ADA is distorted from the alleged discriminatory provision of “services, programs, or activities” to an open-ended claim for community-based services.
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IV. THE ORDER BELOW INAPPROPRIATELY INTRUDES ON THE AUTHORITY OF THE STATE TO DESIGN PROGRAMS, SET ELIGIBILITY STANDARDS, AND ASSESS CLIENT ELIGIBILITY FOR COMMUNITY-BASED PROGRAMS ULITIZING ITS OWN TREATMENT PROFESSIONALS By its terms, the ADA potentially requires a State to
provide services in an alternative community-based program only if an individual “meets the essential eligibility requirements” for habilitation in a community-based program. Olmstead, 527 U.S. at 602 (citing 28 C.F.R. § 35.130(d)). Olmstead emphasizes that “absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting,” and indicates that the State “generally may rely on the reasonable assessments of its own professionals.” Id. Accordingly, the plaintiff carries the burden in an ADA integration case to plead and prove that a State’s treatment professionals have assessed the individual and determined that individual to be “qualified” for the community-based program. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003); Martin, 222 F. Supp. 2d at 972; Messier, 1999 U.S. Dist. LEXIS 1479 at *32. Moreover, this Court has determined that it is the State’s prerogative to establish the standards for eligibility in alternative, community-based programs. Henrietta D., 331 F.3d at 277-78 (holding that the individual’s legal entitlements as defined by the State determine whether or not the individual is a “qualified individual.”)
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The trial court in this case accepted the contentions of

Plaintiffs’ experts, who did not perform formal clinical

assessments, but found that “virtually all” of the constituents

were “qualified” for supported housing.

Notwithstanding

Olmstead and its emphasis on clinical determinations of the

appropriateness of community-based care, the trial court held

that clinical assessments are not necessary to determine if the

individual is “qualified,” but “are only necessary to determine

what the supportive services each resident would need once

placed in supported housing.” 653 F. Supp. 2d at 234 fn. 322

(emphasis in original). It specifically rejected Defendants’

policy that supported housing is only for individuals with

minimal needs, and ordered Defendants to provide “whatever”

support services are necessary. Memorandum and Order of March

1, 2010, 2010 U.S. Dist. LEXIS 17949 at *14, *15. The trial

court’s ruling only allows the housing provider, and not OMH, to

determine if the individual is “qualified.” Moreover, the Court

itself set the “qualifications” for participation in supported

housing so broadly that “virtually all” residents must, solely

as a result of the Court’s Judgment, be determined eligible.

All of the following rulings by the Court below violate the

holdings of the Supreme Court and this Court in Olmstead,

Rodriguez, and Henrietta D., that it is up to the state’s

treatment professionals, through the clinical assessment

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process, to determine if an individual is “otherwise qualified,” and it is up to the administering state agency to prescribe the requirements for participation. V. THE RELIEF ORDERED BELOW WILL WORK A “FUNDAMENTAL
ALTERATION” Space limitations only allow the amici states to briefly identify a few of the ways in which the Judgment of the Court below fundamentally alters the “services, programs, and activities” of the Defendants. State mental health agencies only provide residential care when it is an integral and necessary part of a treatment plan that requires residential support and supervision. The Judgment of the Court below, however, turns OMH into a provider of subsidized housing. The Judgment of the Court below fundamentally alters OMH’s programs by creating an entitlement to housing and support services on behalf of mentally ill individuals who are not currently being served by OMH, and by barring OMH from engaging in its customary priority-determination processes as to whether the individual is sufficiently needy of mental health residential treatment services to warrant the provision of same. The Judgment of the Court below fundamentally alters OMH’s programs by requiring it to provide “whatever” support services are required.
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Case: 10-235 Document: 217 Page: 38 07/29/2010 78566 41 The Judgment of the Court below fundamentally alters OMH’s programs by requiring it to provide housing on behalf of individuals who are not even eligible to receive OMH services, including individuals with dementia. The Judgment of the Court below fundamentally alters the Governor’s and DOH’s programs by making them responsible for the development and provision of supported housing when those officials and agencies are not responsible for the provision of mental health services under New York law.
CONCLUSION For all of the foregoing reasons, the Judgment of the Court below should be vacated, with the action remanded to the District Court with directions to enter Judgment in favor of Defendants.
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Respectfully submitted, STATES OF CONNECTICUT, ARKANSAS, TENNESSEE, UTAH AND WYOMING As Amici Curiae RICHARD BLUMENTHAL ATTORNEY GENERAL of CONNECTICUT* By: /s/Hugh Barber ____________________ Hugh Barber** Assistant Attorney General Federal Bar No. ct05731 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel: (860) 808-5212 Fax: (860) 808-5385 E-mail: Hugh.Barber@ct.gov
* Other Attorneys General Listed Inside Front Cover ** Counsel of Record
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CERTIFICATION 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6864 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief had been prepared in a monospace typeface (courier new) with 10.5 or fewer characters per inch.
/s/ Hugh Barber_______________ Hugh Barber Assistant Attorney General
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Case: 10-235 Document: 217 Page: 41 07/29/2010 78566 41 CERTIFICATION OF SERVICE
I hereby certify that on July 29, 2010, a copy of the foregoing Brief of the States of Connecticut, Arkansas, Tennessee, Utah and Wyoming In Support Of The New York State Defendants-Appellants was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of he Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Hugh Barber_______________ Hugh Barber Assistant Attorney General
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10-235-cv(L)

10-251-cv(CON), 10-767-cv(CON), 10-1190-cv(CON)

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

DISABILITY ADVOCATES, INC. AND UNITED STATES OF AMERICA,

Plaintiffs-Appellees,

v.

NEW YORK COALITION FOR QUALITY ASSISTED LIVING AND EMPIRE STATE ASSOCIATION OF ASSISTED LIVING,

Movants-Appellants,

-and-
(caption continued on inside front cover)
_____________________________________________________________________________

AMICUS CURIAE BRIEF FILED ON BEHALF OF FAMILIES OF CURRENT ADULT HOME RESIDENTS
IN SUPPORT OF APPELLANTS ARGUING FOR REVERSAL OF JUDGMENT
________________________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK 03-cv-3209
________________________________________________________________________________

JORDAN W. SIEV CHRISTOPHER A. LYNCH CAMERON G. VAN TASSELL REED SMITH LLP 599 LEXINGTON AVENUE NEW YORK, NY 10022 212-521-5400

DAVID J. DE JESUS REED SMITH LLP 101 SECOND STREET SAN FRANCISCO, CA 94105 415-543-8700

Counsel for Amicus Curiae Families of Current Adult Home Residents

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_____________________________________________________________________________
DAVID A. PATTERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT
OF HEALTH, and the NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants-Appellants.
_____________________________________________________________________________

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii I. INTRODUCTION AND INTEREST OF AMICUS CURIAE ...............................1 II. REPRESENTATIVE CURRENT ADULT HOME RESIDENTS –
DAI’S PURPORTED CONSTITUENTS .......................................................3 A. K.E. –Paranoid Schizophrenia ..............................................................3 B. R.F. – Mixed Personality Disorder .......................................................6 C. J.G. – Chronic Schizophrenia................................................................9 D. S.A. – Paranoid Schizophrenia............................................................12 III. THE DISTRICT COURT’S RULING LIKELY WOULD FORCE ADULT HOMES TO CLOSE AND THUS JEOPARDIZE THE HEALTH AND SAFETY OF THE FAMILIES’ RELATIVES...................14 A. Current Residents May End Up In A Shelter Or On The Streets. ......15 B. There Will Be A Shortfall In Adult Homes For Residents Who
Wish To Remain In Them. ..................................................................17 C. For Many Residents, Adult Homes Provide Ideal Living
Arrangements, While Supported Housing Does Not. .........................18 D. Adult Homes Provide The Families With The Security Of
Knowing Their Loved One Will Be Cared For If The Families No Longer Can Do So. ........................................................................20 IV. CONCLUSION..................................................................................................22 Schedule A .................................................................................................................1 CERTIFICATE OF COMPLIANCE.........................................................................1 CERTIFICATE OF SERVICE ..................................................................................1
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TABLE OF AUTHORITIES Page(s)
Cases Olmstead v. L.C.,
527 U.S. 581 (1999).......................................................................................14
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I.
INTRODUCTION AND INTEREST OF AMICUS CURIAE1
Numerous family members of “Current Adult Home Residents”2
(collectively, the “Families”) have joined together to submit this amicus curiae
brief in order to voice their concerns over the District Court’s ruling3.
The absence of any direct testimony from the Families or any
reference to their concerns in the District Court’s various rulings demonstrates that
the Families’ unique perspective and concerns have yet to be considered in these
proceedings. Indeed, many Families joining this brief were unaware of the
underlying litigation. Although the Families may not have the formal expertise or
1 The parties to this action have consented to the filing of this amicus curiae brief. Pursuant to Local Rule 29.1, counsel discloses that: (i) counsel for amicus curiae alone authored this brief and no counsel for another party to this action authored any part of this brief; (ii) no party to this action or their counsel contributed money that was intended to fund preparing or submitting this brief; and (iii) no other person or entity other than counsel for amicus curiae contributed money that was intended to fund preparing or submitting this brief. 2 The District Court has defined “Current Adult Home Resident” as Disability Advocates, Inc.’s (“DAI”) constituents who are residents of an Adult Home on the date of its order. 3 Attached as Schedule A is a list of individual family members who have indicated a desire to join in this amicus curiae brief. To protect the confidentiality of the family members and their mentally disabled relatives, the Families provide the initials of their first and last names, and their familial relationship to the mentally disabled relative. If the Court requires the full identification of such individuals, the Families are prepared to file an identical brief under seal disclosing these identities.
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technical background of the expert witnesses who testified below, they have decades of experience caring for their loved ones and have witnessed firsthand the care and benefits that the adult home setting provides. They also have endured the difficult process of procuring adequate living arrangements for their mentally disabled family members and acclimating their family members to new circumstances and surroundings. Apart from the adult home residents themselves, the Families know – from personal experience – more than anyone else the kind of support and resources that their mentally disabled relatives require. In this way, the Families have a unique and immeasurable “expertise” that few, if any, others can offer.
The Families’ amicus curiae brief does not illuminate any additional legal or academic authority—this Court has substantial amounts of each before it. Instead, the Families aim to provide the Court with some personal narratives about the mentally disabled persons who comprise DAI’s purported constituents and to debunk some of the misconceptions propagated by DAI and other detractors of adult home life. Most of all, the Families seek to explain the real-world consequences of the District Court’s ruling. The Families respectfully submit that this perspective should be factored into any decision that directly affects their mentally disabled relatives’ living conditions, safety, and mental health, and the District Court’s injunction therefore should be vacated.
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II. REPRESENTATIVE CURRENT ADULT HOME RESIDENTS –
DAI’S PURPORTED CONSTITUENTS DAI’s brief attacks adult homes as “psychiatric flophouses” and attempt to portray adult homes as the same misconceived “institutions” or “asylums” of the past. The Families disagree with DAI’s characterization. In their experience, adult homes are an ideal setting for their mentally disabled relatives because they provide the structure and supportive environment that allow their family member to cope with their disability and to flourish. At the same time, adult homes give many mentally disabled family members ample responsibility and freedom to leave the home when they choose, as well as a safe place to return. In this way, adult homes strike the correct balance between personal freedom and oversight. As the stories below demonstrate, adult homes have been a saving grace for the Families’ mentally disabled relatives.
A. K.E. –Paranoid Schizophrenia K.E. is a 53-year-old male who has lived in the same New York City
area adult home for the past fourteen years. About three decades ago, K.E. was diagnosed as a paranoid schizophrenic while in the armed forces. K.E.’s mother describes him as a “nonconformist” because he does not take his schizophrenia medications unless somebody ensures that he does so. Before moving into his
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adult home, K.E. lived in a number of different arrangements including with his mother, in apartment-type living and in various other adult homes. At one time, he was placed in an apartment with two roommates. The high-rise apartment was in a dangerous neighborhood that his mother describes as “frightening.” Although K.E.’s mother concedes that he had more independence in the apartment, it lacked the structure that he requires, especially for ensuring that he takes his medication.
Before he came to live in his current adult home, K.E. would be hospitalized approximately three times per year for his schizophrenia. These hospitalizations sometimes lasted for a period of weeks or months.
The situation vastly improved for K.E. after he entered his current adult home. He takes his medication regularly and has not been hospitalized for his schizophrenia. Although he has been hospitalized for alcohol abuse, he also received four to five months of alcohol rehabilitation through a hospital identified by the adult home’s staff and, with the support of his counselors and family, he has stayed clean and sober for two years.
K.E. generally is, in his mother’s words, a “wanderer.” He has ventured off in the past and, while on his own, would not stay current with his medications. In contrast, the adult home setting gives K.E. the support and structure needed to ensure that he does not wander and takes his medication.
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Although K.E.’s mother sees him frequently, she takes further comfort in knowing that the staff of the adult home is keeping an eye out for him. K.E. has made himself part of the community in which the adult home is located, getting to know “everybody” including the postmen, building superintendents, and shop keepers.
Critically, the adult home setting strikes the proper balance of providing K.E. the highest possible standard of living without compromising the personal freedom and flexibility he needs. The home in which K.E. resides is described by his mother as “better than some of the best hotels,” having been renovated completely a couple of years ago. The residents enjoy central air conditioning and have a large gathering room with a big screen television.
At the same time, K.E. enjoys getting out of the home and socializing, including with his friend and roommate of nearly 14 years with whom his mother says he gets along “beautifully.” K.E. has complete freedom to leave and may do so without advising the staff or management of the adult home. His bed, however, is checked every morning. When he has failed to return to his room, the adult home staff has called his mother first to make sure he is not with her; if not, together they will seek to determine his whereabouts. On one such instance, K.E. had decided he was going to make it on his own and went to Manhattan, but quickly realized that he was not able to stay on his own.
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K.E.’s mother would be devastated if the home is forced to close. At 78 years old and living in a one bedroom apartment, she would be unable to move him in with her (although his independent streak would prevent that anyway). She is also not convinced that an alternative form of residence will benefit K.E and she is terrified about what might happen to him if he is forced to live on his own, especially because of the likelihood that he would fail to keep taking his medications. Further, the prospect of such an abrupt forced change in his living arrangements and daily routine would, in her view, have a negative impact on K.E. as he has difficulty processing and adapting to significant change. B. R.F. – Mixed Personality Disorder
R.F. is a 51 year-old male who, according to his sister, is diagnosed with mixed personality disorder and also has been treated for depression. From all outward appearances, R.F. would seem “high functioning” but that is not the reality of his situation. Growing up, he had no learning disabilities nor did he require special education, but demonstrated behavioral and emotional problems that made his adolescence challenging for all of those in his life. In high school, he became aggressive and began to take his frustrations out on his parents, and ultimately was diagnosed with his condition.
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For his high school years, R.F. was sent to a co-ed residential treatment center, but before graduating R.F. felt he was ready for group living in New York City. He and six other young men moved to a supported apartment in Queens where a counselor supervised them. R.F. became disillusioned with the supported apartment system when someone had stolen R.F.’s money, which the counselor held for R.F., and the agency would not reimburse him. R.F. ultimately “hit the street” as a result.
R.F. has held various low-level jobs, including handing out pamphlets for a massage parlor and serving as a messenger. He moved back in with his family for a period, but because both parents were ill with cancer, there was a concern about what would happen to R.F. if one or both of his parents passed away or otherwise were unable to care for him. R.F.’s explosive personality complicated his stay at his parent’s home, and he became abusive to his parents. R.F.’s family then began the process of finding other suitable long-term arrangements for him.
At one point, R.F. lived in a supported apartment located on the grounds of a mental institution. His apartment was fully furnished and equipped with a private telephone. Even though he saw a counselor weekly, his multiple personality disorder plagued him for 18 of the 24 months he lived there. R.F. would go a long time without answering his phone, which concerned his family as
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they were worried that he might have “hit the streets” yet again. He also would not or could not cook for himself or clean his own apartment. He was unable to make healthy dietary decisions and his propensity for eating fast food for the sake of convenience caused serious weight gain—to the point where he now weighs 400 pounds. This excessive weight has complicated his diabetes, which requires regular monitoring and treatment. In addition to being erratic in taking his various medications, R.F. cannot properly manage his own money.
Three years ago, R.F. moved into his current adult home. His sister describes it as the best residence he has ever been in: it is exceptionally clean and the overall facilities are all that she could hope for. R.F. has a roommate and the staff ensures that he takes his various medications on a regular basis. R.F. is independent and does not utilize the doctors that regularly work with the adult home, but instead has chosen to use his own internist. If R.F. fails to return to the adult home, the staff will call his sister to advise her of his absence.
R.F.’s sister fears that if the adult home closed, R.F.’s placement in supported housing would threaten his health and well being. In her opinion, without the assistance an adult home provides, R.F. cannot administer his own medications, maintain basic personal hygiene, or do household chores like laundry and cleaning. R.F. is unable to follow through with even the most basic tasks
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unless someone looks over his shoulder, as is the case in the adult home.4 R.F.’s sister fears that this inability to follow through and attend to even minor details will have grave consequences to R.F. if he lives in supported housing.
C. J.G. – Chronic Schizophrenia J.G. is a 58 year-old male who has been living in his current New
York City area adult home for almost 10 years. In 1968, J.G. was diagnosed with chronic schizophrenia at the age of sixteen. Doctors warned his family that the condition would never improve and might worsen; that J.G. would never work, marry or have children; and that J.G. is at risk for early dementia. Additionally, J.G. has developed diabetes, which requires daily monitoring and medication.
Initially, J.G.’s father assumed primary responsibility for his care and dedicated the next thirty years to serving J.G.’s needs. The two were inseparable. J.G.’s father anticipated and attended to his son’s every need, regulated his medication, and even served his food. As a result, J.G. had limited interaction with
4 R.F.’s sister recounts an example of R.F.’s inability to follow through. Approximately one year ago, as broadcasts were switching over from analog to digital, R.F.’s sister obtained for him the necessary converter. She then gave him money to have somebody at the adult home assist him in connecting the converter box. Despite the fact the television is in R.F.’s room, and he had previously watched it every day, R.F. still has not arranged for the converter to be connected and the money remains unaccounted for. While this example may appear trivial to some, it speaks volumes to R.F.’s sister about his inability to manage money or otherwise follow through with promised tasks.
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anyone outside his family and became completely dependent on his father. Spending his time in this fashion, J.G. became so isolated that he nearly was mute and did not participate in social interaction or any kind of community activity.
Despite his father’s dedication, J.G. occasionally wandered off, became disoriented and then was unable to find his way home. On these occasions, J.G.’s father would retrieve J.G. from wherever he ended up, often miles from home. Once, J.G was found wandering along a road in upstate New York, many miles from his home.
Four months after J.G.’s father passed away, J.G.’s family arranged for him to be placed at an adult home and he has remained there for the last ten years. His improvement has been remarkable. The adult home provides the stability he needs to control his medical conditions, but also allows J.G. to socialize and experience much more independence than he had while he was living with his father. J.G. receives daily medication and meets with a case worker twice monthly. Importantly, J.G. no longer hears voices and, while he generally does not initiate conversations, his willingness to do so has increased.
J.G. is free to leave the building at any time, and receives a weekly spending allowance. Although J.G. occasionally becomes disoriented, and therefore has some difficulty with public transportation, he often spends time at the
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library or walking on the boardwalk near the home. J.G.’s family members take him out to lunch or for day trips to visit family in Westchester County. He has consistent interaction with his roommate, the staff, his therapist and other residents in group meetings. He has developed social bonds with other residents who sometimes ask him to run errands for them.
J.G.’s family credits the last decade in an adult home with J.G.’s progress. The social interaction he receives is an important impetus for his development and J.G. is surrounded by numerous individuals who ensure he takes his medications and monitor his physical condition. While J.G.’s family is concerned with the potential closure of his home, J.G.’s own words say it best. As he told his brother, “You know that if this happens [the home closes] I won’t be able to survive.”
J.G. has good reason to be concerned. He is nearly sixty years old, but has never lived independently. In contrast, his adult home has allowed him to interact with a community and develop social ties, rather than withdrawing into his own world as he had done in the past. His family expects that if he were forced to live on his own, he would relapse and become reclusive once again. Additionally, J.G. has many needs that he cannot manage on his own, including his medical, dietary, personal hygiene, transportation, and monetary needs. J.G. and his family
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believe that his condition leaves him vulnerable to predators and consequently fear any move to supported housing.
D. S.A. – Paranoid Schizophrenia S.A. is a 58 year-old female who was diagnosed with paranoid
schizophrenia while she was in college. According to her family, before her illness, S.A. was smart and outgoing and had many friendships. For the next five years, she responded to treatment, remained independent, finished her undergraduate degree, and started a PhD program.
However, S.A.’s condition deteriorated to the point that she could no longer care for herself. She dropped out of graduate school and moved in with her parents. S.A.’s family did everything they could to support her, but eventually her problems overwhelmed them. For instance, S.A. became verbally explosive and her paranoia prevented her from taking her medication which exacerbated matters. Soon, she could not distinguish between her hallucinations and reality. As a result, she was incarcerated several times and frequently hospitalized. Over time, S.A. became isolated and suicidal, and continues to suffer from physical injuries related to an attempted suicide.
Fifteen years ago, S.A. moved into a group home in Queens and her condition has stabilized. The home provides the structure S.A. needs and ensures
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that she takes the medication she requires to be as functional as possible. She has developed a group of friends at the home and participates in group activities. She is familiar with the surrounding community and is free to leave the home although her psychiatric limitations have made it extremely difficult for her to negotiate public transportation. Although S.A. is unable to hold a job, the home provides her with opportunity to help out and to have an appropriate level of responsibility. S.A’s family also reports that she is less prone to outbursts.
S.A.’s family is concerned that if she is forced to leave her current arrangements, her condition will relapse and her progress will quickly unravel. They also are concerned that she will lose longstanding social ties she has developed in the home, which they strongly believe have contributed to her improvement. S.A.’s family has little doubt that if she were moved to supported housing she would stop taking her medication and suffer unnecessarily. They are concerned that without the proper medication and supervision she presently receives in the adult home, she will again become suicidal.
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III. THE DISTRICT COURT’S RULING LIKELY WOULD FORCE ADULT
HOMES TO CLOSE AND THUS JEOPARDIZE THE HEALTH AND SAFETY OF THE FAMILIES’ RELATIVES
Because the District Court’s decision promotes a wholesale adoption of supported housing over adult homes, it may very well force the closure of most, if not all, adult homes in the New York Metro area. This so for two reasons.
First, closures likely will occur as a result of State budget shortfalls that would result from attempting to comply with the District Court’s ruling. In fact, the District Court makes clear that closing adult homes not only is acceptable collateral damage from its ruling, but it seems to welcome such closures. With an implicit nod to the zero-sum nature of funding services for the mentally disabled, the District Court stated that “if there is a will to close Adult Homes… that money could be shifted and used for the services people in supported apartments would need.” (Special Appendix (“SPA”) 188.) The District Court thus augured that the State will likely “shift” this money by exercising its authority “to downsize or close Adult Homes.” (Id. at 188, 197.)
Second, because of the emphasis on moving residents out of adult homes, occupancy likely will fall to levels that are too low to keep adult homes
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economically viable. The lack of occupancy and related revenue would limit resources for proper maintenance, upkeep and health services. As a result, adult homes may become less desirable alternatives for the mentally disabled or altogether lose their licenses to serve that populace. When coupled with the shift in public funding away from adult homes that the District Court contemplates, the lack of occupancy could devastate the adult home system—a system that the Families’ relatives currently benefit from and prefer.
Before the District Court’s ruling is left to stand, the Families respectfully ask this Court to consider the disastrous consequences that the lack of an adult home system would have for them and their loved ones. A. Current Residents May End Up In A Shelter Or On The Streets.
As Justice Kennedy acknowledged, “For a substantial minority . . . deinstitutionalization has been a psychiatric Titanic,” whereby “self-determination often means merely that the person has a choice of soup kitchens” and the “least restrictive setting frequently turns out to be a cardboard box, a jail cell, or a terrorfilled existence plagued by both real and imaginary enemies.” Olmstead v. L.C., 527 U.S. 581, 609 (1999) (Kennedy, J., conc.) (internal quotations/citation omitted). That observation resonates with the Families here.
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Nearly all of the Families are concerned that their relatives will end up in a homeless shelter or on the streets if either the letter or spirit of the District Court’s order is implemented. Certain residents, if placed in the less structured environment of supported housing, may be incapable of remaining there and revert to previous behavior. For instance, R.F., K.E. and J.G. have a history of “wandering” and may reject or abandon their supported housing, particularly if their medication is not administered carefully and regularly. R.F. in particular has had two experiences with supported housing, both of which ended in failure. The first time he was placed in supported housing, he decided to move out and “hit the street.” Because R.F. often refuses to answer his telephone for long periods, if on his own, his family would be left to wonder whether he returned to the streets again. In the adult home, they have the reassurance of knowing that staff will let them know if he were to disappear.
There is no guarantee that supported housing provides the kind of direct oversight found in the adult home. From the Families’ perspective, this greatly increases the risk that their relatives will become homeless or resort to a homeless shelter for housing. That prospect simply is unacceptable.
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B. There Will Be A Shortfall In Adult Homes For Residents Who Wish To Remain In Them. The record shows that a large percentage of the adult home populace
has expressed no interest in leaving their respective adult homes. (See SPA at 15556.) In fact, as many as 44% of the adult home population may prefer continued residence in adult homes. (See SPA at 153.) That means, of the 4,500 total Current Adult Home Residents, up to 1,890 want to stay exactly where they are. By the same token, the District Court aims to essentially shutter the adult home system by siphoning off public funds or forcing a substantial loss of occupancy. Given the number of residents who likely will choose an adult home, the District Court’s order thus could create a dangerous shortfall in adult home arrangements for the many residents that want them. The Families respectfully fail to understand that incongruity.
Granted, the District Court contemplates a procedure through which the residents will have a choice of remaining in an adult home or moving to supported housing. But as explained above, this “choice” is illusory because adult home closures are essentially a foregone conclusion from the District Court’s order. Thus, without the important “middle ground” that adult homes provide, the true choice here could be between smaller supported housing on the one hand and
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larger institutional settings on the other. Neither alternative appeals to the Families or their mentally disabled relatives.
C. For Many Residents, Adult Homes Provide Ideal Living Arrangements, While Supported Housing Does Not. The Families recognize that some mentally disabled persons will
benefit from the move to supported housing. Disabilities are of varying degrees and undoubtedly there are those who can live independently and take care of themselves with minimal interaction with counselors, case workers and others. But that is not the case with the Families’ relatives.5
Many of the Families were thankful that after a painful hit-and-miss process of finding suitable living arrangements, the adult homes finally provided the exact environment in which their relative could thrive. In each of the representative sample cases above, after moving into an adult home, the mentally disabled relative has experienced drastic improvement in their respective abilities to cope and live with their mental conditions. This is directly due to the structure,
5 Consistent with the District Court’s finding that “virtually all” of DAI’s Constituents meet the requirements for supported housing (see, e.g., SPA at 146), the Remedial Order establishes a very low bar to qualify. Id. at 238-39. Indeed, despite the fact that the Families overwhelmingly believe that supported housing could cause harm to their relatives, many of the mentally disabled whose relatives joined this brief likely would qualify. That could prove dangerous, since any determination of qualification for supported housing will be made by the providers who have been awarded contracts to develop supported housing. Id. at 239.
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oversight, and sense of community that living in an adult home brings. Also, because residents are often free to come and go from the adult home as they choose, they develop a sense of personal responsibility to themselves and to their fellow community members. In this way, adult homes strike the perfect balance between personal freedom and necessary oversight.
By contrast, many Families have witnessed terrible consequences when their mentally disabled relatives try to live in a more independent setting. Some have ended up on the streets or at homeless shelters, associated with undesirable or dangerous individuals, or engaged in substance abuse. For example, although S.A. is doing well in her current surroundings, she has a history of becoming suicidal. Her family worries that if she were living on her own, without the social interaction and support she enjoys in the home, those tendencies may reappear. Additionally, K.E. has been hospitalized several times for problems associated with substance abuse. His family is concerned that without the care given in the adult home his substance abuse could arise once more.
Further, mentally disabled individuals who have lived on their own, like R.F. and J.G., often are victimized financially because they have demonstrated an inability to manage their money. Supported housing, which by definition provides less assistance than adult homes, likely would require the resident to
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perform daily tasks—like cooking, cleaning, and basic hygiene—that they otherwise are incapable of performing and that adult home staff currently handles. To make matters worse, mentally disabled persons who have lived on their own often fail to keep up their medicine regime, which only exacerbates their mental condition and makes them more vulnerable to harm.
D. Adult Homes Provide The Families With The Security Of Knowing Their Loved One Will Be Cared For If The Families No Longer Can Do So. A common concern, particularly for parents of mentally disabled
adults, is how their relative will receive proper care if the parents pass away or otherwise are unable to provide the required care. J.G.’s case is a textbook example6. J.G.’s father devoted thirty years to J.G.’s care, but after his death, the surviving family members found it impossible to provide that level of care. They turned to an adult home where, over the last decade, J.G. has learned to become more independent and has thrived. The larger community setting of an adult home has provided residents such as J.G. and S.A. with opportunities for beneficial social interaction that their families never thought possible.
6 But J.G.’s case is by no means unique. Many of the Families supporting this brief indicated that they and their extended family have the same concerns for the future care of their mentally disabled relative.
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Supported housing may not provide that same level of comfort. With fewer residents living there, a supported housing arrangement will have a smaller revenue stream to provide needed services and keep them economically viable. Given the economies of scale attendant with adult homes, a high level of services and resources are available to the residents. However, the costs of living in supported housing are borne by fewer residents, which could threaten the availability of vital services—such as access to medical care or even transportation to medical appointments. The resulting “less-structured” environment may impose a level of responsibility for which many residents may not be ready, or even capable, of accepting. And while the Families may be able to compensate for these shortfalls with their own money and care, there will come a time when they can no longer do so. For these Families, the security of adult homes provides a measure of comfort that supported housing arrangements simply cannot.
But there is more. Supported housing contemplates the contracting provider obtaining a rental apartment in the open real estate market -- in this case, the New York City area. The term of the lease is finite and likely will not last for the duration of the resident’s life. Supported housing thus could result in one or more moves for mentally disabled relatives, who find such moves highly unsettling and difficult to bear. Moreover, mentally disabled relatives in supported housing would likely receive a patchwork of service providers who may be here today, but
- 21 -

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gone tomorrow. In contrast, adult homes offer an invaluable measure of consistency because the Families and their mentally disabled relatives know where the relative is living, what level of care to expect, and who will provide it. That consistency, in turn, means that the families and their mentally disabled relatives can focus on what is important: living with their mental disability.
IV. CONCLUSION Historically, the pendulum has swung from forced institutionalization to unassisted living for mentally disabled persons. To thousands of mentally disabled persons and their families, adult homes have represented an ideal middle ground where they have been able to be part of a relatively tight-knit community, while having the freedom to interact more with the general populace. At the end of the day, they are assured a place to return that has a strong support infrastructure which provides them the physical, emotional and psychological support that they require. Upholding the District Court’s ruling will have the effect of closing many if not all adult homes, thus depriving the residents and their Families of the benefits they enjoy through adult homes. Accordingly, the Families respectfully urge the Court to vacate the District Court’s injunction.
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Dated: New York, NY July 30, 2010

Respectfully submitted,
/s/ JORDAN W. SIEV CHRISTOPHER A. LYNCH CAMERON G. VAN TASSELL REED SMITH LLP 599 LEXINGTON AVENUE NEW YORK, NY 10022 212-521-5400 DAVID J. DE JESUS REED SMITH LLP 101 SECOND STREET SAN FRANCISCO, CA 94105 415-543-8700 Counsel for Amicus Curiae Families of Current Adult Home Residents

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SCHEDULE A

Family Members of Current Adult Home Residents Joining in this Amicus Curiae Brief

E.A., Brother of Y.N.

T.B., Brother of J.B.

L.B., Mother of K.B.

J.B., Brother of R.B.

M.B., Sister of R.B.

L.B., Brother of W.B.

M.B., Brother of E.B.

C.C., Mother of K.B.

A.C., Mother of J.C.

M.D., Brother of J.D.

J.D., Sister of P.D.

A.D., Daughter of T.D.

W.D., Mother of W.D.

D.E., Mother of K.E.

A.G., Brother of J.G.

D.G., Sister of J.G.

H.G., Mother of I.D.

J.H., Brother of E.H.

E.J., Cousin of V.B.

M.J., Sister of E.S.

G.K., Brother of S.K.

S.K., Sister of K.U.

G.L., Sister of S.A.

M.L., Brother of A.L.

D.M., Brother of L.A.

J.M., Sister-in-Law of L.M.

R.N., Father of C.C.

E.O., Sister of R.F.

P.P., Sister of K.T.

J.R., Sister of R.D.

N.R., Sister of P.W.

B.S., Brother of B.S.

K.S., Sister of K.B.

G.S., Mother of K.S.

R.S., Sister of A.S.

S.T., Brother-in-Law of F.C.

J.V., Sister of D.K.

R.W., Brother of B.W.

D.W., Sister of D.B.

A.Z., Sister of S.M.

Case: 10-235 Document: 224 Page: 29 07/30/2010 79803 30
CERTIFICATE OF COMPLIANCE
The foregoing brief is in 14-point Times New Roman proportional font and contains 5,089 words, and thus complies with the type-volume limitation set forth in Rules 32 and 29(d) of the Federal Rules of Appellate Procedure.
/s/ Jordan W. Siev
July 30, 2010

Case: 10-235 Document: 224 Page: 30 07/30/2010 79803 30
CERTIFICATE OF SERVICE
I, Jordan W. Siev, do hereby certify that on the 30th day of July, 2010, I served or caused to be served a copy of the attached Brief via the CM/ECF System as required under L.R. 25.1(h)(2) upon the following counsel of record:
Zelhof, Jeanette, -: jzelhof@mfy.org Clune, Timothy -: tac@disabilityadvocates.info, tclune@taconic.net Gordon, Andrew, -: agordon@paulweiss.com, mao_fednational@paulweiss.com Ludmerer, Nancy B.,: nancy.ludmerer@davispolk.com, ecf.ct.papers@davispolk.com Cremin, Kevin M., -: kcremin@mfy.org Ms. Raish, Anne S., Attorney: araish@paulweiss.com, Mr. Zucker, Clifford H., Attorney: cz@disabilityadvocates.org, mail@disabilityadvocates.info Mr. Bearden, Roger, -: rbearden@nylpi.org Mr. Luntz, David T., -: dluntz@hinmanstraub.com Ms. Millett, Patricia Ann, Attorney: pmillett@akingump.com, abowen@akingump.com, rpees@akingump.com, bellj@akingump.com, jchou@akingump.com Silver, Jessica Dunsay, -: jessica.d.silver@usdoj.gov Ms. Kwong, Teresa, Attorney: teresa.kwong@usdoj.gov Cecelia Chang: Cecelia.Chang@ag.ny.gov
/s/ Jordan W. Siev

 10-235-cv(L), Case: 10-235 Document: 221 Page: 1 07/30/2010 79618 19
10-251-cv(CON), 10-767-cv(CON), 10-1190-cv(CON)
United States Court of Appeals
for the
Second Circuit

DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA,

– v. –

Plaintiffs-Appellees,

NEW YORK COALITION FOR QUALITY ASSISTED LIVING, EMPIRE STATE ASSOCIATION OF ASSISTED LIVING,

– and –

Movants-Appellants,

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Department of Mental Health, NEW YORK STATE DEPARTMENT OF HEALTH, NEW YORK STATE OFFICE OF MENTAL HEALTH,

Defendants-Appellants. ––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR AMICI CURIAE ON BEHALF OF AMERICARE CERTIFIED SPECIAL SERVICES, INC., NEW HORIZON
COUNSELING CENTER, INC. AND NEW YORK PSYCHOTHERAPY AND COUNSELING CENTER, INC. IN SUPPORT OF APPELLANTS

RUSKIN MOSCOU FALTISCHEK, P.C. Attorneys for Amici Curiae 1425 RexCorp Plaza East Tower, 15th Floor Uniondale, New York 11556 (516) 663-6600

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, counsel for Americare Certified Special Services, Inc., New Horizon Counseling Center, Inc. and New York Psychotherapy and Counseling Center, Inc. certifies that Americare Certified Special Services, Inc. is a privately held corporation, and New Horizon Counseling Center, Inc. and New York Psychotherapy and Counseling Center, Inc. are not-for-profit corporations. The following is a list of their corporate parents and/or public held companies that own 10% or more of its stock:
None
S/ E. Christopher Murray E. Christopher Murray

Case: 10-235 Document: 221 Page: 3 07/30/2010 79618 19
TABLE OF CONTENTS PAGE
TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF INTEREST AND INTRODUCTION.........................................1 RELEVANT FACTS .................................................................................................3
A. Adult Homes..........................................................................................3 B. Supported Housing ................................................................................5 C. Remedial Order and Judgment..............................................................5 ARGUMENT .............................................................................................................6 GRANTING DAI STANDING WAS IN ERROR AND RESULTED IN AN INAPPROPRIATE GENERALIZED DETERMINATION THAT DEFENDANTS VIOLATED THE ADA RIGHTS OF 4,300 INDIVIDUALS .............................................6 CONCLUSION ........................................................................................................11
i

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TABLE OF AUTHORITIES

CASES

PAGE

Associated General Contractors of North Dakota
v. Otter Tail Power Company, 611 F.2d 684 (8th Cir. 1979) ............................................................... 10

Maryland Highways Contractors Association, Inc.
v. State of Maryland 933 F.2d 1246 (4th Cir.), cert. den., 502 U.S. 939 (1991)................9-10

Missouri Protection & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) ................................................................ 8

Olmstead v. L.C. ex rel. Zemring, 527 U.S. 581 (1999).............................................................................. 1

STATUTES 18 NYCRR §485................................................................................... 3 18 NYCRR §487................................................................................... 4 New York Social Service Law §2(21) ................................................... 3

ii

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STATEMENT OF INTEREST AND INTRODUCTION Plaintiff Disability Advocates, Inc. (“DAI”) brought this action on behalf of persons with mental illness who reside in privately owned adult homes in New York City. The adult homes that are the subject of this action are ones that have a large percentage of residents suffering from mental illness. DAI alleges that these adult homes do not provide a sufficiently “integrated setting” to satisfy the requirements of the Americans With Disabilities Act (“ADA”) as set forth by the Supreme Court in Olmstead v. L.C. ex rel. Zemring, 527 U.S. 581 (1999). 1 After a bench trial in which the Court found for the plaintiff, and after the Court provided the parties with the opportunity to make remedial proposals, the United States District Court for the Eastern District of New York (Garufis, J.) issued a Remedial Order and Judgment requiring the defendants - the Governor, the Department of Health (“DOH”), the Office of Mental Health (“OMH”) and the agency commissioners - to guaranty supported housing and related professional services for approximately 4,300 individuals currently residing in the subject adult homes. The State of New York appealed the final judgment and that appeal has been consolidated with three other appeals by adult home associations that were denied intervention. 1 None of the parties, the proposed intervenors, nor their counsel drafted any portion of this brief or contributed financially to its preparation. The only entities that contributed financial resources for the preparation of this brief are Americare, New Horizon and NYPCC.
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Americare Certified Special Services, Inc. (“Americare”) provides home care to the mentally ill and the developmentally disabled, as well as for general population patients. Americare is a certified home health agency whose services are covered by Medicare, Medicaid, managed care and other insurance plans. Americare provides home care services to individuals residing in the adult homes that are the subject of this action.
New Horizon Counseling Center, Inc. (“New Horizon”) is a not-for-profit community mental health clinic certified by the New York State Office of Mental Health. New Horizon provides diagnostic evaluation, psychotherapeutic and aftercare services to those experiencing depression, anxiety, phobias, schizophrenia, psychosomatic illness or other emotional stresses. New Horizon provides services both at clinical locations and at homes, schools, workplaces and adult homes, including the adult homes that are the subject of this action, and provides a case management program to evaluate whether individuals should be moved from adult homes to supported housing.
New York Psychotherapy and Counseling Center Inc. (“NYPCC”) is a notfor-profit corporation founded in 1974 as a community oriented mental health clinic licensed by the New York State Office of Mental Health. NYPCC provides mental health services to individuals, including seriously and persistently mentally
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ill adults, and seriously emotionally disturbed children and adolescents in Brooklyn and Queens. NYPCC operates three clinics located at adult homes.
The interest in this action of these mental health service providers, whose chief executive officers have authorized the filing of this brief, is to provide the Court with assistance in addressing the legal issue raised on the appeal from the Remedial Order and Judgment from the perspective of the service providers for the individuals residing in the subject adult homes. Specifically, as explained below, the District court erred in granting DAI standing to assert the purported ADA claims of approximately 4,300 individuals, and as a result of granting DAI standing and the Remedial Order and Judgment, specific individuals who are best served by receiving mental health services in adult homes may be placed at risk if they are transferred to supported housing.
RELEVANT FACTS A. Adult Homes
Adult homes are licensed by the State to provide “long-term residential care, room, board, housekeeping, personal care and supervision to five or more adults”. 18 NYCRR §485.2(b). They are meant for individuals who do not need the level of care provided by hospital or nursing home, but who are nonetheless “unable or substantially unable to live independently”. Social Service Law §2(21). Adult homes typically provide housing, meals, assistance with personal care and
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medication management. 18 NYCRR §487.7(e)-(f). Adult homes contract with providers for assistance with the assessment of mental health needs, the supervision of general mental health care, and the provision of related case management services. SPA 101-2. The adult homes at issue in this action are homes within New York City with at least 120 residents, at least 25% of whom have a mental health disability. SPA 77.
Adult homes are highly valuable for providing residents with personal care, medication oversight and a safe environment. JA836:3202-03. Further, the State is responsible for appropriate enforcement measures to make sure that individual homes meet State regulatory standards. SPA 167. Adult homes are often the most appropriate setting for individuals who require services from third party providers, such as Americare, New Horizon and NYPCC, and adult homes permit these providers to deliver services efficiently to groups of in need individuals who otherwise may not receive the same quantity and quality of service.
For example, individuals who have serious mental health illness such as schizophrenia, manic depression or are psychotic need continual supervision to assure that they have and take the appropriate medication, and the ability to provide this service is facilitated by the adult home setting. And, although while medicated, these individuals may be sufficiently functional to live in supported housing, if they cease to take their medication, which will be a risk if they are
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living in supported housing, they will no longer be functional and may pose a danger to themselves and others. B. Supported Housing
Although “supported housing” does not have a statutory or regulatory definition, the term is generally understood to be housing situations where individuals with mental illness live in their own apartments with supporting services. JA504:1441-42. New York began to develop permanent supported housing for persons with mental illness in the early 1990s. JA232-33.
Residents of supported housing range from those requiring limited visits from case workers (JA405:1443-44, JA696:2642-43), to those that receive state funded intensive services, which involve frequent visits by a multidisciplinary team of specialists in psychiatry, nursing, psychology, social work, substance abuse and vocational rehabilitation (JA101:228-29, JA258:855-57). These intensive services are in high demand statewide by many groups of individuals with mental illness. JA101:228-290, JA258:855-57. C. Remedial Order and Judgment
By its Remedial Order and Judgment (SPA 232-242), the District Court directed that the defendants ensure that within four years “all Current Adult Home Residents who desire placement in supported housing have been afforded such placement if qualified” and that after four years “any individual with mental illness
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who is qualified for supported housing” may not be offered placement in an Adult Home, unless he or she declines placement in supported housing after being “fully informed”.
Defendants are also required to develop a minimum of 1,500 supported housing beds for “DAI Constituents” per year, and must enter into contracts with providers for the necessary support services. In the Memorandum and Order dated March 1, 2010 issued in connection with the adoption of the Remedial Order and Judgment (SPA 218-232), the amount of supported housing beds to be developed was based on the Court’s finding that “virtually all” of DAI’s constituents are qualified for supported housing.
ARGUMENT GRANTING DAI STANDING WAS IN ERROR
AND RESULTED IN AN INAPPROPRIATE GENERALIZED DETERMINATION THAT DEFENDANTS VIOLATED THE ADA RIGHTS OF
4,300 INDIVIDUALS By the District Court allowing DAI standing to bring the ADA claim that the adult homes are not the appropriate setting for 4,300 individuals, the District Court ignored that these individuals have very specific and varied needs, and while supported housing may be a more appropriate living arrangement for some of the individuals who reside at the adult homes that are the subject of this action, for
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others, the adult home they reside in may be a more appropriate and beneficial living arrangement.
Adult homes provide a structured environment which allows outside providers the means to oversee the delivery of necessary mental health services for in need individuals. Of particular concern is medication management because while some individuals may be functional enough for supported housing if medication is being appropriately taken, if they fail to take the medication they will no longer be functional enough to reside in supported housing. In addition, adult homes permit mental health service providers with the ability to efficiently provide clinical services to a number of individuals who may not receive the same quality and quantity of help if they were scattered in assisted housing throughout New York City.
The District Court determined the DAI had standing to assert the ADA claim, and the District Court found that “virtually all” of the approximately 4,300 individuals are not appropriately housed in adult homes. And, while the Remedial Order and Judgment provides for an individualized assessment, only three categories of individuals will be deemed to be appropriate for adult home placement, i.e. those with severe dementia, high level of skilled nursing needs or those likely to cause imminent danger to themselves or others.
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The District Court’s generalized assessment as to the appropriate housing needs for approximately 4,300 individuals, which was undertaken only after hearing from a handful of individuals who were situated in the adult homes, is demonstrative of the real life trouble raised by granting standing to DAI.
As both the State, as well as the representations of the adult homes effected by this action point out, DAI is not a traditional membership organization, nor does DAI meet the requirements for being deemed a membership organization for purposes of standing because the individuals DAI purportedly represent do not participate in DAI’s activities or litigation decisions (see discussion in Brief for New York Coalition for Quality Assisted Living, Inc., PP28-32). Accordingly, the propolytic purpose of requiring standing has not been met in this action, and the consequences are very real. Without the involvement of the individuals who are purportedly represented by DAI, there are no assurances that their needs are paramount, as opposed to this action simply being intended to advance DAI’s policy agenda.
Thus, as the defendants-appellants point out, other circuits have specifically held that standing was not appropriate for organizations like DAI for this “kind of litigation in bulk”. For example, in Missouri Protection & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007), associative standing was rejected “without the participation of one or more individual wards with specific claims
- 8 -

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based on a particular incapacity”. By requiring specific plaintiffs, as opposed to a generalized “constituency”, the risk of overbroad and incorrect assessments as to the appropriate housing needs of individuals with varied needs is diminished (see discussion in Defendants-Appellees Brief at PP.74-81).
An adult home setting provides the opportunity to make available intensive mental health services to a number of patients who may not have the same access if scattered in individual apartments throughout the City of New York. And while there may be individuals in adult homes who would be better served by being placed in supported housing, it is hard to fathom how the District Court, even on the extensive record before it, came to the determination that “virtually all” of the 4,300 individuals in question are better served by being in supported housing instead of adult homes.
Further, if the result of the Remedial Order and Judgment is the closure of the adult homes, the individuals who require this type of setting will be harmed. The population of individuals with various types and severity of mental illness cannot be served only by supported housing, and if the result of this action is to eliminate the availability of adult homes there will be real harm to a number of individuals that DAI purports to represent. See Brief for New York Coalition for Quality Assisted Living, Inc. PP.36-39. See also Maryland Highways Contractors Association, Inc. v. State of Maryland, 933 F.2d 1246, 1252 (4th Cir.), cert. den.,
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502 U.S. 939 (1991) (representative standing denied because, inter alia, of actual and potential conflicts among members of the association); Associated General Contractors of North Dakota v. Otter Tail Power Company, 611 F.2d 684 (8th Cir. 1979).
An individual, or even specific identifiable groups of individuals, clearly have recourse under the ADA to assert that they are being wrongly housed in a non integrated setting, but the District Court, in granting DAI standing to speak for 4,300 individuals who have a wide spectrum of needs, clearly erred. Simply put, the District Court’s error in granting standing to DAI has now resulted in a broad determination that “virtually all” of 4,300 individuals currently residing in the effected adult homes should not be placed in adult homes, which from the perspective of the providers of mental health services is troubling and inaccurate. Many of the 4,300 individuals receive better mental health services because of their placement in adult homes, and the District Court’s granting DAI standing to litigate a change in the housing placement of 4,300 individuals should be reversed.
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CONCLUSION The Court should vacate the injunction and enter judgment in defendants’ favor.

Dated: Uniondale, New York July 29, 2010

Respectfully submitted, RUSKIN MOSCOU FALTISCHEK, P.C.

By:

S/ E. Christopher Murray

E. Christopher Murray

Attorneys for Americare, New Horizon

and NYPCC

Amici Curiae East Tower, 15th Floor

1425 RXR Plaza

Uniondale, New York 11556

(516) 663-6600

E. Christopher Murray Matthew F. Didora

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, E. Christopher Murray, a Partner at the firm of Ruskin Moscou Faltischek, P.C., hereby certifies that according to the word count feature of the word processing program used to prepare this brief, the brief contains 2,175 words, and complies with the type-volume limitations of Rule 32 (a)(7)(B).
S/ E. Christopher Murray E. Christopher Murray

Case: 10-235 Document: 221 Page: 17 07/30/2010 79618 19

STATE OF NEW YORK ) )
COUNTY OF NEW YORK )

ss.:

AFFIDAVIT OF

CM/ECF SERVICE

I, Natasha S. Johnson, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age.
On
deponent served the within: Brief for Amici Curiae on Behalf of Americare Certified Special Services, Inc., New Horizon Counseling Center, Inc. and New York Psychotherapy and Counseling center, Inc. in Support of Appellants
upon:

SEE ATTACHED SERVICE LIST

via the CM/ECF Case Filing System. All counsel of record in this case are registered CM/ECF users. Filing and service were performed by direction of counsel.
Sworn to before me on

MARIA MAISONET Notary Public State of New York
No. 01MA6204360 Qualified in Bronx County Commission Expires Apr. 20, 2013

Job # 231385

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SERVICE LIST:
Roger Bearden New York Lawyers for the Public Interest 151 West 30th Street, 11th Floor New York, New York 10001 (212) 244-4664
Andrew Gordon Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000
Jeanette Zelhof MFY Legal Services, Inc., 4th Floor 299 Broadway New York, New York 10007 (212) 417-3772
Clifford H. Zucker Disability Advocates, Inc. 5 Clinton Square, 3rd Floor Albany, New York 12207 (518) 432-7861
Timothy Aloysius Clune Disability Advocates. Inc. 5 Clinton Square, 3rd Floor Albany, New York 12207 (518) 432-7861
Attorneys for Plaintiff-Appellee Disability Advocates, Inc.
Teresa Kwong, Attorney United States Department of Justice 950 Pennsylvania Avenue, NW, Room 3726 Washington, DC 20530 (202) 514-4757
Jessica Dunsay Silver United States Department of Justice Civil Rights Division P.O. Box 14403, Ben Franklin Station Washington, DC 20044 (202) 514-2195
Attorneys for Plaintiff-Appellee United States of America

Case: 10-235 Document: 221 Page: 19 07/30/2010 79618 19
Patricia Ann Millett, Attorney Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 887-4450
Attorneys for Movant-Appellant New York Coalition For Quality Assisted Living
David T. Luntz Hinman Straub P.C. 121 State Street Albany, New York 12207 (518) 436-0751
Attorneys for Movant-Appellant Empire State Association of Assisted Living
Chen Chen Cecelia Chang New York State Office of the Attorney General 120 Broadway New York, New York 10271 (212) 416-6279
Benjamin N. Gutman, Deputy Solicitor General New York State Office of the Attorney General 120 Broadway, 25th Floor New York, New York 10271 (212) 416-8096
Laura R. Johnson, Assistant Solicitor General New York State Office of the Attorney General 120 Broadway New York , New York 10271 (212) 416-6184
Attorneys Defendants-Appellants
Nancy B. Ludmerer, Attorney Davis Polk & Wardwell LLP 450 Lexington Avenue, Suite 3029 New York, New York 10017 (212) 450-4278
Attorneys for Movant National and New York Mental Health Professionals, Advocacy Family and Consumer Organizations

 Case: 10-235 Document: 225 Page: 1 07/30/2010 79804 35

0-235-cv(L)

10-251 (CON), 10-767cv(CON), 10-1190cv(CON)
Euitett btateg Court of pea 1, for the beconb Circuit

DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA, Plaintiffs-Appellees,
v.

NEW YORK COALITION FOR QUALITY ASSISTED LIVING, EMPIRE STATE ASSOCIATION OF ASSISTED LIVING,

-and-

Movants-Appellants,

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF
HEALTH, NEW YORK STATE OFFICE OF MENTAL HEALTH,

Defendants-Appellants.

On Appeal from the United States District Court For the Eastern District of New York
BRIEF OF AMICUS CURIAE EMPIRE STATE ASSOCIATION OF ASSISTED LIVING
IN SUPPORT OF DEFENDANTS-APPELLANTS
David T. Luntz, Esq. Lori A. Sievers, Esq. HINMAN STRAUB, P.C. Attorneys for Amicus Curiae Empire State Association of Assisted Living, Inc. 121 State Street Albany, NY 12207 Phone: 518-436-0751 Fax: 518-436-0751

Case: 10-235 Document: 225 Page: 2 07/30/2010 79804 35

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT

iv

STATEMENT OF INTEREST

1

SUMMARY OF ARGUMENT

3

ARGUMENT

4

POINT I

4

THE STA1E, DEFENDANTS DID NOT VIOLA1 THE ADA,

4

AND THE LOWER COURT'S ORDER MUST BE VACATED

A. The District Court's Ruling Represents an Unprecedented Expansion of the

ADA Claim Recognized by Olmstead

4

B. Adult Home Residents Live In Integrated Settings

6

C. Adult Home Residents Reflect a Diverse Population Who Are Not Eligible

for Supported Housing Under Olmstead.

8

1.Private Pay Residents Are Presumed to Have Made an Informed,

Conscious Choice to live in an Adult Home, and as such, are Not Eligible

for Supported Housing, and Should Not be Subject to the Remedial Order 10

2. Residents in an Assisted Living Program Are Not Eligible For Supported

Housing

12

3. Residents Without a Qualifying Mental Health Diagnosis Are Not Eligible

for Supported Housing

14

POINT II

17

THE REMEDIAL ORDER IS OVERBROAD, AND FAILS

TO CONSIDER THE ACTUAL NEEDS OF THE RESIDENTS

A. The District Court's Criteria for Supported Housing Eligibility is Inconsistent

with the ADA, and Subverts the Clinical Judgment of Defendants, and

Defendants' Long Standing Statutory and Historical Role in Assessing and

Determining the Actual Needs of Adult Home Residents with a Mental Health

Diagnosis

17

1

Case: 10-235 Document: 225 Page: 3 07/30/2010 79804 35

1.Adult Homes Include Frail, Elderly Residents with Extensive Personal Care

Needs That Cannot Be Met in a Supported Housing Model of Long Term

Care

19

2. Many Adult Home Residents Require Medication Management and Skilled

Nursing That Cannot be Provided in Supported Housing on a Cost Effective

Basis

21

B. The District Court's Remedial Plan "In-Reach" Protocols are Inconsistent

with the ADA and Olmstead

24

CONCLUSION

26

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TABLE OF AUTHORITIES

Cases
Omstead v. L.C. 527 US, 581 (1999
Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999)
Leocata v. Wilson-Coker, 343 F. Supp.2d 144, 154-56 (D. Conn. 2004)
Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000) Regulations
18 NYCRR § 487.4(k) 18 NYCRR § 487.7(g) & (h) 18 NYCRR 494.4[c][1] 28 C,F.R.. § 35.130(d).

passim)
17 7
24
22 7
12 6

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for

Amicus Curiae Empire State Association of Assisted Living, certifies that:

1. Amicus Curiae is a non-profit association that does not have any

parent corporations and is not owned, in whole or in part, by any publicly held

corporations.

DATED: Albany, New York July 30, 2010

STRAZTB P.C.

By avid T. Luntz, DL3263

Attorneys for Amicus Curiae Empire State Association of Assisted Living, Inc. 121 State Street Albany, NY 12207 Phone: 518-436-0751 Fax: 518-436-4751 dluntz@hinmanstraub.corn

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STATEMENT OF INTEREST
ESAAL is a statewide, not-for-profit trade association that has been dedicated to strengthening New York State's assisted living industry and promoting the best interests of providers and residents for more than 30 years. It is the only association that exclusively represents the assisted living industry statewide, both for-profit and not-for-profit, serving close to 250 Assisted Living Residences, Adult Homes and Enriched Housing Programs throughout New York State. These member residences are home to more than 23,000 people.
ESAAL members provide services to a broad cross-section of the population, including the wealthy and middle income residents ("private pay"), the needy ("SSI recipients"), the frail elderly, and those with disabilities, including residents who receive mental health services. As the largest assisted living trade association in New York, ESAAL has extensive knowledge and experience regarding long term care services for residents with mental illness, and the challenges associated with the care needs of residents with a mental health diagnosis. ESAAL has a history of litigating on behalf of its members, and has participated as amicus curiae in State and Federal Courts.
Within 60 days of the District Court's Memorandum Order of September 8, 2010, ESAAL, along with the New York Coalition for Quality Assisted Living ("NYCQAL") and the United States of America moved to intervene. The District
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Court denied ESAAL and NYCQAL's motions as being untimely, but the District Court granted the United States' motion to intervene. (SPA 205-217).
ESAAL submits this Amicus Curiae Brief in support of DefendantsAppellants' appeal of the District Court's final Order and Judgment.' ESAAL seeks to provide input to the Court regarding the specific needs of the resident populations in the impacted adult homes. ESAAL supports the Defendant's appeal, since the judgment and remedial Order are inconsistent with the Americans with Disabilities Act and the Supreme Court's decision in Olmstead v. L. C., 527, U.S. 581 (1999).
All parties have consented to the filing of this brief.
Pursuant to Local Rule 29.1, no counsel of any party assisted in the preparation of this brief, and no one other than amicus curiae and its members contributed money intended to fund preparing or submitting the brief
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SUMMARY OF ARGUMENT The District Court's Order must be reversed because it is inconsistent with the requirements of the Americans With Disabilities Act ("ADA") and improperly sets forth a judicially created "level of benefits", which has no foundation in the ADA's regulation of governmental services. The District Court's remedial order is also overbroad, and inconsistent with the Supreme Court's holding in Olmstead v. L. C., 527 U.S. 581 (1999). The Order of the District Court ignores Olmstead's holding that a state "may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements for habilitation in a community-based program." Olmstead v. L.C. 527 U.S. 581, 602 (1999). In devising a new and unprecedented eligibility determination for supported housing, the District Court has created a court-defined and court-supervised benefit program, in which supported housing providers unilaterally determine which adult home residents are qualified for the very same housing programs that they themselves provide. The District Court's Order and Judgment also ignores the actual needs of the residents, jettisons the clinical assessment process, and mandates a presumptive qualification for supported housing. The remedial order directs the State Defendants to fund a supported housing apartment, and whatever services are needed, even if the resident has moderate dementia, is eligible for a
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nursing home, and may be a danger to himself or others. The lower court's order has no basis in the ADA, Olmstead, or the evidence in the record before this Court. For these reasons, the Order and Judgment must be vacated, and Plaintiff s Complaint dismissed.
ARGUMENT POINT I
THE STATE DEFENDANTS DID NOT VIOLATE THE ADA, AND THE LOWER COURT'S ORDER MUST BE VACATED A. The District Court's Ruling Represents an Unprecedented Expansion of the ADA Claim Recognized by Olmstead
The District Court improperly relied upon Olmstead v. L.C., 527 U.S. 581 (1999) in ruling that defendants discriminated against plaintiff's constituents living in the 28 impacted adult homes in New York City. In Olmstead, the Supreme Court held that two specific forms of state action may constitute unlawful discrimination under Title II of the ADA: (1) conditioning access to state services on residence in an institution; (2) forcing individuals to remain confined in segregated state institutions when such confinement is not medically warranted. Olmstead, 527 U.S. at 593.
Further, the Supreme Court in Olmstead held that Title II creates only a qualified right on the part of individuals "confine[d]" by the state to community — based treatment if [1] "the State's treatment professionals determine that such
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placement is appropriate," [2] "the affected persons do not oppose such treatment", and [3] "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Olmstead, 527 U.S. at 593, 607. Plaintiff did not establish any of these prerequisites to a Title II discrimination claim.
The District Court's remedial order requires the State to provide supported housing to all of Plaintiff s constituents who desire such housing, regardless of future cost, and without individualized assessments of residents performed by an independent entity. (SPA 237-239). In so ruling, the District Court misappropriated the Olmstead holding to improperly transform the delivery and funding of an important part of New York State's mental health services program.
The District Court's criteria for adult home residents who are qualified for supported housing is also inconsistent with Olmstead, in which the Court held that "states are required to provide community-based treatment for persons with mental disabilities when a state's treatment professionals determine that such placement is appropriate. Olmstead 527 U.S. at 607. The governing regulation establishes that a pubic entity shall administer services, programs and activities in the "most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R.. § 35.130(d). As discussed herein, the remedial order replaces the judgment of the State's treatment professionals, with the unilateral
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decisions of supported housing providers who will financially benefit from placement of adult home residents into their supported housing programs.
B. Adult Home Residents Live In Integrated Settings. In Olmstead, the Supreme Court held that, in limited circumstances, the
ADA requires that qualified individuals with mental illnesses be transferred from institutional facilities to more integrated settings. Olmstead, 527 U.S. at 587, 59192. Neither Olmstead, nor Title II of the ADA, contemplate the applicability of the ADA to privately operated adult home residences. However, even if this Court were to find that the ADA applies to adult homes, nothing in that statute or its governing regulations would require that adult home residents be moved to supported housing, because adult homes are integrated, community based residences.
As defined by the governing regulations, integrated settings are those that permit opportunities for contact with nondisabled persons. 28 C.F.R.. § 35.130(d). Adult homes are private residences, not state institutions. They are not mental health facilities, which are separately licensed by the New York State Office of Mental Health.
The evidence before the District Court established extensive, meaningful opportunities to have contact with nondisabled persons. Virtually all of the impacted adult homes are located close to stores, restaurants, parks, religious
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institutions, beaches and/or other recreational opportunities. CIA i76-78:526-533; SLX 387-88; SLX 482-483). The adult homes are also located near public transportation. With few exceptions, adult home residents who are plaintiff's constituents have the freedom to come and go as they please.
Adult home staff, mental health providers, and other community resources arrange for and facilitate additional interaction with nondisabled persons. New York State Department of Health Regulations require adult homes to provide and encourage participation in community-based activities and to assist residents to maintain family and community ties. 18 NYCRR § 487.7(g) & (h). In furtherance of these regulations, adult homes organize outings to various community and recreational activities, provide opportunities for residents to attend religious services, and encourage residents to maintain contact with family members and friends. In short, adult home residents have access to an active, community-based social life.
The District Court, in finding an ADA violation by the state defendants, assumed that supported housing is more integrated than adult homes. While plaintiff, and the District Court, may believe that supported housing is preferable as a matter of public policy, this does not establish Title II discrimination by defendants. Leocata v. Wilson - Coker, 343 F. Supp.2d 144, 154-56 (D. Conn. 2004). For many residents who rely on SSI income, a private adult home provides
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affordable housing with need services. Indeed, living alone in a supported housing apartment may result in more isolation, with residents having little contact with nondisabled persons, and resultant loneliness and depression. Residency in an adult home provides a social model of congregate housing, with frequent opportunities for interaction with other residents, (including nondisabled residents), family and the community at large. The District Court's ruling improperly injects ADA discrimination and Olmstead's integration mandate to the adult home model of long term care.
C. Adult Home Residents Include a Diverse Population Who Are Not Eligible for Supported Housing Under Olmstead.
The record evidence established that adult home residents in the 28 "impacted facilities" are a diverse group of individuals. The current resident profile varies by: (1) income level - the wealthy and middle income (private pay), and.the financially needy (SSI recipients), (2) age — the elderly and younger residents; (3) personal care needs — those with limited personal care needs and those who require extensive assistance with most personal care tasks; (4) mental health status those residents with a mental diagnosis and those without such a diagnosis; and (5) health care status — those with chronic medical conditions
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and those who require minimal medical attention .. In many cases, there is more than one reason why a resident resides in an adult home. Adult homes reflect the diversity of their residents, and are not monolithic in their operational practices or resident profiles.
The District Court identified twenty-eight (28) "impacted" adult homes in the five boroughs of New York City (SPA 85-86) that will be subject to the Court's remedial plan. Eight of the twenty-eight impacted adult homes identified by the Court are ESAAL members. 2 Approximately 20% of the 4300 impacted adult home residents (the plaintiffs "constituents") with a mental health diagnosis live in ESAAL member facilities. As discussed herein, the empirical reality is that a large percentage of the mental health residents in these impacted adult homes are not eligible for supported housing, and they have ongoing personal care, health care and supervision needs that make a clinical assessment to evaluate their readiness for supported housing completely unwarranted. 3
Significantly, none of the plaintiff's constituents applied for or otherwise sought supported housing alternatives to residence in an adult home. Nevertheless,
2 The eight adult homes are: Long Island Living Center (Queens County), Elm-York (Queens County), New Central/Central Assisted Living (Queens County), Castle Senior Living at Forest Hills (Queens County), Scharome Manor (Kings County), Anna Erika Adult Home (Richmond County), New Broadview Manor (Richmond County), and Bronxwood Home for Adults (Bronx County). 3 Eligibility, in this context, relates solely to whether the residents were the subject of the Defendants' alleged discrimination, not whether the residents might otherwise be entitled to supported housing services.
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the District Court has ruled that the ADA was violated by defendants because the State failed to ensure that no individual with a mental health diagnosis resides in an impacted private adult home.
1. Private Pay Residents Are Presumed to Have Made an Informed, Conscious Choice to live in an Adult Home, and as such, are Not Eligible for Supported Housing, and Should Not be Subject to the Remedial Order. The ADA does not force accommodations on individuals who do not desire
an accommodation. Olmstead v. L. C., 527 U.S. 581, 587, 602 (1999). This is premised on the notion that an individual who exercises free choice cannot be the victim of discrimination relating to that choice. Olmstead, supra at 602 (stating the federal requirement does not require "that community-based treatment be imposed on patients who do not desire it.")
With respect to Plaintiffs discrimination claims in this litigation, each of the eight impacted ESAAL members have residents who pay for their housing with private funds. In some of the impacted adult homes, the majority of the residents, including residents with a mental health diagnosis, are private pay residents who have chosen to live in that adult home. (PX-774). By way of example, the 2008 NY DOH Census Report established that 107 of the 111 residents of Scharome Manor (Kings County) were private pay. (PX-774, p. 11). These residents received no SSI benefits or other public funds to subsidize their residency. Similarly, the majority of residents (including residents with a mental health
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diagnosis) at Castle Senior Living at Forest Hills (Queens County) are private pay, do not receive any OMH funds or other state funds, and have made a conscious decision to live in that facility rather than a myriad of other adult home and other housing options such as senior housing. (PX-774, p. 21). 4 The District's court's remedial order ignores this distinction, and subjects these private pay residents to a persistent "in reach" protocol which they neither want nor need. (SPA 236-238).
The District Court justified the unprecedented mandate contained in the remedial order by stating that defendants' obligations only relate to adult home residents "who desire placement in supported housing" if qualified (SPA 234-235). However, the "in-reach" protocol set forth in Paragraph "6" of the remedial order permits the supported housing providers themselves to continually review and assess adult home resident's preferences, and "explore and address the concerns" of residents who decline supported housing. (SPA 237). The persistent "in-reach" contemplated by the Court, calls into question whether an objective choice can be made. This is particularly true for mental ill residents, many of whom are elderly residents with dementia or other conditions which affect their judgment. Notably, the remedial order makes no reference to the participation of a resident's immediate family in the decision making process.
The 2008 DOH Census Report was discussed during the trial, but not produced until after the trial. The District Court subsequently admitted the 2008 Census Report as evidence (See Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 195 (SPA 85 - 86).
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By definition, private pay residents do not desire a supported housing model, or any other alternate accommodations, since they have made an informed, personal choice to expend their own funds to live in the particular adult home. Private pay residents with a mental health diagnosis have the financial ability to move to another residence if their current residence is too restrictive or otherwise not to their liking. Accordingly, private pay residents with a mental health diagnosis should not be considered eligible for supported housing. They do not receive any State funding for services provided by OMH, and were improperly included as a focus of the District Court's remedial order.
2. Residents in an Assisted Living Program Are Not Eligible For Supported Housing. Residents of the Assisted Living Programs in the impacted adult homes were
improperly considered eligible for supported housing. The Assisted Living Program ("ALP") is the only "assisted living" environment that is reimbursed by Medicaid in New York, and by definition serves individuals who are "medically eligible for, and would otherwise require placement in, a nursing home..." (18 NYCRR 494.4[c][1]).
The ADA only requires a state to provides services in an alternative community-based program if an individual "meets the essential eligibility requirements" for habilitation in a community-based program. Olmstead, 527 U.S. at 602. The Supreme Court in Olmstead specifically observed that "absence such
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qualification, it would be inappropriate to remove a patient from the more restrictive setting." Olmstead at 602. Further, the State "generally may rely on the reasonable assessments of its own professionals". Id.
ALP placement occurs following clinical assessment by an independent Certified Home Health Agency ("CHHA") which is reviewed and approved by County Officials, as well as an evaluation by their primary physician. The ALP program is unique in that it allows Medicaid-funded nursing and home care services to be delivered in adult care facilities. These residents have substantially greater health care and personal care needs and require more assistance than is provided in adult homes. This assistance includes help with both scheduled and unscheduled needs.
Overwhelmingly, residents in the ALP are elderly and require hands-on assistance from staff various times during the day and night with the activities of daily living, including assistance with dressing, bathing, and maintaining continence either by being escorted to the restroom on a regular schedule or assisted with changing their incontinence undergarments. ALP residents need more intensive assistance from staff, along with skilled nursing and medical assistance to carry out the activities of daily living such as walking from one room to the other, dressing, and using the bathroom. Many are fall risks who need ongoing monitoring assistance with a multitude of tasks, including transferring
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from their beds to chairs, feeding and nutrition, and assistance with toileting, bathing and grooming. Many need regular assistance to manage their incontinence. Of the 864 residents with a mental health diagnosis in the eight ESAAL member impacted facilities, 325 are ALP residents who, but for the ALP program, would require services in a nursing home. (See, DOH 2008 Census Report, PX-774). (SPA-85-86).
These ALP residents are presumptively not eligible for independent living, since they are incapable of performing activities of daily living without regular assistance, both scheduled and unscheduled, and may have also have ongoing skilled nursing needs, such as insulin injections once or twice per day. Safe and effective supported housing services for these ALP residents would require a live in caregiver, as well as daily visits by skilled'nursing staff The District Court remedial order ignores this reality, by using a "one size fits all" approach to characterizing the needs of adult home residents. 5
3. Residents Without a Qualifying Mental Health Diagnosis Are Not Eligible for Supported Housing. The regulations governing the operation of adult homes require each
operator to submit a statistical report. This report is the primary source of data regarding occupancy and resident characteristics. In the remedial order, the lower
5 As an example, at the Long Island Hebrew Living Center, nearly two-thirds of the residents with a mental health diagnosis are part of the ALP program. (PX-774 p. 22). All of these residents are over sixty-five years old.
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court disregarded the conflict between various definitions of "mental health" in the complex regulatory structure governing adult homes. The Office of Mental Health ("OMB") and the Commission on Quality of Care and Advocacy for Disabled Persons ("CQC"), define an "impacted" facility as one in which:
At least twenty-five percent or twenty-five residents, which ever is less, have at any time received or are receiving services from a mental hygiene provider which is licensed, operated or funded by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities. (Mental Health Law §45.09{a]; §45.10[a]). However, the Department of Health ("DOH") definition of "mental health",
for purposes of reporting data for the annual adult home census (which was used by the lower court to identify the adult homes affected by the court decision), requires adult home operators to count a considerably broader segment of the resident population. Specifically, operators are instructed to include every
resident: Who has a history of mental illness as manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that the person has received or is receiving mental health services. That service must be licensed or funded by the Office of Mental Health or be provided by a private practitioner specializing in mental health. (Emphasis supplied).
(Docket No. 361, Attachment 1, p. 16-19) (JA 37).
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Adult home operators have been advised by DOH to report all residents who have ever received "mental health" services. This would include any treatment for depression, a condition which is common among the frail elderly population many adult homes tend to serve who may have suffered depression due to a loss of a spouse or loved one, a loss of independence or other situations associated with the aging process. Indeed, some estimates are as high as 50-75% of the number of elderly that develop depression associated with the aging process and/or dual diagnoses such as Alzheimer's/dementia, many of whom have never exhibited any chronic or serious persistent mental illness in their lifetime. Because of the statistical reporting guidance, residents with depression were counted simply if they were on a common antidepressant, prescribed by their primary physician, without any services from a psychiatrist or other mental health professional whatsoever. (Docket No.36, Attachment 1, p. 16-19) (JA 37). As a result, the twenty-five percent or twenty-five residents' threshold is reached much more quickly than the statutory definition contained in the Mental Health law.
The confusion regarding reporting of a mental health diagnosis further demonstrates that the remedial order captures residents that should not have been the subject of the Plaintiff's ADA claim. According to 2008 DOH census data, upon which plaintiff relied, and which is included in the Record and Factual • Findings of the District Court, thirty-six percent of adult homes in the State are
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currently classified as "impacted." (PX-774). It is unclear how many of these homes have received this categorization due to over-classification of mental health diagnosis, rather than because a significant portion of the resident population is living with a mental disability contemplated by the Office of Mental Health definition used by the District Court. The District Court ignored these statistical realities when defining the number of mental health residents subject to the court's remedial order and judgment.
POINT III THE REMEDIAL ORDER IS OVERBROAD, AND FAILS TO CONSIDER THE ACTUAL NEEDS OF THE RESIDENTS A. The District Court's Criteria for Supported Housing Eligibility is Inconsistent with the ADA, and Subverts the Clinical Judgment of Defendants, and Defendants' Long Standing Statutory and Historical Role in Assessing and Determining the Actual Needs of Adult Home Residents with a Mental Health Diagnosis.
In Olmstead, the Court held that the State has an obligation to provide services and programs in community-based settings only if the individual with disabilities "meets the essential eligibility requirements for habilitation in a community-based program." Olmstead, 527 U.S. at 602 (199) (citing 28 C.F.R. 35.130(d)).
The lower court's ruling that "virtually all" residents with a mental health diagnosis are eligible for supported housing violates the Supreme Court's holding
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in Olmstead, that the determination for supported housing is made by the State's treatment professionals through the clinical assessment process, to determine if any individual is qualified. Olmstead v. L.C, supra, at 607. See also Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999).
The remedial order's sweeping mandate is based on the unsupported premise that "virtually all" adult home residents with a mental health diagnosis are qualified to live in supported housing. (SPA 238-239). This, despite the lack of evidence of the nature and extent of the support services that will need to be provided to any of the plaintiff's individual constituents. In this sense, the District Court's remedial order has no foundational basis, and is based on the circular assumption that virtually all adult home residents are qualified to live in supported housing, without any professional assessment or empirical data to identify which support services must be provided, and which constituents require them.
The District Court's remedial order requires that residents be treated as presumptively qualified for supported housing unless they have one of three disqualifying factors: (1) have severe dementia, (2) have a high level of skilled nursing needs that cannot be met in supported housing with services provided by Medicaid, home care or waiver services, or (3) are likely to cause imminent danger to self or others (SPA 238-239), The District Court's standard for eligibility has no basis in any professional or governmental definition of mental illness. ESAAL
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believes the remedial order uses an improper and potentially dangerous criteria, since all categories of dementia, not only severe dementia, are specifically excluded from the qualifying mental health diagnosis set forth in the OMH definition relied on by the Court.
1. Adult Homes Include Frail, Elderly Residents with Extensive Personal Care Needs That Cannot Be Met in a Supported Housing Model of Long Term Care. The lower court's remedial order makes no reference to the demonstrated
fact that the majority of adult homes at issue in this litigation serve an aging population, whose needs include assistance with activities of daily living ("ADLs") such as ambulation, dressing, bathing, and continence management. While these are not "skilled nursing needs", they are ongoing and provided on both a scheduled and unscheduled basis. Because of the age and frailty of many of ESAAL members' residents, they need staff present and available to them on a 7 days per week/24-hour basis. 6
6 If individuals with these kinds of frequent, but unscheduled, personal care needs were living in single site settings, such as supported housing apartments scattered throughout New York City, the costs associated with providing home care aides to them would be astronomical. As noted above, many of these adult home residents with a mental health diagnosis require personal care, monitoring and supervision at all hours of the day and night. As of 2007, SSI recipients with persistent medical illness and residing in adult homes in New York City received funding at an annual rate of $16,416.00 per year. (JA 918-919). These funds are used by residents to pay for room, board, three meals a day, housekeeping, personal care, laundry services, and 24-hour supervision. The District Court's conclusion that supported housing services for these high need mental health residents will cost less than this amount, flies in the face of this economic reality.
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Seven of the eight ESAAL member homes report that more than two-thirds of their mental health population is over the age of 65. The 2008 Department of Health census figures show that, of the mental health residents reported therein, seventy-five percent or more were over the age of 65 in six of the eight ESAAL member homes. (PX 774). In two homes, more than 97% of residents are over the age of 65. More than two-thirds of the residents in these homes, including residents with a "mental health diagnosis", are over the age of 80; any proposal to transfer this population to supportive housing fails to consider these persons' individual needs, (See DOH Census Reports, PX-283, PX-774). These residents' needs are not considered in the District Court's over-generalized and undifferentiated supported housing qualification criteria.
Importantly, two of the eight ESAAL members identified as impacted facilities in the Court's trial decision (SPA 86), were not named in the plaintiffs complaint, and no evidence was submitted regarding these facilities during the trial of this matter in May and June of 2009. Scharome Manor, a Kings County adult home, which was added to the District Court's list of impacted facilities after the trial was concluded, had a 2008 census of 111 residents. Thirty of these residents were identified on the census report as having a mental health diagnosis. However, all of the residents with a mental health diagnosis are over sixty-five years old, with more than ninety percent of these thirty mental health residents being over
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eighty years old. (PX-774, p. 11) (SPA 85-86). In this context, the District Court failed to recognize that the need for mental health services, or a previous mental health diagnosis, is often ancillary to the primary reason for residence at Scharome Manor. Moreover, the "mental health" services that many of them require are associated with depression due to aging and not any kind of chronic mental health condition.
Similarly, the census report for Castle Senior Living at Forest Hills, in Queens County, indicates that all of the residents with a mental health diagnosis are over sixty-five years old. More than two-thirds of the mental health residents are over seventy-five years old. (PX-774, p. 11) These impacted facilities were not considered by the District Court during the trial of this matter, or in the order and judgment Defendants appeal from.
2. Many Adult Home Residents Require Medication Management and Skilled Nursing That Cannot be Provided in Supported Housing on a Cost Effective Basis. The District Court's remedial order also fails to consider resident needs for
medication management and medication assistance. In virtually all of the ESAAL member facilities, the majority of residents with a mental health diagnosis take four or more medications on a daily basis, By way of example, in Scharome Manor, all of the residents take four or more medications on a daily basis, and sixty-five percent of the residents take ten or more medications on a daily basis.
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(Docket No. 361, Attachment No. 1, JA 37). Significantly, fully ninety-five percent of the residents at Scharome Manor with a mental health diagnosis are eighty-five years old or older. (PX-774, p. 11). At the New Central Adult Home in Queens County, ninety percent of the mental health residents take seven or more medications on a daily basis. (Docket No. 361, Attachment No. 1, JA 37). Clearly, the reality of the residents' needs for medication management and assistance is critical to a meaningful assessment criterion for supported housing eligibility and readiness.
The care of every adult home resident is directed by their own personal physician, who completes a medical evaluation form at least annually, and more often if there is a change in the resident's condition. 18 NYCRR § 487.4(k). This medical evaluation contains a physician certification as to whether the resident's needs can be met in an adult home. (See DOH Form 3122). Residents and their families have the opportunities to regularly reassess the residents' needs. It is beyond dispute that "[t]he opinion of the responsible treating physician...ought to be given the greatest of deference. It is a common phenomenon that a patient functions well with medication, yet, because of the mental illness itself, lacks the discipline or capacity to follow the regime the medication requires. This is illustrative of the factors a responsible physician will consider in recommending an
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appropriate setting or facility for treatment." Olmstead v. L. C., 527 U.S. 581, 610 (1999) (Kennedy, J., concurring).
The District Court's ruling presumed that virtually all residents are eligible for supported housing, based largely on the testimony of one witness, who never clinically assessed (or even met) any of the 4,300 Adult Home residents who are now subject to the District Court's Order. (SPA 117-149). Under the remedial order, any assessment of mental health residents will be done by supported housing providers, not treatment professionals.
The District Court's presumption ignores the depth of the assessment required to identify residents' needs. The failure to carefully examine all of an individual's personal care, functional, medical and mental needs will likely result in those needs being unmet. ESAAL submits that a comprehensive, individualized clinical assessment is essential to accurately identify a person's needs through the use of independent clinicians to ensure that the individual receives the appropriate services. For this reason, the District Court's remedial order is dangerously overbroad.
This Court should reject the lower court's proposed criteria for assessing residents' suitability for supported housing services .. The remedial order and judgment is untethered from the requirements of the ADA, and creates an entitlement to supported housing, as well as unlimited support services, needed to
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maintain an otherwise unqualified resident in an apartment. This entitlement does not exist, and Olmstead does not mandate the creation of this entitlement.
Adult Home Residents, including residents with a mental health diagnosis, reside in an adult home as a matter of choice. To be sure, for some residents, their ability to freely choose a home is tempered by their individual needs, financial situation, family circumstances, and other factors which limit all people who choose a place to live. However, the District Court's ruling that Defendants discriminated against Plaintiffs constituents, by confining them to an "institution", has no basis in law or fact. Further, this Court has held that the ADA requires nondiscriminatory access to existing services and benefits for the disabled, but does not mandate "additional" or "different services" or benefits for the disabled, "no matter how great their need for the services" may be. Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000).
B. The District Court's Remedial Plan "In-Reach" Protocols are Inconsistent with the ADA and Olmstead. As part of the sweeping remedial plan, the lower court created an
unprecedented "in-reach" protocol for supported housing providers to enter adult homes, and "inform" residents about the "benefits" of supported housing (SPA 3738). The lower court mandated that this in-reach protocol should be continued even for residents who decline or "are ambivalent" about moving to supported housing. SPA 37-38. The remedial plan does not include any corresponding
24

Case: 10-235 Document: 225 Page: 30 07/30/2010 79804 35
information about the services offered and features of adult home residency. This "in-reach" opportunity directed by the lower court not only applies to current adult home residents, but also applies to the guaranteed supported housing for future adult home residents who have not been subjected to any discrimination or other cognizable injury under Title II. The remedial order thus calls into question whether informed, voluntary choice is possible, and this provides another basis for vacating the remedial order and judgment of the court below. The issue of coercive in-reach is highlighted by the fact that as noted herein, a substantial percentage of the adult home residents with a mental health diagnosis constitute a frail elderly population, including many residents with dementia and other mental health conditions affecting their ability to make an independent, voluntary choice. (PX-774). The in-reach protocols are inconsistent with Olmstead, and provide a separate and independent basis to vacate the District Court's Order.
25

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CONCLUSION

For the foregoing reasons, the Order and Judgment of the District Court

should be vacated, with the action remanded to the District Court with direction to

enter judgment for Defendants.

Dated:

Albany, New York July 30, 2010

HINMAN RAU13 P.C.

By David T. Luntz, DL3263 Attorneys for Amicus Curiae
Empire State Association of Assisted Living 121 State Street Albany, New York 12207 (518) 436-0751

26

Case: 10-235 Document: 225 Page: 32 07/30/2010 79804 35

CERTIFICATE OF COMPLIANCE

This Brief complies with the type-volume limitation of Rule 32(a)(7)(b) of

the Federal Rules of Appellate Procedure because it contains 6,027 words,

excluding the parts of the Brief exempted by Rule 32(a)(7)(B)(iii).

This Brief complies with the type base requirements of Rule 32(a)(5) and the

typestyle requirements of Rule 32(a)(6) because it has been prepared using 14

Times New Roman in Microsoft Word.

Dated:

July 30, 2010

David T. Luntz

27

Case: 10-235 Document: 225 Page: 33 07/30/2010 79804 35

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________________________________________

DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA,
Plaintiffs-Appellees, v.

NEW YORK COALITION FOR QUALITY ASSISTED LIVING, EMPIRE STATE ASSOCIATION OF ASSISTED LIVING,

CERTIFICATE OF SERVICE

Movants-Appellants,

10-235-cv(L)

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, NEW YORK STATE OFFICE OF MENTAL HEALTH,

10-251 (CON), 10767cv(CON), 101190cv(CON)

Defendants-Appellants _______________________________________________

I hereby certify that on July 30, 2010, the Amicus Curiae Brief Of Empire State Association Of Assisted Living In Support Of Defendants-Appellants Appeal was filed with the Clerk of the Court via ECF and Federal Express and served in accordance with the Federal Rules of Appellate Procedure, and/or the Second Circuit Court of Appeals Local Rules, and/or the Second Circuit Court of Appeals Rules on Electronic Service upon the following parties and participants:

• Roger A. Bearden rbearden@nylpi.org
• Jonathan R. Bolton jbolton@paulweiss.com,jonbolton@yahoo.com
• Charlyne M. Brumskine Peay cpeay@urbanjustice.org
• Ira Abraham Burnim irab@bazelon.org
• Timothy A. Clune tac@disabilityadvocates.info,tclune@taconic.net
• Kevin M Cremin kcremin@mfy.org,kevin_cremin@hotmail.com
• Gayle Sharon Gerson ggerson@paulweiss.com
• Michael J. Goldberger Michael.Goldberger@usdoj.gov

Case: 10-235 Document: 225 Page: 34 07/30/2010 79804 35
• Andrew Garry Gordon agordon@paulweiss.com
• John A. Gresham jgresham@nylpi.org
• Barbara K. Hathaway barbara.hathaway@oag.state.ny.us,Stephanie.Rosenberg@oag.state.ny.us
• Amy Marie Held amy.held@oag.state.ny.us
• Liad Levinson llevinson@paulweiss.com,liad.levinson@gmail.com
• Amanda Maisels amanda.maisels@usdoj.gov
• Jennifer Ellen Mathis jenniferm@bazelon.org
• Roberta L. Mueller rmueller@nylpi.org
• Francine Nicole Murray fmurray@paulweiss.com
• Anne Skeels Raish araish@paulweiss.com
• Sandra Lynn Sheldon ssheldon@paulweiss.com
• Jeffrey J. Sherrin jsherrin@oalaw.com
• Matthew Silverman matthew.silverman@oag.state.ny.us,Stephanie.Rosenberg@oag.state.ny.us,mattsilverm an1@yahoo.com
• Scott J. Spiegelman cowless@gmail.com,Stephanie.Rosenberg@oag.state.ny.us,scott.spiegelman@oag.state .ny.us
• United States Of America michael.goldberger@usdoj.gov
• Jeanette M. Zelhof jzelhof@mfy.org
• Cliff Zucker cz@disabilityadvocates.info
• Chen chen Cecila Celia.chang@ag.ny.gov
• Teresa Kwong Teresa.kwong@usdoj.gov.
• Nancy B. Ludmerer Mancy.ludmerer@davispolk.com
• Patricia Ann Millett pmillett@akingpump.com; abowen@akingump.com; rpees@akingump.com; bellj@akingump.com; jchou@akingump.com
• Jessica Dunsay Silver Jessica.d.silver@usdoj.gov
2

Case: 10-235 Document: 225 Page: 35 07/30/2010 79804 35

• Julie Fink jfink@paulweiss.com
Originals mailed via Federal Express to Clerk, United States Court of Appeals, 2nd Circuit, 40 Foley Square, New York, New York 10007.

Dated: July 30, 2010

s/David T. Luntz ___________________________ David T. Luntz, DL3263 Hinman Straub P.C. Attorneys for Amicus Curiae Empire State Association of Assisted Living, Inc. 121 State Street Albany, NY 12207 Phone: 518-436-0751 Fax: 518-436-4751 dluntz@hinmanstraub.com

DOCS-#299852-v1-ESAAL-DA-CertService_Ct__of_Appeals.DOC 3

 Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 1 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DISABILITY ADVOCATES, INC.,
Plaintiff,
v.
ELIOT SPITZER, in his official capacity as Governor ofthe State ofNew York, RICHARD F. DAINES, in his capacity as Commissioner ofthe New York State Department ofHealth, MICHAEL F. HOGAN, in his capacity as Commissioner of the New York State Office ofMental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.

03 Civ. 3209 (NGG) (MDG)

MEMORANDUM OF LAW IN SUPPORT OF DISABILITY ADVOCATES, INC.'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
August 10, 2007
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue ofthe Americas New York, New York 10019-6064 (212) 373-3000
and
DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd Floor Albany, New York 12207 (518) 432-7861

Pursuant to the Court's Aug. 2,2007 Order, exhibits will be filed in hard copy no later than Aug. 31, 2007

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 2 of 45
BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
NEW YORK LAWYERS FOR THE PUBLIC INTEREST 151 West 30th Street, 11th Floor New York, New York 10001-4007 (212) 244-4664
MFY LEGAL SERVICES, INC. 299 Broadway, 4th Floor New York, New York 10007 (212) 417-3700
URBAN JUSTICE CENTER 123 William Street, 16th Floor New York, New York 10038 (646) 602-5667
Attorneys for PlaintiffDisability Advocates, Inc.

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 3 of 45

TABLE OF CONTENTS

Table of Authorities ............................................................................................................ ii

Preliminary Statement ......................................................................................................... l

Statement of Facts................................................................................................................4

A.

Background .................................................................................................. 5

B.

The Undisputed Facts Establish That There is No Olmstead Plan for

People with Mental Illness Living In Adult Homes .................................. 12

Argument ...........................................................................................................................20

I. AN OLMSTEAD PLAN IS A NECESSARY COMPONENT OF A FUNDAMENTAL ALTERATION DEFENSE ..........................................................22

A.

Olmstead Requires States to Serve Individuals with Disabilities in the

Most Integrated Setting Appropriate to their Needs Unless Doing so

Would be a Fundamental Alteration of Their Services, Programs and

Activities ....................................................................................................23

B.

A State May Not Avail Itself of the Fundamental Alteration Defense

Unless it has an Olmstead Plan..................................................................25

II. NEW YORK STATE HAS NO OLMSTEAD PLAN FOR PEOPLE WITH MENTAL ILLNESS WHO RESIDE IN ADULT HOMES .....................................27

A.

The State Has No Olmstead Plan for Adult Home Residents ...................27

B.

The "Plan" Offered by Defendants is Insufficient As a Matter of Law .... 28

III. BECAUSE THE STATE HAS NO OLMSTEAD PLAN, ITS AFFIRMATIVE FUNDAMENTAL ALTERATION DEFENSE MUST BE STRICKEN ................... 38

Conclusion .........................................................................................................................39

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 4 of 45
TABLE OF AUTHORITIES
CASES Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................. 20 Frederick L. v. Dep't ofPub. Welfare, 2004 WL 1945565
(E.D. Pa. Sept. 1, 2004) ................................................................................... 36, 37 Frederick L. v. Dep't ofPub. Welfare ofPa., 364 F.3d 487
(3d Cir. 2004)............................................................................................. 26, 29, 36 Frederick L. v. Dep't ofPub. Welfare ofPa.,
422 F.3d 151 (3d Cir. 2005) ...................................................... .....................passim Henrietta D., et al. v. Bloomberg, et al., 331 F.3d 261 (2d Cir. 2003) ............................. 21 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ........................ 20 Northwestern Mut. Life. Ins. Co. v. Fogel, 78 F. Supp. 2d 70 (E.D.N.Y. 1999) ............... 20 Ocean Walk, Ltd., et. al. v. Those Certain Underwriters at Lloyd's ofLondon,
2006 U.S. Dist. LEXIS 66939 (E.D.N.Y. Sept. 19, 2006) .................................... 20 Olmstead, et al. v. L.C, et al., 527 U.S. 581 (1999) ..................................................passim Pa. Protection & Advocacy, Inc. v. Pa. Dep't ofPub. Welfare,
402 F.3d 374 (3d Cir. 2005) ...................................................... .....................passim
STATUTES 42 U.S.C. § 1983 ................................................................................................................ 23 28 C.F.R. § 35.130 ....................................................................................................... 21,24 28 C.F.R. § 35.130 App. A ................................................................................................. 1 Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, 12132 ......................... 20 Fed. R. Civ. P. 25(d)(I) ....................................................................................................... 5 Fed. R. Civ. P. 30(b)(6) ...................................................... ........................................passim Fed. R. Civ. P. 56(c) .......................................................................................................... 20
11

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 5 of 45 Protection and Advocacy for Individuals with Mental Illness Act ("PAIMI"),
42 U.S.C. § 10801 .................................................................................................... 5 Rehabilitation Act ("RA"), 29 U.S.C. § 794 ..................................................................... 20 N.Y. Mental Hyg. Law § 7.01 .............................................................................................. 7 N.Y. Mental Hyg. Law § 7.07 ............................................................................................. 7
1ll

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 6 of 45
Plaintiff Disability Advocates, Inc. ("DAr') respectfully submits this memorandum of law in support of its motion for partial summary judgment striking the defendants' affirmative defense of "fundamental alteration."
Preliminary Statement This case arises out of years of unlawful segregation and isolation of individuals with mental illness in large institutions in New York State, commonly referred to as adult homes. In the landmark decision Olmstead v. L.e., 527 U.S. 581 (1999), the Supreme Court held that the unnecessary institutionalization of people with mental illness violates Title II of the Americans with Disabilities Act (the "ADA"). The Court declared that "unjustified isolation [of people with mental illness] . . . is properly regarded as discrimination based on disability" under the ADA. Id. at 597. Accordingly, Olmstead requires states to provide services to people with mental disabilities in the most integrated setting appropriate to their needs unless the individuals are opposed to such placement. Id. at 607. The "most integrated" setting is "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. § 35.130(d) App. A (1998). Olmstead's integration requirement may be excused only where a state demonstrates that it would result in a "fundamental alteration" of the state's services and programs. Id. at 603. This affirmative defense, commonly referred to as the "fundamental alteration defense," is not available, however, to states that have not even bothered to develop a plan to comply with the Olmstead mandate. Frederick L. v. Dep't of Pub. Welfare of Pa., 422 F.3d 151, 158-59 (3d Cir. 2005). The Supreme Court in Olmstead described such a plan as a "comprehensive, effectively working plan for

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 7 of 45
placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that movers] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." 527 U.S. at 605-06.
For decades, New York State's mental health programs, servIces and activities have run afoul of the anti-discrimination mandates of the ADA and the Rehabilitation Act (the "RA") by segregating people with mental illness in large, institutional, group-living facilities, populated almost entirely by people with mental illness. These custodial institutions foster dependence and isolation, and provide little or no opportunity for rehabilitation and community integration. Residents are forced to relinquish their privacy, autonomy and connection to the community, and to abide by regimented schedules for eating, taking medication, receiving public benefits, having visitors and other aspects of their daily lives.
The failings of the adult home system have been repeatedly acknowledged by the State. As recently as May of 2007, New York's Office of Mental Health acknowledged that people with mental illness languish in adult homes that are ill-suited to their needs, stating:
As a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with a mental illness are poorly housed or institutionalized. Thus, many people with a mental illness are 'stuck' in: homelessness and the shelter system; institutional settings (nursing homes, adult homes, state psychiatric centers) ... (Declaration of Anne S. Raish ("Raish Decl.") Ex. 33 (emphasis added).) Notwithstanding the existence of other mental health housing and support programs in New York's system that are integrated in the community, people with mental
2

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 8 of 45
illness who reside in adult homes are not afforded any meaningful access to those programs. The State lacks any plan under Olmstead to ensure that people with mental illness who reside in adult homes are afforded the opportunity to move to those integrated settings.
In fact, the State has taken the position in this case that it does not need to have a plan to move adult homes residents to more integrated settings, as required by Olmstead, because it believes that adult homes are already fully integrated in the community. The State's position has no merit and is contrary to the documents and testimony produced thus far in this case, all of which establish that people with mental illness in adult homes are segregated from the community. DAI is, however, cognizant that this issue is one of fact on which a trial is needed. Thus, DAI is not, by this motion, seeking summary judgment on its claims.
DAI has no doubt that it will ultimately prevail on this issue at trial. The evidence that has been uncovered to date and the evidence that will be presented at trial will show that, far from being integrated, adult homes are settings in which people with mental illness are isolated, segregated and subjected to significant barriers to community integration. But there is more.
Discovery in this case has also demonstrated that there are numerous adult home residents with mental illness whose mental health and other needs could be met by supported housing programs funded by the State-programs in which housing is provided to people with severe and persistent mental illness in apartments scattered throughout the community with appropriate case management and other supports. Documents produced by the State confirm that numerous adult home residents are
3

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 9 of 45
appropriate for supported housing and desire to live in supported housing. Indeed, the State's own expert has testified that numerous people with mental illness residing in adult homes are appropriate for the State's supported housing program. Moreover, the State's own estimates are overly conservative. DAI's experts, all of whom have experience running public mental health systems, will demonstrate that virtually all people with mental illness who reside in adult homes can live in supported housing.
Discovery has also established that the State has no Olmstead plan for people with mental illness residing in adult homes. One after the other, defendants' witnesses confirmed this fact during their depositions.
It was not until the State was pressed during discovery to confirm-as its employees and officials had testified-that it has no Olmstead plan for people with mental illness in adult homes, that defendants attempted to cobble together certain disparate state activities to present as a "plan." But the asserted components of their socalled plan are not enough under Olmstead.
The undisputed facts establish that defendants have no Olmstead plan for people with mental illness who live in adult homes. As a result, the State is precluded, under the law, from asserting the affirmative defense of fundamental alteration. DAI is therefore entitled to summary judgment striking defendants' affirmative defense of fundamental alteration.
Statement of Facts In Section A of this Statement of Facts, DAI sets forth the relevant factual background in order to assist the Court. The facts pertinent to this motion are summarized in Section B of this Statement of Facts. They are also set forth in the
4

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 10 of 45
complaint, answer, the accompanying declaration of Anne S. Raish, and the Statement of Undisputed Facts submitted herewith pursuant to Local Rule 56.1.
A. Background 1. Plaintiff DAI is a protection and advocacy organization that is authorized under the
Protection and Advocacy for Individuals with Mental Illness Act ("PAIMI"), 42 U.S.C. § 10801, to bring suit on behalf of individuals with mental illness. DAI's constituents in this case are persons with mental illness who reside in, or are at risk of entry into, impacted adult homes in New York City with more than 120 beds. The defendants define an "impacted" adult home as one in which 25% of the residents have a mental illness. (Raish Decl. Ex. 1 at 71:14-18.) In most impacted homes with more than 120 beds, however, 95% or more of the residents have a mental illness. (Raish Decl. Ex. 31.)
2. Defendantsl Defendant New York State Department of Health ("DOH") is an agency of New York State. (Answer ~ 14.) Defendant Richard F. Daines is the Commissioner of DOH. DOH licenses and monitors adult homes, and enforces the laws and regulations applicable to adult homes. (Raish Decl. Ex. 3 at 11 :9-19; Raish Decl. Ex. 4 at 39: 18-20; Raish Decl. Ex. 5 at 38:5-10.)
Pursuant to Fed. R. Civ. P. 25(d)(1), Eliot Spitzer, Richard F. Daines and Michael F. Hogan have been substituted for former defendants George Pataki, Antonia C. Novella and James Stone, respectively. DAI refers to defendants Eliot Spitzer, Richard F. Daines, Michael F. Hogan, the New York State Department of Health and the New York State Office of Mental Health, collectively, throughout this Memorandum of Law as "defendants" or "the State."
5

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 11 of 45
State regulations provide that DOH and the Commissioner of DOH are responsible for promoting the "development of sufficient and appropriate residential care programs for dependent adults." (Raish Decl. Ex. 34 §§ 485.3(a)(1), 487.1(b).)
Defendant New York State Office of Mental Health ("OMH") is also an agency of New York State. (Answer ~ 16.) Michael F. Hogan is the Commissioner of OMH. OMH funds, oversees, licenses and credentials mental health care providers who provide services in adult homes for people with mental illness. (Raish Decl. Ex. 1 at 18:2-24, 167:8-11; Raish Decl. Ex. 35 at 237:17-242:15.) Jointly with DOH, OMH monitors and inspects impacted adult homes. (Answer ~~ 16, 17; Raish Decl. Ex. 1 at 71 :14-18.)
OMH funds and oversees an array of mental health housing and support programs state-wide, (Answer ~ 40), including supported housing programs which provide people with mental illness with their own apartments in the community, along with support services that the individual resident requires. (Raish Decl. Ex. 4 at 10:2111 :7.)
Defendant Eliot Spitzer, sued in his official capacity, is the Governor of the State of New York. He is ultimately responsible for ensuring that New York operates its service systems III conformity with the Americans with Disabilities Act and the Rehabilitation Act.
New York State's Mental Hygiene Law states: [I]t shall be the policy of the state ... to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill. Such a system ... should assure the adequacy and appropriateness of residential arrangements ... and it should rely upon ... institutional care only when necessary and appropriate ..
6

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 12 of 45
(Raish Decl. Ex. 36 § 7.01.) Section 7.07(b) of the Mental Hygiene Law states that OMH "shall advise
and assist the governor in developing policies designed to meet the needs of the mentally ill and to encourage their full participation in society." (Id. § 7.07(b).) It further states that OMH has "the responsibility for assuring the development of comprehensive plans, programs, and services in the areas of research, prevention, and care, treatment, rehabilitation, education, and training of the mentally ill." (Id. § 7.07(a).)
3. Adult Homes Adult homes were created more than 35 years ago to provide room and board, housekeeping, personal care and supervision to elderly persons. (Raish Decl. Ex. 37 at 10:10-23.) Like many states in the 1960s and 1970s, New York underwent a movement to move persons with mental illness out of state-run psychiatric hospitals. (Id. at 11 :2-10.) During this deinstitutionalization process, the number of people with mental illness residing in adult homes grew significantly as patients from psychiatric hospitals were discharged to adult homes. (Id. at 10: 10-11: 10.) Unfortunately, instead of developing enough appropriate, communitybased housing for persons with mental illness, New York opted to rely heavily on adult homes. As former OMH Commissioner James L. Stone stated: Adult homes developed in response to a need-lack of community based housing resources. For some individuals coming out of State hospitals, adult homes were a housing option. . . . Deinstitutionalization happened and the community resources weren't up to speed with state operated bed reductions. (Raish Decl. Ex. 38 at 1.) Adult homes were never designed or adapted for addressing the needs of persons with disabilities, particularly mental illness. (Raish Dec!. Ex. 37 at 289:4-15.)
7

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 13 of 45
They did not and still do not offer any meaningful or effective rehabilitative treatment, skills training, or discharge planning. (!d. at 10:10-11 :10,289:4-15.)
Each of the adult homes at issue in this case houses more than 120 individuals with disabilities. Many homes, however, are much larger. As of the end of 2006, Queens Adult Care Center, for example, housed 360 people, 97% of whom have a mental illness. (Raish Decl. Ex. 31.)
The daily activities of adult home residents are highly regimented. Most daily activities are provided in one place, in the company of large numbers of other people with mental illness, and subject to restrictive rules and policies. (Raish Dec!. Ex. 39 at 34:2-19; Raish Dec!. Ex. 40.) In most homes, residents have no choice in what they eat, when they eat, or where in the common dining area they may sit. (Raish Dec!. Ex. 4 at 140:5-141:17; Raish Dec!. Ex. 1 at 217:2-219:22; Raish Dec!. Ex. 41 at 26:24-28:13.) Medications are distributed at specific times in the common areas and, in many homes, residents have to line up at a medication window to receive them. (Raish Dec!. Ex. 42 at 202:13-203:7; Raish Dec!. Ex. 39 at 38:4-24; Raish Dec!. Ex. 41 at 28:14-29:14.) In many homes, loudspeakers blare out residents' names for, among other things, medications, meals and phone calls. (Raish Dec!. Exs.42 at 70:12-73:15; Raish Decl. Ex. 41 at 24:9-25:15.)
Residents of adult homes have very little privacy or autonomy. (Raish Dec!. Ex. 44 at 129:8-130:23; Raish Dec!. Ex. 45 at 128:5-129:3, 264:3-265:4; Raish Dec!. Ex. 46 at 152:18-24.) Hundreds of people share access to few common areas, and in some homes, access to those areas is restricted to certain times. (Raish Dec!. Ex. 47 at 57:3-58: 15) In many homes, there are visitor hours as well as restrictions on where
8

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visitors may be received in the homes. (Raish Decl. Ex. 40.) The residents live in bedrooms shared with other people with mental illness. Additionally, adult home staff frequently enter the residents' rooms with little or no advance notice. (Raish Decl. Ex. 45 at 237:16-239:5; Raish Decl. Ex. 46 at 166:9-20.)
In a recent announcement posted on its website, OMH described adult homes as "institutional" and likened them to nursing homes and state hospitals. See Raish Decl. Ex. 33 ("As a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully ... many people with a mental illness are 'stuck' in . . . institutional settings (nursing homes, adult homes, state psychiatric centers).")
Defendants' own expert, Dr. Jeffrey Geller, agrees that adult homes at issue in this case have institutional characteristics; that they foster learned helplessness; and that residents of adult homes are not afforded the opportunity to develop the skills to help them live independently. (Raish Decl. Ex. 48 at 75:3-6, 157:6-166:5.)
4. Supported Housing In stark contrast to adult homes, the New York State Office of Mental Health funds, oversees and operates supported housing programs, which afford people with mental illness the opportunity to live in their own apartments that are integrated in the community and supported with the services that are tailored to the individual's needs. (Raish Decl. Ex. 1 at 216:6-18; Raish Decl. Ex. 4 at 10:21-11:7,230:10-17; Raish Decl. Ex. 49.) The individuals these programs serve have severe and persistent mental illness. (Raish Decl. Ex. 50 at 4.) In New York, supported housing is increasingly viewed as a residential option that "when coupled with non-residential services such as Intensive or
9

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 15 of 45
Supportive Case Management, Assertive Community Treatment, etc., can meet the needs of persons who have high service needs." (Raish Decl. Ex. 51 at 1-2.)
Supported housing programs are run by not-for-profit organizations and are subsidized by the Office of Mental Health. (Raish Decl. Ex. 49 at 10.) Participants in the program typically receive Supplemental Security Income and pay 30% of that income in rent. (!d.; Raish Decl. Ex. 51 at 18.)
Case managers provide support to the residents on an as-needed basis, but residents have access to staff who are on call at all times in order to assist with any issues or emergencies. (Raish Decl. Ex. 1 at 216:6-21; Raish Decl. Ex. 52 at 94:5-96:24.) In general, housing providers visit residents about four times per month, but some providers, such as Pathways to Housing, will visit residents more frequently. (Raish Decl. Ex. 52 at 97:22-98:2; Raish Decl. Ex. 53 at 94:2-13.)
The level of assistance and support provided to residents varies according to their needs, but staff ensure that residents are assimilating to their new surroundings and learning how to live independently; they may assist residents by helping them organize their mail, grocery shop and cook, set up a bank account, budget their income, or learn how to use nearby laundry facilities. (See Raish Decl. Ex. 52 at 96:1-21; Raish Decl. Ex. 54 at 187:2-21, 191:4-20, 192:3-195:19; Raish Decl. Ex. 55 at 288:13-19; Raish Decl. Ex. 53 at 104:7-105:22.)
In some programs, the supported housing provider may become actively involved in assisting residents with the management of their finances, for instance by allowing residents to deposit their money with the organization; writing checks, as directed by the residents, in order to pay their bills; and providing small portions of
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spending money. (Raish Decl. Ex. 54 at 190:4-193:2; Raish Decl. Ex. 53 at 98:5-99:16.) If needed, supported housing providers also assist residents with medication management and the utilization of community mental health services. (Raish Decl. Ex. 55 at 289: 19290:6); Raish Decl. Ex. 53 at 170:16-172:25.) Providers also offer vocational assistance so that residents can acquire work in the community and generate additional income. (Raish Decl. Ex. 53 at 52:7-53:25; Raish Decl. Ex. 55 at 326:3-327:16.)
Defendants' own expert testified that residents of adult homes could reside in apartments with varying degrees of support. (Raish Decl. Ex. 48 at 79: 16-22.)
5. Adult Care Facilities Work Group In 2002, after articles were published in The New York Times about shocking neglect and abuse in adult homes, Governor Pataki and the Commissioners of Health and Mental Health began an initiative to review the Adult Care Facilities' policies and programs by appointing the Adult Care Facilities Workgroup (the "Workgroup"). (Raish Decl. Ex. 57 at ii.) Members of the Workgroup estimated that thousands of people with mental illness living in adult homes could benefit from smaller, more private supported housing and other community-based housing programs with appropriate supports. (Raish Decl. Ex. 37 at 114:7-117:15.) The Workgroup issued a report In the fall of 2002 in which it recommended, among other things, that the State conduct assessments of adult home residents and develop housing for people who are able and interested in living elsewhere. (Raish Decl. Ex. 37 at 11:20-12:1; Raish Decl. Ex. 57 at iii-vi.) It also proposed a timetable for moving at least 6,000 residents with psychiatric disabilities from adult homes into community settings by 2009. (Raish Decl. Ex. 57 at 32.) That
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recommendation and timetable was never implemented. (Raish Decl. Ex. 37 at 179:15183:6.)
B. The Undisputed Facts Establish That There is No Olmstead Plan for People with Mental Illness Living In Adult Homes The undisputed facts establish that the State has no Olmstead plan for
people with mental illness who reside in adult homes. In early 2003, DOH entered into a $1 million contract with New York
Presbyterian Hospital ("NYPH") to conduct assessments of adult home residents. (Raish Decl. Ex. 6 at 20:19-21:24, 123:25-124:3.) The data collected in connection with the assessments of 2611 residents showed that a large percentage of people with mental illness in the adult homes could live in more integrated settings and that a large percentage of people would choose to do so. (Id. at 72:22-73:2, 94:23-95:6, 103:13-22, 111 :8-25; Raish Dec!. Ex. 58; Raish Dec!. Ex. 9 at 100:21-33 (reporting the percentage of residents wanting their own apartment as 44%).)
While one of the tasks NYPH agreed to undertake for the State under the terms of the contract was to develop an additional assessment tool to use in relocating adult home residents to different housing programs, that tool was never devdoped. (Raish Dec!. Ex. 6 at 38:21-39:21; Raish Dec!. Ex. 59; Raish Dec!. Ex. 9 at 106:16107:9.) The plan to use NYPH's work to move residents to settings more appropriate to their needs was never implemented. (Raish Decl. Ex. 3 at 95:3-17.) The State also instructed the director of the project not to conduct further research or publish anything relating to the assessments because of this litigation. (Raish Dec!. Ex. 6 at 54:8-16.)
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The fact that the State has no Olmstead plan for people with mental illness who live in adult homes is confirmed by the testimony of the eight individuals listed below, who were designated, pursuant to Fed. R. Civ. P. 30(b)(6), to testify on behalf of defendants regarding various aspects of the State's purported Olmstead plan for adult home residents.
1. Deputy Commissioner and Medicaid Director at DOH. Defendants designated the testimony of Kathryn Kuhmerker, the Deputy Commissioner and Medicaid Director at DOH, concerning the activities of the Most Integrated Settings Coordination Council ("MISCC"), as Fed. R. Civ. P. 30(b)(6) testimony.2 Ms. Kuhmerker was the DOH Commissioner's designated representative on MISCC. (Raish Decl. Ex. 14 at 11:23-12:10.) As Ms. Kuhmerker testified, MISCC has not developed a comprehensive plan for providing services to adult home residents with mental illness in the most integrated setting. (Id. at 29:7-30:3.) MISCC has not done anything to address individuals who reside in adult homes. (Id. at 31:4-7.) MISCC excluded adult home residents from its data collection and planning efforts. (Id. at 29:2431:7.)
2. Deputy Commissioner for Planning at OMH. Defendants designated Keith Simons, the Deputy Commissioner for Planning at OMH, to provide testimony, pursuant to Fed. R. Civ. P. 30(b)(6), on the subject of OMH's strategic
2 The stated purpose of the MISCC is "to develop and implement a New York State plan to reasonably accommodate the desire of people of all ages with disabilities to avoid institutionalization and be appropriately placed in the most integrated setting possible." (Raish Decl. Ex. 13; see also Raish Decl. Ex. 11 at No.1 0.)
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P1anm·ng process.3 (Raish Decl. Ex. 15.) As Mr. Simons testified, OMH has not specifically considered, as part of its planning process, alternative housing needs for people with mental illness who reside in adult homes. (Raish Decl. Ex. 12 at 152:7153:20.) No formal mechanism exists for the incorporation of the efforts of the Adult Home Workgroup into OMH's strategic planning process. (Id. at 162:2-15.)
3. Director of the Office of Health Systems Management at DOH. Defendants designated testimony of Lisa Wickens, Director of the Office of Health Systems Management at DOH, concerning New York Adult Homes Assessments as Fed. R. Civ. P. 30(b)(6) testimony. (Raish Decl. Ex. 22.) Ms. Wickens testified that she is unaware of whether anyone at DOH has participated in developing an Olmstead plan. (Raish Decl. Ex. 3 at 18:14-18.) She further testified that there is no process for assessing adult home residents' desire and ability to live in more integrated settings, as there is for nursing home residents. (Id. at 15:20-18:13.) While DOH collects comprehensive data on nursing home residents and their impairments, need and progress, no such data is collected on adult home residents. (Raish Decl. Ex. 3 at 20:2-24:7.)
4. Senior Deputy Commissioner for Adult Services at OMH. Defendants designated Robert Myers, Senior Deputy Commissioner for Adult Services at OMH, to provide testimony, pursuant to Fed. R. Civ. P. 30(b)(6), concerning defendants' Olmstead planning regarding community based services. (Raish Decl. Ex. 20.) Mr. Myers testified that it is not necessary to track how many individuals move from adult
3 Pursuant to state law, OMH issues each year a Statewide Comprehensive Plan (the "5.07 Plan") for the provision of state and local services for the mentally ill over a five-year period. (Raish Decl. Ex. 17.)
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homes to supported housing because "adult homes are housing in the community, like other sources of housing." (Raish Decl. Ex. 21 at 20:19-21:10.) While there is an "expectation [that] the system of care would work with" the adult horne resident who desires to move to alternative housing, the State does not do any analysis confinning that such expectation is being met. (Raish Decl. Ex. 21 at 22:1-24:5.)
Earlier in the litigation, Mr. Myers had been described by defendants as "having knowledge about Olmstead planning." (Raish Decl. Ex. 18 at No. 11.) When asked whether OMH has an Olmstead plan, Mr. Myers testified that "[i]n tenns of a specific plan[,] I'm not aware of one." (Raish Decl. Ex. 19 at 39:12-40:2.) When asked whether he knows why he was identified in interrogatories as one of the most knowledgeable people about Olmstead planning at OMH, Myers responded, "no." (Id. at 41 :20-42:4.)
s. Director of OMH's Hudson River Field Office and Special
Assistant for Adult Homes. Defendants designated the testimony of Joseph Reilly, the Director of OMH's Hudson River Field Office and Special Assistant for Adult Homes, concerning the assessments in the Adult Horne Assessment Project, as testimony on defendants' behalf under Fed. R. Civ. P. 30(b)(6). As Mr. Reilly testified, OMH did not do anything with respect to residents who had expressed dissatisfaction with their housing in the assessments. (Raish Decl. Ex. 4 at 283:4-284:6.) The assessment fonns used in the Adult Homes Assessment Project were provided to certain case managers for adult horne residents. (!d. at 280:22-281-7.) OMH expected that case managers would work with such individuals but has "no way of knowing whether that happened or not." (Id. at 282:18-284:6.) OMH has not tried to assemble infonnation about how many
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residents are qualified for other fonns of housing. (Id. at 179:14-180:2.) OMH has not done anything to detennine what portion of the population of adult home residents would be more appropriately served in another housing program. (Id. at 174: 15-22.)
6. Director for the Bureau of Adult Care Facilities, Quality Assurance and Surveillance at DOH. Defendants designated testimony of Mary Hart, Director for the Bureau of Adult Care Facilities, Quality Assurance and Surveillance at DOH, concerning licensure and oversight of adult homes, as those subjects related to defendant's Olmstead plan for adult home residents, as Fed. R. Civ. P. 30(b)(6) testimony. (Raish Decl. Ex. 22.) Ms. Hart testified that she is unaware of any studies or analysis on discharge patterns from adult homes. (Raish Decl. Ex. 24 at 215:12-216:6.) When asked to explain how a resident would go about moving out of an adult home, Ms. Hart responded that the "expectation would be" that the resident's case manager would provide assistance. (Raish Decl. Ex. 24 at 216:11-25.) She further testified that she did not know how frequently this actually occurs, and has "no idea" whether case managers follow up with residents who expressed an interest in moving, or how many adult home residents move from an adult home on an annual basis through this process. (Raish Decl. Ex. 24 at 217:12-24.)
7. Supervisor in Bureau of Narcotics Enforcement at DOH. Defendants retroactively designated testimony of Catherine Lennon, a supervisor in the Bureau of Narcotics Enforcement at DOH, concerning licensure and oversight of adult homes, as those subjects as Fed. R. Civ. P. 30(b)(6) testimony. (Raish Decl. Ex. 22.) When asked whether DOH would assist an adult home resident who has expressed an interest in living elsewhere to secure another type of housing, Ms. Lennon responded that
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"[w]e don't generally do placements. That's not our function." (Raish Decl. Ex. 23 at 199:8-9.)
8. Executive Director for the Capitol District Psychiatric Center at OMH. Defendants designated Lewis Campbell, Executive Director for the Capitol District Psychiatric Center at OMH, to provide testimony, pursuant to Fed. R. Civ. P. 30(b)(6), on the subject of discharge planning from the State's psychiatric facilities. (Raish Decl. Ex. 26 at 64:8-65:18, 139:4-10.) As Mr. Campbell testified, psychiatric centers are obligated by regulation to facilitate the discharge of patients to one of five "community-based settings," which he described as community residences, nursing homes, adult homes, their own homes, and family homes. (Raish Decl. Ex. 26 at 16:920:8 (citing to Raish Decl. Ex. 27.) Mr. Campbell testified that adult homes are "pretty much equal" to one's own horne or family horne with respect to being the "least restrictive setting" available for an individual with mental illness. (Raish Decl. Ex. 26 at 20:4-21: 17.) There is no mechanism by which OMH, or a particular psychiatric facility, is made aware in the event a patient is discharged to a setting, such as an adult horne, that is inappropriate for his or her needs. (Id. at 116:3-132:23.)
The defendants also identified David Wollner, the Director of Office of Health Systems Management at DOH, as knowledgeable about "[t]he 2002 Adult Care Facilities Workgroup" and "[t]he Governor's initiatives relating to adult homes." (Raish Decl. Ex. 28 at 8.) When asked to define "New York's Olmstead plan for residents of adult homes in New York City with mental illness," he responded, "[a]s far as I know, we . do not have a specific Olmstead plan." (Raish Decl. Ex: 29 at 154:2-3.)
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Defendants also described Michael Newman, Director of the Housing Services Unit in the Division of Adult Services at OMH as someone who is knowledgeable about OMH housing and residential programs for people with mental illness. (Raish Decl. Ex. 28 at 7).) Mr. Newman stated that he is unaware of any comprehensive OMH plan to develop community housing. (Raish Decl. Ex. 30 at 180:19-181:17.) Mr. Newman further testified that he is unaware of any assessment procedures to identify adult home residents who could benefit from services in a more integrated setting. (Id. at 176:7-180:11.) He is also unaware of any effort by OMH to conduct a review of funding sources available to increase the availability of communitybased services or to create and manage a waiting list for such services that moves at a reasonable pace. (Id. at 178:1-179:21.)
Consistent with the foregoing testimony, the defendants admit that: • they do not perform any type of ongoing assessments of adult home
residents to determine whether they are appropriate for placement in more integrated settings; • they maintain no waiting lists for residents of adult homes seeking to move to more integrated settings; • the MISCC is not developing a plan to move residents of adult homes; and • they have not used the data gathered in the New York Adult Home Assessments to place adult home residents in more integrated settings. (Raish Decl. Ex. 11 at Nos. 14,8, 10, 15,21, respectively.)
18

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 24 of 45 The undisputed facts also show that virtually no one in recent years has
moved from adult homes to the State's more integrated housing programs. There are approximately 4000 adult home residents with mental illness residing in New York City. (Raish Decl. Ex. 31.) During the period from 2001 to 2005, at total of 19 adult home residents moved from adult homes to supported housing in New York City. (Raish Decl. Ex. 32.)
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Argument Summary judgment is appropriate where, as here, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is 'no genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When the moving party has "carried its burden under Rule 56(c) ... the nonmoving party must corne forward with 'specific facts showing that there is a genuine issue for trial.'" !d. at 586-87 (citation omitted) (emphasis in original) (quoting Fed. R. Civ. P. 56(e)). Partial summary judgment striking an affirmative defense is appropriate where there is no issue of fact as to that defense. See, e.g., Ocean Walk, Ltd., et. al. v. Those Certain Underwriters at Lloyd's of London, 2006 U.S. Dist. LEXIS 66939 (E.D.N.Y. Sept. 19,2006); Northwestern Mut. Life. Ins. Co. v. Fogel, 78 F. Supp. 2d 70 (E.D.N.Y. 1999). Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131, 12132, prohibits discrimination against individuals with disabilities, including those with mental illness. Similarly, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides that no person with a disability, including those with mental illness, shall: "solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving
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Federal financial assistance.,,4 The regulations promulgated under Title II of the ADA by the Department of Justice require that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." See 28 C.F.R. § 35.130(d) (1998) (emphasis added). Further, public entities must "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7). This obligation holds "unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." !d.
In Olmstead, et al. v. L.c., et at., 527 U.S. 581 (1999), the Supreme Court held that the ADA's integration mandate requires states to place individuals with mental disabilities in the most integrated setting appropriate to their needs, unless the individuals are opposed to such placement. Id. at 607. This integration requirement may be excused only where it would result in a "fundamental alteration" of the state's mental health system. Id. at 603. This affirmative defense, commonly referred to as the "fundamental alteration defense," is not available, however, to states that do not have an "Olmstead Plan," that is, a "comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings." Frederick L. v. Dep't ofPub. Welfare o/Pa., 422 F.3d 151, 157 (3d Cir. 2005) (quoting Olmstead, 527 U.S. at 605-606).
4 Aside from "subtle differences" between Section II of the ADA and Section 504 of the Rehabilitation Act, "the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under Section 504 of federally assisted programs and activities." Henrietta D., et at. v. Bloomberg, et al., 331 F.3d 261,272 (2d Cir. 2003) (citation omitted). Courts thus "treat claims under the two statutes identically." !d.
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Because the undisputed facts establish that defendants lack an Olmstead plan for people with mental illness who reside in adult homes, DAI is entitled to summary judgment striking defendants' affinnative defense of fundamental alteration.
I. AN OLMSTEAD PLAN IS A NECESSARY COMPONENT OF A FUNDAMENTAL ALTERATION DEFENSE The Supreme Court held in its landmark Olmstead decision that unnecessarily institutionalizing individuals with disabilities is a fonn of disability-based discrimination barred by the ADA. 527 U.S. at 597-602. Olmstead requires states to ensure that individuals with disabilities receive services in the most integrated setting appropriate to their needs unless doing so would fundamentally alter their services, programs and activities. !d. at 603. A state may establish a fundamental alteration defense by demonstrating that it has "a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." !d. at 605-06. The Third Circuit has held that states lacking such a plan may not avail themselves of the fundamental alteration defense. As that Court explained, any alternative interpretation of Olmstead would swallow the ADA's anti-discrimination mandate whole. Pa. Protection & Advocacy, Inc. v. Pa. Dep't ofPub. Welfare, 402 F.3d 374,381 (3d Cir. 2005). Indeed, a state cannot demonstrate that providing plaintiffs with services in a more integrated setting would fundamentally alter its service system without having engaged in a planning process to identify how many individuals could live in
22

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more integrated settings and would choose to do so, and how much it would cost to move those individuals to more integrated settings. !d.
A. Olmstead Requires States to Serve Individuals with Disabilities in the Most Integrated Setting Appropriate to their Needs Unless Doing so Would be a Fundamental Alteration of Their Services, Programs and Activities Under Olmstead, states must take steps to move people with mental illness
to more integrated settings. In that case, two mentally disabled women, one with a diagnosis of schizophrenia and the other with a diagnosis of personality disorder, receiving treatment in the psychiatric unit of Georgia Regional Hospital, brought suit against Georgia state officials challenging their placement in a segregated environment under Title II of the ADA and 42 U.S.C. § 1983. Id. at 593. Although their treating psychiatrists determined that their needs could be appropriately met in a State-supported community-based program, both individuals remained institutionalized. Id. In 1995, the women filed suit charging state officials with violation of Title II of the Americans with Disabilities Act. Id. at 594.
The district court granted partial summary judgment to the plaintiffs, holding that the State's failure to place L.C. and E.W. in an appropriate community-based program violated the ADA and could not be justified by a lack of funding. !d. The Court of Appeals for the Eleventh Circuit affirmed the district court's holding that unnecessary institutionalization violates the ADA but remanded for a reassessment of the State's costbased defense. !d. at 595. The Supreme Court, in an opinion by Justice Ginsberg and joined by Justices Stevens, O'Connor, Souter, and Breyer, affirmed in part, vacated in part, and remanded to the district court.
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The Court affinned the lower court's detennination that unjustified
institutionalization constitutes discrimination based on disability. Id. at 597. In so
holding, the Court noted that the Department of Justice, charged with interpreting and
enforcing the ADA, has adopted a regulation requiring that a "public entity shall
administer services ... in the most integrated setting appropriate to the needs of qualified individuals with disabilities." !d. at 596 (quoting 28 C.F.R § 35.130(d) (1998)).
The Court articulated two bases underlying its decision:
First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. . . . Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Id. at 600-01 (citations omitted). The Court held that states are required to provide community-based
treatment for persons with mental disabilities when (1) such placement is appropriate; (2)
the affected persons do not oppose such treatment; and (3) the placement can be
reasonably accommodated, taking into account the resources available to the State and
the needs of others with mental disabilities. !d. at 607
The third prong of the Court's holding relied on a Department of Justice
regulation under Title II of the ADA providing that:
"[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 c.P.R. § 35.130(b)(7) (1998). The Court held that:
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[T]he fundamental-alteration component of the reasonablemodifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Olmstead, 527 U.S. at 604. Noting that the "State's responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless," id. at 603, the Court ruled that a state met its obligations under the ADA's integration mandate if it demonstrated that "it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated," id. at 605-06. B. A State May Not Avail Itself of the Fundamental Alteration Defense Unless it has an Olmstead Plan The Third Circuit has properly interpreted Olmstead "to mean that a comprehensive working plan is a necessary component of a successful 'fundamental alteration'defense." Frederick L. v. Dep't of Pub. Welfare, 422 F.3d 151, 157 (3d Cir. 2005). As the Third Circuit has explained, Olmstead does not allow the fundamental alteration defense to "swallow the integration mandate whole." Pa. Protection & Advocacy, Inc. v. Pa. Dep't ofPub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005). A state may not use the defense as a talisman against the dictates of the ADA by insisting that, with respect to any subset of people with mental illness, providing them services in the most integrated setting would fundamentally alter the way in which it currently administers its programs. Rather, in order to avail itself of the fundamental alteration defense, a state must demonstrate a commitment to "take all reasonable steps" to achieve
25

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"on-going progress toward community placement" for all qualified individuals with
mental illness. Frederick L. v. Dep 't ofPub. Welfare, 364 F.3d 487,500 (3d CiT. 2004).
In Pennsylvania Protection and Advocacy, plaintiffPP & A bought suit on
behalf of residents of South Mountain Restoration Center ("South Mountain"), a
psychiatric transitional facility run by the Department of Public Welfare ("DPW"),
claiming that the residents were "systematically denied" participation in programs that
would enable them to live productively in their communities or other integrated settings.
402 F.3d at 378. Granting summary judgment to plaintiff on the insufficiency of
defendant's fundamental alteration defense, the court held that "[a]dmissions made by
DPW during the course of [the] litigation foreclose the genuine contention that it has
made a commitment to bring South Mountain into compliance with the ADA and RA."
Id. at 383. In particular, DPW had admitted that it does not require regional offices to
plan for or develop community-based services for South Mountain residents, thus
effectively "excluding them from participation in its varied, successful community
treatment programs." Id. at 385. The court reasoned:
[T]he fundamental alteration defense cannot be read to exempt in toto noncomplying agencies. A state cannot meet an allegation of noncompliance simply by replying that compliance would be too costly or would otherwise fundamentally alter its noncomplying programs. Any program that runs afoul of the integration mandate would be fundamentally altered if brought into compliance. Read this broadly, the fundamental alteration defense would swallow the integration mandate whole. . .. Instead, the only sensible reading of the integration mandate consistent with the Court's Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and RA. . . . It would make no sense to exempt a state from liability under the ADA and RA in a particular case on the basis of its need to fulfill its larger obligation to the mentally disabled as a whole while at the same time relieving the state of its larger obligation. Any interpretation of the
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fundamental alteration defense that would shield a state from liability in a particular case without requiring a commitment generally to comply with the integration mandate would lead to this bizarre result. Id. at 381 (emphasis in original). Defendants have demonstrated no such commitment. On the contrary, they present this Court with the defense that they need not include adult home residents in an Olmstead plan because they are already "in the community."
II. NEW YORK STATE HAS NO OLMSTEAD PLAN FOR PEOPLE WITH MENTAL ILLNESS WHO RESIDE IN ADULT HOMES The undisputed facts establish that the State has no Olmstead plan for people with mental illness in adult homes. The testimony of numerous state officials establishes that there is no such plan. When DAI requested that the State admit that fact, it resisted doing so, in the course of a lengthy discovery dispute, by maintaining simultaneously (1) that there is no need for an Olmstead plan for people in adult homes because adult homes are in the community, and (2) that the State does indeed have an
Olmstead plan for adult home residents. It was only after the State was pressed during discovery to provide a complete description of its Olmstead plan for adult home residents, that the State cobbled together a list of activities that it claims constitute its plan. As a matter of law, however, the State's purported plan comes nowhere near to satisfying Olmstead and its progeny.
A. The State Has No Olmstead Plan for Adult Home Residents The testimony of numerous State employees as well as the facts to which
defendants admitted during discovery establish that the State has no comprehensive or effectively working plan to enable people with mental illness in adult homes to receive
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Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 33 of 45
services in the most integrated settings. State employees testified, one after the other, that they are unaware of an identifiable plan to ensure that adult homes residents are in the most integrated setting appropriate to their needs. (See, e.g., Raish Decl. Ex. 29 at 154:2-3 ("As far as I know, we do not have a specific Olmstead plan."); Raish Decl. Ex. 19 at 39:23-40:2 ("In terms of [a] specific plan[,] I'm not aware of one."); Raish Decl. Ex. 14 at 30:3 ("I'm unaware of such a plan.").)
The State also admits that (1) it does not perform any type of ongoing assessments of adult homes residents to determine whether they are appropriate for placement in more integrated settings; (2) it maintains no waiting lists for residents of adult homes seeking to move to more integrated settings; (3) the MISCC is not developing a plan to move residents of adult homes; and (4) it has not used the data gathered in the New York Adult Home Assessments to place adult home residents in more integrated settings. (Raish Decl. Ex. 11 at Nos. 14,8, 10, 15,21, respectively.)
Thus, the undisputed facts establish that the State has no Olmstead plan for people with mental illness living in adult homes.
B. The "Plan" Offered by Defendants Is Insufficient As a Matter of Law During discovery, DAI requested that the State confirm the testimony of
its witnesses that it has no Olmstead plan for people with mental illness in adult homes. Instead of responding to the question directly, the State repeatedly responded by (1) denying that there is a need for an Olmstead plan for people in adult homes because adult homes are in the community, and (2) asserting that the State does indeed have an Olmstead plan for adult home residents. Accordingly, DAI requested that the State describe the components of its alleged plan.
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For months defendants refused to identify the complete components of its so-called plan. All the while, the State both maintained that a plan is not required and asserted that various amorphous activities, "among other things," constituted a plan. 5
It was only after the State was directed by the Court to identify all of the components of its Olmstead plan that the State finally provided DAI with a full list of the purported elements of its plan and designated several witnesses to testify about it pursuant to Fed. R. Civ. P. 30(b)(6). But this "plan" comes nowhere near to satisfying the elements of an Olmstead plan.
Defendants' purported Olmstead plan, as it pertains to adult horne residents, is patently deficient. A plan must communicate a commitment to integration "for which [the state] can be held accountable by the courts." Frederick L., 364 F.3d at 500. "General assurances" and expressions of "good faith intentions" are not enough. Frederick L. v. Dep't of Pub. Welfare, 422 F.3d 151, 158 (3d Cir. 2005) ["Frederick L. 11']. Instead, an Olmstead plan must set forth "reasonably specific and measurable targets for community placement." 1d. It must, "at a bare minimum," specify four things: (1) the time-frame or target date for placement in a more integrated setting; (2) the approximate number of patients to be placed each time period; (3) the eligibility for placement; and (4) a general description of the collaboration required between the local
5 See, e.g., Raish Decl. Ex. 60 ("[D]efendants' response to request 6 clearly states defendants' position that no 'Olmstead' plan is required for adult horne residents ... ."); Raish Decl. Ex. 61 ("Moreover, defendants state that there is no need for an Olmstead plan for adult horne residents because adult homes are in the community ...."); Raish Decl. Ex. 28 at 2-3 ("Defendants object to the interrogatory on the ground that there is no need for an Olmstead plan for adult horne residents because adult homes are in the community and adult horne residents receive services in an integrated setting ....").)
29

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 35 of 45
authorities and the housing, transportation, care, and education agencies to effectuate
integration into the community." Id. at 160. Defendants identified a variety of processes or documents that, they
claimed, together constituted an Olmstead plan. (Raish Decl. Ex. 22.) However, defendants never articulated the plan itself or identified "reasonably specific and measurable targets for community placement" of adult home residents. Frederick L., 422
F.3d at 158. Ultimately, at the direction of the Court, defendants produced "a final and
complete list of the components of defendants' Olmstead plan or system as it relates to adult home residents." (Raish Decl. Ex. 22.) They purport to be:
1. Downsizing and/or closure of State Psychiatric Centers and the reinvestment of funds related thereto.
2. Development and implementation of discharge planning standards for State Psychiatric Centers.
3. Development and oversight of discharge planning standards and discharge activities at psychiatric hospitals and inpatient psychiatric units licensed by OMH.
4. Development of OMH licensed and/or funded housing and residential programs.
5. Actions to ensure that community-based mental health treatment and services, case management, ACT teams, clubhouses, clinic treatment programs, continuing day treatment programs, intensive psychiatric rehabilitation treatment programs, AOT programs, and supported employment programs are available.
6. Certification or licensure of and/or oversight of the community-based services and programs listed in #5 above.
7. Steps taken to. engage in and support research into mental illness and treatments and medications for mental illness.
30

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 36 of 45
8. Development of and enforcement of standards governing adult homes, and the rights of adult home residents, and the services which adult homes are required to provide to adult home residents.
9. The licensure and oversight of adult homes. 10. The Do Not Refer List. 11. The assessments conducted under contract with NY
Presbyterian Hospital. 12. The case management and peer support programs funded
byOMH. 13. The EnAble program funded by DOH. 14. The addition of adult home residents as target populations
in requests for proposals for the development of housing programs issued by OMH. 15. The process of developing OMH's Statewide Comprehensive Plans for Mental Health Services under MHL § 5.07. 16. The activities of the Most Integrated Settings Coordinating Council and the Coalition to Promote Community Based Care. A review of this material, along with the testimony of the eight witnesses
defendants designated under Fed. R. Civ. P. 30(b)(6) to testify on their behalf about these various items,6 compels the conclusion that the 16 components defendants proffer are not
"a comprehensive, effectively working plan for placing [adult home residents] with
mental disabilities in less restrictive settings." Olmstead, 527 U.S. at 604-06.
6 See (Raish Decl. Exs. 3,4, 12, 14,21,23,24,26.) Not one of these eight witnesses, who testified for defendants pursuant to Federal Rule of Civil Procedure 30(b)(6), was able to describe how defendants' Olmstead "plan" assists adult home residents with mental illness to transition into a more integrated setting. Indeed, no one was even aware of such a plan.
31

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Remarkably, defendants claim that part of their Olmstead plan is the activities of the Most Integrated Settings Coordinating Council (MISCC). However, defendants have admitted that the MISCC specifically excluded adult home residents in developing its recommendations for bringing New York into compliance with the Olmstead decision. (Raish Decl. Ex. 11 at No. 10 ("Defendants admit that the MISCC is not developing a plan to move residents of adult homes, and deny that there is an obligation to do so.").)
Kathryn Kuhmerker, the Director of the Office of Medicaid Management for DOH and the Commissioner's designated representative to the MISCC, testified that the MISCC did not develop a plan to ensure that services are provided to adult home residents in the most integrated setting appropriate. (Raish Decl. Ex. 14 at 29:24-31:7.) When asked what MISCC has done "regarding adult home residents," she responded that the MISCC is not "charged with specifically looking at specific individuals who reside in specific settings." (!d. at 30:18-23; see also id. at 53:24-54:2 ("I think the MISCC has not ... specifically looked, nor do I believe it's charged to look specifically at adult home residents.").) Yet Ms. Kuhmerker's subsequent testimony revealed that the MISCC did, in fact, collect data on other specific settings, including nursing homes and state hospitals, and decided not to collect such data on adult homes. (!d. at 61 :8-62:6.)
Equally disingenuous is defendants' inclusion of the Adult Home Assessment Project on their list of Olmstead plan components. The assessments, which indicated that many adult home residents wanted to and were capable of moving, were completed several years ago. Yet as of today, the state has failed to make any use of this data to place adult home residents in more integrated settings and directed the New York
32

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 38 of 45
Presbyterian Hospital not to further analyze the data. Indeed, the defendants admit that they have not used the data gathered in the Adult Home Assessment Project to move adult home residents to more integrated settings. (See supra p. 28; see also Raish Decl. Ex. 3 at 95:7-96:2 (testifying that defendants have not incorporated the data gathered by the study "into efforts to do Olmstead planning"); Raish Decl. Ex. 11 at No. 15.)
The first three elements listed, by their very terms, bear no relation to enabling adult home residents to move to more integrated settings, addressing instead the needs of state psychiatric center patients. Another three listed components pertain to adult home oversight-the "Development of and enforcement of standards governing adult homes," the "licensure and oversight of adult homes," and "The Do Not Refer List"-and have little if any relation to furthering the placement of residents in more integrated settings.7
The remaining components defendants identify as part of their Olmstead plan are relevant, but do not amount to a plan. Defendants refer, for example, to the development of new housing and the addition of adult home residents as a "target population" to RFPs for such new housing. (Raish Decl. Ex. 22.) Yet they provide no evidence detailing how much new housing will be developed over the next year, two years, or 10 years, what portion of the budget will be devoted to the effort, or how they
7 The "do not refer" list is a list of facilities to which individuals should not be referred because such facilities have been cited for "systemic endangerment," or their operating certificated has been revoked, limited or denied. (Raish Dec!. Ex. 24 at 182: 17-183: 21.)
33

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 39 of 45
will ensure access to the housing by adult home residents or track the numbers of adult home residents seeking, and ultimately obtaining, supported housing.8
Defendants also refer to "[a]ctions to ensure that community-based mental health treatment and services" and other programs "are available." (Raish Decl. Ex. 22.) They do not define what these actions are, how they will further the integration of adult home residents, or how the defendants will determine if they are effective in promoting integration of adult home residents. Such vague assurances are not an effective plan, and to date such efforts have certainly not produced significant movement of adult home residents to supported housing.
Another aspect of defendants' purported Olmstead plan is "the process of developing OMH's Statewide Comprehensive Plans for Mental Health Services under MHL § 5.07." (Jd.) However, it is undisputed that these documents are not part of a comprehensive plan to place qualified adult home residents with mental disabilities into more integrated settings. Keith Simons, a Deputy Commissioner of at OMH, was designated by defendants to testify concerning OMH's 5.07 Plans and the process that produced them. (Id.) As he made clear, to the extent that these plans address adult home residents, they operate under the assumption that "[a]dult homes are residences in the
8 Even for those few supported housing beds for which adult home residents are a "priority population," there is no assurance that any of the adult home residents will ever receive a placement. (See Raish Decl. Ex. 4 at 171: 16-173 :3). Adult home residents are not guaranteed an absolute number or percentage of such beds. (Id.) This is in part because OMH authorizes New York City mental health officials to set their own priorities, which may exclude adult home residents. (Raish Decl. Ex. 52 at 161 :4-20, 174:9-175:8; Raish Decl. Ex. 4 at 172:10-173:3,261 :9-22; Raish Decl. Ex. 37 at 90:1-91:14.) The numbers prove the point. OMH reported that, during 2001 to 2005, only 19 residents moved from adult homes to supported housing in all of New York City. (Raish Decl' Ex. 32.)
34

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 40 of 45
community." (See Raish Decl. Ex. 62 at 69; Raish Decl. Ex. 56 at 69.) Although OMH's current "5.07 Plan" references development of a "comprehensive service package to support adult home residents, improve service access for residents with mental illness, and help them meet their recovery goals" (Raish Decl. Ex. 63 at 70) the plan envisions little, if any, focus on assisting adult homes residents to move to more integrated settings. 9
Moreover, OMH's "5.07 Plan" is merely "strategic" in nature, "not tactical or operational." (Raish Decl. Ex. 12 at 40:18-41:18.) For example, OMH might "make a strategic decision that investment in housing is necessary and appropriate," but the plan does not address such issues as how to distribute that housing across regions of the state, how the housing will be procured, and whether to identify particular populations as a priority. (!d. at 43:13-44:5.) In other words, the plan contains no concrete, "measurable goals for community integration for which [defendants] may be held accountable."JO Frederick L. 111,422 F.3d at 156.
Defendants' fundamental position is that no plan is required of them. Consistent with that, to the extent they actually have a plan for housing adult home residents, it is essentially to let them stay where they are.
The inadequacy of defendants' Olmstead plan is placed in stark relief when measured against the standard set forth in Frederick L. II. The plaintiffs in Frederick L. were individuals with a mental illness institutionalized at a state hospital.
9 The sole reference to "housing" with respect to adult home residents in any of the three plans defendants produced speaks of efforts to assist residents in homes that are going out of business. (See Raish Decl. Ex. 56 Appendix 7 at A64.)
10 Mr. Simons testified that it is not a "major function" of the plan to evaluate whether previous years' goals have been achieved. (Raish Decl. Ex. 12 at 12:19-13:3.) 35

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 41 of 45
They brought a class action against Pennsylvania's Department of Public Welfare ("DPW") and the Secretary of Public Welfare, claiming that DPW failed to provide services to them in the most integrated setting appropriate to their needs and had developed no plan to assure that this would be done in the future. Frederick L. I, 364 F.3d at 489-90. The district court found in favor of defendants, holding that plaintiffs' requested relief would have required a fundamental alteration of the commonwealth's programming and budgetary allocations. Id. at 491. The Third Circuit reversed, finding that the district court had given undue weight to the State's past progress in deinstitutionalization as a predictor of its commitment to future efforts. !d. at 499-500.
On remand, the district court once again ruled in defendants' favor, finding that they had "submitted detailed accounts and evidence regarding the complex and comprehensive statewide planning process." Frederick L. v. Dep't ofPub. Welfare, 2004 WL 1945565, at *7 (E.D. Pa. Sept. 1,2004). The court devoted several pages of its opinion to describing this process: A statewide "Integration Plan" set forth general goals and provided "broad parameters for future actions in the provision of mental health services in the Commonwealth." Id. at *2 (internal quotation marks and citation omitted). One of these goals was to "[m]aintain a commitment to re-orienting the focus of the mental health system away from reliance on large institutions to community care, including utilizing up to 250 CommunitylHospital Integration Projects Program beds per year as a vehicle for decreasing use of state hospitals." Id. The Office of Mental Health and Substance Abuse Services ("OMHSAS"), an agency within DPW, created nine "Service Area Planning" groups ("SAPs"), requiring each to submit a formal five-year plan to implement DPW's goals, and committing to "use the plans submitted by each
36

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 42 of 45
county/region to develop its annual budget request to the department." !d. at *3. The court also noted that defendants "provided data outlining deinstitutionalization trends and demonstrating declines in hospital admissions and length of stay," a result accomplished "through creative funding solutions." !d. Finally, the court found it significant that "DPW officials have emphasized OMHSAS's commitment to continue this progress." Id. at *4.
On appeal, the Third Circuit once again vacated the district court's opinion, criticizing DPW's post-remand submission for its "failure to set forth reasonably specific and measurable targets for community placement" for which "DPW may be held accountable." Frederick L., 422 F.3d at 156, 158. Instead of concrete target bed closures, DPW's initial Integration Plan contained the "amorphous, i.e., non-specific" goal of closing "up to 250" institutional beds per year. !d. at 158. While promising that there would be "no reversal" of its commitment to deinstitutionalization, DPW "failed to demonstrate in reasonably measurable terms how it will comply with this commitment." !d. The court explained:
DPW remains silent as to when, if ever, eligible patients ... can expect to be discharged. Instead, DPW proffers general assurances and good-faith intentions to effectuate deinstitutionalization. General assurances and good-faith intentions neither meet the federal laws nor a patient's expectations. Their implementation may change with each administration or Secretary of Welfare, regardless of how genuine; they are simply insufficient guarantors in light of the hardship daily inflicted upon patients through unnecessary and indefinite institutionalization." !d. at 158. Having determined that DPW's failure to articulate a comprehensive plan precluded its assertion of a fundamental alteration defense, the court remanded to the district court to craft the appropriate relief. Acknowledging its responsibility to provide
37

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 43 of 45
some guidance, the Third Circuit stated that a viable plan should, "at a bare minimum," specify four things: (1) the time-frame or target date for placement in a more integrated setting; (2) the approximate number of patients to be placed each time period; (3) the eligibility for placement; and (4) a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community." Id. at 160.
In the case at bar, defendants have provided no time frame for moving adult home residents with mental illness into community settings; no target numbers of individuals to be moved in any particular time period; no criteria for assessing residents' eligibility for such a transition; and no description of the kind of collaboration necessary to achieve this goal. They contend that they need not have a plan, and they do not.
III. BECAUSE THE STATE HAS NO OLMSTEAD PLAN, ITS AFFIRMATIVE
FUNDAMENTAL ALTERATION DEFENSE MUST BE STRICKEN As a matter oflaw, the State's failure to articulate a plan that "adequately
demonstrates a reasonably specific and measurable commitment" to integrating adult home residents into the community places the fundamental alteration defense beyond their reach. Frederick L., 422 F.3d at 157.
The State has made no commitment to assist adult home residents with mental illness in living and receiving services in the most integrated appropriate setting. In fact, its system does entirely the opposite-it fosters dependence on large impersonal institutions that isolate and stigmatize these individuals. The State's position in this case is consistent with its unfortunate history of simply ignoring the people with mental illness who reside in adult homes.
38

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 44 of 45
Conclusion
For the foregoing reasons, DAI respectfully requests entry of partial
summary judgment striking the defendants' affirmative defense of fundamental
alteration.
Dated: New York, New York August 10, 2007
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By: I~ &1,
Jeh C.lfohnson (JJ-3753) v Andrew G. Gordon (AG-9239) Anne S. Raish (AR-8643) 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000
- and-
DISABILITY ADVOCATES, INC. Cliff Zucker (CZ-2254) Roger Bearden (RB-9491) 5 Clinton Square, 3rd floor Albany, NY 12207 (518) 432-7861
BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Bumim* Jennifer Mathis* 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
NEW YORK LAWYERS FOR THE PUBLIC INTEREST John Gresham (JG-5720) 151 West 30th Street, 11th floor New York, NY 10001-4007 (212) 244-4664
39

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 45 of 45 MFY LEGAL SERVICES, INC. Jeanette Zelhof (1Z-0639) Lycette Nelson (LN-5606) 299 Broadway, 4th floor New York, NY 10007 (212) 417-3700 URBAN JUSTICE CENTER William G. Lienhard (WL-6340) 123 William Street, 16th floor New York, NY 10038 (646) 602-5667 Counsel for Plaintiff
*Admitted pro hac vice
40

 Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 1 of 95

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
DISABILITY ADVOCATES, INC.,
Plaintiff,
- against -
ELIOT SPITZER, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, and MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, AND THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.
---------------------------------------------------------------)(

Original Filed By ECF 03 CV 3209 (NGG) (MDG)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BARBARA K. HATHAWAY AMY HELD SCOTT J. SPIEGELMAN AMY L. ABRAMOWITZ Assistant Attorneys General of Counsel

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants 120 Broadway New York, New York 10271 (212) 416-8560
Dated: New York, New York August 10, 2007

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 2 of 95

TABLE OF CONTENTS

Page

Table of Authorities ........................................................... iv

Preliminary Statement .......................................................... 1

Statement of Facts ............................................................. 2

1.

Statutory and Regulatory Framework Governing Adult Homes and Relevant

Aspects of the Mental Health System ........................................ 2

A. Adult Homes ..................................................... 2

B. Mental Health Services Available to Adult Home Residents ................ 4

C. Housing for Persons with Mental Illness ................................ 6

D. State Psychiatric Centers ............................................ 9

II. Undisputed Facts Concerning New York City Adult Homes ..................... 11

A. Adult Homes .................................................... 11

1. Adult Home Residents Move To The Homes From A Variety of Settings ........................................ 11

2. Adult Home Residents Are Part of The Community ................ 11

3. Mental Health Providers Offer Recovery-Oriented Services To Residents ....................................... 13

4. Mental Health Providers Assist Qualified Adult Home Residents To Move From Adult Homes ......................... 15

5. Residents Move From Adult Homes ............................ 15

B. DOH's Inspections and Enforcement Actions Against New York City Adult Homes .................................................... 17

C. The State Has Taken Many Steps to Improve the Oversight of Adult Homes and The Conditions And Services for Residents ......................... 19

1. Inter-Agency Committee on Adult Homes ....................... 19

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 3 of 95
2. OMH Adult Home Team ..................................... 20 3. Adult Care Facilities Workgroup ............................... 20 4. Assessments of Adult Home Residents .......................... 20 5. OMH Case Management & Peer Support Program ................. 21 6. DOH EnAble Program ....................................... 21 7. Statutory and Regulatory Amendments .......................... 22 8. Enhanced Access to Alternative Housing ........................ 22 D. The State's Comprehensive, Effective Olmstead Plan .................... 22 1. Delnstitutionalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .... 23 2. Investment in and Vast Network of Community Based Services ...... 24 3. OMH's Expansion of and Commitment to
Housing for Persons with Mental Illness ......................... 24 4. Adult Home Initiatives and Services ............................ 25 5. Oversight of System Through Licensing ......................... 25 6. Other Aspects of Defendants' Olmstead Plan ..................... 26 7. Olmstead Planning Efforts .................................... 26 E. Cost Comparison: Transfer Would Cost The State More .................. 26 1. Adult Home Funding: SSI .................................... 27 2. Funding of Housing For Persons With Mental1l1ness ............... 28
a. Supported Housing .................................... 28 b. Supportive SRO's and CR-SRO's ........................ 29 3. Medicaid Costs ............................................. 29 4. Plaintiffs Proposed Transfer Would Increase State Costs ........... 30
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ARGUMENT ................................................................ 31

I.

Introduction - Standards Governing This Motion .............................. 31

A. Basic Principles of The ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

B. Integration ................................................ 33

POINT I

PLAINTIFF LACKS STANDING TO ASSERT ITS CLAIMS AGAINST DEFENDANTS ......................................... 35

A. DAI Fails the Associational Standing Test ............................. 36

1. None ofDAI's Constituents Have Suffered an Injury-In-Fact ........ 36

2. Defendants Have Not Caused DAI's Constituents Any Injury ........ 38

3. Any Injury Suffered By DAI's Constituents is Not Redressible ....... 38

B. DAI Does Not Have Standing To Obtain Systemic Relief ................. 39
c. DAI Is Not Authorized to Bring These Claims .......................... 42

POINT II

NO STATE SERVICE, PROGRAM OR ACTIVITY SUBJECT TO THE ADA IS AT ISSUE, WHERE NO STATE POLICY REQUIRES OR CAUSES DISCRIMINATION, AND THE STATE CANNOT BE HELD RESPONSIBLE FOR THE ACTIONS OF ITS LICENSEES, THE ADULT HOMES ................. 44

POINTll

ADULT HOME RESIDENTS RESIDE IN INTEGRATED SETTINGS WHERE THEY MAY COME AND GO FREELY AND INTERACT WITH NON-DISABLED PERSONS .................. 51

A. Integration Is Defined As Opportunity for Contact with Nondisabled Persons ......................................................... 52

B. Adult Home Residents Have Nearly Unlimited Opportunities For Contact With Nondisabled Persons .......................................... 53
c. Adult Homes Facilitate Integration ................................... 58

D. DAI's Various Claims that Residents Are Not Integrated Are Meritless ...... 60

-lll-

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 5 of 95

POINT IV DAI HAS NOT ESTABUSHED THAT RESIDENTS ARE QUALIFIED TOMOVE ...................................................... 65

A. Residents Must Be Deemed "Qualified" By Treatment Providers ........... 66

B. DAI Failed to Prove That Any Residents Are Qualified for Supported Housing ................................. , ...................... 67

POINT V

PLAINTIFF'S CLAIMS ARE BARRED BY THE FUNDAMENTAL ALTERATION DEFENSE ..................... 70

A. The State's Resources Are Limited ................................... 71

B. Transfer Would Cost The State More ................................. 72

C. Other Needy Individuals Would Be Adversely Affected ................... 74

D. Plaintiffs Demand Alters The Nature of the State's Programs .............. 75

E. Defendants' "Olmstead Plan" Is Sufficient ............................. 77

POINT VI

DEFENDANTS HAVE NOT DISCRIMINATED IN THEIR INSPECTIONS AND ENFORCEMENT OR TOLERATED POOR CONDITIONS IN IMPACTED ADULT HOMES ................. 79

POINT VII GOVERNOR SPITZER SHOULD BE DISMISSED AS A PARTY TO THIS UTIGATION . . . . . . . . . . . . . . . . . . . . . . . . .. . ................ 82

CONCLUSION .............................................................. 84

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TABLE OF AUTHORITIES

Cases

Page

Aiken v. Nixon, 236 F. Supp. 2d 211 (N.D.N.Y.), afI'd, 80 Fed.Appx. 146 (2d Cir. 2003) ...................... 36

Alexander v. Choate, 469 U.S. 287 (1985) .................................................................................. 32

Alford v. City of Cannon Beach, 2000 U.S. Dist. LEXIS 20730 (D. Or. Jan. 17, 2000) ..................................................... 47

Allen v. Wright, 468 U.S. 737 (1984) .................................................................................... 35, 38

Amirault v. City of Roswell, 1996 U.S. Dist. LEXIS 9887 (D.N.M. March 28, 1996), afI'd mem., 1997 U.S. App. LEXIS 19902 (lOth Cir. July 31,1997) .................. 46,47,80

Autism Society of Mich. v. Fuller, 2006 WL. 1519966 (W.D. Mich. May 26,2006) ...................................................... 41,43

Black v. Dep't of Mental Health, 100 Cal. Rptr. 2d 39 (CL App. 2000) ............................................................................... 33

Blum v. Yaretskv, 457 U.S. 991 (1982) ....................................................................................... 51

Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999), afI'd sub nom Mental Disability Law Clinic, Touro Law Ctr. v. Carpinello, 2006 WL 1527117 (2d Cir. May 31,2006) ......................................................... 41,43,44

Bruggeman v. Blagojevich, 219 F.R.D. 430 (N.D. Ill. 2004) .......................................... 30, 72, 73

Bryson v. Shepardson, 2006 U.S. Dist. LEXIS 71775 (D.N.H. Sept. 29, 2006) ....................................................................................... 70, 72, 75

Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999) ............................................................................... 83

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ...................................................................... 42

Clark v. Burger King Corp., 255 F. Supp. 2d 334 (D. N.J. 2003) ......................................... 39,40

Clark v. McDonald's Corp., 213 F.R.D. 198 (D. N.J. 2003) .................................................. 39,40

Comm. For Pub. Ed. & Religious Liberty v. Rockefeller, 322 F. Supp. 678 (S.D.N.Y. 1971) ............................................................................. 82, 83

-v-

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 7 of 95
DeShaney v. Winnebago Co. Dep't of Social Services, 489 U.S. 189 (1989) ......................................................................................................... 47
Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998) ............................................................................. 33 Doe v. Stincer, 175 F.3d 879 (11 th Cir. 1999) ...................................................................... 36,43 EI-Beyv. The City of New York, 151 F. Supp. 2d 285 (S.D.N.Y.),
affd, 33 Fed.Appx. 10 (2d Cir. 2002) .............................................................................. 41 Fisher v. OK Health Care Authority, 335 F.3d 1175 (10th Cir. 2003) ........................................ 49 Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995) ............................................................................ 33 Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) ...................................................... 47 Green v. City of New York, 465 F.3d 65 (2d Cir. 2006) ............................................................. 45 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .............................................................. 35 Hecklerv. Chaney, 470 U.S. 821 (1985) ............................................................................... 47,80 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ............................................................ 32 Hunt v. Wash. State Apple Advert. Comm'n,
432 U.S. 333 (1977) ......................................................................................................... 35 Independent Living Resource Center, Inc. v. City of Wichita,
2002 U.S. Dist. LEXIS 6324 (D. Kansas March 15, 2002) ............................................. 81 Innovative Health Systems, Inc. v. City of White Plains,
117 F.3d 37 (2d Cir. 1997) ............................................................................................... 45 Koskinas v. Carrillo, 214 A.D.2d 512 (1st Dep't 1995) ............................................................... 49 Leocata v. Wilson-Coker,
343 F. Supp. 2d 144 (D. Conn. 2004), affd mem., 2005 U.S.App. LEXIS 19730 (2d Cir. Sept. 13, 2005) ......................................................................................... 33 Lewis v. Casey, 518 U.S. 343 (1996) .......................................................................................... 42 Lujan v. Defenders ofWildJife, 504 U.S. 555 (1992) ............................................... 35, 36, 37,38 McInnis-Misenor v. Me. Medical Ctr., 211 F. Supp. 2d 256 (D. Me. 2002), affd, 319 F.3d 63 (lst Cir. 2003) .............................................................................................. 37
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Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 8 of 95
Mental Disability Law Clinic, Touro Law Cir. v. Carpinello, 2006 WL. 1527117 (2d Cir. May 31,2006) .................................................................... 41
Mich. Protection & Advocacy Servo v. Kirkendall, 841 F. Supp. 796 (E.D. Mich. 1993) ................................................................................ 40
Monaco v. Stone, 2002 WL. 32984617 (E.D.N.Y. Dec. 20,2002) ....................................... 36,40 Mullen v. Axelrod, 74 N.Y.2d 580 (1989) .................................................................................. 47 Nash v. Bowen, 869 F.2d 675 (2d Cir. 1989) .............................................................................. 41 O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980) ............................................... 47,80 Olmstead v. L.C., 527 U.S. 581 (1999) ............................................................................... passim P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) ..................................................................... 33 Penn. Protection & Advocacy, Inc., 136 F. Supp. 2d at 355-56 ............................................ 36,41 Reeves v. Queen City Transport, Inc.,
10 F. Supp. 2d 1181 (D. Colo. 1998) ............................................................................... 47 Risinger v. Fitzpatrick, 117 F. Supp. 2d 61 (D. Me. 2000) ......................................................... 40 Rizzo v. Goode, 423 U.S. 362 (1976) .................................................................................... 41,42 Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999) .............................................. 33, 76 Romeu v. Cohen, 121 F. Supp. 2d 264 (S.D.N.Y. 2000), affd,
265 F.3d 118 (2d Cir. 2001) ............................................................................................. 83 Rubenstein v. Benedictine Hosp.,
790 F. Supp. 396 (N.D.N.Y. 1992) ............................................................................ 40,44 Sanchez v. Johnson, 416 F.3d 1061 (9th Cir. 2005) .............................................................. 70, 72 Scaggs v. New York State Dep't of Educ.,
2007 U.S. Dist. LEXIS 35860 (E.D.N.Y. May 16,2007) ................................................ 48 ~~..:....:-.::=""" 256 F.3d 1077 (11 th Cir 2001) ........................................................................... 37 Simon v. E. Ky. Welfare Rights Organization,
426 U.S. 26 (1976) ........................................................................................................... 38
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Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 9 of 95
Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) ................................................................... 37,39,40
Stefanelli v. Minard, 342 U.S. 117 (1951) ................................................................................... 42
Sybalski v. Independent Group Home Living Program, Inc., 2007 U.S. Dist. LEXIS 30097 (E.D.N.Y. April 24, 2007) .............................................. 51
Tenn. Protection & Advocacy, Inc. v. Bd. ofEduc., 24 F. Supp. 2d 808 (M.D. Tenn. 1998) ............................................................................ 40
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) ....................................................... 47, 80
Trautz v. Weisman, 846 F. Supp. 1160 (S.D.N.Y. 1994) ............................................................ 44
Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003) ............................................................................................. 32
Tyler v. City of Manhattan, 849 F. Supp. 1429 (D. Kan. 1994) .................................................. 47
United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996) ......................................................................................................... 35
Warden v. Pataki, 35 F. Supp. 2d 354 (S.D.N.Y. 1999) (same), affd sub nom. Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999) ................................................................... 83
Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................... 37, 39
Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001) ............................................... 70,72
Youngberg v. Romeo, 457 U.S. 307 (1982) ................................................................................ 68
Federal Statutes
42 U.S.C. § 1983 .......................................................................................................................... 51 42 U.S.C. § 1997, et seq .............................................................................................................. 50 42 U.S.C. § 10805 .................................................................................................................. 42, 43 42 U.S.C. § 10805(1) .................................................................................................................. 43 42 U.S.C. § 12101(a)(2) ............................................................................................................... 52 42 U.S.C. § 12131(1) ................................................................................................................... 32 42 U.S.C. § 12132 .................................................................................................................. 31,52
Federal Regulations
28 C.F.R. Pt. 35, App. A (1998) ............................................................................................ 34,62
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Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 10 of 95
28 C.F.R. § 35.150(a) ................................................................................................................... 70 28 C.F.R. § 35.130(b)(6) ........................................................................................................ 32,44 28 C.F.R. § 35.130(b)(7) .............................................................................................................. 32 28 C.F.R. § 35.130(d) (2006) ........................................................................................... 33,49,52 28 C.F.R. § 35.130(b)(e)(l)(1998) ............................................................................................... 62
Federal Rules
Fed. R. Civ. P. 21 ......................................................................................................................... 82 Fed. R. Civ. P. 23 ......................................................................................................................... 40
State Statutes
N.Y. Mental Hyg. Law ("MHL") § 5.07 .............................................................................................................................................. 9 §29.15 .......................................................................................................................................... 48 § 29.15(g)(2) ................................................................................................................................ 10 § 31.22 ............................................................................................................................................ 5 § 31.23 ............................................................................................................................................ 5 §41.03 ............................................................................................................................................ 4 §41.39 ............................................................................................................................................ 4 §41.42 ............................................................................................................................................ 4
Article 31 ....................................................................................................................................... 4
Social Services Law ("SSL") § 460 ............................................................................................................................................ 83 § 460-a ........................................................................................................................................ 83 § 461-a(2)(a) .................................................................................................................................. 2
State Regulations
14 NYCRR Part 551 ...................................................................................................................... 5 14 NYCRR § 575 ........................................................................................................................... 4 14 NYCRR § 587 ........................................................................................................................... 4 14 NYCRR § 587.10(d) ................................................................................................................. 5
18 NYCRR § 485.2(b) ................................................................................................................... 2 18 NYCRR § 485.2(c-f) ................................................................................................................. 2 18 NYCRR § 485.2(h-j) ................................................................................................................. 3 18 NYCRR § 485.4(b)(5-6) ........................................................................................................... 3 18 NYCRR § 485.6 ........................................................................................................................ 2 18 NYCRR § 485.5(j) .................................................................................................................... 3 18 NYCRR § 485.9 ........................................................................................................................ 3 18 NYCRR § 486.4 ........................................................................................................................ 3

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 11 of 95 18 NYCRR § 487.2(a) ................................................................................................................... 2 18 NYCRR § 487.5(a)(3)(xii) ...................................................................................... 3, 12,53,61 18 NYCRR § 487.7(b) ................................................................................................................... 4 18 NYCRR § 487.7(g) ................................................................................................................... 4 18 NYCRR § 487.7(h) ................................................................................................................... 4
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Preliminary Statement This memorandum of law is respectfully submitted on behalf of defendants, the Governor of the State of New York, the Commissioners of Health and Mental Health, and the Department of Health and the Office of Mental Health, in support of their motion for summary judgment. In this action, Disability Advocates, Inc., an organization purportedly suing on behalf of at least 2,000 residents of privately owned and operated adult homes in New York City, claims that the State agencies are discriminating against these residents on the basis of their mental disability, in violation of the Americans with Disability Act and the Rehabilitation Act. Specifically, plaintiff alleges that residents who live in adult homes that have over 120 beds and more than 25% or 25 residents with mental disabilities are not in the most integrated setting appropriate to their needs, and that defendants have discriminated against them by "failing to take adequate measures to redress continued poor conditions in ... adult homes [serving individuals with mental disabilities] that, upon information and belief, they do not tolerate in adult homes that primarily serve individuals with physical disabilities." Plaintiffs complaint is based on alleged conditions in these private homes and the conduct of the staff of these private homes. This case is therefore nothing more than a tortured attempt to transfonn some alleged problems with the quality or effectiveness of services at some adult homes into a claim of disability discrimination by the State. While the State agency defendants ha\e long been committed to ensuring good conditions and services for adult home residents and have vigorously enforced the law where appropriate, the issues cited in the complaint simply do not constitute disability discrimination. Moreover, the undisputed evidence will show that adult home residents are living in integrated settings, as they are free to come and go from the facllity, and many do so regularly and are actively involved m their surrounding communities. The fundamental deficiencies in plaintiff's case are further demonstrated by the fact that plaintiff has failed to come forward with any acceptable proof lhat a smgle resident is

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"qualified" to live in the alternative housing that plaintiff apparently seeks on their behalf. Finally, even assuming plaintiffs claims are not fatally flawed for these reasons, to require New York State to allocate thousands of units of more expensive housing exclusively for adult home

residents would fundamentally alter the State's programs, services and activities, and would unfairly re-direct scarce resources to this one group, to the detriment of the many other groups of individuals with mental disabilities who desperately need this housing.

Statement of Facts

I.

Statutory and Regulatory Framework Governing Adult Homes and Relevant

Aspects of the Mental Health System

A. Adult Homes

Adult homes, one of five types of adult care facilities ("ACFs") licensed by the State of New York, are authorized to provide "long-term residential care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the operator." 18 NYCRR §

485.2(b),487.2(a).' The homes at issue in this action are operated by private individuals or entities. Adult homes are residences, not medical facilities, providing rooms (often shared by two persons, but sometimes occupied by one person), meals, housekeeping and laundry services, assistance with self-administration of medications, and some assistance with personal needs such
'1 as grooming and dressing. There is 24 hour staff on site. Affidavit of Mary E. Hart 7.
The Department of Health does not own or operate the homes, but serves as a licensing and oversight agency. DOH issues operating certificates for adult homes, in the course of which it reviews whether the proposed operator has the character and competence to operate a facility. Id. § 485.6. Once a certificate is granted, DOH conducts at least one unannounced full inspection every 18 or 12 months, depending on the facility's record. Social Services Law §

I The other types of ACFs are emiched housing programs, residences for adults, shelters for adults, and family-type homes for adults. ld. 485.2 (c - f).
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461-a(2)(a). DOH then issues an inspection report, and the facility is required to correct any violations or submit a plan of correction describing how it will correct the violations. 18 NYCRR §486.2(h-j). DOH may bring enforcement proceedings to assess civil fines, or to suspend, modify, limit or revoke an operating certificate. Id. §486.4. For most violations, no enforcement action may be taken if the facility corrects the violations within 30 days. DOH also has the authority to seek appointment of a receiver to take over operation of the facility, id. § 485.9, and to temporarily suspend an operating certificate or order that conditions be immediately remedied when residents are in imminent danger. Id. § 486.4 (b) (5-6). DOH operates a complaint hotline, and investigates complaints about adult homes. Finally, in the event that an operator elects to close an adult home, the operator must submit a closure plan to DOH for its approval. Id. § 485.5(j). DOH oversees the closure to ensure the continuation of adequate services pending closure and the safe and orderly transition of residents to alternative settings. Hart Aff. ~'137-38.
State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, and physical and environmental standards. For example. the regulations provide that residents have the right to private written and verbal communications with anyone of their choice, to manage their own financial affairs, to organize with other residents or individuals to work for improvements in adult homes, and to present grievances without fear of reprisal. 18 NYCRR § 487.5. In particular, residents have the right to "leave and return to the facility and grounds at reasonable hours." Id. ~ 487.5(a)(3)(xii).
Adult homes are required to provide case management services "as are necessary to support the resident in maintaining independence of function and personal choice," including "assisting each resident to maintain family and community ties and to develop new ones, encouraging resident partiCIpation in facility and community activities" and "assisting residents
..,
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in need of alternative living arrangements to make and execute sound discharge or transfer plans." Id. § 487.7(g). Adult homes are also obligated to provide a program of activities in the facility as well as in the community, and must "arrange for resident participation in communitybased and community-sponsored activities." Id. § 487.7(h).

In adult homes in which at least 25 percent of the residents or 25 residents, whichever is less, have mental disabilities, often referred to as "impacted" homes, the home must ensure that

the residents are linked to appropriate mental health services by entering into a written agreement with a provider of mental health services "for assistance with the assessment of mental health needs, the supervision of general mental health care and the provision of related case management services for those residents enrolled in mental health programs." Id. § 487.7(b). Many homes have mental health clinics or continuing day treatment programs operating on-site, but many residents also receive services or attend programs elsewhere.

B. Mental Health Services Available to Adult Home Residents

For decades, New York State has established and supported a wide array of community

support services, including continuing day treatment programs, clinics, family support services

and programs, supported employment, sheltered work programs, clubhouses, and other programs

intended to enable individuals with mental illness to function in the community. See generally

MHL §§ 41.03 (defining community support services); 41.42 (family support programs); 41.39

(vocational programs and sheltered workshops).

14 NYCRR §§ 575, 587.

Pursuant to Article 31 of the New York State Mental Hygiene Law, OMH has the

authority and the responsibility to set standards for the quality of the programs that provide mental health services. The standards governing the operations of the programs are contained In various sections ofTitIe 14 ofthe NYCRR. A provider of services is required to obtain an operating certificate (license) issued by OMH prior to the operation of such a program. MHL

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§§ 31.22,31.23; 14 NYCRR Part 551. OMH is then responsible for ensuring compliance with standards and detennining whether to renew the providers' certificates. OMH periodically reviews the mental health providers using "Tiered Certification" which is a licensing method based on site visits, perfonnance criteria, scoring guidelines, compliance history and a unifonn process for notification and sanctions. See Affidavit of James B. McQuide; Affidavit of Robert Myers '1'1120-24; Deposition of Robert Abel at 46-53. One area considered when a mental health provider's certificate is being reviewed is whether the provider has discussed housing goals with the adult home resident, including whether he or she wants to move to alternative housing. "It is my expectation that every primary therapist brings up the topic of how they [adult home resident] like where they are living. Have they thought of other possibilities? Did they ever want to live in another venue?" Abel Dep. at 102. also Affidavit of Joseph J. Reilly ~'I 25-29; Abel Dep. at 103-109.
OMH's community support services are available for all individuals with mental illness, including residents of adult homes. See Myers Aff, 4111411135, 98-99, ]04-05, 116, 133; Affidavit of
Keith Simons ~ 39; Affidavit of Jonas Waizer, Ph.D. '1'1 53-55. Most such services are provided
by non-profit mental health providers, certified by OMH, although some adult home residents recelve services by continuing day treatment programs and clinics operated by State Psychiatric Centers. Under governing regulations, 14 NYCRR § 587.10(d), continuing day treatment programs ("CDTs") are required to offer the following services, among others: Medication education, rehabilitation read mess development, and psychiatric rehabilitation readiness determination and referral. See Reilly Aff. ~ 33. Many of the programs attended by adult home residents teach or reinforce skills that foster independence, such as grooming, medication education, vocational training, money management or budgeting classes, computer skills,
5

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shopping, cooking and GED classes.2 The mental health providers work with the residents to create personalized, goal-oriented
treatment plans involving specific social, employment, educational or other goals, which may include moving to another type of housing. See 14 NYCRR §§ 587.4,587.8. The mental health providers also inform residents about alternative housing options consistent with their needs and desires, including supported housing options and other housing programs for persons with mental illness.3 To the extent that a resident's goal is to move out of adult homes, he or she can discuss that goal with mental health providers. The providers will assist residents who are interested in moving to alternative housing by, among other things, completing the forms that are
necessary for such a move:l See Affidavit of Jan Tacoronti '1'1 31-34.
C. Housing for Persons with Mental III ness 'i OMH licenses and funds a variety of housing and has long been committed to developing additional housing. OMH works with not-for-profit organizatIOns to develop housing units for persons with serious and persistent mental illness ("SPMI"). Through a request for proposal ("RFP") process, OMH provides development, capital and operating funding to not-for-profit sponsors to create opportunities for persons with mental illness to access a range of quality, affordable housing. OMH funds a variety ofhcensed residential programs, which have a range of rehabilitative services. OMH also funds unlicensed supponed housing through a subsidy to cover rent and minimal services. The different types ofhollsing vary in their costs and in the

2Bear 24-29; Levine 32-34. Lockhart 88; Rosado 108-13, 15()-(lO. f\ffidavits will be cited by the WItness's nClme and "Aff,; _," Depositions. whIch are attached to the declaratIons of Scott 1. Spiegelman, will be cited by the \\Itnc'ss's name and page number or by "Dep. at ... Adult home reSidents are referred to by initial.

:;Bear 53·54; Levine 31-32.181; Lockhart 25-28, 48·50.181-82.

-ILevme 72-74; Lockhart

\90-191; Waizer Aff '1'1 66-6;

'Any and all types of housing funded or licensed by OMH WIll be re!erred to as "Housing for Persons with l\kIIIaI Illness" or "Housing ProgrClms".

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services provided. Licensed Housing Programs include: 1) congregate treatment programs,

commonly referred to as group homes or supervised community residences, 2) apartment

treatment programs and 3) community residence-single room occupancy ("CR-SRO"s)

programs.

Affidavit of Michael Newman & Exs. C, I, J.

Congregate treatment or group homes are transitional, rehabilitative programs. They are

single-site facilities for up to 48 individuals, and are highly structured, providing three meals a

day, as well as on-site rehabilitative services and 24 hour staff coverage. OMH provides the

highest level of service funding for this type of housing. Apartment treatment programs provide

transitional housing in shared apartments which usually house two to four people. Apartment

Treatment sites can be scattered-site units or may occupy the entire building - i.e., the rest of the

building also houses individuals with mental illnesses. In apartment treatment, residents usually

do their own cooking and other household chores such as shopping, cleaning and laundry, and

they receive variable levels of supervision based on their individual needs. CR-SRO programs

provide extended stay housing in which residents have their own rooms designed as studio

apartments or as suites with single bedrooms around shared living spaces. CR-SROs are usually

located in one building and may have up to 100 beds. There is 24 hour front desk security, and

required services are provided on-site (i.e., case management, life skills training). The services

provided are fewer than those provided in congregate treatment or apartment treatment. See

Affidavit of Christine Madan '1'16-10; Newman Aff. '1'128-33; Ex. Tacoronti-B. Many HOllsing

Programs have admission criteria specifying, for example, a required period of sobriety prior to

admission. Many also have "house rules" covering a number of subjects, such as curfews and

visiting hours. Madan Aff.,1 12 & Exs. A&B; Bear Dep. at 96 & Exs. 9, 11.

OMH also funds supported housing, which is not hcensed by OMH. Supported housing

is the least expensive type of housing and offers far fewer services than licensed Housing

7

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Programs. This housing is designed for the most independent individuals, who need only minimal support. The types of supported housing include (l) single site housing (such as single room occupancy (SP-SRO) or single site apartments); and (2) scattered-site housing. Single site supported housing is similar to SROs in that there are a number of apartments within one building, all occupied by persons with SPMI. For scattered-site supported housing, the nonprofit provider rents apartments in various buildings throughout the community. There is no staff in the apartment and there are no on-site programs in this type of housing. Supported housing is designed for individuals who are capable ofliving independently and taking care of their personal needs with minimal support. Newman Aff. ~ 38 & Exs. H & J at 4. The services which are included "with" the housing, and part of the same funding stream, are primarily housingrelated services designed to make sure the person is abJe to stay in the apartment, such as negotiating issues with the landlord and assisting the person to navigate in the community. A scattered-site supported housing resident would typically be visited by a staff person only a few times per month, and possibly only once a month. Madan Aff. ~ 10; Bear Dep. at 108. As in all HOllsing Programs, other services, sllch as mental health and medical treatment, are provided and funded separately.
Over the years, OMH has devoted increasingly large amounts of funding to developing HOllsing for Persons with Mental lllness. For example, since 1995, OMH funded housing has expanded from 18,940 units to more than 26,700 units in 2003. This represents more than a 67% increase. And, OMH is strongly committed to the development of additional units of HOllsing tor Persons with Mental Illness. For example, in the 2003-2004 budget OMH's appropriation of $65 million of capital funds will be used to develop 600 beds. Newman Aff. ~ 19. In the 20042005 budget, OMH budget received $75 million dollars to develop a number of beds. Id.'1 20.
Individuals with mental illness seeking Housing for Persons With Mental Illness must
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apply by submitting an application, referred to as the HRA 2000, to the New York City Human Resources Administration ("HRA"). The HRA 2000 is accompanied by other documents including a comprehensive Psychosocial and a current Psychiatric Summary. HRA reviews each application and determines if an individual is eligible and, if so, for what level of housing.
OMH allocated funding for a Single Point of Access ("SPOA") system to identify, prioritize, and address individual case management and housing needs, particularly for difficult to serve clients. The main goals of SPOA are to improve the coordination of housing placement, and assure access to, and use of, appropriate services. Myers Aff. '152. SPOA also seeks to collect data on applicants and the application process.
In New York City, SPOA uses a database created by the Center for Urban Community Services (CUCS). The database includes information about the services offered by the housing programs, as well as intake criteria and the residence niles and requirements. CUCS also maintains a list of vacancies in the various Housing Programs. Myers Aff. ~ 175. Although an application may be submitted directly to HRA without going through CUCS, if the application is sent to CUCS, CUCS will set IIp at least three interviews with housing providers for the applicant.
D. State Psychiatric Centers The New York State Office of Mental Health operates 19 State adult psychiatric centers, three of which serve forensic patients. Over the last forty years, the census in the state psychiatric centers has decreased, as the emphasis on recovery in the community increases. Myers Aff. ~~ 152-56. During the 1950s, New York State Psychiatric Centers operated with a total inpatient census of approximately 93,000. By 1998, the inpatient census had fallen to 5,309. Currently, the 16 non-forensic adult psychiatric centers, most of which are located on large campuses with high security, have a total inpatient cenSHS ofless than 4,200. Affidavit of
9

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 21 of 95
Lewis Campbell "1 9-10 & Ex. A at 9-10.
Unlike adult homes, in a psychiatric center, a patients' activities are highly structured and movements are closely monitored. For example, a patient's ability to access different parts of the hospital and its grounds, as well as the community outside of the hospital, are tightly controlled according to the level of privileges a patient has attained. Upon admission and on an ongoing basis thereafter, patients are assessed to determine their appropriate privilege level. The granting of privileges is individualized, as determined by the facility's clinical staff. Each psychiatric center has implemented its own facility wide system for establishing privileges for
'1 ] patients. See Campbell Aff. 2 & Exs. B-D. For example, at Bronx Psychiatric Center, some
patients may be restricted to the ward if they are acutely suicidal, dangerous to others, recently admitted under the Criminal Procedure Law ("CPL"), or a serious elopement risk. See Ex. Campbell-B at 2. Patients may receive increased privileges, including permission to attend "inbuilding" scheduled activities without an escort. Patients may then receive out-of-building privileges, which would permit them to leave the premises unescorted for a specified period of
time. Campbell Aff. '113. Moreover, in marked contrast to adult homes, even a voluntary
patient must give notice of his or her intent to leave the hospital, and the patient is not released if
clinical staff determines that the patient needs hospitalization. Campbell Aff. '115.
The discharge planning process is a critical aspect of patient care, which begins at admission and continues throughout the patient's stay. From the day of admission a patient's independent living skills are evaluated along with a plan for community re-integration. The psychiatrists, psychologists, social workers, nurses, and rehabilitation specialists and all other professionals involved in the patient's care examine the strengths and limitations of a patient's ability to perform activities of daily living (ADLs), home management skills, and leisure and recreational skills, as well as his or her ability to transfer these skills to a community setting and
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function independently. Discharge planning requires a written service plan that addresses many of the patients' needs including, but not limited to, a recommendation of the type of residence in which the patient should live and a list of services available to the patient in such residence. MHL 29.15(g)(2). Patients discharged from psychiatric centers are not pennitted to be referred to any Adult Home that is on the DOH "Do Not Refer" list. Discharges to Adult Homes from NYS State Hospitals and Transitional Living Residences in the New York City area declined from 527 in 1995 to only 58 in 2005. The percent of Adult Home discharges has declined from about 1] percent in 1995 to less than four percent in 2005. Campbell Aff. ~'21 & Ex. 0. II. Undisputed Facts Concerning New York City Adult Homes
A. Adult Homes Adult Home Residents Move To The Homes From A Variety of Settings
Adult home residents come to live in adult homes from a wide variety of venues. Many corne from private hospitals, the New York City shelter system, other adult homes or other types of housing, or from their families' homes. Burstein Dep. at 108-10; Younger Dep. at 117. Contrary to the allegations in the Complaint, in recent years only a very small percentage of residents have been referred from State Psychiatric Centers. In fact, since 2003, less than 5% of the patients discharged from New York City area State hospitals have gone to adult homes. Campbell Aff. " 21 & O.
2. Adult Home Residents Are Part of The Community Adult homes are located in the communIty in residential areas, close to stores, restaurants, religious institutions, libraries, parks and/or beaches and boardwalks, and public transportation. 6 Residents are free to come and go from the home as they please, subject to

6 Burstein 9-10: DavIs 107-09; Mendel 18-19, 75: Yunger 23,39-41; P.B. 51-53; P.e. 96-98; L.G. 15,21,

S.B. 19, 130-1 R.H ~4·41. 79-81; e.H. 82-83; L.G. 171·72; L.H. 52·54; G.H. 152-55; CH 64-65.72-73; B.J.

51 . LK. 45,61-63.68. (.I L. 49-56, 68-72; TM. 30-32: A.M. 56-57, 59, 67-71, 83-84; 1.'v1. 45-47.

61-62;

11

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reasonable limitations in some homes, such as nighttime curfews after which doors are locked and residents must be admitted by a staff member at the front desk area.7 The undisputed evidence in this case shows that residents do in fact take advantage of opportunities to enjoy the benefits of living in New York City. As further described infra, each of the eighteen residents deposed in this case testified that he or she regularly leaves the home and visits shops, parks, restaurants, entertainment facilities, and/or other neighborhood conveniences.8 Residents also walk around the neighborhoods where they live,9 attend services at local religious institutions, 10 take GED classes, II use public transportation on a regular basis,12 and visit their families and friends, sometimes staying ovemight.13 Some residents have jobs or volunteer their time,'4 vote

D.N. 14-19,32,36-38,68-69; S.P. 13-14; D.W. 25.
7 18 NYCRR ~ 487.5(a)(3)(xii); Burstein 18-20; Davis 34-35; Mendel 23-24; Yunger 59; P.B. 64, 66; S.B. 84-85; M.B. 35, 98-99,166-67; L.G. 90-91; G,H, 164-167; R.H, 113, 151; L.H. 75-76; eH, 103; LK. 85; G.L. 100; T.M. 54-55,104; AM, 157, 185; D,N. 169-170; S,P, 58-59; D.W, 75; Lockhart 134-35,

8 P.B, SO-53, 57-58, 148; S.B. 11-25; M,B. 40-50,103-112; p.e 38-39, 95-98; L.G, 14-18,20-26; RH, 33-41,66,80-82,123-24; L.H. 49-50,117-118; G,H, 77-83, 97-99,130-45; eH, 14, 18-22, SO, 53-54, 57-67, 7275; LK, 44-46, 62-67; B.1. 53- 58; G,L. 33-34, 49-56, 68-73; A,M. 56-57, 59-60, 64-73; J.M, 44-51, 54-58, 68-70; T.M, 31. 41,45-48; D.N. 14-19, 31-38, 73-75; S,P, 8-12; D. W, 30-32, 156-158; see also Burstein 45-46, 56-57, 106; Mendel 51, 97; Yunger 22-23, 39-41; cf. Davis 106-07,

9 S.B. 1L 16-17; L.H, 49; G.H. 144-45; LK. 60; AM, 82; 1.M. 57-58, 70-71; T.M. 31; D.N, 14-16; S.P,5758; DW, 30,
10 P,B, 58; R,H, 124-26; eH, 16-17; AM, 56-57; J.M, 34-35, 51-52; D,N, 19-23: see also G.B. 115; LK, 47; DW, 153; Burstein 85-86; Yunger 91.

11 BJ, 19-20; Burstein 85-87.

12 P,B. 56-57; S.B. IS, 18-20; M,B. 35-37; p,c, 98; L.G. 16-17, 135-36; RH, 81-82; G,H, 97-99,142,15455; L.B. 54-55: eH, 13,22-24,83; BJ, 51-52. LK, 16,68-69; G.L 9, 11,33: T,M, 32-33.78-79; A.M. 84-86: 1.M, 24-25, 61; D,N, 26. 68-69; S,P. 13-16; Burstein 89-90: Mendel 77; cf. D,W, 25-27,

13 P,B 108-09,133-34; S,B.56-57; M.B. 94-95; L.G, 14-15,25-31.135-36: G,H, 115-20; L.H, 54-55, 93-

94; LK, 56-58,71; BJ, 50-52; G.L. 34-35, 48-49.134-35; T.M, 79-80; AM, 61,79-80; 1,M, 104-07; D,N, 26-27,

29-31, 61, 254; S,P, 55. 67-68; D, W, 25, 26-28. 1

181; Burstein 51-52; Davis 109-110;

eH, SO-54,

14 S,B. 40; G.L 78-79; A.M, 144-45; S,P, 15, 16,29-35; Burstein 45. 82-84; DaVIS 110; Rosado 16668,

12

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 24 of 95

at polling stations,15 and/or become acquainted with people who live in the neighborhood. 16 3. Mental Health Providers Offer Recovery-Oriented Services To Residents Although the quality or effectiveness of programs is not covered by the ADA, mental
health providers offer many recovery-oriented, rehabilitative services for adult home residents who have mental illnesses, including mental health clinics, continuing day treatment programs ("CDTs"), and case management services. l7 These programs aim to assist residents to become more independent, and where appropriate, to move to alternative settings. 18 Many, if not most, adult home residents with mental illness participate in mental health clinics or CDTs, generally several times per week. 19 At Park Inn, for example, a home that has 181 residents, approximately 140 residents attend on-site clinics and an additional 30 residents attend an off-site CDT.20
Mental health providers offer programs to teach or reinforce skills that foster independence, such as grooming, medication education, vocational training, money management or budgeting classes, computer skills, cooking, and GED c1asses.21 Clinics also provide socialization programs, which aim to remove the obstacles to communicating with others.n At New Horizon's CDT, residents learn budgeting, shopping, and work-related skills through an on-

15 G.H. 145-46; R.H. 127-28; IX. 60; G.L 57.
16 MB 97-102; P.e. 100-03; A.M. 79-80; 1.M. 64-67; D.W. 29-30, 51.

Davis 198-99; see also LH.

17 Myers 38-49; Bienstock Aff.,; 7; Bear 49-52; Lockhart 18.

18 Bienstock Aff. ~ 3, Ex. B; Levine 162-67; see also Rosado 160-61.

19 See Bienstock Aff. ~.l 3, 5; Burstein 53-61, Yunger 99-103. 105-06.

Bear 23,3 Levine 29-30; =-=.;.;= Davis 73-77; Mendel

20 Burstem 8, 53-54. 21 Bienstock Aff ~ 5; Bear 24-29,34-37, 126-27: Levine

162-167.

22 LevlIle 29, 170.

13

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 25 of 95
site thrift shop that is run and staffed by the residents.23 New York Psychotherapy's CDT offers similar programs for learning job skills, computers (including the Internet), and cooking; the CDT also offers a group in which clients who have moved from adult homes to various Housing Programs discuss their experiences with adult homes residents. 24
Mental health providers take residents on organized excursions to libraries, amusement parks, bowling alleys, stores, parks, neighborhood athletic centers, and restaurants.25 In addition, mental health providers link residents with services in the community, including educational and vocational opportunities, and medical or dental needs. 26 Case managers also assist residents with budgeting and connecting with their families. 27 Residents acknowledge that these services are effective, including C.H., who testified that "they [Federation of Organizations] got the people who don't want to do nothing with themselves come in[toJ groups and get involved. That's the only reason why I wouldn't cast judgment at them, because they're very successful toO."2R
Even residents who do not use the services of mental health providers find that adult homes have made them more self-reliant and content with themselves. B.J., a resident at Brooklyn Manor, testified that since living in Brooklyn Manor she "came a long way" because her health has stabilized, she has not been admitted to a psychiatric hospital, she has learned
:'~ Bienstock Aff. ~ 3. 2~ G.I-L 29-60, 70-73; A.M. 11-27; Rosado 108-13, 156-60. 25 Bienstock Aff. ~ 5; Bear 40-4 L Levine 34-35; Lockhart 88; Mende! (JO-61; G.H. 41-46; C.H. 40-41, 4348; G.L. 44-47~ A.M. 24-26; D.N. 39, 49-51: S.B. 25-30, 38: B~J. 43 ..44; S.P. 22-23. 26 Lockhart 17-25. 27 Levine 31-32; Lockhart 18-24. 2X ell. 43.
14

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 26 of 95
social skills, studies the Bible, and practices the piano.29 BJ. testified that there is no other place she would rather live now, that living in the home "really has been an asset to me," and that adult homes are the "[b]est thing that can ever happen to mental patients.,,3o
4. Mental Health Providers Assist Qualified Adult Home Residents To Move From Adult Homes
If a resident wishes to move, the mental health providers should discuss alternative housing options consistent with the client's needs and desires, including supported housing and other Housing Programs.3l Residents testified that they discuss any desires to move out of adult homes with their mental health providers.32 When appropriate, mental health providers (or others) assist residents who are interested in Housing Programs by, among other things, completing HRA 2000 applications.33 In fact, from 2000 to Jan. 2006 HRA received 807 applications from adult home residents. Ex. Hathaway-R. Some providers also help residents find housing that is not specifically designed for persons with mental illnesses. Federation of Organizations, [or example, has assisted residents review classified advertisements, visited potential apartments with residents, provided security deposits, and helped residents furnish their apartments. 34
5. Residents Move From Adult Homes The evidence in this case also shows that residents who clearly desire and are qualified to
29 B.J. 31-34.46-48. 30 B.J. 32-34, 92-93.
-I 31 Bienstock AfC 6; Bear 53-54; Levine 31-32. 181; Lockhart 25-28, 48-50, 181-82.
32 M.B. 116-21; S.B. 97; P.c. 190-91; L.G. 105-08, 171; B.l. 42-43; G.L 102-03, 111-20, 124; A.M. 12728; D.N. 139-40; S.P. 99-101, 106-07; D.W. 142-44.
33 Levine 72-74; Lockhart 25-26, 190-91; see also G.H. 182; Burstein 127-30; Mendel 64-65.
34 Lockhart 27. 49; see also B.J. 41. 15

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move from the adult homes do, in fact, move to alternative settings, including Housing For Persons with Mental Illness, private residences, and family members' homes. In fact, since April, 2005, approximately 200 residents state-wide have moved to housing licensed or funded by OMH. Reilly Aff. '1129. Among the eighteen residents deposed in this case (sixteen of whom had been designated by DAI as potential witnesses),35 four had moved out of the adult homes by January 2006,36 one additional resident had firm plans to move to a family friend's home in Pennsylvania within two months/7 and another resident had left the home in 2004 to live with friends in Georgia, but after two years away, returned to the home.38 Ofthe four former residents who had moved out of their adult homes by January 2006, two had moved to housing funded by OMH,39 and two others to private residences.4o Residents also testified that they knew other residents who had moved from the adult homes.41 Adult home operators similarly testified that residents move from the adult homes to alternative settings.42 In addition, mental health providers testified that residents move from adult homes to alternative settings, and that they will

Nineteen residents were deposed, but during the deposition ofD.A., D.A.'s counsel asked to adjourn the proceedings because counsel was concerned that D.A. did not understand the questions being asked. D.A.'s testimony has not been Cited in this brief.

36 M.B. 10-12: Pc. 15; A.M. 6-7; 1.M. 7.

37 D.N. 59-62.

38 C.H. 9-10.118-21.

39 A.M. 6-7; Pc. 15.

40 .\i.B. 10- I2; 1.\1. 7.

-II See,~. Pc. 162-63; L.G. 170-71; G.B. 55; R.H. 153-55; L.B. 131; LK. 153-55: G.L. 107-111; T.M.
119; J.M. 149-51; AM. 166-67; D.N. 165-68; S.P. 114-15.

42 Burstein 69-7~.74-78; 112-13. 1

Davis 88-99; Mendel 68-72; Yunger 120-48.

16

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 28 of 95
provide assistance in doing SO.43 Indeed, Francis Lockhart, an Associate Director of Programs at Federation of Organizations, testified that she was unaware of any residents who had submitted HRA applications, been deemed appropriate to move, and did not move because of a lack of spaces available.44 Finally, the records provided by adult homes and mental health providers showed that some residents identified by DAI's experts as being qualified to move had moved to various locations, including Housing For Persons with Mental Illness.45
B. DOH's Inspections and Enforcement Actions Against New York City Adult Homes
DOH has a rigorous program of inspection of adult homes and enforcement activities, and contrary to the allegations of the complaint, the undisputed evidence shows that the Department has not failed to take strong action against the large, impacted adult homes that are the focus of this lawsuit. Homes with the best inspection records are to be surveyed every 18 months, and other homes are to be inspected every 12 months. In recent years, DOH has taken a number of actions to strengthen and improve its inspections and enforcement activities. For example, it has increased its staff in the Metropolitan Area Regional Office ("MARO") by contracting with the New York City Health Services Review Organization ("NYCHSRO"). This has added approximately 20 additional staff who are available to conduct inspections. Hart Af( ~ 58. The timeliness of inspections has significantly improved in recent years. Id. In addition, regulations adopted in 2002 permit DOH to assess fines immediately for the more serious violations, those which endanger residents (known as endangem1ent violations). Affidavit of David V. Wollner
43 Bienstock ~: 6: Bear 20-21,52-53; Lockhart 26-28. 44 Lockhart 131-32. 45 See. e.g., Hathaway Aff. Exs. G-K (attachmg records concerning R.I., C.S. (Discharged to Supportive Apartment); P.E. (Mo\ed to Oregon); MK (Moved in WIth family JG2569); I.M. (Discharged to Apartment Program).
17

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~ 57. Inspections of the homes at issue in this case have cited a number of violations related to
residents' rights and residents' ability to participate in their surrounding community and to learn independent living skills. For example, homes have been cited for failure to follow through on a resident's expressed desire to move, to have a sufficient program of activities, to allow residents to self-administer their own medications, and to ensure that the resident council met on a regular basis and that the issues raised by the council were addressed. Hart Aff. ~" 64-73.
Strong enforcement actions have resulted in the closure and/or re-opening under new operators of a number of the most problematic, large impacted homes, including two ofthose listed in the complaint. For example, a number of enforcement actions were broUght against Brooklyn Manor. Unfortunately, many of the charges were dismissed by the ALJ presiding over the administrative hearings, and the ALJ declined to revoke Brooklyn Manor's operating certificate. Nonetheless, through negotiations facilitated by DOH officials, undoubtedly advanced by the prospect of further enforcement actions, the operator agreed to sell the facility to a new operator, Leon Hofman, who had a history of successfully transfonning another problematic home, the Leben Home. An operating certificate was issued for the opening of the new Brooklyn Adult Care Center on August 17,2006. Hart. Aff. ,r,\90-98 & SS.
Ocean House Center closed as of January 2007 as a result of coordinated efforts by the Office of the Attorney General, the District Attorney of New York County, and DOH. The Leben Home's operating certificate was suspended pursuant to settlement of an enforcement action, and the home was sold and re-opened as the Queens Adult Care Center in 2002. Seaport
Manor closed in early 2003 pursuant to a stipulation with DOH. Hart Afr. '1'1 74-89.
Thus, the undisputed evidence shows that, contrary to implications in the complaint that DOH has ignored or tolerated violations in large, impacted homes, DOH has devoted more
18

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 30 of 95
resources to oversight of those homes, and has conducted rigorous inspections of those homes and taken stronger enforcement actions against those homes than against other homes. In fact, the average number ofviolations46 cited by MARO in impacted homes in 2004-2006 was 7.6, 6.31 and 6.34, compared to 5.31, 5.71, and 4.68 in non-impacted homes. Ex. Hart-UU. Most significantly, of all enforcement penalties imposed by MARO from 2000 to 2007, only two have been against non-impacted homes. By contrast, 15 have been imposed against impacted homes. Ex. Hart-VV.
C. The State Has Taken Many Steps to Improve the Oversight of Adult Homes and The Conditions And Services for Residents
While numerous State agencies have long been dedicated to rigorous oversight of adult homes and to improving the conditions, services and quality of life for adult home residents, a number of initiatives in recent years have been specifically designed to enhance residents' opportunities for recovery from their mental illness and to make progress toward their individual goals in any number of areas, including education, employment, socialization, independence, or
'1'; finding alternative housing. Hart Aff. 'I~ 46-63; Reilly Aff. 19-31. Residents have
acknowledged that these steps have improved conditions and the quality oflife for residents. R.H. 130; G.L. 27-29.
1. Inter-Agency Committee on Adult Homes In or about January 0[2001, three agencies involved in oversight of adult homes or mental health programs providing services to adult home residents, OMH, DOH and the Commission on Quality of Care and Advocacy for Persons with Disabilities ("CQC'" formed an inter-agency committee on adult homes to improve coordination and communication among the agencies. A Memorandum of Understanding dated November 200] formalized this coordination.
46 Excluding compliance surveys, those where no violations and no findings were cited.
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Ex. Reilly-A. The agencies developed a mechanism for conducting joint inspections, particularly when issues related to mental health services such as case management or assistance with psychiatric medications were involved. The agencies developed improved ways of sharing information such as inspection reports, and took steps to strengthen the Do Not Refer list, which precludes various covered entities from referring individuals to adult homes that have failed to meet applicable standards. Reilly Aff. ~'11 0 - 12.
2. OMH Adult Home Team In approximately September of 2000, OMH also formed the Adult Home Monitoring Team, made up of staff assigned for the first time to work exclusively on adult home issues. This team has enhanced the oversight of mental health programs providing services to residents onsite in adult homes and off-site. Reilly Aff. ~ 13.
3. Adult Care Facilities Workgroup In the spring of2002, an Adult Care Facilities Workgroup was appointed, made up of a number of private individuals, including mental health and health professionals, advocates for persons with disabilities, mental health service providers, and adult home operators, to review ACF policy and make recommendations to State officials. The Workgroup issued a report in October, 2002, making a number of recommendations for improving services for adult homes, including conducting assessments of residents, the use of independent service coordinators and peers, improving the medication system, and making other housing options available to residents.
Wollner Aff. '1'123 - 26 & Ex. A; Reilly Aff. ,:,114 - 18.
4. Assessments of Adult Home Residents A number of initiatives, many inspired by the Workgroup's recommendations, have been implemented in recent years. DOH contracted with New York Presbyterian Hospital to conduct assessments of adult home residents. These assessments gathered important demographic data
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useful for public policy planning purposes. Where specific medical needs were identified, residents were referred to the adult home staff for care and follow up. Wollner Aff. ~~ 27 - 31. OMH has used the assessments to identify residents who may be interested in moving to alternative housing, and has referred those residents to their private case managers or mental health treatment providers for follow up. Reilly Aff. ~ 31.
5. OMH Case Management & Peer Support Program OMH has instituted a case management and peer support program in adult homes. Through this program, various private non-profit service agencies have been funded to provide case management services and peer support to residents of adult homes. One major goal of this program is to improve the coordination of services. The program is also designed to provide access to a wide variety of services, including housing, and the case managers are expected to and have assisted residents who need or desire alternative housing. To date, this program is
operational in 35 adult homes, including 12 of the homes referred to in this action. Reilly Aff. '1'1
19 - 24.
6. DOH EnAbLE Program DOH has also funded the Enhancing Abilities and Life Experience Program, known as EnAbLE. Under this program, adult homes are awarded grants to fund a variety of programs designed to maximize residents' abilities and improve their quality oflife. Such programs may include vocational or educational programs such as GED classes, health and wellness education, or training on independent living skills, such as through construction of teaching kitchens and laundry rooms where residents can learn cooking and laundry skills through hands-on experience.
Wollner Aff. '1'136 - 38.
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7. Statutory and Regulatory Amendments Various statutory and regulatory changes have also been enacted to strengthen oversight of adult homes and improve conditions. The Do Not Refer list was created on the DOH website and the list of entities which are given notice and which are prohibited from referring individuals to adult homes on the DNR list was expanded. The ability of DOH to use receivers to operate adult homes was strengthened, and adult homes were required to have at least one common room that is air conditioned. Wollner Aff. ~~ 53 - 55. Regulations were enacted that allowed DOH to immediately assess fines for violations that endanger residents, instead of allowing the home 30 days to correct the violation. Wollner Aff. ~ 57. The SSI payments for adult home residents and their PNA has also been significantly increased, making a very concrete improvement in residents' lives and their ability to afford personal items and to travel and participate in activities in the community. Hart Aff. ~163.
8. Enhanced Access to Alternative Housing Residents' ability to access alternative housing has been enhanced in a number of ways. Adult home residents have been added as a target population for housing licensed or funded by OMH, and case managers have been enlisted to assist residents who want to move. The undisputed evidence shows that some adult home residents have in fact moved from adult homes.
Reilly Aff. '1 29.
D. The State's Comprehensive, Effective Olmstead Plan While New York has not published a single document entitled "Olmstead Plan," and is not required to, defendants have a comprehensive, effective Olmstead plan for individuals with mental illness in New York State, including residents of adult homes in New York City. This plan includes: (a) an array of activities, programs and services that defendants are developing and have developed with the intention of assisting all persons with mental disabilities, to the extent

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 34 of 95
possible, to live and receive services in the community instead of an institution (i.e., stateoperated psychiatric hospitals); (b) all of OMH' s planning, program implementation and oversight of the mental health system; (c) DOH's inspection and oversight of adult homes; and (d) the State's Home and Community-Based Waivers program. See,~, Myers Aff. ~'197-149; Affidavit of Keith Simons ~~ 26-107; Wollner Aff. ~'160-65. Through its many components, defendants' Olmstead plan is effective and provides adult homes residents access to a wide range of community based services including, but not limited to, Housing Programs. Myers Aff. ~~ 150-86; Simons Aff. ~~ 56-79.
Much of defendants' Olmstead planning is reflected in OMH's Statewide Comprehensive 5.07 Plans for Mental Health Services. Simons Aff. ~~ 16-111 & Ex. A-F; Myers Aff. ~'197, 103. These Plans summarize OMH's strategic planning for, commitment to, and allocation of extensive resources to community-based treatment, to assist mentally disabled State residents to live in the most integrated setting appropriate to their needs and reach their personal goals. Simons Aff. ~~ 15, 16, 19; Myers Aff'I'197-98. They also summarize OMH's activities and programs that are designed to help adult home residents recover and access Housing for Persons with Mental Illness through a network of mental health professionals. Simons Aff. ~'116-19, 2738,66-79; Myers Aff~'ll 04-05.
I. Delnstitutionalization In accordance with the true mandate of Olmstead, even before that decision was rendered, and indeed, even before the ADA was passed, OMH had taken extensive efforts to ensure that patients in its state operated psychiatric centers, who were determined by state treatment professionals to be qualified to live in the community, were discharged without undue delay into community residential settings with linkages to appropriate supports and treatment. Campbell
'1" Aff. 16-19; Simons Aff. ~'l 80-84 ; Myers Afnl'l 38-51. Between 1994 to 2006, the adult

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 35 of 95
inpatient census at state operated psychiatric centers decreased dramatically, from 10,122 to 5,251. Simons Aff ~~ 82-83; Myers Aff~~ 32, 152. Moreover, OMH has redirected savings from closures of inpatient beds and entire hospitals toward community-based services. Simons Aff. ~ 59; Myers Aff~~ 32-33; Affidavit of Martha Schaefer Hayes ~~ 68-71.
2. Investment in and Vast Network of Community-Based Services Defendants' Olmstead planning also includes the wide array of community-based services which are funded, licensed and/or supported by OMH and which provide community-based treatment and support through a vast network of primarily not-for-profit providers. Myers Aff ~~ 35-59, 145; Simons Aff. '1'139-55. OMH's many community-based programs include but are not limited to Housing Programs for adults and children with mental illness, case management, clinic treatment programs, continuing day treatment programs, psychosocial clubhouses, peer bridger programs, ACT teams and other initiatives. Myers Aff ~~ 68-70, 105; Simons Aff '1'1 39-40,66. These programs are designed to provide individuals with mental illness, including adult horne residents, with services and treatment to help them identify personal goals, and to develop the skills necessary to reach those goals. Myers Aff. ~~ 109-19, 137-44; Simons Aff. 'I~ 28, 34-37,47-48, 66-72. Most importantly, having sufficient community based services allows people to remain in and receive treatment in the community, as opposed to inpatient hospital settings. Myers Aff. '1'1 59, 156; Simons Aff. 'I~ 82-84.
3. OMH's Expansion of and Commitment to Housing for Persons with Mental Illness
OMH's development of as much Housing for Persons with Mental Illness as feasible is another component of defendants' Olmstead plan. While OMH is not a housing agency, it has invested significant funds to develop 29,050 existing units of Housing for Persons with Mental lIIness. Myers Aff. '1,,68-95,109-15; Simons Aff. '1'157-64; Newman Aff. '[~ 14-27, 101; Schaefer Hayes ~~ 13-26. Moreover, defendants' commitment to expand the availability of
24

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Housing Programs for all individuals with SPMI, including adult home residents, is evident from OMH's allocation of tens of millions of dollars for the development of additional beds, which will bring the total number of State-government subsidized beds to 38,800. Myers Aff. ~ 69; Simons Afr. ~~ 57-60; Newman Aff. ~~ 15-27; Schaefer Hayes ~~ 13-26.
4. Adult Home Initiatives and Services Defendants' Olmstead Plan also includes the various initiatives that defendants have undertaken to improve and enhance the services available to residents of adult homes, further discussed supra at 19-22. These include the assessments conducted under contract with the New York Presbyterian Hospital, the adult home case management and peer support programs funded by OMH, the EnAbLE programs funded by DOH, enhanced inspections, and OMH's designation of adult home residents as a target population for Housing Programs. Reilly Aff. ~~ 19-31; Wollner Aff. 'I~ 27-31; Myers Aff. ~~ 128-49.
5. Oversight of System Through Licensing Defendants' Olmstead plan includes OMH's oversight of the mental health system through its licensing processes and oversight of programs and services, which enables defendants to monitor the Olmstead plan to ensure it is effective. See Myers Aff. ~~ 120-24 & Ex. GG; Simons Aff. ~1'198-] 00. Indeed, OMH has granted over 2,500 licenses to the mostly local and not-for-profit providers which typically provide the vast network of community- based services. OMH monitors and improves the quality of services provided by these not-for-profit entities through a number of mechanisms. See,~, Simons '1'1 98-] 00 & Ex. A. Likewise, defendants' Olmstead plan includes DOH's licensure and enforcement of regulations governing adult homes, including those requiring homes to link residents with many enumerated services, including mental health services, and to facilitate interaction with the community. Myers Afr. '197 & Exs. EE, FF; Simmons Ex. A at OMH 6136-38.
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6. Other Aspects of Defendants' Olmstead Plan Additional components of defendants' Olmstead plan include utilization of Home and Community Based Waivers; OMH's strategic planning to ensure quality and use of effective evidence-based practices such as medication management and supported employment; OMH's work to advance accountability and encourage best practices and care coordination, including through information technology; OMH's basic and applied research in the mental health field; and OMH's strategic planning to promote general public health as it relates to mental health,
wellness, suicide prevention, and the forensic system. Myers Aff. '1 30 & Exs. B, D; Simons Aff.
'[~ 85-88 & Exs. A-F. OMH continually evaluates its programs against developments in the
mental health field, with a goal of improving effectiveness. Myers Aff. '1 40; Simons Aff. ~ 15.
OMH is committed to making improvements, and fully expects improvements to continue. Myers Aff. '140; Simons Aff. 'l~ 36-37, 97.
7. Olmstead Planning Efforts Finally, defendants' Olmstead plan includes the State's more formal efforts to ensure compliance with the Olmstead decision, such as through committees, including the statutorily created Most Integrated Setting Coordinating Council, and the Coalition to Promote Community Based Care. Wollner Aff. ~~ 60-65 & Ex. BB; Myers Aff. "'1125-27; Simons Aff. ~ I J 1. E. Cost Comparison: Transfer Would Cost The State More Comparing the costs incurred by the State to fund housing for adult home residents and Housing for Persons with Mental Illness (Housing Programs) establishes that the State pays more per bed for Housing for Persons with Mental I11ness: including Supported Housing, than it does for adult homes. Ex. Kipper-A; Schaefer Hayes Aff. '1'187-97; Myers Aff. ~'1188-200; Newman AIT. ~'I 90-99. This conclusion follows from consideration of the relevant costs to the State, which include the State share of Supplemental Security Income ("SSI"), direct State funding of
26

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 38 of 95

Housing Programs, and the cost of Medicaid services to residents of both types of housing. 1. Adult Home Funding: SSI
The State provides income support to low-income individuals with SPMI through the SSI program. Ex. Kipper-A. The SSI program is managed by the federal Social Security Administration, and is partially federally funded. Ex. Kipper-A. It provides monthly payments to low-income individuals who are 65 or older or disabled. Id. Most of the residents of adult homes at issue in this case rely on SSI funding to cover the cost of their room and board at the
,r adult homes.47 Ex. Kipper-A; Newman '192; Schaefer Hayes 91. In contrast to Housing
Programs, OMH provides no direct funding for room and board for adult homes. Ex. Kipper-A. The State's share of an individual's SSI benefit is dependent on the individual's
residential setting and the location of the residence within the State. Ex. Kipper-A. Table below outlines the five categories of housing and associated payments for individuals residing in New York City as of January 1, 2006. Id. at 4.
Table A-I: New York State Annual SSI Benefit Levels Cbart - New York City Region

Living Arrangement Living Alone Living With Others Congregate Care Level I-Family Care Congregate Care Level II-Residential Care Congregate Care Level III-Enhanced Residential Care

Federal $7,236 $7,236 $7,236 $7,236 S7,236

State $1,044 $276 $3,198 $5,220 $6,300

Total $8,280 $7,512 $10,434 $12,456 $13,536

Adult homes are classified as Congregate Care LevellIl housing. Id. In 2006,48

.jC As of the end of 2004, 14% or the adult home residents relied on private funding to finance their room and board at the adult home. One percent reiJed on other funding sources. Id.
4~ The SSI rates increased slightly III 2007, which changed the ligures to a small degree, Kipper AfC Exs. C & D. but not the conclusion as to which cost is significantly higher. Newman AfC (1 91 & Ex. K.
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individuals with SPMI residing in adult homes in New York City received Congregate Care Level III funding at an annual rate of$13,536 per year, with $7,236 from federal funds, and $6,300 from the State. Id.; Newman Aff. ~ 97.
The resident uses most of the SSI benefit to pay the adult home for room, board, three meals a day, housekeeping, personal care and supervision by 24-hour staff onsite. Ex. Kipper-A; Newman ~ 92; Schaefer Hayes ~ 91. Residents keep a small portion of the SSI benefit as a Personal Needs Allowance ("PNA"). Ex. Kipper-A. In 2006, in New York City, the standard annual PNA for adult home residents was $1,800, or $150 per month. Id.
2. Funding of Housing For Persons With Mental Illness In contrast to adult homes, the largest component of funding for Housing Programs is direct State funding from OMH. Ex. Kipper-A; Newman ~~ 90-92; Schaefer Hayes ~~ 87-89.
a. Supported Housing Supported Housing, in the form of the scattered-site rental apartments is funded directly by OMH and through the individual's income, which often consists only of SS!. Ex. Kipper-A; Newman 'l~ 90-91; Schaefer Hayes ~~ 87-89. Individuals with SPMI residing in Supported Housing receive the SSI Living Alone rate and are required to pay 30% of this payment, i.e. 30% of their income, toward housing costs to the not-for-profit housing provider. Ex. Kipper-A; Newman ~ 91; Schaefer Hayes'l 90. The 2006 annual Living Alone rate was $8,280, the State's share of which was $1,044. Ex. Kipper-A; Newman Aff. 41.91. Additionally, OMH pays the not-for-profit provider a stipend to obtain housing, pay rent for the apartment unit, and provide staffing in the form of minimal case management to reSIdents.
Ex. Kipper-A; Newman '1 57-58; Schaefer Hayes '1 90. For Supported Housing units that existed
prior to 2005 in New York City, OMH currently pays a stipend of $12,770 per year which
'1 includes recent cost of living adjustments. Ex. Kipper-A; Newman 71. For new Supported
28

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Housing units that are being developed in New York City pursuant to OMH's May 2005 RFP, OMH was in 2005 paying a stipend of$13,500 per year. Ex. Kipper-A; Newman,r 67; Schaefer Hayes ~ 29. The current rate is $14,197. Newman Aff. ~ 91.
b. Supportive SRO's and CR-SRO's Supportive SRO's are similarly funded through a combination ofSSI payments to the resident and direct State funding from OMH. Individuals residing in Supported SRO's receive the SSI Living Alone rate and are required to pay 30% of this payment to the housing provider. Ex. Kipper-A. The 2006 annual Living Alone rate was $8,280, the State's share of which was $1,044. Id. CR-SRO's are funded through a combination of SSI payments and direct State funding from OMH. Ex. Kipper-A; Ex. Newman-H. Individuals residing in CR-SRO's receive the SSI Congregate Care Level II rate and are required to pay 30% of this payment toward housing costs to the provider. Ex. Kipper-A. The 2006 annual Congregate Care Level II rate was $12,456, the State's share of which was $5,220. Id. 3. Medicaid Costs The Medicaid program provides health care coverage to individuals with low mcomes. Ex. Kipper-A. Medicaid is funded jointly by the federal, State and local governments, typically with the federal government providing half of the funding. Id. Medicaid-eligible residents of New York, including residents of adult homes and Supported Housing, receive a variety of services. Id. The need and cost for Medicaid services varies depending on an individual's needs. ld.; Schaefer Hayes ~~ 115-18. It is highly speculative to ass Lime that merely moving an individual from one residential setting to another will cause an immediate change in the individual's Medicaid service needs and the State's share of associated Medicaid costs. Id.; Ex. Kipper-B; Myers ~~ 207-10; Schaefer Hayes ~~ 114-23; Lieberman Dep. at 63, 193-94; Ex.
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Saurack-14. While plaintiff contends that the cost analysis should include projected Medicaid savings, such assumptions are speculative, and therefore, properly excluded from the analysis. See Bruggeman v. Blagojevich, 219 F.R.D. 430, 435 (N.D. Ill. 2004)("only the resources available in the [state mental health budget] should be a factor; speculative or potential resources are irrelevant").
4. Plaintiff's Proposed Transfer Would Increase State Costs If the State were required to move thousands of adult home residents to scattered-site Supported Housing apartments, the State's costs would dramatically increase. Because vacancy rates for Housing Programs are low in New York City, placing a large number of individuals in those programs would require development of additional units. Myers Aff. ~~ 209-210; Schaefer Hayes Aff. 'I~ 126, 129. Table A-2 below reflects the annual housing-related cost to the State, as of 2006, for residents in adult homes and residents in Housing Programs (excluding consideration of any potential development or capital costs), along with the annual increase in per resident cost to the State, assuming an individual were to move from an adult home to one of the types of Mental Health Housing. See Kipper Aff., Ex. A. Table A-2: Housing-Related Cost to State of Proposed Transfer from Adult Homes

Housing Type

State Share of SSI

Adult

Supported HOllsing

$1,044

SUPP0l1ive SRO $1,044

CRSRO

L!?,220

Direct State Funding $0 513,500
S 16,269 $15,419

Total

Increase

State Cost in State

Cost

$6,300

N/A

$14,544

S8,244

Cost as a Percent of Adult Home Cost
N/A
231%

$17,313 $20,639

SI1,013 $14,339

275% 328%

Specifically, for each eligible individual who moved from an adult home to scattered-site Supported Housing in 2006 the increased cost to the State would have been $13,500 if only OMH's budget is considered, and $8,244 if the State's contribution to SSI is included. Id.

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Newman Aff. 11 94, 99. This represents a dramatic increase of 231 % in cost to the State. Kipper

Aff. Ex. A. In 2007, the increase to the State would be $7,549 per bed. Schaefer Hayes 197.

This analysis includes consideration of expected relevant savings and is based on

conservative assumptions, assuming that a given adult home resident with SPMI is qualified for

and does not object to transfer to Supported Housing. Jd.; Newman Aff. 194; Myers Aff. 1201.

If instead, the individual lacks sufficient independent living skills to maintain the Supported

Housing residence with minimal case management, and needs an ACT team (which cost OMH

$3,000 to $7,500 per slot previously and has increased), or additional services, then the cost to

the State of the transfer would increase even more. 49 Ex. Kipper-A; Schaefer Hayes Aff. '199;

Myers Aff. ~ 202.

ARGUMENT

I.

Introduction - Standards Governing This Motion

A. Basic Principles of The ADA

Title II of the Americans with Disabilities Act ("ADA"), which applies to public services,

provides that "no qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity." 42 U.S.c. § 12132. To

establish a violation of the ADA, a plaintiff mlLst prove that 1) they are qualified individuals with

a disability, 2) that the defendants are subject to the ADA, and 3) that plaintiff was denied the

opportunity to participate in or benefit from defendants' services, programs, or activities, or was

49 While no individualized housing assessments were conducted of any of plaintiffs proposed constituents, the record shows that for the few whose records contain an indication that they might, with further evaluation, be deemed by Ileannenl professionals to be qualified for and not opposed to moving to Supported Housing (Exs. GellerA & B), It is hkely that most would be determined to require an ACT team to maintain a Supported Housing program bed.
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otherwise discriminated against by defendants, by reason of the plaintiffs disability. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). ADA claims may be brought under any of three theories - intentional discrimination, disparate impact, or failure to make a reasonable accommodation. Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003).50
Title II, as noted, governs only the activities of public entities, which are defined as, inter alia, any State or local government, any department, agency, special purpose district, or other instrumentality ofa State or States or local government. 42 U.S.c. § 12131(1). U.S. Department of Justice ("DOJ") regulations specifically provide, however, that the "programs or activities of entities that are licensed or certified by a public entity [such as adult homes] are not, themselves, covered by this part." 28 CFR § 35.130(b)(6). See also DOJ Technical Assistance Manual ('TAM"), II-3.7200 ("The State is not accountable for discrimination in the employment or other practices ofXYZ company, if those practices are not the result of requirements or policies established by the State.").
Under the ADA, a State must "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination ...," but it need not do so ifit "can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity." 28 CFR § 35.130(b)(7).
While the ADA prohibits discrimination on the basis of disability, it does not guarantee equal results from public programs. Alexander v. Choate, 469 U.S. 287, 304 (1985) (,The Act does not, however, guarantee the handicapped equal results from the provision of state Medicaid"); DO] TAM, II-3.3000 ("The ADA provides for equality of opportunity, but does not guarantee equality of results."). The ADA does not set standards for the quality or efficacy of
50 Because, WIth the exception of "subtle differences" not relevant here, the standards under the ADA and
the Rehabilitation Act are the same, the Rehabilitation Act will not be discussed separately. Hemletta D., 331 F.3d at 272.

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programs, or guarantee that a particular program will be tailored for the needs of a specific individual. See ===...:..:-=:.:.,527 U.S. 581, 603 n. 14 (1999) ("We do not ... hold that the ADA imposes on the States a 'standard of care' for whatever medical services they render, or that the ADA requires States to 'provide a certain level of benefits to individuals with disabilities."'); Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998) (rejecting challenge to VESID services, where plaintiff's "challenge is not illegal discrimination against the disabled, but the substance of the services provided to him through VESID"); Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995); P.e. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990) (The [Rehabilitation] Act does not require all handicapped persons to be provided with identical benefits."); Black v. Dep't of Mental Health, 100 Cal. Rptr. 2d 39 (Ct. App. 2000) (rejecting ADA claim based on an inappropriate placement and the poor quality of treatment). Moreover, the ADA does not require that States provide a new service, program or benefit to the disabled that it currently does not provide to anyone else. Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999); Leocata v. Wilson-Coker, 343 F. Supp. 2d 144 (D. Conn. 2004), affd mem., 2005 U.S.App. LEXIS 19730 (2d Cir. Sept. 13, 2005).
B. Integration In Olmstead, 527 U.S. 581, the plaintiffs, patients in a state hospital, challenged the failure to discharge them to the community. The Court held that "States are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals detennine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." See also 28 CFR § 35.130(d) (HA public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.") DO] has

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 45 of 95

defined the "most integrated setting" as "a setting that enables individuals with disabilities to

interact with non-disabled persons to the fullest extent possible..." 28 CFR Pt. 35, App. A.

A plurality of the Olmstead Court explained that the State may raise a fundamental

alteration defense where it can "show that, in the allocation of available resources, immediate

relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for

the care and treatment of a large and diverse popUlation of persons with mental disabilities." 527

U.S. at 604. Because the State must consider the needs of all of its disabled citizens in allocating

scarce resources, the Court made it clear that courts could not give special preference to

individuals simply because they brought a lawsuit. 527 U.S. at 607 ("a court would have no

warrant effectively to order displacement of persons at the top of the community-based treatment

waiting list by individuals lower down who commenced civil actions.") The Court further stated

that a court could not look solely at the cost of providing relief to just one plaintiff as against the

entire State budget, since such a small expense would virtually never provide a defense. Rather,

a court must consider the cost of providing community-based care to everyone eligible for and

desirous of it.

Plaintiffs attempt to apply Olmstead to this case distorts the Court's decision as well as

the ADA itself beyond recognition. The plaintiffs in Olmstead were in the State's custody in a

State hospital, where State treatment professionals were responsible for their care and discharge

planning. As further discussed in Point II,

to hold the State responsible for seeing that

persons residing in privately owned and operated adult homes are assessed and moved to

different settings when appropriate, expands Title II's coverage of public services far beyond

Congressional intent. Moreover, because the State does not currently offer such assessment and

housing referral services in adult homes (concepts which, in any event, do not apply to these

residences), the relief sought here would fundamentally alter State programs and/or require the

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State to create a new program that it currently does not provide, contrary to fundamental ADA principles. As the DOJ TAM makes clear, the State should be held responsible for disability discrimination only when it engages in discrimination itself or when discrimination by its licensees is the result of requirements or policies established by the State. In the context of an integration claim, this should be limited to situations where an individual is in the State's custody, as in Olmstead, or when a State policy requires that individuals receive services in a non-integrated setting. Neither is true with respect to adult homes.
POINT I PLAINTIFF LACKS STANDING TO ASSERT ITS CLAIMS AGAINST DEFENDANTS To establish standing, a plaintiff must meet the "'irreducible constitutional minimum'" requirement of showing that it has suffered an injury-in-fact that is fairly traceable to defendants' allegedly unlawful action, and which is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,560-61 (1992). Even if this minimum showing is made, a plaintiff may still lack standing under certain judicially imposed prudential limitations, Allen v. Wright, 468 U.S. 737, 751 (1984), although Congress may remove these pntdential barriers when enacting legislation. Havens Realty Corp. v. Coleman, 455 U.S. 363,372 (1982). An association has standing to bring claims on behalf of its members if it can show: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are gennane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation ofindividual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n. 432 U.S. 333,343 (1977». The first two elements of this test are constitutionally required, while the third element is a prudential consideration. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996). A protection and advocacy organization ("PAIMI organization"), such as DAI, may either
35

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bring claims in its own capacity or on behalf of its constituents, but it must establish standing like any other litigant.51 Doe v. Stincer, 175 F.3d 879, 884, 886-87 (11th Cir. 1999); Aiken v. Nixon, 236 F. Supp. 2d 211, 224 (N.D.N.Y.), affd, 80 Fed.Appx. 146 (2d Cir. 2003); Monaco v. Stone, 2002 WL 32984617, at *21 (E.D.N.Y. Dec. 20, 2002). At a minimum, to establish associational standing, a PAIMI organization must show that at least a single OIle ofits constituellts would have standing to bring a claim in his own right and that the interests the PAIMI group seeks to protect are germane to its purpose. Monaco, 2002 WL 32984617, at *21; Aiken, 236 F. Supp. 2d at 224; Pa.. Protection and Advocacy, Inc., 136 F. Supp. 2d at 365.
DAI does not have standing to bring this action because it cannot establish that a single one of its constituents has standing. Moreover, even ifDAI could make these showings, it cannot establish standing to obtain systemic injunctive relief because it cannot prove widespread violations, giving standing to thousands of residents. Finally, DAI does not have statutory authority to bring this case on behalf of many, if not all, of its constituents.52
A. DAI Fails the Associational Standing Test 1. None of DAI's Constituents Have Suffered an Injury-In-Fact
To constitute an injury-in-fact, an injury must be "concrete and particularized," "actual or imminent," and "not conjectural or hypothetical." Lujan, 504 U.S. at 560 (citations omitted).
DAI has failed to establish injury-in-fact. Even if Olmstead were found to apply to privately-owned adult homes, DAI has failed to come forward with reliable proof that any of its constituents have suffered an actual injury by some action of the State. DAI has not identified even a single resident who meets the elements of an Olmstead claim. Significantly, as discussed
51 DAl brings this case only on behalf of its constituents; DAI has not alleged injury to itself See Compl. '1'18-12,34.
52 Defendants do not contest that the interests DAI seeks 10 protect are germane to its purpose.
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in Point IV, DAI has not established that any constituent is qualified to move to housing options

it seeks by, among other things, meeting the minimum admission criteria of the third-party

housing providers that operate the housing DAI seeks. See Warth v. Seldin, 422 U.S. 490,503-

06 (1975) (plaintiffs lacked standing because they were unable to show that absent allegedly

restrictive zoning practices they would have been able to afford to live in defendant town). If

DAI's constituents are not qualified for the housing they seek, by definition they have not been

injured by any alleged action of defendants.

Nor can DAI establish injury-in-fact with respect to any residents who have not filed

HRA 2000 applications to move to alternative housing programs. Any claim that these residents

have been injured because they lack access to supported housing or other programs funded by

OMH is speculative, conjectural and clearly not imminent because the filing of an HRA 2000

application is a necessary pre-requisite to being accepted into Housing For Persons with Mental

Illness. See, e.g.,

256 F.3d 1077, 1081-82 (l]th Cir 2001) (ADA Title II claim

dismissed for lack of standing where plaintiffs failed to allege that the threat of future

discrimination was imminent); Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 89-90

(E.D.N.Y. 2005) (plaintifflacked standing to bring ADA Title III claim against several stores

where he failed to allege, among other things, that he would visit the stores in the imminent

future); McInnis-Misenor v. Me. Med. Ctf., 211 F. Supp. 2d 256, 260 (D. Me. 2002) (plaintiff

lacked standing to bring ADA claim concerning a maternity ward because she was not pregnant

and any injury was not imminent),

319 F.3d 63 (1 51 Cir. 2003). A "some day" intention to

file an HRA 2000 form, without any concrete plans, is insufficient to confer standing. Lujan, 504

U.S. at 564. In fact, many of the 1536 residents identified by DAI as being qualified and not

opposed to moving have not filed HRA 2000 applications; only 18 of the 206 residents included

in defendants' random sample of the 1536 residents filed the application. DAI cannot claim that

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submitting an application would be futile, where residents have submitted these forms, been approved for alternative housing, and moved from the adult homes to these other settingsY
2. Defendants Have Not Caused DAl's Constituents Any Injury DAI also cannot establish that any injury its constituents may have suffered is fairly traceable to the defendants. See Lujan, 504 US. at 560. The State has not caused any injury here because it does not operate adult homes, does not require that any resident live in an adult home, and is not responsible for assisting residents to move from these homes. Instead, independent third parties bear this responsibility. If a resident seriously wants to move from an adult home, social workers, psychiatrists, and adult home staff members are available to work with that resident to determine whether he or she is qualified to live in a different setting and to assist the resident in applying. Finally, third-party housing providers decide whether to accept the resident into the housing program after reviewing applications and interviewing the resident. Any injury to DAI's constituents, therefore is highly indirect and '''results from the independent action of some third party not before the Court." Allen, 468 US. at 757 (1984); Simon v. E. Ky. Welfare Rights Org., 426 US. 26, 42-43 (1976).
3. Any Injury Suffered By DAl's Constituents is Not Redressible Similarly, DAI cannot establish that any injury they might suffer is "'likely,' as opposed to merely 'speculative,' to be 'redressed by a favorable decision.'" Lujan, 504 U.S. at 561 (quoting Simon, 426 U.S. at 38). DAI seeks an order to move its constituents into allegedly more integrated housing, but DAI has failed to establish that any action by the defendants would result in the residents moving. As discussed in the above paragraph, the defendants cannot redress the alleged injury of any residents who are not approved by HRA or accepted by the third-parties who operate this housing. Thus, an order directed at defendants alone would not redress the
53 See, e.g., P.c. 15-16, 154-57; A.M. 6-7,134-137.
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alleged violation. See Warth, 422 U.S. at 503. B. DAI Does Not Have Standing To Obtain Systemic Relief Even if DAI were able to show that any of its constituents has standing, DAI does not
have standing to seek the systemwide, yet highly individualized, relief it seeks on behalf of thousands of residents. The scope of DAI's standing, and the corresponding remedy it may seek, is limited by the number ofDAI's constituents who meet the Olmstead-required elements of being qualified and having a desire to move to alternate housing. In other words, the scope of DAI's standing is coextensive to the number of constituents who have individual standing to bring Olmstead claims. Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 98 (E.D.N.Y. 2005); Clark v. Burger King Corp., 255 F. Supp. 2d 334, 345 (D. N.J. 2003); Clark v. McDonald's Corp., 213 F.R.D. 198,215-16 (D. N.J. 2003). DAI has not established that any residents, let alone the thousands necessary to obtain system-wide relief, meet this standard.
In Small v. General Nutrition Cos., Inc., 388 F. Supp_ 2d 83, Judge Ross confirmed that the breadth of an association's standing is limited to the standing of its individual members. Small, 388 F. Supp. 2d at 98. In Small, a disabled individual and an advocacy association brought a putative class action, claiming that a chain of stores was inaccessible to wheel-chair users in violation of the ADA. Id. at 85. In addressing the defendant's motion to dismiss for lack of standing, the Court found that the association did not adequately plead standing because it failed to allege that a single one of its members met the standing requirements. The Court noted, however, that even if the association were to allege that a single member did have standing, the association's standing would be limited to the standing of that single member:
The court emphasizes that at the very least, if [plaintiff association] can establish the standing of one of its members in an amended complaint, [plaintiff association] will have established associational standing. Its standing would on(v be coextensive with the standing that member would enjoy, however. Put differently, because associatiollal standing exists only insofar as organization members
39

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have standing, associational standing may not be broader or more extensive than the standing ofthe organization's members. Id. at 97-98 (emphasis added); see also Clark v. Burger King Corp., 255 F. Supp. 2d at 345 (concluding that organization's standing to bring an ADA claim was coextensive with a single member's claim because the association failed to identify other members who had claims); Clark v. McDonald's Corp., 213 F.R.D. at 215-16 (finding that association had adequately plead associational standing, but cautioning that the organization would have to prove that its claims were greater than those of a single member). Thus, DAI's associational standing must be limited to that of the individual constituents who DAI proves have suffered an injury-in-fact and otherwise have standing. To permit DAI to seek relief any broader than the standing of its constituents would essentially permit DAI to evade the requirements of Rule 23 of the Federal Rules of Civil Procedure, from which Congress certainly did not exempt PAIMI organizations. Indeed, PAIMI groups, including DAI, have in many cases sought systemic relief by joining actions with putative class representatives. See, M.,., Monaco v. Stone, 2002 WL 32984617; Risinger v. Fitzpatrick, 117 F. Supp. 2d 61 (D. Me. 2000); Mich. Protection & Advocacy Servo v. Kirkendall, 841 F. Supp. 796 (E.D. Mich. 1993); Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992). Here, DAI has not certified a class, and defendants would therefore be deprived of the protections and safeguards provided in Rule 23. In fact, to prohibit PAlMI groups from expanding the scope of associational standing to the extent DAI seeks here, some courts have required PAlM! groups to name the specific individuals on whose behalf they bring an action at early stages ofthe litigation. See Tenn. Protection & Advocacy, Inc. v. Bd. ofEduc., 24 F. Supp. 2d 808, 816 (M.D. Tenn. 1998); Penn. Protection & Advocacy, Inc., 136 F. Supp. 2d at 355-56; see also
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Autism Soc'y of Mich. v. Fuller, 2006 WL 1519966, at **6, 10 (W.D. Mich. May 26, 2006).54 The defendants' and the Court's interest in the finality ofjudgment also favors requiring
DAI to establish standing for each of its constituents for whom it seeks relief as well. DAI's unnamed constituents may not be bound by any judgment here because they are neither represented nor in privity with DAI. In contrast to cases where "members" were bound by a judgment, these residents may not even be aware that DAI is prosecuting claims on their behalf. Cf. Nash v. Bowen, 869 F.2d 675, 679 (2d CiL 1989) (res judicata barred a member from bringing claims identical to association's earlier claims, where individual plaintiff was a member of the association, consulted the association's counsel about the earlier litigation, and shared documents with the association for use in its case); EI-Bey v. The City of New York, 151 F. Supp. 2d 285,295 (S.D.N.Y.) (res judicata barred claims of a member because he was in privity with president of a union who settled identical claims on behalf of union), affd, 33 Fed.Appx. 10 (2d Cir. 2002).
Even if DAI could establish standing to bring a claim for systemwide injunctive relief, DAI has certainly not proven that it is entitled to this massive, broad relief. It is well-settled that "the nature of the violation determines the scope of the remedy" and that "the principles of equity ... militate heavily against the grant of an injunction except in the most extraordinary circumstances." Rizzo v. Goode, 423 U.S. 362, 379 (1976). Where an injunction is sought against State officials, the Supreme Court admonished that "federal courts must be constantly mindful of the 'special delicacy of the adjustment to be preserved between federal equitable

54 Some courts have found that PAlMI groups need not name individual constituents at an early stage of

the litigation, but those cases differed in tenns of the nature of the claims brought and the scope of the relief sought.

See

66 F. Supp. 2d 412 (E.D.N.Y. 1999) (standing found at early stage of case assertmg challenge

to particular state policy regarding commencement of counterclaims by State against mentally ill patients of state facilities because PAlMI identified a particular group of allegedly injured individuals), affd sub nom. Mental

Disability Law Clinic, Touro Law Ctr. v. Carpinello, 2006 WL 1527117 (2d CiT. May 31,2006).

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power and State administration of its own law." rd. at 378 (1976) (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951».
DAl clearly cannot obtain systemwide reliefby merely showing that a few individuals meet the Olmstead requirements, an inherently individualized inquiry. To obtain this type of relief, DAI would have to prove that thousands of individuals meet these elements. Lewis v. Casey, 518 U.S. 343,359 (1996) (holding that two instances of unlawful conduct was a "patently inadequate basis" for systemwide relief); Rizzo, 423 U.S. at 367- 69,380-81 (concluding that broad relief was not warranted where only nineteen incidents involved the deprivation of a federal rights); =-=== City of Los Angeles v. Lyons, 461 U.S. 95, 97-100, 105-06 (1983) (finding that a city-wide injunction was not justified by a single plaintiffs allegations that he was illegally choked by police). Moreover, systemwide relief is inappropriate because it would be "wildly intrusive." Casey, 518 U.S. at 361. In effect, DAI asks the Court to assume the roles of the Commissioners of OMH and DOH, make policy decisions about developing additional housing units, and detennine who should move into that housing. As Justice Thomas explained, the federal courts are ill-equipped to serve such a function:
Principles of federalism and separation of powers impose stringent limitations on the equitable power of federal courts. . .. Article III cannot be understood to authorize the Federal Judiciary to take control of core state institutions like prisons, schools, and hospitals, and assume responsibility for making the difficult policy judgments that state officials are both constitutionally entitled and uniquely qualified to make....
Lewis, 518 U.S. at 385-86 (Thomas, J., concurring) (internal quotations and citations omitted). C. DAI Is Not Authorized to Bring These Claims DAI is not authorized to bring claims on behalf of many if not all of its constituents, and
therefore is not entitled to seek systemwide relief. The Protection and Advocacy for Individuals with Mental Illness Act ("PAlMI"), 42 U.S.c. § 10805, authorizes a PAIMI organization to
42

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pursue legal remedies either on its own or on behalf of its constituents. See 42 U.S.C. § 10805 (l)(B),(C). The statute, however, explicitly limits PAlMI organizations' authority to bring cases on behalfof individuals by requiring that such individuals meet specific criteria. Specifically, the PAIMI statute authorizes PAIMI organizations to:
(b) pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State; and
(c) pursue administrative, legal, and other remedies 011 behalfofan individual who--
(i) was a individual with mental illness; and (ii) is a resident of the State,
but only with respect to matters which occur within 90 days after the date of the discharge of such individual from a facility providing care or treatment. 42 U.S.c. § 10805 (emphasis added). DAI has not established the elements of subsection (c), which is the only provision that authorizes PAIMI groups to bring actions "on behalf' of its constituents. Doe, 175 F.3d at 887 (finding PAIMI organization had not established standing because it did not show that allegedly injured persons were currently receiving treatment or had
been di scharged within ninety days); Autism Soc'y of Mich., 2006 WL 1519966, at *10
(questioning whether PAIMI organization was entitled to bring action, where it did not allege that matters had occurred within ninety days of the date the constituent was discharged from a facility): but see Brown, 66 F. Supp. 2d at 425 (noting that constituents did not meet the requirements of subsection (c) but PAlMI had standing under subsection (b». Although some courts have found that PAlMI groups have standing to bring cases on behalf of residents without discussing the requirements of subsection (c), and may have assumed that PAIMI organizations
43

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had authority to bring claims, none have sought relief of the scope sought by DAI here.55 Because DAI cannot establish that it has authority to bring claims on behalf of many, ifnot all, of its constituents, it cannot pursue systemwide relief.
POINT II NO STATE SERVICE, PROGRAM OR ACTIVITY SUBJECT TO THE ADA IS AT ISSUE, WHERE NO STATE POLICY REQUIRES OR CAUSES DISCRIMINATION, AND THE STATE CANNOT BE HELD RESPONSIBLE FOR THE ACTIONS OF ITS LICENSEES, THE ADULT HOMES.
Title II of the ADA, entitled "Public Services," governs the services, programs and activities of public entities. In this case, plaintiffs claim is without merit because plaintiff is unable to identify any State service, program or activity that is subject to the ADA or that is causing discrimination, in the fonn of non-integration or otherwise. See also Point I, A. 3. The State's primary role with respect to adult homes, licensure and inspection, is not a "service, program or activity" under the ADA and, in any event, is not being administered in a discriminatory fashion or causing discrimination. Rather, plaintiffs complaint lies with the adult homes themselves and, specifically, with the manner in which they are operated and the nature and quality ofthe services residents receive. However, government licensing agencies cannot be held liable for discriminatory conduct on the part oftheir licensees.
U.S. Department of Justice regulations specifically provide that, although a licensing program itself is subject to the ADA, the government agency does not thereby become responsible for alleged disability discrimination perpetrated by the licensee. See 28 C.F.R. §

55

Trautz v. Weisman, 846 F. Supp. 1160 (S.D.N.Y. 1994) (standing found for claims against single

private adult home and operator); Rubenstein v. Benedictine Hosp., 790 F. Supp. 396, 409 (N.D.N.Y. 1992)

(standing found to assert claims against private hospital for injuries on allegations of harm to two individuals);

Brown, 66 F. Supp. 2d at 425 (standing found at early stage of case asserting challenge to particular state policy

regarding commencement of counterclaims by State against mentally ill patients of state facilities).

44

Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 56 of 95
35 .130(b)(6) ("The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part."). DO] has reiterated this position in its Technical Assistance Manual ("TAM"). See ADA TAM II-3.7200, annexed to the Affidavit of Barbara K. Hathaway as Exhibit Hathaway-A ("The State is not accountable for discrimination in the ... practices of [a licensee] if those practices are not the result of requirements or policies established by the State. Although licensing standards are covered by title II, the licensee's activities themselves are not covered. An activity does not become a 'program or activity' of a public entity merely because it is licensed by the public entity."). See also Green v. City of New York, 465 F.3d 65 (2d CiL 2006) (holding that a private hospital is not a public entity simply because it has a contract with the City and operates pursuant to City rules).
Here, plaintiff cannot show either that New York is directly discriminating in any of its own actions or that any alleged ADA violations by the licensed adult homes are "the result of requirements or policies" of the State. There is no State service, program or activity related to plaintiffs claims that is subject to the ADA, and, even if there were, none is causing disability discrimination. Defendants cannot be held responsible for the actions of the adult homes themselves. Thus, plaintiff cannot prove this threshold element of its claim, and summary judgment should be granted to defendants.
First, one must identify the State conduct at issue, which plaintiff has failed to do in its complaint. While "services, programs and activities" has been interpreted broadly, see Innovative Health Svstems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cif. 1997) (holding that zoning decisions are subject to the ADA), the conduct must still be properly attributable to the public entity, either because the government engages in it directly or because its policies require the conduct. It is indisputable that the State does not provide the housing to these adult home residents. The only direct responsibility the State has with respect to adult homes is its licensing
45

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and inspection of adult homes and the enforcement of governing rules and regulations against adult homes. However, this regulatory role is not subject to the ADA because no individual adult home resident has the right to have these actions undertaken in any particular manner. Any incidental benefit or impact of the State's regulation of adult homes is far too indirect to be enforceable on behalf of specific residents in litigation. Accordingly, a number of courts have rejected ADA claims based on similar regulatory, licensing, or law enforcement activities.
Thus, in Amirault v. City of Roswell, 1996 U.S. Dist. LEXIS 9887, at *14 (D.N.M. March 28, 1996), affd mem., 1997 U.S. App. LEXIS 19902 (1oth Cir. July 31, 1997), the court found that the mentally disabled plaintiff had "failed to identify any service, program, benefit, or activity to which he was entitled under the ADA and which was denied to him solely because of his disability." After receiving a call from plaintiff s girlfriend warning that the plaintiff was suicidal, local police officers came upon plaintiff in his car. Plaintiff had a gasoline can, and told the officers that he had planned to ignite himself, but had changed his mind. The officers did not detain him. Later, plaintiff in fact set himself on fire. He claimed that the officers' failure to detain him and to involuntarily commit him for mental health treatment deprived him of police assistance, in violation of the ADA. The district court reasoned that since the police owe no duty to protect any individual citizen or to provide for his general welfare, "protection of a particular person or the protection of members of a particular class of persons is not considered to be a municipal service, benefit, or program." Rather, the duty is to the public at large. Accordingly, the court concluded that the police "had no duty to protect Plaintiff from himself as he asserts, nor was Plaintiff denied a municipal or police service, benefit, or program to which he or any
other individual or class of individuals was entitled." Id. at *16 - 17. The court further
concluded that plaintiffs claim was without merit because, in any event, he had not shown that the police failed to arrest him because of his disability. The Tenth Circuit, stating that it was "in
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accord with the district court's reasoning," affirmed. 1997 U.S. App. LEXIS 19902, * 6.56
In Tyler v. City of Manhattan, 849 F. Supp. 1429 (D. Kan. 1994), the court likewise
rejected a claim based on the public entity's licensing and inspection of allegedly non-compliant
restaurants and stores. Rejecting plaintiff's argument that "the City provides a service to the non-
disabled public by physically inspecting licensed facilities," the court stated that:
while that may be true, individuals with disabilities are not denied access to such licensed facilities, or to the claimed benefits flowing from the City'S inspection of them, by virtue of any act of the City in the manner it conducts those activities. Rather, they are excluded from the benefits of the City'S inspection and licensing services solely because the licensed structure itself happens to be inaccessible. Title II of the ADA and its implementing regulations prohibit discrimination against qualified individuals only by public entities. ... It simply does not go so far as to require public entities to impose on private establishments, as a condition of licensure, a requirement that they make their facilities physically accessible to persons with disabilities.
849 F. Supp. at 1442. See Reeves v. Queen City Transp., Inc., 10 F. Supp. 2d 1181 (D. Colo. 1998) (Public Utilities Commission that issued certificate to bus company not liable for
disability discrimination by bus company).
Similarly, in Alford v. City of Cannon Beach, 2000 U.S. Dist. LEXIS 20730, at *56-73
(D. Or. Jan. 17,2000), the plaintiffs claimed that the city violated Title II by issuing permits,
providing police coverage, and distributing information about non-ADA compliant social events
held by private entities, and by issuing building permits to restaurants and stores that were not
accessible. The court held that the city could not be held liable under the ADA based on any of
its own direct actions, such as issuing building permits. The court rejected the argument that the

56 The court drew upon cases holding that under the Constitution the government owes no duty to protect or

care for indIviduals who are not in its custody. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005); DeShaney v.

Winnebago Co. Dep't of Social Services, 489 U.S. 189 (1989). It is also well settled that no individual has the right

to bring suit based upon a failure oflhe government to enforce laws in a particular manner.

470

C.S. 821, 831 ( J985); O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980); Gagliardi v. Village of Pawling,

18 F.3d 188, 192 (2d CiT. 1994); Mullen v. Axelrod. 74 N.Y.2d 580 (1989).

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City's promotion of and other involvement in the social events rendered them public activities. Rather, the plaintiffs were improperly attempting to hold the City liable for the actions of private third parties. The court also reasoned that even issuing building permits to buildings which did not comply with the ADA could not support liability. Relying on the DOl regulations providing that the activities of licensees could not be attributed to the public licensor, the Court found that the City had no duty to "force third party licensees or permittees to build compliant structures." Therefore, in this case, the licensure and inspection of adult homes cannot render defendants responsible for the alleged non-integration of adult home residents, even assuming (without conceding) that the residents are not in the most integrated setting.
The only other obvious potential State role to which plaintiff alludes in its complaint is the discharge planning required under N.Y. Mental Hyg. Law § 29.15 for patients discharged from State hospitals. While the complaint implies that large numbers of adult home residents were placed in adult homes from State psychiatric hospitals by State discharge planners, the undisputed evidence reveals that in recent years only a small percentage of patients discharged
from State hospitals have moved to adult homes. Campbell Aff. '1 21 & Ex.O. Moreover, even
for those small number of residents discharged to adult homes by the State, the State has discharged these patients to a residence which is legally obligated to assist the residents to become involved in the community. Furthermore, all discharge placements are voluntary. Therefore, a discharge to an adult home cannot be considered a requirement imposed by the State that a patient move to a non-integrated setting. Of course, even if a discharge from a State psychiatric center was deemed to be the conduct subject to the ADA, a claim based on this act would be subject to a three-year statute of limitations. Scaggs v. New York State Dep't of Educ., 2007 U.S. Dis1. LEXIS 35860, at *33-35 (ED.N.Y. May 16, 2007). Thus, at the most, those who have been discharged within three years of the complaint being filed may have a viable claim, but
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plaintiffhas made no effort to identify those individuals. In any event, even assuming that at a future date an adult home resident who had been
discharged from a State hospital wanted to move from the adult home, it is not the State's responsibility to ensure that the resident moves, or to assist the resident in moving. Any obligation to follow-up on a patient discharged from a State hospital exists for only a brief period. Indeed, a New York court found no basis to impose this duty for even 90 days. Koskinas v. Carrillo, 214 AD.2d 512 (lSI Dep't 1995). Thus, there is no existing State program, service or activity which provides housing referral services or placement in alternative housing to adult home residents, whether they were discharged from a State psychiatric hospital or not, and the ADA does not require that the State create such a new program.
Moreover, even assuming arguendo that adult homes are not integrated settings, the State does not require that anyone live in an adult home or receive services in adult homes. Thus, it cannot be said that the State is "administering" services, programs or activities in the adult homes, and the defendants are therefore not in violation of28 C.F.R. § 35.130(d) ("A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."). Adult home residents receive a number of services, some through the Medicaid program. However, their eligibility for services is not in any way dependent upon their living in an adult home or receiving those services in the adult home. They could move out of the adult home or remain and choose to receive services elsewhere. Thus, this case is distinguishable from cases challenging State policies that provide different services in an institution than are available in the community, essentially requiring that an individual enter an institution in order to receive certain services. See,~, Fisher v. OK Health Care Authority, 335 F.3d 1175 (lOth Cir. 2003). Thus, the State is
49

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not discriminating in any of its own actions. 57 Nor can plaintiff show that the State is liable based on the actions of the adult homes,
since no State policy requires that the adult homes function as non-integrated settings. The alleged non-integration of adult home settings is, therefore, not the "result of requirements or policies established by the State." ADA TAM 11-3.7200. In fact, precisely the opposite is true. The regulations require that adult homes provide activities in the surrounding community and encourage residents to maintain ties with family and others in the community. The regulations give residents the right to come and go freely from the homes. Even assuming that these requirements are not being fol1owed by the adult homes, and that the State agencies have done nothing to correct this situation (which is not the case, see Point VI), the State could still not be held liable. To do so would hold the State responsible for the conduct of the licensed adult homes, contrary to case law, DOl regulations and DOl guidance in the TAM. Moreover, since the State does not designate certain homes as "homes for individuals with mental disabilities," or dictate the number of individuals with mental disabilities any adult home may accept as residents, plaintiff cannot prove its claim simply by showing that any particular home has a large percentage of residents with mental disabilities. Not only is this not determinative of integration (because the residents remain free to come and go and participate in the life of the community and to interact with non-disabled persons), but the State is not responsible for the number of mentally disabled residents in any particular home.
The conclusion that the State cannot be held accountable for the actions of the adult homes under the ADA is fully consistent with other civil rights statutes and civil rights principles. For example, the Civil Rights of Institutionalized Persons Act, 42 U.S.c. § 1997, et seq., covers persons residing in or confined to an institution. Institution is defined as any facility
57 The same analysis applies to plaintifTs causes of action allegmg that defendants are discriminating in their methods of administration. While such "methods of administration" are not clearly specified in the complaint, Ilothmg the State has done has the cause or effect of discriminating against adult home residents.
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"which is owned, operated, or managed by, or provides services on behalf of any State...." The statute expressly excludes privately owned and operated facilities if the sole nexus between the State and the facility is licensing and/or receipt by the facility of payments under programs such as SSI on behalf of residents. Adult homes would fall squarely within this exclusion. Moreover, the doctrine of State action under the Constitution, applicable in actions pursuant to 42 US.c. § 1983, would similarly preclude holding the State liable for the actions of adult homes. See, U, Blum v. Yaretsky, 457 U.S. 991 (1982) (nursing home's decision to transfer residents did not constitute State action); Sybalski v. Independent Group Home Living Program, Inc., 2007 US. Dist. LEXIS 30097 (E.D.N.Y. April 24, 2007). Congress was fully aware of the scope of Title II's provisions when it entitled the Title "Public Services," and knew well how to draft a statute that covered private conduct, as it did in Title I, involving employment. However, Congress chose not to expand Title II to cover private entities. Plaintiffs attempt to apply Title II to problems which are essentially issues of the quality of conditions and services in private facilities tortures Title II beyond recognition.
Thus, Plaintiff's theory, if accepted, would constitute an extraordinary broadening of the scope of the ADA, far beyond Congressional intent and any interpretation of the ADA by the DO]. It would leave governmental entities open to complaints and liability for any number of actions taken by private entities, simply because they are licensed or regulated by the State.
POINT III ADULT HOME RESIDENTS RESIDE IN INTEGRATED SETTINGS \VHERE THEY MAY COME AND GO FREELY AND INTERACT WITH NON-DISABLED PERSONS In Olmstead, the Supreme Court held that, in certain limited circumstances the ADA requires that qualified individuals with mental illnesses be moved from institutional settings to more integrated settings. Olmstead, 527 US. at 587, 591-92. Even if Title II of the ADA were found to apply to privately operated adult homes that are merely regulated by the State, nothing
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in that statute or its governing regulations would require that adult home residents be moved to other settings, because adult homes are "integrated," community-based settings.
As defined by the governing regulations, integrated settings are those that permit opportunities for contact with nondisabled persons. The undisputed evidence in this case shows that adult home residents have virtually unlimited opportunities to interact with nondisabled persons and that many, if not most, adult home residents choose to take advantage of these opportunities. As required by State regulations, adult homes facilitate these interactions through community-based programs, and mental health providers conduct similar activities. Moreover, the undisputed evidence shows that adult homes vary significantly from the psychiatric institutions at issue in Olmstead precisely because, unlike State-run psychiatric hospitals, adult homes do not limit interaction with nondisabled persons in the community.
A. Integration Is Defined As Opportunity for Contact with Nondisabled Persons Title II prohibits public entities from subjecting qualified individuals to discrimination. 42 U.S. C. § 12132. The ADA identifies isolation and segregation of individuals with disabilities as forms of discrimination. 42 U.S.c. § 12101(a)(2). The Attorney General has promulgated regulations interpreting this prohibition against discrimination, see 28 C.F.R. Pt. 35 (2006), which in relevant part provide: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (2006). The regulations further define "most integrated setting" as "a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible ...." 28 C.F.R Pt. 35, App. A at 551-552 (2006). The Olmstead Court tacitly endorsed this definition of integration. 527 U.S. at 597-98. Under the regulatory definition of integration, the key is whether persons with disabilities have opportunities for contact with nondisabled persons, rather than the number of actual
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contacts. As discussed further below, the Supreme Court and DOJ regulations make plain that disabled persons must have the opportunity to reject contact with nondisabled persons if they do not want to have those contacts. See Olmstead, 527 U.S. at 602; 28 c.P.R. pt. 25, App. A at 552 (2006). DAI's experts agree that the definition of "integration" turns on the opportunities available to persons with mental illnesses to have contact with nondisabled persons.58
B. Adult Home Residents Have Nearly Unlimited Opportunities For Contact With Nondisabled Persons
The undisputed evidence shows that adult home residents have nearly unlimited opportunities for contact with nondisabled persons, and deposition testimony from adult home residents, including many listed by DAI as potential witnesses, shows that residents frequently avail themselves of these opportunities and take full advantage of the other benefits afforded by living in New York City.
Adult homes are located in the community in residential areas, close to stores, restaurants, religious institutions, libraries, parks and/or beaches and boardwalks.59 All are located near public transportation that provides access to rest of the City.60 State regulations require that adult home residents be pennitted to come and go from the facility at reasonable hours, 18 NYCRR § 487.5(a)(3)(xii), and deposition testimony from residents shows that homes abide by these rules, many permitting residents to come and go as they please}') while others have established
58 Duckworth Dep. 121 ~22; Jones Dep. 43-44. 59 Burstein 9-10; Davis 107-09; Mendel 18, 75; Yunger 23,39-40; P.B. 51-53; P.e. 96-98; LG. 15,21; S.B. 130-132; R.H. 34-41, 79-80; LH. 52-53; G.B. 152-53; CH. 64-65, 72-73; BJ. 53; I.K. 45, 61-63; G.L 49-56, 68-72; T.M. 30-32; A.M. 56-57,59,67-71; J.M. 45-47,55-57; D.N. 14-19,32,36-38. 60 Burstein 10; Davis 108-09; Mendel 18-19; Yunger 41; S.B. 19; LG. 171-72; L.H. 54; G.H. 152, 154-55; R.H. 80-81; e.B. 82-83; BJ. 51-52; LK. 68; G.L 56; T.M. 32; A.M. 83-84; I.M. 61-62; D.N. 68-69; S.P. 13-14; D.W. 25; cf. P.e. 222. 6) Davis 23-24; Mendel 23-24; Yunger 59; P.B. 64,66; M.B. 35,98-99,166-69; LG. 90-91; G.H. 164167; R.H. 113,151; L.B. 75-76; CH. 103; I.K. 85; G.L 100; T.M. 54-55,104; A.M. 157, 185; D.N. 169-170; S.P.
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reasonable nighttime hours during which doors are locked and residents must be admitted by a staff member (like many apartment buildings in New York City).62 R.H., a resident at Sanford Home, summed up residents' access to the surrounding neighborhood as "Nobody's locked in there. It's open. You can go in and out, where you want to go, whatever time you want to gO.,,63 BJ., a resident at Brooklyn Manor, similarly testified: "[Y]ou have options. You can go and come when you want to, nobody to tell you don't come and things like that.,,64
Each of the eighteen residents deposed in this case testified that he or she regularly leaves the home and visits shops, parks, restaurants, entertainment facilities, and/or other neighborhood conveniences.65 For example, G.H., a resident at Surf Manor, testified that every resident living in his adult home eats outside the home at least twice per week, every resident walks around the neighborhood, almost every resident goes out of the home to go shopping approximately ten to fifteen times a year, and although he personally does not, all of the other residents go to the beach or the boardwalk "on a consistent basis."66 DAl's expert, Dr. Kenneth Duckworth, admitted that residents he spoke with reported leaving the adult hOII?-es. 67
58-59; D.W. 75; Lockhart 134-35.
62 Burstein 18-20; S.B. 84-85; B.l. 69; M.B. 169. 63 R.H. 151.
64 B.l. 57.
65 P.B. 50-53, 57-58,148; S.B. 11-25; M.B. 40-50,103-112; P.c. 38-39, 95-98; L.G. 14-18,20-26; R.H.
33-41,66,80-82, 123-24; L.H. 49-50, 117-118; G.H. 77-83,97-99, 130-45; C.H. 14, 18-22,50,53-54,57-67, 7275; I.K. 44-46, 62-67: B.1. 53-58; G.L. 33-34,49-56,68-73; A.M. 56-57, 59-60, 64-73; 1.M. 44-51, 54-58, 68-70; T.M. 31, 41, 45-48; D.N. 14-19,31-38,73-75; S.P. 8-12; D.W. 30-32,156-158; see also Burstein 45-46,56-57,106; Mendel51, 97; Yunger 22-23,39-41; cf. Davis 106-07.
66 G.H. 136-45, see also I.K. 46-47. 67 Duckworth 122-23.
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Residents walk around the neighborhoods where they live,68 Some attend services held at local religious institutions outside of the adult home, socialize with nondisabled congregants,69 and even spend time at the houses of religious leaders,70 Some residents take advantage of educational opportunities, including classes for GEDs at local schools,7) Residents vote at polling stations,72 Some residents attend 12-step meetings across the City,73 Although homes generally provide laundry services for residents, some residents choose to do their own laundry at locallaundromats,74 Residents also lobby state government, engage in rallies, and participate in advocacy organizations for persons with mental illnesses.75
Residents take public transportation on a regular basis,76 and many have reduced fare MetroCards.77 Some residents who live in outer boroughs use buses and subways to see friends, and go to shops, movies, concerts, and museums in Manhattan.78 For example, A.M., a former

68 S.B. 11, 16-17; L.H. 49; G.H. 144-45; I.K. 60; A.M. 82; 1.M. 57-58, 70-71; T.M. 31; D.N. 14-16;
S.P.57-58; D.W. 30.

69 P.B. 58; R.H. 124-26; e.R 16-17; A.M. 56-57; 1.M. 34-35,51-52; D.N. 19-23; see also G.H. 115; IX.
47; D.W. I Burstein 85-86; Yunger 91.
70 M.B. 43-45; see also S.B. 57-59.

7I BJ. 19-20; Burstein 85-87.

n G.H. 145-46; RH. 127-28; I.K. 60; G.L 57.

73e.IL 11-13.

74 S.B. 82; L.G. 88-89; A.M. 103-04; 1.M. 101-02.

75 L.G. 158-59; RH. 16-18.27-33; G.H. 11-16,19-20,22-29; LK. 10-30; G.L 7-16,18-19: JM. 21-25; T.M. 69-71; D.W. 130, 134.
76 P.B. 56-57; S.B. 15, 18-20; M.B. 35-37; P.e. 98; L.G. 16-17, 135-36; RH. 81-82; G.B. 97-99,142,154-
55; L.H. 54-55; e.H. 13,22-24,83; BJ. 51-52, 72; I.K. 16,68-69; G.L. 9,11, T.M. 32-33, 78-79; A.M. 84-86; J.M. 24-25, 61; DX 26, 68-70; S.P. 13-16; Burstein 89-90; Mendel 77; cf. D.W. 25-27.

77 M.B. 35-36; P.e. 105-07; L.G. 175-76; G.H. 155; e.IL D.N. 68-69; S.P. 59-60; Burstein 89-90; Yunger 25.

BJ. 71-72; LK. 58-59; G.L. 33,53; J.M. 62;

78 S.B. 18-19; G.B. 97-99; 130-31; T.M. 78.

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resident of Sanford Home, who now lives in supported housing, testified that while living in the adult home, he traveled to Manhattan monthly to play chess with a friend. 79
Residents regularly visit their families and friends, sometimes staying overnight, and family, friends, and others visit residents at the homes.so Aside from visits, residents keep in touch with family and friends on the phone. 81 Some residents fonn friendships with people who live in their neighborhoods.82 I.M., a fonner resident of Brooklyn Manor, testified that he talked with people from the neighborhood "all the time,,,83 noting that he spoke with a woman from the neighborhood on the phone regularly and visited her home.84 A.M. similarly indicated that, while walking through a park, he met a woman who was walking her dog and began to see her or speak with her on the phone nearly daily.ss D.W., a resident of Queens Adult Care Center, testified that he speaks with women in the neighborhood, that he jokes with an employee of a local bodega, and that he feels like he is part of the community.86
Some residents have jobs.s7 For example, S.P., a resident at Parkview Adult Home, testified that he works three days a week doing housekeeping/porter work at Bronx Psychiatric
79 AM. 60~61. 80 PH. 108~09, 133-34; S.B.56-57; M.B. 94-95; L.G. 14-15,25-31, 135-36; G.H. 115-20; L.H. 54-55, 9394; I.K. 56-58,71; BJ. 50-52, III; G.L. 34-35, 48-49,134-35; T.M. 79-80; AM. 61, 79-80; J.M. 104-07; D.N. 2627,29-31,61 254; S.P. 55, 67-68; D.W. 25-28,153-54,181; Burstein 51-52; Davis 109-110; see also C.H. 51-54. RI M B. 94-97; C.H. 51-52, 88-90; G.B. 115-116,126; T.M. 39,52; AM. 74-75, 77-78, 80-81; 1.M. 52-53, 73; D.N. 61-64; S.P. 62. 68; D.W. 64-65. X2 ~1,n, 97-102; AM. 79-80; 1.M. 64-67.71; D.W. 29-30,32, 172; Davis 198-99; ~~ L.H. 51. 8, l\L 65-67, 71. 84 lM. 72-73. R5 AM. 80-81. 86 D.W. 32,172.
87 s.n. 40-42: G.L. 78-79; A.M. 144-45; S.P. 15.16,29-36; G.H. 102-06; Burstein 45,77,82-84. 56

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Center, participates in a vocational training program, and knows two other Parkview Adult Home residents who have jobs outside of the home - one as a seamstress, the other as a peddler.88 Some residents engage in volunteer work at local hospitals or other charities.89 B.J., a resident of Brooklyn Manor, testified that, once per week, she visits residents at local nursing homes and shares gospel tracts with them; at times she is accompanied by another Brooklyn Manor resident.90
The testimony of two residents is particularly illustrative.91 G.H., a resident at Surf Manor HFA in Brooklyn for 19 years, has worked at a local outdoor newsstand every year he has lived in the home. For many years, he worked every day from 4:30 a.m. to 10:00 a.m., although, more recently, he has worked two days a week. He takes two buses to get to the newsstand. From 1996-2000, he and other residents volunteered at a skilled nursing facility, spending time with patients and escorting them to events in the facility. G.H. visits his family twice a month. Until costs became prohibitive, he traveled to different cities across the country with his family to watch professional basketball games, staying at hotels and eating at various restaurants. Several times per year, he spends time with three long-time fiiends, one of whom lives in Manhattan, another who lives in supported housing in Queens. G.H. regularly keeps in touch with his family and friends on the phone. G.H. eats at local restaurants in the neighborhood, shops for clothes in Manhattan and Brooklyn, and buys periodicals in the neighborhood. For several years, G.B. traveled weekly to the World Trade Center to listen to live country music concerts and spoke
88 S.P. 31-33. ~9 M.B. 28-35,38-40; G.H. 107-10; BJ. 25-29; Davis 110,202-04: Rosado 166-67. 90 B.l. 25-28. 91 For additional examples see Ex. Geller-A at 28-33.
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with radio personalities who were present.92 C.H., a resident at Queens Adult Care Center, testified that he attends professional
basketball and baseball games regularly with other residents. He also goes to rock concerts every other month with his girlfriend at the Beacon, Madison Square Garden, the Shadow, and other
venues. c.H. uses public transportation every other day and has a reduced fare MetroCard. He
walks around the neighborhood daily for exercise, regularly shops at the local 99-cent store and smoke shop, and occasionally frequents Rite-Aid with his girlfriend. He attends a 12-step program at different venues around the City. On occasion, he meets friends from this program at billiards halls or other locations and speaks with them on the phone. He also eats at fast food restaurants or a diner biweekly with his girlfriend and/or his roommate. Until last year, C.H. attended a local church, and, in the winter, shoveled snow for the church for pay. Several years ago, while living at Queens Adult Care Center, C.H. worked as a parking garage attendant, but, after about 10 months on the job, apparently was asked to stop working by the SSI program.93
C. Adult Homes Facilitate Integration State regulations require adult homes to provide and encourage participation in community-based activities and to assist residents to maintain family and community ties. 18 Nl'CRR § 487.7(g) & (h). DOH inspectors monitor homes to ensure these regulations are followed.94 Evidence shows that adult homes follow these regulations and provide communitybased activities that facilitate contact with nondisabled persons. Several homes work with Hospital Audiences International (HAl) or other organizations to arrange trips for residents to
'!2 G.H. 77-84,97-99, 102- 128, 130-36. 93 CH. 11 57-73,78-79,83,88-91. 94 Burstein 96-97; Hart AfT. ~,: 64-105.
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movies, shows, clubs, museums, and sporting events.95 Adult homes also coordinate their own trips to stores, restaurants, libraries, museums, boardwalks, and/or movies,96 and encourage residents to participate in these activities.97 New Central Manor, for example, regularly has staff accompany residents to thrift shops.98 In addition, many residents go on trips organized by their mental health providers to libraries, amusement parks, bowling alleys, stores, parks, neighborhood athletic centers, and restaurants.99 Several homes also arrange for community members to come into the homes to lead religious services, job fairs, and musical shows.lOO Adult homes also encourage residents to maintain contact with family members. 101 In this regard, Queens Adult Care Center hosts family days, in which hundreds of family members visit the facility for entertainment and meals. 102
Moreover, although not required by the ADA, the State has also taken steps to assist residents to become further integrated in their communities by improving and enhancing services through the case management program and other initiatives. 103

95 Burstein 35-36,40-41, 55-56; Mendel 44-45, 47-49; Yunvger 27-28,96; _ see a_ lso L.G. 49. 51. 53; G.L. 3739: A.M. 34-36.

96 Burstein 34-35,39-45,56; Davis 60-65; Mendel 50-51. 95-97; Yunger 23-25, 88-90; see
3 L 135-36; S.B. 53-54; L.G. 36-54: R.H. 41; C.H. 41-42.

P.B. 130-

97 Burstein 43,45-46; Mendel 90-91; Yunger 26-27.

98 Mendel 95.

99 Bienstock Aff. ~ 5; Bear 40-41; Levine 34-35; Lockhart gg; Mendel 60-61 ; G.H. 41-46: C.H. 40-41.4348: G.L. 44-47; A.M. 24-26; D.N. 39. 49-50; S.B. 25-30, 38; B.J 43-44: S.P. 22-23.

100 Burstein 36; Davis 62.67: MendeI45-47; Yunger 23,25.90.92-93; see also S.B. 11-13.54-55; M.B. 46-48; L.G. 48-49; G.H. 91; I.K. 47-48; B.J. 49; A.M. 39-40; 1.M. 51-52; S.P. 60-61; D.W. 150,152-153.

101 Burstein 16-17; Davls 13-14; Mendel 93-94. 102 Yunger 21-22. 103 Reilly Aff. ~~ 19-24.

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D. DAI's Various Claims that Residents Are Not Integrated Are Meritless DAI suggests that adult homes are not integrated because they are institutions, residents have few contacts with community members, and adult home residents are not independent. Compl. ~~ 44-52. These considerations are irrelevant to an analysis of integration, which turns on opportunities for contact with nondisabled persons. DAI suggests that adult homes are not integrated because they are institutions, claiming that they are large congregate facilities, that have large dining rooms with set times for meals, shared rooms and bathrooms, and generally foster a lack of privacy. See, e.g., Comp1. ~~ 44-52. DAI misreads Title II's discrimination provisions as interpreted in Olmstead. Title II's discrimination prohibition is not focused on either the type of home or size of the home where a person with a disability lives. The focus of those provisions is, rather, to preclude the isolation and segregation of people with disabilities and to foster their access to the community. See Olmstead, 527 U.S. at 597,600 ("Unjustified isolation, we hold, is properly regarded as discrimination based on disability."); ("Congress explicitly identified unjustified 'segregation' of persons with di sabi lities as a 'for[m] of di scrimination. "'). The discrimination provisions, therefore, apply to State-run residences that - unlike adult homes - segregate persons with mental illnesses through rules and policies that limit opportunities for interaction with nondisabled persons. Adult home residents are neither isolated nor segregated because they have virtually unlimited opportunity to interact with nondisabled persons. The Court did not define "institution," as there was no issue in Olmstead about whether the State psychiatric facilities where plaintiffs lived were institutions because presumably, as in New York State, the State psychiatric facilities there had strict rules limiting patients' access to the community. 104 The Court, however, indicated that the discriminatory harm caused by these
104 Campbell Aff. '1~ 11-15.
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institutions was the lack of opportunities for contact with nondisabled persons, relying heavily on the Attorney General's definition of integration, which focuses on such contacts. Id. at 592. The Court also emphasized that the unjustified placement or retention of disabled persons in an institution is discriminatory because living in an institution "severely Iimit[s] their exposure to the outside community." Id. at 596 (citing 28 C.F.R. § 35. 130(d) (1998)). Finally, the Court noted that institutional living reinforces stereotypes that disabled persons are "unworthy" of participating in community life and that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural advancement." Id. at 600-601.
Residents in State psychiatric facilities - like those at issue in Olmstead - are subject to explicit rules and policies that limit their time outside of the facility and visitors' time in the facility, including formalized privilege systems. While adult homes have some institution-like qualities, such as scheduled meal times, public address system announcements, and shared rooms and bathrooms,105 these features do not significantly limit opportunities for interaction with nondisabled persons. Indeed, adult homes are required to permit residents to leave the home at reasonable hours. 18 NYCRR § 487.5(a)(3)(xii). Residents are free to come and go from the Adult Home as they please, shop, sit in the park, use the library, or use any of the other public accommodations available to people who live in New York City. Contrary to the allegations in the Complaint, the residents' undisputed testimony makes plain that residents do indeed take advantage these opportunities.
DAI also suggests that adult homes are not integrated because residents are isolated and do not have contact with nondisabled persons, preferring instead to stay inside the adult homes. See Compl. ~ 47. A resident's level of integration, however, is a matter of choice for that
105 Some adult homes have a few rooms where only a single resident resides. See Burstein II; Yunger 43; Mendel 20-21.
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individual or, at most, a function ofthe quality or effectiveness of the services offered by the adult home or mental health provider, both of which are outside of the scope of the enforcement provisions of the ADA and Rehabilitation Act.
Nothing in the ADA or the governing regulations compels any individual to have more contact with nondisabled persons than he or she desires. Olmstead, 527 U.S. at 602 ("Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.") (quoting 28 C.F.R. § 35.130(e)(1) (1998) ("Nothing in this part shall be construed to require an individual with a disability to accept an accommodation ... which such individual chooses not to accept.") & 28 C.R.F. pt. 35 App. A, at 450 (1998) ("[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation."). Moreover, as discussed above, the ADA guarantees access to services, but no particular quality of services. In other words, the State may not be held responsible under the ADA if privately-run adult homes or mental health providers violate State regulations and fail to provide adequate services to facilitate and encourage community involvement (or, even, as the Complaint alleges, discourage residents from participating in community-based activities). Thus, even iflack of contact were due not to choice but rather to treatment providers and activities coordinators who do not sufficiently encourage involvement and teach skil1s necessary for community contact - that is an issue of quality and effectiveness, for which the State cannot be held responsible under the ADA.
Because it is indisputable that residents have the right to, and opportunities are available for, contact with many people and participation in the surrounding community, DAI appears to argue that adult home residents are not integrated because some do not actually take advantage of these opportunities. However, even assuming that some residents have little contact with nondisabled persons, this is not dispositive. The actual number of contacts with nondisabled persons cannot be used as the measure for whether a setting is integrated - both because residents
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should have the choice of interacting with as many or as few nondisabled people as they desire, and this standard is entirely unworkable. Under such a standard, the Court would have to evaluate each resident individually to determine whether he or she is integrated. Those residents at an adult home who have many interactions with nondisabled persons would be deemed to live in an integrated setting, while residents in the same home who had fewer interactions would not. Neither a court nor a State agency could administer such a standard. Moreover, such a definition of integration would have truly radical implications for all types of services and housing. It is undisputed that even persons living in scattered-site supported apartments can and do become isolated. Would they then be living in non-integrated settings and the State subject to an Olmstead claim on their behalf? The test for integration, therefore, must rest upon the opportunities for interaction that are available, not on whether residents take advantage of them. Adult homes are integrated settings because residents have these opportunities.
DAI also appears to suggest that adult home residents are not integrated because they are less independent or autonomous than persons who live in supported housing. As discussed above, the legal definition of integration does not tum on independence, but rather on opportunities for contact with nondisabled persons. Dr. Jeffrey L. Geller, defendant's expert, who has more than thirty years experience in the mental health field as a treating psychiatrist, notes that even individuals who live in supported housing face significant limitations on their independence: "[LJiving in one's apartment does not free one from leverage or coercion effectuated by the organized mental health system. It should be clear that it is possible for many to live in an adult home less encumbered by mandatory requirements such as performance attached to housing, or coercion for treatment adherence, than would one in one's own apartment, i.e., supported housing."lo6 In some respects, adult homes offer greater autonomy
106 Ex. Geller-A at 16.
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than supported housing because residents may face less pressure to attend day treatment programs or otherwise participate in programs.107 On the other hand, many types of Housing For Persons With Mental Illness have many rules, including curfews and limitations on visiting hours. 108
DAI further suggests that adult homes are not integrated simply because some of the homes are populated largely, or even entirely, by persons with mental illnesses. Being in a large home, however, does not minimize the opportunities residents have to leave the home and interact with nondisabled persons. Licensed CR-SROs may have as many as 100 persons with mental illness living together in one building. Moreover, as noted, even plaintiffs experts and other witnesses listed by them admit that it is possible for someone living in a scattered-site apartment to become isolated and have very little contact with nondisabled persons. to?
Moreover, the State does not designate certain adult homes as being for persons with mental illnesses or in any way control whom the home accepts as residents. Nor does the State place a quota on the number of persons with mental illnesses that a home may accept. The State, therefore, cannot be held responsible for private homes' decisions about whom to admit or the fact that some residents live in a home with a large percentage of persons with mental illnesses.
In sum, the undisputed evidence shows that adult home residents live in integrated settings because they have multiple opportunities for contact with nondisabled persons.
t07 Id. at II, 14. 108 Madan AtT. ~I~I 12-13 & Exs. A-B; Bear 90-9 1,96-98. 109 Duckworth 285; Lockhart 85-87; Tsemberis 112.
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POINT IV
DAI HAS NOT ESTABLISHED THAT RESIDENTS ARE QUALIFIED TO MOVE
Olmstead requires that the State move a person who is in State custody (unlike adult home residents) to a more integrated setting only if, among other requirements, the person is qualified to move into that setting. See Olmstead, 527 U.S. at 602. As in any ADA claim, establishing that the individual with a disability is "qualified" for the program or benefit at issue is an essential element of the claim. Here, the Complaint alleges that at least half of the 4,000 residents on whose behalfDAl has brought this case are qualified to move to more integrated settings, Compl. ~ 1] 4, but fails to identify a single such resident. After a significant amount of motion practice, in response to defendants' interrogatory seeking the identity of those residents DAI claimed were qualified to more integrated housing, DAI produced a list of 1536 residents who they claim are qualified to move to purportedly more integrated settings. 110 As discussed in defendants' contemporaneous Daubert motion, however, DAI has failed to establish that any of these individuals are qualified to live in allegedly more integrated settings because, among other reasons, none of these residents has been clinically examined by treatment providers to determine whether he or she meets the minimum requirements for acceptance into these housing programs.
110 In response to defendants' interrogatory seeking the names of such residents, DAI initially identified only two residents: one who has now moved to OMH-funded hOllsing, and the other who has declined severa) opportunities to attend required interviews for supported housing apartments and otherwise rejected opportunities to live outside of the adult home. P.e. 15; LK. 95, 103, 109-10. 1U-14. After repeated requests and motion practice, and after Magistrate Judge Go directed DAI to promptly supplement their response, on September 30, 2005, near the close of fact discovery, DAl disclosed a list of approximately 1250 residents whom it claimed were qualified and not opposed to moving to alternative settings. Relying on this list. defendants developed a sample of these residents, subpoenaed records for them., and had those records reviewed by defendants' expert. In April 2006, however, DAI's expert, Dr. Groves, substantially increased the size ofthe list of residents, opining that 1536 residents are willing and qualified to move, which required defendants to develop an entirely new random sample and subpoena and review records for numerous additIOnal residents, at considerable expense in staff time and tens of thousands of dollars in expert fees. See Aff. of Barbara K. Hathaway, Exs. B-F.
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A. Residents Must Be Deemed "Qualified" By Treatment Providers In Olmstead~ the Supreme Court held that the State has an obligation to move a patient from State psychiatric facilities only if the patient '''meets the essential eligibility requirements' for habilitation in a community-based program." Olmstead, 527 U.S. at 602 (citing 28 C.F.R. § 35 130(d». The Court emphasized that the State has no obligation to move a patient unless he or she is qualified: ["a]bsent such qualification, it would be inappropriate to remove a patient from the more restrictive setting." Id. Moreover, the State "generally may rely on the reasonable assessments of its own professionals ...." Id. Here, State treatment professionals are not under any legal obligation under the ADA to assess the capacity and desire of residents in private adult homes to move to alternative settings because such an assessment would constitute a new state program. Hart Aff. ~ 38. This, however, does not relieve DAI of its burden of assessing each of the residents it claims are qualified to move and establishing that each resident, in fact, is qualified to move. Olmstead, 527 U.S. at 602. DAI has utterly failed to meet that burden. The Complaint fails to identify the precise type of housing DAI seeks for its constituents, but DAJ's expert disclosures appear to indicate that DAI primarily seeks to move residents into scattered-site supported housing apartments. III As discussed, supported housing is designed for people with mental illness "who are able to live independently with minimal support services."112 Residents who live in supported housing should be able to take their medication independently and "meet their own daily needs and manage their household with minimal assistance from staff." 113
III See, ~, Duckworth at 5-8; Ex. E. Jones-l at 3, 11.
112 Ex. Tacoronti-A at 7; Myers AfT. 1M! 82, 83, 86-87.
113 Ex. Tacorontl-A at 7; Exs. Newman-I, J. 66

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B. DAI Failed to Prove That Any Residents Are Qualified for Supported Housing
DArs experts acknowledge that an in-person clinical examination is necessary to determine the supports that would be required for a person who moved to supported housing. I14 Nonetheless, DAI's experts failed to conduct any clinical evaluation of any of the 1536 residents identified as being qualified to move. Moreover, none of plaintiffs experts even reviewed the residents' mental health records before rendering an opinion. DAI, therefore, has failed to establish that any of these residents meet the eligibility requirements of supported housing.
An assessment of the type and scope of supports each resident would need in supported housing is a critical component of an analysis of whether these residents are qualified to live in supported housing. Clearly any person with mental illness is capable of living in an apartment if unlimited supports are provided; but to meet the minimum criteria for acceptance into supported housing an applicant must need only a bare minimum level of support. DAI's experts have failed to show, using acceptable data and methodology, that allY of the 1536 residents it identified require only this minimal level of support, not more. If any of these residents were to need further supports, DAI would in effect be requesting a fundamental alteration of the supported housing program as currently defined, which is not required by Olmstead. Adding substantial supports would also obviously Increase the costs significantly, further supporting defendants' fundamental alteration defense.
Although DAI failed to examine the 1536 residents it identified, the record reflects that the mental health providers who actually treat some of these residents have concluded they are 1101 qualified to move from their adult homes. It is well-accepted that the Court should defer to
114 Ex. Duckworth-7 at 3; Duckworth Dep. 173-175, 191, 204, 282-83; E. Jones Dep. 18-20,26; Ex. E. Jones-l at 11.
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the opinion ofthese treatment providers. 1l5 Olmstead, 527 U.S. at 602; Youngberg v. Romeo,

457 U.S. 307, 322-23 (1982). For example, treatment providers noted the following in residents'

records:

•

"Recipient will be more appropriate for discharge when he stops drinking beer,

copes better with symptoms of his illness, gains insight into his illness, develops

sound peer relationships and interpersonal skills. He is not ready for discharge at

this time."116

"The recipient lacks insight with regards to his mental health and continues to
display a guarded and paranoid disposition. He is not yet ready for discharge at
this time. * * * Recipient is not eligible for discharge as he is not yet able to function independently and has not accepted rehab or OT referral. * * * Recipient
will become eligible for discharge when he has reduced symptoms and is able to
live independently in the community."117

•

He [Recipient] has persistent severe mental illness requiring the structure of an

adult residence. * * * * [R.

has a significant psychiatric illness that requires

intensive support and structure. He is not capable of living in the community."l18

"Recipient is not ready for discharge as her coping skills need improvement, lacks insight into her illness, lacks skills for independent living."119

•

"Recipient has not developed the skill necessary for independent living and is not

ready to be considered for discharge."i20

Moreover, even New York Presbyterian "assessors" on whom DAI's expert Dr. Groves

115 The Court should defer to the mental health providers' Judgments here because they serve the same
function as the State professionals who treated plaintiffs in Olmstead and Youngberg, who were committed to Stateoperated psychiatric facilities. In those cases, the Court emphasized that deference should be given to judgments of the professionals who were actually treating the individuals at issue. Olmstead, 527 U.S. at 602; Youngberg, 457 U.S at 322-23.
116 Ex. Hathaway-L. 117 Ex. Hathaway-M.
118 Ex. Hathaway-N.
119 Ex. Hathaway-O.
120 Ex. Hathaway-P.
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relies indicated that some of the 1536 residents DAI identified should not be moved from adult homes. For example, one resident's assessment included the following notation: "Based on this assessment resident doesn't seem appropriate for more independent living. The adult home setting seems more appropriate, & hospitalization may be imminent if she doesn't stabilize."'21 Thus, even if the assessments were complete enough to support a determination of housing and support needs (which they are not), the Court should obviously defer to the clinician conducting the in-person interviews, rather than DAI's expert's review of the data.
Defendants' expert, Dr. Jeffrey Geller, also found that supported housing was not likely an appropriate placement for the vast majority of the residents identified by DAI. Dr. Geller analyzed adult home, mental health and Columbia Presbyterian "assessment" records of a random sample of the 1536 adult home residents identified by DAl. Of the 206 residents in the random sample only 134 were eligible for OMH-funded housing and were currently living in the adult homes (many of the residents identified by DAI had moved to nursing homes or psychiatric hospitals or had died). Dr. Geller concluded that ifhe were to assign these 134 residents to the most appropriate residential settings, only 32 residents or 25% would be assigned to supported housing. In other words, 75% of the residents listed in the random sample would likely not be appropriate for supported housing. 122 Importantly, although his data was more complete than that used by DAl's experts, Dr. Geller did not conduct clinical interviews of these residents or consider whether they desired to move to supported housing, and clearly testified that he would need additional information before recommending placement in supported housing. 123 Nor did he have the benefit of a treatment team to analyze the supports these residents would need.
121 Ex. Hathaway-Q. 122 Ex. Geller-B at 15. 123 See Geller Dep. at 139-41, 213-215.
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Rather, Dr. Geller was simply responding to DAl's experts' conclusions, and his opinion does not establish that any residents are quahfied for supported housing. Instead, Dr. Geller's findings establish that DAI's experts' analysis is woefully inadequate to prove this critical element of their case.
POINT V PLAINTIFF'S CLAIMS ARE BARRED BY THE FUNDAMENTAL ALTERATION DEFENSE Assuming arguendo that the ADA, as interpreted in Olmstead, applies here, plaintiffs claims must fail under defendants' fundamental alteration defense. In Olmstead, the Court recognized that "the integration mandate is not boundless" and states must have sufficient latitude "to administer services with an even hand." 527 U.S. at 603, 605. States retain the right not to "take any action that [they] can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35. 150(a). The "fundamental alteration" defense defined in Olmstead allows a State to "show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities." Olmstead, 527 U.S. at 604 (interpreting 28 C.F.R. § 35.130(b)(7)). See, Sanchez v. Johnson, 416 F.3d 1061, 1068 (9th Cir. 2005); Bryson v. Shepardson, 2006 U.S. Dist. LEXIS 71775, at *22 (D.N.H. Sept. 29,2006); Williams v. Wasserman, 164 F. Supp. 2d 591, 638 (D. Md. 2001). The courts will not disturb a State's scheme when, in light of existing budgetary constraints and the competing demands of other needy popUlations, "the State has developed a comprehensive, effective plan to move eligible patients into community care settings." Here, unlike the plaintiffs in Olmstead, plaintiffs constituents are not patients in State hospitals. Nonetheless, even if the Court finds that ADA compels the State defendants to move
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the adult home residents to "supported housing" with whatever services they need, the transfer would constitute a fundamental alteration of the State's services and programs.
First, the State's available resources within its mental health budget are limited and the transfer would increase the State's costs. Schaefer Hayes Aff. ~~ 38-59,87-104, 125-30; Kipper Ex. A; Myers Aff. ~~ 196-211,214-19; Simons Aff. ~ 12. Second, requiring the State to earmark its resources to conduct housing assessments of, and to develop and set aside Supported Housing beds and wrap around services for New York City adult home residents would unfairly impact the State's ability to provide services to other needy State residents with mental illness. Schaefer Hayes Aff. ~~ 130-37; Myers Aff. 'I~ 214-23; Newman Aff. 'I~ 106-08. Third, plaintiffs remedy would alter many of the State's programs, activities and policies. Schaefer Hayes Aff. ~ 138; Myers Aff. '1'1224-50; Newman Aff. 104-10. Fourth, the State has a comprehensive, effective Olmstead plan to enable disabled persons who participate in State programs and services to obtain those services in the most integrated setting possible. Myers Aff. 'J~ 97-186; Wollner Aff. 'l~ 60-65; Simons Aff. ~'115-111.
A. The State's Resources Are Limited In evaluating a State's fundamental alteration defense, the Court should use "the 'available resources' test" which properly focuses on the State's mental health budget, not the overall [welfare] budget or the State's general budget." Bryson v. Shepardson, 2006 U.S. Dist. LEXIS 71775 *22 (D.N.H. Sept. 29, 2006)(quoting Olmstead, 527 U.S. at 597»; Bruggeman v. Blagoievich, 219 F.R.D. 430, 435 (N.D. Ill. 2004)("Olmstead and its progeny limit the scope of available resources to the state's mental health budget"). See also Olmstead, 527 U.S. at 603604. Against the available resources of the mental health budget, the Court must also consider the range of services that the State provides to others with mental disabilities. Olmstead, 527 U.S. at 597, 603; Bruggeman, 219 F.R.D. at 434.
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Hence, in this case, the relevant State budget is the portion of the enacted State budget allocated to OMH,124 because that is the budget that would be required to fund if plaintiff were to prevail housing assessments for all adult home residents, and additional Supported Housing beds and wrap around services for those who were qualified and did not object to moving. Schaefer Hayes Aff. ~~ 42-47,87,92-94; Ex. Kipper-A; Myers Aff. ~~ 68, 213.
Each year OMH receives authorization, through the final budget, for limited funding, and all ofOMH's budget is allocated to support its existing programs and services. Schaefer Hayes Aff. 'I~ 33, 42, 126, 139; Simons Aff. ~ 24. As did the state officials in Sanchez, Bryson, and Williams, OMH officials must make difficult choices as to how to allocate OMH"s limited resources among the competing needs of various popUlations Statewide. Schaefer Hayes Aff. ~~ 125-27; Myers Aff. ~ 225. No additional resources are available to fund plaintiff's relief because OMH regularly, in its budget process, works diligently to identify potential savings, from closings of State hospitals, and reinvests them in community programs and services. Schaefer Hayes Aff. ~~ 67-71,106,126.
B. Transfer Would Cost The State More Contrary to plaintiff's contention, requiring defendants to assess and move thousands of adult home residents to Supported Housing with whatever services they would need to live there safely, would dramatically increase the State's costs. Schaefer Hayes Aff. ~'187-124; Ex. Kipper-A; Myers Aff.~'-; 187-206. Because vacancy rates for Housing for Persons with Mental Illness are low in New York City, placing a large number of individuals in those programs would of necessity require
124 OMH's budget is the relevant budget because that budget would be required to fund plaintiffs requested
relief of assessments and set aside beds and services. However, the cost comparison below factors in the State share of Supplemental Security Income ("SSI"), which residents of adult homes and Housing for Persons with Mental Illness, including Supported Housing, receive.
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development of additional beds. Schaefer Hayes Aff. ~~ 129-30; Ex. Kipper-A; Myers Aff. '!~ 213-15. Specifically, in 2006 for each eligible individual that would transfer from an adult home to scatter site Supported Housing, the increased cost to the State would be $13,500 if only OMH's budget is considered, and $8,244 if the State's contribution to SSI is included. Ex. Kipper-A; Myers ~~ 190, 200. This represents a dramatic increase of 231 % in cost to the State. This analysis includes consideration of expected relevant savings and is based on conservative assumptions, assuming that a given adult home resident is qualified for and does not object to transfer to the Supported Housing scatter site apartment program. Schaefer Hayes Aff. 'I~ 87104; Ex. Kipper-A; Myers Aff. ~~ 202-03. If instead, the individual lacks sufficient independent living skills to maintain the Supported Housing bed with the minimal case management embedded in that model, and needs an ACT I25 team (which previously cost OMH $3,000 to $7,500 per slot), then the cost to the State of the transfer would increase even more. 126 Schaefer Hayes Aff. '199; Ex. Kipper-A; Myers Aff. '1202-03.
While plaintiff contends that the cost analysis should include "projected Medicaid savings," such assumptions are wholly speculative, and therefore, properly excluded from the analysis. See Bruggeman, 219 F.R.D. at 435 ("[O]nly the resources available in the budget should be a factor; speculative or potential resources are irrelevant."). See Ex. Kipper-A; Myers Aff. ~~ 207 -10.
Likewise, it would be highly speCUlative to assume savings to the State of any other sort. Schaefer Hayes Aff. '1'1105-24 & Exs. K, L; Ex. Kipper-A; Myers Aff. ~~ 207-10. Given the
125 The Pathways to Housing program, which is designed to serve the homeless and which plaintiff holds as a model, is even more expensive. Tsembaris 138, 271-74, 304-08; Myers Aff. ~ 96 & Ex. DD.
126 While no individualized housing assessments were conducted of any of plaintiff's proposed constituents, the record shows that for the few whose records contain an indication that they might, with appropriate follow up, later be deemed by treatment professionals to be qualified for and not opposed to moving to Supported Housing (Exs. Geller A & B), it is likely that most would be determined to reqlllre an ACT team and possibly additional significant services, such as a home health aide, to maintain a Supported Housing program bed.
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conditions of the New York City real estate market and its lack of affordable housing for low

income, Schaefer Hayes Aff. ~ 109, it is reasonable to expect that, in the unlikely event that large

numbers of adult home residents were found qualified for, and actually moved to Supported

Housing, vacancies in adult homes would be filled with new residents coming from other

settings. Schaefer Hayes Aff. ~ 109; Ex. Kipper -A; Myers Aff. ~ 209. Therefore, the State

would still need to expend resources licensing and monitoring adult homes, and subsidizing the

State portion of payments for their residents receiving SSI and choosing to reside there. See

Olmstead, 527 U.S. at 604 n.l4 (holding cost analysis must account for state's fixed cost of

administration). 127 Therefore, it would be unduly speculative to assume any savings based on projected decreases in State SSI contributions. 128 Schaefer Hayes Aff. ~~ 108, 110; Myers Aff.

~~ 207-10.

C. Other Needy Individuals Would Be Adversely Affected

Courts have recognized the fundamental alteration defense where the State's mental

health "budget admits of no easily redirected funds at least without imposing disadvantages

upon other equally deserving persons with disabilities," and "the State is, by and large, doing

what it can with limited resources that have been provided by the legislature."

Bryson,

at *22-23. While OMH is committed to developing Housing for Persons with Mental Illness

throughout New York State, OMH is not a housing agency. Schaefer Hayes ~ 36; Simons Aff.

'1~1 24-25,65. Its primary mission is providing and overseeing mental health treatment and

127 Myers Aff. ~ 209·10. Furthermore, adult homes are among the range of housing options owned and operated by non-State entities in the community for both nondisabled and disabled adults. Myers Aff. ~ 61 & Ex. S. The State cannot simply close the privately owned homes in the absence of significant regulatory violations.
128 Despite defendants' repeated requests, including a motion to compel, plaintiff never produced a list of individuals who had been determined by any clinical professional to be qualified to move to Supported Housing, or what supports specific individuals would need. Plaintiff's utter default on this issue prevents defendants from calculating more comprehensively the cost of such supports and thus the difference in cost to the State on an individual and aggregate basis.
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services to all residents of the State. Myers Aff. ~~ 19,21; Simons Aff. ~~ 12-18 & Exs. A-F. OMH expends extensive resources to support, among other things, a broad array of community services, programs and activities that assist and enable State residents with mental illness including adult home residents - to receive treatment in, and reside in, the community. Schaefer Hayes Aff. ~~ 33-35; Myers Aff. ~~ 24-29, 68-96, 150-59. Since all of OMH's budget is allocated to support existing programs, OMH could not, without adversely impacting other adults and children with mental illness Statewide, devote its limited resources to conduct a housing assessment of, and to develop thousands of additional Supported Housing beds with wrap-around services for the adult home residents allegedly at issue. Myers Aff. ~~ 213-23; Simons Aff. 'l~ 11, 23-24, 65 & Exs. A-F; Schaefer Hayes Afr,l~ 125-38.
Therefore, requiring OMH to expend its resources to provide the services to adult home residents that plaintiff seeks would be inequitable, and constitute a fundamental alteration. Myers Aff. 'l~ 213-28; Simons Aff. ~'111, 23-24 & Ex. A-F; Schaefer Hayes Aff~ 125-37. Specifically, such a directive would force OMH to cut funding for existing community based services and programs serving other adults and children with mental illness. Myers Aff. ~~ 219-22; Simons Aff. 'l~ 11,23-24,65 & Ex. A-F; Schaefer Hayes Afr,1'll30-37. In particular, such a directive would require all other adults with mental illness who wanted and were eligible for Supported Housing, including persons being discharged from State psychiatric centers and the other five priority populations designated by OMH, 129 to unfairly wait behind adult home residents for Supported Housing beds. Myers Aff. ~~ 217-18; Schaefer Hayes Aff~~ 131-32,37.
D. Plaintiff's Demand Alters The Nature of the State's Programs Plaintiff contends that the State should assess and move thousands of plaintiffs alleged constituents to Supported Housing even if they require substantial supports to maintain an
129 These are populations which, unlike adult home residents, are actually in institutions or lack any housing.
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apartment. If compelled, this result would alter the substance of OMH's policies, programs and services. First, to the extent it required OMH to assess and place adult home residents, it would create a new program that does not exist, along with an obligation to staff and fund it. Myers Aff. ~~ 238-42. Second, it would change the nature of the Supported Housing program, which by design offers only minimal case management, and was designed for those who have sufficient skills and abilities to maintain their apartment with minimal support. Myers Aff. ~~ 243-44; Schaefer Hayes Aff,-r,-r 28-29. Third, plaintiffs demand that its constituents receive "Supported Housing" with whatever supports they need to maintain the apartment is a fundamental alteration because it seeks entitlemene30 to one particular type of State subsidized housing for all individuals with mental illness who desire it, along with a tailored package of any community supports that would permit the individual to maintain the apartment. Myers Aff. ~~ 245-50; Simons Aff. '165. Fourth, setting aside Supported Housing beds for adult home residents would be contrary to OMH policies, which consider the needs of all State residents with mental illness in allocating its limited resources and which consider adult home residents to be one of seven high need, priority populations. Myers Aff. ~'l 229-37; Simons Aff. ,-r,-r 73-74; Schaefer Hayes Aff'I'1 33-35, 125-28, 131-32. It would also violate Olmstead's admonishment that "a court would have no warrant effectively to order displacement of persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions." 527 U.S. at 606.
130 This '"entitlement" does not exist in New York. nor, to the parties' knowledge, anywhere in the U.S., and Olmstead does not require its creation. Rodriguez v. City of New York, 197 F.3d 611, 615-16 (2d CiL 1999) (state is not obligated to create new program); Olmstead, 527 U.S. at 603 n.14 (ADA does not guarantee that each recipient of benefits will get care precisely tailored to his needs).
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E. Defendants' "Olmstead Plan" Is Sufficient Simply put, in Olmstead, a plurality of the Supreme Court held that for patients of State hospitals whose treating physicians had determined were qualified to move into community settings, states had a duty to transfer those who did not oppose the transfer within a reasonable amount of time, using a system that had a waiting list that moved at a reasonable pace. Olmstead, 527 U.S. at 593-94 and 607. Long a nationwide leader in its commitment to meeting its residents' mental health needs, New York State was in compliance with Olmstead's mandate even before that case was decided. Myers Afr. ~~ 100-02, 152-56; Simons Afr. ~~ 16-20,26-111 & Exs. A-F; Campbell Afr. ~ 16. The record establishes that New York had significantly reduced the census of state psychiatric centers, closed beds where feasible and invested savings into community based services. Myers Aff. ~~ 99-104, 155-56; Simons Aff. 'l~ 16-20,26-111 & Exs. A-F. OMH has also worked diligently to allocate increased funding where available from the budget to develop almost thirty thousand units of Housing for Persons with Mental Illness, as well as to develop and support many types of community based services and treatment that enable mentally ill individuals to receive treatment in the community. Myers Aff. ~~ 67-69, 15355; Simons Afr. ~~ 57-81 & Exs. A-F; Schaefer Hayes ~~ 15,34,49-50. Furthermore, New York State's Most Integrated Settings Coordinated Council ("MISCC") has recently issued its comprehensive report on the State's Olmstead plan as it relates to all relevant disabled popUlations within New York. Ex. Wollner-BB; Myers Afr. ~ 127. While OMH has no obligation to publish a single document entitled "Olmstead plan" much less such a plan tailored to each subpopulation of adults with mental illness living in a particular type ofresidential setting - OMH has a comprehensive existing system and plan in place to provide mentally ill individuals, including adult home residents, with access to a vast array of community based services and programs, including Housing for Persons with Mental
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lllness, should such individuals be interested in and eligible for them. 131 Myers Aff. " 97-98,
103-68 & Exs. B-HH; Simons Aff." 15-111 & Exs. A-F. Moreover, the process by which Housing for Persons with Mental Illness is made available by not-for-profit providers to eligible applicants, including adult home residents, functions reasonably in the context of the State's demonstrated past and renewed commitment to expanding community based services, including Housing for Persons with Mental Illness. Myers Aff. ,,88-94 & Exs. K-Q, S-CC; Simons Aff. ,,39-41,46-79,108-09 & Ex. A~F.
Plaintiffs radical interpretation of Olmstead would impose upon the State with respect to adult home residents who receive treatment from community based providers and live in private proprietary homes in the community ~ the same responsibilities the State has for mentally ill patients of State hospitals under the care of State professionals. Assuming arguendo that Olmstead were to be expanded to require a "plan" for adult home residents, the fundamental alteration defense would logically need to be modified to apply to privately operated facilities, in which the State does not control an individual's treatment. As a practical matter, it is not feasible for OMH to maintain a waiting list comprised of applicants residing in private residences Statewide for Housing Programs that are operated by numerous not-for-profit housing providers. Myers Aff. ~'l 178-80 & Ex. II. Therefore, the component of a State maintained waiting list as
131 The highlights of the system include: OMH' s discharge planning policies and practices at its State hospitals; OMH vast network of more than 27,000 community housing beds; OMH's commitment to developing even more OMH Housing beds over the next several years; OMH's designation of adult home residents as a priority population for OMH Housing beds; OMH's oversight through licensure of menta] health providers who are required to develop appropriate individual treatment plans for adult home residents; DOH's oversight through inspection and licensure of adult home case managers who are required by applicable regulation to assist residents in moving where appropriate; a not-for-profit SPOA entity which maintains vacancy lists for each not-for-profit housing provider in New York City: a centralized processing City agency, HRA, which accepts HRA 2000 applications for OMH Housing and arranges for interviews with applicants with available not-for-profit housing providers; OMH's Adult Home Case Management Initiative which assists adult home residents in developing and achieving individualized treatment plans; DOH's EnAbLE program; and OMH's research into mental health issues, ensuring the State's mental health policies are informed by state of the art knowledge. Myers Aff. -]-197-168 & Exs. B-HH; Simons Aff. ~~ 26-111 & Ex. A-F; Reilly Aff. ~~ 19-31.
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discussed by courts applying Olmstead in the context of State hospitals should either be deemed inapplicable, or satisfied by OMH's current comprehensive plan, which includes a system of designating target populations for Housing Program beds and a requirement that mental health professionals providing services to residents of adult homes develop individualized treatment plans, which include, if the individual is interested in such a goal, applying for and moving to an alternate settings of his or her choice, including Supported Housing, and assisting the individual to acquire any needed independent living skills. Myers Aff. ~~ 109-13, 116-19, 128-29,133-44, 181-85 & Exs. G, H, J, K, M, U-W; Simons Aff. ~~ 40-41,47. The application process is available to adult home residents, adult home residents have recently been designated as a priority population to increase their access to such beds, and the record demonstrates that adult home residents have been successful in applying for Housing for Persons with Mental Illness and moving from adult homes when they want to. Myers Aff. '['194,146-149, 174 & Exs. V & W; Simons Aff. ~~ 15,28,40-41,43-45,47; Reilly Aff. ~ 29.
As demonstrated above, because granting plaintiffs requested relief would fundamentally alter the nature of OMH's policies, services, programs, and activities, defendants' motion for summary Judgment should be granted.
POINT VI DEFENDANTS HAVE NOT DISCRIMINATED IN THEIR INSPECTIONS AND ENFORCEMENT OR TOLERATED POOR CONDITIONS IN IMPACTED ADULT HOMES Plaintiffs third and sixth causes of action, based on DOH's alleged failure to use its oversight and regulatory authority to redress poor conditions in large, impacted adult homes, must be dismissed, first, because DOH's oversight and law enforcement actions are not a program, service or activity subject to the ADA, and, second, because the undisputed evidence shows that DOH has not used its enforcement powers selectively. Rather, it has taken stronger actions against impacted homes than against non-impacted homes.
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In its third and sixth claims, akin to discriminatory or selective enforcement claims, plaintiff alleges that defendants have discriminated "by failing to take adequate measures to redress continued poor conditions in impacted adult homes that, upon information and belief, they do not tolerate in adult homes that primarily serve individuals with physical disabilities." However, the undisputed evidence reveals that defendants have, if anything, devoted more staff and resources to oversight of impacted adult homes than to non-impacted homes, and have not failed to inspect and cite impacted adult homes for violations. Most significantly, the evidence reveals that over the past 6 years, of the enforcement penalties imposed on New York City adult homes, 15 have been assessed against impacted homes, and only two against non-impacted homes. Ex. Hart-VV. Moreover, four of the most problematic, large impacted homes in New York City have closed and/or re-opened under new operators as a result of DOH actions. Thus, plaintiffs third and sixth claims are baseless and must be dismissed.
As shown in Point III, supra, a governmental entity's use of its authority to regulate or to enforce the law does not give a private right of action to any particular individual. No person has the right to have such authority exercised in a particular manner, and no person may individually seek to compel the State to take any particular law enforcement action. Rather, such regulatory authority is of only indirect benefit to the individual, and its exercise is solely within the discretion ofthe governmental agency. See generally Town of Castle Rock v. Gonzales, 545 U.S. 748 ; Heckler v. Chaney, 470 U.S. 821; O'Bannon v. Town Court Nursing Center, 447 U.S. 773. Accordingly, the exercise or non-exercise of such power is not subject to review by a Court under the ADA. Amirault v. City of Roswell, 1996 U.S. Dist. LEXIS 9887. Any other result would essentially transform the federal Court into a Super-Department of Health, monitoring adult homes' compliance with State Codes and directing administrative enforcement decisions.
However, even if the Court finds that such law enforcement activities are reviewable under the ADA, in order to prevail plaintiff must establish that the laws governing adult homes
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essentially go unenforced, or that DOH enforces laws in other venues but denies the benefit of its law enforcement activities to adult home residents with mental disabilities. This plaintiff cannot prove.
In Independent Living Resource Center, Inc. v. City of Wichita, 2002 U.S. Dist. LEXIS 6324 (D. Kansas March 15, 2002), plaintiffs claimed they were denied the benefits of a handicapped parking space program due to the lack of enforcement of parking laws. As a result, non-disabled private citizens parked in the spaces, depriving the disabled of the use of the spaces. The court denied a motion to dismiss, finding that "the ADA applies to all activities of the City of Wichita, including its policies and practices relating to enforcement of handicap parking ordinances." However, the court said that in order to ultimately prevail, plaintiff would have to prove that the objectives of the program were substantially impaired "by showing that the City's handicap parking ordinances go essentially unenforced, or that the City enforces other ordinances but rcgularly ignores enforcement of handicap parking ordinances, thereby denying individuals with disabilities the benefits of enforcement that other individuals receive."
This Court, unlike the Wichita court, has the benefit of a full record of the defendants' enforcement activities. This record demonstrates that plaintiff cannot show that defendants have discriminated in how they have enforced standards in adult homes. With respect to inspections, in all inspection reports issued by DOH's MARO office, excluding "compliance" surveys (those where homes were found to have no violations and no findings) MARO cited an average of7.6, 6.31 and 6.34 violations in impacted adult homes in 2004. 2005 and 2006, respectively. It cited 5.31,5.71 and 4.68 in non-impacted homes during the same period. Ex. Hart-UU. Thus, DOH is simply not ignoring violations in impacted adult homes.
DOH has also imposed penalties against impacted adult homes at a much greater rate than against non-impacted homes. In fact, from 2000 to 2006, penalties have been imposed against 15 impacted homes, and only two non-impacted homes. Ex. Hart-VV. Moreover, DOH actions
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resulted in the closure of Seaport Manor, Ocean House Center and Leben Home, three large impacted homes, and DOH assisted in negotiating the sale of Brooklyn Manor after prolonged enforcement activity. In the face of this evidence, it is impossible to maintain that DOH is denying the benefit of its enforcement actions to residents with mental disabilities, or otherwise discriminating against residents with mental disabilities.
POINT VII GOVERNOR SPITZER SHOULD BE DISMISSED AS A PARTY TO THIS LITIGATION Pursuant to Rule 21 of the Federal Rules of Civil Procedure, Governor Spitzer should be dropped as a party to this litigation because his presence would not be necessary to afford DAI the full relief it seeks in the event it were to prevail in this litigation. Under Rule 21, the Court has discretion to drop a party from an action in the interests of justice. The Rule provides in relevant part: "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately." Fed. R. Civ. P. 21. Thus, the Court may drop a party as a defendant where its presence is unnecessary for the full relief requested by the plaintiff. Comm. For Pub. Ed. & Religious Liberty v. Rockefeller, 322 F. Supp. 678, 686 (S.D.N.Y. 1971). In Committee for Public Education and Religious Liberty v. Rockefeller, 322 F. SUpp. 678 (S.D.N.Y. 1971), the Court dropped the Governor as a party to an action because full relief could be afforded by the other named defendants. Id. at 686. There, the plaintiff named the Governor, the Comptroller, and the Commissioner of Education as defendants in an action challenging the constitutionality of an appropriation of funds for the examination and inspection of students in nonpublic schools. Id: at 679-80. The Court granted defendant's motion to drop the Governor as a party, holding "[i]t is clear that, should the plaintiffs prevail, the full relief they
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Case 1:03-cv-03209-NGG -MDG Document 172 Filed 08/10/07 Page 94 of 95 seek can be afforded by the issuance of an injunction against the Commissioner of Education and the State Comptroller, who between them have the sole power and responsibility for the execution of [the challenged statute's) provisions." rd. at 686; cf. Romeu v. Cohen, 121 F. Supp. 2d 264, 272 (S.D.N.Y. 2000) (Governor is not a proper defendant in actions challenging constitutionality of state statute despite his general duty to enforce the laws), affd, 265 F.3d 118 (2d Cir. 2001); Warden v. Pataki, 35 F. Supp. 2d 354, 359 (S.D.N.Y. 1999) (same), affd sub nom. Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999).
Here, if DAI were to prevail, full relief could be provided by the four other named defendants. These defendants, the Commissioners of OMH and DOH and the agencies themselves, have plenary authority to regulate the certified mental health care and treatment services received by adult home residents and to regulate the physical plant of adult homes. See generally SSL §§ 460, 460-a. The Governor's presence, therefore, confers no further advantage on DAr. Because full relief could be afforded by the remaining defendants, DAI will not prejudiced by the Governor's dismissal. Comm. for Pub. Educ., 322 F. Supp. at 686. To conserve the limited resources of his important office, Governor Spitzer should be dropped as a party in the interests ofjustice.
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CONCLUSION
FOR THE FOREGOING REASONS, SUMMARY JUDGMENT SHOULD BE GRANTED FOR THE DEFENDANTS AND THE COMPLAINT SHOULD BE DISMISSED.

Dated: New York, New York August 10, 2007

Respectfully submitted,

BARBARA K. HATHAWAY AMY FIELD SCOTT 1. SPIEGELMAN AMY L. ABRAMOWITZ Assistant Attorneys General of Counsel

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants By:
~K!tIkz~
BARBARA K. HATHAWAY Assistant Attorney General 120 Broadway New York, New York 10271 (212) 416-8560

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X
DISABILITY ADVOCATES, INC.,

-against-

Plaintiff,

DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD F. DAINES, in his official capacity as Commissioner of the New York State Department of Health, MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants. -------------------------------------------------------------------X

03-CV-3209 (NGG)

MEMORANDUM & ORDER SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Case 1:03-cv-03209-NGG-MDG Document 341 Filed 09/08/09 Page 2 of 210
NICHOLAS G. GARAUFIS, United States District Judge. The Supreme Court held in Olmstead v. L.C., 527 U.S. 581 (1999), that “[u]njustified
isolation . . . is properly regarded as discrimination based on disability,” observing that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” 527 U.S. at 597, 600. The “integration mandate” of Title II of the American with Disabilities Act, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 791 et seq., as expressed in federal regulations and Olmstead, requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” The “most integrated setting,” according to the federal regulations, is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A.
Plaintiff Disability Advocates, Inc. (“DAI”), a protection and advocacy organization authorized by statute to bring suit on behalf of individuals with disabilities, brings this action on behalf of individuals with mental illness residing in, or at risk of entry into, “adult homes” in New York City with more than 120 beds and in which twenty-five residents or 25% of the resident population (whichever is fewer) have a mental illness. Adult homes are for-profit residential adult care facilities licensed by the State of New York (the “State”).
Following a five-week bench trial, DAI has proven by a preponderance of the evidence that its constituents, approximately 4,300 individuals with mental illness, are not receiving services in the most integrated setting appropriate to their needs. The adult homes at issue are institutions that segregate residents from the community and impede residents’ interactions with
2

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people who do not have disabilities. DAI has proven that virtually all of its constituents are qualified to receive services in “supported housing,” a far more integrated setting in which individuals with mental illness live in apartments scattered throughout the community and receive flexible support services as needed. DAI has also proven that its constituents are not opposed to receiving services in more integrated settings. Therefore, DAI has established a violation of the integration mandate of the ADA and the Rehabilitation Act.
Defendants are the New York State Department of Health (“DOH”), the New York State Office of Mental Health (“OMH”), as well as Governor David A. Paterson and the Commissioners of DOH and OMH (collectively, “Defendants”).1 Defendants are required under New York law “to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill.” N.Y. Mental Hyg. Law § 7.01; see id. §§ 5.07, 7.07. They administer the State’s mental health service system, plan the settings in which mental health services are provided – by both public and private entities – and allocate resources within the mental health service system. See, e.g., N.Y. Mental Hyg. Law §§ 5.07, 7.07, 41.03, 41.42, 41.39; N.Y. Comp. Codes R. & Regs. tit. 18 §§ 485-87. In carrying out these duties, Defendants have denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs. Defendants’ actions constitute discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act. Although Defendants have raised an affirmative defense, they have not satisfied their burden of proof to establish that the relief DAI seeks would constitute a
1 The Governor and the DOH and OMH Commissioners are sued in their official capacities only.
3

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“fundamental alteration” of the State’s mental health service system. Accordingly, DAI is entitled to declaratory and injunctive relief. I. BACKGROUND
DAI filed this suit on June 30, 2003, seeking declaratory and injunctive relief. (Compl. ¶ 34 (Docket Entry #1).) Discovery concluded on November 14, 2006. On February 19, 2009, the court denied the parties’ motions for summary judgment. Disability Advocates, Inc. v. Paterson (“DAI I”), 598 F. Supp. 2d 289 (E.D.N.Y. 2009). After considering a voluminous factual record of over 13,000 pages and approximately 675 exhibits, this court resolved a host of legal issues raised by the parties. See id. at 293-94. As threshold matters, the court concluded that: (1) DAI has statutory and Article III standing, (2) Title II of the ADA applies to DAI’s claims in this case, and (3) the Governor is a proper party. See id. at 307-311, 313-19, 356-57. The court also discussed at length the components of the fundamental alteration defense. See id. at 333-39.
In DAI I, the court identified several issues for trial. To determine whether DAI’s constituents are in the “most integrated setting appropriate for their needs,” the court would have to determine at trial (1) whether adult homes are the most integrated setting appropriate for DAI’s constituents to receive services, and (2) whether DAI’s constituents are “qualified” for supported housing. See id. at 319-20 (framing legal inquiry); id. at 331, 333 (concluding that issues of material fact precluded granting summary judgment to Defendants). The court also determined that issues of material fact remained as to the fundamental alteration defense, on which both sides had sought summary judgment. Id. at 349, 356.
The court presided over an eighteen-day bench trial from May 11 to June 16, 2009. The court heard testimony from State officials, mental health and other experts, lay witnesses with
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extensive experience in State government, service providers, and current and former adult home
residents, two of whom now live in supported housing. Twenty-nine witnesses testified, more
than three hundred exhibits were admitted into evidence, and excerpts from the deposition
transcripts of twenty-three additional witnesses were entered into the record, along with the
3,500 page trial transcript. The parties submitted proposed findings of fact and conclusions of
law on July 13, 2009 and responses on July 22, 2009.2
The parties have engaged in numerous settlement discussions over the last six years.3
After a recent round of settlement conferences before Magistrate Judge Marilyn D. Go, the
parties remain unable to settle the case.4 Accordingly, after considering all of the evidence, this
court issues the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the
Federal Rules of Civil Procedure.5
2 See Defendants’ Proposed Findings of Fact and Conclusions of Law (“Defs. PFF”) (Docket Entries #320, 321); Plaintiff’s Proposed Findings of Fact & Conclusions of Law (“Pl. PFF”) (Docket Entry #325); Defendants’ Response to Plaintiff’s Proposed Findings of Fact and Conclusions of Law (“Defs. Resp. PFF”) (Docket Entry #329); Plaintiff’s Response to Defendants’ Proposed Findings of Fact and Conclusions of Law (“Pl. Resp. PFF”) (Docket Entry #330). 3 See, e.g., Minute Entries dated Nov. 14, 2003; Oct. 12, 2005; Nov. 14, 2006; Dec. 19, 2006; Mar. 20, 2009; Apr. 7, 2009; June 8, 16, 22, & 26, 2009; July 2, 2009; see also Docket Entries #25, 26, 35 (parties’ settlement status reports). 4 See Minute Entry for Telephone Settlement Conference Before Magistrate Judge Marilyn D. Go on July 2, 2009 (noting that “[s]ettlement discussions are at an impasse”). 5 Throughout the Findings of Fact, except where noted, the court credits the testimony of the witnesses identified. The court has identified certain instances where it finds particular evidence unpersuasive, irrelevant, or not credible. The court has considered all the evidence in the record but has not included here all of the evidence that it ultimately found unpersuasive or not material to the outcome.
The court provides a list of acronyms appearing in the Findings of Fact in the Appendix to this Memorandum & Order. The court refers to current and former adult home residents by their initials in accordance with Magistrate Judge Go’s Protective Order dated May 19, 2004. A.M., P.C., M.B., and J.M. no longer lived in an adult home at the time of their depositions; G.L. and I.K. no longer lived in adult homes at the time of their trial testimony. (Joint Stipulations of Fact (“Joint Stip.”) ¶ 35 (Joint Pre-Trial Order, Docket Entry #260).)
The parties have designated portions of depositions admitted into the record at trial, with objections indicated in the margins. Where the court relies on deposition testimony to which a party has objected, it provides a ruling on the objection. Where the court cites to a full page or consecutive pages of a deposition, it has relied only
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II. THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT DAI I explains in detail the court’s resolution of numerous legal issues in this case,
including the meaning and application of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. See 589 F. Supp. 2d at 311-12, 331, 33339. Here, the court provides a brief overview of the relevant legal standards. It then sets forth the core holdings of DAI I with respect to the applicability of Title II to Plaintiff’s claims.
A. LEGAL STANDARDS The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress recognized that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). Congress found that “individuals with disabilities continually encounter various forms of discrimination, including . . . segregation.” Id. § 12101(a)(5). Title II of the ADA prohibits discrimination in connection with access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; DAI I, 598 F. Supp. 2d at 311. To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is a “qualified individual” with a disability; (2) that the defendants are subject to the ADA; and (3)
on the portions admitted into evidence. The court includes line numbers in citations to deposition pages only where a party has objected to part of a particular page of testimony and the court has not relied on that testimony.
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that he or she was denied the opportunity to participate in or benefit from the defendants’ services, programs, or activities, or was discriminated against by defendants, by reason of his or her disability. See Henrietta D. v. Bloomberg, 331 F. 3d 261, 272 (2d Cir. 2003); DAI I, 598 F. Supp. 2d at 311.
Section 504 of the Rehabilitation Act (“Section 504”) similarly prohibits disability-based discrimination: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). Claims under the two statutes are treated identically unless – unlike here – one of the “subtle differences” in the two statutes is pertinent to a claim. Accordingly, in this case the court treats the claims under Section 504 as identical to the ADA claims. Henrietta D., 331 F.3d at 272; DAI I, 598 F. Supp. 2d at 311 n.25. It is undisputed that DAI’s constituents are individuals with disabilities who are protected by the ADA and Section 504.6
One form of discrimination “by reason of . . . disability” is a violation of the “integration mandate” of Title II of the ADA and Section 504. This mandate – arising out of Congress’s explicit findings in the ADA, the regulations of the Attorney General implementing Title II, and the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999) – requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated
6 The ADA defines “disability,” with respect to an individual, as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual, (B) a record of such an impairment, or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1). DAI’s constituents have one or more major mental illnesses, such as schizophrenia, bipolar disorder, depression and others, which constitute mental impairments that substantially limit one or more major life activities. (See, e.g., Tr. 837-38, 854, 824-27, 828-35, 839-40, 847 (Duckworth) (testifying that residents of the adult homes at issue and supported housing have severe and persistent mental illness and describing diagnoses and impairments of individual residents); Tr. 52-53 (E. Jones).)
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setting appropriate to their needs.” 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d); Olmstead, 527 U.S. at 607.
Delineating the scope of the ADA’s integration mandate, the Supreme Court in Olmstead explicitly held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. The Court noted that “in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’” Id. at 600. The Court recognized that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes individuals’ everyday activities.” Id. There is no federal requirement, however, “that community-based treatment be imposed on patients who do not desire it.” Id. at 602.
In its analysis of the ADA’s integration mandate in Olmstead, the Supreme Court deferred to the Attorney General’s interpretation of Title II. See id. at 598 (“It is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (internal quotation marks and citations omitted). Thus, following Olmstead, courts have looked to the language of the Attorney General’s regulations interpreting Title II, as well as the holding in Olmstead, as the standard by which to determine a violation of the ADA’s integration mandate. See DAI I, 598 F. Supp. 2d at 313; Joseph S. v. Hogan, 561 F. Supp. 2d 280, 289-90 (E.D.N.Y. 2009); see also Townsend v. Quasim, 328 F.3d 511, 516, 520 (9th Cir.
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2003) (“The plain language of the integration regulation [28 C.F.R. § 35.130(d)], coupled with the reasoning and holding of Olmstead, direct our analysis in this case.”).
The Attorney General’s regulations implementing Title II provide that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”7 28 C.F.R. § 35.130(d); see also 42 U.S.C. § 12134(a) (requiring the Attorney General to issue implementing regulations). The Appendix to the federal regulations defines the “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), 28 C.F.R. pt. 35 app. A. As discussed in DAI I, the court defers to these definitions and applies them as the legal standard here.
A state’s failure to provide services in the most integrated setting appropriate is excused only when the state can demonstrate that the relief sought would result in a “fundamental alteration” of the state’s service system. See Olmstead, 527 U.S. at 603. The “fundamental alteration” defense is derived from the “reasonable modifications” regulation, which states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). A plurality of the Supreme Court described the defense as follows:
7 As Congress directed, see 42 U.S.C. § 12134(b), this regulation is consistent with a similar regulation implementing Section 504 of the Rehabilitation Act, which requires recipients of federal funds to administer programs and activities “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
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Sensibly construed, the fundamental-alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Olmstead, 527 U.S. at 604. As this court noted on summary judgment, evaluating the fundamental alteration defense involves a specific, fact-based inquiry to determine whether the requested relief would impose a “fundamental alteration” of the State’s programs and services, taking into account Defendants’ efforts to comply with the integration mandate with respect to the population at issue and the fiscal impact of the requested relief, including the impact on the State’s ability to provide services for other individuals with mental illness. See DAI I, 598 F. Supp. 2d at 334. B. DEFENDANTS ARE SUBJECT TO THE ADA AND THE
REHABILITATION ACT Title II of the ADA applies to “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1). Accordingly, all Defendants in this action are subject to the ADA. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209 (1998); see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997) (holding that zoning decisions are subject to the ADA and noting that “programs, services, or activities” is a “catchall phrase that prohibits all discrimination by a public entity, regardless of the context.”), rev’d on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n.7 (2d Cir. 2001).
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Additionally, Defendants have stipulated that their programs or activities “receiv[e] federal financial assistance.”8 As such, they are subject to Section 504. 29 U.S.C. § 794(a).
In DAI I, the court held that Title II applies to DAI’s claims in this case. DAI I, 598 F. Supp. 2d at 317; see id. at 319 (holding that DAI’s “claim falls squarely under Title II of the ADA”). In doing so, the court rejected Defendants’ argument that the State is not liable under the ADA because the adult homes are privately owned, and finding that it is “immaterial that DAI’s constituents are receiving mental health services in privately operated facilities.” Id. at 317; see Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999). The ADA requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
As the court previously held, Defendants’ actions at issue here – including the allocation of State resources among various service settings – involve “administration.” Defendants, as required by New York law, administer the State’s system of mental health care, including residential and treatment services provided by both public and private entities. DAI I, 598 F. Supp. 2d at 317. They plan how and where services for individuals with mental illness will be provided, and they allocate the State’s resources accordingly. Id. Defendants are also required under State law to develop a “comprehensive, integrated system of treatment and rehabilitative services for the mentally ill” that assures “the adequacy and appropriateness of residential arrangements” and relies on “institutional care only when necessary and appropriate.” N.Y. Mental Hyg. Law §§ 7.01, 7.07. As this court previously held, “[t]he State cannot evade its obligation to comply with the ADA by using private entities to deliver services that are planned,
8 Joint Stip. ¶¶ 36, 37.
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implemented, and funded as part of a statewide system of mental health care.” DAI I, 598 F. Supp. 2d at 318. III. PLAINTIFF’S CLAIMS UNDER THE ADA AND REHABILITATION ACT
As set forth below, DAI has proven by a preponderance of the evidence that Defendants have discriminated against DAI’s constituents by reason of their disability. DAI has established that the adult homes at issue are not the most integrated setting appropriate to the needs of DAI’s constituents: the adult homes do not “enable interactions with nondisabled persons to the fullest extent possible,” especially compared to supported housing, a far more integrated setting. DAI has established that virtually all its constituents are qualified to move to supported housing and are not opposed to receiving services in more integrated settings.
A. DAI’S CONSTITUENTS ARE NOT IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR NEEDS 1. Legal Standard
The law requires that public entities “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). According to the federal regulations, the “most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A. In DAI I, the court resolved the parties’ dispute regarding the meaning of the federal regulations and concluded that the proper inquiry is whether the individuals at issue “are in the ‘most integrated setting appropriate to their needs,’ defined as ‘enabl[ing] individuals with disabilities to interact with nondisabled persons to the fullest extent possible.’” See DAI I, 598 F. Supp. 2d at 321 (citing 28 C.F.R. § 35.130(d), App. A and concluding that “the federal regulations mean what they say”).
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2. Findings of Fact a. Background
Adult homes are a type of adult care facility licensed by the State and authorized to provide long-term residential care, room, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator.9 Adult homes are privately owned, for-profit facilities.10 State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, physical and environmental standards, and services that must be provided in adult homes.11
Defendants administer the State’s system of mental health care, including residential and treatment services provided by public and private entities.12 Defendant OMH licenses, funds, and oversees an array of mental health housing and support service programs statewide, including community support, residential, and family care programs.13 OMH is also required by law to plan how and where New York’s mental health services will be delivered.14 In particular, OMH is obligated to “develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill” and to “create financing procedures and mechanisms to support such a system of services”; it relies on both public and private providers of those services.15 OMH is also responsible for planning and developing programs and services “in the areas of
9 Joint Stip. ¶¶ 2, 17. 10 Id. ¶ 18; Trial Transcript (“Tr.”) 644 (Rosenberg). 11 See N.Y. Comp. Codes R. & Regs. tit. 18 §§ 485-487; Tr. 2992-93 (Hart) (describing regulations). 12 N.Y. Mental Hyg. Law §§ 5.07, 7.07. 13 Id. §§ 41.03, 41.42, 41.39. 14 Id. § 7.07. 15 Id.
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research, prevention, and care, treatment, rehabilitation, education, and the training of the mentally ill.”16
The other Defendant agency, DOH, is responsible for, among other things, promoting the “development of sufficient and appropriate residential care programs for dependent adults.”17 DOH issues operating certificates to establish and operate adult homes.18 The operating certificates must be reissued every four years.19 DOH also licenses and monitors adult homes and enforces the applicable statutes and regulations20 through unannounced inspections of each adult home every twelve or eighteen months, depending on the facility’s record.21 It can revoke,
suspend, or terminate an operating certificate if an adult home fails to comply with State regulations,22 or if DOH determines that such an action is in the public interest because it would conserve resources.23
In 2002, there were 12,586 recipients of mental health services residing in adult homes statewide.24 There are currently 380 licensed adult homes in New York State, and 44 adult
16 Id. § 7.07(a); id. § 5.07 (requiring OMH to formulate each year “a statewide comprehensive five-year plan for the provision of all state and local services for the mentally ill” that includes “establish[ing] priorities for resource allocation” and “analyz[ing] current and anticipated utilization of state and local, and public and private facilities and programs.”). 17 N.Y. Comp. Codes R. & Regs. tit. 18, §§ 485.3(a)(1), 487.1(b). 18 Joint Stip. ¶¶ 4-5. 19 Id. ¶ 5. 20 Id. ¶ 2. 21 N.Y. Soc. Servs. Law § 461-a(2)(a). After each inspection, DOH issues an inspection report, and the facility is required to correct any violations or submit a plan of correction. (N.Y. Comp. Codes R. & Regs. tit. 18 § 486.2(h-j); Tr. 2998-3007 (Hart) (describing inspections).) OMH is also involved in the inspection process. See N.Y. Comp. Codes R. & Regs. tit. 18, § 485.3(b)(1) (stating that OMH may participate in inspections); see infra note 648. 22 Joint Stip. ¶ 5. 23 N.Y. Comp. Codes R. & Regs. tit. 18 § 485.5(m)(1)(i). 24 S-5 (NYS OMH, 2004-2008 Statewide Comprehensive Plan for Mental Health Services) OMH 5999.
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homes in New York City.25 Adult homes in which at least 25% of the residents or 25 residents (whichever is fewer) have mental disabilities are referred to as “impacted.”26 While the term

“mental disabilities” includes both mental illness and developmental disabilities, only a few of

the 12,000 individuals with mental illness who live in adult homes have developmental disabilities.27 The testimony and exhibits concerning “impacted” adult homes refer to those

homes with the requisite number of individuals who have “mental illness,” a “mental health diagnosis,” or “history of mental health diagnosis.”28 Defendants rely on information reported from the adult homes themselves to identify which homes are impacted.29 Impacted adult homes

must enter into a written agreement with a provider of mental health services for assistance with

the assessment of mental health needs, the supervision of mental health care, and the provision of case management for residents enrolled in mental health programs.30

i.

The Adult Homes at Issue

According to the most recent data, the DOH Adult Care Facility Census Report for 2008 (“DOH 2008 Census Report”),31 there are twenty-eight impacted adult homes in New York City

25 Joint Stip. ¶¶ 20, 21. 26 See N.Y. Mental Hyg. Law §§ 45.09(a), 45.10(a) (referring to adult homes in which “at least twenty-five percent or twenty-five residents, whichever is less, have at any time received or are receiving services from a mental hygiene provider which is licensed, operated or funded by the office of mental health, or the office of mental retardation and development disabilities”). 27 Tr. 1407-08 (Reilly). 28 See Tr. 2985, 2996-96, 3042 (Hart); see also P-283 (2004, 2005, and 2006 DOH Census Reports) (listing, inter alia, each adult home’s capacity and census, as well as the number and percentage of residents designated as “mental health”). 29 Tr. 2996-97, 3042 (Hart). 30 N.Y. Comp. Codes R. & Regs. tit. 18 §§ 487.7(b)-(c), 487.4(n). 31 DAI submitted a motion to admit the DOH 2008 Census Report, marked as P-774, which contains the most recent Adult Home census data. (Pl. Mot. To Admit Ex. P-774 Into Evidence (Docket Entry #322).) This data was discussed during trial but was not produced until after the trial. DOH’s 2004, 2005, and 2006 Census Reports were admitted into evidence without objection. (See Tr. 1219 (admitting P-283 (2004, 2005, and 2006 DOH Census
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with more than 120 beds.32 These adult homes are: Anna Erika Assisted Living, Bayview Manor
Home for Adults, Belle Harbor Manor, Bronxwood, Brooklyn Adult Care Center, Castle Senior
Living at Forest Hills, Central Assisted Living LLC (formerly known as New Central Manor),
Elm-York LLC, Garden of Eden, Lakeside Manor Home for Adults, Long Island Hebrew Living
Center, Mermaid Manor Home for Adults, New Broadview Manor Home for Adults, New
Gloria’s Manor Home for Adults, New Haven Manor, Oceanview Manor Home for Adults, Park
Inn Home for Adults, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor
Home for Adults, Rockaway Manor Home for Adults, Sanford Home, Scharome Manor,
Seaview Manor LLC, S.S. Cosmas and Damian Adult Home, Surf Manor Home for Adults,
Surfside Manor Home for Adults, and Wavecrest.
Reports).) During the testimony of Defendants’ witness Mary Hart, the court asked Defendants to provide the current census data. (See Tr. 3044.) Defense counsel stated that “[w]e can . . . I think it would be possible for us to stipulate on the final ’08 figures for those homes.” (Id.) Following trial, Defendants produced P-774, but would not stipulate to its admission. (See Decl. of Liad Levinson, Exs. A, E, & F (Docket Entry #324).)
The DOH 2008 Census Report is admissible as a business record under Rule 803(6) of the Federal Rules of Evidence, because census reports reflecting the number of residents with mental illness living in adult homes are regularly compiled and maintained by DOH in the course of business, and the data contained in the reports is audited by DOH. (Tr. 3042-43 (Hart).) The court rejects the contention that admitting the DOH 2008 Census Report into evidence would prejudice Defendants by effectively permitting DAI to amend its Complaint to include additional adult homes. (Defs. Opp. (Docket Entry #327).) Defendants have been on notice for more than six years that the adult homes at issue in this litigation are impacted adult homes in New York City with more than 120 beds. (Compl. ¶ 34.) It is Defendants – not Plaintiff – that determine whether particular adult homes are “impacted” based on the adult homes’ annual reported data. (Tr. 2996-97 (Hart).) Whether there are additional adult homes in addition to the “approximately 26 adult homes” listed in the Complaint in 2003 (id. ¶ 35 (emphasis added)) that DOH now identifies as impacted does not materially affect the resolution of Plaintiff’s claim. In any event, Defendants did not object to the admission of the 2004, 2005, and 2006 DOH Census Reports, which also indicate that certain adult homes in New York City not listed in the Complaint are impacted and have more than 120 beds. (See P-283.) The Complaint does not allege that any particular adult home is itself liable under the ADA and Rehabilitation Act; instead, it challenges Defendants’ use of large, impacted adult homes in New York City as a setting in which individuals with mental illness receive services. Accordingly, Plaintiff’s Motion To Admit P-774 in Evidence is GRANTED. 32 See P-774 (DOH 2008 Census Report).
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As of December 31, 2008, each of these adult homes housed more than one hundred residents, and seven housed over two hundred residents.33 More than eighty percent of the residents in these twenty-eight adult homes are reported as having mental illness.34 In eighteen

homes, more than 95% of the residents have mental illness, and in nine homes, 100% of the residents have mental illness.35 In only four homes do less than 50% of the residents have mental illness.36 According to the DOH 2008 Census Report, more than 4,300 individuals with mental illness were living in these adult homes on December 31, 2008.37

Certain details of operation and resident population of the adult homes may vary, but as a

factual matter, there are no material differences among these adult homes with respect to the issues in this case.38 As used below, “Adult Homes” refers to impacted adult homes in New

York City with more than 120 beds.

ii.

The Development of Adult Homes in New York State

33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Tr. 70 (E. Jones) (stating that there was “no significant difference between the environments and the characteristics of the adult homes” regarding the twenty-three homes she visited); Tr. 2916 (Kaufman) (testifying that the three homes he visited were a “representative sample” of the adult homes at issue).
Among the adult homes originally at issue in this litigation, DOH closed Ocean House, which had been cited for financial improprieties, and a settlement was reached providing for funds to be used for the benefit of persons with disabilities. (Tr. 1635-36, 65-69 (Wollner); Tr. 3048-49 (Hart); see also D-49 (Stip. regarding Ocean House (Jul. 18, 2004)); D-50 (Stip. of Settlement (Feb. 14, 2006)); D-51 (Stip. & Order closing Ocean House (Jul. 18, 2004)).) The administrations of Brooklyn Manor and Leben Home have also changed. (Tr. 1636-39 (Wollner); see also D-57 (Report & Decision in administrative proceedings reviewing DOH’s charges against Brooklyn Manor Home for Adults and appointment of a receiver (Jan. 23, 2006)); D-59 (DOH Operating Certificate for Brooklyn Adult Care Center (Aug. 17, 2006)); see also N.Y. Comp. Codes R. & Regs. tit. 18 § 485.9 (providing that DOH has the authority to seek appointment of a receiver to take over operation of adult homes).) In their Proposed Findings of Fact, both sides cite the testimony of individuals who lived in Ocean House or Brooklyn Manor and provide other evidence concerning programs and expenditures at these two adult homes. Because both sides rely on evidence about Ocean House and Brooklyn Manor to support their claims, the court considers it in the same manner as it considers evidence about other adult homes and adult home residents at issue.

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Adult homes in New York State were originally designed to house the “the frail elderly,” not people with psychiatric disabilities.39 They became a place for people with mental illness to

live and receive services when the State began to deinstitutionalize its State psychiatric hospitals

in the early 1970s, and State psychiatric hospitals began discharging patients directly into adult homes.40 As former OMH Commissioner James Stone noted, adult homes developed because

“community resources weren’t up to speed with state operated bed reductions” resulting from deinstitutionalization.41 Thirty years ago, New York State and New York City government

reports referred to adult homes as “de facto mental institutions” and “satellite mental institutions.”42 According to Linda Rosenberg, a former Senior Deputy Commissioner of OMH

who worked in the State’s mental health system from the early 1970s to 2004, OMH’s approach

to the community integration of people with severe mental health issues evolved over the years,

and “it became increasingly clear that [adult homes] were neither desirable, nor would they really promote people’s recovery and integration and full social inclusion.”43

iii.

Adult Homes Continue To Be a Discharge Option from

Psychiatric Hospitals

Adult homes have long been, and continue to be, a discharge option for individuals leaving psychiatric hospitals.44 Numerous current and former Adult Home residents testified

39 D-394 (Schimke Dep.) 289.
40 Tr. 640 (Rosenberg).
41 P-68 (OMH Comm’r James Stone, Mem. to Members of Mental Health Servs. Council (Nov. 22, 2002) (“Stone Memo”)); see Tr. 648 (Rosenberg).
42 P-142 (Deputy Att’y Gen. Charles J. Hynes, Private Proprietary Homes for Adults: A Second Investigative Report (Mar. 31, 1979)) DAI 2906; P-170 (New York City Council Subcomm. on Adult Homes, The Adult Home Industry: A Preliminary Report) DAI 3589.
43 Tr. 648-49.
44 Tr. 2085 (Burstein) (“[M]any of the residents at Park Inn come from state hospitals.”); Tr. 658 (Rosenberg) (testifying that an adult home “is a discharge that’s often available”); S-151 (E. Jones Report) 3, 9; Tr. 1577

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that they were discharged from a psychiatric hospital into an Adult Home.45 The percentage of
people discharged from psychiatric hospitals into adult homes in New York City declined significantly from the mid-1990s to 2005,46 which Ms. Rosenberg testified “speaks to our belief
[at OMH] at that time and I think it continues now that adult homes are not desirable places to live.”47 Nonetheless, OMH made efforts in 2008 to facilitate discharges from State hospitals in
the New York City area to adult homes in New York City, including a number of the impacted Adult Homes at issue in this litigation.48 In particular, OMH’s Director of Case Management
Services, Mitchell Dorfman, made recommendations for referrals to adult homes, including the
Adult Homes at issue in this litigation, for psychiatric patients who had been approved for supported housing.49 Mr. Dorfman also told adult home operators concerned about the fiscal
impact of a recent legislative initiative to provide 60 beds of supported housing to Adult Home residents50 that “in whatever way we can help facilitate referrals to the adult home we would
(Campbell) (testifying that OMH psychiatric centers “commonly discharge[d]” to adult homes “for as long as I can remember.”); see also N.Y. Mental Hyg. Law § 29.15(i)(2)(II) (providing that adult homes are an option for discharge from State hospitals and other psychiatric facilities licensed by the State). 45 See, e.g., Tr. 448 (G.L.); Tr. 2685 (I.K.); P-540 (P.B. Dep.) 30-31; P-537 (P.C. Dep.) 46-47. 46 Tr. 1577-78 (Campbell); S-2 (Discharge Placements for Psychiatric Centers Serving the NYC Metropolitan Area). 47 Tr. 748. 48 P-363, P-364, P-365 (e-mails from Mitchell Dorfman, Director of OMH Case Management Services, to State psychiatric center directors and discharge managers regarding facilitation of referrals to adult homes); Tr. 1802, 1808-14, 1824-26 (Dorfman). To the extent Mr. Dorfman asserted that his repeated use of the word “facilitate” in the e-mails did not mean “facilitate” (see Tr. 1810-12), the court finds Mr. Dorfman’s testimony not credible. 49 Tr. 1808-14. 50 These beds are exclusively for individuals with mental illness living in adult homes in New York City. (S-33 (2007 RFP).) This population includes the Adult Home residents at issue, as well as those in non-impacted adult homes. As shorthand, the court refers to the target population for the 60-bed initiative as “Adult Home residents,” because the majority of this population lives in the impacted Adult Homes, and both sides referred at trial to the 60bed initiative as targeted at the Adult Home residents at issue in this case.
This initiative was imposed on OMH by the Legislature; OMH did not request it. (See Tr. 3354 (SchaeferHayes); Tr. 1460-61 (Madan); Tr. 2142 (Newman).)
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work with you and do that.”51 High-level State employees in OMH’s central office, including Robert Myers, OMH’s Senior Deputy Commissioner for Adult Services, were aware of these recent efforts to facilitate discharges from state psychiatric hospitals to impacted Adult Homes, and did not express any concerns or stop this process.52

b. Adult Homes Are Institutions That Segregate Individuals with Mental Illness from the Community

i.

Adult Homes Are Institutions

The overwhelming evidence in the record compels the court to find, as a factual matter, that Adult Homes are institutions.53 Indeed, in its June 4, 2007 “Guiding Principles for the

Redesign of the Office of Mental Health Housing & Community Support Policies,” OMH

characterizes adult homes as institutions:

as a consequence of poor access to community housing, inadequate levels of
mental health housing, and clinical programs that do not support people in
getting/keeping housing successfully, many people with mental illness are poorly
housed or institutionalized. Thus, many people with mental illness are “stuck” in . . . institutional settings (nursing homes, adult homes, state psychiatric centers).54

51 Tr. 1835. 52 See Tr. 1804-1807 (Dorfman). 53 See, e.g., S-151 (E. Jones Report) 2; Tr. 75-76 (E. Jones); Tr. 642-43 (Rosenberg) (calling Adult Homes “mini institutions”); Tr. 289-90 (Tsemberis) (testifying that Adult Homes have “absolutely an institutional feel . . . institutional look . . . [and] institutional manner”); Tr. 2241-42 (Bear) (Adult Homes are “much like the psychiatric centers where [Jewish Board’s] consumers lived for so long”). 54 P-284 (OMH Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies (June 4, 2007) (“OMH Guiding Principles”)) (emphasis added). A nearly identical version of the OMH Guiding Principles currently posted on OMH’s website and dated May 17, 2007 states that people are “stuck in” adult homes but lists adult homes separately from the other “institutional settings.” (P-59.)
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The court uses the term “institution” as defined by Elizabeth Jones, one of DAI’s experts, who explained that: “[An] [i]nstitution, in my mind, and in my experience, and in the literature, is a segregated setting for a large number of people that through its restrictive practices and its controls on individualization and independence limits a person’s ability to interact with other people who do not have a similar disability.”55
As set forth more fully below, the evidence demonstrates that Adult Homes have the characteristics Ms. Jones described. Witnesses for both sides testified that Adult Homes share many salient features of State psychiatric hospitals. First, Adult Homes house a large number of people with psychiatric disabilities in a congregate setting.56 As Defendants’ expert Alan Kaufman observed, “significant numbers of residents suffer from serious mental illness . . . . The number of beds in many of the larger Adult Homes, as well as their physical layout, furnishings, and decorations, also give an appearance similar to that in an institutional setting.”57 Second, life in the Adult Homes is highly regimented. Adult Homes, like other types of institutions, “are designed to manage and control large numbers of people . . . by eliminating choice and personal autonomy, establishing inflexible routines for the convenience of staff, restricting access, implementing measures which maximize efficiency, and penalizing residents who break the rules.”58 In particular, there are inflexible schedules for meals, taking medication, receiving public benefits, and other daily activities.59 Residents are assigned roommates and are
55 Tr. 55. 56 See, e.g., S-151 (E. Jones Report) 4; S-54 (Kaufman Report) 8. 57 S-54 (Kaufman Report) 8. 58 S-151 (E. Jones Report) 4. 59 S-54 (Kaufman Report) 8-9; Tr. 644-45 (Rosenberg); Tr. 867-68 (Duckworth); Tr. 2895-97, 2911-12 (Kaufman); Tr. 2356-57 (Geller); Tr. 289-90 (Tsemberis); Tr. 54-57, 75-76 (E. Jones); see, e.g., D-391 (D.W. Dep.) 76; Tr. 374, 376-77 (S.K.); P-538 (B.J. Dep.) 60 (describing rigid schedules for meals and medications).
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required to sit at a specific seat at a specific table in the cafeteria; they must seek permission to change these assignments.60 Most Adult Home residents line up to receive their medications at scheduled times.61 Long lines also form for receiving personal needs allowances, the portion of residents’ Supplemental Security Income allocated for the residents’ personal use.62 Witnesses
observed that Adult Homes had the look and feel of “back wards” of State hospitals and were “reminiscent of a state psychiatric hospital and its culture.”63
Adult Homes are not identical in all respects to psychiatric hospitals, however. In some
ways, Adult Homes are even more restrictive or “institutional” than psychiatric hospitals. For
example, Plaintiff’s expert Dr. Kenneth Duckworth testified that in his experience, unlike the
Adult Homes, psychiatric hospitals do not have assigned seating for meals and do not necessarily distribute medication at mealtimes.64 Ms. Jones testified that lines at the Adult Homes, which
had “200, 400 people all mingling together and standing in line for medication,” were longer
than those at psychiatric hospitals, because psychiatric hospitals are divided into wards of approximately twenty people.65 In certain respects, however, Adult Homes are less restrictive
60 Tr. 2065-66 (Burstein); Tr. 375 (S.K.); Tr. 479-80 (G.L.) (testifying that residents had assigned seats for meals, and that initially residents could not have guests join them, but later on, residents could have a guest if there happened to be an empty seat at the table at mealtime); Tr. 558-59 (S.P.); P-542 (L.G. Dep.) 98; P-543 (R.H. Dep.) 99-100; P-534 (L.H. Dep.) 74; P-544 (C.H. Dep.) 95; P-536 (D.N. Dep.) 91-92; D-391 (D.W. Dep.) 71-72, 74; P545 (J.M. Dep.) 80; Tr. 2896-96 (Kaufman); Tr. 2685, 2693 (I.K.); see also, e.g., S-165 (Facility Rules, Queens Adult Care Center) (noting that “[d]ining room seating arrangements can only be changed by authorized staff”). 61 Tr. 54-55, 67 (E. Jones); S-151 (E. Jones Report) 5; Tr. 360-61, 376-78 (S.K.); Tr. 2103 (Burstein) (“[I]f there’s one or two people helping the residents take their medication and there’s 90 that need to get medication, there’s going to be congestion.”); Tr. 464-65 (G.L.); P-540 (P.B. Dep.) 130-31; P-542 (L.G. Dep.) 122; P-543 (R.H. Dep.) 200-03; P-534 (L.H. Dep.) 103; P-535 (T.M. Dep.) 76; P-545 (J.M. Dep.) 76-77:23; P-546 (A.M. Dep.) 94-95. 62 Tr. 54-55 (E. Jones). 63 Tr. 1007 (D. Jones); Tr. 865 (Duckworth); see also P-674 (letter from Alan Siskind, CEO of Jewish Board of Family and Children’s Services to OMH Commissioner) (stating that “adult homes are much like the psychiatric centers where our customers lived for so long”); Tr. 2241-42 (Bear) (testifying about P-674, which she drafted). 64 Tr. 867-68. 65 Tr. 75; see S-151 (E. Jones Report) 5.
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than psychiatric hospitals. For example, Adult Homes do not have a “privilege” system that explicitly limits residents from leaving the grounds, as is common in psychiatric hospitals.66 In
addition, because adult homes are prohibited by law from housing people who are a danger to themselves or others,67 they do not impose some of the restrictions psychiatric hospitals place on
their patients, such as restricting access to mail, limiting smoking at certain times of day, or prohibiting them from carrying matches.68
Nonetheless, Adult Homes bear little resemblance to the homes in which people without disabilities normally live.69 As Defendants’ expert Mr. Kaufman observed, medical and mental health staff are a constant presence in Adult Homes.70 Meals, medication, phone calls, and mail deliveries are announced over a public address system.71 Privacy is extremely limited. The
Adult Homes have large numbers of residents and staff, and there are few or no private spaces in which to receive visitors or talk on the phone.72
66 Tr. 156 (E. Jones). 67 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.4. 68 Tr. 156-57 (E. Jones). While Adult Homes do not have written policies precluding residents’ access to mail under certain circumstances, several current and former Adult Home residents testified that their mail had been opened before they received it. (See D-391 (D.W. Dep.) 114-16; P–541 (S.B. Dep.) 70-74; P-545 (J.M. Dep.) 100; P-542 (L.G. Dep.) 84-86).) J.M. testified that after he complained about the mail tampering to DOH, his mail was no longer opened. (P-545 (J.M. Dep.) 100-01.) 69 Tr. 289-90 (Tsemberis). 70 S-54 (Kaufman Report) 8. 71 P-543 (R.H. Dep.) 97-99 (describing announcements on the loudspeaker “every five, ten minutes”); P-545 (J.M. Dep.) 100; P-536 (D.N. Dep.) 236-38; S-151 (E. Jones Report) 5; S-54 (Kaufman Report) 8; Tr. 865 (Duckworth); Tr. 2912 (Kaufman); Tr. 2356-57 (Geller); Tr. 58 (E. Jones). 72 Tr. 360-61 (S.K.); Tr. 57-58, 150 (E. Jones) (describing the “congestion, crowding, the noise of the adult home” and the “unrelenting difficulties of living with several hundred people in a very small space”); D-394 (Schimke Dep.) 288; Tr. 863-64 (Duckworth); Tr. 477-78, 489-90 (G.L.); P-545 (J.M. Dep.) 53-54, 80-81, 95-96; P-546 (A.M. Dep.) 207-08; Tr. 563-65 (S.P.); P-540 (P.B. Dep.) 61-62; P-542 (L.G. Dep.) 116-17; P-536 (D.N. Dep.) 110-11, 128-29, 241-43; P-534 (L.H. Dep.) 65-66 (testifying that she has used a pay phone in a laundromat outside the Adult Home because people eavesdrop on her conversations when she uses the pay phone in the Adult Home lobby); D391 (D.W. Dep.) 173-74. Current and former Adult Home residents also testified that staff would enter their
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Residents of Adult Homes are subject to an extensive and significant set of rules.73 For
example, Adult Homes restrict when and where residents may receive visitors; restrict when
residents may be absent; and require visitors to sign in and state the purpose of their visit.74 In
addition, while some of the Adult Homes do not have curfews,75 other Adult Homes have
evening curfews after which doors are locked and residents must be admitted by staff.76 In some
Adult Homes, residents are not provided keys to the front doors,77 and residents sometimes have
trouble getting back into their buildings.78 Even in Adult Homes without a curfew, residents
bedrooms without knocking. (See, e.g., Tr. 574-75 (S.P.); P-542 (L.G. Dep.) 166; Tr. 474-75 (G.L.); P-544 (C.H. Dep.) 103.)
Many Adult Homes prohibit residents from making outgoing phone calls from their rooms (see, e.g., P-534 (L.H. Dep.) 62; P-535 (T.M. Dep.) 49), and some Adult Homes do not permit residents to install phone lines through the Lifeline Program, a service offered by Verizon to low-income individuals (Tr. 544, 528 (G.L.)). I.K. testified that it took “about a year and a half” to convince her Adult Home to allow her to have a Lifeline phone installed. (Tr. 2720 (I.K.).) A few residents have cell phones. (Tr. 528-530 (G.L.).) 73 Tr. 62-64 (E. Jones); S-151 (E. Jones Report) 4; Tr. 2299-2300, 2356-57 (Geller) (describing “quite extensive” rules in Adult Homes and that Adult Homes imposed rules “to a greater degree than was even necessary”); S-52 (Geller Report) 11 (“There is no doubt that Adult Homes have a significant set of rules.”); S-158 (Brooklyn Manor Facility Rules and Conditions); S-159 (Garden of Eden Facility Rules and Policies); S-160 (Rules for Residents of Lakeside Manor Home for Adults, Inc.); S-161 (Facility Rules and Conditions, New Central Manor); S-165 (Facility Rules, Queens Adult Care Center). 74 Tr. 64-65 (E. Jones) (describing the procedures for gaining entry to Adult Homes, such as signing the register and producing a driver’s license for photocopying, and recounting an episode in which Surfside Manor refused entry and threatened to call the police, despite the fact that Ms. Jones was invited by residents to visit); P-546 (A.M. Dep.) 100-01 (describing visiting hours and restrictions on where residents can receive visitors); Tr. 2103-04 (Burstein) (testifying that Park Inn does not allow overnight visitors); P-744 (complaint in an action by a coalition of Adult Home operators against advocacy groups to enforce restrictive guidelines for visitor access); P-534 (L.H. Dep.) 78 (testifying that the Adult Home does not allow overnight visitors, limits visiting times, and prohibits residents from having members of the opposite sex in their rooms); P-536 (D.N. Dep.) 96-97; D-391 (D.W. Dep.) 75 (testifying that residents had to be present at medication times). 75 Tr. 527 (G.L.); P-543 (R.H. Dep.) 113, 151; Tr. 2692 (I.K.); Tr. 409 (S.K.) (testifying that “there isn’t a curfew but they’d like you to be in by ten o’clock or 10:30 at the latest.”); Tr. 591 (S.P.); P-568 (M.B. Dep.) 98-99; P-569 (G.H. Dep.) 164-67; P-546 (A.M. Dep.) 157, 185; P-536 (D.N. Dep.) 96-97. 76 P-537 (P.C. Dep.) 98; P-541 (S.B. Dep.) 84-85; P-538 (B.J. Dep.) 57, 69-70; P-545 (J.M. Dep.) 159. 77 Tr. 2103-04 (Burstein) (testifying that residents “don’t need their own key” because there is a doorbell); P-541 (S.B. Dep.) 84-85; P-542 (L.G. Dep.) 90-91 (testifying that after the doors are locked, residents have to “bang on the front door” or “hope somebody hears you who is in the smoking lounge to let you in”); P-535 (T.M. Dep.) 54-55, 130, 131. 78 P-537 (P.C. Dep.) 98-99.
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may be required to notify staff each time they leave the facility.79 Some Adult Homes prohibit
residents from decorating their rooms, though others do not.80 Some residents have expressed
fear that they will be subjected to retaliation if they do not follow the Adult Home’s rules or
complain about the Adult Home, and some have been arbitrarily penalized.81
The court is persuaded by the opinion of Ms. Jones and DAI’s other experts, as well as
lay witnesses who testified based on their personal observations, that the Adult Homes are
institutions: segregated settings that impede residents’ community integration.82 Ms. Jones, who
79 See, e.g., S-165 (Facility Rules, Queens Adult Care Center) (“Upon leaving the facility, you must notify the attendant on duty [of] the approximate time of your return.”). 80 Tr. 162 (E. Jones); Tr. (G.L.) 500-01; Tr. 549-50 (S.P.); S-160 (Lakeside Manor Rules); Tr. 409 (S.K.); Tr. 206465, 2056-57 (Burstein). 81 S-151 (E. Jones Report) 7; P-534 (L.H. Dep.) 12-13 (expressing fear that the Adult Home administrator would find out about her deposition testimony and kick her out of the Adult Home); Tr. 467-68 (G.L.) (testifying that he personally heard Adult Home staff threaten residents if they did not go to the day program); Tr. 563 (S.P.) (testifying that he had seen a resident refuse to go to the program and that the Adult Home sent that person to the hospital); P-546 (A.M. Dep.) 118-19 (testifying that the Adult Home administrator threatened to send him to a nursing home for allegedly complaining about the food in the Adult Home); P-541 (S.B. Dep.) 70-74 (describing his complaint to the Adult Home administrator about his mail being opened, explaining that “the minute you start [an] argument with them, right away they’re ready to send you to the hospital,” and that he did not ask the administrator to clarify his statement that “it’s the procedure” to open residents’ mail, because he “really didn’t want to start no trouble”); see also P-536 (D.N. Dep.) 123-124:5 (testifying that she heard announcements over the loudspeaker that residents who do not take their medication will not get their allowance), 134 (expressing fear of being thrown out of the Adult Home if she testified); Tr. 1683-84 (Wollner) (acknowledging that Adult Home residents expressed fear of repercussions from Adult Home staff for participating in the Adult Home Assessment Project).
The court overrules Defendants’ Rule 802 objections to pages 118:17-119:23 of A.M.’s deposition and page 123 and the first four lines of page 124 of D.N’s deposition. The testimony describes threats, which are not hearsay but “verbal acts.” United States v. Stratton, 779 F.2d 820, 830 (2d Cir. 1985), cert. denied by Stratton v. United States, 476 U.S. 1162 (1986); see also Tr. 961-67 (sidebar concerning admissibility of threats to Adult Home residents during which the court ruled that threats were admissible). Defendants’ Rule 802 objection to page 134 of D.N.’s deposition is also overruled, because D.N.’s testimony that she had previously told an advocate that she feared being thrown out of the home if she testified is admissible to show her then-existing mental state. 82 Defendants challenge Ms. Jones’s credibility. The court rejects Defendants’ contentions and finds Ms. Jones’s testimony that Adult Homes are segregated settings credible.
First, the court declines to find that Ms. Jones “established an agenda of proving adult homes were institutions before she had completed half of her research.” (See Defs. PFF ¶ 37.) Ms. Jones testified that she visited thirteen impacted Adult Homes in New York City when she reached this opinion, approximately nine months after she began her investigation, and subsequently made an additional eighteen visits to Adult Homes. (Tr. 190-98 (E. Jones).) By the time she reached this opinion, Ms. Jones had visited more Adult Homes than Defendants’ experts combined, and certainly more than the witnesses called by Defendants who had never visited an impacted Adult Home in New York City. (Tr. 45-48 (E. Jones); Tr. 2377 (Geller); Tr. 2916-17 (Kaufman); Tr. 1499-1500
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spent seventy-five hours in twenty-three Adult Homes in both scheduled and unannounced visits
explained:
I can’t state strongly enough that these facilities are institutions. These facilities are like the institutions that I worked in when I started my career. These are settings that are caught in time almost. They are not like even the psychiatric settings of today where I’ve been a director. These are outdated institutional facilities that restrict and constrain people’s freedom and their ability to learn and exercise skills. These are the buildings and the places that were here in the ’70s when my career started, when the court cases were first entered into. These facilities do not represent current practice in the mental health field.83
As Dr. Duckworth testified, “[t]he adult homes have . . . some of the elements of a homeless
shelter and some of the elements of a state hospital. The culture is quite institutional in some
ways, even more institutional than a state hospital in my opinion.”84 Similarly, former OMH
Senior Deputy Commissioner Ms. Rosenberg described Adult Homes as “institutional living at,
potentially, its worst.”85 She observed that Adult Homes “impede community integration” and
are “little ghettos” with “people sitting out front [of] the adult home, smoking, going back in,
(Madan); Tr. 1579 (Campbell).) While Defendants’ experts visited Adult Homes only on pre-announced, formal tours attended by attorneys for both sides and DOH officials, Ms. Jones visited Adult Homes informally and unannounced.
Second, the evidence does not support Defendants’ contention that “many” of Ms. Jones’s conversations were with residents known to MFY Legal Services, counsel to Plaintiff, or that “many” of the residents with whom she spoke were involved in advocacy efforts on behalf of Adult Home residents. (Defs. PFF ¶ 35.) Ms. Jones spoke with a total of 179 residents and spent more than 75 hours in the Adult Homes. (S-151 (E. Jones Report); Tr. 4548.) She testified that the names provided to her by attorneys were “more sort of a beginning point for some of the visits.” (Tr. 47.) Ms. Jones further explained that she spoke to residents who would approach her during both her formal and informal visits, residents would introduce her to other residents, and she would meet people as they were sitting outside the facility. (Id. at 47-48.) She explained that “it kind of evolved. One person led to another, and the longer I spent in a facility, the more chance I had to observe and speak with people.” (Id. at 48.) She also testified that there were no significant differences between the residents whose names she had been provided by the attorneys and other residents “in terms of their life experiences or the conditions that they were experiencing in the adult homes or the preferences they had.” (Id. at 48.) 83 Tr. 54-55. 84 Tr. 809-10. 85 Tr. 645.
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sitting in the lobby, not much going on and not much exposure to the rest of the world.”86

Residents live in bedrooms with assigned roommates, eat meals only at set times, live

exclusively with other people with serious mental illness, and are completely “defined by their illness.”87

ii.

Much of Residents’ Daily Lives Takes Place Inside the

Adult Homes

Much of Adult Home residents’ daily lives takes place inside the Adult Homes. As Ms.

Jones observed, “[t]here is a large number of people who seem to stay in the homes and don’t really go out a whole lot at all.”88 Residents spend most of their days in activities organized for

them by the Adult Homes and/or mental health providers associated with the Adult Homes.

Adult Homes are required to provide a program of activities in the facility as well as in the community,89 and DOH has cited Adult Homes for failing to provide a sufficient program of activities.90 Activities provided by Adult Homes include games, puzzles, and other childappropriate leisure activities.91 For example, activities provided on-site at Riverdale Manor

through the case management program include computer games suitable “for a three- or fouryear-old,”92 and a calendar of recreational activities at Surfside Manor lists activities such as beads, nail painting, and bingo.93 A former Adult Home resident testified that the activities “had

86 Id. at 645-46. 87 Id. at 644-45. 88 Id. at 147-48. 89 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7. 90 Joint Stip. ¶ 23; see D-29 (DOH Inspection Report for Sanford Home (Sept. 8, 2003)) DOH 54012-13. 91 Tr. 69-70 (E. Jones). 92 Tr. 2560-62 (Waizer) (describing activities). 93 S-166 (calendar of recreational activities at Surfside Manor).
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you coloring, like a little kid; you play Bingo, like a little kid; you play domino, like a little kid; and you play cards, like a little kid.”94 When asked at trial about the Adult Home’s activities, an Adult Home resident answered, “[t]hey really don’t have too much of anything. It’s like just maybe playing cards, cribbage, puzzles, stuff like that; but they really don’t have anything much to do.”95 Adult Homes also arrange for religious services and musical performances inside the facilities.96
Many Adult Home residents also see medical and mental health professionals inside the facilities. In general, residents are assigned doctors and psychiatrists, usually on-site in the Adult Homes, and are told when to see the treatment providers.97 For example, Park Inn contracts with local medical facilities and psychiatric centers that provide on-site doctors, psychiatrists, and social workers, and the majority of residents of Park Inn attend on-site mental health clinics and are treated by on-site doctors and mental health professionals.98 Because Adult Homes almost always hold residents’ Medicaid cards, residents generally see the providers selected by the Adult Homes – many of which have a financial interest in controlling who provides medical care
94 P-546 (A.M. Dep.) 34. 95 Tr. 385 (S.K.). 96 Tr. 2045 (Burstein); Tr. 150-51 (E. Jones); Tr. 2692 (I.K.); P-541 (S.B. Dep.) 11-13 (testifying that “on special occasions, they would have entertainment from the outside come in, like Christmas parties,” but that he could not remember other occasions), 54-55 (testifying that he attended Catholic services each Sunday in the Adult Home but that “not very many” people attended); P-538 (B.J. Dep.) 49 (testifying that Hospital Audiences, Inc. provides concerts inside the Adult Home “once in awhile”); P-568 (M.B. Dep.) 46-48; P-542 (L.G. Dep.) 48-49; P-569 (G.H.) 91; P-546 (A.M. Dep.) 39-40 (testifying that a “small group” of residents attended on-site religious services); P-545 (J.M.) 51-52 (testifying that about twenty-five residents attended services in the Adult Home); D-391 (D.W. Dep.) 150, 152-53 (testifying that a pastor comes to the Adult Home every other Friday). 97 Tr. 462-63 (G.L.); Tr. 566-67 (S.P.) (testifying that the Adult Home makes appointments for him to see an assigned doctor in Adult Home every three weeks); P-546 (A.M. Dep.) 109-10; P-526 (D.N. Dep.) 125-26; P-535 (T.M. Dep.) 81. 98 Tr. 2046-49, 2096-97 (Burstein).
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to residents99 – and residents must ask permission to access community-based care.100 Unless
residents are involved in an off-site mental health program, they do not have much interaction with individuals outside of the Adult Home setting.101 When they do leave the facility to attend
mental health programs, they are transported to the programs in ambulettes, buses, or vans, and their time in the programs is spent with other individuals with mental illness.102
While Adult Home residents have the right to “leave and return to the facility and grounds at reasonable hours,”103 in practice they are limited in the times that they can leave the
Adult Homes, due to the rigid schedules for meals, medications, and distribution of personal needs allowances.104 For example, while residents are not precluded from eating outside of the
Adult Home, they must be present at times when their medication is dispensed, usually at meal times and at nighttime, or they are penalized.105 Facility rules for another Adult Home require residents to notify a “staff supervisor” if they will miss a meal.106 While Adult Home residents
99 Tr. 1407-08 (Reilly) (testifying that Adult Homes often rent space to medical providers at inflated rates which amount to referral fees, and residents are “lined up” to see the medical providers). 100 P-569 (G.H. Dep.) 170-71 (“Q. Can you choose your own doctors if you want to? A. Ha ha. Good luck. Q. What do you mean by that? A. In other words, we can’t change them ourselves. They give them to us . . . . Q. When did you try to pick your own doctor? A. I never have, because they wouldn’t let me.”); P-542 (L.G. Dep.) 101 (testifying that she had asked and received permission to hold her Medicaid card when she was receiving outside treatment for cancer, but that since then, the Adult Home has kept her Medicaid card “locked up”; although she currently wants to hold her Medicaid card, she has not asked again to hold it). In their Proposed Findings of Fact, Defendants point to only one instance of an Adult Home resident being allowed to hold his Medicaid card. (See Defs. PFF ¶ 41 (citing Tr. 543 (G.L.) (testifying that when he was in the Adult Home, he was allowed to hold his Medicaid card after “insist[ing]” that he do so).)) 101 Tr. 2663 (Lockhart). 102 S-151 (E. Jones Report) 3, 8; Tr. 151 (E. Jones); P-541 (S.B. Dep.) 25-26 (testifying that he is picked up for the Adult Day Care Program by an ambulette); Tr. 601-02 (S.P.). 103 N.Y. Comp. Codes R. & Regs. tit. 18, § 487.5(a)(3)(xii). 104 S-151 (E. Jones Report) 6; Tr. 142 (E. Jones). 105 Tr. 142 (E. Jones); D-391 (D.W. Dep.) 75-77 (“[I]f you miss medication, they write it up in the charts and they – and then you usually get into some type of trouble.”); P-546 (A.M. Dep.) 163. 106 S-159 (Facility Rules and Polices for the Resident, Garden of Eden).
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have the right under State regulations to manage their own medications,107 there is overwhelming

evidence that the vast majority of Adult Home residents are not permitted to administer their own medication.108 A few residents have successfully reclaimed their right to self-administer their medication by obtaining their doctor’s permission to do so.109

iii.

Residents’ Access to Neighborhood Amenities

There is evidence that some Adult Home residents visit, to varying extents, neighborhood

amenities, such as stores, parks and/or beaches, restaurants, libraries, religious institutions, and entertainment facilities.110 The testimony of current and former Adult Home residents

demonstrates, however, that not all residents leave the facilities, and those who go out do not do

so often, nor do they spend significant amounts of time outside of the facility. For example, one

resident testified that a few residents never leave the Adult Home building, and estimated that

107 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7.
108 Tr. 1387-88 (Reilly) (acknowledging that medication management is an important skill, but that many Adult Homes do not afford residents the opportunity to demonstrate that skill); see P-546 (A.M. Dep.) 91:16-92:23, 95-96; P-536 (D.N. Dep.) 88-89:20 (testifying that the Adult Home does not allow residents to take their own medication, that she knows how to take her own medication, but has never talked to her doctor about taking her own medications because she “didn’t know she could” raise the issue); Tr. 471 (G.L.); P-542 (L.G. Dep.) 70-71; Tr. 553-55 (S.P.) 553-55 (testifying that the Adult Home does not allow any residents to self-administer medication); P-536 (D.N. Dep.) 88-89:19; Tr. 376-77 (S.K.) (testifying that she was not allowed to take her own medication); see also Tr. 66– 67 (E. Jones) (describing waiver form from Mermaid Manor authorizing Home to retain Medicaid card and to assist resident with medication, regardless of ability to administer medication); P-166 (waiver form to accept assistance in medication administration).
109 Tr. 2068 (Burstein); Tr. 164-66 (E. Jones); P-545 (J.M. Dep.) 76-77:23; Tr. 2685-87 (I.K.). DOH has cited Adult Homes for failure to allow residents who have been approved to self-administer medication to do so. (Joint Stip. ¶ 23; see also D-28 (DOH Inspection Report for Queens Adult Care (Aug. 6, 2002)) OMH 13147-48; D-29 (DOH Inspection Report for Sanford Home (Sept. 8, 2003)) DOH 53993-99.
110 See, e.g., Tr. 590-92, 567 (S.P.) (testifying that he walks around the neighborhood “maybe once or twice a month,” that he walks to a shopping area about once a week and goes to restaurants “once in awhile,” that he does these shopping trips to “try and catch a little air to get away from the home,” and that he’s seen “maybe about five” other residents at the stores each week); Tr. 511-17, 521-25 (G.L.); Tr. 2689-92 (I.K.); Tr. 405-09, 416 (S.K.); P-540 (P.B. Dep.) 50-53, 57-58, 148; P-567 (M.B. Dep.) 40-50, 103-05, 107-12; P-542 (L.G. Dep.) 14-18, 20-26; P-543 (R.H. Dep.) 33-41, 66, 123-26; P-546 (A.M. Dep.) 56-57, 59, 64, 66-70; P-541 (S.B. Dep.) 11-25; P-534 (L.H. Dep.) 49, 53-53, 117-18; P-537 (P.C. Dep.) 38-39, 97; P-569 (G.H. Dep.) 77-83, 97-99, 115, 130-45; P-544 (C.H. Dep.) 16-18, 20-22, 57-58, 66, 73; P-546 (B.J. Dep.) 53-55; P-545 (J.M. Dep.) 44-49, 50-51, 54, 55-58, 68-70; P535 (T.M. Dep.) 31, 41, 45-48; P-536 (D.N. Dep.) 14-17, 18-19, 21-23, 32, 33, 36-37; D-391 (D.W. Dep.) 30-32, 156-58; Tr. 2045-46 (Burstein); Tr. 143-44 (E. Jones).

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“maybe ten” of the other residents visited the nearby boardwalk.111 A former resident testified that he attended church outside the facility, but only on a total of three occasions during the entire time he lived in the Adult Home.112 Another former Adult Home resident testified that only eight of the 216 residents went to restaurants in the neighborhood; and that he has only seen a handful of residents leave the facility to go shopping, go to the park, or attend religious services.113 Another resident testified that residents walk around the neighborhood and go outside the facility to shop for toiletries and other items roughly ten to fifteen times per year, but no more than three residents go to a park.114 He also testified that residents eat out to the extent their monthly funds allow it because the food at the facility is so bad, and that while he goes out of the facility to get food, he does “most of [his] eating in the building up in [his] room.”115
In addition, while the Adult Homes are located near some neighborhood amenities such as stores, fast-food restaurants, libraries, parks, churches and synagogues, and beaches and/or boardwalks,116 accessibility depends on how far particular residents can walk.117 The Adult Homes are located within several blocks of public transportation,118 but the familiarity of Adult
111 P-541 (S.B. Dep.) 63-64. 112 P-546 (A.M. Dep.) 56-57. 113 P-545 (J.M. Dep.) 50-52, 54-59. 114 See P-569 (G.H. Dep.) 136-38, 140-41. 115 Id. at 136-37. 116 See Tr. 2044-45 (Burstein); Tr. 511, 521-24 (G.L.); Tr. 2690 (I.K.); Tr. 404-07 (S.K.); Tr. 590-91, 593 (S.P.); P540 (P.B. Dep.) 51-53; P-537 (P.C. Dep.) 96-98; P-542 (L.G. Dep.) 15, 21; P-541 (S.B. Dep.) 130-32; P-543 (R.H. Dep.) 34-41, 79-80; P-569 (G.H. Dep.) 152-53; P-538 (B.J. Dep.) 53; P-535 (T.M. Dep.) 30-32; P-546 (A.M. Dep.) 56-57, 59, 67-70; P-545 (J.M. Dep.) 45-47, 55-57. 117 S-151 (E. Jones Report), 8; P-541 (S.B. Dep.) 13-14; P-543 (R.H. Dep.) 81-82; Tr. 2688-89 (I.K.). 118 Tr. 518 (G.L.); Tr. 2688 (I.K.); Tr. 407 (S.K.); Tr. 592 (S.P.); P-541 (S.B. Dep.) 19; P-542 (L.G. Dep.) 171-72; P-534 (L.H. Dep.) 54; P-569 (G.H. Dep.) 152-53; P-543 (R.H. Dep.) 80-81; P-544 (C.H.) 82-83; P-535 (T.M. Dep.) 32; P-546 (A.M. Dep.) 83:20-84:13; P-545 (J.M. Dep.) 61:9-62; P-536 (D.N. Dep.) 68-69; D-391 (D.W. Dep.) 255; see also Tr. 2045 (Burstein); Tr. 145 (E. Jones).
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Home residents with public transportation varies, as does the frequency with which the residents
use public transportation.119 Some Adult Home residents have reduced-fare Metrocards.120 One
Adult Home resident testified that she “do[es]n’t really know the buses” in the neighborhood but
has taken the bus more than twice, that she is unfamiliar with the subway and has only taken it
once since living in the Adult Home, and that she mostly gets around by walking.121 Others are
more familiar with public transportation; for example, when G.L. lived in the Adult Home, he
took public transportation with his roommate approximately once per month to stores.122 There
is evidence that a handful of residents have traveled via public transportation to entertainment or
cultural events in Manhattan.123
When asked whether she had observed residents coming and going from the Adult
Homes, Ms. Jones testified that:
Some residents do; some residents are quite capable. These residents have worked around the routine of the day and make trips to the local resources, may get on a bus and go somewhere. People’s ability to go out of the adult home is impacted, of course, by the fact that they have little free money to use for those types of things. But, again, there are many, many people who don’t do that, who stay in their room, who stay in the day room, or who sit outside on the perimeter
119 Tr. 518, 527-28 (G.L.); Tr. 2688-89 (I.K.); Tr. 592-93, 612 (S.P.); P-540 (P.B. Dep.) 53-54, 55-57; P-541 (S.B. Dep.) 15, 18-20; P-568 (M.B. Dep.) 35-37; P-537 (P.C. Dep.) 98; P-542 (L.G. Dep.) 16-17, 135-36; P-543 (R.H. Dep.) 81-82; P-569 (G.H. Dep.) 97-99, 142, 154-55; P-534 (L.H. Dep.) 54-55; P-544 (C.H. Dep.) 22-24, 82-83; P538 (B.J. Dep.) 51-52, 72; P-535 (T.M. Dep.) 32-33, 78-79; P-546 (A.M. Dep.) 84; P-536 (D.N. Dep.) 68-69; D-391 (D.W. Dep.) 25-27; see Tr. 2051 (Burstein); Tr. 145 (E. Jones). 120 Tr. 518-20 (G.L.); Tr. 2689 (I.K.); Tr. 593 (S.P.); P-568 (M.B. Dep.) 35-36; P-357 (P.C. Dep.) 107; P-542 (L.G. Dep.) 175-76; P-569 (G.H. Dep.) 155; P-544 (C.H. Dep.) 23; P-538 (B.J. Dep.) 71; P-545 (J.M. Dep.) 62; P-536 (D.N. Dep.) 68-69 (naming two residents besides herself who have reduced-fare Metrocards and stating that there might be a few others as well). 121 P-540 (P.B. Dep.) 53-54, 55-57. 122 Tr. 517-18 (G.L.). 123 P-541 (S.B. Dep.) 18-19; P-569 (G.H. Dep.) 97-99, 130-31 (testifying that he took the subway to concerts in Manhattan from time to time from 1997 to 2001); P-535 (T.M. Dep.) 78 (testifying that he has taken the train to Manhattan to see movies); P-544 (C.H. Dep.) 18, 20-22 (testifying that he has gone to sporting events and concerts in Manhattan via public transportation).
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of the adult home smoking cigarettes and, you know, being with other adult home residents.124

She testified that the fact that some Adult Home residents come and go does not change her

conclusion that Adult Homes are segregated settings, because “there is nothing in the adult home that’s contributing toward the integration of people in their communities.”125 She explained that

“[t]he people that are going out and doing things in their community, in their neighborhood, are

people who have taken that initiative upon themselves. The people that need support in doing that are not being assisted by the adult home to have those interactions . . . .”126

iv.

Organized Trips

The Adult Homes and mental health programs take residents on organized trips,127 and

the regulations require adult homes to arrange for “resident participation in community-based and community-sponsored activities.”128 Such outings contribute little to residents’ integration

into the community, however. The residents generally travel as a group, in a bus or van, and interact mainly with each other.129 At Park Inn Home for Adults and numerous other Adult

Homes, the number of residents who can go on each trip is limited to the number of persons that

124 Tr. 72; see also id. at 142-43 (expressing reluctance to agree to the statement that “nothing precludes residents from leaving the Adult Homes” because such a statement “paints a very deceptive picture” due to the “impact of living in an adult home with a hundred to four hundred other people and what that does to you in terms of exercising independence and being able to initiate what your day or what your life is like.”). 125 Id. at 72. 126 Id. at 72-73. 127 Tr. 2053 (Burstein); Tr. 537, 533-34 (G.L.); Tr. 2546-47, 2578, 2580 (Waizer); P-542 (L.G. Dep.) 46-47, 50-53; P-546 (A.M. Dep.) 34-36, 25; Tr. 151-53, 173 (E. Jones); Tr. 413-14 (S.K.); P-543 (R.H. Dep.) 49-50; Tr. 608-10 (S.P.); P-569 (G.H. Dep.) 41-46; P-544 (C.H. Dep.) 40-47; P-536 (D.N. Dep.) 39, 49-50; P-538 (B.J.) 43-44; P-541 (S.B. Dep.) 29, 38, 53-54. 128 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7 (h). 129 Tr. 2061, 2104-05 (Burstein); S-151 (E. Jones Report) 3, 8.
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can fit in a van.130 Before Park Inn recently acquired a van, it used ambulettes to take groups of residents on monthly outings to restaurants and movies.131 Seaview takes between ten and twenty residents each month to Wendy’s.132 Residents of Riverdale Manor Home for Adults are

taken by a mental health provider, the Federation of Employment and Guidance Services

(“FEGS”), on “field trips” to museums and libraries, but the visits are after hours when the facilities are closed to the general public.133

v.

The Adult Home Setting Limits Residents’

Opportunities To Interact with People Who Do Not

Have Disabilities

Overall, Adult Homes provide little support or encouragement for residents to interact

with people who do not have disabilities or to become integrated into the community and limit opportunities for social interaction and employment.134

As Plaintiff’s and Defendants’ experts agree, and as Adult Home residents testified,

Adult Homes limit the development of relationships with people who do not have disabilities, including social contacts.135 While Adult Home residents form friendships and romantic relationships with other Adult Home residents,136 many residents testified that they lack friends

130 Tr. 2061 (Burstein); see also P-542 (L.G. Dep.) 37 (testifying that outings are limited to thirteen people, the number of persons who can fit in a van).
131 Tr. 2104-05 (Burstein).
132 P-541 (S.B. Dep.) 53-54.
133 Tr. 2560-61, 80 (Waizer).
134 Tr. 71-73 (E. Jones); S-150 (D. Jones Report) 9. Adult homes are required to provide case management services that “assist[] each resident to maintain family and community ties and to develop new ones . . . .” N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7 (g).
135 Tr. 2916, 2899 (Kaufman) (testifying that by virtue of the nature and characteristics of the Adult Homes, choices in acquaintances and the development of social contacts are limited); S-54 (Kaufman Report) 10-11; Tr. 2374 (Geller); S-151 (E. Jones Report) 3; P-535 (T.M. Dep.) 89-90, 106-07, 110-12; P-538 (B.J. Dep.) 50.
136 Tr. 517-18, 546 (G.L.) (testifying that he considered his roommate in the Adult Home to be like family, and that they would do activities together such as going to the boardwalk, flying kites, and going shopping); Tr. 593 (S.P.);

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outside the Adult Home, and to the extent such friendships exist, they often predate their
admission to the Adult Home.137 While some residents have spoken to or met people on the
street,138 other residents testified that they do not know anyone or have any friends outside of the
Adult Home.139 For example, J.M. testified that when he lived in the Adult Home, he talked to
people in the neighborhood and visited a woman in her home, but that he had never seen any
other residents of the Adult Home speaking to people in the neighborhood.140 One resident
testified that “I met one person once [in the neighborhood] and when they find where you are
from, they avoid you.”141 Another resident testified that “[y]ou’re in program, you’re in home.
All your energy is surrounded with the home, so it’s hard to meet different people.”142
Tr. 383 (S.K.) (testifying that she has “a couple of friends” in the Adult Home); P-538 (B.J. Dep.) 28-29, 39-41, 5354. 137 Tr. 383 (S.K.) (testifying that she does not have any friends who do not live at the Adult Home because she is “not really involved in anything outside of the home except the [mental health] program”); Tr. 593-98, 603 (S.P.) (testifying that he currently has no friends who do not live at the Adult Home); P-538 (B.J. Dep.) 50; P-540 (P.B. Dep.) 45; P-542 (L.G. Dep.) 78 (testifying that she does not visit anyone or receive visits from anyone who is not a family member); P-543 (R.H. Dep.) 96-97 (testifying that he does not know anyone who lives in the neighborhood and is not in touch with anyone who does not live at the Adult Home); P-534 (L.H. Dep.) 51, 57-58; P-535 (T.M. Dep.) 35 (testifying that he does not know anyone by name who lives outside the Adult Home); P-545 (J.M. Dep.) 54 (testifying that he had no friends outside of the Adult Home when he lived there); P-569 (G.H. Dep.) 120, 123, 126-27. 138 P-568 (M.B. Dep.) 97-102 (testifying that when he lived in the Adult Home, he had “lots” of “street acquaintances”); P-546 (A.M. Dep.) 79-80; P-545 (J.M. Dep.) 64-66, 54 (testifying that when he lived in the Adult Home, he talked to people on the street “[a]ll the time” and that they were kind to him, but that he had no friends outside of the Adult Home); D-391 (D.W. Dep.) 29-32, 156, 172 (testifying that he speaks to people on the street and that a deli employee knows him by name, but that he lost track of his friends with whom he grew up and does not socialize with anybody who lives outside the Adult Home except for his family); P-546 (A.M. Dep.) 80 (testifying that he met a woman walking her dog and played chess with a man in the neighborhood but had no other friends outside the Adult Home). 139 P-540 (P.B. Dep.) 45 (testifying that she does not have any friends who are not residents of the Adult Home); P534 (L.H. Dep.) 57-58, 52 (testifying that she does not know people “on the outside” of the Adult Home and has “like two friends”). 140 P-545 (J.M. Dep.) 64-66, 71. 141 P-538 (B.J. Dep.) 50. 142 P-535 (T.M. Dep.) 111-12.
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Some residents testified that they feel isolated living in the Adult Homes.143 For example, one resident testified that “the first seven years I lived at [the Adult Home] I basically gained 135 pounds feeding my loneliness.”144 While it is possible for a person to feel isolated in any setting, including supported housing,145 Defendants’ expert Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated than residents of group homes.146
Some Adult Home residents have visitors, although as noted above, Adult Homes place significant restrictions on receiving visitors, such as visiting hours and requirements that visitors sign in.147 For example, a former Adult Home resident testified that his stepfather visited him in the Adult Home, but that his stepfather and others visit him more frequently now that he lives in supported housing, because in the Adult Home there was nowhere to have a private conversation, the visiting areas were small, guests could not join in meals, guests had to sign in, guests were not allowed to stay overnight, and visiting hours ended at 8 p.m.148 One resident testified that her sister and niece visited her “about twice” since she moved to the Adult Home and that both times, they went out to eat; she testified that she did not want to spend time with them in the Adult Home, because her roommate stays in the room most of the time, and she did not want to
143 Id. at 89-90, 110-12; P-544 (C.H. Dep.) 75-76; cf. D.W. Dep. 172 (testifying that he feels like he is part of the community); P-538 (B.J. Dep.) 56, 50-52. Plaintiff’s Rule 611 objection to page 172:11-25 of D.W.’s deposition is overruled. 144 P-569 (G.H. Dep.) 260. 145 See Tr. 2353-55 (Geller); Tr. 2899-2900 (Kaufman); Tr. 352-53 (Tsemberis) (testifying that he’s seen instances of supporting housing tenants becoming “relatively isolated” but that people would “rather suffer the loneliness than move to a group setting” and would prefer to “try and make it into the community”). 146 Tr. 2915-16 (Kaufman). 147 See supra note 74. 148 Tr. 477-79, 481-84 (G.L.).
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take her visitors “downstairs” or to the “smoking room.”149 Another resident testified that she receives no visitors other than family members, and that they cannot spend time with her at the Adult Home because the staff gets in the way.150 Another resident testified that her sister sometimes picks her up and takes her to the sister’s house, but when asked whether her sister visits with her inside the Adult Home, she answered only that her sister had “been inside” the Adult Home before.151 A resident testified that he never has visitors at the Adult Home,152 while another resident testified that no friends visit her but several relatives do, and that she sees them in the lobby.153
Not many Adult Home residents visit family and friends outside the Home,154 and the ones who leave to visit people do so to varying extents.155 Hinda Burstein, the administrator of Park Inn, testified that residents of Park Inn “occasionally” leave the facility to visit their families.156 She estimated that approximately ten percent of the residents have made weekend visits to their families, and some residents have traveled out of state to visit relatives.157 An Adult Home resident testified that he has visited a friend outside the Home only six times in nine years, estimated that about 25% of the residents visit their relatives outside the Adult Home (but
149 Tr. 383-85 (S.K.). 150 P-542 (L.G. Dep.) 78, 164-65. 151 P-534 (L.H. Dep.) 94. 152 P-541 (S.B. Dep.) 83. 153 P-540 (P.B. Dep.) 108-09. 154 Tr. 2637, 2662-63 (Lockhart) (conceding that “few” Adult Home residents visit their families); Tr. 147 (E. Jones) (testifying that she is aware of “some” residents who visit family). 155 Tr. 527-28, 530 (G.L.); P-540 (P.B. Dep.) 133-34; P-541 (S.B. Dep.) 56-57; P-568 (M.B. Dep.) 94-95; P-542 (L.G. Dep.) 14-15, 25-26, 135-36; P-569 (G.H. Dep.) 115-20; P-534 (L.H.) 54-55; P-538 (B.J.) 50-52; P-535 (T.M. Dep.) 79; P-546 (A.M. Dep.) 79-80; D-391 (D.W. Dep.) 25-28, 153-54, 181. 156 Tr. 2069. 157 Id.
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that the most frequently anyone visited a relative outside the home is twice per month), and stated that he knew of one resident who stayed overnight at his mother’s house in the neighborhood.158 Another resident testified that he does not have any family and friends outside the Adult Home with whom he keeps in touch.159
As numerous witnesses testified, the Adult Home setting limits opportunities for residents to pursue employment opportunities.160 For example, Dr. Jeffrey Geller, one of Defendants’ experts, agreed that living in a place where the phone is answered “Brooklyn Adult Care Center” “diminishes your work options and social contacts.”161 Very few Adult Home residents are employed or have volunteer positions outside of the Adult Home,162 and such jobs are often short-lived. For example, one resident testified that a social worker helped him obtain a previous job as a messenger, but he was fired after seven weeks.163 Another resident testified that he kept his previous job at a newsstand once he was admitted to the Adult Home, but the job now occupies only three to four hours per week and no longer involves interacting with customers.164
158 P-569 (G.H. Dep.) 117-27. 159 P-542 (R.H. Dep.) 96. 160 P-538 (B.J. Dep.) 50; P-535 (T.M. Dep.) 89-90, 106-07, 110-12. 161 Tr. 2374. 162 D-364 (NYC Adult Home Case Management Quarterly Program Data Reporting Form) OMH 43715, 43743, 43749 (indicating that on July 15, 2008, 9 residents from Garden of Eden, 7 residents of Riverdale Manor, and 4 residents from Anna Erika were working); Tr. 2064 (Burstein); Tr. 2637 (Lockhart); P-541 (S.B. Dep.) 40-42; P-546 (A.M. Dep.) 144; P-569 (G.H. Dep.) 102-06, 107-10; Tr. 567-70, 602-03, 607-08, 611-12 (S.P.) (testifying that he previously had a “training job” as a porter at the Bronx Psychiatric Center prior to being terminated, that he formerly participated in a job club in Manhattan where he received training, and that he knows only two other residents who have jobs outside of the Adult Home); P-568 (M.B. Dep.) 28-35, 38-40; P-538 (B.J. Dep.) 25-29 (testifying that she volunteers weekly by going to nursing homes and hospitals to share gospel tracts); P-544 (C.H. Dep.) 15-17, 78 (testifying that he shovels snow at his former church and had held a job as a parking attendant). 163 P-541 (S.B. Dep.) 40-42. 164 P-569 (G.H. Dep.) 102-03, 106.
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Another resident “helped out” at a coffee cart as a volunteer for a year.165 A very small number

of residents participate in vocational training; for example, eight to twelve out of the 181 residents at Park Inn participate in vocational training.166 There is evidence that one Adult Home resident obtained a GED since she moved to the Adult Home in 1985.167

vi.

Mental Health Programs and Case Management

Contribute Little to Residents’ Integration into the

Community

Many Adult Home residents with mental illness receive mental health services from a

variety of sources, including clinics, continuing day treatment programs (“CDTs”), and private practitioners.168 Adult homes are also required to provide basic case management services,169

and OMH’s Case Management Initiative funds independent case managers in eleven of the Adult Homes.170 While some residents leave the facilities to attend CDT or other mental health

programs, attending these programs contributes to residents’ isolation and separation from the mainstream of community life.171

165 P-546 (A.M. Dep.) 144. 166 Tr. 417-17 (S.K.); Tr. 2063-64 (Burstein); id. at 2496-99, 2062-63 (testifying that some mental health programs offer some work opportunities and that case managers help residents use the computer to look for jobs). Mr. Waizer testified that staff from FEGS “could refer” Riverdale Manor residents to vocational training programs if a resident expresses such an interest, but his testimony does not establish that any resident of Riverdale Manor was referred to or received such training. (Tr. 2625; see also id. at 2496 (testifying that “[w]e see ourselves as a prevocational agency”).) 167 P-538 (B.J. Dep.) 19-20. 168 See Tr. 1261-64 (Reilly). 169 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7 (g). Impacted adult homes are required to enter into written agreements with a provider of mental health services for “assistance with the assessment of mental health needs, the supervision of general mental health care and the provision of related case management services for those residents enrolled in mental health programs.” N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7 (b). 170 Tr. 1834–35 (Dorfman) (testifying that OMH case management is in eleven Adult Homes and that Defendants have no plan to expand it). 171 See supra note 102.
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The court heard testimony from service providers from nonprofit agencies that run mental health programs serving Adult Home residents. For example, Susan Bear testified about OMHlicensed CDTs run by the Jewish Board of Family and Children’s Services (“Jewish Board”), which have groups that focus on symptom management, spirituality, meditation, relationship building, medication management, cooking, and computers.172 Licensed CDT programs run by FEGS, serving Adult Home residents both on-site and off-site, are intended to help clients use community resources, learn self-care and self-medication, and prepare for employment.173
While CDT programs have laudable goals for participants, the evidence demonstrates that they have little focus on skill development.174 A December 2006 review by the New York State Commission on the Quality of Care for and Advocacy for Persons with Disabilities (“CQC”)175 of CDT programs noted a “disconnect” between participants’ life goals of gaining independent living and job skills and the goals that the programs had set for them.176 The CQC report found that some day treatment programs are characterized by group television and movie watching and art “programs,” which may only involve the provision of crayons, markers, and coloring books.177 Because Defendants concede that CDT programs are “outdated,” they are trying to
172 Tr. 2206-13, 2212. 173 Tr. 2496-97 (Waizer). Mr. Waizer also described FEGS’s intensive psychiatric rehabilitation treatment (“IPRT”) programs, but did not testify as to whether Adult Home residents participate in those programs. (See id. at 2501-02.) 174 Tr. 897-98 (Duckworth); see also, e.g., P-536 (D.N. Dep.) 51 (testifying that her program did not offer training in skills to make her more independent). 175 The CQC is an independent State agency. (See N.Y. Mental Hyg. Law § 45.07.) 176 P-93 (NYS CQC, Continuing Day Treatment Review) 13. 177 Id. at 1, 4-5, 19.
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make CDTs and other mental health services “more evidence-based and recovery-oriented,”178 while also directing funds away from these types of programs.179
One Adult Home resident testified that he had been attending a CDT program for fourteen years where he and seventeen or eighteen other residents “go to groups all day” in which providers “try to get us ready for the outside.”180 He testified that the groups offered “skills training” and that the groups “sometimes” talked about jobs, but he could not remember anything that was said about jobs, and the group leaders never talked about applying for jobs, writing resumes, or looking in classified ads.181 Another resident testified that the mental health program he attends, which “gives you something to do during the day,” provides arts and crafts, and sometimes movies and Bingo, but that the program does not offer any classes or self-help groups, does not talk about jobs, and has taken participants on only two trips, both to Chinese restaurants.182
Case management is also designed to help residents with independent living skills. Defendants’ witnesses testified that case managers work with residents to help the residents learn about shopping, accessing community resources, and taking public transportation.183 For example, Frances Lockhart testified that case managers from Federation of Organizations
178 Tr. 1489-90 (Madan); Tr. 1273-74 (Reilly). 179 Tr. 3317-18 (Schaefer-Hayes); Tr. 720, 749-50 (Rosenberg). Defendants are now promoting “Personal Recovery-Oriented Services (“PROS”) in lieu of CDTs (Tr. 1243-44, 1262-65 (Reilly); Tr. 3392 (Schaefer-Hayes); Tr. 3158-60 (Myers)), but there is no evidence that PROS programs are currently being offered in Adult Homes or that Adult Home residents are participating in such programs. (See 1242, 1262-65 (Reilly) (testifying that when he left OMH in 2007, “we were looking at even the idea of trying to come up with using a PROS model or PROS site at maybe one of the adult homes to try to look at that as maybe an option on trying to move and change some of the system.”).) 180 See P-544 (C.H. Dep.) 23-26. 181 Id. at 26, 32-33. 182 P-541 (S.B. Dep.) 26-30. 183 Tr. 1746-50 (Dorfman); Tr. 2060-61 (Burstein); Tr. 2626-27 (Lockhart).
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(“Federation”) teach Adult Home residents how to shop for clothes.184 An Adult Home resident
testified, however, that while Federation takes residents shopping for clothes twice per year, “they don’t give you the money in your hand and let you buy your own clothes.”185 Ms. Burstein
testified that at Park Inn, case managers informally assist two or three residents at a time with
using the computer, and that that the “more sophisticated” residents use the internet to look for jobs, buy clothing, or enter “chat rooms.”186 As Mr. Jones testified, the OMH Case Management
Initiative primarily “arrange[s] services within the existing setting,” it does not “deal frontally with the issue of where people live.”187
To the extent that mental health programs or case management aim to teach independent
living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice these skills in their present living situation.188 Experts for both sides
testified that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live.189 For example, residents are
184 Tr. 2626-27 (Lockhart). 185 D-391 (D.W. Dep.) 135. 186 Tr. 2062-63. Ms. Burstein also testified that approximately ten to twelve residents of Park Inn attend psychosocial clubhouses, the purpose of which is to give residents an opportunity to “perform tasks they might not be able to perform in the facility,” such as shopping, cooking, and preparing food, although she did not testify as to whether the Park Inn residents actually did those activities at the clubhouse. (Tr. 2052.) 187 Tr. 1172. 188 See, e.g., P-569 (G.H. Dep.) 198 (“Q. Do you feel you’ve gained confidence in your abilities while you’ve lived at [the Adult Home]? A. It’s tough to say because I’ve never been able to utilize them. I don’t know.”).) 189 S-152 (Duckworth Report) 6-7 & n.5; Tr. 67-69, 170 (E. Jones) (“These are more artificial activities that have been set up with the idea that you can teach people skills in the adult home that they will then take with them to a community placement if that ever becomes available and actually, that’s not the practice in the mental health field. We know that people with serious mental illness have difficulty in generalizing information and that the most successful way to teach people skills and to help them recover skills and retain skills is to have them practice them on an ongoing basis in the place where they live or work.”); Tr. 2360-61 (Geller) (testifying that “the system needs to have that person exist in an environment where they can use the skills”); Tr. 1140 (D. Jones) (testifying that teaching independent living skills in congregate settings is a “waste of good public time and money” because “[p]eople don’t transfer skills from one setting another”). Dr. Tsemberis, a fact witness, provided similar testimony
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unlikely to learn to cook in the Adult Home environment simply because a training kitchen is installed.190 Therefore, while it is possible for Adult Home residents to benefit to some extent from these programs,191 the weight of the evidence shows that they are unlikely to gain a significant benefit from this type of training or develop any lasting skills.192 Inspections of the

Adult Homes have cited violations related to residents’ rights and ability to participate in their surrounding community and to learn independent living skills.193

vii.

Adult Homes Discourage Residents from Engaging in

Activities of Daily Living and Foster “Learned

Helplessness”

The Adult Homes foster what witnesses for both sides have referred to as “learned

helplessness”: when individuals are “treated as if they’re completely helpless, the helplessness becomes a learned phenomenon.”194 This is consistent with Defendant OMH Commissioner

Hogan’s testimony to the Legislature that in institutions in general, “the skills of community living are eroded by the routines of institutional life.”195 The Adult Homes discourage – and

on the basis of his own observations. (See Tr. 350 (Tsemberis) (testifying that the “research is if you need to learn a skill you have to be in the setting, that’s where it’s best learned. If you want to learn how to live in the community, you have to be in the community to do it.”).) 190 S-152 (Duckworth Report) 7-8; Tr. 870 (Duckworth). 191 See id. at 895; P-544 (C.H. Dep.) 25-26. 192 S-152 (Duckworth Report) 7-8; Tr. 870 (Duckworth); see also Tr. 412-13 (S.K.) (describing day treatment program in which residents learned to make cakes by being told what ingredients to put in a pan and having staff “do the rest”); P-569 (G.H. Dep.) 198. 193 Joint Stip. ¶ 22; see D-29 (DOH Inspection Report for Sanford Home (Sept. 8, 2003)) DOH 54012-13 (citing Adult Home that did not have planned community activities on its activity schedule). 194 Tr. 257-59 (Tsemberis) (describing a “certain passivity and helplessness and demoralization that sets in”); Tr. 2358 (Geller) (describing “learned helplessness” and testifying that Adult Homes “absolutely” foster learned helplessness); S-152 (Duckworth Report) 9, 13, 15; see also Tr. 3425, 3486 (D. Jones) (describing dependencybased model of care in Adult Homes and testifying that some Adult Home residents have “learned the dependency that has been part of that setting”). 195 D-182 (OMH 2009-2010 Mental Health Update & Exec. Budget Testimony) OMH 43461.
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some outright prohibit – residents from cooking,196 cleaning,197 doing their own laundry,198 and
administering their own medication.199 The Adult Homes also generally manage residents’
personal needs allowances, distributing cash to residents on specified dates and times.200 The
result is that Adult Home residents lose skills that they had prior to living in the Adult Home –
such as medication management – because they are forbidden from practicing those skills in the
Adult Home.201 As one former Adult Home resident testified, “[W]hen you go to an adult home,
number one, you’re treated like a little kid. And if you stay there long enough, you’re going to
act like a little kid and you ain’t going to want to leave because you being taken care of . . . it’s
196 See, e.g., P-552 (Kerr Dep.) 190:2-5 (explaining that DOH prohibits Adult Home residents from cooking their own meals); S-159 (Garden of Eden Facility Rules & Policies) (prohibiting residents from cooking and having refrigerators in their rooms and prohibiting residents from entering the facility’s kitchen “at any time”); Tr. 481 (G.L.) (testifying that there was no way to cook for oneself or prepare a meal for a guest); Tr. 559-60 (S.P.) (testifying that he used to cook his own meals before moving to the Adult Home but that the Adult Home does not allow residents to cook any of their own meals); (S.B. Dep.) 81 (testifying that he wants to cook but cannot, because he’s not “in that type of setting” and “there’s no cooking facility”); P-545 (J.M. Dep.) 102:4-103:5; cf. Tr. 2060-61 (Burstein) (testifying that Park Inn has a “breakfast group” in which participants can prepare their own breakfast). Defendants’ Rule 602 objection to pages 102:24-103:5 of J.M.’s deposition is overruled. 197 See, e.g., P-541 (S.B. Dep.) 82 (testifying that he wants to mop for himself but does not do his own cleaning because there is a housekeeper); Tr. 381-82 (S.K.) (testifying that she is “of course” capable of cleaning her room but does not do anything besides make the bed, because “they don’t allow you to do anything” and “that’s the way it’s done); see also S-54 (Kaufman Report) 8-9; Tr. 862-63 (Duckworth). 198 See, e.g., S-160 (Lakeside Manor Rules) (prohibiting residents from entering the laundry room); Tr. 381-82 (S.K.) (testifying that she is capable of doing her own laundry but that she does not do it in the Adult Home because residents are not allowed to); P-534 (L.H. Dep.) 59; P-545 (J.M. Dep.) 101-02:3; Tr. 496-98, 538-39 (G.L.) (testifying that his former Adult Home, unlike other Adult Homes, allowed residents to do their own laundry and that he did his own laundry, but his roommate did not do his own laundry because the aide “kind of made him feel guilty that he was doing something that she could do for him”); P-546 (A.M. Dep.) 103-04; P-541 (S.B. Dep.) 82; see also S-54 (Kaufman Report) 8-9. 199 See supra note 108. 200 S-151 (E. Jones Report) 6. G.L. testified that when he lived in the Adult Home, he was not allowed to receive his personal needs allowance on a monthly basis. (Tr. 496-97 (G.L.).) Some residents receive their personal needs allowance on a monthly basis. (See, e.g., Tr. 167 (E. Jones); Tr. 379 (S.K.) (testifying that residents she receives her allowance weekly but that some residents receive their allowance daily or monthly); Tr. 572 (S.P.) (testifying that he and about fifty other residents receive their allowances at the same time at the beginning of every month).) Park Inn allows residents to choose whether they will receive their personal needs allowance on a daily, weekly, or monthly basis. (Tr. 2066 (Burstein).) 201 Tr. 862-63 (Duckworth) (describing the “atrophying” of medication management skills during residents’ stay in the Adult Homes).
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like an institution to me.”202 Similarly, another former resident testified, “the adult home fosters complete dependency upon them to do everything for you, discourages independence . . . .”203 Plaintiff’s expert Dennis Jones – who had been the Commissioner of Department of Mental Health in two states and a transitional receiver for the District of Columbia’s public mental health system – testified that Adult Homes are a “residency based model which means the goal there is not really to promote independence, it’s to promote dependence and sustain dependency.”204
That the Adult Homes are a setting that fosters learned helplessness, however, does not mean that the individuals who live in the Adult Homes are helpless, or that they cannot and do not manage their activities of daily living. To the contrary, the evidence set forth below demonstrates that Adult Home residents are not materially different from individuals with mental illness who live and receive services in the community.205 As Plaintiff’s expert Elizabeth Jones observed, the high degree of independence exhibited by many Adult Home residents is particularly striking given the tendency of individuals to appear more dependent and disabled when they are observed in institutional settings such as Adult Homes.206 In addition, some of the current and former Adult Home residents who testified in this case engage in advocacy on behalf
202 P-546 (A.M. Dep.) 153-55; see also id. at 211:13-19, 212:11-213:5. Defendants’ objection to pages 153:17154:14 as non-responsive is overruled. 203 Tr. 2734-35 (I.K.). 204 Tr. 3425; see also S-150 (D. Jones Report) Ex. 1 (resume). 205 See infra Part III.B.2.h. 206 Tr. 122.
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of Adult Home residents – they lobby State government, participate in rallies, and attend meetings of advocacy organizations for individuals with mental illness.207

viii.

Defendants’ Experts Did Not Rebut the Overwhelming

Evidence That Adult Homes Are Institutions,

Segregated Settings That Impede Community

Integration

Defendants presented two experts, Alan Kaufman and Dr. Jeffery Geller, to rebut the

evidence that Adult Homes are segregated settings that impede community integration.

Defendants’ experts highlighted, for example, that the Adult Homes are in urban settings and that because residents are not locked in the facilities, they have opportunities to come and go.208 But

even if the Adult Homes are not as restrictive as psychiatric hospitals in some respects, they

nonetheless are segregated, institutional settings that impede integration in the community and

foster learned helplessness. As described below in Part III.A.2.c, the State’s supported housing

program provides far more opportunities for community integration than do Adult Homes. As

explained by Michael Newman, the Director of OMH’s Bureau of Housing Development and

Support, 120 people living in a congregate setting in which everyone is seriously mentally ill is a

“segregated setting,” while scattered-site supported housing provides “maximum opportunities” for integration.209

207 Tr. 530-33 (G.L.); P-542 (L.G. Dep.), 158-59; P-543 (R.H. Dep.) 16-18, 27-33 (testifying that he attends advocacy group meetings, is on the Residents’ Council, and has traveled to Albany); P-569 (G.H. Dep.) 11-16, 2229; P-545 (J.M. Dep.) 21:21-24:5; P-535 (T.M. Dep.) 70-71 (testifying that he went to Albany once); D-391 (D.W. Dep.) 134 (testifying that he went to Albany five times to lobby for an “[i]ncrease of spending allowance, clothing allowance, better medical and mental conditions, air conditioners in the room and housing.”); Tr. 2724-27 (I.K.). 208 See, e.g., S-54 (Kaufman Report) 9. 209 Tr. 2162, 2169-70.
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Defendants’ experts opined that the setting in which a person with disabilities lives is
irrelevant to the question of integration because it is possible for a person to feel isolated in any kind of setting.210 The court accords these opinions little weight. Mr. Kaufman conceded that,
by and large, residents of supported housing feel that they are far more integrated into the community than residents of group homes.211 Dr. Geller explicitly rejected the applicable legal
standard for integration. He testified that he believes the Supreme Court’s finding in Olmstead
that “confinement in an institution severely diminishes the everyday life activities of individuals”
was “wrong,” and that the setting in which a person lives and receives services does not determine whether he or she is “integrated.”212
With respect to the institutional and segregated nature of Adult Homes, Defendants’
experts and other witnesses were largely in agreement with DAI’s experts, current and former Adult Home residents, and other witnesses.213 Defendants’ experts acknowledged the
210 Tr. 2899-2900 (Kaufman); Tr. 2292 (Geller). 211 Tr. 2915-16. 212 Tr. 2373 (“Q. In your opinion, Dr. Geller, the Supreme Court was wrong when it stated that ‘confinement in an institution severely diminishes the everyday life activities of individuals including family relations, social contact, work options, economic independence, educational advancement and cultural enrichments,’ correct? A. Based on my own experience and evaluating scores and scores of state hospitals across the United States, yes, they were wrong.”); S-52 (Geller Report) 2 (opining that, because integration is “simply not a function” of the setting where a person lives, “[t]he questions faced in this case … are not whether or not adult homes are institutions with all the connotations thereto; or whether or not adult homes are ‘segregated settings,’ whatever that might mean; or whether or not those who reside in adult homes could reside in apartments with varying degrees of support; or whether or not supported housing per se has a more positive effect on rehabilitation and recovery; or whether or not New York State had negative experiences with impacted adult homes; or whether or not New York State, pursuant to the Americans with Disabilities Act, the Olmstead decision and all other considerations has created a panoply of residential types throughout New York State.”). Put another way, Dr. Geller’s view is that “there should be no debate as to whether Mr. A or Ms. B can be serviced ‘in the community.’ The answer to that question is clearly, ‘yes,’ he or she can. That’s a separate question from the wisdom of doing so . . . .” (Id.) 213 See, e.g., Tr. 2162 (Newman) (agreeing that “a housing situation in which 120 people with serious mental illness live in that housing situation in a congregate setting and there are no residents who do not have serious mental illness” is a “segregated setting”).
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institutional characteristics of the Adult Homes.214 Mr. Kaufman noted that there is generally no
expectation that individuals in Adult Homes will move to another setting.215 Defendants’
experts also acknowledged that characteristics of Adult Homes themselves impede the
development of social contacts and work opportunities.216 Given the extensive testimony from
Defendants’ experts that Adult Homes have “institutional qualities,” “share[] characteristics with
inpatient psychiatric facilities,” and impede residents’ development of social contacts and
employment opportunities, the court rejects the fallacy that Adult Homes are not
“institutions.”217 Indeed, while Mr. Kaufman tried to draw a semantic distinction between a
214 Tr. 2356 (Geller) (“Q. Dr. Geller, did you find that adult homes share some characteristics with institutions? A. Absolutely.”); id. at 2374 (“Q. So you would agree that living in a place where the phone is answered ‘Brooklyn Adult Care Center’ diminishes your work options and social contacts? A. Yes. Q. And you would agree then that having visiting hours diminishes opportunities to cultivate social or family relationships, right? A. Right.”); id. at 2425 (“Q. Do you agree that there are many people with mental illness stuck in adult homes? A. Absolutely.”); id. at 2427 (“Q. Do you agree that there is an overuse of adult homes? A. Absolutely.”); id. at 2370-71 (agreeing that Adult Homes have an institutional feel and institution-like characteristics, and are in some respects segregated settings); id. at 2356-57 (providing examples of Adult Homes “being institution-like”: “lining up to get your medication, having medication delivered while you were eating a meal, being required to sit in the same seat repeatedly, having to negotiate, potentially extensively, if you wanted to change a roommate, not having a choice when you first moved in who your roommate might be, having congregate toilet facilities.”); see also S-54 (Kaufman Report) 8-9 (noting that the size, physical layout, furnishings and decorations of large adult homes give them a similar appearance to institutional settings; adult homes also share certain routines with mental health institutions, including inflexible schedules for meals and other daily activities, assigned dining hall seating, routinized program activities, public address announcements, and constant presence of medical and mental health staff); Tr. 2895-96 (Kaufman) (testifying that Adult Homes shared characteristics of “large psychiatric hospitals and institutions,” including the regimented food service schedule, dispensing of medication, provision of housekeeping and laundry services without allowing residents to do these activities themselves, and not allowing “full freedom” as to roommates). 215 Tr. 2910-11. 216 Id. at 2899 (Kaufman); S-54 (Kaufman Report) 10 (“Understandably, a large Adult Home setting coupled with a high proportion of residents with mental illness can artificially limit the interactions of residents and constrict the diversity of friends and acquaintances.”); Tr. 2374 (Geller). 217 Tr. 2897 (Kaufman) (“So on balance, while I thought that they shared characteristics with inpatient psychiatric facilities, I did not think that they were actually mental health institutional settings per se.”); see Tr. 2357 (Geller).
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setting with institutional characteristics and “institutional settings per se,” he testified on direct examination that Adult Homes “were large institutions.”218
Defendants themselves have acknowledged that Adult Homes are institutional.219 In
addition, their witness, Susan Bear, the Assistant Executive Director of a large New York City
mental health provider, described the Adult Homes located in Coney Island as “community-
based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it.”220
In sum, the court finds that the overwhelming weight of the evidence demonstrates that
Adult Homes are institutions that impede residents’ interaction with individuals in the
community who do not have disabilities.
c. Supported Housing Is a More Integrated Setting Than an Adult Home
As relief in this case, DAI seeks an order requiring Defendants to enable DAI’s
constituents to receive services in supported housing instead of Adult Homes. Supported housing, a type of OMH-funded “Housing for Persons with Mental Illness,”221 is a setting in
218 Tr. 2899 (testifying that in talking to Adult Home residents, “it was clear to me that facilities of this nature had certain artificial limitations or artificially limited who you could interact with in many cases. They were large institutions.”) (emphasis added). 219 P-284 (OMH Guiding Principles). 220 P-673 (Letter from Susan Bear to OMH official Joseph Reilly (Jan. 9, 2004)) JBFCS 354; Tr. 2236-2238 (Bear) (testifying about P-673). 221 Other types of OMH Housing for Persons with Mental Illness (also referred to as “OMH community housing”) are: (1) congregate treatment, commonly referred to as group homes or supervised community residences; (2) apartment treatment; and (3) community residence-single room occupancy (“CR-SRO”). (Tr. 1436-40.) According to Christine Madan, OMH’s Director of Housing and Adult Services, congregate treatment is the “most highly structured and supervised program[]” that OMH licenses, in which 10-40 residents live in a single-site facility that provide meals, on-site services, and 24/7 staff coverage. (Id. at 1436-37.) Apartment treatment programs provide housing in shared apartments that usually house three to five people and are often scattered-site; residents staff services as needed. (Id. at 1437-39.) CR-SRO programs provide extended-stay housing in a single-site facility where 40-60 residents have their own rooms designed as studio apartments or as suites with single bedrooms around shared living spaces, with 24/7 staff on site. (Id. at 1439-40.)
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which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community. OMH develops supported housing by issuing Requests for Proposals (“RFPs”) and awarding contracts to community providers who will deliver the services.222 The providers select existing apartments in the community for their programs.223 Most supported housing in New York is “scattered site” – that is, it is in the form of rental apartments scattered among various buildings throughout the community.224 As used throughout, “supported housing” refers to the scattered-site supported housing that DAI seeks for its constituents.
The State is currently focusing on supported housing more than other forms of OMH housing because it is cost-effective, a best practice, and what consumers want.225 Ms. Jones explained that the modern practice in the mental health field is to start with housing and “add and subtract the supports as that person needs them.”226 Likewise, Ms. Rosenberg testified that supported housing reflects the most current thinking and practice in the field.227 Consistent with that view, OMH began to implement a supported housing program in 1990.228 Mr. Newman, the Director of OMH’s Bureau of Housing Development and Support, testified that supported housing is the current focus of OMH’s housing development because it is a “successful,” “cost-
222 Tr. 1927-29 (Newman) (describing RFP process for OMH-funded housing). 223 Tr. 3483 (D. Jones) (testifying that supported housing providers “are using already existing housing,” so they do not have to buy or build new buildings). 224 Tr. 236 (Tsemberis); see also Joint Stip. ¶ 11 (“Scattered site supported housing consists of apartments scattered among various buildings.”). 225 Tr. 2159 (Newman). 226 Tr. 139; see also S-150 (D. Jones Report) 25. 227 Tr. 650-51. 228 S-11 (OMH, Supported Housing Implementation Guidelines (Apr. 1990) (“1990 Supported Housing Implementation Guidelines”)); see also S-150 (D. Jones Report) 26.
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effective” program that gives residents “the same privacy rights as any other tenant in a landlordtenant relationship.”229 As set forth below, the evidence demonstrates that supported housing is a far more integrated setting than an Adult Home.
In supported housing, people with mental illness live much like their peers who do not have disabilities. Scattered site supported housing is a “normalized” residential setting.230 In other words, it is a setting much like where individuals without disabilities live.231 It is a person’s home.232 Residents of supported housing sometimes live alone and sometimes share their apartment with one or more roommates.233 They choose their own roommates.234 Sometimes they lease the apartment directly from the landlord, and sometimes they lease the apartment from the provider.235
One of the key principles of the State’s supported housing program is to “separat[e] housing from support services by assisting the resident to remain in the housing of his choice while the type and intensity of services vary to meet the changing needs of the individual.”236 Supported housing providers and other community mental health providers offer support services that vary depending upon the needs of the resident.237 Supported housing providers offer basic
229 Tr. 2159-60; see also Tr. 3172-73 (Myers) (testifying that OMH’s development efforts are centered on supported housing and SROs, and noting that supported housing is “less expensive” than other housing models). 230 Tr. 654-55 (Rosenberg). 231 Tr. 654-55 (Rosenberg). 232 S-150 (D. Jones Report) 25; Tr. 252 (Tsemberis) (“It is their home. . . . The person makes a home[,] it’s not like they’re moving into a housing program that’s a room in some place that they are sort of guests in that place. It’s their lease, it’s their apartment . . . .”); Tr. 851 (Duckworth). 233 Tr. 290 (Tsemberis). 234 Id. at 290. 235 Id. at 316-17. 236 S-11 (1990 Supported Housing Implementation Guidelines) OMH 37269. 237 S-33 (2007 RFP) OMH 42726.
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case management services.238 The number of visits from case managers can vary widely depending on the needs of the resident, from once a month to as often as twice per day.239
In addition to the services of the supported housing provider, residents can receive additional support services, such as Assertive Community Treatment (“ACT”) or additional case management services, sometimes called “intensive” or “blended” case management.240 Sam Tsemberis, the Executive Director of the Pathways to Housing (“Pathways”) supported housing program, testified that it is “common” for supported housing residents to have case management services in addition to those supplied by the provider.241 As OMH’s Director of Case Management Services Mr. Dorfman testified, “[a]ll residents in [OMH] mental health housing, if appropriate, are eligible and can access all the mental health community support services.”242 High-level OMH officials similarly testified that ACT and case management services, including blended and intensive case management, are currently available to supported housing residents.243
According to OMH, ACT “delivers comprehensive and flexible treatment, support, and rehabilitation services to individuals in their natural living settings.”244 An ACT team is multi-
238 Tr. 237 (Tsemberis); Tr. 1252-53 (Reilly) (testifying that supported housing includes “some amount of case management”). 239 1443-44 (Madan); Tr. 2172-73 (Newman); Tr. 2642-43, 2672-73 (Lockhart) (testifying that she is aware of individuals who were seen by the supported housing case manager twice per day, twice per week, and every other day). 240 Tr. 1830, 1832 (Dorfman); Tr. 1414-16 (Reilly); Tr. 3170-71 (Myers). 241 Tr. 237. 242 Tr. 1832. 243 Tr. 1414-15 (Reilly) (supported housing residents can receive ACT or case management services); Tr. 3170-71 (Myers) (testifying that some people in supported housing receive ACT or have an intensive case manager). 244 S-97 (OMH website description of ACT); see also Tr. 855-57 (Duckworth) (testifying about S-97 and that OMH’s description of ACT in New York is consistent with his experience).
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disciplinary – it typically includes members from the fields of psychiatry, nursing, psychology,
and social work, with increasing involvement of substance abuse and vocational rehabilitation
specialists.245 ACT teams provide services tailored to meet a client’s specific needs.246
According to OMH’s ACT Program Guidelines, to be eligible for ACT services in New York
State, individuals must have “a severe and persistent mental illness . . . that seriously impairs
their functioning in the community,” with a “priority” given to individuals with “continuous high
service needs that are not being met in more traditional service settings.”247
ACT teams can assist recipients with a wide range of service needs, including teaching
medication management.248 They can also assist with daily activities such as personal care and
safety, grocery shopping and cooking, purchasing and caring for clothing, household chores,
using transportation and other community resources, and managing finances.249 ACT teams see
245 S-97 (OMH website description of ACT). 246 Id. 247 P-372 (OMH ACT Program Guidelines 2007) 4.
Defendants have provided a document from the Center for Urban Community Services (“CUCS”), a third party contracted to run New York City’s Single Point of Access (SPOA) for supported housing. (D-279 (CUCS, Quick Reference Guide to ACT & Case Management Servs (“CUCS Guide”).) That document indicates that to receive ACT services in New York City, a person must either be under a court’s Assisted Outpatient order, demonstrate a high use of inpatient hospitalizations or emergency room services (three or more times over the last year), or have an inpatient hospitalization during the last year that lasted ninety days or longer. (See id.) Ms. Madan testified that these eligibility requirements do not reflect OMH’s statewide ACT policy guidelines, but instead represented “more specific” guidelines for New York City agreed upon by OMH and the “local government unit,” i.e., New York City. (Tr. 1477-78, 1537 (Madan).) As DAI’s expert Mr. Jones testified, some Adult Home residents who would need ACT to live in supported housing would meet the CUCS guidelines. (Tr. 1125.) Mr. Jones also testified that OMH could apply the statewide guidelines in New York City, rather than the local guidelines, in order to ensure that Adult Home residents transitioning into supported housing receive the services necessary to succeed. (Id. at 1125-26.) 248 Tr. 938 (Duckworth) (testifying that “[a]ll ACT Teams expect to teach people how to manage their medicines as part of the process of care.”); Tr. 1535-38 (Madan); P-372 (OMH ACT Program Guidelines 2007) 3-4 (listing independent living skills taught by ACT team). 249 P-372 (OMH ACT Program Guidelines 2007) 3-4; Tr. 279, 243-46 (Tsemberis). The court does not credit the testimony of OMH employees who testified, contrary to OMH’s ACT Program Guidelines and service providers themselves, that ACT teams do not provide routine support in helping residents with personal care, taking their medications, and housekeeping. (See Tr. 3194-96 (Myers); 1478-79 (Madan).)
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clients on average about twice per week but can see individuals as often as twice per day if necessary.250 An ACT team assigned to a person with mental illness recently discharged from the hospital would typically see that person once or twice a day.251 Individuals in supported housing who receive ACT services are required to be visited at least six times per month by members of the ACT team.252
For example, the Pathways program uses ACT with roughly 80% of its incoming clients; the remaining 20% receive less intensive case management.253 Pathways routinely and successfully helps people overcome difficulties with activities of daily living such as laundry, cooking, or using public transportation, and does not regard such challenges as “difficult issues” to deal with.254
Residents of supported housing have the same freedoms that other apartment tenants do.255 They can control their own schedules and daily lives.256 They are free to come and go when they like. They can live with a significant other, marry and live with a spouse, live with their children, invite guests for meals, decorate their own apartment, and have overnight
250 Tr. 228-29 (Tsemberis) (describing ACT services in Pathways to Housing). 251 Id. 252 P-372 (OMH ACT Program Guidelines 2007) 5. 253 Tr. 230 (Tsemberis). 254 Id. at 243-46. 255 Tr. 501-02 (G.L.); Tr. 2751 (I.K.); P-546 (A.M. Dep.) 204-05 (testifying that he prefers to live in supported housing than in the Adult Home because “I get more independent, I take my own medication, I do my own blood tests, I set up my own schedule, I eat when I want to, I cook – I get an opportunity to cook. Like Thanksgiving, I made a Thanksgiving dinner, me and my girlfriend . . . .” and that at the adult home, “you got to eat at certain times” or “[y]ou don’t eat,” unless the Adult Home has leftovers or the resident calls in advance to let them know he or she will be missing the meal). 256 Tr. 475-77, 483-88 (G.L.) (describing his life in supported housing, including that he sets his own schedule for meals, receiving visitors, and other activities); Tr. 290-91 (Tsemberis).
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guests.257 They have the same privacy rights and freedoms as any other tenant in a landlord-
tenant relationship,258 including the keys to their own apartment.259 I.K., who recently moved to
supported housing after spending sixteen years in an Adult Home, testified that she loves living
in her apartment.260 She explained:
I can limit what I eat or I can expand my choices. I can have as much salad as I like. I can have as little grease as I like. I can eat foods that were not permitted in the home . . . . I do my own shopping. I do my own food selection. It’s free. It’s freedom for me. It’s freedom. It’s being able to actually live like a human being again. 261
When asked whether he had a preference between the Adult Home, where he lived for five years,
and supported housing, where he has been living for the last two years, G.L. explained:
A. Definitely where I am now. Q. Why is that? A. I have much more freedom. Q. To do what? A. Anything, everything. Q. Would you ever – A. I can have people stay overnight. I can entertain. I couldn’t do that in the adult home. Q. Anything else? A. Visitors can come anytime. Q. And that means something to you? A. Yes. Q. Would you ever voluntarily come back to an adult home? A. No.262
257 Tr. 251 (Tsemberis). While Defendants have provided evidence that one supported housing provider, Federation of Organizations, imposes stricter rules in its 25-bed supported housing program, such as not permitting residents to live with their families (Tr. 2643-47 (Lockhart)), this evidence does not rebut the weight of the evidence that supported housing imposes far fewer restrictions and provides far greater freedoms than Adult Homes, and that residents of supported housing have the same freedoms as other apartment tenants. 258 Tr. 2160 (Newman). 259 Tr. 251 (Tsemberis). 260 Tr. 2750. 261 Id. at 2751. 262 Tr. 501-02.
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Dr. Tsemberis explained that it is the very ordinariness of supported housing that residents appreciate:
When people first move into an apartment that is so much the thing they appreciate the most, because many of the people that we’re housing out of shelters and hospitals, especially, have been for years told when to wake up, what to eat, when to eat, what TV channels to watch, which are selected for them, what they watch, and when they watch it, when they can make phone calls. Every tiny aspect of their life is decided by someone else and what people appreciate immediately are the ordinary day to day freedoms of things, like when you can choose to wake up or go to sleep or watch a TV channel or eat when you are hungry as opposed to when it’s time to eat. They seem ordinary and mundane and are profoundly important to build a sense of well being for the person.263 Residents of supported housing live and receive services in integrated settings.264 Compared to Adult Home residents, residents of supported housing have far greater opportunities to interact with people who do not have disabilities and to be integrated into the larger community.265 In the words of Mr. Newman, the Director of OMH’s Bureau of Housing Development and Support, supported housing provides “maximum opportunities” for community integration.266
3. Conclusions of Law As noted above, the law requires that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The appropriate inquiry to determine
263 Tr. 290-91. 264 Tr. 654-55 (Rosenberg); Tr. 2915-16 (Kaufman) (testifying that in general, residents of supported housing feel more integrated than residents of group homes). 265 Tr. 653-55 (Rosenberg); Tr. 482-487 (G.L.) (describing the guests and family members who have visited him at his apartment, as well as the barbecues and holiday dinners he has prepared for guests). 266 Tr. 2162.
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whether a particular setting is the “most integrated setting” is whether it “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” DAI I, 598 F. Supp. 2d at 321 (citing 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A). The court concludes that the large, impacted Adult Homes at issue in this case do not enable interactions with nondisabled persons to the fullest extent possible, and that the State’s supported housing programs offer a setting that enables interactions with nondisabled persons to a far greater extent.
Under the applicable standard set forth in the regulations for what constitutes the “most integrated setting,” a plaintiff need not prove that the setting at issue is an “institution” to establish a violation of the integration mandate. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (noting that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized” and “while it is true that the plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements.”). Rather, a plaintiff must show that the setting does not “enable interactions with nondisabled persons to the fullest extent possible.” DAI I, 598 F. Supp. 2d at 321; see also Joseph S., 561 F. Supp. 2d at 289-290 (“A failure to provide placement in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible violates the ADA’s integration mandate.”) (internal quotation marks and citation omitted).
Whether a particular setting is an institution is nonetheless a relevant consideration in determining whether it enables interactions with nondisabled persons to the fullest extent possible. It is clear that, “where appropriate for the patient, both the ADA and the RA favor
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integrated, community-based treatment over institutionalization.” Frederick L. v. Dep’t of Pub. Welfare (“Frederick L. I”), 364 F.3d 487, 491-92 (3d Cir. 2004). This echoes Olmstead’s recognition that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes individuals’ everyday activities.” 527 U.S. at 600.
The court’s factual finding that the Adult Homes are institutions is compelling evidence supporting the conclusion that such a setting does not enable interactions with nondisabled people to the fullest extent possible. Adult Homes are institutions that house well over 100 people, all of whom have disabilities and most of whom have mental illness. Adult Homes are designed to manage and control large numbers of people and do so by establishing inflexible routines, restricting access, and limiting personal choice and autonomy. Residents line up to receive meals, medication, and money at inflexibly scheduled times during the day. They are assigned seats in the cafeteria, roommates, and treatment providers. They have next to no privacy or autonomy in their own daily lives, and they are discouraged, and most often prohibited, from managing their own activities of daily living, such as cooking, taking medication, cleaning, and budgeting.
These institutional qualities of the Adult Homes are relevant to the issue of integration because they influence the extent to which residents can interact with individuals who do not have disabilities. The large population of the Adult Homes is relevant because many people with mental illness living together in one setting with few or no nondisabled persons contributes to the segregation of Adult Home residents from the community. As the Director of OMH’s Bureau of
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Housing Development and Support testified, a housing setting shared by 120 people, all of whom have serious mental illness, is a “segregated” setting.267 The rules and routines of the Adult Homes place many practical limits on when residents can come and go from the facility. Given the lack of privacy and the restrictions on when and where visitors can be received, the residents’ ability to develop and maintain relationships with people outside the Adult Home is limited.
The lack of autonomy and isolation fostered by the Adult Home setting also influences residents’ opportunities to interact with people who do not have disabilities. Contrary to Defendants’ assertion that autonomy and isolation are not functions of where a person lives,268 the Adult Home setting impedes the opportunity for contacts with nondisabled persons. As one resident testified, “[y]ou’re in program, you’re in home. All your energy is surrounded with the home, so it’s hard to meet different people.”269 Given the very nature of the Adult Homes, the opportunities to develop social and employment contacts are extremely limited. As Defendants’ experts conceded, living in a place where the phone is answered “Brooklyn Adult Care Center” diminishes work options and social contacts, and being subject to visiting hours diminishes opportunities to cultivate social or family relationships.
Regardless of whether the Adult Homes at issue are “institutions” per se or merely a setting with “institutional characteristics,” as Defendants contend, the overwhelming evidence demonstrates that the institutional characteristics of Adult Homes impede residents’ ability to
267 Tr. 2162. 268 Defs. PFF ¶¶ 180, 182. 269 P-535 (T.M. Dep.) 111-12.
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develop relationships with nondisabled persons. Thus, the Adult Homes do not enable interactions with nondisabled persons “to the fullest extent possible.”270
Defendants nonetheless contend that the Adult Homes enable interactions with nondisabled persons to the fullest extent possible because: (1) Adult Homes are located in “residential areas” close to neighborhood amenities such as stores, restaurants, libraries, beaches, and/or parks, (2) Adult Home residents come and go from the facilities, (3) OMH-funded case managers and other mental health providers available to Adult Home residents “facilitate integration,” and (4) Adult Homes organize outings and on-site entertainment and activities.271 These factors do not render Adult Homes integrated settings or settings that enable interaction with nondisabled persons to the fullest extent possible, either on their own or as compared to supported housing.
First, the argument that Adult Homes are the “most integrated setting” because they are close to neighborhood amenities is unpersuasive. By that measure, any large psychiatric facility located in an urban setting would be an integrated setting, no matter how institutional. As described by Defendants’ witness Susan Bear, the Assistant Executive Director of the Jewish Board, Adult Homes are “community-based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it.”272 The urban locations of the Adult Homes do not render them the “most integrated setting” for DAI’s constituents to receive services.
270 Even if the court were merely to consider whether the Adult Homes are an integrated setting, the evidence at trial clearly demonstrates that the Adult Homes at issue are not an integrated setting, let alone the “most integrated setting” appropriate to the needs of DAI’s constituents. 271 Id. ¶¶ 168-72. 272 See supra note 220.
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Second, that some Adult Home residents come and go from the facilities to varying extents does not persuade the court that Adult Homes are the “most” integrated setting. Viewed in its entirety, the record evidence establishes that Adult Homes impede the ability of Adult Home residents to participate in their communities outside the Homes. The inflexible schedules for medications and meals limit the times when residents can be absent from the Adult Homes. The large numbers of residents, lack of privacy, and restrictions on visitors also limit the development of relationships with individuals outside the Adult Homes.
While Defendants assert that the Adult Home setting is not as segregated as the hospital at issue in Olmstead because Adult Home residents are not locked in the facilities,273 that does not demonstrate that Adult Home residents are in the most integrated setting, as the law requires. The existence of a less integrated setting does not demonstrate that the Adult Homes are the most integrated setting. See DAI I, 598 F. Supp. 2d at 331 n.42. As the court previously noted, even the plaintiff L.C. in Olmstead left the institution on a regular basis:
[L.C.] [r]eceive[d] a wide variety of community-care services . . . leaving during the day . . . via public transportation for persons with disabilities, to attend a daily community-based program that included social activities, vocational opportunities and field trips; L.C. returned on the bus each evening to the institution. DAI I, 598 F. Supp. 2d 321 n.36 (quoting Pet. Reply Br., Olmstead v. L.C., No. 98-536, 1999 WL 220130, at *17–18 (S. Ct. Apr. 14, 1999)). Third, the argument that mental health providers “facilitate integration” of Adult Home residents is without persuasive factual support in the record. The weight of the evidence is to the contrary. Experts for both sides agreed that teaching skills in a setting in which they cannot be applied or practiced is ineffective and does not foster independent living skills or integration.
273 Defs. PFF ¶¶ 175-76.
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Even if the mental health providers did facilitate integration to some extent, that would not render the Adult Homes the “most” integrated setting, especially compared to supported housing, where residents can learn and practice skills in their own homes. Similarly, OMH’s Case Management Initiative, which places OMH-funded case managers in less than half of the Adult Homes at issue in this litigation, does not alter the segregated nature of the setting in which DAI’s constituents receive services; the case managers simply arrange services within the existing setting.
Fourth, Defendants’ assertion that Adult Homes enable integration because residents are occasionally taken on trips outside the Adult Homes and provided with on-site recreational activities and entertainment fails to alter the court’s conclusion. The evidence at trial shows that outings outside the Homes contribute little to residents’ integration into the community, because the residents generally travel as a group – sometimes in ambulettes – and interact mainly with each other. To cite just one example, that FEGS takes residents on “field trips” to museums and libraries after hours, when the facilities are closed to the general public, does not enable interactions with people who do not have disabilities. Nor do the activities and entertainment provided inside the Adult Homes.
Defendants additionally contend that the residents’ degree of interaction with individuals who do not have disabilities is a matter of choice, or at most, a function of the quality and effectiveness of the services offered by particular mental health providers, which are outside of the scope of the enforcement provisions of the ADA and Rehabilitation Act.274 See Olmstead, 527 U.S. at 603 n.14 (“We do not . . . hold that the ADA imposes on the States a ‘standard of
274 Defs. PFF ¶¶ 182-85.
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care’ for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with disabilities.’”); Doe v. Pfrommer, 148 F.3d 73, 84 (2d Cir. 1998) (rejecting challenge to the substance of services provided by a nonprofit organization, where plaintiff’s “challenge is not illegal discrimination against the disabled, but the substance of the services provided to him through [the nonprofit organization]”); P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990) (“The [Rehabilitation] Act does not require all handicapped persons to be provided with identical benefits.”). Defendants assert that while they monitor compliance with State regulations, they cannot be held responsible under the ADA or Rehabilitation Act for ineffective or low-quality services, or a particular provider’s failure to facilitate and encourage community involvement.275
This argument is inapposite. DAI does not seek a particular standard of care for its constituents. Nor does DAI seek increased enforcement of State regulations applicable to Adult Homes.276 Rather, DAI seeks to have Defendants administer their services to DAI’s constituents in the most integrated setting appropriate to their needs. While Olmstead does not impose a “‘standard of care’ for whatever medical services [states] render,” it requires states to adhere to the ADA’s nondiscrimination mandate and administer their services to individuals in the most integrated setting appropriate to their needs. 527 U.S. at 603 n.14 (“We do hold . . . that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.”). As large, highly regimented facilities that house many people with mental illness in a
275 Id. ¶ 184. 276 Plaintiff withdrew its claims alleging that Defendants failed to take adequate measures to redress continued poor conditions in Adult Homes. (Compl. ¶¶ 137-42, 158-65; Pl. Mem. Opp. Defs. Mot. for Summ. J. 79 (Docket Entry #202) (dropping such claims because “[d]iscovery has shown that since the filing of this case defendants have increased their efforts to redress poor conditions in impacted adult homes.”).)
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congregate setting, Adult Homes have inherent institutional qualities that – regardless of the quality of services provided to their residents– impede opportunities for Adult Home residents to interact with nondisabled people.
The existence of supported housing – a more integrated setting – further proves that the Adult Home setting does not enable DAI’s constituents to interact with nondisabled persons to the fullest extent possible. Supported housing is an integrated, community-based setting that enables interaction with nondisabled persons to the fullest extent possible. People who live in supported housing have the autonomy to live and participate in their communities in essentially the same ways as people without disabilities. Simply put, residents of supported housing are not defined by the setting in which they receive services. Residents of supported housing have far greater opportunities to interact with nondisabled persons and be integrated into the larger community. As the Director of OMH’s Bureau of Housing Development and Support testified, supported housing provides “maximum opportunities” for integration into the community.277
In sum, DAI has established that Defendants are not serving DAI’s constituents in the most integrated setting appropriate to their needs. As set forth below, virtually all of DAI’s constituents could be appropriately served in supported housing.
B. VIRTUALLY ALL OF DAI’S CONSTITUENTS ARE QUALIFIED FOR SUPPORTED HOUSING 1. Legal Standard
The ADA and Rehabilitation Act provide that individuals with disabilities are entitled to receive services in the most integrated setting that is “appropriate” to their needs. 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(a). In Olmstead, the Supreme Court held that a setting is
277 Tr. 2162 (Newman).
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“appropriate” for individuals if those individuals meet the “essential eligibility requirements for
habilitation in a community based program.” 527 U.S. at 603; see also DAI I, 598 F. Supp. 2d at
331. As this court previously noted, “[n]ot every eligibility requirement is an ‘essential
eligibility requirement.’” DAI I, 598 F. Supp. 2d at 333 (citing PGA Tour, Inc. v. Martin, 532
U.S. 661, 688 (2001)).
2. Findings of Fact
a. Supported Housing Targets Individuals with Mental Illness Who Have Significant Needs
As OMH’s Supported Housing Implementation Guidelines provide, supported housing
provides individuals with mental illness with a permanent place to live coupled with flexible support services customized to each individual’s specific needs.278 The State’s supported housing program already targets individuals with mental illness who have significant needs.279
In particular, OMH has characterized supported housing as an “approach” designed to ensure that individuals with “serious and persistent mental illness”280 can choose where they want to live.281 In their existing supported housing program, Defendants have imposed no requirement
278 See S-101 (OMH, Supported Housing Implementation Guidelines (reformatted May 2005) (“2005 Supported Housing Implementation Guidelines”)) OMH 37514; S-33 (2007 RFP) OMH 42726-28 (describing supported housing). 279 Tr. 1505 (Madan) (testifying that supported housing is for individuals with severe and persistent mental illness); S-101 (2005 Supported Housing Implementation Guidelines) OMH 37515 (providing that supported housing is an “approach” designed to ensure that individuals with serious and persistent mental illness can choose where they want to live); S-17 (2005 RFP) OMH 37306-07 (requesting supported housing proposals targeting “high-need individuals”). 280 To be categorized as having a severe and persistent mental illness (“SPMI”), an individual must (a) be 18 years of age or older, (b) have a designated mental illness, and (c) either (1) receive SSI or SSDI due to a designated mental illness, (2) currently have certain functional limitations due to a designated mental illness, or (3) have had certain functional limitations prior to receiving psychiatric rehabilitation and supports and/or medication. (S-17 (2005 RFP) App. A OMH 37314.) SSI, Supplemental Security Income, and SSDI, Social Security Disability Income, are income supplements for people with disabilities. 281 S-101 (2005 Supported Housing Implementation Guidelines) OMH 37515.
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that individuals have “minimal” support needs in order to live in supported housing.282 To the contrary, in recent years, OMH’s Requests for Proposals (“RFPs”) for supported housing have specifically targeted those with significant needs. For example, in 2005, OMH issued an RFP targeting individuals who, according to them, are “high need,” defined as “a person who, as a result of psychiatric disability, presents some degree of enduring danger to self or others or has historically used a disproportionate amount of the most intensive level of mental health services.”283 Similarly, OMH issued RFPs for supported housing in 2007 and 2008 for a target population that may need ACT or Blended Case Management, and may have a co-occurring substance problem.284 Robert Myers, OMH’s Senior Deputy Commissioner, testified that there are people living in supported housing who have “extensive psychiatric needs.”285
As Dr. Tsemberis pointed out, “you can put someone with severe mental illness in supported housing and it doesn’t matter the degree of severity of illness as long as you match the supports to what they need.”286 Supported housing offers flexible supports; as Ms. Jones testified, “you start with a place for the person to live and you add and subtract the supports as
282 See, e.g., S-101 (2005 Supported Housing Implementation Guidelines) OMH 37515-16 (explaining that supported housing is directed at people with serious and persistent mental illness and that supported housing provides varying levels of support); S-17 (2005 RFP) OMH 37307; S-33 (2007 RFP) OMH 42726-27; S-67 (2008 RFP) OMH 43109; see also Tr. 1506-07 (Madan) (agreeing that description of supported housing in S-33 is accurate); Tr. 3170-71 (Myers). 283 S-17 (2005 RFP) OMH 37307. 284 S-33 (2007 RFP) 42726 (explaining that target population may need ACT or Blended Case Management, and may have a co-occurring substance problem); S-67 (2008 RFP) OMH 43109. 285 Tr. 3170-71. 286 Tr. 266; see also id. at 265-66 (Tsemberis) (pointing out that most people with severe mental illness in the United States live at home with family).
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that person needs them.”287 Even Defendants’ expert, Dr. Geller, conceded that “those who
reside in adult homes could reside in apartments with varying degrees of support.”288
b. Supported Housing Can Serve Adult Home Residents Who Need Varying Levels of Support
New York’s supported housing programs are flexible and are more than capable of
serving virtually all Adult Home residents, including those who might have relatively high
needs.289 OMH officials testified that ACT and case management services, including blended
and intensive case management, are available to supported housing residents.290 As noted above,
such services are flexible; case managers can visit supported housing residents as often as once
or even twice a day as necessary.291 The evidence shows that while individuals from more
institutional settings sometimes require many visits from the service provider when first moving
into supported housing, those visits usually decrease in frequency as the resident becomes
adjusted to more independent living.292 Supported housing providers routinely do assessments
287 Tr. 139; see also Tr. 812 (Duckworth) (testifying that of people with serious mental illness, “my experience has taught me that just about everybody can make it in Supported Housing with the appropriate level of flexible supports”). 288 Tr. 2370. Mr. Geller also conceded that “virtually anyone who has a chronic debilitating psychiatric disorder can be provided care and treatment outside of an institutional setting with sufficient services provided.” (Id.) 289 Tr. 851-62 (Duckworth); see also Tr. 288-89 (Tsemberis) (testifying that if the State issued an RFP to provide supported housing to adult home residents with mental illness, many agencies could serve those individuals); D-399 (Lasicki Dep.) 203 (executive director of an association of non-profit mental health residential program providers testifying that she has “no doubt” that member organizations could serve Adult Home residents). 290 See supra notes 240, 242, & 243. 291 Tr. 2172-73 (Newman); D-399 (Lasicki Dep.) 94-97 (supported housing provides “fluid” case management services); Tr. 2672 (Lockhart) (agreeing that case managers in Federation of Organizations supported housing visited at least one resident as often as twice a day). 292 Tr. 229 (Tsemberis) (testifying that the frequency of visits to someone discharged from the hospital would “reduce over time”); Tr. 2672-73 (Lockhart) (testifying that services to new residents of Federation supported housing were able to be decreased over time); Tr. 715 (Rosenberg) (testifying that individuals from adult homes who moved to supported housing “would ultimately need little support, they might go to a clinic, get some treatment. They might have a case manager who checked in with them once or twice a month or telephone called them.”); S-33 (2007 RFP) OMH 42727 (“It is expected that the need for services provided by the sponsoring agency
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as part of their work to identify the specific supports and services that their clients will require.293
OMH’s own RFPs demonstrate the flexible nature of supported housing. The RFPs
describe whom OMH expects supported housing providers to serve, and they make clear that
supported housing is not limited to those with minimal support needs. For example, OMH’s
2007 RFP for supported housing for Adult Home residents states:
Recipients of Supported Housing may be able to live in the community with a minimum of staff intervention from the sponsoring agency. Others may need the provision of additional supports such as Assertive Community Treatment (ACT) team or Blended Case Management (BCM) services. Many recipients will be coping with co-occurring substance abuse disorders and be at various stages of recovery.294
That RFP goes on to note that “[s]ervices provided by the sponsoring agency will vary, depending upon the needs of the recipient.”295 Other OMH RFPs for supported housing contain identical or substantially similar language.296
The responses by providers to OMH’s supported housing RFPs further demonstrate the flexible nature of the supports available to residents of supported housing.297 In these responses,
the supported housing providers make clear that they are willing and able to serve individuals in
will decrease over time as the recipient is more fully integrated in the community.”); Tr. 3193-94 (Myers) (testifying about providers working with individuals in supported housing to “restore functioning”). 293 See P-748 at 4 (2009 RFP) (requiring supported housing providers to “provide in-reach, develop coordinated discharge/admission plans with PC [psychiatric center] staff, and identify/provide services and supports to ensure successful transition to the community”); see also Tr. 1486-87 (Madan) (testifying that applicants for supported housing must interview with the supported housing provider). 294 S-33 at OMH 42726-27. 295 Id. 296 See S-67 (2008 RFP) OMH 43109; S-17 (2005 RFP) OMH 37307. 297 Defendants contend that the court should not rely on these RFP responses, because DAI presented no testimony from the providers themselves. (See Defs. Resp. PFF 14-16.) The court need not conduct a detailed inquiry into the nature of each provider’s program to reach its finding that there are supported housing providers who seek to serve and are capable of serving individuals with mental illness who have relatively high support needs.
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supported housing who require very high levels of support.298 For example, one response noted
that the target population “will need some assistance in developing or redeveloping activities of
daily living. Some will require assistance in developing or redeveloping skills in self care.”299
Another response seeks to serve a target population that is “institutionalized” and may require a
range of services, including medication management, assistance with budgeting and
socialization, and substance abuse treatment.300 Like the RFPs themselves, several of these
supported housing providers specifically indicate in their RFP responses that supported housing
residents with especially high service needs may need ACT while living in supported housing.301
A response notes that the “service needs of these populations are varied” and may require ACT
298 See, e.g., P-286 (Transitional Servs. for N.Y., Inc. Response to OMH RFP (Mar. 28, 2007)) OMH 42961 (“A significant range of functional limitations characterize the SPMI [serious and persistent mental illness] population that directly impact their ability to engage in activities associated with normal daily living . . . .”); P-394 (The Bridge, Inc. Response to OMH RFP (Apr. 1, 2008)) 2 (noting that one of the target populations “ha[s] been traditionally non-compliant with treatment while in the community (including medication regimes, seeking appropriate follow-up services, etc.)”); P-395 (Baltic Street AEH, Inc. Response to OMH RFP (Mar. 26, 2008)) 2 (targeting individuals “who have the highest service needs and the least likelihood of succeeding in other housing programs” and stating that its program “is designed specifically to assist individuals with high service needs and to help them along their own recovery paths toward becoming people with low or no service needs”); P-400 (FACES NY Response to OMH RFP (Mar. 30, 2008)) 5-6 (noting that the service needs of clients include “how to navigate public transportation, how to shop for and prepare food, and how to access emergency services”; while the program requires residents to be “capable of self-medication,” ACT teams are available); P-439 (Assoc. for Rehabilitative Case Management & Housing Response to OMH RFP (Mar. 31, 2008)) 3; P-440 (Center for Behavioral Health Servs. Response to OMH RFP (Mar. 31, 2008) 2; P-442 (Postgraduate Center for Mental Health Response to OMH RFP (Mar. 31, 2008)) 2; P-445 (Transitional Servs. for New York, Inc. Response to OMH RFP (Mar. 31, 2008)) 2 (noting that “the functional limitations of this population are often varied in regard to type and severity and are often a complex mix of issues”); P-530 (Comunilife Response to OMH RFP (Mar. 29, 2007)) OMH 42990 (noting that the target population may need assistance with “daily living skills,” may have “historically used a disproportionate amount of the most intense level of mental health services” and may “have some enduring degree of danger to self or others”); P-532 (Center for Behavior Health Servs. Response to OMH RFP (Mar. 29, 2007)) OMH 43075. 299 P-439 at 3. 300 P-532 at OMH 43075. 301 See, e.g., P-395 at 7; P-439 at 3; P-440 at 2; P-442 at 2. Similarly, Linda Rosenberg confirmed that supported housing providers know how to utilize ACT services to serve individuals with intensive support needs. (Tr. 65556.) She testified that OMH in or around 2004 issued RFPs for supported housing and ACT that provided incentives to providers to combine the two services. (Id.) OMH received “lots of responses” to these RFPs. (Id.) According to Ms. Rosenberg, providers “know how to do” supported housing plus ACT, it is something in which they have “developed expertise,” and it is “consistent with their missions.” (Id.)
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or intensive case management services.302 Another response noted that the target population may need ACT services and may need service planning regarding “medication compliance, symptom awareness and management, and appropriate community integration.”303
The availability of ACT services means that even the Adult Home residents who have the highest needs could successfully be served in supported housing.304 As the responses to the RFPs demonstrate, a significant number of supported housing providers are committed to and capable of serving individuals with such needs.
c. Supported Housing Is Not Only for Individuals Who Need “Minimal” Supports
The evidence contradicts Defendants’ contention that to live in supported housing, individuals must be capable of seeking assistance and taking their medication independently, must demonstrate “a significant period of psychiatric stability,” must be able to “meet their own daily needs” and must “maintain their apartment” with “minimal assistance.”305 While several supported housing providers impose such requirements for admission to their programs, the evidence shows that other supported housing providers in New York successfully serve people who have difficulties with each of these issues. For example, Ms. Jones and Dr. Tsemberis testified about the availability and options for support services to assist supported housing
302 P-440 at 2. 303 P-442 at 2. 304 See, e.g., D-399 (Lasicki Dep.) 102 (explaining that ACT teams can help someone with medication compliance); P-395, P-439, P-440, P-442 (responses to RFPs). 305 See Defs. PFF ¶ 54 (citing S-70 (CUCS, Supportive Housing Options NYC (2009 ed.)) OMH 43225; S-76 (description of Jewish Board’s programs) JBFCS 431; D-90 (description of Federation’s supported housing program); S-61 (description of FEGS’s supported apartment program); Tr. 1445 (Madan); Tr. 1983-84 (Newman); Tr. 2220, 2223-24 (Bear); Tr. 2640-42 (Lockhart); Tr. 3169-71, 3193 (Myers)).
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residents with medication.306 OMH’s Supported Housing Guidelines target newly-discharged psychiatric hospital patients for supported housing.307 Providers’ responses to RFPs seek to serve individuals who need assistance with medication compliance and self-care skills.308 In
addition, while Defendants contend that for “many providers” of supported housing, individuals must maintain their sobriety,309 recent OMH RFPs have barred providers from screening out applicants on the basis of substance-abuse issues.310
Nor does the evidence support Defendants’ contention that supported housing is only for those with “minimal” support needs.311 First, the court does not credit the testimony of OMH employees that supported housing is only for those who need “minimal” supports,312 as that
testimony is contradicted by OMH’s RFPs and numerous other OMH documents. Second, while
Defendants rely on OMH’s 1990 Supported Housing Implementation Guidelines to support their
306 Tr. 82-83 (E. Jones) (testifying that, although some Adult Home residents would need medication management or health-related services in supported housing, those supports “are nothing unfamiliar to what’s commonly found in a mental health system today”); Tr. 316-17 (Tsemberis) (explaining the “whole range of options” to assist supported housing residents with medication). 307 S-101 (1990 Supported Housing Implementation Guidelines) OMH 37516. 308 P-394 at 2 (RFP response seeking to serve individuals who have been “non-compliant with treatment,” including medication regimes); P-439 at 3 (RFP response seeking to serve individuals needing assistance “developing or redeveloping activities of daily living” and self-care skills); P-442 at 2 (RFP response seeking to serve individuals who need service planning regarding “medication compliance and symptom awareness and management”).) 309 Defs. PFF ¶ 54. 310 P-748 (2009 RFP) 8 (“Agencies cannot reject someone for housing based solely on the past history or current substance use of potential residents”); S-33 (2007 RFP) OMH 42730 (providing that “no exclusionary admission criteria related to past or current substance use may be imposed” and noting that “[c]urrent treatment modalities and research indicate that length of sobriety is a poor indicator of an individual’s suitability for, or success in, residential programs”); Tr. 1528 (Madan). 311 See Defs. PFF ¶¶ 53-54. 312 Tr. 1252-53, 1386 (Reilly); Tr. 1441-42, 1445, 1487 (Madan); Tr. 1933, 1983-84 (Newman); Tr. 3169-71, 3194 (Myers).
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assertion, the Guidelines do not state anywhere that supported housing is only for – or even targeted to – those with minimal needs.313
In addition, while several supported housing providers, such as FEGS314 and Federation,315 provide more limited supports in their supported housing programs, such evidence
does not rebut the weight of the evidence that there are numerous other supported housing
providers in New York City who are willing and able to serve individuals with much higher needs.316 Nor is it significant that one agency, the Jewish Board, has considered particular Adult Home residents inappropriate for its supported housing.317 That some supported housing
providers provide more limited services does not demonstrate that supported housing is “only”
for those who need minimal support, and as discussed below, supported housing providers can and do serve former Adult Home residents.318
The only document cited by Defendants that actually uses the terms “minimal support” in
reference to supported housing is a document prepared by a third party, Center for Urban
313 See S-11 (1990 Supported Housing Implementation Guidelines). The Guidelines identify as a target population for supported housing “individuals discharged from psychiatric centers.” (Id. at OMH 37270.) Such individuals are a “highly institutionalized” population with significant needs. (See Tr. 310-11 (Tsemberis); Tr. 2559 (Waizer) (describing newly discharged patients from psychiatric hospitals as “our most disabled population”).) 314 See S-19 (describing FEGS’s residential programs); S-61. 315 See Tr. 2639-42 (Lockhart). Ms. Lockhart testified that, despite her view that supported housing is only for individuals who are “substantially independent,” Federation has previously accepted Adult Home residents and even individuals from state psychiatric centers directly into its supported housing program, that some Adult Home residents could live in supported housing, and that she was aware of at least one new supported housing resident whose case managers visited the apartment twice-daily to assist with the transition to supported housing. (Tr. 263940, 2670-72.) 316 See, e.g., P-286, P-394, P-395, P-439, P-440, P-442, P-445, P-530, P-532 (responses to OMH RFPs for supported housing); see also Tr. 129:1-20 (E. Jones) (noting that while some supported housing providers provided “more limited supports,” most of the providers responding to the RFPs “work with people that are among the most challenging to provide supports to and supported apartments”). 317 Tr. 2226-27 (Bear) (testifying that, to her knowledge, no individuals have moved from Adult Homes into Jewish Board’s supported housing program and that “it’s not something that we would encourage”). 318 See infra Part III.B.2.i.
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Community Services (“CUCS”), which purports to describe various “supportive housing models
for people with mental illness and other special needs,” though it acknowledges that “in practice and over time, variations with [each housing] model have developed.”319 As DAI’s expert
Dennis Jones explained at trial, the CUCS document describes supported housing in terms that are inconsistent with OMH’s stated approach to supported housing in other documents.320 In any
event, New York City’s Human Resources Administration (“HRA”), the local agency that
approves individuals’ applications for supported housing in New York City, does not rely on the eligibility criteria set forth by CUCS in approving individuals for supported housing.321
d. The Court Finds Credible and Persuasive the Conclusions of DAI’s Experts That Virtually All Adult Home Residents Could Move to Supported Housing
At trial, DAI presented three expert witnesses, Dr. Kenneth Duckworth, Dennis Jones,
and Elizabeth Jones, all of whom testified that virtually all Adult Home residents could be
appropriately served in supported housing. The court finds the conclusions of these experts to be credible and persuasive.322
319 See S-40 (CUCS, Supportive Housing Options NYC: A Guide to Supportive Housing Models for People with Mental Illness and Other Special Needs) JG 250, 244; S-70 (CUCS, Supportive Housing Options NYC (2009 ed.) OMH 43225, 43219 (updated version of S-40). 320 Tr. 1154. 321 See Tr. 1893 (Kelly) (“Q. Does HRA rely on the eligibility criteria set forth by CUCS? A. No.”) 322 The court rejects Defendants’ contention that, because DAI’s experts did not perform formal in-person clinical assessments of each of DAI’s constituents to determine whether each person was qualified for supported housing, they did not use “reliable scientific principles or methods” in reaching their opinion. (Defs. PFF ¶ 79; id. ¶¶ 85, 89, 91 (stating that each expert did not conduct clinical evaluations or housing assessments of individual residents).) The court credits the opinion of DAI’s experts that such assessments are only necessary to determine the specific supports that each resident would need once placed in supported housing. (Tr. 53-54 (E. Jones) (testifying that a clinical assessment was unnecessary “because, at this point, I’m not making individual determinations as to the exact array of supports that people will need when they live in the community setting.”); Tr. 811–12 (Duckworth) (testifying that formal clinical assessments were unnecessary because expert could “screen people looking for specific contraindications to why they might not be able to live in the community”).) The court previously held that the opinions of DAI’s experts were admissible because they were based on reliable methodologies. Disability Advocates, Inc. v. Paterson (“DAI Evidentiary Order”), No. 03-CV-3209 (NGG), 2008 WL 5378365, at *3 (Dec.
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i.

Dr. Duckworth

Dr. Kenneth Duckworth is a licensed psychiatrist with twenty years of experience serving

people with serious mental illness. He is triple board certified by the American Board of

Psychiatry and Neurology in Adult Forensics, and Child and Adolescent Psychiatry. He has

worked in numerous different treatment settings, including hospital inpatient, outpatient,

supported housing, day treatment, emergency triage and homeless outreach. Dr. Duckworth has

interviewed, directly treated, supervised, and consulted about the treatment of thousands of

individuals with schizophrenia, bipolar illness, schizoaffective disorder, and depression, among

other serious psychiatric disorders. Dr. Duckworth has also served as the Medical Director and

Acting Commissioner for the Massachusetts Department of Mental Health, where he was

involved with, among other things, placement of hospital patients in more integrated settings and

the design and implementation of Programs of Assertive Community Treatment (“PACT”) – Massachusetts’s version of New York’s ACT program – throughout Massachusetts.323 In short,

Dr. Duckworth is an experienced medical professional with substantial professional experience

directly relevant to assessing whether individuals with mental illness are capable of living in

supported housing.

In this case, Dr. Duckworth undertook an extensive analysis of whether Adult Home

residents could be served in supported housing. Dr. Duckworth’s analysis included a review of

22, 2008). The evidence at trial demonstrates that DAI’s experts’ methodologies are not only reliable, but produced credible and persuasive results to which the court affords significant weight.
The court notes that HRA, New York City’s agency that evaluates applications for supported housing, does not conduct clinical assessments of individuals and relies instead on the electronic application form. (Tr. 1907-08 (Kelly).) Also, Defendants’ expert Dr. Geller did not perform clinical evaluations of Adult Home residents to assess them for supported housing. (Tr. 2379-80.)
323 S-152 (Duckworth Report) 1-4 & S-155 (Duckworth Resume).

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the mental health records of between 260 and 270 Adult Home residents, visits to five Adult
Homes, interviews with approximately 38 Adult Home residents, a visit to the Pathways to
Housing supported housing program, and the review of numerous documents relating to the case,
including deposition transcripts of Adult Home residents, materials concerning New York’s supported housing programs, and responses to RFPs issued by OMH for supported housing.324
Based on his analysis of these voluminous materials, his visits with Adult Home residents
and supported housing residents, and his extensive experience, Dr. Duckworth concluded that
“there are no material clinical differences between adult home residents and supported housing clients.”325 He further concluded that “virtually all of the [Adult Home residents] I looked at I
felt would make it in Supported Housing. I looked for things that would contraindicate a person living in Supported Housing and I found relatively few of them.”326 Dr. Duckworth specifically
considered the extent to which such contraindications – which he identified as severe cognitive
vulnerabilities or dementia, extreme nursing needs, and a history of active arson – were present in the Adult Home population.327 While Dr. Duckworth testified that his “approach” is that
324 S-152 (Duckworth Report) 4–5 & Ex. 2 (list of documents considered); Tr. 932 (Duckworth) (testifying that he also read some RFP responses since drafting this report); Tr. 880-83 (describing his visits with residents); Tr. 813, 817, 819 (testifying about the volume of records reviewed); Tr. 813-14 (testifying about his review of deposition transcripts). The court rejects Defendants’ contention that Dr. Duckworth’s initial report is flawed or otherwise unreliable because Dr. Duckworth visited “only” five Adult Homes and spoke to 38 residents, some of whom were selected by MFY Legal Services. (Defs. PFF ¶ 81.) Defendants’ two experts visited three and eight homes respectively, on formal group tours. (Tr. 2916-17 (Kaufman); Tr. 2295-96 (Geller).) 325 S-152 (Duckworth Report) 5; see also Tr. 854 (“Q. And how, if at all, did the clients you visited at Pathways compare to the adult home residents you visited in this case? A. Again, these populations are identical. . . . They all want something for themselves, it seems to me, frequently to live more independently would be the most common theme but the populations don’t differ in any impressive way that stood out to me.”). 326 Tr. 809; see also S-152 (Duckworth Report) 18-19 (“[I]t is clear to me that existing supported housing programs in New York could appropriately serve virtually every adult home resident that I encountered.”); S-80 (Duckworth Reply Report) 2; S-149 (Duckworth Corrected Reply Report) 1. 327 Tr. 812-13, 900-01, 907-10.
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“most anybody can make it in independent living,”328 which is consistent with his experience
placing hospital patients in more integrated settings, Dr. Duckworth did not simply “presume” that Adult Home residents could move to supported housing.329 Dr. Duckworth consistently and
credibly testified that he reached his conclusions on the basis of his extensive research and
experience.
Dr. Duckworth testified on cross-examination that for a very small number of the Adult
Home residents whose records he reviewed, he would need more information to determine whether they were appropriate for supported housing.330 He also testified that two individuals lacked the requisite mental health diagnosis to make them eligible for OMH housing,331 that some residents were discharged to a nursing home,332 and that several residents had personal
care needs that might make them inappropriate for supported housing or require extensive supports.333 Such testimony, when weighed against Dr. Duckworth’s detailed testimony regarding other residents who were well qualified for supported housing,334 does not make Dr.
Duckworth’s conclusion that “virtually all” Adult Home residents could be served in supported housing less credible or persuasive.335
328 Tr. 820. 329 Defs. PFF ¶ 82 (citing Tr. 820). 330 Tr. 908-09, 910-11, 916-17, 906; see also D-324, D-327, D-331, D-249 (records of Adult Home residents). 331 Tr. 907-08, 914 (testifying that the records of two individuals indicated that they were categorically ineligible for OMH housing because they lacked the requisite mental health diagnosis); see also D-252, D-336 (records of Adult Home residents). 332 Tr. 904. 333 Tr. 908, 913; D-252, D-330. 334 See, e.g., Tr. 826-27, 832-33 (testifying about particular Adult Home residents whose records indicate that they could be served in supported housing immediately). 335 The court rejects Defendants’ contention that Dr. Duckworth is biased because he works part-time at the National Alliance for the Mentally Ill, an advocacy organization dedicated to “improving the lives of individuals and families affected by mental illness” (Tr. 880), and because he expressed support for DAI’s decision to bring this lawsuit.
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ii.

Elizabeth Jones

DAI’s expert Elizabeth Jones has more than thirty years of experience in the field of

mental disability, including positions as the superintendent/director of three institutions and the

court-appointed receiver of a psychiatric institution. Ms. Jones has focused a substantial part of

her work on the management of institutions and the planning, development, and management of

community services for people with mental illness and developmental disabilities. She has also

managed the day-to-day operations of two community mental health systems, in which she had a

leadership role in planning, developing, and implementing services in integrated settings as an

alternative to institutional care. Ms. Jones has served as an expert consultant regarding

institutional conditions and the development of alternative community-based programs in Massachusetts, Texas, North Dakota, Iowa, Michigan, Romania, Bulgaria, and Paraguay.336

In forming her expert opinions in this case, Ms. Jones visited twenty-three impacted

Adult Homes for a total of approximately seventy-five hours. These visits included six

announced, “formal” tours of Adult Homes – in which Defendants’ experts also participated – and seventeen unannounced, “informal” visits to various Adult Homes.337 During her visits, Ms. Jones personally interviewed 179 residents, some for as long as two hours.338 She also spoke to

clinicians, nurses, social workers, and a psychiatrist at some of the Adult Homes she visited, and

(Defs. PFF ¶ 80, citing D-222 (e-mail from Dr. Duckworth to Plaintiff’s counsel).) As Dr. Duckworth’s testimony at trial demonstrates, he expressed support for DAI not because he had prejudged the question of whether Adult Home residents are qualified to live in supported housing, but because of his reaction to articles he had read about the Adult Homes in The New York Times. (Tr. 947-48.) 336 S-151 (E. Jones Report) 1; S-154 (E. Jones Resume). 337 Tr. 45-46 (E. Jones); cf. Tr. 2295-96 (Geller) (describing a total of eight visits to Adult Homes, each with a “rather large group” that included attorneys and experts for both sides and staff and owners of the Adult Homes). 338 S-151 (E. Jones Report) 1-2.
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also had some conversations with social workers about particular residents.339 In addition, Ms.
Jones employed three social workers who observed conditions and interviewed an additional 62
residents in Seaview Manor, Riverdale Manor and Garden of Eden and prepared summaries of
their observations for her review. Ms. Jones also considered deposition transcripts and numerous other documents relating to the issues in this case in forming her expert opinion.340
The social workers employed by Ms. Jones also reviewed a number of resident records from three of the Adult Homes.341 Ms. Jones then reviewed the social workers’ notes on those
records, and also reviewed roughly twenty to twenty-five of those records herself. In responding
to the expert report of Defendants’ expert Dr. Geller, Ms. Jones reviewed over one hundred additional records of Adult Home residents.342
On the basis of her research and experience, Ms. Jones concluded that “virtually all”
Adult Home residents could be served in a more integrated setting, including supported housing.343 She found that “there was no reason that [Adult Home residents] couldn’t live in
supported housing if the appropriate supports were provided to them,” and that she “saw nothing
in [her] visits to the adult homes that would lead [her] to believe that people required more than
339 Tr. 102-03. 340 S-151 (E. Jones Report) 1-2 & Ex. 3 (list of documents reviewed). 341 Tr. 50. 342 Id. 343 Tr. 100; S-157 (E. Jones Reply Report). For the same reasons listed in note 82, the court rejects Defendants’ assertion that Ms. Jones “supported Plaintiff’s position in this case before she completed her research,” which refers to a “workplan” prepared nine months after she began her investigation in which Ms. Jones states some of the conclusions that appear in her final report. (Defs. PFF ¶ 86 (citing Tr. 190-98).) Ms. Jones testified that by the time she prepared that document, she had already visited 13 Adult Homes—already more than any of Defendants’ witnesses in their entire investigations – and had spoken to “numerous residents.” (Tr. 198.) Ms. Jones explained that, based on those visits and conversations, she had “formed the clear conviction that [Adult Home residents] could live in supported housing with supports.” (Id.) Ms. Jones explained that the “workplan” simply reflected her then-current thinking on how her report would be structured, and that she would have revised her conclusions if the remaining ten Adult Homes she subsequently visited had been different than the first thirteen. (Tr. 192.) They were not. (Tr. 192-93.)
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is available already in the community in New York or that they presented any particular
challenge other than what we work with every day in the field of mental health.”344 According
to Ms. Jones, while some Adult Home residents would need help with medication management,
or various health related services, the “array of supports [that would be needed] are nothing
unfamiliar to what’s commonly found in a mental health system today.”345 Ms. Jones further
concluded that there are “many” Adult Home residents who could live in their own apartment
“with little or no support.”346
Ms. Jones also found that Adult Homes themselves do not provide intensive support or
supervision for people with high needs. To the contrary, Adult Homes “do not provide intensive
supervision to people . . . they have restrictive rules and practices, but they do not provide
individualized attention to people. So, many people have a place to stay and they have their
meals and their medicine, but not a whole lot more than that.”347
344 Tr. 113; see id. at 80-81. 345 Tr. 82. Defendants contend that Ms. Jones did not provide “any credible evidence that ACT services are commonly used in New York to provide services to individuals in supported housing.” (Defs. PFF ¶ 90.) The court finds that Ms. Jones’s testimony demonstrates familiarity with supported housing in New York sufficient to form her opinion. To the extent that Ms. Jones’s conclusions are based on an assumption about the availability of ACT services in particular, the court notes that the evidence demonstrates that supported housing residents can and do receive ACT services. See supra note 240. 346 Tr. 83-84 (E. Jones); see also id. 143-44 (testifying that the Adult Home residents who come and go from the Adult Homes can live in apartments and require little support). 347 Tr. 80 (E. Jones); see also id. at 142 (testifying that Adult Homes provide “minimal” supervision); S-157 (E. Jones Reply Report) 1 (noting that she “do[es] not think that the adult home setting provides supports to the extent cited as necessary in Dr. Geller’s report”).
Defendants dispute Ms. Jones’s conclusion that Adult Homes provide only minimal supervision, citing regulations requiring adult homes to provide supervision, N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7(d)(1), and the testimony of Ms. Burstein describing the provision of supervision and services at Park Inn. (Defs. Resp. PFF 1920 (citing Tr. 2046-51).) First, citing regulations requiring supervision is not evidence that the Adult Homes in fact provide such supervision. Second, Ms. Burstein’s testimony is insufficient to rebut Ms. Jones’s conclusion. Ms. Burstein testified that (1) Park Inn has 38 staff members, including dieticians, housekeepers, maintenance workers, and bookkeepers; (2) Park Inn contracts with other entities to provide psychiatrists, medical doctors, and social workers who come to the Adult Home on a regular basis; and (3) residents attend on-site psychiatric clinics. (See Tr. 2046-48.) That there is such staff does not establish that the staff supervises the residents, nor does the existence
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Ms. Jones testified that these two observations – that (1) Adult Homes do not provide

intensive support and (2) Adult Home residents in supported housing would not require more

support than is already available in the community in New York – provide the basis for her conclusion that virtually all Adult Home residents could move to supported housing.348 While

Ms. Jones had previously testified at deposition that her “starting point is that everyone could

live in community housing . . . virtually everyone could live in supported housing . . . if the appropriate supports are provided,”349 the evidence demonstrates that Ms. Jones did not simply

assume in this case that Adult Home residents could be served in supported housing in reaching

her opinion. Rather, she credibly and consistently testified about her extensive factual

observations that formed the basis for her conclusions.

iii.

Dennis Jones

DAI’s expert Dennis Jones served as the top mental health official for the state of Indiana

from 1981 to 1988 and the top mental health official for the state of Texas from 1988 to 1994.

He was also appointed by a federal district court as the transitional receiver for the District of

of psychiatric clinics establish that the residents receive supervision. Ms. Burstein also testified that Park Inn, which has 181 residents, has “one personal care attendant on every shift,” and that the Visiting Nurse Service provides home health attendants for “individuals who require more than the adult home is required to or equipped to provide,” estimating that about sixty residents have home health attendants. (Id. at 2048-49.) That some Adult Home residents receive assistance from home health attendants through a service separate from the Adult Home does not rebut Ms. Jones’s conclusion, based on her extensive observations and research in this case, that Adult Homes themselves do not provide intensive support.
In addition, Ms. Jones’s conclusion is consistent with other testimony at trial. (See Tr. 709 (Rosenberg) (testifying that Adult Home residents have “less support in many cases” than supported housing residents; they are “left [to] their own devices[] a lot of the time”).) Consistent with the finding that Adult Homes do not provide extensive support is the testimony of former OMH and DOH official David Wollner that Adult Homes are appropriate for an individual “who has a mental illness who is able to live independently or with some supportive services.” (Tr. 1730).
348 Tr. 80-81.
349 Defs. PFF ¶ 89 (citing Tr. 115-16). To the extent that Ms. Jones’s testimony indicates an approach that “virtually everyone” could live in the community, such an approach is consistent with Ms. Jones’s many years of experience planning, developing and implementing services in integrated settings as an alternative to institutional care.

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Columbia’s mental health system from 2000 to 2002 and later became a federal court monitor in
the same action, a position he still holds today. As part of his role as transitional receiver, Mr.
Jones developed a plan to completely restructure the public mental health system in the District
of Columbia. Mr. Jones also served from 1994 to 2003 as the Administrator/CEO of the largest community mental health center in Indiana.350
Mr. Jones’s analysis and investigation in this case included review of documents,351 visits
to four Adult Homes, and conversations with Adult Home residents and visits to community mental health providers, including supported housing providers.352 As part of his research in this
case, Mr. Jones analyzed data from the Assessment Project, a study from New York Presbyterian
Hospital that Defendants commissioned to collect data regarding residents of nineteen adult homes, including fifteen of the Adult Homes at issue here.353 Mr. Jones worked with Dr. Ivor
Groves, an expert in data analysis, to devise an algorithm to assess whether the Adult Home
residents in the fifteen Adult Homes were not opposed to moving, and also whether those residents would need a high or low level of support.354 That algorithm determined that of the
350 S-150 (D. Jones Report) 1-2 & Ex. 1 (Resume of Dennis Jones); see also Tr. 984 (D. Jones) (describing his experience). 351 Defendants criticize Mr. Jones’s supposed “reliance” on the report of the Adult Care Facilities Workgroup (“Workgroup Report”), discussed in Part III.B.2.f infra, which concluded that 6,000 people with mental illness in adult homes could and should be served in more integrated settings. (Defs. PFF ¶ 92.) At trial, Mr. Jones explained that while he found it significant and worth considering in his report that a “very serious and diligent group of many high level people across the departments” concluded that 6,000 people could be served in more integrated settings, “I didn’t conclude that 6,000 people could be moved.” (Tr. 1127; see also id. at 1128 (“I feel like I’m repeating myself. I did not conclude that 6,000 people could move. I had no basis around which to make that determination. I was simply citing a work group that had met very diligently over a period of time, made a number of recommendations; and that was one.”).) The evidence demonstrates that Mr. Jones considered the Workgroup Report as “worth considering” and “significant” – that it was probative, but not dispositive, to his conclusion that virtually all Adult Home residents could be served in supported housing. 352 See S-150 (D. Jones Report) 3-5 & Ex. 2 (listing materials considered). 353 The court discusses the findings of the Assessment Project in Parts III.B.2.g and III.C.2.c, infra. 354 Tr. 1048-50.
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2,080 residents in the sample, 1,769 would be able to live in supported housing with relatively little support, and 311 would need greater support.355 The algorithm also determined that 1,536 would not be opposed to moving to supported housing and 544 would be resistant.356 Of those who were non-resistant, only 199 would need a high level of support.357 Mr. Jones testified that the Assessment Project data showed “a large majority of people who, given the right situation, would choose to [move to supported housing]” and “the amount of supports that people are going to need out there are within what I would consider the range of what the New York system can accommodate.”358 On the basis of his extensive experience and his investigation in this case, Mr. Jones concluded that “virtually all mentally ill adult home residents are able to live in integrated community settings such as supported housing.”359
e. OMH’s Former Senior Deputy Commissioner Believes That Virtually All Adult Home Residents Could Move to Supported Housing
Former OMH Senior Deputy Commissioner Linda Rosenberg testified credibly and persuasively that, based on her firsthand observations from working in New York’s mental health system until 2004, virtually all Adult Home residents are qualified for supported housing. Ms. Rosenberg served from 1997 to 2004 as the Senior Deputy Commissioner for OMH, where
355 Id. 356 Id. 357 Id. 358 Tr. 1051. The court rejects Defendants’ contention that Mr. Jones’s conclusion is flawed because he relied on the data from the State’s own Assessment Project. (Defs. PFF ¶ 94 (contending that the Assessment Project was not meant to be a housing assessment).) As explained more fully below, one of the purposes of the Assessment Project was to assess residents’ needs and desires concerning housing, and the data is relevant to determining whether Adult Home residents are qualified to move to supported housing. (See infra note 388.) In addition, while Dr. Groves, with whom Mr. Jones worked, identified some inconsistencies in the Assessment Project data, both Dr. Groves and Mr. Jones considered the data to be reliable overall. (See infra notes 407, 408.) 359 S-150 (D. Jones Report) 10; see also Tr. 995 (D. Jones).
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she oversaw the “community system of care for people with serious mental illnesses,” including OMH’s housing services as well as, at one point, all of New York’s state hospitals.360 Ms. Rosenberg has had extensive experience dating back to the 1970s with adult homes and adult home residents, including the ones at issue in this case, having met “probably literally thousands” of adult home residents as a result of her OMH position as well as previous positions with community mental health clinics and State psychiatric hospitals.361 According to Ms. Rosenberg, Adult Home residents “by and large have similar characteristics” to residents of supported housing, and are placed in Adult Homes by “luck of the draw for the most part” rather than by any clinical determination that it is an appropriate setting.362 Ms. Rosenberg further testified that Adult Homes offer “less support in many cases” than supported housing, “because you are left on your own devices . . . the home has meals but doesn’t have much more than that going on anyway. It isn’t as if you are tak[en] care of in an intensive way, unless the home brings in a home health care agency . . . .”363 Ms. Rosenberg did not do a “housing assessment” for particular Adult Home residents or review their treatment records.364 Her opinion that Adult Home residents as a group have “similar characteristics” to residents of supported housing and other types of OMH community housing is based on her experience managing OMH community housing, in which she had an opportunity to become familiar with Adult Homes, meet thousands of adult home residents, including ones at issue in this case, and form an opinion about Adult
360 Tr. 636. 361 Id. at 640-42. 362 Id. at 709. 363 Id. at 709. 364 Id. at 772-76.
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Home residents’ qualifications to move to supported housing.365 The court finds that, based on
her years of experience as a high-ranking OMH official until 2004, including extensive
experience with Adult Homes and Adult Home residents, the testimony of Ms. Rosenberg that
virtually all Adult Home residents could be served in supported housing is credible and
persuasive.
f. Defendants’ Own Adult Care Facilities Workgroup Concluded That Large Numbers of Adult Home Residents Could and Should Receive Services in More Integrated Settings
In response to a series of articles in 2002 about Adult Homes by Clifford Levy in The
New York Times, Governor George Pataki convened the Adult Care Facilities Workgroup to conduct a comprehensive review of adult home policies, programs, and financing.366 The
Workgroup focused on 12,000 individuals with mental illness who live in adult homes, most of which are in or near New York City.367 Joseph Reilly, who formerly held high positions at
OMH and DOH and was a staff member of the Workgroup, testified that the Workgroup was convened in a “crisis atmosphere.

Output: This case was brought by Disability Advocates, Inc. against the Governor of the State of New York seeking declaratory and injunctive relief to compel Defendant to provide services in the most integrated setting appropriate.  The District Court issued judgment in favor of Plaintiffs. After the Defendants appealed, the U.S. Court of Appeals for the Second Circuit vacated the judgment of the District Court and dismissed the action due to lack of standing. The DOJ continued to pursue a settlement. On July 23, 2013, the State and the DOJ filed a settlement to provide approximately 4000 qualifying adult home residents the option of living in community-supported private homes scattered throughout New York City. The settlement was approved in March 2014. The settlement was amended and changed several times from 2014 to 2018. The case is ongoing and the court maintains jurisdiction.