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Reports That Are Hearsay, Outdated and Irrelevant Should Be Excluded .................. 5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

-ll-

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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
2

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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-
4

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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
5

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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.
6
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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
9
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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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 Case 1:03-cv-03209-NGG -MDG Document 218 Filed 01/31/08 Page 1 of 34

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.
16

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Case 1:03-cv-03209-NGG -MDG Document 218 Filed 01/31/08 Page 21 of 34
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
28

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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

30

 
 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

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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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 Case 1:03-cv-03209-NGG-MDG Document 232 Filed 02/19/2009 Page 1 of 112

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

11

 
 Case 1:03-cv-03209-NGG -MDG Document 418 Filed 03/11/10 Page 1 of 7

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.)
5

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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

7

 
 Case 1:03-cv-03209-NGG -MDG Document 41 Filed 04/29/04 Page 1 of 10

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
-2-

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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
135

 
 Case 1:03-cv-03209-NGG-MDG Document 330 Filed 07/22/09 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 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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 Case: 10-235 Document: 211 Page: 1 07/23/2010 75168 93
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

Case: 10-235 Document: 211 Page: 5 07/23/2010 75168 93
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 -

Case: 10-235 Document: 224 Page: 26 07/30/2010 79803 30
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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Case: 10-235 Document: 224 Page: 27 07/30/2010 79803 30

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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Case: 10-235 Document: 224 Page: 28 07/30/2010 79803 30

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

Case: 10-235 Document: 221 Page: 2 07/30/2010 79618 19
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
- 6 -

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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

- 11 -

Case: 10-235 Document: 221 Page: 16 07/30/2010 79618 19
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

Case: 10-235 Document: 221 Page: 18 07/30/2010 79618 19
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

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 14 of 45
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

Case 1:03-cv-03209-NGG -MDG Document 176-1 Filed 08/10/07 Page 37 of 45
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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 Case 1:03-cv-03209-NGG-MDG Document 341 Filed 09/08/09 Page 1 of 210

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.”368 The Workgroup was comprised of a “blue ribbon panel”
of various stakeholders in the mental health system, including clinicians, mental health
365 Id. at 708-10, 773. While the court struck portions of Ms. Rosenberg’s affidavit as inadmissible lay opinion testimony prior to resolving the parties’ summary judgment motions, it determined at trial that Ms. Rosenberg would be allowed to testify as a lay witness as to the qualifications of Adult Home residents to move, provided that Plaintiff laid an adequate foundation. (Tr. 703-08 (sidebar addressing scope of Ms. Rosenberg’s testimony).) The court finds that Plaintiff laid an adequate foundation, because Ms. Rosenberg’s conclusions are rooted in her own personal perceptions formed over time during her work at OMH and in New York’s mental health system. Fed. R. Evid. 701; see United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007); Bank of China v. NBM LLC, 359 F.3d 171, 181-82 (2d Cir. 2004). 366 Tr. 1369 (Reilly); 1672-73 (Wollner). The court excluded the articles as hearsay but noted that evidence that the Workgroup was created in response to the articles is admissible. DAI Evidentiary Order, 2008 WL 5378365, at * 21 & n.10. 367 S-103 (Report of the Adult Care Facilities Workgroup (Oct. 2002) (“Workgroup Report”)) DOH 86158. 368 Tr. 1369.
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providers, and Adult Home operators.369 The Workgroup members were selected by the Governor’s office and included well-known New York State experts on mental health.370 The Governor’s office was active in shaping the Workgroup’s agenda.371 The Workgroup was staffed by thirty-eight employees of OMH and/or DOH.372 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 Workgroup report.373 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.”374
In 2002, the Adult Care Facilities Workgroup proposed that 6,000 of the 12,000 individuals with mental illness living in adult homes be helped to move to more integrated settings, and proposed a timeline to move them to supported housing by March 2009.375 The 12,000 individuals on whom the Workgroup focused includes the Adult Home residents at issue in this case – the Workgroup Report noted that “most” of these 12,000 individuals with mental illness live in adult homes in or near New York City, and “a substantial proportion live in facilities with the largest capacity.”376 The Workgroup’s proposal was based on the Workgroup’s findings that these residents had similar characteristics to individuals living more independently, a finding that was made after substantial study, deliberation, and research that
369 Tr. 1616-19, 1673 (Wollner). 370 Id. at 1674, 1688-89. 371 Id. at 1673. 372 Id. at 1674-75; S-103 (Workgroup Report) DOH 86210-14 (listing staff). 373 D-394 (Schimke Dep.) 153-54. 374 Id. 375 Joint Stip. ¶ 13 (stating that the Workgroup Report “proposed a timeline for moving at least 6,000 adult home residents with psychiatric disabilities into supported housing by March 2009”). 376 S-103 (Workgroup Report) DOH 86158.
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included presentations from a variety of experts and field visits to various types of housing.377 As there was “little reliable and current clinical data on these 12,000 residents,” the Workgroup members, who were selected by Defendants for their expertise and experience, developed working assumptions about the residents’ needs.378 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.”379 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.”380
Upon its completion, the Workgroup Report was presented to the then-Commissioner of DOH, Antonia Novello, who “applauded” the Report.381 No member of the Workgroup objected to or dissented from the Workgroup’s finding that large numbers of adult home residents with mental illness – a population that includes the Adult Home residents at issue in this case – should be served in more independent settings.382
377 D-394 (Schimke Dep.) 123; S-103 (Workgroup Report) DOH 86217-23 (listing presentations to and site visits by the New Models Subworkgroup); Tr. 1370-76 (Reilly) (describing research activities of the New Models Subworkgroup and agreeing that the Workgroup “relied on a broad array of information that it gathered [after] diligent effort”). 378 S-103 at DOH 86156 (noting the lack of clinical data, which it stated “would be remedied through implementation of the recommendations in this report”). The Workgroup developed a working assumption that the functioning of the adult home residents would follow a normal bell curve distribution along an “independence, dependence line.” (See D-394 (Schimke Dep.) 106, 110-11, 122-23; S-103 at DOH 86157 tbl. 1-2.) 379 S-103 at DOH 86141. 380 Id.; see also D-394 (Schimke Dep.) 300 (agreeing that the Workgroup developed a consensus to reject the “existing paradigm that most of the residents with mental illness who are in adult homes are at a very low end of independence or ability for independence”). 381 D-394 (Schimke Dep.) 181. 382 See Tr. 1376 (Reilly) (“Q. Was there a dissenting report appended to the Workgroup’s report? A. There was only one report.”).
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g. New York Presbyterian Hospital’s Assessment Project, Commissioned by Defendants, Establishes That Adult Home Residents Could Be Served in Supported Housing
In December 2002, Defendants commissioned a study from New York Presbyterian Hospital (the “Assessment Project”) that collected data regarding adult home residents, including many of the residents at issue in this litigation. Defendants paid a total of $1.3 million to New York Presbyterian Hospital for the survey.383 Ms. Rosenberg testified that in her view, the Assessment Project was part of a mission to “deflect[] . . . what had become a crisis for the Governor’s office.”384 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 fifteen and twenty such surveys.385 In addition, Defendants themselves had “a great deal of input” into the design of the survey.386 The Assessment Project assessed 2,611 residents in nineteen adult homes, including fifteen of the Adult Homes at issue here.387
One of the purposes of the Assessment Project was to assess adult home residents’ housing needs and desires.388 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 changing
383 Joint Stip. ¶ 7; Tr. 1678 (Wollner); P-583 (Bruce Dep.) 123-24. 384 Tr. 739-40. 385 P-583 (Bruce Dep.) 16. 386 Id. 387 Joint Stip. ¶ 8. 388 P-583 (Bruce Dep.) 66-67:7; P-555 (Liebman Dep.) 25, 134-35; see also Tr. 1676-78 (Wollner) (testifying that one of the purposes was to determine who would benefit from a higher or lower level of care). The court notes that while Dr. Bruce testified that “I didn’t do an assessment for people’s housing” and that the Assessment could not be used to make a “final determination” regarding housing placements and was a “screening process” (P-583 (Bruce Dep.) 201-02, 55-56, 132, 203), the weight of the evidence demonstrates that a purpose of the Assessment Project was to assess Adult Home residents’ housing needs and desires.
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housing to a more supportive or more independent” setting,389 and that, to the best of her understanding, DOH officials such as Glenn Liebman and Lisa Wickens understood this purpose.390 Lisa Wickens testified that the Assessment Project survey questions dealt so much with housing options that she was actually concerned that residents would believe they would be offered alternative housing if they participated in the survey.391 Adult Home administrator Ms. 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.”392
The Assessment Project data demonstrates that the vast majority of adult home residents are not seriously impaired and could be served in supported housing.393 74.1% of residents participated in the survey, a very high response rate.394 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.395 The statistics regarding cognitive impairments were not selfreported; rather, they were the results of mental status examinations administered by the surveyors.396 Only a small percentage of residents reported needing assistance with activities of
389 P-583 (Bruce Dep.) 66-67:7. 390 Id. at 67-68. Defendants’ Rule 402 and 602 objections to pages 67:14-68:13 of Dr. Bruce’s deposition is overruled. The court finds the testimony relevant and based sufficiently on personal knowledge. 391 P-566 (Wickens Dep.) 74-75. 392 Tr. 2107-08. 393 Tr. 1051 (D. Jones). 394 P-583 (Bruce Dep.) 73. 395 Id. at 103, 104; P-586 (Adult Home Assessment Project Powerpoint Presentation (May 13, 2004)) NYPH 1494. 396 Tr. 893-94 (Duckworth).
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daily living.397 As Mr. Jones testified, 68.4% of those surveyed had done some meaningful work in the previous two years.398 67% of those surveyed had one or no hospitalizations in the last three years.399
Dr. Ivor Groves, who worked with Plaintiff’s expert Mr. Jones to perform an analysis of the Assessment Project data pertaining to residents of the Adult Homes at issue in this litigation, testified that virtually all Adult Home residents could live in supported housing.400 Dr. Groves has more than thirty-five years of experience working in mental health and related areas of human services. Dr. Groves worked in a large state hospital for nine years and managed publicly operated human services programs for fifteen 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.401
Based on his review of the Assessment Project data, 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.”402 Dr. Groves testified that, in his view, “the vast majority” of Adult Home residents “could live in
397 P-583 (Bruce Dep.) 101-02. 398 Tr. 1028-29. 399 Id. at 1029-30. 400 Plaintiff retained Dr. Groves as an expert, and Dr. Groves worked with Plaintiff’s other experts in this litigation. Plaintiff did not call Dr. Groves as a witness at trial; Defendants subsequently called Dr. Groves as their trial witness. 401 S-156 (Groves Report) 1. 402 Tr. 3072.
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supported housing with appropriate supports.”403 That his analysis of the Assessment Project
data was for Adult Home residents in the “aggregate” – meaning that he did not evaluate individual medical or mental health records or perform in-person clinical assessments404 – does
not undermine the credibility or persuasiveness of his conclusion that the vast majority of Adult
Home residents, according to the Assessment Project data, are qualified for supported housing.405
The court is persuaded by the testimony of Dr. Groves and Mr. Jones that the Assessment
Project data is reliable. While Dr. Groves noted that there were some inconsistencies in participant responses and that some of the data was self-reported by participants,406 Dr. Groves
confirmed that overall, he considered the survey data 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.407
Mr. Jones similarly found the Assessment Project data reliable, testifying that “this was a
very rich set of data, frankly better than you get in most decision-making projects, where
403 Tr. 3074; see also S-156 (Groves Report) 4 (opining that “most, if not all, of the residents of Adult Homes could live in the community with appropriate levels of support”). 404 See Defs. PFF ¶ 95 (citing Tr. 3079-82, 3073-75 (Groves)). 405 In addition, while Dr. Groves revised his algorithm based on concerns raised by Plaintiff’s other experts and Plaintiff’s counsel that the original algorithm he designed was undercounting individuals who were both qualified and unopposed to living in supported housing, the court finds Dr. Groves’s explanations for the revision credible. (Defs. PFF ¶ 96 (citing Tr. 3088-3094 (Groves); 1097-1100 (Jones)).) 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 (Groves).) Dr. Groves explained that he revised the algorithm so that it filtered out individuals with “severe cognitive 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.) 406 Defs. PFF ¶ 95 n.109 (citing Tr. 3094-96 (Groves)). 407 Tr. 3095-96 (emphasis added).
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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.”408 While Dr. Geller suggested that the residents who did not respond to the survey were, on average, more disabled than the responding residents, he acknowledged that some of those whom the Assessment Project missed were probably “on their own going places” and would therefore likely be less disabled that the individuals who participated in the Assessment.409
The generally high cognitive and ability levels of Adult Home residents reflected in the Assessment Project data demonstrates “a huge mismatch” between Adult Home residents and the custodial setting in which they reside.410 Mr. Jones – who, as noted above, 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.”411
h. There Are No Material Differences Between Adult Home Residents and Supported Housing Residents
Adult Home residents do not have more severe disabilities than individuals already served by Defendants in supported housing. As noted above, DAI’s constituents have one or more major mental illnesses, such as schizophrenia, bipolar disorder, and/or depression.412
408 Tr. 1036. 409 Tr. 2333. 410 Tr. 1037 (D. Jones). 411 Id. at 1037-38. 412 See supra note 6.
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There is generally little distinction between the psychiatric characteristics of Adult Home residents and supported housing residents.413
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 psychiatric hospital.414 For example, Adult Home resident S.K. testified at trial that when she was discharged from the psychiatric hospital, although she “wanted to really get an apartment of my own,” the only option offered to her was an Adult Home.415 Prior to being placed in the Adult Home, S.K. lived with clinical depression successfully in the community for almost twenty years.416 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.417 After 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.418 S.K. then moved to Georgia to live with her daughter, and worked there for five years at a supermarket deli.419 She moved back to New York to live with her sister, but was then voluntarily hospitalized due to an episode of severe depression.420 After her hospitalization, S.K.’s sister refused to allow her to move back in with her because the
413 Tr. 287 (Tsemberis); Tr. 854 (Duckworth); Tr. 52-53 (E. Jones); Tr. 709 (Rosenberg); D-394 (Schimke Dep.) 5052; S-103 (Workgroup Report) DOH 86141. The court does not find persuasive the testimony of Jonas Waizer, the CEO of FEGS, that Adult Home residents are “very disabled” (Tr. 2560), because Mr. Waizer’s view of Adult Home residents results from cursory observations made while visiting Riverdale Manor to negotiate and implement FEGS’s case management program there. (Tr. 2558, 2577-78.) 414 Tr. 646, 709 (Rosenberg); D-394 (Schimke Dep.) 10-11; P-68 (Stone Memo). 415 Tr. 372. 416 Id. at 361. 417 Id. at 361-64. 418 Id. at 364-66. 419 Id. at 367-69. 420 Id. at 370-71, 397.
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sister “couldn’t cope with” S.K.’s depression.421 Although S.K. wanted to live in an apartment, the psychiatric hospital instead discharged her to an Adult Home.422 S.K. also testified about her ability to live independently. She testified that she is “well able to take care of a place on my own” and that she is able to manage her own money and do her own cleaning.423 She testified that she would be “well able to manage [her] own medication” in a supported apartment.424 She testified that the only support she would need in her own apartment would be “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.”425 Nevertheless, S.K. was placed in an Adult Home upon her discharge from the hospital. The other current and former Adult Home residents who testified at trial, including Defendants’ witness, I.K., similarly testified that they were given little or no choice about being placed in an Adult Home.426
Nor are Adult Homes designed to provide individuals with mental illness with the intensive levels of care and supervision that Defendants claim Adult Home residents require.427 To the contrary, because supervision in Adult Homes is minimal, individuals in Adult Homes must be able to live with some degree of independence.428 Adult Homes are actually prohibited
421 Id. at 371. 422 Id. at 371-72. 423 Id. at 372, 380, 382. 424 Tr. 377-78; see also D-394 (S.K.’s application prior to discharge from psychiatric hospital to HRA for “New York Supportive Housing”) SM1441, 1448 (psychosocial summary indicating that S.K. has been “medication compliant” and “is able to manage her medication independently”). 425 Tr. 390; see also D-394 at SM1437, 1440-44, 1448. 426 Tr. 448 (G.L.) (testifying that his choices were a long-term psychiatric facility or an Adult Home); Tr. 551-52 (S.P.) (that the only choice offered was the Adult Home); Tr. 2685 (I.K.) (testifying that the Adult Home “was the only thing offered” to her upon discharge from the hospital). 427 See supra notes 39, 40, 41. 428 See supra note 347.
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by State regulations from admitting people who, for example, need “continual medical or nursing care or supervision,” pose danger to themselves or others, have an “unstable” medical condition requiring “continual skilled observations,” chronically require the physical assistance of another person to walk, or have chronic unmanaged incontinence.429
i. Supported Housing Providers Can and Do Serve Adult Home Residents
The evidence at trial also showed that numerous 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 former Adult Home residents. 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.430 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.431
429 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.4 (listing categories of people whom Adult Homes may not admit). 430 Tr. 281-82. 431 P-286 (RFP Response) OMH 42975.
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In 2007, seven different supported housing providers submitted proposals in response to OMH’s RFP to implement the legislative initiative for 60 supported housing beds for Adult Home residents.432 Each of these providers sought to serve Adult Home residents in its supported housing programs.433 OMH awarded contracts to three of these seven providers.434 Those supported housing beds were subsequently developed, and all sixty of those beds are either filled or are in the process of being filled by Adult Home residents.435
The court also heard testimony from two former Adult Home residents who are now successfully living in supported housing: G.L. and I.K. After living in an Adult Home for five years, G.L. moved to a supported housing apartment run by Pathways to Housing in 2006.436 Prior to living in an 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.437 Now that he is in supported housing, he currently manages his own medication and finances and does his own cleaning, shopping, cooking, and laundry.438 G.L. has been successful in supported housing without using ACT services.439 I.K. moved to supported housing in April 2009 after sixteen years in an Adult Home. She now does her own laundry and shopping, and cooks her own meals.440 I.K. testified that she is extremely happy living in supported housing.441
432 Tr. 1509-1511 (Madan); P-293 (OMH’s responses to agency proposals); see also supra note 50. 433 P-293 (OMH responses to agency proposals). 434 Tr. 1782 (Dorfman); Tr. 1511 (Madan). 435 Tr. 1794 (Dorfman). 436 Tr. 441, 443 (G.L.). 437 Id. at 446-47, 492. 438 Id. at 463-64, 485-86, 495, 496, 498. 439 Id. at. 459. 440 Tr. 2685, 2751.
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j. Defendants’ Witnesses Conceded That Significant Numbers of Residents Could Be Served in Supported Housing
A number of Defendants’ own witnesses do not dispute that there are many Adult Home residents who could be served in supported housing with appropriate supports. Defendants’ expert, Dr. Geller, testified that “[a]bout 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.”442 High-level State employees testified that there are “undisputedly” Adult Home residents who could be served successfully in supported housing.443 They also testified that Adult Home residents have been served successfully in supported housing.444 Adult Home administrator Ms. Burstein testified that “often the [Adult Home] residents have the ability to live independently.”445 Ms. Lockhart, who worked at Federation, which has a small supported housing program, testified that some Adult Home residents could live in supported housing.446 Dr. Bruce, who oversaw the Assessment Project,
441 Tr. 2750-51 (“I love it . . . . It’s freedom. It’s being able to live like a human being again.”). 442 Tr. 2409; see also id. at 2370 (“Q. And you agree that those who reside in adult homes could reside in apartments with varying degrees of support, correct? A. Correct.”); id. at 2333 (“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 those people might be highly likely to be able to go to supported housing.”); id. at 2384 (“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.”) (Geller). 443 Tr. 1304 (Reilly); see also P-564 (Tacoranti Dep.) 225-26 (agreeing, based on her experience of moving Adult Home residents to supported housing following Adult Home closures, that there are current Adult Home residents who could live in supported housing). 444 Tr. 1521 (Madan). 445 Tr. 2084. 446 Tr. 2636 (Lockhart).
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testified that there are individuals in adult homes who are qualified and willing to move to supported housing.447
k. The Court Is Not Persuaded by Dr. Geller’s Claim That Only Half of Adult Home Residents Could Ever Be Served in Supported Housing
The court is not persuaded by the opinion of Defendants’ expert Dr. Geller that only about half of Adult Home residents could eventually be served in supported housing, with or without ACT services.448 Dr. Geller’s conclusions ignore important evidence about supported housing in New York. They are also based on Dr. Geller’s mistaken belief that Adult Home residents may constitute an immediate danger to themselves or others.
Dr. Geller is a board-certified psychiatrist, the Director of Public Sector Psychiatry at the University of Massachusetts Medical School, and the Vice President of the American Psychiatric Association.449 He has extensive experience teaching, working in psychiatric hospitals and community mental health settings, and treating patients.450 For his initial report, Dr. Geller visited eight Adult Homes and several types of mental housing and reviewed numerous documents, including the medical and mental health records of 188 Adult Home residents from an initial list of residents Plaintiff claimed were qualified to be served in supported housing.451 For his second report, Dr. Geller reviewed additional records as a sample from Plaintiff’s list of
447 P-583 (Bruce Dep.) 111. Defendants’ objections pursuant to Rules 402, 602, and 701 are overruled. The evidence is relevant and based on Dr. Bruce’s personal knowledge as a result of the Assessment Project and observations she had made. Nor is this testimony inadmissible under Rule 701. In any event, even if the court were not to consider this portion of Dr. Bruce’s testimony, the record is replete with testimony from both sides, from fact witnesses and experts alike, that there are Adult Home residents who could be served in supported housing. 448 Tr. 2409, 2370. 449 See id. at 2285-90. 450 See id. 451 See id. at 2322-23; see generally S-52 (Geller Report).
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residents from the Assessment Project data and determined what supports would be necessary in order for those residents to live in supported housing, though he disagreed with Plaintiff’s view that all of those residents could be served in supported housing.452
In his first report, Dr. Geller concluded that only 63 of the 188 residents whose records he reviewed (33.5%) were “in the residential setting most appropriate to their needs, i.e., they should remain in Adult Homes.”453 He concluded that 16% of the sample could appropriately live in supported housing, and 21% could live in other types of mental health housing.454 He did not consider the residents’ preferences.455 He testified that because the sample was taken from those whom Plaintiff claimed were qualified to move, if a sample were taken of all Adult Home residents, the percentage would be lower.456 In his second report, Dr. Geller concluded that approximately 25% of the residents could live in supported housing without additional services.457 As noted above, however, Dr. Geller testified at trial that 50% of the Adult Home residents whose records he reviewed could eventually be appropriately served in supported housing with or without ACT services, and that every single current Adult Home resident could live in apartments with varying degrees of support.458
Dr. Geller reached his conclusions without adequately investigating the ability and willingness of New York’s supported housing providers to serve Adult Home residents. In forming his opinion about the capabilities of New York’s supported housing providers, Dr.
452 Tr. 2325-26. 453 S-52 (Geller Report) 36. 454 Id. at 37-38; Tr. 2310-11, 2318-19. 455 Id. at 2318-19. 456 Id. at 2322-23. 457 S-53 (Geller Second Report) 10; Tr. 2329-31. 458 See id. at 2409, 2370.
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Geller reviewed only two responses to OMH’s supported housing RFPs, both of which were seeking exclusively to serve homeless individuals and categorically excluded Adult Home residents from applying for beds developed under those RFPs.459 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.460 In concluding from the 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.461
Dr. Geller’s conclusion that many Adult Home residents are not appropriate candidates for supported housing is also flawed because it is based on the mistaken belief that some Adult Home residents pose an immediate danger to themselves or others.462 For example, he testified 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,”463 but acknowledged on cross-examination that Adult Homes are not permitted to admit such individuals.464
Dr. Geller’s analysis of the service needs of certain Adult Home residents likely overestimates the amount of services they would require in supported housing. Dr. Geller
459 Id. at 2412, 2414. 460 Id. at 2415-16. 461 Id. at 2412-14. 462 Id. at 2368. 463 Id. at 2328-30. 464 Id. at 2368-69; see also supra note 429.
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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.465 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. Ms. Jones testified that although Dr. Geller classified one Adult Home resident as needing “24/7 support,” the individual actually lived fairly independently at the Adult Home.466 Dr. Duckworth discussed three instances in which he disagreed with Dr. Geller that particular Adult Home residents could not live in supported housing.467 In light of the evidence that Adult Homes provide very minimal assistance with activities of daily living,468 Dr. Geller’s conclusion likely substantially overstates the amount of services Adult Home residents would require in supported housing.469
Dr. Geller’s testimony that it would be “inhumane” and “possibly dangerous” to place all Adult Home residents in supported housing because, for example, individuals might “set[] a fire while learning to cook,” and that Adult Home residents should therefore be taught independent living skills in the Adult Home before moving to more independent settings,470 is contradicted by the weight of the evidence. Witnesses for both sides testified that independent living skills cannot effectively be taught in institutional or congregate settings, because the individuals are
465 Tr. 2403-04. 466 See Tr. 122-23. 467 Tr. 842-50; see also P-571, P-572, P-573 (records of Adult Home residents). 468 See supra note 347. 469 See Tr. 88-89 (E. Jones) (testifying that Dr. Geller’s analysis was flawed because Dr. Geller claimed that residents would need services in supported housing that those residents were not receiving in the Adult Homes). 470 S-52 (Geller Report) 2, 17; Tr. 2341.
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unable to practice the skills that are taught.471 Dr. Geller himself testified that “the system needs to have that person exist in an environment where they can use the skills.”472 In any event, ACT teams can assist individuals with learning independent living skills in their own homes.473 In addition, the Pathways supported housing program, which specifically seeks out and successfully serves some of the hardest-to-serve individuals in the mental health system, is just one example of a supported housing provider that can safely serve individuals with a very wide range of support needs.474
l. In Practice, OMH Does Not Require Individuals Leaving Institutional Settings To Proceed Through a “Linear Continuum”
Several OMH officials testified that individuals with mental illness coming 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.475 The weight of the evidence – including Defendant OMH Commissioner Michael Hogan’s testimony to the Legislature – contradicts this self-serving and inaccurate testimony. While OMH continues to license and/or fund different types of Housing for Persons with Mental Illness,476 individuals in OMH housing are not required to move from setting to setting. While remnants
471 See supra notes 189, 190, 191, 192. 472 Tr. 2360-61. 473 See supra notes 248, 249. 474 Tr. 247 (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.”). 475 See Tr. 1248-53 (Reilly) (describing so-called “linear continuum”); Tr. 2176-79 (Myers); see also Tr. 1436-44 (Madan) (describing “hierarchical” types of OMH housing). 476 See supra note 221; Tr. 3176-77 (Myers) (testifying that while the focus of OMH’s housing development is supported housing, OMH does not plan to eliminate other types of housing).
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of the continuum approach may still persist in the programs of some community providers,477 the
linear continuum model is inconsistent with OMH’s own current practices and principles.478
Commissioner Hogan disavowed the “linear continuum” model in his recent testimony to
the Legislature. He 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.”479 According to Commissioner 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.”480
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.481
477 See, e.g., S-70 (CUCS Supportive Housing Options in NYC (2009 ed.)); Tr. 2215-18 (Bear) (testifying about the Jewish Board’s programs); S-76 (description of the Jewish Board’s programs); Tr. 2509-13 (Waizer) (describing FEGS’s programs); S-58, S-59, S-60, S-61, S-62 (describing each level of FEGS’s programs and their eligibility criteria); see also Tr. 299-300 (Tsemberis) (acknowledging the existence of mental health professionals who support the linear continuum model, but “[c]ertainly not the ones that I know,” given the “real sea change” in the last ten years away from the continuum model ); Defs. Resp. PFF 15 (noting that two supported housing providers cited by Plaintiff as examples of supported housing providers who serve high-need target populations also operate a continuum of housing options, citing P-394, P-442). 478 See, e.g., P-590 (2008–2009 Executive Budget Recommendation Highlights Testimony (Jan. 29, 2008) (Comm’r Hogan Testimony)) 4; S-67 (2008 RFP) OMH 43108 (targeting long-stay residents of psychiatric hospitals for supported housing). 479 P-590 (Comm’r Hogan Testimony) 4. 480 Id. 481 S-11 (1990 Supported Housing Implementation Guidelines) OMH 37268; accord S-101 (2005 Supported Housing Implementation Guidelines) OMH 37514; see also P-59 (OMH Guiding Principles) 2 (noting that “[m]ost people want permanent, integrated housing that is not bundled with support services (housing as housing)”).
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Ms. Rosenberg testified that by the time she left OMH in 2004, the linear continuum “was really being abandoned by both New York and most places.”482 According to Ms. Rosenberg:
[t]he whole issue of a continuum is also an old idea. It 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 [and] can be quite successful.483 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.484 There is additional evidence that OMH no longer follows the continuum model. OMH’s supported housing RFPs further demonstrate that individuals leaving institutional settings need not 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, hospitals, prisons, and Adult Homes.485 These RFPs received numerous responses from supported housing providers eager to
482 Tr. 755. 483 Id. at 653. 484 Id. at 755-56. 485 See, e.g., P-748 (2009 RFP) 4 (targeting current residents of OMH psychiatric centers who have resided there for one year or longer); S-67 (2008 RFP) OMH 43108 (targeting psychiatric center patients, prison inmates, individuals with Assisted Outpatient Treatment (“AOT”) orders); S-17 (2005 RFP) OMH 37306 (targeting psychiatric center patients, prison inmates, acute psychiatric unit patients, and individuals with AOT orders); S-33 (2007 RFP) OMH
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serve those populations.486 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.”487 Ms. 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.488 Mr. 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.489 Frances Lockhart – a former Federation of Organizations employee called by Defendants to testify that Federation still followed the “continuum” approach in operating its programs – acknowledged that even Federation sometimes accepts individuals into their supported housing programs directly from psychiatric centers without requiring those individuals to move through a continuum.490
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.491 The evidence shows that Adult Homes
42726 (targeting Adult Home residents); see also Tr. 1530-31 (Madan) (testifying that in some of its RFPs, OMH has required supported housing providers to accept referrals from psychiatric centers and prisons). 486 Tr. 3478-79 (D. Jones) (testifying that 30 to 40 providers responding to the 2005 RFP proposed a total of roughly 1,500 beds); see also Tr. 1060-65 (D. Jones) (identifying numerous RFP responses). 487 Tr. 846. 488 Tr. 136-38. 489 Tr. 1140-41; id. at 1143 (testifying that the continuum model was considered standard practice in the 1970s and 1980s). 490 Tr. 2670-71. Ms. Lockhart also acknowledged that Federation has previously accepted Adult Home residents into its supported housing program. (Id. at 2640.) 491 D-394 (Schimke Dep.) 48-49; Tr. 872: (Duckworth) (testifying that adult homes are “not part of a continuum of care”).
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are not transitional residences designed to prepare residents for more independent living; rather, they are permanent “destinations.”492 Even Defendants’ expert, Mr. Kaufman, agrees that OMH views Adult Homes as “permanent” placements and “does not view adult homes as rehabilitation settings designed to transition consumers from supervised to independent settings.”493
m. Failure To File a Formal Application for Supported Housing Does Not Preclude Adult Home Residents from Being Qualified To Receive Services in Supported Housing
OMH currently requires individuals seeking to live in any OMH-funded housing in New York City to submit an application to New York City’s Human Resources Administration (“HRA”).494 Defendants contend that Adult Home residents are not “qualified” for supported housing unless they have applied and have been approved for supported housing by HRA.495 The court rejects this contention. The evidence shows that HRA is merely a bureaucratic “clearinghouse” for OMH-funded housing whose determinations of individuals’ suitability for a particular type of housing are often subject to change. In any event, many Adult Home residents lack a meaningful opportunity to submit an application to HRA for the housing of their choice.
Christine Madan, OMH’s Director of Housing and Adult Services, described HRA as a “clearinghouse for receiving applications for housing for persons with mental illness in the city.”496 Based on this application – called an “HRA 2010(e)”497 – HRA decides the types of
492 Tr. 75-76 (E. Jones) (testifying that Adult Homes are “permanent placements” not designed for transition; people stay “20 or 30 years with no hope of moving to a community setting”); Tr. 872 (Duckworth) (testifying that Adult Homes are “destinations”); see also Tr. 690-91 (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”). 493 Tr. 2910-11; S-54 (Kaufman Report) 5. 494 Tr. 1276-77 (Reilly); Tr. 2628 (Lockhart); Tr. 1463 (Madan). 495 See Defs. PFF ¶¶ 64–67. 496 Tr. 1461-62.
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housing for which an applicant may apply.498 In New York City, a Single Point of Access (“SPOA”) system links housing applicants who have been approved by HRA to providers who administer the type of housing for which the applicant was approved.499 Using SPOA to apply for housing is optional; an individual can also apply directly to housing providers after receiving HRA approval.500 If an individual uses the SPOA process, he or she is guaranteed interviews with three housing providers.501 Individual housing providers make the final determination as to whether to accept an applicant into their residential programs.502
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.503 Kathleen Kelly of HRA also testified that HRA determinations are “not written in stone.” 504 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
497 D-271 (New York City Supportive Housing Referral Application (HRA 2010(e)). The previous version of the HRA application was the “HRA 2000,” which was substantially similar to the HRA 2010(e), except that the HRA 2010(e) is electronic, includes questions about domestic violence, and has a separate application form for families. (Tr. 1895-96.) 498 Tr. 1463 (Madan); Tr. 1913 (Kelly). 499 See Tr. 1464-70 (Madan) (describing SPOA process and testifying that SPOA was designed to improve access to different types of housing, particularly for those who have had difficulty finding a placement). OMH has contracted with CUCS to operate the SPOA in New York City. (Id. at 1464-65.) CUCS maintains a “vacancy report” on their website for various types of housing. (Id. at 1465.) 500 Tr. 1464 (Madan). 501 Id. at 1468-70 (Madan). If an applicant is unsuccessful after these interviews, he or she can request a case conference in which OMH, the housing provider, the applicant, and the applicant’s treatment provider participate, to determine whether there are steps that could be taken to approve the applicant’s placement. (See id.) 502 See, e.g., S-21, S-60. 503 Tr. 346-47 (Tsemberis). 504 Tr. 1908.
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HRA’s determination.505 Ms. Kelly further acknowledged that the experience level of the reviewer may impact the type of housing for which an applicant is approved.506
Approved HRA applications are 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.507 It is undisputed that Adult Home residents must rely on others to complete the application and submit it to HRA.508 The application is a complicated
electronic form that is designed to be completed by a “referring agency,” not the individual seeking housing.509 It requires detailed assessments of the applicant from both a psychiatrist and a social worker.510
Many Adult Home residents may not have anyone to assist them in completing an
application. Case managers and other mental health providers are not always willing to assist
residents in completing the application or in applying for the type of housing that the resident desires.511 The record is replete with testimony from residents explaining that, when they
505 Id. 506 Id. at 1910. 507 While 807 applications were submitted on behalf of Adult Home residents from January 2000 to January 2006, there is no indication as to the results of these applications. (Tr. 1914 (Kelly).) Only 21 Adult Home residents moved to supported housing in New York City from January 2002 through January 2006, and 65 moved to other forms of OMH Housing during that same time period. (P-149.) 508 See Defs. PFF ¶ 64 (stating that an HRA application is “usually filled out by the referring agency or provider, and . . . must include a professional clinical assessment, and a recommendation as to what type of housing and services the client requires.”). 509 Tr. 1462 (Madan) (testifying that HRA application is filed electronically and that a resident wishing to complete the application process would speak with a mental health provider); Tr. 1894 (Kelly) (testifying that the “referring agency” is supposed to complete the HRA application). 510 Tr. 1894-95, 1897-98 (Kelly); Tr. 2106-07 (Burstein). 511 See Tr. 1501-02 (Madan) (treatment provider completing the application, not resident, ultimately determines what kind of housing to apply for); see also, e.g., Tr. 390-91 (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-546 (A.M. Dep.) 140-42, 128-32, 169 (had to “fight” to get HRA application filled out by case manager, who then failed to complete it properly); Tr. 614-16 (S.P.) (describing how his former psychologist
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expressed an interest to case managers or other mental health providers in moving to more independent housing, they received no help – and often outright discouragement – in exploring and securing alternative housing options.512 For example, D.N. testified that when she asked a 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; she testified that another social worker told her it would be “better if you stay here.”513 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 forprofit enterprises that lose revenue with each resident who secures alternative housing. Dr. Duckworth testified that case managers and other staff he observed working in the Adult Homes seemed to have “lost their professional autonomy” and “basically showed up to work and saw whoever the operator directed them to see.”514 DOH has cited some Adult Homes for failing to follow up on residents’ expressed desire to move.515
In sum, the evidence 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, be easily addressed in supported housing. The court therefore finds that virtually all of DAI’s constituents are qualified for supported housing.
referred him to a case manager at a mental health program who started but did not finish his HRA application, but also that his current social worker helped him apply to a particular housing program, for which he recently had an interview); P-542 (L.G. Dep.) 105-06 (testifying that her therapist encouraged her to move out of the Adult Home but did not mention supported housing or any other type of OMH housing and never discussed the application process); Tr. 452-54 (G.L.). 512 See supra note 511. 513 P-536 (D.N. Dep.) 150-56. Defendants’ Rule 802 objection to the social workers’ statements is overruled; the statements are admissible to show D.N.’s mental state. 514 Tr. 870. 515 Joint Stip. ¶ 23; see D-28 (DOH Inspection Report for Queens Adult Care (Aug. 6, 2002)) OMH 13147-48.
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3. Conclusions of Law a. Virtually All of DAI’s Constituents Meet the Essential Eligibility Requirements of Supported Housing
Part of the inquiry as to whether supported housing is “appropriate to the needs” of DAI’s constituents is whether DAI’s constituents are qualified to be served in supported housing. In Olmstead, the Supreme Court held that states have 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)). “Not 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)).
Applying the law to the facts, the court concludes that DAI has proven that virtually all of its constituents meet the essential eligibility requirements of supported housing. For virtually all of DAI’s constituents, nothing about their disabilities necessitates living in the Adult Homes as opposed to supported housing, nor would they require services that are not already provided to people living in supported housing. The evidence at trial demonstrates 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 psychiatric hospitals and inpatient psychiatric centers, whom OMH terms “high need.” The evidence at trial further demonstrates that the supports that would be needed by Adult Home residents 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 only minimal supports.
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Voluminous evidence supports the court’s conclusion. After extensive investigations that included interviews with hundreds of residents and review of hundreds of mental health records, DAI’s experts credibly and persuasively concluded that virtually all Adult Home residents could be served in supported housing. OMH’s own former Senior Deputy Commissioner agrees with the conclusions of these experts that virtually all Adult Home residents could be appropriately served in supported housing.
In addition, OMH has issued supported housing RFPs targeting institutionalized individuals, including Adult Home residents themselves. Numerous responses to these RFPs by supported housing providers indicate 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. Dr. Tsemberis testified that the Pathways 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. In fact, in implementing the Legislature’s 60-bed initiative, OMH has successfully transitioned residents of Adult Homes into supported housing.
Defendants’ argument that DAI is seeking to “change the nature of supported housing” is without merit.516 As the court found above, supported housing is not only for those who need “minimal” supports. Rather, it is targeted at individuals with mental illness who need varying levels of support. Nor does OMH require individuals to proceed through a “linear continuum” of care. Defendant OMH Commissioner Hogan testified to the Legislature, and Ms. Rosenberg
516 Defs. PFF ¶¶ 191-92.
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testified at trial, that OMH has abandoned that model and does not require institutionalized individuals to transition gradually through less restrictive forms of housing before moving to supported housing.
Defendants’ own studies demonstrate that many Adult Home residents are qualified to move to supported housing. The Assessment Project, which Defendants commissioned, demonstrates that Adult Home residents are not a particularly disabled population. In addition, the Adult Care Facilities Workgroup, in a 2002 report significantly shaped by Defendants, recommended that 6,000 individuals with mental illness in adult homes be moved to supported housing. While Defendants contend that the Workgroup’s recommendation of moving 6,000 adult home residents is “not based on sufficient data” to be reliable,517 no one contends that the 6,000 figure is derived from quantitative data, because the State had not collected such data. Rather, the Workgroup Report is probative because it shows that a group of accomplished New York experts on mental health, chosen by Defendants, unanimously concluded that large numbers of individuals with mental illness in adult homes in or near New York City – a population that includes the Adult Home residents at issue in this case – could more appropriately be served in more integrated settings.
While Defendants contend 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,”518 they do not explain the basis for this assertion. Individuals residing in supported housing receive varying levels of support depending on their particular needs. While DAI must show – and has successfully shown – that its constituents meet the essential eligibility requirements for
517 Defs. PFF ¶ 204. 518 Id. ¶ 196.
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supported housing, it is not DAI’s burden to assess what specific supports each of its approximately 4,300 constituents would need once he or she is placed in supported housing. Supported housing providers routinely do assessments as part of their work to determine the specific supports their clients require.
Finally, the court concludes that failure to apply and obtain approval for supported housing is not an “essential eligibility” requirement for receiving services in supported housing. See PGA Tour, Inc., 532 U.S. at 688. The HRA process is a bureaucratic hurdle to placement in supported housing that requires detailed evaluations from psychiatrists and social workers. The evidence demonstrates that many Adult Home residents do not have anyone to assist them in filling out the form. In any event, this procedural requirement has nothing to do with the personal characteristics and capabilities of the individuals at issue. Whether an individual has completed an HRA application is unrelated to the question posed by the law of whether supported housing would be a setting appropriate to his or her needs.
b. DAI Is Not Required To Show That Each of Its Constituents Has Been Deemed Eligible for Supported Housing by a Treatment Provider
Defendants contend that DAI has failed to show that its constituents are qualified for supported housing because DAI did not show that each of its constituents has been deemed eligible for supported housing by a treatment provider.519 The court concludes that the law does not require DAI to do so in order to prove that its constituents are qualified.
Olmstead holds that a state “generally may rely on the reasonable assessments of its own professionals” in determining whether an individual is qualified to be served in a more integrated
519 See Defs. PFF ¶¶ 194-95, 201-02.
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setting. 527 U.S. at 602. In Olmstead, there was “no genuine dispute” as to whether the individuals at issue were “qualified” to be served in a more integrated setting, because the state’s own professionals determined that community-based treatment would be appropriate. Id. at 60203. The court does not read Olmstead as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a “treatment provider” and found eligible to be served in a more integrated setting.
In Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008), the district court found that no eligibility determination from the “state’s mental health professionals” is required, noting 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, or whether that just happened to be what occurred in Olmstead.” Id. at 291. In Frederick L. v. Department of Public Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001), the district court declined to read Olmstead as requiring “a formal ‘recommendation’ for community placement, as that term may be used in the mental health field,” noting that “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.” Id. at 540; see also Long v. Benson, No. 08-cv-26 (RH/WCS), 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) (noting that 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.”); cf. Fisher, 335 F.3d at 1181 & n.7 (when there was no dispute as to whether community placement was appropriate, citing the standard as “when treatment professionals have determined that community placement is
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appropriate for disabled individuals”); but see Martin v. Taft, 222 F. Supp. 2d 940, 972 & n.25 (S.D. Ohio 2002) (requiring plaintiffs to plead “that the state’s professionals have determined the plaintiffs are qualified for community-based care, or . . . facts from which it may be inferred that the determinations of the state’s professionals are manifestly unreasonable.”).
DAI has presented persuasive evidence from a variety of sources, including the Defendants’ Assessment Project, that its constituents are qualified to receive services in the community. It need not prove “qualification” in the form of determinations from the Adult Home residents’ “treatment professionals.” To find otherwise would render the ADA’s integration mandate effectively unenforceable as to Adult Homes. The evidence demonstrates that OMH considers Adult Homes to be permanent placements. Defendants have admitted that they do not perform any ongoing assessments of Adult Home residents to determine whether they could be served in alternative settings.520 The evidence does not demonstrate that Adult Home residents are routinely assessed by their own treatment providers as to their “qualifications” to receive services in the community. The for-profit Adult Homes (and the treatment providers employed by them) have no incentive to assist them in moving to alternative housing. Individual case managers and providers are “expected” to bring up the topic of housing with Adult Home residents and follow up with assisting residents who want to move, but there is evidence that case managers and other providers have actually discouraged Adult Home residents who seek to move.
Given the facts of this case, to require determinations from treatment providers would indefinitely forestall Adult Home residents who are actually qualified to receive services in the
520 S-133 (Defs. Obj. & Responses to Pl. First Set of Requests for Admissions) Nos. 12, 14.
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community from access to the most integrated setting appropriate to their needs, simply because their own treatment providers have not bothered to assess them. Such a result would eviscerate the integration mandate as applied to this case. It would condemn the placements of DAI’s constituents to the virtually unreviewable discretion of the various entities on whom the State relies to deliver services to Adult Home residents. This is not what Olmstead contemplates. See Frederick L., 157 F. Supp. 2d at 540 (“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.”); Long, 2008 WL 4571904, at *2. Accordingly, the court finds as a matter of law that DAI is not required to provide determinations from its constituents’ treatment providers in order to show that its constituents are qualified to move.
C. DAI’S CONSTITUENTS ARE NOT OPPOSED TO RECEIVING SERVICES IN MORE INTEGRATED SETTINGS 1. Legal Standard
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 602 (“Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.”) (citing 28 C.F.R. § 35.130(e)(1), 28 C.F.R. pt. 35 app. A, at 450 (“[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation.”)).
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2. Findings of Fact The court finds that DAI’s constituents, as a whole, are not opposed to living in more integrated settings. Adult Home residents have expressed preferences for living in more integrated settings, and there is convincing evidence that many would choose to live in an independent setting such as supported housing if given an informed choice.
a. Most Adult Home Residents Had Little or No Choice in Moving to an Adult Home
By and large, people with mental illness come to live in Adult Homes not by choice, or because a mental health professional determines that an Adult Home is the most appropriate setting to serve their needs. Rather, most of DAI’s constituents entered Adult Homes because they had nowhere else to go. Ms. Rosenberg testified that, when thousands of patients were discharged from the State’s psychiatric centers, “housing was scarce” and “beds were available” in the Adult Homes.521 As Defendants’ witness Karen Schimke testified, “[r]esidents 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.”522 DAI’s expert Elizabeth Jones reported that she “met very few residents who were offered options other than an adult home.”523 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.”524
521 Tr. 646. 522 D-394 (Schimke Dep.) 10-11. 523 S-151 (E. Jones Report) 3. 524 Id.
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Numerous current and former Adult Home residents testified that they had little or no
choice regarding whether to move in to an Adult Home. 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.525 The only alternative she was offered to the Adult Home was another Adult Home.526 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.527
Because he had “already been in a psychiatric facility” and “had no desire to go back into one,”
he “decided to take [his] chance[s] with the adult home,” although he had “absolutely no idea” what it would be like.528 Other current and former residents provided similar testimony.529
b. Most Adult Home Residents Are Uninformed About Alternative Housing Options
Most Adult Home residents are not adequately informed about housing alternatives to the
Adult Homes. In general, residents are unaware of other housing options and the wide range of
525 Tr. 2685. 526 Id. at 2685-86. 527 Tr. 448. 528 Id. at 449. 529 P-537 (P.C. Dep.) 46-47 (testifying that upon discharge from hospital, social worker told him that he could either move to an adult home or go to a shelter), 187-88 (testifying that he knows that many residents at the 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 (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.) 137-38 (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”); P-540 (P.B. Dep.) 29-32 (testifying that when she was discharged from hospital, she was sent to the Adult Home because her social worker “picked it for [her],” and she was not accepted anywhere else). Defendants’ Rule 802 objection to pages 192:23-193 of D.W’s deposition is overruled; the testimony is admissible as a threat, which is not hearsay. Defendants’ objection to pages 194:24-195:4 of D.N.’s deposition is overruled; the testimony is admissible not for the truth of the matter asserted, but the mental state of D.N., the listener.
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assistance that would be available to them in supported housing and other settings.530 Ms.
Rosenberg testified that during her tenure at OMH, residents had only the “vaguest” information about housing alternatives.531 Defendants’ expert Dr. Geller agreed that residents are not adequately informed of housing options.532 Ms. Burstein, the administrator of Park Inn, testified that the “path wasn’t clear” to Adult Home residents seeking alternative housing.533 I.K.
testified that the Adult Home “does not provide information about services to help you get out of the home.” 534 The responsibilities of OMH-funded case managers include informing residents about other housing options,535 and Defendants’ witnesses repeatedly testified that they
“expected” Adult Home case managers, social workers, and other mental health professionals to fulfill their responsibilities.536 Defendants have not analyzed, however, whether the OMHfunded case management is effective.537 In addition, residents who do not participate in a case management program may not receive any information about alternative housing options. 538 For
530 See, e.g., S-151 (E. Jones Report) 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”). 531 Tr. 663. 532 Tr. 2416. 533 Tr. 2083-84. 534 Tr. 2734-35; see also id. at 2732, 2736-37 (describing her previous difficulties in obtaining alternative housing, such as missing an interview for housing because Access-a-Ride did not show up, and explaining that she turned down a placement in an SRO because she did not want to live in an SRO and the neighborhood was unsafe). 535 Tr. 2628-2629, 2630-32 (Lockhart); Tr. 2525, 2549-51, 2555 (Waizer). 536 Tr. 1500-02 (Madan); Tr. 1364-66 (Reilly). 537 See Tr. 1703-04 (Wollner) (testifying that he does not know of any analysis as to whether any Adult Home residents have moved to supported housing as a result of the OMH Case Management Initiative); see also Tr. 291819 (Kaufman) (testifying that he did not reach an opinion as to whether the OMH Case Management Initiative was successful because it was just starting at the time of his investigation in this case). 538 Tr. 2663-64 (Lockhart) (testifying that residents who have not participated in a case management program would likely not be familiar with alternative housing opportunities); Tr. 1835 (Dorfman) (testifying that he is unaware of what information about housing opinions is provided to residents in Adult Homes without OMH case management); see also Tr. 2917-18 (Kaufman) (testifying about his observations that Adult Home staff and on-site treatment
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example, G.L.’s medical records from when he lived in the Adult Home indicate that his therapist spoke to him about supported housing several times,539 but G.L. testified that he received “very, very little” information about housing from his social worker and that conversations with her were “very discouraging.”540 Another resident testified that her therapist encouraged her to move out of the Adult Home but did not mention supported housing or any other type of OMH housing.541
c. The Majority of Adult Home Residents Evaluated in the Assessment Project Expressed an Interest in Living Elsewhere
The Assessment Project found that, of the approximately 2,000 adult home residents with mental illness assessed, 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.542 A total of approximately 75% of the residents assessed either expressed an explicit interest in living elsewhere, or at the least, did not express a preference for living in the adult home.543 Ms. Wickens, a Deputy Director at DOH, testified that when she conducted town hall meetings with adult home residents about the Assessment Project in 2002, residents asked, “When I do the assessment, when can I leave?”544
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”). 539 See D-417 (G.L. Mental Health Records) GL-MHP 71, 95, 139, 142, 143, 150. 540 Tr. 452-54. 541 P-542 (L.G. Dep.) 105-06. 542 P-583 (Bruce Dep.) 94-95. 543 Tr. 1050-51 (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). 544 P-566 (Wickens Dep.) 74.
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Plaintiff’s witnesses credibly testified that the Assessment Project’s data underestimate the numbers of adult home residents who would express a preference for moving if given a meaningful choice. As noted above, Adult Home residents are uninformed about alternative housing.545 The surveyors conducting the assessments did not educate adult home residents about supported housing or other housing options prior to asking whether the residents would like to move out of the adult home, nor did they inquire as to whether the residents had any understanding of these options.546 As Ms. Rosenberg testified, “for many people in adult homes,” the 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 . . . .”547 Ms. Rosenberg testified that, based on her observations during her long tenure working in the State’s mental health system, 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.548
Similarly, as Dr. Kenneth Duckworth explained, because the residents evaluated in the Assessment Project were not presented with a “legitimate alternative that was concrete and believable,” the 56% of residents who reported a preference to move out of their adult home is merely “a floor” with regard to who would truly be willing to move if given the proper “encouragement.”549 Dr. Duckworth estimates that “probably four out of five” residents would
545 See supra Part III.C.2.b. 546 P-583 (Bruce Dep.) 97-98. 547 Tr. 663. 548 Id. at 712-13. 549 Tr. 810, 872-73, 874, 876-77.
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be willing to move to more independent settings if provided with a meaningful option.550 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.”551
DAI’s other experts reached similar conclusions. Ms. Jones 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.552 Mr. Jones reached the same conclusion. In his 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.”553 Accordingly, Mr. Jones concluded that, if provided with information about the nature of supported housing along with the programmatic and financial supports that would be available, “the great majority of adult home residents will very likely choose to move to integrated settings.”554
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
550 Tr. 874-75. 551 S-80 (Duckworth Reply Report) 6. 552 S-151 (E. Jones Report) 9; see also Tr. 44 (E. Jones) (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 . . . .”). 553 S-150 (D. Jones Report) 11. 554 Id.; see also Tr. 1020-1022 (testifying that the 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).
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more positive choices. The person who advocates for his/her choices in regards to services and/or course of treatment is likely to recover[] more quickly.”555 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.”556
d. Adult Home Residents Have Continually Expressed a Preference for Supported Housing
The enthusiastic responses of Adult Home residents to the housing forums OMH conducted in late 2008 and early 2009 in eleven Adult Homes support the conclusions of DAI’s experts.557 These forums were conducted to educate residents about supported housing in order to fill the 60 beds set aside by the Legislature.558 Ms. Burstein testified that after two housing forums were held at Park Inn, residents were “very excited” to learn “that there’s something out there for them.”559 She explained that the path to independent housing for Adult Home residents has historically been “unclear,” with “very long waiting lists” and bureaucratic hurdles.560 She testified that “having an informational setting where the residents can get all the information they
555 S-97 (OMH website description of ACT) 3 (describing ACT) (internal citations omitted). 556 P-527 (OMH, Progress Report on New York State’s Public Mental Health System (Jan. 2001)) 20 (citation omitted). 557 The eleven Adult Homes that had these forums are the ones with OMH-funded case management. In addition to the forums in the eleven Adult Homes, OMH held another housing forum in a public library for those who live in Adult Homes that do not have OMH-funded case management, which Mr. Dorfman estimates was attended by 30 residents. (Tr. 1785-91 (Dorfman).) 558 See Tr. 1783-91 (Dorfman) (describing meetings with housing providers, advocacy groups, adult home operators, State employees; development of planning committees for each home; and housing forums). 559 Tr. 2083. 560 Id.
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would need to move on was just very, very informative, and it was very encouraging, and it gave residents a lot of hope.”561
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 Adult 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.”562 DAI’s expert Mr. 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.563 At forums held in other Adult Homes, residents similarly expressed interest in supported housing.564
Numerous Adult Home residents offered testimony about how living independently was
important to them. For example, P.B. testified that she would prefer an apartment where it
561 Id. at 2084; see also id. (“[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.”). Ms. Burstein also testified that Park Inn encouraged all of its residents to attend the first forum, and approximately 100 residents attended; about 30 to 40 residents attended the second forum at Park Inn. (Id. at 2082-83.) 562 P-357 (Dorfman e-mail re: Anna Erika housing forum, June 19, 2008). 563 Tr. 1074-75. 564 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 supportive 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”).
Defendants assert that the enthusiastic responses to the forums overstates the number of Adult Home residents who are interested in supported housing because the residents invited to the first round of housing forums were already “on the cusp of being ready” to move. (Defs. Resp. PFF 12.) Yet evidence in the record indicates that not all of the forums were selective; Ms. Burstein testified that “Park Inn encouraged all of its residents to attend the first forum, and approximately 100 residents attended.” (Defs. PFF ¶ 110 (citing Tr. 2082-83 (Burstein).)
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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.565 S.B. testified that he would like to have his own apartment with his girlfriend.566 L.G testified that she does not like living in the Adult Home and has wanted to move to her own apartment for a long time.567 Former Adult Home resident A.M. testified that he had wanted to move out so that he could “grow” and become “more independent.”568 I.K.
provided compelling testimony about the effect that moving from an Adult Home to supported housing had on her.569
As OMH has acknowledged, however, 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.570 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 capable of living independently.571 As a result, some residents may be reluctant or ambivalent about leaving the Adult Home.572 For
565 P-540 (P.B. Dep.) 168-170:2. Defendants’ Rule 402 objection to the cited portion is overruled. 566 P-541 (S.B. Dep.) 89-90. 567 P-542 (L.G. Dep.) 102-03. 568 P-546 (A.M. Dep.) 203-04. 569 See supra notes 260, 261. 570 D-182 (OMH 2009-2010 Mental Health Update & Exec. Budget Testimony) OMH 43461-63. 571 See, e.g., Tr. 810, 874 (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 (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) 11; see also supra notes 194, 204 (describing learned helplessness and culture of dependency in Adult Homes). 572 See S-151 (E. Jones Report) 10 (“Although the great majority of residents desire to live elsewhere, I did speak with some residents who prefer at this time to remain in the Adult Homes.”); P-569 (G.H. Dep.) 183 (testifying that “I want to [move], but I’m not mentally ready for it. . . . [Y]ou’re there 19 years, you learn hopelessness by being there so long and being in the mental health system so long.”). One resident testified that he did not want to move to
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example, while the testimony of former Adult Home resident G.L. demonstrates that G.L. is currently flourishing in supported housing,573 his medical records from when he lived in the
Adult Home demonstrate that he formerly expressed ambivalence about moving to supported housing or a more independent setting.574 Former Adult Home resident I.K. acknowledged that
she had formerly felt ambivalent about leaving 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. Anything that I know about getting out of the home I learned from outside sources.”575 A current Adult Home resident who
had been living in the Adult Home for twenty years at the time of her deposition testified that
there was not any place she would rather live “right now,” that she was “not ready to move yet,”
and that she liked living in the Adult Home because she had not been hospitalized while living there, although she was “thinking about [supported housing] for [the] long-term.”576
“supportive housing” because it was “almost the same” as the Adult Home. (P-543 (R.H. Dep.) 149-50.) He testified that he liked being on the Residents’ Council at the Adult Home: “I like working with the residents, advocating for them, doing what I can for them. And I’ve seen a lot of residents and it’s sad. It’s real sad to see a person 24 hours a day in a smoking room, for example, smoking all day long. It’s sad to see that, not going out much, getting clothing from – getting clothing from donations, dependent upon it, and pass away. . . . [S]ome lives, if you really want to know, are left there, forgotten, smoke all day, and it’s sick, pass away, and that’s some of them.” (Id.)
The observations of Defendants’ experts that their “overall impressions” from speaking with Adult Home residents was that the residents were “satisfied” with living in the Adult Home does not rebut the evidence that Adult Home residents, on the whole, are not opposed to moving. (Defs. Resp. PFF 10-11; Tr. 2298-99 (Geller) (testifying that residents were satisfied and that food was the “most common concern”); S-52 (Geller Report); Tr. 2885-86, 2894 (Kaufman) (testifying that the 20-25 residents with whom he spoke were “generally satisfied” with their living situation).) 573 See Tr. 463-64, 485-86, 495, 496, 498. 574 See D-417 (G.L.’s Mental Health Records) GL-MHP 37, 71, 95, 99, 139, 142-43. 575 Tr. 2734-35; see also id. at 2732, 2736-37 (describing her previous difficulties in obtaining alternative housing, such as missing an interview for housing because Access-a-Ride did not show up, and explaining that she turned down a placement in an SRO because she did not want to live in an SRO and the neighborhood was unsafe). 576 P-538 (B.J. Dep.) 31:20-34, 42-43, 89, 92:8-93:10. B.J. testified that adult homes are the “[b]est thing that can ever happen to mental patients.” (Id. at 92-93.)
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Fear and reluctance to move 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.577 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.”578 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.”579 The “Bridgers” “maintain services as necessary until a Community Intensive Case Manager and/or Supportive Case Manager has connected with their patient.”580 Bridger Services have been implemented in the hospital Mr. Campbell administers and are “very effective” in assisting patients with the transition to the community.581
As numerous witnesses testified, having a stable, safe, and permanent place to call home is a universal desire, and people with mental illness are no different from anyone else in this
577 Tr. 1582-83. 578 Id. at 1583-84. 579 D-11 (Manhattan Psychiatric Center, Discharge Planning Policies) OMH 703. 580 Id. 581 Tr. 1584-85 (Campbell).
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regard.582 Indeed, according to OMH’s “Guiding Principles,” “[h]ousing is a basic need and [is]

necessary for recovery. Most people want permanent integrated housing that is not bundled with support services (housing as housing).”583

3.

Conclusions of Law

As Olmstead provides, “[t]here is no federal requirement that community-based treatment

be imposed on patients who do not desire it,” 527 U.S. at 602. Olmstead cited the regulation

providing that “persons with disabilities must be provided the option of declining to accept a

particular accommodation.” Id., citing 28 C.F.R. § 35.130(e)(1), app. A. Applying the legal

standard to the facts, the court concludes that DAI’s constituents, as a whole, are not opposed to

moving to more integrated settings.

Analyses conducted by both DAI’s experts and Defendants’ Assessment Project

demonstrate that large numbers of Adult Home residents are not opposed to moving and would

choose to live in settings other than the Adult Homes. These findings are confirmed by the

enthusiastic responses of residents to the recent housing forums held by OMH in connection with

the Legislature’s allocation of 60 supported housing beds for Adult Home residents. The court

concludes that, with accurate information and a meaningful choice, many Adult Home residents

582 See Tr. 294 (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 (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. 1010-11 (D. Jones) (testifying that when people have a safe and permanent home, they can “meaningfully go to work on the other aspects of their lives, including . . . treatment engagement”). 583 P-59 (OMH Guiding Principles) 2; see also P-527 (OMH, Progress Report on New York State’s Public Mental Health System) 19 (“For most of us, achieving a sense of community belonging hinges on having a decent place to call home.”); Tr. 2159 (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”).
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would choose to live and receive services in a more integrated setting, such as supported housing.
In sum, DAI has proven by a preponderance of the evidence that its constituents are not in the most integrated setting appropriate to their needs and are not opposed to moving to a more integrated setting. Accordingly, it has shown that Defendants are in violation of the integration mandate of the ADA and the Rehabilitation Act. IV. FUNDAMENTAL ALTERATION DEFENSE
The court turns now to the fundamental alteration defense, on which Defendants have the burden of proof. See Olmstead, 527 U.S. at 604; 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); 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).
DAI seeks an injunction directing Defendants to take such steps as are necessary to enable DAI’s constituents to receive services in the most integrated setting appropriate to their needs.584 DAI specifically seeks, among other things, an increase in supported housing beds to accommodate DAI’s constituents who desire to live in supported housing.585 The court has conducted a specific, fact-based analysis to determine whether this relief constitutes a “fundamental alteration” of the State’s programs and services, taking into account both Defendants’ efforts to comply with the integration mandate with respect to Adult Home residents and the fiscal impact of the requested relief, including any potential impact on the State’s ability
584 Pl. PFF ¶ 295. 585 See id. ¶ 298.
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to provide services for other individuals with mental illness. See DAI I, 598 F. Supp. 2d at 334 (framing inquiry). After considering all of the evidence on the defense, the court concludes that Defendants have not met their burden to demonstrate that the relief DAI seeks would be a fundamental alteration. Defendants do not have an effective or comprehensive plan to enable DAI’s constituents to receive services in the most integrated setting appropriate to their needs, nor have they shown that the relief DAI seeks would increase the State’s costs.
A. LEGAL STANDARD The court fully analyzed the law regarding the fundamental alteration defense in DAI I, and will not repeat that analysis here. See DAI I, 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, a plurality of 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. The 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
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restrictive settings” (which subsequent cases term an “Olmstead plan”) and a “waiting list that moved at a reasonable pace.” 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 “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.
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, but that “[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.’” DAI I, 598 F. Supp. 2d at 339 (citing Martin v. Taft, 222 F. Supp. 2d 940, 985-86 & n.42 (S.D. Ohio 2002)). The court also agreed with the Third Circuit’s view that a state must make efforts to comply with the integration mandate in order to show that the specific relief requested would be too costly. DAI I, 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 . . . .”); see Pennsylvania Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005).
With respect to what constitutes a fundamental alteration, this court concluded on summary judgment that “[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.’” DAI I, 598 F. Supp. 2d at 335 (citing Messier, 562 F. Supp. 2d at 345
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(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)).
In considering the resources available to the State, the relevant budget is the “mental health budget,” which includes any money the State receives, allots for spending, and/or spends on services and programs for individuals with mental illness. DAI I, 598 F. Supp. 2d at 350. Under that standard, for purposes of this case, the resources available to the State include funds that OMH, DOH, the Governor, or the Legislature spends 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. (citing Olmstead, 527 U.S. at 604-07). Courts have required states to provide a “specific factual analysis” to demonstrate that the requested relief would constitute a “fundamental alteration.” DAI I, 598 F. Supp. 2d at 335 (citing 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); Townsend, 328 F.3d at 520).
B. FINDINGS OF FACT 1. Defendants Have No Comprehensive or Effective Plan To Enable Adult Home Residents To Receive Services in More Integrated Settings
Defendants have provided evidence concerning their efforts to comply with the Supreme Court’s decision in Olmstead to ensure that people with mental illness in New York State receive services in the most integrated setting appropriate to their needs. Defendants have asserted that
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no Olmstead plan is needed for Adult Home residents, because they contend that Adult Homes are already in the community.586 Defendants have no single document constituting an “Olmstead plan,”587 and no witness at trial testified to the existence of a plan, either written or unwritten, to enable Adult Home residents to move to more integrated settings. Nonetheless, the court finds it relevant to consider the steps Defendants have taken and plan to take to enable Adult Home residents to receive services in more integrated settings.
Defendants have pointed to a number of activities, programs, and services that they contend constitute their Olmstead plan for individuals with mental illness in New York State, including Adult Home residents. According to Defendants’ counsel, Defendants’ Olmstead plan includes: (1) “an array of community-based activities, programs, and services” intended to assist all persons with mental disabilities to live and receive services in the community rather than in State-operated psychiatric hospitals; (2) OMH’s planning, program implementation, and oversight of the mental health system; (3) DOH’s inspection and oversight of Adult Homes; and (4) initiatives targeted at Adult Home residents designed to assist them to gain independent living skills and participate in the community, as well as enhancing access to mental health housing.588 Defendants also assert that the legislatively mandated Most Integrated Setting Coordinating Council is part of their Olmstead plan.589
586 S-87 (Defs. Amended Obj. & Resp. to Pl. First Set of Requests for Admissions) No. 6 (“[D]efendants state that there is no need for an Olmstead plan for adult home residents because adult homes are in the community, and because adult home residents are not services that are operated or provided by the State of New York abut rather are privately owned residences.”). 587 P-553 (Kuhmerker Dep.) 29-30 (explaining that “there is no one specific document that one could point to”). 588 Defs. PFF ¶ 122. No witness at trial identified the activities in Defendants’ asserted Olmstead plan as part of a plan to enable Adult Home residents to move to more integrated settings. 589 Id. ¶ 133.
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Some of the activities Defendants cite as part of their Olmstead plan, while important aspects of Defendants’ overall administration of the State’s mental health system, do not relate to enabling Adult Home residents to receive services in the most integrated setting appropriate to their needs.590 For example, the court heard testimony about OMH’s activities relating to OMH’s Children’s and Forensic Divisions, research on suicide prevention, and the development of new treatments and medications for people with mental illness.591 Such evidence is irrelevant to what Defendants plan or do to enable Adult Home residents to receive services in integrated settings.592
As set forth below, the evidence – which includes 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 – establishes that Defendants do not have a comprehensive or effective plan to enable Adult Home residents to receive services in more integrated settings, but are instead committed to maintaining the status quo. Although Defendants have taken steps intended to improve living conditions and the quality of services in
590 See, e.g., id. ¶¶ 118-20 (citing Tr. 3148-53, 3179-80 (Myers) (describing activities of the Children’s Division, Division of Forensic Services, and OMH’s research into mental health issues)); id. ¶ 130 (citing Tr. 1428-31 (Madan) (describing OMH’s oversight of the mental health system through its licensing processes and oversight of programs and services and asserting that OMH monitors and improves the quality of the 2,500 providers whose services it licenses through inspections during licensure, recertification reviews, and technical assistance and training)).
Defendants also list various “[a]dditional components” of their Olmstead plan, including “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,” but they cite to no evidence to support their assertions. (Id. ¶ 132.) In any event, the activities listed in Paragraph 132 are not relevant to what Defendants plan and do to enable Adult Home residents to receive services in integrated settings. 591 Tr. 3148-51 (Myers). 592 To the extent such evidence is relevant to whether the requested relief would unfairly impact others with mental illness, the court considers it below in Part IV.B.3.
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the Adult Homes, such steps do not enable Adult Home residents to receive services in more integrated settings.
a. The Most Integrated Setting Coordinating Council Does Not Include Adult Home Residents
Defendants list the Most Integrated Setting Coordinating Council (“MISCC”) as part of their Olmstead plan.593 The MISCC was established by the Legislature in 2002. Its statutorily mandated purpose 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.”594 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.”595 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.596
To date, however, MISCC has not developed, and is not developing, a plan to move residents of Adult Homes to more integrated settings.597 In fact, the MISCC has not done anything specific with regard to assisting Adult Home residents to move to more integrated
593 Defs. PFF ¶ 133. In addition to the MISCC, Paragraph 133 of Defendants’ Proposed Findings of Fact also asserts – with no citation to any testimony or exhibit – that the Olmstead plan also includes a “Coalition to Promote Community Based Care,” with no description of this coalition. (Id.) There was no reference to any such coalition at trial. 594 S-133 at No. 10, citing N.Y. Exec. Law § 700. 595 Id., citing N.Y. Exec. Law § 703. 596 P-553 (Kuhmerker Dep.) 27. 597 S-133 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”); see Defs. PFF ¶ 133 (“[T]he MISCC did not develop a plan to move adult home residents”).
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settings.598 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.”599 And nothing in the MISCC’s 2006 annual plan or the MISCC 2008 Annual Report shows any effort to address integration of Adult Home residents.600 Indeed, Defendants deny that MISCC has any obligation to do so.601
b. OMH’s Annual “Comprehensive Plans for Mental Health Services” Do Not Contain any Plan To Enable Adult Home Residents To Receive Services in More Integrated Settings
Defendants assert that “much” of their Olmstead planning is reflected in OMH’s statewide Comprehensive Plans for Mental Health Services, referred to as “5.07 plans.”602 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. The court has reviewed the 5.07 plans
cited by Defendants and finds that they 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.”603 The appendix does not appear in any of the other 5.07 plans cited by Defendants.604 The activities enumerated in the appendix
598 P-553 (Kuhmerker Dep.) 31; id. at 53-54. 599 Id. at 33; see also id. at 31 (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” regarding adult home residents). In their Proposed Findings of Fact, Defendants assert – without citation to any evidence – that the MISCC “address[ed] the adequacy of and access to community services for all individuals with disabilities, including adult home residents.” (Defs’ PFF ¶ 133.) Ms. Kuhmerker’s Rule 30(b)(6) testimony directly rebuts this unsupported assertion. 600 Tr. 1083-87 (D. Jones); see generally P-589 (MISCC 2008 Annual Report). 601 S-133 at No. 10. 602 Defs. PFF ¶ 123 (citing various 5.07 plans: S-5, S-6, S-8, S-38, S-39). 603 Id. (citing S-5 (2004 Plan) OMH 6136-38). 604 See S-6 (2005 Plan); S-8 (2006 Plan); S-38 (2002 Plan); S-30 (2001 Plan).
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focus on improving the quality of life and care for residents in Adult Homes – for example, “clarifying current regulatory authority for medication assistance” and “development of enrichment activities, both within adult homes and in the community” – rather than taking steps to enable residents of Adult Homes to move to more integrated settings.605 To the extent the document mentions housing, it describes “assisting residents in homes that are closing.”606 While the document references “[i]ncreas[ing] access to 31,000 community residential beds,” it does not describe how such access is to be improved.607
c. Deinstitutionalization from State-Operated Psychiatric Hospitals Is Not Relevant to Whether the State Enables Adult Home Residents To Receive Services in More Integrated Settings
New York has been recognized as a leader in providing services to people with mental illness in the community rather than in psychiatric hospitals.608 The State has downsized and closed many State-operated inpatient psychiatric centers and reinvested funds toward community-based services.609 There are currently around 3,600 individuals in New York’s State psychiatric centers, down from 93,197 in 1955, approximately 10,000 in 1994, and just over 5,000 in 1999.610 This evidence is not relevant, however, to the issue of whether Defendants have a plan to enable Adult Home residents to be served in more integrated settings. Indeed, witnesses on both sides testified that the reduction in the census of State psychiatric hospitals
605 S-5 at OMH 6136-38. 606 Id. at OMH 6137-38. 607 Id. at OMH 61367. 608 Tr. 752 (Rosenberg). 609 S-5 (2004 Plan) OMH 5972; Tr. 1613 (Wollner); Tr. 3261-64 (Schaefer-Hayes); D-167 (OMH 2007-2008 Exec. Budget Testimony) OMH 42771. 610 S-5 (2004 Plan) OMH 5972; Tr. 1559 (Madan).
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over the past several decades was made possible in significant part because the State used Adult Homes as discharge placements for patients in the State’s psychiatric institutions.611
d. Defendants’ Statewide Expansion of Community-Based Programs Is Not a Plan To Move Adult Home Residents to More Integrated Settings
Defendants have developed and continue to invest in community-based programs for individuals with mental illness, including case management, residential programs, CDTs, IPRTs, PROS, ACT, peer bridger programs, and psychosocial clubhouses.612 The number of individuals participating in these programs has increased in recent years. For example, the number receiving case management has grown from approximately 14,000 in the late 1990s to 31,000 today, and the number receiving ACT services has grown from approximately 3,000 in 2004 to 5,000 today, 3,000 in New York City.613 Defendants have not provided evidence as to how the general expansion of the scope of these programs relates to moving Adult Home residents to more integrated settings.
e. Defendants Expanded Supported Housing and Added Adult Home Residents as a Target Population, but Few Adult Home Residents Have Gained Access
Between 1995 and 2009, OMH increased the number of beds in operation in its community housing program from 18,940 to 32,633, including 13,557 supported housing beds.614 They have also allocated funds to develop 1,763 additional supported housing beds.615 In addition, Defendants added Adult Home residents to the “target populations” for supported
611 See supra notes 40, 41, 44. 612 See Tr. 3155-61 (Myers). 613 Id. at 3162; S-6 (2005 Plan) OMH 37140-41, OMH 37145. 614 Tr. 1936-41 (Newman); D-350 (OMH Community-Based Bed Chart (Mar. 31, 2009)). 615 D-350 (OMH Community-Based Bed Chart (Mar. 31, 2009)) 4; see also Tr. 1939-45 (Newman).
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housing in 2005. The evidence demonstrates, however, that because of the way Defendants administer the system, Adult Home residents have gained access to very few supported housing beds, even after being added as a target population.
The State develops new supported housing beds through an RFP process.616 When OMH develops supported housing, it identifies a target population for the housing as a “priority” that will receive a preference for new housing beds.617 As State officials testified, 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.618 For example, Ms. Madan, OMH’s Director of Housing and Adult Services, testified that “[w]e 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.”619 Former OMH official Joseph Reilly similarly explained that residential providers are expected to accept referrals from priority populations.620
Adult Home residents have not, historically, been a target group for supported housing.621 The Supported Housing Implementation Guidelines developed in April 1990 set forth three target populations to be served in supported housing: “individuals ready to leave certified
616 Tr. 1927-29 (Newman) (explaining that RFPs “are the State of New York’s way to allocate resources”). 617 See, e.g., S-17 (2005 RFP) OMH 37306. 618 Tr. 2189 (Newman); Tr. 1532-33 (Madan); Tr. 1312-16 (Reilly). 619 Tr. 1532-33. 620 Tr. 1312-16 (“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 . . . .”). 621 See S-11 (1990 Supported Housing Implementation Guidelines) OMH 37270; S-101 (2005 Supported Housing Implementation Guidelines) OMH 37516; Tr. 2176 (Newman).
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community residences; individuals discharged from psychiatric centers; and individuals who are currently homeless, living in shelters, depots or on the streets.”622 The target populations did not include Adult Home residents.623
Adult home residents were not designated as one of the target populations until 2005, along with five other groups.624 Thus, prior to 2005, Adult Home residents were effectively excluded from supported housing beds developed by OMH.625 The designation in the 2005 RFP was only effective for new supported housing that OMH was in the process of developing; it did not grant Adult Home residents access to older supported housing already developed by OMH. As Defendants’ witnesses explained, when beds developed under a particular RFP are vacated, they must be filled with members of the priority populations enumerated in the RFP that initially created the beds.626
As witnesses for both sides testified, even after Adult Home residents became 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.627 Indeed, Ms. Rosenberg testified that neither OMH’s Single Point of Access (“SPOA”) 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.628
622 S-11 at OMH 37270. 623 Id. 624 Tr. 1534 (Madan); S-17 (2005 RFP) (including adult home residents among target populations). 625 Tr. 1532-34 (Madan). 626 Tr. 2193-95 (Newman); Tr. 1532-34 (Madan). 627 Tr. 660, 662 (Rosenberg); Tr. 1089-91 (D. Jones); Tr. 2165-66, 2198-99 (Newman). 628 Tr. 662 (“[They] didn’t have access before and they continued not to have access for the most part.”); Tr. 350001 (D. Jones) (“The state has demonstrated that it has the will and the ability to create additional supported housing
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As noted above, in 2007, the Legislature allocated funds for 60 supported housing beds for Adult Home residents.629 As of May 22, 2009, 45 of those beds had been filled and 15 Adult Home residents were in the process of acquiring the remaining slots.630 OMH did not propose or advance this initiative, and Defendants’ witnesses testified that there is no plan to undertake a similar initiative in the future.631 In fact, a recent RFP for supported housing targets individuals who are currently “long-stay” residents of OMH Psychiatric Centers and OMH-operated residential programs but does not list adult home residents as a target population.632
As noted above, the number of Adult Home residents who have actually moved to supported housing or other types of OMH community housing is negligible. From January 2002 through January 2006, only twenty-one Adult Home residents moved to supported housing in New York City.633 Only sixty-five Adult Home residents moved to other forms of OMH community housing during the same time period.634 According to Mr. Dorfman, OMH began “really collecting data” beginning in early 2008 as to whether Adult Home residents move to supported or other types of housing, and since that time, out of the approximately 2,100 individuals in the Adult Homes with OMH-funded case management, eleven moved to
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.”). 629 Tr. 1460-61 (Madan). 630 Tr. 1974 (Dorfman). 631 Id.; see Tr. 1510 (Madan). 632 P-748 (2009 RFP). 633 P-149. According to OMH, the majority of adult home residents who moved to OMH housing from 2001 to 2006 were in counties outside of New York City. 634 Id.
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“supportive” housing, nine moved to their own apartments, and fourteen moved in with families.635
Even with respect to the relatively few supported housing beds for which Adult Home residents have been designated as a target population, Adult Home residents are still largely denied access because supported housing resources are scarce. The current vacancy rate is less than 2%,636 residential mental health service providers have “exorbitant waiting lists,”637 and members of other priority populations receive higher priority.638 The negligible rate at which Adult Home residents have accessed supported housing beds compared to the success of filling the 60-bed legislative set-aside639 demonstrates that without a specific allocation of beds for Adult Home residents, Adult Home residents will not have access to supported housing as a practical matter. Once the 60 supported housing beds from the set-aside are filled, the pipeline of supported housing beds for Adult Home residents will be closed.
635 Tr. 1797-99. Mr. Dorfman used the term “supportive housing”; Defendants’ other witnesses used that term to refer to apartment treatment programs, which are different from supported housing. (See, e.g. Tr. 1459-60 (Madan) (testifying that “supportive housing” is a CR-SRO and requires “construction and siting,” which supported housing does not).) The case management data reporting forms on which Mr. Dorfman’s testimony relies also refer to “supportive” rather than “supported housing.” (See D-364 (OMH’s NYC Adult Home Case Management Quarterly Program Data Reporting Forms).) The HRA 2010(e) application also refers to “supportive housing” as an umbrella term for OMH community housing. (D-271.) In any event, whether eleven Adult Home residents moved to supportive or supported housing since early 2008 does not change the court’s finding that very few Adult Home residents have moved to supported housing. 636 Tr. 1503-04 (Madan). 637 Tr. 1874 (Dorfman); Tr. 2983-84 (Burstein). 638 See supra note 627. 639 See Tr. 1461 (Madan).
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f. Defendants Do Not Maintain a Waiting List for Adult Home Residents Who Express a Desire To Move to Supported Housing
It is difficult to measure the number of Adult Home residents who have attempted and failed to receive supported housing, because Defendants do not maintain a waiting list for residents of Adult Homes who have expressed a desire to move to more integrated housing.640 Although CUCS maintains a list of housing program vacancies in New York City, Defendants do not maintain a waiting list for any OMH community housing programs, let alone one for Adult Home residents.641 Ms. Kelly, Defendants’ witness from HRA, testified that while HRA received 807 applications for OMH housing on behalf of Adult Home residents between the years 2000 and 2006, HRA does not know the outcome of these applications because it does not keep track of placements, acceptances into, or rejections from OMH community housing.642 In 2005, the State Legislature passed legislation 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.”643 Governor Pataki vetoed that bill “based on objections raised by OMH.”644
640 S-133 at Nos. 8, 9; S-130 (Defs. Resp. to Pl. Statement Pursuant to Local R. 56.1) ¶ 42; P-555 (Liebman Dep.) 19 (testifying that a “housing waiting list was not discussed”). 641 S-130 ¶ 67 (“Defendants admit that OMH does not maintain a comprehensive waiting list for all privately operated mental health housing . . . .”); see Tr. 1464-65 (Madan) (describing CUCS’s “vacancy list”). 642 Tr. 1911 (testifying that after HRA makes a determination about whether a person is approved for a certain level of housing, “[t]he determination letter goes back to the referring agency, and then that basically ends our involvement with it”); see also id. at 1913-14. 643 S-23 (Veto of Assembly Bill No. 2895-A (Aug. 16, 2005)) EXEC 4910. 644 Id.
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g. Defendants Have Taken Steps Designed To Improve the Conditions and Quality of Services in the Adult Homes, but Such Steps Do Not Enable Adult Home Residents To Move to More Integrated Settings
Defendants have taken steps designed to improve the conditions and quality of services in the Adult Homes, but such steps do not enable Adult Home residents to move to more integrated settings. Defendants assert that DOH’s licensure and enforcement of regulations governing Adult Homes are part of their Olmstead plan,645 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 point to “various statutory and regulatory changes” enacted to strengthen oversight and improve conditions in adult homes statewide, such as a regulation that allows DOH to immediately assess fines for violations that endanger residents and a statute that requires adult homes to have at least one common room that is air conditioned.646 Defendants also cite to the Inter-Agency Committee on Adult Homes, formed in 2001 by DOH, OMH, and the New York State Commission for Quality of Care (“CQC”), to improve coordination and communication among the agencies. This Committee created mechanisms for conducting joint inspections and sharing information and took steps to strengthen the “Do Not Refer” list, which precludes various entities from referring individuals to adult homes statewide that fail to meet applicable standards.647 Defendants also refer to the Adult Home Monitoring Team, which OMH formed in 2000 to address issues of quality of care in adult homes. The
645 Defs. PFF ¶ 131. 646 Id. ¶ 142 (citing N.Y. Soc. Servs. Law §§ 460-d, 460-f(1); N.Y. Mental Hyg. Law § 29.15; N.Y. Corr. Law § 72b; N.Y. Comp. Codes R. & Regs. tit. 18 § 486.5(a)(4)). 647 Defs. PFF ¶ 135 (citing Tr. 1286-88 (Reilly); Tr. 3014-17 (Hart); S-31 (Memorandum of Understanding by and Between DOH, OMH, and CQC Regarding Monitoring and Oversight of Adult Care Facilities Serving a Significant Number of Persons Who Are Mentally Ill)).
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Adult Home Monitoring Team participates in joint inspections of adult homes with DOH, investigates complaints, works with DOH to oversee the closure of adult homes, and enhances the oversight of mental health programs serving adult home residents.648
These strengthened monitoring and enforcement activities are commendable, but they do not constitute a plan or commitment to enable individuals in Adult Homes to receive services in more integrated settings. Indeed, one of the witnesses whose testimony Defendants cite for the proposition that the Adult Home Monitoring 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. 649 She testified that, to her knowledge, no one is assessing whether residents of Adult Homes would be more appropriately situated in supported housing.650
h. There Is No Evidence That the EnAbLE Program Has Assisted any Adult Home Resident in Moving to a More Integrated Setting
Defendants list the “EnAbLE” program – Enhancing Abilities and Life Experiences – as part of their Olmstead plan.651 Mr. Wollner, who formerly held high positions at OMH and DOH, testified that the EnAbLE Program was “in essence” created by adult home residents who had “quality of life concerns,” and that the budget proposal for the program sent to the
648 Id. ¶ 136 (citing Tr. 1265-1274 (Reilly); P-564 (Tacoronti Dep.) 18-19). The court notes that, according to Mr. Reilly, the Adult Home Monitoring Team was assigned to New York City but had “statewide responsibilities.” (Tr. 1265.) 649 P-564 (Tacoronti Dep.) 202-03. 650 Id. 651 Defs. PFF ¶ 141.
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Legislature was for “adult home residents to improve the quality of life.”652 Through this
program, DOH has provided grants of up to $100,000 to adult homes to provide certain activities and services within the facilities.653 Several Adult Homes have used the grant to create teaching kitchens or laundry areas,654 one Adult Home created a “garden area,” and another Adult Home purchased a van to take residents on trips.655 Eight of the Adult Homes at issue in this litigation have received EnAbLE Grants.656 While Defendants contend that this program helps teach
independent living skills, Defendants have not determined whether the EnAbLE Program has resulted in any Adult Home residents moving to more integrated settings.657 Accordingly,
Defendants have not shown that the EnAbLE Program is part of a plan to assist Adult Home
residents in moving to more integrated settings.
i. OMH’s Case Management and Peer Support Program in Eleven Adult Homes Is Not a Comprehensive or Effective Plan To Enable Adult Home Residents to Receive Services in More Integrated Settings
Defendants include OMH’s case management and peer support program as part of their Olmstead plan.658 In 2002, OMH created the Case Management Initiative, which was designed
to provide independent case managers to work with Adult Home residents to identify goals,
652 Tr. 1608, 1647-49, 1660-61; see also Tr. 2084-85 (Burstein) (explaining her understanding that the EnAbLE Program is “an opportunity for adult homes to receive funding from the Department of Health to do projects or programs for the enhancement of the residents”). 653 S-69 (Request for Applications – EnAbLE (2008)); S-88 (Request for Applications – EnAbLE (2005)); D-131 (“Dear colleague” letter enclosing EnAbLe Request for Applications (2005)). 654 Tr. 2902-03 (Kaufman). 655 Tr. 1647-51 (Wollner); see also S-69, S-88 (DOH Request for Applications – EnAbLE). 656 P-244 (DOH EnAbLE Program Grant Awards); see also D-132, D-133, D-135, D-136, D-137, D-138, D-139 (Letters from David Wollner to Adult Home operators awarding EnAbLE grants). 657 Tr. 1715-16 (Wollner). To the extent that EnAbLE grants are used to teach independent living skills to Adult Home residents, the evidence demonstrated that skills cannot effectively be taught unless people have an opportunity to practice them in the settings where they live. See supra note 189. 658 Defs. PFF ¶¶ 138-40.
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coordinate services, and put together a service plan.659 The program also assigned a mental health peer to work with each case manager.660 The State initially implemented the program for
690 residents in Brooklyn Adult Care Center, Riverdale Manor and Queens Adult Care Center.661 The initial RFP for the program does not mention, as part of the services to be
provided, assistance with locating alternative housing for Adult Home residents interested in moving.662 As Mr. Reilly testified, OMH was concerned when implementing the Case
Management Initiative that Adult Homes would be resistant to permitting the program to operate inside the Homes.663 OMH issued two subsequent RFPs, in 2004 and 2006, and the program was eventually implemented in eight additional Adult Homes.664 As of 2007, the program provided services for 2,100 Adult Home residents.665 OMH has no plan to expand the program into additional Adult Homes.666 Thus, OMH case management reaches less than half of the
4,300 Adult Home residents at issue in this case.
While the responsibilities of OMH’s case managers include assisting residents who are interested in moving to more integrated settings,667 the evidence demonstrates that only a few
659 Tr. 1307-08 (Reilly). 660 Id. at 1308-09. 661 Id. at 1321, 1325. 662 Id. at 1384-85; S-12 (Letter from Joseph Reilly to providers enclosing RFP (Aug. 8, 2003)). 663 Tr. 1384-85. 664 See S-16 (OMH Case Management RFP (2004)); S-32 (OMH Case Management RFP (2006)); Tr. 1330-38 (Reilly). 665 Tr. 1338-39 (Reilly). 666 Tr. 1834-35 (Dorfman). 667 Id. at 1772-73, 1734, 1738, 1760-65, 1777-78 (testifying that case managers assist residents in filling out HRA 2010(e) forms, file HRA determination with CUCS, assist with interviews, and work with housing providers to secure apartment access, advocate for residents if HRA does not approve the appropriate level of housing, and assist residents with finding non-mental health housing or reconnecting with families); Tr. 2628-29, 2630-32 (Lockhart) (testifying that case managers from Federation inform Adult Home residents about the four levels of housing offered by Federation); Tr. 2525, 2549-51, 2555 (Waizer) (testifying that housing options “are a constant refrain and that’s
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residents in Adult Homes with OMH-funded case managers have actually moved to supported
housing, apart from the one-time 60-bed legislative initiative. Ms. Lockhart testified that, in her
eight years working for Federation, which provides case management services in four Adult
Homes, she recalled only two residents who moved to supported housing whom Federation had assisted with filling out the HRA form and going on interviews.668 Mr. Waizer, the chief
operating officer of FEGS, which provides case management at Riverdale Manor, testified that
he is “really not aware” of any residents of Riverdale Manor who have been placed into FEGS’s supported housing program.669 Ms. Burstein testified that since the OMH Case Management
Initiative began at Park Inn three years ago, not one resident has been discharged to supported housing.670 In addition, Defendants’ witnesses testified that residents who live in one of the
Adult Homes without OMH-funded case management are unlikely ever to be informed about, or receive assistance with, securing alternative housing.671 Defendants’ witnesses simply testified
that they “expected” Adult Home case managers to follow up on residents’ expressed desires to move to more integrated housing.672 Defendants have never analyzed whether the program is
an interest of ours to see if, in fact, they would be willing to begin talking about outside housing opportunities” and that FEGS’s staff at Riverdale Manor conduct a housing training group at least weekly). 668 Tr. 2630-32. According to Ms. Lockhart, Federation also assisted an Adult Home resident in moving to his own apartment. (Id. at 2631.) 669 Tr. 2551-52. Mr. Waizer testified that eight residents of Riverdale Manor moved to FEGS’s other supervised residences, primarily CR-SROs. (Id. at 2525, 2551-52.) 670 Tr. 2079-80 (“I don’t think we discharged any to supported [housing].”). Ms. Burstein testified that prior to the OMH-funded case management at Park Inn, ten residents moved to more independent settings, though not supported housing. (Id. at 2071; see also D-190 (Park Inn “Patient’s Register” listing discharges).) Since the OMH-funded case management began at Park Inn, she estimates that between seven and ten residents moved to “more independent settings,” but not supported housing. (Tr. at 2079.) Ms. Bear also testified that she thinks that 13 residents of Adult Homes where the Jewish Board operates programs moved to other settings, but not supported housing. (Tr. 2226.) 671 See supra note 538. 672 See supra note 536.
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effective at assisting residents in moving to more integrated settings.673 The evidence presented at trial also demonstrates that little movement from Adult Homes to supported housing actually occurs.674
OMH’s Case Management Initiative is a step toward assisting some Adult Home residents, although the number of residents who have actually obtained supported housing – with or without OMH case management – is negligible.675 OMH case management is limited to less than half of the Adult Home residents at issue in this litigation, and is further limited by the lack of supported housing beds available to Adult Home residents.676 As DAI’s expert Mr. Jones testified, “if 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.”677 He further testified:
[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.678 Defendants themselves characterize the Case Management Initiative as “assist[ing] adult home residents in developing and achieving individualized treatment plans.”679 It is not a comprehensive or effective plan to move Adult Home residents to more integrated settings.
673 Tr. 1704-05 (Wollner) (testifying that he does not know of any analysis). 674 See supra notes 633, 635. 675 See supra Part IV.B.1.e. 676 See supra notes 170; supra Part IV.B.1.e. 677 Tr. 1172. 678 Id. at 1172-73. 679 Defs. PFF ¶ 236 n.143.
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j. Defendants Have Not Used the Assessment Project Data To Identify and Assist Adult Home Residents To Move to More Integrated Settings
Defendants assert that the Assessment Project is part of their Olmstead plan.680 As
mentioned above, one of the original purposes of the Assessment Project was to assess adult home residents’ needs and desires regarding the settings where they received services.681 Dr.
Bruce, who directed the Assessment Project, testified that the data collected in the Assessment
Project could have been useful in identifying and assisting adult home residents with mental illness in moving to more integrated settings.682 As Mr. Jones explained:
[T]his was a very rich set of data, frankly better than you get in most decisionmaking 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.683
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 responded, “[a]bsolutely,”
explaining that the Assessment Project is “an in-your-face sort of report. And I mean what it
says, which, you know . . . we had this huge mismatch between people who ended up in these
680 Defs. PFF ¶ 138. 681 See supra notes 388, 389, 390, 391, & 392; see also Tr. 1676-78 (Wollner) (testifying that one of the purposes was to determine who would benefit from a higher or lower level of care); Tr. 2108 (Burstein). 682 P-583 (Bruce Dep.) 52-53, 55. 683 Tr. 1036-37.
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settings and the settings themselves and what they can and should be able to do. So you’ve got a huge, a huge mismatch.”684 He further testified, “so if I were commissioner looking at this, I would say, [w]ow, we’ve got a big problem here and we’re going to have to put together a very serious multi-year initiative to deal with this.”685 Despite the validity of the Assessment Project data, the State never used the Assessment Project data to determine how many adult home residents with mental illness could live in integrated settings.686 In fact, the State ordered Dr. Bruce, the director of the Assessment Project, not to do any analysis of the data for her own research due to this litigation.687
Defendants admit that they have not used the Assessment Project data “to place Adult Home residents in more integrated settings.”688 Mr. Reilly testified that several years after the data was collected, OMH provided some of the individual assessments to case managers or mental health treatment providers for “follow-up” in instances where the residents had provided consent to disclose their assessments.689 Mr. Wollner testified that where specific medical needs were identified, residents were referred to the Adult Home staff for care and follow-up.690 Defendants presented no evidence that the data sent to case managers or providers has actually been used to enable Adult Home residents to move to more integrated settings, or in connection
684 Id. at 1037. 685 Id. at 1038. 686 P-583 (Bruce Dep.) 43; P-566 (Wickens Dep.) 90 (stating that New York Presbyterian had not analyzed Assessment data to determine how many adult home residents could live in integrated settings). 687 P-583 (Bruce Dep.) 54. 688 S-133 at No. 15. 689 Tr. 1348, 1394-95; cf. P-543 (R.H. Dep.) 28-29 (testifying that after the assessments were done, Adult Home residents never heard anything back). 690 Tr. 1619-23.
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with Defendants’ strategic planning.691 Nor have Defendants shared the Assessment Project data with the MISCC or the Adult Care Facilities Workgroup so that it might be used in their planning.692 Indeed, because Defendants claim 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,”693 they have essentially admitted that the Assessment Project is not part of any plan to move Adult Home residents to more integrated settings.
k. Defendants Never Implemented the Recommendation of the Adult Care Facilities Workgroup To Move Adult Home Residents to Supported Housing
Defendants rely on the 2002 report of the Adult Care Facilities Workgroup (“Workgroup Report”) as part of their Olmstead plan.694 Defendants rejected the Workgroup’s recommendation that proposed a timeline for moving 6,000 people with mental illness from adult homes into supported housing.695 Most of the recommendations Defendants implemented from the Workgroup Report concerned 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. For example, Mr. Wollner testified that Defendants implemented the following changes statewide: (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; and (3) expanding the “Do Not Refer” list to prohibit the Department of Corrections and Parole from referring
691 Id. at 1623. Mr. Wollner testified that the Assessments were used to collect baseline demographic data about Adult Home residents and that there was a “tracking mechanism” to follow up on individual residents’ unmet health care needs, such as cardiac problems or diabetes. (Id. at 1620-21.) 692 P-566 (Wickens Dep.) 93, 94-95. 693 Defs. PFF ¶ 94. 694 Id. ¶ 137. 695 Tr. 1640-45 (Wollner).
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individuals to adult homes with serious deficiencies.696 Defendants implemented the Workgroup’s recommendations relating to assessments and case management by commissioning the Assessment Project and implementing OMH-funded case management.697 As discussed above, however, those activities have had no meaningful effect on the ability of Adult Home residents to access more integrated housing.
2. The Requested Relief Would Not Increase Costs to the State The parties do not dispute that moving Adult Home residents to supported housing would require the development of additional supported housing beds. The evidence demonstrates that serving DAI’s constituents in supported housing rather than Adult Homes would not increase costs to the State.698
a. Funding Sources and Types of Costs Incurred In general, residents of Adult Homes and residents of supported housing pay for all or part of the cost of their housing with Supplemental Security Income (“SSI”), an income supplement for low income people with disabilities.699 The SSI program is managed by the federal Social Security Administration and is partially federally funded. The State’s share of an
696 Tr. 1623-39. 697 Id. at 1617-19, 1295-97; cf. S-103 (Workgroup Report) DOH 86143 (recommending, among other things, an immediate ongoing assessment of all adult home residents and the implementation of an independent service coordinator initiative in adult homes). 698 Defendants have also provided evidence about the per-bed costs of Supportive SROs and CR-SROs, other types of OMH Housing for Persons with Mental Illness. (See Defs. PFF ¶¶ 151, 152, 159, 161.) Because Plaintiff does not seek placement of its constituents in these other types of community housing, the court does not consider such analysis relevant to determining whether the relief Plaintiff seeks would increase the costs to the State. 699 See Joint Stip. ¶¶ 9, 28.
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individual’s SSI benefit depends on the individual’s residential setting and the location of the residence within the State.700
Adult Homes are classified as Congregate Care Level III housing for the purpose of determining the SSI benefit that Adult Home residents receive.701 Currently, Adult Home residents in New York City receive $16,416 per year in SSI; of that amount, the federal government pays $8,088 and the State pays $8,328.702 The 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.703 Residents keep a small portion of the SSI benefit as a Personal Needs Allowance (“PNA”).704 In 2009, in New York City, the PNA for adult home residents is $2,136 per year, or $178 per month.705
Scattered-site supported housing consists of apartments scattered among various buildings.706 Scattered-site rental apartments are funded directly by OMH in the form of a rental stipend, and through the individual residents’ income, which often consists only of SSI.707 The State pays a per-bed stipend directly to supported housing providers. The current per-bed stipend paid by OMH for supported housing is $14,654.708 Individuals residing in supported
700 See D-347 (SSI Benefit Levels Chart effective Jan. 1, 2009) (indicating five categories of living arrangements with varying amounts of SSI benefits). 701 Joint Stip. ¶ 14. 702 Id. ¶ 27. 703 Id. ¶ 28. 704 Id. 705 Id. 706 Id. ¶ 11. 707 Id. ¶ 29. 708 Id. ¶ 33.
The rental stipend the State currently pays for supported housing is not reimbursed by Medicaid. (Tr. 3268 (Schaefer-Hayes).) As OMH CFO Martha Schaefer-Hayes testified, the portion of the amount of the rental stipend
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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 provider.709 The 2009 Living Alone rate was $9,132 per year ($761 per month), of which the State’s share is $1,044 per year, or $87 per month.710
Residents of Adult Homes and supported housing receive services funded by Medicaid, paid for jointly by the State and federal government.711 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.712 As described below, the State pays significantly higher Medicaid costs for individuals with mental illness living in Adult Homes than it pays for individuals with mental illness in supported housing.
While OMH does not provide stipends to Adult Home operators as it does for supported housing providers, the State incurs additional costs for Adult Home residents that it does not
that goes to provide case management services is potentially eligible for Medicaid reimbursement. (Id. at 3268-69.) DAI has pointed out that if the State were to seek to make that expense coverable by Medicaid, the State could share the cost of those services with the federal government. (Pl. PFF ¶ 200 n. 12.) OMH has declined, however, to seek Medicaid reimbursement for that portion, asserting 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. 3276-77 (Schaefer-Hayes).) Ms. Schaefer-Hayes testified that 10-15% of the rental stipend funds go to case management. (Id. at 3276.)
DAI points out that the amount of Medicaid recovery to the State from the federal government if those funds were sought could be $9.9 million. (Pl. PFF ¶ 200 n. 12.) This number derives from multiplying ten percent of the $14,654 per-bed rental stipend by the approximately 13,500 supported beds that Defendants currently fund (see supra note 614), divided by two, because the State pays half of Medicaid costs (see infra notes 711, 712). 709 Joint Stip. ¶¶ 9, 30. 710 D-347 (SSI Benefit Levels Chart effective Jan. 1, 2009). 711 S-55 (Kipper Report) 7-8 & n.4 (“[F]or $1.00 of Medicaid service cost, the State pays $0.50 and the Federal government pays $0.50.”). 712 See generally P-63 (DOH Analysis of Medicaid Expenditures in Impacted Adult Homes (“State Analysis”)).
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incur for residents of supported housing, described below. The State funds a variety of grant programs and other subsidies for adult homes statewide, including the Adult Homes at issue.
b. Defendants Have Not Done any Analysis To Determine the Financial Impact of the Requested Relief
Martha Schaefer-Hayes, the Chief Fiscal Officer of OMH, testified that OMH has not done any analysis to determine the financial impact of creating supported housing beds specifically for Adult Home residents.713 Ms. Schaefer-Hayes acknowledged on crossexamination that she was not familiar with the “financing mechanisms for adult homes,” and agreed that, to her knowledge, “OMH has not performed an analysis of the financial impact” of the relief DAI seeks.714 She also conceded that she had “not performed any studies or any analysis about the impact which the creation of 2,000 supported housing beds for adult home residents would have on the OMH budget.”715
Defendants’ cost expert, R. Gregory Kipper, testified on direct examination that he lacked information about the exact number of residents DAI contends could be served in supported housing and the exact mix of supports each individual would need for that to occur.716 He stated that the lack of such information “certainly made it more difficult” to reach conclusions about the effect on the State’s cost for moving individuals from Adult Homes to supported housing.717 Mr. Kipper conceded on cross-examination, however, that there were several ways that an estimate could have been done to arrive at approximate figures to determine
713 Tr. 3367-69 (Schaefer-Hayes). 714 Id. at 3368. 715 Id. at 3369. 716 Tr. 2783-84. 717 Id..
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the effect on the State’s costs.718 For example, the State identifies its programs by unique “program codes.”719 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.720 As DAI’s expert 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.”721 The State never performed such an analysis.
c. Defendants’ Cost Analysis Ignores Relevant Costs Defendants’ evidence on costs is based on the premise that the only relevant costs are the OMH rental stipend provided to supported housing providers and SSI. Defendants’ cost expert, Mr. Kipper, testified that the annual cost of serving a person in supported housing is $15,698, which is the $14,654 OMH stipend plus the State SSI contribution of $1,044.722 He testified that the annual cost of serving a person in an Adult Home is only $8,328, which is the State SSI contribution.723 Therefore, according to Defendants, it costs the State an additional $7,370 each year for an Adult Home resident to live in supported housing.724 This comparison ignores Medicaid costs, however.725
718 Id. at 2834-36; see Tr. 3464 (D. Jones). 719 Tr. 3241 (Schaefer-Hayes). 720 Tr. 2834-35 (Kipper); Tr. 3464 (D. Jones). 721 Tr. 3465. 722 Tr. 2780; see D-441 (Schaefer-Hayes Chart); D-398 (Kipper Chart). 723 Tr. 2780; see D-441 (Schaefer-Hayes Chart); D-398 (Kipper Chart). 724 Tr. 2780 (Kipper); see D-441 (Schaefer-Hayes Chart); D-398 (Kipper Chart). 725 Tr. 2788, 2789 (Kipper); Tr. 3383-84 (Schaefer-Hayes); Tr. 3438-39 (D. Jones).
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As set forth in detail below, the court finds that Medicaid costs are relevant to the

analysis and should be considered in evaluating the costs of the proposed relief. Once Medicaid

costs are taken into account, it would not be more expensive to serve DAI’s constituents in

supported housing rather than Adult Homes: it would actually save the State of New York $146

per year to serve an individual in supported housing instead of an Adult Home.

i.

Defendants’ Own Analysis Demonstrates That

Medicaid Costs in Supported Housing Are Significantly

Lower Than Medicaid Costs in Adult Homes

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 2004-2005 (“State Analysis”).726 In that analysis, the overall annual Medicaid costs for an individual residing in an

Adult Home were, on average, roughly $15,000 higher than the average Medicaid costs for an individual with mental illness in supported housing.727 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.728 In fact, the State pays far more for

726 Tr. 3421 (D. Jones); see generally P-63 (State Analysis). The 2004-2005 data is the latest data available. (See Tr. 3440-41 (D. Jones).) 727 P-63 (State Analysis) DOH 131663-64; P-773 (D. Jones Summary of Cost Evidence) 1; Tr. 3424 (D. Jones); S55 (Kipper Report) 8; see also P-228 (NYS CQC, Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services (Aug. 2002) (“Layering Report”)) CQC 114 (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) DOH 86205-09 (discussing potential Medicaid savings from reforming services to adult home residents); P-94 (NYS CQC, A Review of Assisted Living Programs in “Impacted” Adult Homes (June 2007) (“2007 ALP Report”)) at i (finding that assisted living services provided to residents of impacted adult homes “were not commensurate with the increased charges to Medicaid”). 728 P-63 (State Analysis) DOH 131663-64; see also S-150 (D. Jones Report) 21; S-55 (Kipper Report) 8.
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services to Adult Home residents than for services to residents of supported housing across a “spectrum of services,” including inpatient hospitalization costs and pharmacy costs.729
Table 1: Summary Comparison of Medicaid Expenditures in FY 2004-2005730

Average Per-Person Cost

Population Cuts Resident Populations in State Fiscal Year 2004-2005

Supported Housing $16,467

Severely and Persistently Mentally Ill (“SPMI”)

$20,370

(a) SPMI and Medically Involved

$28,108

(b) SPMI and Not Medically Involved

$18,664

Not SPMI

$11,882

(a) Not SPMI and Medically Involved

$27,006

(b) Not SPMI and Not Medically Involved

$9,628

Source: P-63 (State Analysis) DOH 131663-64.

Adult Homes $31,530 $36,109 $46,772 $32,163 $25,289 $39,677 $19,711

Defendants further parsed the Medicaid data to compare persons with higher or lower medical needs and higher or lower psychiatric needs in both residential settings.731 No matter

which sub-category was analyzed, there were significant savings – between $10,000 and $18,700, depending on the category – for residents of supported housing.732

729 Tr. 2789 (Kipper). 730 Pl. PFF ¶ 204; P-773. The court has verified that this table accurately reflects the data at pages OMH 131663-64 in the State Analysis (P-63). 731 See P-63 (State Analysis) DOH 131663-64; see Tr. 3471-72 (D. Jones). 732 P-63 (State Analysis) DOH 131663-64.
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ii.

Serving Adult Home Residents in Supported Housing

Would Reduce State Medicaid Costs

While the parties do not dispute that the State spends more on Medicaid for residents

currently living in Adult Homes than for residents currently living in supported housing, the

parties dispute whether moving Adult Home residents to supported housing would reduce State Medicaid costs.733 The dispute centers around the question of whether the higher Medicaid costs

for Adult Home residents are due to the setting in which a person with mental illness is served or

the characteristics of a person living in that setting. Defendants’ cost expert, Mr. Kipper,

concluded that Medicaid costs “wouldn’t necessarily change due to a change in your address, a

change in your housing situation,” and that it was “highly speculative” that moving an individual

from one setting to another would cause an immediate change in the individual’s Medicaid service needs and the State’s share of associated Medicaid costs.734 DAI’s expert, Mr. Jones,

testified that it is the nature of the provision of services in Adult Homes that causes the disparity, not the residents themselves.735 The evidence below demonstrates that the higher cost is due to

the Adult Home system of care rather than the characteristics of the individuals receiving

services.

a) Adult Homes Over-Utilize Medicaid Services

A significant reason why Medicaid expenses are higher in Adult Homes is that Adult

Homes over-utilize Medicaid services; there is a great deal of “layering of services” in Adult Homes that does not occur in supported housing.736 In August 2002, the New York Commission

733 See, e.g., S-55 (Kipper Report) 8; S-150 (D. Jones Report) 21-22. 734 Tr. 2789-90, 2796, 2798-2800. 735 Tr. 3424-26. 736 Tr. 712 (Rosenberg); 3425-26 (D. Jones).

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on Quality of Care (“CQC”), an independent State agency, issued the report “Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services” (the “Layering Report”).737 The Layering Report was one of several studies that were highly critical of the Adult Home system of care.738 It concluded that financial abuses existed in at least “the 11 largest adult homes in the greater New York City area,” which together “cared for about onefifth of the total population of ‘impacted adult homes.’”739 The Layering Report found it “not 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.”740 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.”741 The report called the entire Adult Home service system “fundamentally flawed” and in need of “reform.”742 It cited ingrained “structural problems” that had been ongoing for “more than 25 years.”743 The report described 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.744
737 P-228. 738 Id. 739 Id. at CQC 99. 740 Id. at CQC 96. 741 Id. at CQC 96. 742 Id. at CQC 114-15. 743 Id. at CQC 97. 744 Id. at CQC 96.
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The Layering Report, which used then-current figures, found that it cost the State $37,000 per year for a person to live in the adult homes it analyzed when Medicaid billing was added to room and board charges.745
The findings in the Layering Report are consistent with findings reached in several other State reports. A May 2006 report by the CQC, “Health Care in Impacted Adult Homes: A Survey,” found that because primary care physicians and specialists provided services on-site at impacted 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.”746 It also found that “individuals were screened by specialists when they had no documented need for such [care]”; in one home, for example, a dermatologist screened all residents.747 The report provided, for example, that in one home a dermatologist screened all residents. The CQC’s June 2007 report, “A Review of Assisted Living Programs in ‘Impacted’ Adult Homes,” found that assisted living services, which are provided to some Adult Home residents, “were not commensurate with the increased charges to Medicaid.”748 In addition, the Workgroup Report discussed potential Medicaid savings from reforming services to adult home residents.749
Several witnesses also identified the over-utilization problems highlighted in the Layering Report. Ms. Rosenberg explained that there is a fiscal relationship between Adult
745 Id. at CQC 101. 746 D-385 (NYS CQC, Health Care in Impacted Adult Homes: A Survey (May 2006) (“Health Care Report”)) 8. This report focused on 13 impacted adult homes, four of which are at issue in this litigation. (See id. at 2.) 747 Id. at 8. 748 P-94 (2007 ALP Report) i. 749 S-103 (Workgroup Report) DOH 86205-09.
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Home operators and providers that rent space in the homes to provide Medicaid-billable services to adult home residents.750 She testified that some Adult Home residents at times had home health aides billed to Medicaid who worked for agencies owned by the Adult Home operators, and that the residents were unaware they had a home health aide.751 She described 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.752 Similarly, Mr. Jones identified Medicaid over-utilization as a problem in Adult Homes – but not in supported housing – and described the finding of the Workgroup’s Payment Subworkgroup that adult homes over-utilized nursing services and home health aides.753 As Mr. Jones explained, “[y]ou’ve got very aggressive private for-profit providers who are operating in largely a fee for service Medicaid world who are highly [incentivized] to bill as much Medicaid as they can bill.”754 Accordingly, “you end up here with an exceedingly high cost for Medicaid.”755 Ms. Rosenberg put it this way: “because they’re forprofits[,] [i]t’s institutional living at, potentially, its worst.”756
750 Tr. 712. For example, 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.” (Id. at 645.) 751 Tr. 709-10. 752 Tr. 710-11. 753 Tr. 3491-92, 3431-32. 754 Tr. 3425. 755 Id.; see also Tr. 566-67 (S.P.) (testifying 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 Adult Home, and that Medicaid pays for those appointments). 756 Tr. 645.
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Defendants assert that “there is no evidence that the financial abuses that occurred in some homes are widespread and still occurring,”757 contending that “many of the homes where abuses took place” are closed or under different management. Defendants’ expert, Mr. Kipper, testified that he “thought the problem would have been addressed.”758 Defendants have done no analysis to prove these assertions, which are not supported by the evidence.
First, the facts contradict Mr. Kipper’s assumption that the Medicaid over-utilization problem “had been addressed” prior to his analysis in this case. The Layering Report found that the average Medicaid costs in the adult homes it analyzed exceeded $27,000 per resident, a figure it termed “expensive” and indicative of “uncoordinated” and “unnecessary” services.759 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 costs in all the Adult 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 adult homes in 2002.760 The State Analysis found that twenty Adult Homes still had expenditures in excess of $27,000 per resident, and seven Adult Homes had costs exceeding $35,000 per resident – a 30% increase in costs since the release of the Layering Report.761 Looking at these numbers in connection with the longstanding “structural” problems identified in the Layering Report and other evidence of Medicaid over-
757 Defs. PFF ¶ 155; id. (citing D-440 at 162-63 (deposition of Walter Saureck, a former CQC official who worked on the Layering Report, who did not disagree with the observation of Ms. Schimke, a member of the Workgroup’s Payment Subcommittee, that the Layering Report may not be representative of all homes)). 758 Tr. 2833. 759 P-228 at CQC 96. 760 P-63 (State Analysis) DOH 131637. 761 Id.
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utilization, it is impossible to reconcile the facts with the assumption that these problems have been fixed.
The evidence also belies the assertion that the financial abuses are limited to a few isolated Adult Homes. As noted above, the Layering Report found that financial abuses existed in at least “the 11 largest adult homes in the greater New York City area,” Adult Homes that together “cared for about one-fifth of the total population of ‘impacted adult homes.’”762 Most of those Adult Homes continue to serve Adult Home residents to this day.763
b) The Dependency-Based Model of Adult Homes Contributes to Increased Medicaid Expenditures
Another reason Mr. Jones identified for the increased Medicaid expenditures in Adult Homes is the “dependency-based model” of care in Adult Homes, as compared to the “recoverybased model” of supported housing.764 He testified that the dependency-based model says “I’ll do it for you, I’ll bill Medicaid for it.”765 In contrast, the recovery-based model looks at people’s strengths: what they are capable of doing and how best to promote those strengths,766 maximizing an individual’s potential to become increasingly independent over time, reducing the amount of Medicaid-billable services. 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.767
762 See supra note 739. 763 See P-774 (2008 Census Report). 764 Tr. 1010-11, 3425-26, 3475-76. 765 Id. at 3476. 766 Id. at 3475. 767 Id. at 3476.
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According to Mr. Jones, “[i]t’s the difference between doing for and doing with.”768 He testified that in a dependency-based model, the same services recur and do not taper off over time: “[Y]our people are doing the same things for folks this year as they are doing next year.”769 For these reasons, the dependency-based model is another cause of the high Medicaid costs found in Adult Homes.
c) Increased Medicaid Costs in Adult Homes Are Not Attributable to the Characteristics of Adult Home Residents
The evidence demonstrates that the difference in Medicaid costs between Adult Homes and supported housing is not attributable to the characteristics of the persons living in the Adult Homes. The Layering Report, for example, shows that the problem is with the Adult Home system of care, not with the residents subject to the system. The Layering Report does not discuss any characteristics of Adult Home residents that would lead to high Medicaid costs. Rather, it 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.”770 According to the Layering Report, rather than being driven by the needs of Adult Home residents, 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.”771
768 Id. 769 Id. 770 P-228 (Layering Report) CQC 100. 771 Id.
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The State Analysis of the 2004-2005 comparative Medicaid data – a comparison of Adult Home residents with similarly-diagnosed residents of supported housing – also demonstrates that the increased costs are linked to the system of care, not the residents.772 Defendants’ expert, Mr. Kipper, agreed that the State Analysis “divide[d] [the two] populations into subgroups that had similar characteristics,” and that this was done “based on diagnosis codes in the Medicaid database.”773 Mr. Kipper also agreed that, on an average per-person basis, “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.”774 As noted above, the data shows plainly that for every category, the savings in supported housing were significant, ranging from $10,000 to $18,700 per person.775 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.776
Mr. Kipper pointed to the CQC’s Health Care Report as one source of his view that Adult Home residents had higher needs than residents of supported housing.777 The reference to that report, however, is misleading. The report compared the medical needs of Adult Home residents with the medical needs of the general population, not residents of supported housing.778 In fact, the report explained that its findings were not surprising, because people with serious psychiatric
772 See generally P-63 (State Analysis). 773 Tr. 2827-28. 774 Id. at 2830. 775 P-63 (State Analysis) DOH 131663-64. 776 See id. 777 Tr. 2789-92. 778 See D-385 (Health Care Report) 2-3 (noting that residents of impacted adult homes had higher incidences of certain disorders than “the general American population”).
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disorders “may [be] predispose[d] . . . to certain health risks” because of lifestyle choices, the psychotropic medications they take, and their limited incomes.779 These factors are not unique to Adult Home residents; they are generally applicable to persons with mental illness regardless of whether they are served in Adult Homes or supported housing. Nothing in the report indicates that Adult Home residents are a needier population than residents of supported housing.
In any event, as the court discussed at length above, the evidence demonstrates that there are no material differences between residents of Adult Homes and residents of supported housing, and whether a person with mental illness is placed in an Adult Home rather than in supported housing is not based on that person’s functional abilities or medical needs.780
d) When the Cost of Medicaid Is Properly Included, It Costs the State Less To Serve an Individual in Supported Housing than in an Adult Home
When Medicaid is properly included, it costs the State less to serve an individual in supported housing than in an Adult Home. After adding (1) the average Medicaid cost for a person in supported housing ($16,467) to (2) the amount of the supported housing stipend ($14,654) and (3) the amount of SSI paid for a resident of supported housing ($9,132), the total paid by the State and federal governments for a person in supported housing is $40,253 per year.781 The State’s share of the cost for a person in supported housing is 100% of the stipend ($14,654), half of the Medicaid ($8,234), and a portion of the SSI ($1,044), for a total State cost of $23,932.782 By contrast, after adding the Medicaid cost for a person in an Adult Home
779 Id. at 2-3. 780 See supra Part III.B.2.h; supra notes 362, 522. 781 P-773 (D. Jones Summary of Cost Evidence) 2; Tr. 3437-38 (D. Jones). 782 P-773 at 2.
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($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 per year.783 The State’s share of the cost is half of the Medicaid ($15,750) and a portion of the SSI ($8,328), for a total State cost of $24,078.784 This

data is summarized in Table 2:

Table 2: Supported Housing (“SH”) Average Per-Person Annual Costs Compared to Baseline Adult Home (“AH”) Average Annual Costs785

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

Source: P-773 at 2.

TOTAL

Adult Homes State N/A $15,750 $8,328 $24,078

Total N/A $31,530 $16,416 $47,946

When the cost of Medicaid is included, it saves the State of New York $146 per year to serve an individual in supported housing instead of an Adult Home.786 The overall cost is $7,693 less for the combined expenses of the State and federal governments.787

iii.

Defendants Ignore Other Relevant Costs of Adult

Homes

In addition to Medicaid costs, the State also incurs millions of dollars in additional expenses for Adult Home residents that it does not incur for residents of supported housing.788

783 Id. 784 Id. 785 Pl. PFF ¶ 212; P-773. The court has verified that P-773 accurately reflects the Medicaid data in P-63, the stipulated SSI costs for residents of supported housing and Adult Homes, and the stipulated amount of the supported housing stipend. 786 Id.; see also Tr. 3439 (D. Jones). 787 P-773 at 2. 788 Tr. 3439-40, 3459-60 (D. Jones); see generally P-773 at 3-12.
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Defendants have not included any of these costs in their analysis. The court finds such costs relevant to the comparative cost analysis in this case.
First, Defendants did not consider the cost of the Quality Incentive Payment (“QuIP”) program.789 The State has spent at least $28 million on QuIP since the program’s inception,790 $26.4 million of which has been spent since this lawsuit was filed.791 QuIP money is allocated as a funding subsidy to adult home operators statewide who “maintain compliance with DOH regulations.”792 QuIP funds are allocated to those adult homes that apply for and are awarded grants based on the number of SSI-eligible residents living in the home.793 Adult homes receiving grants under the QuIP program are authorized to use funds for capital improvements, such as new roofs or new furniture, and for training and education of adult home staff.794 QuIP money goes to adult home owners and operators, not to adult home residents.795 QuIP money is not designed to assist Adult Home residents in moving to more integrated settings; according to Mr. Wollner, who formerly held high positions at OMH and DOH, that “was not the intent of the legislation.”796
789 Tr. 2786-87 (Kipper); S-148 (D. Jones Rebuttal Report) 2-3; S-55 (Kipper Report) 9 n.6 (“Costs related to the QUIP program have not been included”); S-144 (Kipper Reply Report) 2-3; D-441 (Schaefer-Hayes Chart); Tr. 3381-82 (Schaefer-Hayes). 790 Tr. 16710, 1710 (Wollner); P-773 at 3-12. 791 P-773 at 3-12. 792 S-55 (Kipper Report) 5; see also S-148 (D. Jones Rebuttal Report) 2-3. 793 S-148 (D. Jones Rebuttal Report) 2. 794 Tr. 1708-09 (Wollner). Mr. Wollner acknowledged that there have been allegations that QuIP funds have not been put to their intended use, but instead have been used by some Adult Homes to subsidize operating expenses like workers’ compensation. (Id. at 1710.) 795 Tr. 1708-09 (Wollner). 796 Id. at 1608, 1709-10.
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Since this litigation began, DOH has distributed millions of dollars to the operators of the Adult Homes at issue in this litigation.797 DOH spent $4 million on QuIP in 2002-2003, of which $972,742 was distributed to Adult Homes at issue in this litigation.798 DOH allocated $6
million to QuIP in 2003-2004, of which $1,982,129 was spent in Adult Homes at issue in this litigation.799 DOH allocated $2.75 million to QuIP in 2005-2006,800 $2.75 million in 20062007,801 $5.5 million in 2007-2008,802 and $5.46 million in 2008-2009.803
Second, Defendants did not consider804 the substantial funds they have allocated for capital improvements and air conditioning in Adult Homes.805 In 2004-2005, the Legislature appropriated $1.5 million for an Infrastructure Capital Program.806 Six of the Adult Homes at issue in this litigation received Infrastructure grants.807 In 2006-2007, the State spent $2.8 million on air conditioning for adult homes.808 Nine of the Adult Homes at issue in this litigation received funds for air conditioning.809
797 P-773 at 3-12. 798 P-773 at 3; P-264 (QuIP Final Payment List 2002-2003). 799 P-773 at 4; P-263 (QuIP Final Payment List 2003-2004). 800 P-773 at 8. 801 Id. at 9; Tr. 1708 (Wollner). 802 P-773 at 11. 803 Id. at 12. 804 S-144 (Kipper Reply Report) 3; Tr. 2786-87 (Kipper); S-148 (D. Jones Rebuttal Report) 3; D-441 (SchaeferHayes Chart); Tr. 3381-82 (Schaefer-Hayes); Tr. 3460 (D. Jones). 805 P-773 at 3-12. 806 P-773 at 6; Tr. 1706-07 (Wollner); P-659 (“Dear Colleague” letter from David Wollner announcing the availability of funding under the ACF/Infrastructure Improvement Initiative). 807 P-773 at 6; see P-245 (DOH, ACF Infrastructure Improvements, List of Approved Applications). 808 P-773 at 9; see also Tr. 1709 (Wollner) (testifying that the State had spent $2 million). 809 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” (Apr. 25, 2007)).
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Third, Defendants did not consider810 the millions of dollars the State has spent on the EnAbLE program.811 The State spent $2 million on EnAbLE in 2004-2005, and three Adult Homes at issue in this litigation received grants.812 The State spent $2.75 million in 20052006,813 and $2.2 million in 2006-2007,814 of which $491,908 was allocated to Adult Homes at issue in this litigation.815 Additional funds were allocated for EnAbLE as part of a $6.55 million budget package in 2007-2008,816 and $3 million was allocated to the program in 2008-2009.817
Fourth, Defendants did not consider funds the State has invested in Adult Homes through OMH’s Case Management Initiative.818 This initiative was originally funded with $1.2 million in 2003-2004 to provide case management in three Adult Homes at issue in this litigation.819 The State allocated $1.275 million to case management in 2004-2005.820 In 2005-2006, the State allocated $5.25 million to case management.821 Mr. Wollner testified that the State has spent at
810 S-144 (Kipper Reply Report) 3; Tr. 2786-87 (Kipper); Tr. 3460 (D. Jones); S-148 (D. Jones Rebuttal Report) 3; D-441 (Schaefer-Hayes Chart); Tr. 3381 (Schaefer-Hayes). 811 See P-773 at 3-12; see supra Part IV.B.1.h (describing EnAbLE program). 812 P-773 at 6; see also P-244 (DOH, EnAbLE Program Grant Awards) (listing awards to Queens Adult Care Center, Park Inn, Rockaway Manor, and Ocean House). The award to Ocean House was made shortly before Ocean House was closed because of “very serious concerns as it relates to . . . 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. 1728 (Wollner).) 813 See P-773 at 8 (discussing allocation for “general adult home initiatives”); Tr. 1713 (Wollner). 814 P-773 at 9; see also Tr. 1713 (Wollner) (stating that $2.75 million was allocated). 815 P-773 at 9; D-135, D-136, D-137, D-138, D-139 (DOH letters notifying Adult Homes that EnAbLE grants have been approved). 816 P-773 at 11. 817 Id. at 12. 818 S-144 (Kipper Reply Report) 2; Tr. 2786-87 (Kipper); Tr. 3460 (D. Jones); S-148 (D. Jones Rebuttal Report) 2. 819 P-773 at 4-5. 820 Id. at 7. 821 Id. at 8; P-756 (Excerpt from 2005-2006 Enacted Appropriations Bill, S554-E/A554-C) 277 (appropriating $5.25 million for case management in Adult Homes); see also S-127 (OMH Aid to Localities 2005-2006 Enacted Budget –
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least $5.25 million per year since 2005 on the Case Management Initiative.822 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.823
Finally, Defendants did not consider824 an additional $2 million the State budget
allocated to various adult home initiatives in addition to the specific programs described above.825 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.”826 For example, the State
spent “a couple hundred thousand dollars” on medication management training for adult home staff.827 As Mr. Wollner testified, this program was not designed to help adult home residents to
learn how to self-administer medication; rather, it was necessary because of the nature of concerns about medication handling and storage by the staff.828
d. Defendants Contend That the Relief Would Impose Additional Costs but Provide Limited Factual Support for This Contention
Defendants contend that the relief would impose additional costs. They assert that DAI’s constituents would need additional support services in supported housing.829 They also assert
that administrative costs of assessing Adult Home residents and overseeing increased supported
Summary of Legislative changes) 1 (listing “no change” as to the Executive Budget Recommendation for case management in Adult Homes). 822 Tr. 1702-03\. 823 D-348 (2008-2009 Case Management Funding Models) (listing the cost to the state of a case manager serving 30 Adult Home residents as $47,744). 824 See generally D-398 (Kipper Chart); D-441 (Schaefer-Hayes Chart); S-55 (Kipper Report) 8-9. 825 P-773 at 4. 826 Id. at 8; P-756 (Excerpt from 2005-2006 Enacted Appropriations Bill, S554-E/A554-C) 76. 827 Tr. 1717 (Wollner). 828 Id. at 1718-19. 829 Defs. PFF ¶ 160.
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housing should be considered.830 Defendants further contend that, if DAI’s constituents moved to supported housing, the newly vacated Adult Home beds would be “backfilled” with other individuals with mental illness.831 As set forth below, Defendants have not provided sufficient evidence that these costs would be incurred or how much such costs would be.
i. Additional Support Services Defendants 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 housing.”832 Based on that assertion – despite ample testimony to the contrary833 – Defendants contend that “it is likely that many [Adult Home residents] would need the services of an ACT team.”834 Defendants also hypothesize that it is “very possible” that some Adult Home residents would need 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.”835 Defendants assert that a “new ACT team” costs $8,508 and an Intensive Case Manager costs $4,414, presumably per person per year.836 These assertions ignore the fact that there are current supported housing residents who already receive
830 Id. ¶ 222. 831 Id. ¶¶ 224-225. 832 Id. ¶ 160. 833 See, e.g., Tr. 83:24–84 (E. Jones) (concluding that “many people” in Adult Homes could move to supported housing with “little or no support”); Tr. 3072 (Groves) (testifying that Adult Home residents are “not a seriously impaired population in the vast majority”). 834 Defs. PFF ¶ 160. 835 Id. 836 Id. ¶ 160 (citing Tr. 3346; D-441 (Schaefer-Hayes Chart)).
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such services,837 the cost of which is already included in the Medicaid comparison between Adult Home residents and supported housing residents.838
In any event, while Defendants assert that it is “possible” that Adult Home residents might need additional services in supported housing, the evidence demonstrates that many Adult Home residents would not require extensive support services to live in supported housing. While ACT services are available to residents of supported housing, as noted above, there are no material differences between residents of Adult Homes and residents of supported housing.839 Even Defendants’ expert Dr. Geller conceded that 29% of current Adult Home residents in his sample could go to supported housing “without ancillary services.”840 There is no basis to assume that a higher percentage of Adult Home residents will require ACT services compared to the individuals who currently live in supported housing.
In addition, Defendants have not provided any analysis comparing the cost of ACT with the cost of the various mental health services those Adult Home residents currently receive, or the cost of services that supported housing residents without ACT teams receive. 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.”841 Thus, the evidence shows that residents with an ACT team will not be incurring the expense of other programs offered by the State. As OMH’s website explains, ACT services are
837 Tr. 223, 224, 237 (Tsemberis) (testifying that some Pathways tenants receive ACT, blended case management, and supportive case management); Tr. 2413–14 (Geller); P-286 (TSI RFP Response) OMH 42968. 838 See D-441 (Schaefer-Hayes Chart) (showing the Medicaid percentages the State pays)). 839 See supra Part III.B.2.h. 840 Tr. 2406. 841 Tr. 3462-63.
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carried out “at the locations where problems occur and support is needed rather than in hospital or clinic settings.”842 That shift in the locus of services means that costs formerly borne by the

State are avoided. As OMH itself has reported, “[s]tudies 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.”843 Thus, even if many of DAI’s constituents would

need ACT services, Defendants have not provided evidence demonstrating that such services

would be more costly.

ii.

Cost of Potential Assessments and Administrative Costs

Defendants assert that the cost of assessments of Adult Home residents should be

included in the cost analysis. They contend – without citation to evidence – that they will need

an outside contractor to conduct assessments and that the the cost will “undoubtedly” be more than the $1.3 million the State spent on the Assessment Project.844 Supported housing providers,

however, routinely do assessments as part of their work to identify the supports and services residents will require.845 Case managers in Adult Homes are already “expected” to assist Adult Home residents to move to more integrated settings.846 There is no evidence in the record that

the State would need to hire an outside contractor to conduct assessments.

842 S-97 (OMH website description of ACT) 1.
843 Id. (citation omitted); see also Tr. 3428-29 (D. Jones); P-725 (Substance Abuse & Mental Health Servs. Admin (“SAMHSA”) National Registry of Evidence-Based Programs & Practices (Nov. 2007)) 1, 5-6 (finding 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).
844 Defs. PFF ¶ 222.
845 See supra note 293.
846 See, e.g., Tr. 1500-02 (Madan); Tr. 1365-66 (Reilly).

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Defendants additionally contend that “increased administrative and staff costs for OMH of overseeing additional supported housing should also be considered.”847 There is no evidence

concerning whether such costs would be incurred or how much they might be.

iii.

There Is No Evidence That Potential “Backfill” Would

Increase the State’s Costs

While Defendants assert that the State’s costs would increase if beds vacated by Adult Home residents were “backfilled” by other individuals with mental illness,848 Mr. Kipper,

Defendants’ cost expert, testified that he had no opinion as to whether backfill would occur, and he did not include the potential for backfill in his analysis.849 Defendants did not offer any

evidence that backfill, if it were to occur, would result in increased costs to the State. Instead,

the evidence is to the contrary.

Defendants’ witnesses testified that the persons most likely to fill vacant Adult Home beds are homeless persons and persons being discharged from State psychiatric hospitals.850 The

evidence 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. Dr. Tsemberis testified that such “high users” of the mental health system are “in and out of psychiatric hospitals or detoxes” and in and out of shelters.”851 He

testified that, for example, that it costs the State an average of $40,000 per year in Medicaid

expenses alone to provide services to homeless persons with mental illness, and costs can be as

847 Defs. PFF ¶ 222. 848 Id. ¶ 224. 849 Tr. 2784-86. 850 See,e.g., Tr. 2156-57 (Newman); Tr. 3198-3200 (Myers); see also Tr. 2905 (Kaufman). 851 Tr. 292.

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high as $100,000 per year.852 This cost is higher than the average $31,530 in Medicaid expenditures for Adult Home residents.853 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.854
In any event, New York State has no obligation to insure that vacated Adult Home beds are backfilled. To the contrary, State law permits the State to regulate admissions to Adult Homes,855 and also permits the State to downsize or close Adult Homes for which there is no public need.856
e. The State Has Demonstrated Its Ability To Redirect Funds as Individuals Move from One Setting to Another
There is ample evidence in the record demonstrating the State’s ability to redirect funds as individuals with mental illness move from one service setting to another. When State hospitals have closed hospital beds, the New York State Community Reinvestment Act of 1993 has enabled the State to transfer money from the budget for State hospitals to the budget for OMH community services.857 In total, the State was able to redirect more than $210 million in savings from the closure of psychiatric hospital beds into community programs.858 In 2005,
852 Id. 853 See P-773 at 1-2. 854 Tr. 3372 (Schaefer-Hayes) (estimating that in 2007, the State saved $73,000 for each psychiatric center bed it closed); Tr. 3428-29 (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”). 855 N.Y. Soc. Servs. Law §§ 461(1), 461(2); N.Y. Comp. Codes R. & Regs. tit. 18 § 485.5(m)(1)(i). 856 N.Y. Soc. Servs. Law § 461-b; N.Y. Comp. Codes R. & Regs. tit. 18 § 485.5(m)(1)(i); see also Joint Stip. ¶ 5; Tr. 3047-48 (Hart). 857 Tr. 3261-63 (Schaefer-Hayes); S-150 (D. Jones Report) 22-23; Tr. 1947 (Newman); Tr.1613 (Wollner). 858 Tr. 1613 (Wollner); Tr. 3262-65, 3316 (Schaefer-Hayes); S-25 (Excerpt from New York State 2004-2005 Executive Budget, Appendix I: Agency Presentations re: OMH) EXEC 63-64 (describing reinvestment); accord S-
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OMH closed 100 beds in psychiatric centers and used the savings to fund 600 supported housing beds.859 OMH’s Chief Fiscal Officer, Ms. Schaefer-Hayes, testified that OMH has internally reallocated items in its budget in order to shift resources away from outdated programs to more effective programs,860 and has taken steps to maximize other funding sources, such as Medicaid.861 Both Ms. Schaefer-Hayes and Ms. Rosenberg testified that money can be transferred from one State agency to another when the need arises.862
Mr. Jones testified that New York can extricate itself from reliance on Adult Homes to serve persons with mental illness if it chooses to do so.863 While witnesses essentially agreed that no state has been able to provide subsidized housing for all its residents with mental illness,864 the relief sought here concerns individuals for whose housing and services the State already incurs significant costs. Ms. Rosenberg testified that sufficient supported housing could be created in New York for other needy groups as well as Adult Home residents, “because if
26 (Excerpt from New York State 2005-2006 Executive Budget, Appendix I: Agency Presentations re: OMH) EXEC 4823-24. 859 Tr. 3373; see also id. at 3370-71 (describing that reinvestment has been used to create supported housing). 860 Id. at 3315-18; see also S-150 (D. Jones Report) 27-28 (describing $10 million savings by OMH through implementation of the PROS program). 861 Tr. 3266 (Schaefer-Hayes). 862 Tr. 3370, 3395 (Schaefer-Hayes) (testifying that State money can be moved from DOH to OMH with the approval of the Legislature and the Governor); Tr. 731-32 (Rosenberg) (testifying that with proper coordination, money could be moved from the DOH budget to the OMH budget). 863 See Tr. 3477-78. 864 Tr. 1181 (D. Jones) (“I don’t know of any states that have reached where they want to be and where they would like to be”); Tr. 946 (Duckworth) (testifying that more resources could be put into community housing in Massachusetts); see also Tr. 3174-75 (Myers) (speculating that if OMH were to provide housing for the more than 350,000 individuals with serious and persistent mental illness in New York State, it would take more than OMH’s total budget).
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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.”865
f. Defendants Have Not Provided Sufficient Evidence That “Fiscal Difficulties” Have Limited OMH’s Ability To Develop Supported Housing
There is insufficient evidence to support Defendants’ contention that current fiscal difficulties have impacted OMH’s ability to develop supported housing.866 Defendants have provided testimony that OMH has suffered budget cuts of just under $100 million, that further cuts are “expected by October,” and that the demand for mental health services has increased.867 Ms. Schaefer-Hayes also testified that OMH has been given authority by the Division of the Budget to spend only twenty percent of appropriations for 2009 as of May.868 Defendants also point to the fact that some capital expenditures for the development of community housing have been “frozen” in the current budget cycle – that is, OMH was told to stop further development efforts for “capital projects where a site had not yet been identified.”869 DAI’s requested relief, however, 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, because supported housing consists of existing housing in the community.870
865 Tr. 772-73. 866 Defs. PFF ¶ 158. 867 Tr. 3245-47 (Schaefer-Hayes); Tr. 3156-57 (Myers). 868 Tr. 3303. 869 Defs. PFF ¶¶ 219-20; Tr. 1965-66 (Newman). No supported housing beds in the development pipeline have been frozen. (D-350 (OMH Community-Based Bed Chart (Mar. 31, 2009)) 4. 870 See, e.g., Tr. 2159-60 (Newman); see also Tr. 3483 (Jones) (testifying that supported housing providers are “using already existing housing.”).
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The record is devoid of evidence showing that the current fiscal difficulties have limited OMH’s ability to develop supported housing. OMH Commissioner Hogan testified on January 29, 2009 that “[r]esources appropriated in the 08-09 budget to develop supported housing will be used in part to expand the array of supported housing and in part to create a new and more flexible housing subsidy program during 2010-2011.”871 In fact, while this trial was ongoing, the State issued an RFP for 230 beds of new supported housing, with conditional awards to be made in July 2009.872
3. The Relief Would Not Adversely Impact Other Individuals with Mental Illness
The court heard extensive testimony about the wide range of services the State provides through its public mental health system, serving 600,000 New Yorkers with mental illness through approximately 2,500 licensed mental health programs.873 The court heard testimony and reviewed the documentary evidence about State-operated psychiatric hospitals, including forensic hospitals; the development of Secure Treatment facilities for sex offenders; OMH’s research and public education; and services to approximately 150,000 children with “emotional disturbance.”874 OMH Senior Deputy Commissioner Robert Myers testified that recent “financial pressures and loss of jobs” have resulted in an increased demand on mental health services funded by the State, and that “when there’s that kind of pressure on the mental health
871 D-182 (2009-2010 Mental Health Update & Exec. Budget Testimony) OMH 43467. 872 See P-748 (2009 RFP). As noted above, this RFP does not include Adult Home residents in the target populations. 873 Tr. 3164 (Myers); 3259 (Schaefer-Hayes). 874 See generally Tr. 3148-64 (Myers).
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system, there [are] also usually not additional resources to meet that demand because government doesn’t have the resources to expand services.”875
Defendants have not provided evidence sufficient to demonstrate, however, that the relief DAI requests would force them to cut back on services to other needy populations. As noted above, Mr. Kipper, who opined that serving Adult Home residents in supported housing would increase State costs, did not consider all relevant costs.876 In contrast, Mr. Jones showed convincingly based on his detailed analysis that serving Adult Home residents in supported housing instead of Adult Homes would not increase the State’s costs.877 Accordingly, the court finds that the evidence does not show that, if the requested relief were imposed, the State would have to cut programs or prejudice others who seek supported housing.878
4. DAI Provided Convincing Evidence That the State Is Capable of Expanding Its Supported Housing Program To Meet the Needs of Adult Home Residents
DAI provided convincing evidence that New York is capable of expanding its supported housing program to meet the needs of Adult Home residents. Mr. 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.”879 Dr. Tsemberis testified that Pathways to Housing has served people who have come from Adult Homes, that
875 See id. at 3156-57 (testifying that “it’s well known that as the economy worsens the demand for mental services increases”). 876 See supra Part IV.B.2.c. 877 See supra Part IV.B.2.c.ii.d. 878 See S-150 (D. Jones Report) 21-22; S-148 (D. Jones Rebuttal Report) 1-6. 879 See S-150 (D. Jones Report) 20-21; see also Tr. 656 (Rosenberg) (testifying that supported housing providers “know how to do it”); 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).
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they have done well in supported housing, and that Adult Home residents in general would do “very well” in supported housing.880 He also testified that if the State issued an RFP to provide
supported housing to Adult Home residents with mental illness, many agencies would apply to serve them.881
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.882
Mr. Jones testified that New York is capable of developing supported housing beds for Adult Home residents at a rate of approximately 1,500 per year for several years.883 In particular, he
testified that in response to the 2005 supported housing RFP for the 60-bed initiative, OMH received responses proposing to develop a total of 1,500 beds.884 He also testified that many supported housing providers have established working relationships with landlords.885 He noted
OMH’s history of taking on “big projects” such as the New York/New York Initiative to provide
supported housing for homeless individuals – that initiative planned for the development of
880 Tr. 282-83, 287. 881 Tr. 288-89. 882 Tr. 3477-78. 883 See id. at 3478-79, 3482-87. 884 Id. at 3478. 885 Id. at 3483.
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9,000 beds in its third phase alone.886 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.887
C. CONCLUSIONS OF LAW The court assumes familiarity with the analysis set forth in DAI I describing the components of the fundamental alteration defense. While the court noted on summary judgment that a comprehensive, effective Olmstead plan was not a necessary component of the defense or a prerequisite to considering the fiscal impact of the relief, it agreed with the Third Circuit’s approach that a state must make efforts to comply with the integration mandate to establish that the requested relief would be too costly. See DAI I, 598 F. Supp. 2d at 339. On summary judgment, the court made clear that at trial, it would consider evidence about the State’s efforts to comply with the integration mandate with respect to the Adult Home residents at issue together with evidence on the costs of prospective relief. Defendants argue that their “Olmstead plan is sufficient,” contending that they have established the defense on that basis alone.888 Plaintiff argues that Defendants have not shown a genuine attempt to comply with the integration mandate with regard to Adult Home residents, let alone a comprehensive and effective Olmstead plan, so the defense must fail on that basis alone.889 The parties dispute whether the requested relief would increase costs to the State or adversely affect others with mental illness.
886 Id. at 3487. 887 Id. at 3482-83. 888 Defs. PFF ¶¶ 235-40. 889 Pl. PFF ¶ 283.
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The court has considered all of the evidence concerning Defendants’ Olmstead plan and the fiscal impact of the requested relief, including its potential impact on other individuals with mental illness. As set forth below, the court concludes that Defendants have not demonstrated a comprehensive or effective plan to enable Adult Home residents to receive services in more integrated settings. Defendants’ efforts to comply with the integration mandate with respect to the Adult Home residents at issue do not meet any of the standards that other courts have articulated for Olmstead plans. Given the cost evidence in this case, however, the court need not render a conclusion as to whether the insufficiency of the plan is fatal to the defense. Defendants have not proven by a preponderance of the evidence that the requested relief would increase costs to the State; the weight of the evidence shows that it would actually cost less to serve DAI’s constituents in supported housing than in Adult Homes. Nor have Defendants proven that the requested relief would adversely affect other individuals with mental illness. Therefore, the court concludes that the relief Plaintiff seeks – expansion of the State’s existing supported housing program to accommodate Adult Home residents who desire to move to more integrated settings – does not constitute a “fundamental alteration” of the State’s programs and services.
1. Defendants Have Not Made a Genuine Commitment To Comply with the Integration Mandate with Respect to Adult Home Residents, Let Alone Implemented a Comprehensive and Effective Plan To Enable Adult Home Residents To Receive Services in More Integrated Settings
In Olmstead, the Supreme Court proposed that one way for a state to prevail on the fundamental alteration defense is to demonstrate that it already has a “comprehensive, effectively working plan” for placement 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.”
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Olmstead, 527 U.S. at 605-06.890 Following Olmstead, courts have held that an Olmstead plan
must communicate a commitment to integration “for which [the state] can be held accountable
by the courts.” Frederick L. I, 364 F.3d at 500. “General assurances” and expressions of “good
faith intentions” are not enough. Frederick L. v. Dep’t of Pub. Welfare (“Frederick L. II”), 422
F.3d 151, 158 (3d Cir. 2005).
In determining what constitutes a “comprehensive, effectively working plan”
contemplated by the Supreme Court in Olmstead, the Third Circuit has held that a plan must
have “reasonably specific and measurable targets for community placement.” Frederick L. II,
422 F.3d at 157. 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 authorities and the housing, transportation, care, and
education agencies to effectuate integration into the community.” Id. at 160. The Third Circuit
has held that an Olmstead plan is a necessary element of the fundamental alteration defense.
Frederick L. II, 422 F.3d at 157 (holding that, even where the relief would “constrain the state’s
890 In explaining the fundamental alteration defense, the district court in Martin v. Taft 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.” 222 F. Supp. 2d at 985. Defendants cite Martin to support their contention that they may “prevail if they have already provided a reasonable accommodation, without the need to prove a fundamental alteration.” (Defs. PFF ¶ 207.)
To the extent that Defendants suggest that a “reasonable accommodation” defense is distinct from the fundamental alteration defense, they misread Olmstead. Olmstead requires public entities to make reasonable modifications to their service systems to enable individuals with disabilities to receive services in integrated, community-based settings, unless doing so would constitute a fundamental alteration. Olmstead states that such an 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 that in order to demonstrate “reasonable accommodation,” a state must show either compliance with the integration mandate or that the relief requested would require unreasonable modifications to the state’s programs, i.e., a fundamental alteration. The court therefore considers Defendants’ evidence as to their “reasonable accommodation” as part of its analysis of the fundamental alteration defense.
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ability to satisfy the needs of other institutionalized patients,” the state could not avail itself of the defense without an Olmstead plan); Pennsylvania Protection & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (holding 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”).
The Ninth Circuit has interpreted the fundamental alteration defense more flexibly. It has allowed a state to prevail on the fundamental alteration defense by showing that it already has in place a comprehensive, effective plan – which includes the plaintiffs at issue – to move individuals from institutional facilities to community settings. 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.”) (internal citations omitted); ARC of Wash., 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.”) (citations omitted).
It is clear that Defendants have not demonstrated a comprehensive or effective plan to enable Adult Home residents to receive services in more integrated settings. To the contrary, Defendants have routinely and systematically excluded Adult Home residents from their efforts to comply with Olmstead and the integration mandate of the ADA and the Rehabilitation Act. Ample evidence supports the court’s conclusion.
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No witness testified about any plan, written or unwritten, to enable Adult Home residents to move to more integrated settings. Defendants’ witnesses testified that Adult Homes are considered permanent placements for individuals with mental illness. Defendants presented testimony from various State officials describing activities conducted by their respective agencies and divisions, many of which had no apparent connection to Adult Home residents, let alone any connection to enabling DAI’s constituents to receive services in the most integrated setting appropriate to their needs. Defendants’ lawyers assert that an Olmstead plan is not necessary for Adult Home residents. They nonetheless assert that Defendants’ programs and activities should be construed as a sufficient Olmstead plan for all people with disabilities, including Adult Home residents.891
While Defendants presented evidence that the State engages in Olmstead planning in a broad sense, such planning excludes Adult Home residents. The Most Integrated Setting Coordinating Council, 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. OMH engages in comprehensive strategic planning with its annual “5.07 plans,” but those plans do not discuss or address enabling Adult Home residents to receive services in the most integrated setting appropriate to their needs.
In recent years, Defendants have increased the overall amount of community housing beds, including supported housing beds. The evidence demonstrates, however, that Adult Home residents have been systematically excluded from the vast majority of those beds. Despite their
891 Defs. PFF ¶ 236.
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inclusion as a target population for supported housing for the first time in 2005, Adult Home residents have continued to be denied access to the program because other populations of persons with mental illness have received higher priority. The State’s most recent supported housing RFP does not include Adult Home residents among the target groups. Beyond the 60 supported housing units allocated to Adult Home residents by the Legislature, a one-time initiative imposed on OMH, only about 30 of the approximately 4,300 residents of the Adult Homes at issue have obtained supported housing, and only about 65 residents have moved to other forms of OMH community housing. In addition, because of objections raised by OMH, the Governor vetoed a bill that would have required OMH to maintain a waiting list for community housing. 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 to enable Adult Home residents to receive services in the most integrated setting appropriate to their needs.
Defendants license and/or fund certain programs targeting Adult Homes, such as the EnAbLE program and the OMH Case Management Initiative. The evidence shows, however, that these programs have not meaningfully aided Adult Home residents to move to more integrated settings. There is no evidence that any Adult Home resident has moved to supported housing as a result of the EnAbLE program. The OMH Case Management Initiative is limited in scope to less than half of the Adult Homes at issue, and the evidence demonstrates that only a few residents in Adult Homes with OMH-funded case managers have actually moved to supported housing. While the Case Management Initiative has helped some Adult Home residents apply for supported housing, it cannot, alone or in combination with the other elements
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of Defendants’ asserted plan, constitute a comprehensive or effective plan to enable Adult Home residents to receive services in more integrated settings.
Finally, to the extent that Defendants have data about the housing needs and desires of Adult Home residents, they do not use it to identify or move Adult Home residents to more integrated settings. Defendants have not used the Assessment Project data to move Adult Home residents, and to the extent that Defendants sent the assessments of some Adult Home residents to case managers or providers for “follow up,” there is no evidence that the data has actually been used to enable Adult Home residents to move to more integrated settings, or in connection with Defendants’ strategic planning. Similarly, Defendants simply ignored the recommendation of the Adult Care Facilities Workgroup that 6,000 adult home residents statewide be moved to more integrated settings.
Defendants contend that they should prevail on the fundamental alteration defense because their “‘Olmstead plan’ is sufficient,” citing Sanchez and ARC of Washington.892 The evidence Defendants put on at trial does not demonstrate any such “working plan.” The plaintiffs in Sanchez and ARC of Washington were individuals with developmental disabilities. In Sanchez, the plaintiffs resided in institutional facilities called “developmental centers.” Sanchez, 416 F.3d at 1066. In Sanchez, the defendants had developed individualized community placement plans to move individuals residing in developmental centers to community residential settings. Id. at 1064-66. 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 people with developmental disabilities living in developmental centers from 6% of the
892 Defs. PFF ¶¶ 235-40.
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population with developmental disabilities to 2% of that population. Id. at 1066. The court concluded that the “requested relief would require us to disrupt this working plan,” and thus constituted a fundamental alteration. Id. at 1068.
Here, in contrast to Sanchez, Defendants have not developed a plan to move DAI’s constituents to community-based settings, and there has been no reduction in the percentage of people with mental illness receiving services in Adult Homes. Unlike in Sanchez, Defendants have not developed individualized community placement plans that, among other things, identify the supports necessary to enable residents to live successfully in the community. Defendants concede that they do not assess Adult Home residents, and argue that requiring them to do so would be a “fundamental alteration.”893 They have not shown anything comparable to what the defendants in Sanchez demonstrated to prevail on the defense.
Similarly, in ARC of Washington, which challenged the size of the state’s Medicaid waiver program to provide non-institutional care for people with disabilities, the defendants had implemented a plan to enable persons with developmental disabilities to move to the community. This plan included the maintenance of a waiting list, which ensured that “all Medicaid-eligible disabled persons will have an opportunity to participate in the program once space becomes available, based solely on their mental-health needs and position on the waiting list.” 427 F.3d at 621. Defendants have no such plan here.
Thus, while the Ninth Circuit has noted that federal courts should be “sympathetic” to fundamental alteration defenses, Sanchez, 416 F.3d at 1067, it upheld existing plans that were comprehensive, detailed, and most importantly, “effectively working.” Here, unlike in Sanchez
893 Defs. PFF ¶ 230.
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and ARC of Washington, where the defendants’ efforts to enable individuals to receive services in more integrated settings applied to the people whose rights were at issue in those cases, Defendants have no plan that includes moving Adult Home residents.
Defendants’ activities, initiatives, and programs, viewed alone or as a whole, do not amount to an Olmstead plan for Adult Home residents. While the court need not determine whether an Olmstead plan must have the specific elements that the Third Circuit listed in Frederick L. II, such as a time frame for discharge and the approximate number of individuals to be discharged during each period, at the very least, an Olmstead plan requires a “reasonably specific and measurable commitment to deinstitutionalization” for which the State “may be held accountable.” Frederick L. II, 422 F.3d at 157. Even if the State’s actions are viewed as some effort to comply with the integration mandate, Defendants have not come close to demonstrating such a commitment. They have certainly not shown a “comprehensive, effectively working plan” with a waiting list to move people to “less restrictive settings,” as the Supreme Court proposed in Olmstead. 527 U.S. at 605-06.
Defendants do not even assert that they are addressing the segregation of DAI’s constituents in Adult Homes at any systemic level. They have excluded Adult Home residents from the Most Integrated Setting Coordinating Council’s Olmstead planning. They contend, contrary to the overwhelming weight of the evidence, that the large, institutional Adult Homes are “the most integrated settings” for DAI’s constituents. This court has found otherwise. Whatever limited steps the State has taken to enable Adult Home residents to receive services in community housing have not been effective: very few Adult Home residents have actually moved to supported housing or any other form of OMH community housing. It is clear that
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Defendants have no comprehensive or effective plan to enable Adult Home residents to receive services in more integrated settings.894
Defendants have violated the integration mandate of the ADA and Rehabilitation Act, and have failed to show a genuine commitment to compliance for which they can be held accountable. The court need not determine whether the fundamental alteration defense fails solely on this basis. As discussed below, Defendants fail to excuse their failures to comply with the integration mandate by showing that compliance would be prohibitively expensive. In fact, they have not proven that serving DAI’s constituents in supported housing would increase the State’s costs or limit the State’s ability to provide services for other individuals with mental illness.
2. Defendants Failed To Prove That the Requested Relief Would Increase the State’s Costs or Limit the State’s Ability To Provide Services to Other Individuals with Mental Illness
The fundamental alteration standard set forth under Olmstead permits a state to demonstrate 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 receives, allots for spending, and/or spends on services and programs for individuals with mental illness. DAI I, 598 F. Supp. 2d at 350. In this case, the resources available to the State include funds that OMH, DOH, the Governor, or the
894 To the extent Defendants assert that their actions constitute a “reasonable accommodation” for Adult Home residents seeking to receive services in the most integrated setting, see supra note 890, their limited efforts are insufficient, whether viewed as a “reasonable accommodation” or as part of a plan to comply with the integration mandate of the ADA and the Rehabilitation Act.
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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. (noting 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”).
Defendants have failed to meet their burden to show that the requested relief would increase costs or limit the State’s ability to provide services to other individuals with mental illness. As OMH’s Chief Fiscal Officer Martha Schaefer-Hayes testified, OMH has not done any analysis to determine the financial impact of creating supported housing beds specifically for Adult Home residents. Defendants’ cost expert, Mr. Kipper, failed to consider a number of relevant costs associated with providing services to people with mental illness in Adult Homes, including Medicaid costs. By contrast, DAI presented ample and persuasive evidence demonstrating why Medicaid costs are significantly higher in Adult Homes than in supported housing, and that the increased cost of Medicaid in Adult Homes is attributable to the nature of the Adult Home system of care rather than the characteristics of the Adult Home residents. As Mr. Jones’s analysis showed, when the cost of Medicaid services for individuals in Adult Homes and supported housing is properly considered, the annual cost to the State of serving an Adult Home resident in supported housing is on average $146 cheaper than the cost of serving that resident in an Adult Home.
In addition to the savings in Medicaid costs that would result if Adult Home residents moved to supported housing, the State spends millions of dollars on programs and services for
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Adult Homes. For example, the State has spent more than $28 million on the QuIP program, which is used to subsidize capital improvements in adult homes statewide, including a number of the Adult Homes at issue in this litigation. QuIP funds are allocated to those adult homes that apply for and are awarded grants based on the number of SSI-eligible residents living in the home. In addition, the State has spent millions of dollars on the Infrastructure Capital Program, on the EnAbLE program, on air conditioning for homes, and on the Case Management Initiative. Mr. Kipper’s analysis ignores all of these costs. Although these costs are not as easily analyzed on a per-person basis, 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.
Defendants assert that the court should not consider what the State spends on Adult Home programs such as QuIP, EnAbLE, and the Case Management Initiatives, because even if the residents at issue move to supported housing, Adult Homes are likely to remain full due to backfill.895 The court rejects this contention. First, Mr. Kipper did no analysis as to whether backfill would occur and what the resulting costs would be. Defendants’ witnesses suggested that the individuals most likely to backfill Adult Home beds are those coming from homeless shelters and psychiatric hospitals. Plaintiff has shown that if Adult Home beds were backfilled with such individuals, who are “high users” of the mental health system, it would likely cost the State less to serve them in the Adult Homes than in their current settings. The State spends an average of $40,000 per year in Medicaid expenses alone to provide services to homeless persons
895 Defs. PFF ¶ 227.
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with mental illness, and it is undisputed that psychiatric inpatient facilities are the most expensive treatment setting.
Second, the State has no obligation to insure that vacated Adult Home beds are backfilled. To the contrary, State 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. See N.Y. Soc. Servs. Law § 461-b; N.Y. Comp. Codes R. & Regs. tit. 18 § 485.5(m)(1)(i). Olmstead recognized that states may not be “able to take advantage of the savings associated with the closure of institutions” because the need for institutions may remain. Olmstead, 527 U.S. at 604, 605 (explaining that “some individuals . . . ‘may need institutional care from time to time to stabilize acute psychiatric symptoms’”) (citations omitted); accord Williams v. Wasserman, 164 F. Supp. 2d 591, 636 (D. Md. 2001). As DAI points out, the evidence demonstrates that Adult Homes do not serve the purpose of providing the care and treatment of acute psychiatric symptoms. Indeed, the State prohibits Adult Homes from admitting or retaining anyone who suffers from a mental disability warranting placement in a psychiatric hospital or other inpatient psychiatric setting. See N.Y. Comp. Codes R. & Regs. tit. 18 § 487.4(b)(2). In any event, Adult Homes were not designed to be treatment settings for people with serious mental illness; instead, they filled a void caused by the unavailability of communitybased housing.
Defendants also argue that funds spent on Adult Home programs should not be considered because they are “not entitlements like SSI, issued to each resident separately.”896 This argument is without merit. The evidence demonstrates that the State has expended tens of
896 Defs. PFF ¶ 227.
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millions of dollars on adult homes, a portion of which has gone to the Adult Homes at issue in this case.897 It does not matter that these funds are not issued “separately” to each resident. The State spends these significant sums solely on adult homes, so they are relevant to a consideration of the costs here.
In addition, there is insufficient evidence regarding other potential costs that Defendants contend should be included in the analysis – namely, “additional services” that Adult Home residents might need in supported housing, assessments of Adult Home residents, and administrative costs. Defendants did not provide evidence that the State would incur such costs, or how much such costs would be.
Defendants cite Frederick L. I, 364 F.3d at 497, for the proposition that the State’s budget process is “beyond judicial scrutiny.” In Frederick L. I, however, the plaintiffs sought an injunction requiring a 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. Here, however, Defendants have not pointed to State laws, regulations, or guidelines that would limit the funding of the relief DAI requests. In addition, unlike in Frederick L. I, DAI does not request that Defendants expend new funds until all of DAI’s constituents are served in supported housing. The relief DAI seeks is a restructuring of the way that Defendants currently administer and fund their programs – the relief requires shifting funds
897 Tr. 3460 (D. Jones).
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Defendants already spend serving DAI’s constituents in Adult Homes to serve them in community settings.
The evidence demonstrates that the relief DAI seeks could be accomplished by redirecting funds currently being spent on Adult Home residents in Adult Homes to serve those same individuals in supported housing. While Defendants also contend that, according to Frederick L. I, a court may not order a state to “shift[] funds from other programs to fund additional community placements,” 364 F.3d at 497, Frederick L. I only prohibits “fund-shifting that would disadvantage other segments of the mentally disabled population.” 364 F.3d at 497. Because the relief requested here would actually save the State money, it will not interfere with Defendants’ ability to serve other individuals with mental illness.
Finally, Defendants contend that the State is undergoing “a severe economic crisis this year, which has resulted in budget cuts and freezing the development of a number of units of mental health housing.”898 In Frederick L. I, the Third Circuit, vacating the district court’s decision and remanding for further proceedings, agreed with the plaintiffs “that states cannot sustain a fundamental alteration 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 Authority, 335 F.3d at 1182-83, 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, 328 F.3d at 520). As the Tenth Circuit observed, Congress was clearly aware when it passed the ADA that “[w]hile the integration of people with disabilities will sometimes involve substantial
898 Defs. PFF ¶ 220.
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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. In any event, Defendants did not present any evidence showing a nexus between the current state of the economy and the specific relief DAI seeks. They have not shown that current economic circumstances have impacted the State’s ability to develop supported housing, which requires no outlay of capital. On the contrary, during the trial in this case, Defendants issued an RFP to develop new units of supported housing.
In sum, the court finds that Defendants have not shown that the requested relief would increase the State’s costs. Accordingly, the requested relief will not limit Defendants’ ability to provide services to other individuals with mental illness.
3. The Requested Relief Would Not Alter the Nature of the Services That Defendants Currently Provide
On summary judgment, 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.’” DAI I, 598 F. Supp. 2d at 335. Here, the evidence at trial established that Defendants’ supported housing program successfully serves individuals with the same support needs as DAI’s constituents.
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Defendants assert that they cannot serve DAI’s constituents in supported housing without “altering the nature” of their programs.899 They contend that the requested relief would: (1) force Defendants to create “a new program” to “assess and place” Adult Home residents in supported housing; (2) alter the purported “minimal needs” requirement of supported housing; (3) provide an “entitlement to one particular type of State subsidized housing for all individuals with mental illness who desire it,” and require the State to abandon its alleged “linear continuum” approach; (4) prevent the State from considering the needs of other populations needing mental health services and “violate Olmstead’s admonishment” that a “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”; and (5) alter the nature of the ACT program.900 The evidence does not support Defendants’ assertions. To the contrary, the evidence shows that DAI’s constituents could be appropriately served by the State’s existing supported housing program and would require no more than meaningful access to the successful programs Defendants already have in place.
First, this court has already rejected the proposition that the requested relief would fundamentally alter the State’s programs merely because it would require Defendants to “assess and place” Adult Home residents in a more integrated setting. DAI I, 598 F. Supp. 2d at 335 (holding that “assessing and moving” plaintiffs to integrated setting in which the state already provides services to others not a fundamental alteration). Indeed, Defendants’ claim that assessments would fundamentally alter the State’s current programs is essentially an admission that it has no functioning Olmstead plan for Adult Home residents. See Frederick L. v. Dep’t of
899 See Defs. PFF ¶¶ 230-34. 900 Id.
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Welfare, 157 F. Supp. 2d at 540 (noting that “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”). In addition, the evidence at trial showed that supported housing providers routinely assess which supports individuals moving to their supported housing programs will need.
Second, DAI has conclusively shown – through OMH’s own RFPs, among other evidence – that OMH does not recognize a “minimal needs” requirement for supported housing. To the contrary, OMH targets populations such as “long stay” residents of psychiatric hospitals, who are likely to have significant support needs. 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.
Third, DAI does not seek an “entitlement” to a particular type of housing that would involve abandoning the “linear continuum” approach. Regarding an “entitlement,” DAI seeks an order requiring that its constituents, who already receive mental health services funded by the State, have an opportunity to receive those services in the most integrated setting appropriate to their needs. This is what Olmstead requires. DAI has shown that the State administers and funds its programs in a way that has systematically denied DAI’s constituents the opportunity to receive services in the most integrated setting. As for Defendants’ contention that placing Adult Home residents in supported housing would require them to abandon the “linear continuum,” the evidence demonstrates that OMH has already abandoned the continuum approach to serving individuals with serious mental illness. As Defendant OMH Commissioner Michael Hogan testified before the Legislature, OMH has moved to a model of “long term” housing “linked to
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flexible services that can be increased or decreased as needed.”901 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.
Fourth, Defendants’ argument that granting relief in this case will prevent Defendants from “consider[ing] the needs of all State residents with mental illness” is premised on the false assumption that the relief would increase costs to the State. Defendants failed to prove that serving Adult Home residents in supported housing would divert money from services to other individuals with mental illness. Defendants’ citation to the language in Olmstead that a court cannot order displacement of persons “at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions” defies reason. Defendants have no wait list whatsoever for OMH community housing, and Adult Home residents have had little meaningful access to supported housing beds. Aside from the 60-bed legislative set-aside, only about 30 Adult Home residents have moved to supported housing since January 2000.
To the extent that Defendants’ invocation of Olmstead could be construed as an argument that a “set-aside” would be a fundamental alteration, Defendants regularly use set-asides to allocate supported housing beds to particular target populations, including homeless individuals with mental illness (for whom OMH has designated 9,000 beds of community housing), individuals with mental illness discharged from prisons or psychiatric facilities, and in the case of the 60-bed legislative set-aside, Adult Home residents. As the court held on summary judgment, “[t]hat 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
901 P-590 (Comm’r Hogan Testimony) 4.
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alteration’ of their programs and services.” DAI I, 598 F. Supp. 2d at 355-56; see also Messier, 562 F. Supp. 2d at 344-45 (noting that the defendant agency’s “public commitment to further enhancing a system of community placement” was “entirely inconsistent with its fundamental alteration claim”).
Finally, Defendants assert that the relief sought by DAI would alter the “nature and eligibility requirements” of the ACT program. The evidence demonstrates that OMH’s statewide ACT guidelines contain broad eligibility criteria that would plainly cover any Adult Home residents who have high needs. Although OMH uses the “more stringent” CUCS 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, the evidence demonstrates that not many Adult Home residents would require ACT services in order to be served in supported housing. In addition, as Mr. Jones testified, there may well be Adult Home residents who would be qualified for ACT under the New York City guidelines.
The evidence at trial demonstrates that New York’s supported housing providers successfully serve individuals who are not materially different from DAI’s constituents. The evidence does not prove that serving DAI’s constituents in supported housing would require significant changes to any of the State’s programs and services.
As set forth above, Defendants have failed to prove that the requested relief would constitute a fundamental alteration. They have not shown that the requested relief would increase costs, limit the State’s ability to provide services to others with mental illness, or fundamentally alter the State’s existing programs and services. Nor have Defendants
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demonstrated a genuine commitment to compliance with the integration mandate of the ADA and Rehabilitation Act with respect to Adult Home residents. Accordingly, their defense fails.
In sum, the evidence at trial establishes 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 unopposed to receiving services in a more integrated setting; and (3) the relief sought by DAI will not work a fundamental alteration of the State’s mental health service system. DAI is entitled to declaratory and injunctive relief. The court will issue an Order and Judgment once it determines the appropriate injunctive remedy. V. DOH AND COMMISSIONER DAINES ARE PROPER DEFENDANTS
In their Proposed Findings of Fact and Conclusions of Law, Defendants contend that, because DAI withdrew its claims based on Defendants’ failure to take adequate measures to redress poor conditions in impacted Adult Homes, DOH and Commissioner Daines should be dismissed from the action.902 As the court noted during trial, this case is not about whether DOH is fulfilling its obligations to enforce the State regulations governing the conditions in Adult Homes.903 DOH and Commissioner Daines remain proper defendants for purposes of DAI’s Olmstead claims, however, because they are necessary to afford DAI full relief. 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.904 The court thus declines to
902 Defs. PFF ¶ 241. 903 See Tr. 3050-51. 904 As set forth above, DOH is responsible for promoting sufficient and appropriate residential care programs for dependant adults and can revoke operating certificates for particular Adult Homes if doing so would conserve resources. 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 . . . which may serve as alternatives or substitutes for the whole or any part of a facility . . . .” N.Y. Soc. Servs. Law § 461-b; see N.Y. Comp. Codes R. & Regs. tit. 18 § 485.5(m)(1)(i). To support the reallocation of
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dismiss these defendants from this case. See Fed. R. Civ. P. 21 (providing that the court has discretion to drop a party from an action “on such terms as are just”). VI. REMEDY
DAI has proven that it is entitled to declaratory and injunctive relief. In determining the scope of injunctive relief, the court must give appropriate consideration to principles of federalism, as “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) (quoting Ass’n of Surrogates v. New York, 966 F.2d 75, 79 (2d Cir.), modified, 969 F.2d 1416 (2d Cir. 1992)). 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” to assure compliance with the law. Dean v. Coughlin, 804 F.2d 207, 213-14 (2d Cir. 1986). Nevertheless, the Supreme Court has held that where 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)) (addressing race discrimination in violation of the U.S. Constitution); see Ass’n of Surrogates, 966 F.2d 75, at 79. 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
resources from Adult Homes to supported housing, DOH may need to certify fewer Adult Home beds. Additionally, a number of the actions that will likely be required to effect relief in this case will occur in or require coordination with the Adult Homes. Because DOH regulates the Adult Homes, its participation in the relief may be necessary to ensure these actions can be carried out. DOH’s participation may also be necessary in order to reallocate certain funds, such as QuIP money, from the Adult Homes in order to finance the relief.
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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). A remedial order must therefore “strike a balance” between the court’s obligation to identify and take steps toward the elimination of the legal violations and the state’s right to administer its own facilities or systems. Dean, 804 F.2d at 214. “[T]he state should be given responsibility to devise and carry out a plan to come into compliance in the manner directed by the court.” Id.
Plaintiff seeks a permanent injunction against the Office of Mental Health, the Department of Health, and the individual Defendants in their official capacities, directing them 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 Adult Homes in New York City with more than 120 beds – to receive services in the most integrated setting appropriate to their needs.905 Plaintiff requests that these steps include the expansion of supported housing and the end of practices that steer individuals with mental illness into Adult Homes instead of supported housing.906 Plaintiff requests that the court order Defendants to develop a plan that will enable DAI’s constituents to receive services in the State’s supported housing program.907
Plaintiff’s proposed relief would require Defendants to provide a plan conforming to ten guidelines.908 These proposed guidelines include a four-year transition period, by the end of which Defendants would achieve the following goals: (1) all current Adult Home residents who
905 Pl. PFF ¶¶ 295-96. 906 Id. 907 Id. ¶ 297. 908 Id. ¶ 298.
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desire placement in supported housing have been afforded such a placement if qualified; (2) all future Adult Home residents – including individuals admitted to the Adult Homes both during and after the four-year transition period – who desire placement in supported housing are afforded such a placement if qualified; and (3) 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 in supported housing.909
Plaintiff’s guidelines would require the development of 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, ensuring that no fewer than 4,500 supported housing beds are developed.910 Plaintiff’s guidelines would also require Defendants to take steps with respect to selecting supported housing providers, treating DAI’s constituents as eligible for supported housing unless they possess certain enumerated characteristics, educating DAI’s constituents about supported housing, transitioning Adult Home residents to supported housing, and reviewing housing preferences on a regular basis.911 Plaintiff’s proposed guidelines would require detailed descriptions of the responsibilities of the different State agencies and Defendants in carrying out the plan and a timeline for accomplishing all aspects of the plan.912 Finally, pursuant to Rule 53 of the Federal Rules of Civil Procedure, Plaintiff seeks appointment of an
909 Id. 910 Id. 911 Id. 912 Id.
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impartial Special Master selected by agreement of the parties to monitor and facilitate compliance with the injunction.913
Defendants request that they be given an opportunity to propose a remedial plan.914 They point out that a district court was previously found to have exceeded its authority in ordering detailed injunctive relief without first giving the state an opportunity to present its own remedial plan. Schwartz, 86 F.3d at 319; cf. Fisher v. Koehler, 902 F.3d 2, 3 (2d Cir. 1990) (per curiam) (affirming a district court’s injunctive remedy where the court consulted with the parties, reviewed New York City’s remedial plan, and accepted the plan with modifications to ensure constitutional compliance). Consistent with this authority, the court will not issue an injunction in this action without first providing Defendants an opportunity to propose a remedial plan.
Accordingly, Defendants shall propose a remedial plan consistent with these Findings of Fact and Conclusions of Law no later than October 23, 2009. In addition to proposing a remedial plan, to the extent that Defendants object to particular elements of Plaintiff’s proposed relief, including the specific language used, Defendants shall submit written objections stating the basis for the objections. Plaintiff shall respond to Defendants’ proposed remedial plan no later than November 8, 2009, and shall similarly indicate written objections to Defendants’ proposed relief. The court will not award relief until it has had an opportunity to consider the submissions of both sides.
913 See id. ¶¶ 299-302. 914 Id. ¶¶ 242, 245.
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VII. CONCLUSION

DAI has proven that Defendants have discriminated against DAI’s constituents in

violation of the integration mandate of the Americans with Disabilities Act and the

Rehabilitation Act. In carrying out their administration of New York’s mental health service

system, 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. DAI

has proven that the large, impacted Adult Homes at issue are not the most integrated setting

appropriate to the needs of DAI’s constituents, especially compared to supported housing, in

which individuals with mental illness live in apartments and receive flexible support services as

needed. DAI has also proven that virtually all of DAI’s constituents are qualified to receive

services in supported housing and are unopposed to receiving services in a more integrated

setting. Defendants have failed to prove that the relief DAI seeks would constitute a

“fundamental alteration” of the State’s mental health service system. Accordingly, DAI is

entitled to declaratory and injunctive relief. Following additional briefing from the parties, the

court will issue a separate Order and Judgment once it determines the appropriate injunctive

remedy.

SO ORDERED.

Dated: Brooklyn, New York September 8 , 2009

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

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APPENDIX OF ACRONYMS

ACT

Assertive Community Treatment

AOT

Assisted Outpatient Treatment

CDT

Continuing Day Treatment

CQC

New York State Commission on the Quality of Care for and Advocacy for

Persons with Disabilities

CUCS

Center for Urban Community Services

CR-SRO Community Residence-Single Room Occupancy

DOH

Department of Health

EnAbLE Enhancing Ability and Life Experience Program

FEGS

Federation of Employment and Guidance Services, Inc.

HAI

Hospital Audiences, Inc.

HRA

Human Resources Administration

IPRT

Intensive Psychiatric Rehabilitation Treatment

MISCC

Most Integrated Setting Coordinating Council

OMH

Office of Mental Health

PACT

Programs of Assertive Community Treatment

PNA

Personal Needs Allowance

PROS

Personalized Recovery-Oriented Services

QuIP

Quality Incentive Payment Program

RFP

Request for Proposals

SAMHSA Substance Abuse and Mental Health Services Administration

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SPMI SPOA SRO SSI SSDI

Severe and Persistent Mental Illness Single Point of Access Single Room Occupancy Supplemental Security Income Social Security Disability Insurance

210

 
 Case: 10-235 Document: 274 Page: 1 10/06/2010 120368 105
10-235-cv (L)
Nos. 10-235-cv (L), 10-767-cv (con), 10-251-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, INC., and (See inside cover for continuation of caption) ___________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK ___________________
BRIEF FOR THE UNITED STATES AS APPELLEE ___________________
THOMAS E. PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General
JESSICA DUNSAY SILVER TERESA KWONG Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403
Washington, D.C. 20044-4403 (202) 514-4757

Case: 10-235 Document: 274 Page: 2 10/06/2010 120368 105
(Continuation of caption) EMPIRE STATE ASSOCIATION OF ASSISTED LIVING, Movants-Appellants and
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

Case: 10-235 Document: 274 Page: 3 10/06/2010 120368 105
TABLE OF CONTENTS PAGE
PRELIMINARY STATEMENT ...............................................................................1 STATEMENT OF THE ISSUES...............................................................................3 STATEMENT OF THE CASE..................................................................................3
1. Background ...........................................................................................3 a. The Parties ..................................................................................3 b. Adult Homes................................................................................8 c. Supported Housing....................................................................11
2. District Court Proceedings .................................................................15 a. Summary Judgment Decision....................................................15 b. Liability Decision......................................................................16 c. Order Denying Intervention......................................................21 d. Remedial Order.........................................................................24
SUMMARY OF ARGUMENT ...............................................................................25 ARGUMENT
I THE UNNECESSARY SEGREGATION OF INDIVIDUALS WITH DISABILITIES IN ADULT HOMES IS A FORM OF DISCRIMINATION PROHIBITED BY TITLE II OF THE ADA, SECTION 504 OF THE REHABILITATION ACT, AND THEIR IMPLEMENTING REGULATIONS...........................28

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TABLE OF CONTENTS (continued):

PAGE

A. Because The State Provides Services To DAI’s Constituents In Segregated Adult Homes, Rather Than The More Appropriate And Integrated Alternative Of Supported Housing, The State Violates Title II And Section 504................................................................................28

B. The State Requires DAI’s Constituents To Live In Segregated Adult Homes As A Condition For Receiving Residential Services ..................................................................33

C. Plaintiffs Challenge The Provision Of Residential Services In Segregated Settings, Not The “Level Of State-Funded Benefits” .............................................................36

D. The Coalition’s Additional Arguments Do Not Warrant Reversal ......................................................................38

II THE DISTRICT COURT CORRECTLY HELD THAT THE STATE FAILED TO PROVE A FUNDAMENTAL ALTERATION DEFENSE .................................................................44

A. Moving DAI’s Constituents From Adult Homes To Supported Housing Would Work Only A Reasonable Modification ..............................................................................45

B. Defendants Have Not Carried Their Burden To Show A Fundamental Alteration.........................................................46

1. The District Court Did Not Clearly Err In Finding That The State Will Save Money On Net By Placing Adult Home Residents In Supported Housing .........................................................47

2. The State’s Fiscal Difficulties Provide No Basis For Rejecting A Remedy That Will Actually Save The State Money .............................................................52
- ii -

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TABLE OF CONTENTS (continued):

PAGE

3. The State Did Not Establish That It Has A Comprehensive, Effectively Working Plan To Move Adult Home Residents Into Integrated Settings ............................................................................ 54

C. The State’s Supported Housing Program Is Not Limited To Those Who Need “Minimal” Services.................................56

III THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN CONCLUDING THAT THE REMEDIAL ORDER IS NARROWLY TAILORED TO THE STATE’S VIOLATION.......................................................58

IV THE DISTRICT COURT CORRECTLY HELD THAT DAI HAS STANDING .......................................................................65

A. DAI Has Standing .....................................................................65

B. The United States Has Standing To Continue Litigating This Action ................................................................................77

V THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE COALITION’S MOTION TO INTERVENE ...............................................................81

A. Standard Of Review ..................................................................81

B. The Coalition Has Not Satisfied The Requirements For Intervention ........................................................................81

CONCLUSION ........................................................................................................90

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

- iii -

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TABLE OF AUTHORITIES

CASES:

PAGE

Advocacy Ctr. for the Elderly & Disabled v. Louisiana Dep’t of Health & Hosps., No. 10-1088, 2010 WL 3170072 (E.D. La. Aug. 9, 2010) .................................................................................71

Aiken v. Nixon, 236 F. Supp. 2d 211 (N.D.N.Y. 2002) ...........................................71

Alexander v. Choate, 469 U.S. 287 (1985)..............................................................30

Arc of Wash. State Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005)..................45, 55

Armstrong v. Schwarzenegger, No. 09-17144, 2010 WL 3465279 (9th Cir. Sept. 7, 2010) ..................................................................................28

Association for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241 (5th Cir. 1994) ...........................................................................72

Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equity, 950 F.2d 1401 (9th Cir. 1991), cert. denied, 503 U.S. 985 (1992) ...............74

Baker v. Carr, 369 U.S. 186 (1962) ........................................................................80

Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) ..................................76

Bragdon v. Abbott, 524 U.S. 624 (1998) .................................................................31

Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469 (2d Cir. 2010)..................84

Brody v. Spang, 957 F.2d 1108 (3d Cir. 1992).................................................. 84-85

Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999)....................................... 71-72

Building & Constr. Trades Council v. Downtown Dev., Inc., 448 F.3d 138 (2d Cir. 2006) ..........................................................................73
- iv -

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CASES (continued):

PAGE

California Credit Union League v. Anaheim, 190 F.3d 997 (9th Cir. 1999), cert. denied, 528 U.S. 1154 (2000)......................................80

Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996) ........................................................77

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...................................................80

Disability Rights Wisconsin, Inc. v. Walworth Cnty. Bd. of Supervisors, 522 F.3d 796 (7th Cir. 2008) .........................................................................73

Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999) .................................................. 69-71

Farmland Dairies v. Commissioner of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038 (2d Cir. 1988) ..............................................85

Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) .............................................................................................52

Frederick L. v. Department of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004) .............................................................. 49-50, 52

Frederick L. v. Department of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005)............55

Fuller v. Volk, 351 F.2d 323 (3d Cir. 1965) ...................................................... 79-80

Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert. denied, 313 U.S. 559 (1941)............................................................ 78-80

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004)......................................................46, 58, 64

Hodgson v. United Mine Workers of Am., 473 F.2d 118 (D.D.C. 1972) ................85

Horne v. Flores, 129 S. Ct. 2579 (2009) .................................................................60

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977)..........passim - v -

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CASES (continued):

PAGE

In re Holocaust Victim Assets Litig., 225 F.3d 191 (2d Cir. 2000) .........................81

Indiana Prot. & Advocacy Servs. Comm. v. Commissioner, Indiana Dep’t of Corr., 642 F. Supp. 2d 872 (S.D. Ind. 2009) .....................71

Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) ....................................71

Katel Ltd. Liab. Co. v. AT&T Corp., 607 F.3d 60 (2d Cir. 2010) ...........................62

Laflamme v. New Horizons, Inc., 605 F. Supp. 2d 378 (D. Conn. 2009)................71

Laforest v. Former Clean Air Holding Co., 376 F.3d 48 (2d Cir. 2004) ................61

Lewis v. Casey, 518 U.S. 343 (1996).......................................................................58

Louisiana v. United States, 380 U.S. 145 (1965) ....................................................58

Mastercard Int’l Inc. v. VISA Int’l Serv. Ass’n, 471 F.3d 377 (2d Cir. 2006)..................................................................................... 81-82, 88

McKay v. Heyison, 614 F.2d 899 (3d Cir. 1980).....................................................79

Michigan Prot. & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695 (E.D. Mich. 1992), aff’d on other grounds, 18 F.3d 337 (6th Cir. 1994) ....................................72

Missouri Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) ...............................................................................................71

Mullaney v. Anderson, 342 U.S. 415 (1952) .....................................................78, 80

NRDC v. New York State Dep’t of Envtl. Conservation, 834 F.2d 60 (2d Cir. 1987) ............................................................................84

National Mar. Union v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C. Cir. 1987).....................................................................74
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CASES (continued):

PAGE

New Jersey Prot. & Advocacy, Inc. v. Davy, No. 05-1784, 2005 WL 2416962 (D.N.J. Sept. 30, 2005)...................................................71

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989) ........................77, 80

Ohio Legal Rights Serv. v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877 (S.D. Ohio 2005)............................................................................................71

Office of Prot. & Advocacy for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266 (D. Conn. 2010) ...........................................................71

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

Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) .................. 69-71, 76

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)...............................79

Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005) ...................................................55

Person v. New York State Bd. of Elections, 467 F.3d 141 (2d Cir. 2006)...............87

Pressroom Unions-Printers League Income Sec. Fund v. Cont’l Assurance Co., 700 F.2d 889 (2d Cir.), cert. denied, 464 U.S. 845 (1983)..................................................................78

Protection & Advocacy, Inc. v. Murphy, No. 90-569, 1992 WL 59100 (N.D. Ill. Mar. 16, 1992) ....................................................72

Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) ............................................86

Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d 871 (2d Cir. 1984) ..........................................................................87

Risinger v. Concannon, 117 F. Supp. 2d 61 (D. Me. 2000) ....................................71

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CASES (continued):

PAGE

Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999), cert. denied, 531 U.S. 864 (2000)..................................................................36

Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992) ...................72

Rufo v. Inmates of the Suffolk Cnty. Jail, 502 U.S. 367 (1992)...............................60

Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)................................................56

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) .......................................31

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)................................................53

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)..............................66

Trautz v. Weisman, 846 F. Supp. 1160 (S.D.N.Y. 1994) ........................................72

UAW v. Brock, 477 U.S. 274 (1986) .................................................................74, 76

United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544 (1996) ...................................................67, 76

United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968 (2d Cir. 1984) ..........................................................................89

United States v. Peoples Benefit Life Ins. Co., 271 F.3d 411 (2d Cir. 2001) ..........................................................................87

United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994) ........................81, 89

United States v. Virginia, 518 U.S. 515 (1996).......................................................58

United States v. Yonkers Bd. of Educ., 801 F.2d 593 (2d Cir. 1986) ......................85

University Legal Servs., Inc. v. Saint Elizabeth’s Hosp., No. 1:05-cv-585, 2005 WL 3275915 (D.D.C. July 22, 2005) ......................71
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Case: 10-235 Document: 274 Page: 11 10/06/2010 120368 105

CASES (continued):

PAGE

Unzueta v. Schalansky, No. 99-4162, 2002 WL 1334854 (D. Kan. May 23, 2002).................................................................................71

Warth v. Seldin, 422 U.S. 490 (1975)......................................................................77

Washington Elec. Co-Op., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92 (2d Cir. 1990) ...........................................................87

Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) .........................................................................45

STATUTES:

Americans with Disabilities Act (Title II), 42 U.S.C. 12101 et seq., 42 U.S.C. 12101(a)(2) ...................................................................................30 42 U.S.C. 12101(a)(3) ...................................................................................30 42 U.S.C. 12101(a)(5) ...................................................................................30 42 U.S.C. 12132.........................................................................................4, 29 42 U.S.C. 12133.............................................................................................79 42 U.S.C. 12134....................................................................................... 30-31

Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 6042...............................................................................................72

Medicaid Act, 42 U.S.C. 1396 et seq.......................................................................34

Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. 10801 et seq. .............................................................................3, 26 42 U.S.C. 10801(a)(1) ...................................................................................68 42 U.S.C. 10802(4)..........................................................................................3 42 U.S.C. 10805(a)(1)(B) .................................................................. 65-66, 76 42 U.S.C. 10805(a)(6)(B) ..............................................................................70 42 U.S.C. 10805(a)(6)(C) ..............................................................................70 42 U.S.C. 10805(c)(1)(B) ..............................................................................69

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STATUTES (continued):

PAGE

Rehabilitation Act (Section 504), 29 U.S.C. 701 et seq., 29 U.S.C. 701(b)............................................................................................30 29 U.S.C. 794...................................................................................................4 29 U.S.C. 794(a) ............................................................................................29

N.Y. Const. Art. XVII, § 4.........................................................................................7

N.Y. Mental Hyg. L. § 5.03 ...............................................................................................................8 § 5.07 ...............................................................................................................6 § 7.01 .........................................................................................................6, 33 § 7.07 .........................................................................................................6, 33 § 7.07(b)...........................................................................................................7

N.Y. Pub. Health L. 204 ............................................................................................8

N.Y. Soc. Serv. L. 461-a(3)(b)(ii)............................................................................88

REGULATIONS:

28 C.F.R. Pt. 35, App. A ..........................................................................................31

28 C.F.R. 35.130(b)(7).............................................................................................47

28 C.F.R. 35.130(d) ..........................................................................................passim

28 C.F.R. 41.51(d) ...................................................................................................30

42 C.F.R. 51.24(b) ...................................................................................................70

42 C.F.R. 51.25(a)(1) ...............................................................................................70

42 C.F.R. 51.6(f) ......................................................................................................66

N.Y. Comp. Codes R. & Regs. Tit. 18 § 485.3(a)(1) ....................................................................................................7
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REGULATIONS (continued):

PAGE

§ 485.3(a)(3) ....................................................................................................7 § 485.3(b)(1) ....................................................................................................7 § 485.3(a)(1) ..................................................................................................33 § 485.5(c) .........................................................................................................7 § 485.5(l)..........................................................................................................7 § 485.5(m)(1)(i) ...............................................................................................7 § 485.14(a)(2) ................................................................................................88 § 487.1(b)...................................................................................................7, 33 § 487.7(g).......................................................................................................88

RULES:

Fed. R. Civ. P. 24(a)(2)............................................................................................81

Fed. R. Civ. P. 24(b) ................................................................................................89

Fed. R. Civ. P. 24(b)(2)..................................................................................5, 83, 89

Fed. R. Civ. P. 52(a)(6)............................................................................................49

Fed. R. Civ. P. 60(b)(5)............................................................................................60

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PRELIMINARY STATEMENT This case involves a straightforward application of Olmstead v. L.C., 527 U.S. 581 (1999), and the Attorney General’s integration regulation under Title II of the Americans with Disabilities Act (ADA). That regulation provides: “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 State argues that once it discharges individuals from state psychiatric facilities and places them in adult homes—for-profit facilities licensed, regulated, and reimbursed by the State that provide care and supervision for people with mental or physical disabilities—it has no duty to ensure those individuals are receiving state mental health services in the most integrated setting. The State’s argument is untenable. No legal or factual justification exists for relieving the State of its federal obligations under the integration regulation when it discharges people with mental illness into privately operated institutions. Indeed, the district court expressly found that adult homes are institutions, that the State’s supported housing program offers a more appropriate and integrated setting than adult homes, that virtually all of Disability Advocates, Inc.’s (DAI’s) constituents are qualified to receive mental health services in a more appropriate and integrated setting, and that they do not oppose receiving services in such a setting. The State does not— and cannot—argue that these findings are clear error.

Case: 10-235 Document: 274 Page: 15 10/06/2010 120368 105
- 2 The State also cannot show that the district court erred in concluding that the State failed to establish a fundamental alteration defense. As the district court found, each person with mental illness who moves from an adult home to supported housing will save the State $146 per year. That savings, the district court found, will take place immediately once the person moves to the new setting (because the State will at that point stop reimbursing an adult home and start reimbursing a supported housing provider), and it is a savings over and above any long-term savings that may occur because there will be less need for capital improvement programs and other overhead outlays to the adult homes. Furthermore, contrary to the State’s assertion, the Remedial Order does not compel the State to provide a particular level of benefits to individuals with disabilities. Like the district court’s liability holding, the Remedial Order is a straightforward application of the integration mandate: it simply orders the State to offer supported housing units to qualified and willing DAI constituents. The Order is narrowly tailored to conform to the court’s factual findings, which were well supported by evidence admitted at trial, and it incorporates the State’s current procedures for developing supported housing. Accordingly, the Remedial Order is neither overbroad nor overly intrusive on state authority. This Court should affirm the judgment.

Case: 10-235 Document: 274 Page: 16 10/06/2010 120368 105
- 3 STATEMENT OF THE ISSUES 1. Whether the district court erred in concluding that Title II of the ADA applies to the State’s administration of its mental health services programs. 2. Whether the district court erred in concluding that the State failed to establish a fundamental alteration defense. 3. Whether the district court abused its discretion in entering the remedial order. 4. Whether the district court erred in concluding that the plaintiffs have standing. 5. Whether the district court abused its discretion in denying the New York Coalition for Quality Assisted Living, Inc.’s motion to intervene. STATEMENT OF THE CASE 1. Background a. The Parties Disability Advocates, Inc. (DAI) is a not-for-profit protection and advocacy organization authorized by the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. 10801 et seq., to pursue legal and other appropriate remedies to ensure the protection of individuals with mental illness. Its constituents consist of individuals with mental illness, as defined under PAIMI. 42 U.S.C. 10802(4). In 2003, DAI commenced this action on behalf of individuals

Case: 10-235 Document: 274 Page: 17 10/06/2010 120368 105
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with mental illness residing in, or at risk of entering, 28 impacted adult homes in New York City with more than 120 beds. SPA-77-78, 85.1 In 2008, 4,242
individuals with mental illness resided in the adult homes at issue. SA-64-82 (P-
774 (2008 New York State Department of Health Adult Care Facility Annual
Census Report (Census Report))).
DAI claimed that the Governor of New York, the New York State
Department of Health (DOH), the New York State Office of Mental Health
(OMH), and the DOH and OMH commissioners (collectively, the State) had
violated the integration mandate of Title II of the Americans With Disabilities Act,
42 U.S.C. 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. 794, as
expressed in 28 C.F.R. 35.130(d), by planning and administering the State’s mental
health service system in a manner that segregates people with mental illness in
institutional adult homes and systematically excludes them from far more
appropriate and integrated mental health service settings funded and offered by the
1 “SPA-__” refers to the page number of the State’s Special Appendix. “JA(__)-__” indicates the volume and page number of the parties’ Joint Appendix. “SLX(__)-__” indicates the volume and page number of the deposition transcriptions admitted under seal. “PX(__)-__,” “DX(__)-__,” and “SX(__)-__,” refer to the volume and page number in Plaintiff’s Trial Exhibits, Defendants’ Trial Exhibits, and the parties’ Stipulated Trial Exhibits, respectively. “Br. __” indicates the page number of the State’s opening brief. “Mov. ___” refers to the page number of the New York City Quality Assisted Living, Inc.’s brief. “SA-__” indicates the page number of the Supplemental Appendix. “Doc. __” indicates the docket entry number of documents filed in the district court.

Case: 10-235 Document: 274 Page: 18 10/06/2010 120368 105
- 5 State. SA-28-34. See Olmstead v. L.C., 527 U.S. 581 (1999) (failure to provide services in the most integrated setting appropriate is discrimination under Title II of the ADA). DAI sought declaratory and injunctive relief requiring the State to take steps to ensure that its constituents at the 28 adult homes receive services in the most integrated setting appropriate to their needs. SPA-85-86; see also SA-8-9.
Plaintiff United States intervened in this action on November 23, 2009. In granting permissive intervention, the district court concluded that the United States “has an interest in the uniform interpretation and enforcement of its regulations under Title II.” The court noted that Federal Rule of Civil Procedure 24(b)(2) “expressly provides for permissive intervention by a federal agency in lawsuits based on federal statutes or regulations within its administrative purview.” SA-39 (emphasis in original). The district court found that the United States’ intervention would not prejudice the parties or unduly delay the proceedings because the United States’ complaint-in-intervention explicitly adopted the factual findings and legal conclusions the court had entered after trial, and the United States did not seek any extensions in the remedial proceedings. SA-40.
The appellants are the state entities obligated under state law to administer the State’s mental health services for people with mental illness. New York law specifically requires the State “to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill.” N.Y. Mental Hyg. L. §

Case: 10-235 Document: 274 Page: 19 10/06/2010 120368 105
- 6 7.01. “Such a system * * * should assure the adequacy and appropriateness of residential arrangements * * * and it should rely upon * * * institutional care only when necessary and appropriate.” Ibid.
Pursuant to state law, “OMH is responsible for planning what mental health services the State will provide and allocating resources to those services.” SPA31. OMH funds and oversees the State’s mental health housing and support programs, including community support and residential programs. SPA-31. It contracts with private providers to operate the State’s housing programs and other mental health services. SPA-30-31. State law requires OMH to plan how and where the State’s mental health services will be delivered. N.Y. Mental Hyg. L. § 7.07. In doing so, OMH must “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 including those provided by voluntary organizations.” Id. § 7.01. State law, moreover, requires OMH to annually “formulate a statewide comprehensive five-year plan for the provision of all state and local services for persons with mental illness and developmental disabilities.” Id. § 5.07. In addition, state law requires OMH to “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).

Case: 10-235 Document: 274 Page: 20 10/06/2010 120368 105
- 7 In conjunction with the obligations imposed on OMH, state law requires DOH to promote the “development of sufficient and appropriate residential care programs for dependent adults.” N.Y. Comp. Codes R. & Regs. Tit. 18 (18 NYCRR), §§ 485.3(a)(1), 487.1(b). DOH determines the number of adult homes in the State’s residential care programs by issuing licensing certificates to private providers to establish and operate adult homes. Id. § 485.3(a)(3); SPA-301. These licensing certificates must be renewed every four years. 18 NYCRR § 485.5(c). DOH also monitors adult homes and enforces the statutes and regulations applicable to adult homes. JA-915. It may suspend, revoke, or terminate a licensing certificate if it determines that the facility is not complying with applicable state law or if such action is in the public interest because it would conserve resources. 18 NYCRR §§ 485.5(l), (m)(l)(i). State law further provides that OMH and DOH monitor and inspect adult homes. See N.Y. Const. Art. XVII, § 4 (requiring OMH to “visit and inspect * * * all institutions either public or private used for the care and treatment of persons suffering from mental disorder or defect”); 18 NYCRR § 485.3(b)(1) (authorizing DOH to inspect adult homes and permitting OMH to participate in inspections). The governor of New York, as chief executive, must ensure that the State operates its mental health services in compliance with the ADA. He appoints the OMH and DOH commissioners; they serve at his pleasure. N.Y. Pub. Health L. §

Case: 10-235 Document: 274 Page: 21 10/06/2010 120368 105
- 8 204; N.Y. Mental Hyg. L. § 5.03. The governor’s office has participated in policy decisions relating to adult homes, including determining funding levels for services provided at adult homes. SPA-73. The governor’s office also worked with the interagency Task Force on Housing for People with Special Needs to increase access to existing housing and support services for people with special needs, and it created the Adult Care Facilities Workgroup, which “unanimously concluded that large numbers” of adult home residents in New York City and other parts of New York “could more appropriately be served in more integrated settings.” SPA147; see also SPA-73-74. Upon receiving the Workgroup’s recommendations, the governor’s office modified the recommendation and implemented the revised recommendation. SPA-73.
b. Adult Homes Adult homes are large, for-profit facilities that provide long-term residential care and supervision for people with disabilities. JA(1)-205-206 (Rosenberg). The State continues to discharge individuals from state psychiatric hospitals to adult homes in New York City. JA(1)-204-206 (Rosenberg); PX(1)-155-156 (P-68 (Mem. from J. Stone to Members of the Mental Health Services Council (Nov. 22, 2006))); PX(2)-140-144 (P-363, P-364, P-365 (E-mails from Mitchell Dorfman to state psychiatric centers regarding referrals to adult homes)); JA(1)-497-498, 501 (Dorfman). In most of the impacted adult homes at issue, more than 90 percent of

Case: 10-235 Document: 274 Page: 22 10/06/2010 120368 105
- 9 residents have mental illness; at eight adult homes, 100 percent of the residents have mental illness. SA-64-82 (P-774 (2008 Census Report)); PX(2)-1-65 (P-283 (2004 Census Report)).
The district court found that adult homes are “institutions that impede residents’ interaction with individuals in the community who do not have disabilities” (SPA-108), and the State does not challenge that finding on appeal. Adult homes fail to provide support, encouragement, or opportunity for residents to interact with non-disabled individuals or to become integrated into the community. JA(1)-62-63 (E. Jones); SX(4)-286 (S-150 (D. Jones Report (Apr. 4, 2006))). Adult home residents have very little interaction with people outside of adult homes. JA(2)-701 (Lockhart); SX(4)-327 (S-151 (E. Jones Report)). Instead, residents generally stay within the adult home facilities, playing games, puzzles, and other child-appropriate activities. JA(1)-62 (E. Jones); JA(2)-676 (Waizer); SX(4)-524 (S-166 (Surfside Manor May 2005 activities calendar)). Residents testified that they feel isolated living in adult homes. SLX(2)-709 (P-569 (G.H. Dep.)); SLX(1)-59-60 (P-535 (T.M. Dep.)); SLX(2)-452 (P-544 (C.H. Dep.)).
Adult homes often house over a hundred residents who must follow strict schedules for meals, taking medication, receiving public health benefits and other

Case: 10-235 Document: 274 Page: 23 10/06/2010 120368 105
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daily activities.2 Residents are assigned roommates and on-site treatment
providers, as well as seats in the cafeteria.3 The adult homes restrict the times and
places in which residents may receive visitors or leave the premises, and they
require that visitors sign in and state the purpose of their visit.4
Residents have no choice but to comply with the rules in adult homes
because they “fear retaliation, especially psychiatric hospitalization, if they
complain or do not follow the rules.” SX(4)-331 (S-151 (E. Jones Report)); see
SLX(1)-4 (P-534 (L.H. Dep.)); JA(1)-161 (G.L.); JA(1)-185 (S.P.); SLX(2)-461-
462 (P-544 (C.H. Dep.)); SLX(2)-540, 559 (P-546 (A.M. Dep.)); see also JA(1)-
465-466 (Wollner) (conceding that adult home residents feared retaliation by adult
2 SX(3)-8-9 (S-54 (Kaufman Report (Apr. 2006))); JA(1)-205-206 (Rosenberg); JA(1)-247, 261 (Duckworth); JA(2)-759-760, 763-764 (Kaufman); JA(2)-634 (Geller); JA(1)-116-117 (Tsemberis); JA(1)-58-59 (E. Jones); SLX(2)568-569 (P-546 (A.M. Dep.)); SLX(2)-732 (D-391 (D.W. Dep.)); JA(1)-138 (S.K.).
3 JA(1)-58, 61 (E. Jones); SX(4)-329 (S-151 (E. Jones Report (Apr. 5, 2006))); JA(2)-561, 571 (Burstein); JA(1)-134, 138-139 (S.K.); JA(1)-160-161 (G.L.); JA(1)-184, 186 (S.P.); SLX(1)-359, 365 (P-542 (L.G. Dep.)); SLX(1)-405, 430-431 (P-543 (R.H. Dep.)); SLX(1)-20 (P-534 (L.H. Dep.)); SLX(2)-457 (P-544 (C.H. Dep.)); SLX(1)-94 (P-536 (D.N. Dep.)); SLX(2)-731 (D-391 (D.W. Dep.)); SLX(2)-553, 556-557 (P-546 (A.M. Dep.)); SLX(1)-103 (P-536 (D.N. Dep.)).
4 JA(1)-60-61 (E. Jones); JA(2)-571 (Burstein); SLX(1)-309 (P-541 (S.B. Dep.)); SLX(1)-375 (P-542 (L.G. Dep.)); SLX(1)-21 (P-534 (L.H. Dep.)); SLX(2)554 (P-546 (A.M. Dep.)); SLX(1)-95, 114 (P-536 (D.N. Dep.)); SLX(2)-517 (P545 (J.M. Dep.)); SLX(1)-162 (P-537 (P.C. Dep.)); PX(4)-509-518 (P-744 (complaint by adult home providers against advocacy groups to enforce restrictive guidelines for visitor access)).

Case: 10-235 Document: 274 Page: 24 10/06/2010 120368 105
- 11 home staff for participating in the Adult Home Assessment Project). Moreover, adult home residents are discouraged, and even prohibited, from managing their daily activities. The mental health programs that adult home residents attend often have little focus on developing independent living skills, such as cooking, budgeting, and grocery shopping. JA(1)-269 (Duckworth). To the extent that adult residents are taught such skills, they have almost no opportunity to practice those skills in order to retain them. SX(4)-393-396 (S-152 (Duckworth Report (Apr. 6, 2006))); JA(1)-61, 87 (E. Jones).
The State’s witnesses, in fact, agreed with DAI’s experts that adult homes are similar to institutions. See JA(2)-585 (Newman); JA(2)-634, 651-652 (Geller); JA(2)-759-760 (Kaufman); SX(3)-8-9 (S-54 (Kaufman Report)). The State’s expert, Alan Kaufman, also acknowledged that the institutional characteristics of adult homes impede community integration. JA(2)-760 (Kaufman).
c. Supported Housing Supported housing is a means of providing mental health services in which individuals live in their own scattered-site “apartments and receive services to support their success as tenants and their integration in the community.” SPA-108109. The district court found that supported housing is a more integrated setting than adult homes (SPA-109, 113), and the State does not challenge that finding on appeal.

Case: 10-235 Document: 274 Page: 25 10/06/2010 120368 105
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The State acknowledges (Br. 12) that supported housing is the “preferred community-housing model for many persons with mental illness.” Michael Newman, OMH’s Director of the Bureau of Housing Development and Support, testified that the State is currently focusing on supported housing over other forms of housing for individuals with mental illness because it is “successful,” “costeffective,” and it is what consumers want. JA(2)-585 (Newman). Fundamental to supported housing is “[s]eparating 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.” SX(1)-596 (S-11 (Supported Housing Implementation Guidelines)).5
OMH develops supported housing units by identifying a target “priority” population to receive preference for the housing, and awarding contracts to not-forprofit community providers to create units for members of the target population. JA(2)-566 (Newman); JA(1)-416 (Madan); SX(2)-86 (S-17 (2005 Request For Proposal)). The supported housing providers are responsible for selecting existing apartments in the community for their programs, choosing the individuals to accept into their programs, and determining the services needed to enable those
5 Contrary to the State’s assertion (Br. 16), the state legislature has not “capped” the number of supported housing units that could be created. The testimony cited by the State explains that the State has created an average of 713 supported housing units annually. JA(2)-590 (Newman).

Case: 10-235 Document: 274 Page: 26 10/06/2010 120368 105
- 13 individuals to live successfully. SA-62-63 (S-21 (Federation of Organizations, Admission Application Procedures For Residential Services)); SX(3)-134-135 (S60 (Federal Employment & Guidance Services (FEGS), “Mental Health Residential Services, Intensive Supportive Apartment Program: Admission Policy”)).
In addition, the State provides other services to supported housing residents, such as Assertive Community Treatment (ACT) or case management services. JA(1)-502-503 (Dorfman); JA(1)-398 (Reilly); JA(2)-828 (Myers). An ACT team is a multi-disciplinary team that generally includes members from the fields of psychiatry, nursing, psychology, and social work that provides services tailored to meet the client’s specific needs, including the needs of those with severe mental illness. SX(4)-1-4 (S-97 (ACT description from OMH website)); see also JA(1)258-259 (Duckworth). ACT teams can assist individuals with a wide range of services from assistance with daily activities, such as personal care and safety, grocery shopping, and cooking, to medication management. PX(2)-147-148 (P372 (ACT Program Guidelines)); JA(1)-279 (Duckworth); JA(1)-428-429 (Madan).
Residents of supported housing, unlike adult home residents, can control their own schedules and daily lives. JA(1)-163-166 (G.L.); JA(1)-117 (Tsemberis). They can live with a significant other, marry and live with a spouse,

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- 14 live with their children, invite guests over for dinner, decorate their apartments, and have overnight guests. JA(1)-107 (Tsemberis). At bottom, they have the same privacy rights and freedom as any other tenant in a landlord-tenant relationship. JA(2)-585 (Newman).
The State “has demonstrated it has the will and the ability to create additional supported housing slots” (JA(2)-911 (D. Jones); see also Br. 12), but the State has virtually shut out adult home residents from placement in supported housing. Between 2002 and 2006, only 21 adult home residents were allowed to move to supported housing in New York City. PX(1)-543-555 (P-149 (OMH FOIL Response (Jan. 2006))). Even after the State designated adult home residents as a target population for supported housing in 2005, members of other target populations received higher priority. JA(1)-209-210 (Rosenberg); JA(2)-586, 594595 (Newman). The State does not dispute that other target populations have greater access to supported housing than adult home residents. JA(2)-911 (D. Jones). Indeed, the State acknowledged in an OMH document, “OMH Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies,” that “many people with a mental illness are * * * ‘stuck’ in * * * adult homes.” PX(2)-66 (P-284).

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2. District Court Proceedings a. Summary Judgment Decision On February 19, 2009, the district court denied DAI and the State’s cross-
motions for summary judgment. SPA-10. The State argued, inter alia, that DAI lacked standing to seek system-wide injunctive relief and that Title II of the ADA did not apply because adult homes are privately operated. SPA-10.6
With respect to standing, the district court concluded that PAIMI, 42 U.S.C. 10805(a)(1)(B), gave DAI authority to bring this suit. SPA-24-25. The court further held that DAI established associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977), and that DAI had standing to pursue system-wide relief because it alleged and provided evidence of on-going system-wide harm. SPA-27-28.
The district court concluded that DAI properly relied on Title II of the ADA. The court characterized DAI’s claim as alleging that the State’s “administration of services discriminates against adult home residents by unnecessarily segregating them, and * * * if [the State] allocated resources differently, adult home residents
6 DAI sought partial summary judgment on the State’s fundamental alteration defense, contending that the State’s failure to develop an effective Olmstead plan precludes the State from asserting this defense. SPA-10. The district court, however, held “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.” SPA-56.

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- 16 could receive services in a more integrated setting.” SPA-36. The district court found that this claim is proper under Title II because the State administers its mental health program by determining the settings in which state-provided and -funded services will be delivered. The court held that the “State cannot evade its obligation to comply with the ADA by using private entities to deliver some of those services.” SPA-35. It explained that “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.’” SPA-36 (citation omitted).
b. Liability Decision After a five-week bench trial, the district court issued 210 pages of findings of fact and conclusions of law. The court held that the State’s administration of mental health services for the 4,300 DAI constituents in, or at risk of entering, the “impacted” adult homes violates the integration mandate. SPA-77-78. First, the court held that the adult homes “are institutions that segregate residents from the community and impede residents’ interactions with people who do not have disabilities.” SPA-77; see also SPA-88, 93. The court pointed to testimony from witnesses on both sides, who explained that adult homes “house a large number of people with psychiatric disabilities in a congregate setting” and that the residents’ lives are “highly regimented” with “inflexible schedules for meals, taking

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- 17 medication, receiving public benefits, and other daily activities.” SPA-89; see also SPA-90-108. The evidence showed that adult homes promote a sense of helplessness among residents by restricting their access to the community and providing child-appropriate activities such as games, puzzles, and coloring books. SPA-93-106. The State’s witnesses agreed that the characteristics of adult homes impede the ability of residents to function more independently. SPA-107-108. Moreover, the court stated that the existence of a more appropriate and integrated setting in the form of supported housing demonstrates that adult homes are not the most integrated setting available. SPA-108-113, 117.
Second, the district court found that virtually all of DAI’s constituents are qualified for supported housing. SPA-117-149. DAI’s experts—who visited adult homes, interviewed residents, and reviewed residents’ mental health records and other documents regarding the State’s mental health services—testified that “‘virtually all’ [DAI constituents] could be served in a more integrated setting” (SPA-127) and that “there are no material clinical differences between adult home residents and supported housing clients” (SPA-125). See also SPA-124-130, 135137. A former official at OMH concurred, based on her “firsthand observations from working in New York’s mental health system.” SPA-130-131. The State’s own witnesses testified that “undisputedly,” some adult home residents are qualified to move to supported housing. SPA-138. A 2002 study by the Adult

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- 18 Care Facilities Workgroup (Workgroup Report), convened by the governor of New York, “unanimously concluded that large numbers” of adult home residents in New York City and other parts of New York “could more appropriately be served in more integrated settings.” SPA-147; see also SPA-131-132. A separate 2002 report (Assessment Project) commissioned by the State assessed 2,611 residents in adult homes, including 15 of the homes at issue here, and revealed that a “vast majority of adult home residents are not seriously impaired and could be served in supported housing.” SPA-132-134. Based on this evidence, the court concluded that many of DAI’s constituents would need only minimal support. SPA-132-134; see also SPA-185. For those who need support, the court found that the State’s supported housing program already provides individuals, including individuals with serious mental illness, with a wide range of support services. SPA-146-147.
Third, the district court found that many of DAI’s constituents are not opposed to receiving services in more appropriate and integrated settings. SPA149-157. DAI’s experts and findings by the State’s Assessment Project confirm that, when given “accurate information and a meaningful choice,” a “large number” of adult home residents would choose to move out of adult homes. SPA157; see also SPA-152-155. Testimony by adult home residents at trial, in addition to documents in the record, confirmed this conclusion. SPA-153-155, 157.

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- 19 Fourth, the district court found that the State failed to show that it had made any meaningful efforts to enable adult home residents to receive services in the most integrated settings: (1) it did not have a plan to enable adult home residents to be served in more appropriate and integrated settings (SPA-162); (2) although the State had created 13,557 supported housing beds between 1995 and 2009, and adult home residents were finally added as one of the target populations for supported housing in 2005, the number of adult home residents that have moved to supported housing has been negligible (21 adult home residents in 2002-2006, and 11 since 2008, excluding a one-time legislative initiative that created 60 supported housing beds for adult home residents in 2007) (SPA-134, 163-165); (3) the State does not maintain a wait list for adult home residents who desire to move to supported housing (SPA-166); (4) the State’s programs to improve the conditions at adult homes do not enable adult home residents to move to more appropriate and integrated settings (SPA-166-171); and (5) the State rejected the 2002 Workgroup Report’s recommendation to move 6,000 adult home residents to supported housing (SPA-171-172). Fifth, the district court rejected the State’s fundamental alteration defense because the overwhelming evidence showed that “it would actually cost less to serve DAI’s constituents in supported housing than in Adult Homes.” SPA-191. See also SPA-172-188, 195-198, 201. Pursuant to the State’s mental health

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- 20 services program, adult home and supported housing residents pay for the cost of their housing with Supplemental Security Income (SSI), an income supplement for low-income individuals with disabilities. SPA-172. Adult home residents receive $16,416 each year in SSI (the federal government pays $8,088 of that amount and the State pays $8,328) to pay for their housing. SPA-172. Supported housing residents receive $9,132 each year in SSI, of which the State pays $1,044. SPA173. The State also pays a rental subsidy ($14,654 per year) directly to supported housing providers for each supported housing unit. SPA-173. In addition to these amounts, the State pays half the costs of Medicaid-funded services for individuals with mental illness, including primary care, psychiatric care, and other medical services. SPA-173; see also SPA-181 (chart comparing average costs per person in adult home and supported housing).
The evidence showed that the State spends more on Medicaid and SSI payments for adult home residents than for individuals in supported housing. SPA175-181. The New York Commission on Quality of Care for and Advocacy for Persons with Disabilities (CQC), an independent state agency, issued a report in 2002 examining the amount the State spends on Medicaid for adult home residents, an amount that far exceeds its Medicaid expenses for supported housing residents. SPA-176-179. A state study subsequently confirmed these findings. SPA-178179 (citing PX(1)-109). Based on this evidence, the district court calculated that,

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- 21 even taking into account the State’s rental subsidy for supported housing residents, the State would save “$146 per year to serve an individual in supported housing instead of an Adult Home,” a savings that would be realized as soon as an individual moved from an adult home to supported housing. SPA-181; see also SPA-175.
The court rejected the State’s contrary argument. SPA-174-188. The State’s cost expert ignored any Medicaid savings even though the State agreed that it spends more on Medicaid for adult home residents than individuals in supported housing. SPA-174-188. The court also rejected the State’s argument that DAI’s requested relief would impose costs associated with (1) providing additional support services to the former adult home residents in supported housing; (2) providing administrative services to assess adult home residents and oversee the additional supported housing; and (3) backfilling the beds vacated by adult home residents. SPA-184-187. The State failed to provide evidence to support these assertions. SPA-185-187.
c. Order Denying Intervention After the district court’s liability finding, and two months after the remedy proceedings were underway, the New York Coalition for Quality Assisted Living,

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- 22 Inc. moved to intervene. SPA-206.7 The district court granted amicus status to the Coalition pending resolution of the motion. SPA-206. As amicus, the Coalition filed a proposed remedial plan, detailing its positions with respect to the parties’ proposed plans and offering specific proposals for inclusion in the remedial order. SA-51-61 (Doc. 391 (Nov. 25, 2009)).
On December 23, 2009, the district court denied the Coalition’s motion to intervene as untimely. SPA-215-216. The district court rejected the Coalition’s argument that it did not have reason to believe its interests would be adversely affected until the court issued the Trial Decision. SPA-209-212. The Coalition, the court stated, should have been on notice from DAI’s 2003 complaint that DAI sought to move qualified and willing adult home residents to more appropriate and integrated settings. SPA-210-212. The court further noted the Coalition should have known of the consequences of a finding against the State as early as 2007 when, in summary judgment papers, the parties addressed the cost of moving DAI’s constituents to supported housing at summary judgment. SPA-210-211. The court’s February 2009 order, denying summary judgment, also discussed this
7 Empire State Association for Assisted Living (ESAAL) also moved to intervene and has appealed from the denial of its motion (No. 10-251-cv). ESAAL, however, did not file a merits brief in support of its appeal; instead, it filed an amicus brief in support of the State’s appeal. The arguments in this brief relating to the denial of the Coalition’s motion to intervene apply equally to ESAAL’s appeal.

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- 23 issue “at length.” SPA-210. In addition, the Coalition had been involved in the case by attending depositions of adult home staff members, responding to document requests before discovery closed in 2006, and sitting in on the trial beginning in May 2009. SPA-207.
The district court rejected the Coalition’s argument that it believed that its interests were aligned with the State until the State lost on the merits, noting that the Coalition had no basis to believe that the State would represent the Coalition’s interests. SPA-212. Although the district court recognized that the “lapse of time is only one of several factors to consider” in determining timeliness, it found that “the lengthy and intentional delay in this case weigh[ed] in favor of denying intervention.” SPA-212.
The district court also found that allowing intervention would prejudice the parties and cause undue delay: the Coalition sought to “inject collateral issues regarding their economic entitlements into [this] civil rights action,” and consideration of the Coalition’s “newly presented claims might well require conducting evidentiary hearings or even reopening discovery.” SPA-213. The motion to intervene “explicitly disput[ed] the court’s [liability] findings,” indicating that the Coalition would seek to “relitigat[e] issues which have already been decided after lengthy proceedings.” SPA-213. By contrast, any prejudice to the Coalition from denying intervention was due to the Coalition’s “tactical

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- 24 decision,” hoping that the State would prevail. SPA-214. Any prejudice, however, was “significantly mitigated” by Coalition’s status as amicus and the fact that state law allows an adult home to challenge revocations of its operating certificate by the State. SPA-214. The court further found no “unusual circumstance[s]” to support granting intervention. SPA-215. Accordingly, the district court denied intervention as of right as well as permissive intervention. SPA-216.
d. Remedial Order On March 1, 2010, the district court issued the remedial order and judgment, and a separate order, rejecting the State’s proposed remedial plan as unreasonable. See SPA-232-242 (Remedial Order); SPA-218-231 (Remedial Decision). For example, despite evidence at trial that the State was capable of developing 1,500 supported housing units annually and that moving qualified adult home residents to supported housing would save the state money on net (see SPA-172-179, 190-191, 195-198, 201), the State proposed to create only 200 units annually due to, inter alia, its “fiscal crisis.” SPA-220. Other parts of the proposed plan flatly contradicted the court’s findings, such as the number of qualified adult home residents willing to go to supported housing. SPA-220-221. Because the State failed to propose a realistic remedy to address the violations the court found, the district court devised its own remedial order. SPA-228-230.

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- 25 The district court’s Remedial Order requires the State to take steps to ensure compliance with the integration mandate within four years of the order by, inter alia, (1) developing supported housing beds for DAI’s constituents, at a rate of 1,500 beds annually; (2) securing necessary support services for supported housing residents; and (3) conducting in-reach to DAI’s constituents to assist their transition to supported housing. SPA-236-238. The State must also deem DAI’s constituents qualified for supported housing unless they have severe dementia, their needs cannot be met by the services that are provided by Medicaid home care or waiver services in supported housing, or they are likely to cause imminent danger to themselves or others. SPA-238-239. The district court provided for a court-appointed Monitor to oversee the State’s compliance. SPA-239-240. After four years, the State must ensure that any qualified adult home resident who desires placement in supported housing is offered such placement. SPA-235. At that time, the court may terminate its jurisdiction upon consent of the parties or motion of any party for good cause shown. SPA-236.
SUMMARY OF ARGUMENT 1. Far from usurping the State’s policy choices, the district court simply ordered the State to comply with its federal obligations under Title II of the ADA and Section 504 of the Rehabilitation Act and place qualified and willing adult home residents in a more appropriate and integrated setting that is not only part of

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- 26 an existing program, but also one that the State itself has made a priority. Like the plaintiffs in Olmstead v. L.C., 527 U.S. 581, 592 (1999), DAI’s constituents are segregated from the community in institutions based on their disability even though they could be served in a more appropriate and integrated communitybased setting. Thus, the State’s continued segregation of these individuals, through its “administration” of New York’s mental services system, 28 C.F.R. 35.130(d), constitutes unlawful disability-based discrimination and must be remedied.
2. The State has not established a fundamental alteration defense. The district court expressly found that moving qualified and willing adult home residents to supported housing would result in a net cost savings, and the State has not shown that the factual findings supporting that determination are clearly erroneous. Moreover, Olmstead does not allow States to delay providing the relief where the State does not have any procedures, such as a waiting list, in place for complying with the integration mandate.
3. The Remedial Order is narrowly tailored to the State’s violation and the court’s factual findings. The State has not offered any facts or controlling law to the contrary.
4. The district court correctly found the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. 10801 et seq., authorized DAI to bring this suit, and that, in any event, the organization satisfied the

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- 27 requirements for associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). The State and Coalition’s reading of Hunt’s indicia of membership analysis is overly narrow and inconsistent with Hunt. Moreover, it disregards the fact that, under PAIMI, Congress intentionally structured protection and advocacy organizations, such as DAI, to be tightly bound to the interests of the individuals that they represent. The Coalition’s other standing arguments are also without merit: (1) the interests that DAI seeks to protect are not only germane to its purpose, but the reason for its existence and (2) DAI’s constituents need not participate as plaintiffs because Congress explicitly authorized protection and advocacy organizations to sue on behalf of their constituents, see 42 U.S.C. 10805(a)(1)(B), and, in any event, individual constituent participation is not necessary because this action does not seek relief for any specific individual. Even if DAI does not have standing, this Court should exercise its discretion to allow the United States to continue this litigation under its complaint-in-intervention, which expressly adopts the district court’s findings of fact and conclusions of law.
5. The district court did not abuse its discretion in denying the Coalition’s motion to intervene as untimely. In addition, the Coalition cannot meet the interest requirement for intervention. At issue in this litigation is the State’s obligation to administer its services for people with disabilities in the most integrated setting

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appropriate for their needs, and not the operation of any particular adult home.
The interests asserted by the Coalition are simply not relevant in this litigation.
ARGUMENT
I
THE UNNECESSARY SEGREGATION OF INDIVIDUALS WITH DISABILITIES IN ADULT HOMES IS A FORM OF DISCRIMINATION
PROHIBITED BY TITLE II OF THE ADA, SECTION 504 OF THE REHABILITATION ACT, AND THEIR IMPLEMENTING REGULATIONS
A. Because The State Provides Services To DAI’s Constituents In Segregated Adult Homes, Rather Than The More Appropriate And Integrated Alternative Of Supported Housing, The State Violates Title II And Section 504
The district court specifically found that the “overwhelming evidence”
showed that the adult homes at issue are institutions that segregate individuals with
mental illness from the community based on their disabilities (SPA-88-108)8; that
8 The State does not challenge this finding as clearly erroneous, but it argues (Br. 36-37) that the institutional characteristics of the adult homes are irrelevant because they reflect the choices of the private owners of those facilities and “are not imposed by the State.” That argument misunderstands the law. The State licenses, regulates, and pays for the services DAI’s constituents receive in adult homes. And, as the State acknowledges (Br. 62), it is the State that “administer[s] services and benefits on a system-wide basis” and decides whether to fund services in adult homes or other, integrated settings. See 28 C.F.R. 35.130(d) (requiring States to “administer services * * * in the most integrated setting appropriate”) (emphasis added). The State cannot avoid its Title II and Section 504 obligations by contracting with third parties to provide state services. See Armstrong v. Schwarzenegger, No. 09-17144, 2010 WL 3465279, at *4-6 (9th Cir. Sept. 7, 2010). The State also notes (Br. 37) some circumstances in which adult home
(continued . . .)

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supported housing is a more integrated setting than adult homes (SPA-108-113); that DAI’s constituents are qualified for supported housing (SPA-117-146); and that DAI’s constituents are not opposed to receiving services in a more appropriate and integrated setting (SPA-149-157). The State does not challenge these factual findings as clearly erroneous. Together, they establish a violation of the integration mandate of Title II of the ADA and Section 504 of the Rehabilitation Act.
Title II prohibits state and local governments from discriminating against people with disabilities in the provision of public services. 42 U.S.C. 12132. Specifically, Title II mandates 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. Section 504 of the Rehabilitation Act applies an identical nondiscrimination requirement to recipients of federal financial assistance. See 29 U.S.C. 794(a).
(…continued) residents can participate in community life. But the district court recognized those circumstances and nonetheless concluded, based on the overwhelming weight of the evidence, that adult homes segregate DAI’s constituents from the community. SPA-108. Those findings are not clearly erroneous, and the State makes no attempt to show otherwise.

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- 30 Both Title II and Section 504 aim specifically at preventing the segregation of people with disabilities from the community. When Congress adopted Section 504 in 1973, it responded to what the provision’s sponsors called the “invisibility of the handicapped in America”—the Nation’s “shameful oversights” that caused individuals with disabilities “to live among society ‘shunted aside, hidden, and ignored.’” Alexander v. Choate, 469 U.S. 287, 296 (1985) (citation omitted). The purpose of the statute was “to maximize” the “inclusion and integration [of individuals with disabilities] into society.” 29 U.S.C. 701(b). Similarly, the ADA reflected Congress’s finding that “institutionalization” is one of the “critical areas” in which discrimination against individuals with disabilities persists, 42 U.S.C. 12101(a)(3), and 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). These discriminatory practices continue today, Congress explained, through “outright intentional exclusion” and “segregation.” 42 U.S.C. 12101(a)(5). The regulations the Attorney General promulgated to implement Section 504 and Title II make explicit that States must “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) (ADA Title II integration

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- 31 provision); see 28 C.F.R. 41.51(d) (Section 504 coordination regulation applying same integration mandate to recipients of federal financial assistance). See also 42 U.S.C. 12134 (directing the Attorney General to promulgate regulations implementing Title II and requiring that those regulations be consistent with the regulations implementing Section 504). The Attorney General has explained that “the most integrated setting appropriate” means “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 452.
Pursuant to these statues and regulations, the Department of Justice has consistently maintained that unnecessary institutionalization qualifies as discrimination by reason of disability. “Because the Department is the agency directed by Congress to issue regulations implementing Title II,” the Supreme Court has determined that “its views warrant respect” and that courts may properly look to the agency’s views for “guidance” in interpreting the statute. Olmstead v. L.C., 527 U.S. 581, 597-598 (1999) (citation omitted). Thus, the Department of Justice’s interpretation of Title II and its regulations is entitled to deference. Bragdon v. Abbott, 524 U.S. 624, 646 (1998); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).
In Olmstead, the Supreme Court affirmed the Attorney General’s construction of the ADA’s anti-discrimination provision, and held that

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- 32 “[u]njustified isolation * * * is properly regarded as discrimination based on disability.” 527 U.S. at 597. The Court recognized that such segregation is a form of discrimination because unnecessary institutionalization “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and because “confinement in an institution severely diminishes the everyday life activities of individuals.” Id. at 600-601. A violation of the integration mandate occurs where the institutionalized individual is “qualified” for community placement—that is, he or she can “handle or benefit from community settings”—and does not oppose community placement. Olmstead, 527 U.S. at 601-603. The Court stressed that States “are required” to provide community-based treatment for qualified persons who do not oppose such treatment unless the State can establish an affirmative defense. Id. at 607.
This case is a straightforward application of Olmstead and the Attorney General’s integration regulation. Like the plaintiffs in Olmstead, DAI’s constituents are segregated from the community in institutions (adult homes) based on their disabilities even though they could be served in an integrated communitybased setting (supported housing). See SPA-157. The State’s continued segregation of these individuals, through its “administration” of New York’s mental services system, 28 C.F.R. 35.130(d), constitutes unlawful disability-based discrimination and must be remedied.

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B. The State Requires DAI’s Constituents To Live In Segregated Adult Homes As A Condition For Receiving Residential Services The State contends (Br. 29 (emphasis added)) that it cannot be liable under
Title II because it does not confine DAI’s constituents in “segregated state institutions” or “condition[] access to state services on institutional confinement.” That is incorrect. New York has determined that residential services are an integral part of health services for individuals who cannot live independently and has undertaken to provide housing for people with mental illness. See N.Y. Mental Hyg. L. §§ 7.01, 7.07; 18 NYCRR §§ 485.3(a)(1), 487.1(b). But it requires DAI’s constituents to enter segregated adult homes to receive those services, even though supported housing is a more appropriate and integrated place in which to receive them. In New York, just as Olmstead forbids, people with mental illness must “relinquish participation in community life they could enjoy given reasonable accommodations” to receive state-provided services. Olmstead, 527 U.S. at 601.
The State argues (Br. 34-36) that residents can choose not to live in adult homes; to the extent that the residents cannot, the State argues, it is not because of their disabilities, but instead, it is due to their poverty and the high cost of living in New York City. The State’s argument essentially boils down to this: Because it is not required to provide any residential services, whether in an adult home or supported housing, and because DAI’s constituents are free to turn down the State’s offer and fend for themselves if they do not wish to live in an adult home,

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they cannot complain about the segregated nature of the setting in which the State
chooses to provide services. That argument fundamentally misunderstands
Olmstead. The Supreme Court recognized that a State is not required to provide
any residential services. But the Court held that, having undertaken such
responsibility, the State must provide those services in the most integrated setting
appropriate. See Olmstead, 527 U.S. at 603 n.14. Because this case involves
nothing more than a challenge to the segregated setting in which the State provides
residential services to DAI’s constituents, and not the State’s threshold decision
whether to provide those services at all, it does not involve the “[t]hreshold
determinations about the scope and extent of different state programs” that could
properly be considered “legislative and political judgments” (Br. 47).
The record is clear that if they are to receive residential services (the crucial
question under Olmstead), DAI’s constituents have no choice but to receive them in a state licensed and reimbursed adult home.9 Adult home residents, including a
witness for the State, “testified that they were given little or no choice about being
placed in an Adult Home.” SPA-136. For example, one former adult home
9 Therefore, this case is not about the State “offer[ing] community services without also guaranteeing particular forms of community housing” (Br. 47). It is about the State offering housing and other services, but only in segregated adult homes that are not the most integrated setting appropriate. For that reason, the analogy to the federal Medicaid Act, 42 U.S.C. 1396 et seq. (Br. 46), which does not purport to provide housing and is in any event a separate federal statute of equal stature to the ADA and the Rehabilitation Act, is inapposite.

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- 35 resident, I.K., testified that “an Adult Home was ‘the only thing offered’ to her as a housing option” when she was discharged from a psychiatric hospital, while another former adult home resident, G.L., testified that, upon his discharge from a hospital, the State offered him a choice between a “psychiatric facility” and an adult home. SPA-150; see also SPA-136 & n.426, 150 n.529 (listing testimony by adult home residents that they had little or no choice but to agree to enter adult homes). The State’s own expert, Dr. Jeffrey Geller, conceded that residents were not adequately informed about other housing choices once they were placed in adult homes. SPA-151; see also SPA-150-152. Linda Rosenberg, a former OMH Senior Deputy Commissioner, testified that adult home residents were given “only the ‘vaguest’ information about other housing alternatives.” SPA-151. Residents can hardly leave adult homes, as the State asserts, if they are not aware of other housing options and support services.
Even if adult home residents were aware of supported housing as an alternative housing option, the evidence shows that they are virtually shut out of consideration for supported housing. See SPA-163-166. In practice, supported housing units are available only for priority populations determined by the State, which did not designate adult home residents as a priority population until 2005. SPA-163-164. After adult home residents were added as a target population, adult home residents were still “denied access to supported housing because members of

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other priority populations received higher priority.” SPA-164; see also SPA-193. As the State admitted in an OMH document, many individuals with mental illness are “‘stuck’ in * * * adult homes” (SPA-88 (citing PX(2)-66 (P-284 (OMH Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies)))), and the State’s witnesses “testified that Adult Homes are considered permanent placements for individuals with mental illness” (SPA-192 (emphasis added)). The only “choice” adult home residents can make is between receiving residential services in an adult home and receiving no residential services whatsoever. C. Plaintiffs Challenge The Provision Of Residential Services In Segregated
Settings, Not The “Level Of State-Funded Benefits” The State argues (Br. 39) that the Remedial Order requires it to create “‘additional or different’ benefits for ‘the disabled.’” See Rodriguez v. City of New York, 197 F.3d 611, 616 (2d Cir. 1999) (stating that the non-discrimination provision in the Medicaid Act does not require the State to create “a benefit that it currently provides to no one”), cert. denied, 531 U.S. 864 (2000). As explained, the State already provides residential and mental health services to DAI’s constituents in adult homes; DAI’s constituents merely ask for the State to provide those services in supported housing. And supported housing is not a new state program. To the contrary, the State began developing supported housing in the early 1990’s (Br. 12) and has been creating supported housing units ever since.

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- 37 See JA(1)-530 (Newman). In fact, despite the State’s asserted fiscal concerns, it continued, as recently as last year, to create new supported housing units and even issued a Request for Proposal (RFP) for supported housing, although it did not include adult home residents among the target groups. SPA-188, 193, 198.
Indeed, as OMH’s Director of the Bureau of Housing Development and Support testified, creating more supported housing units is consistent with the State’s “current focus” on developing supported housing. SPA-109 (“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.”) (quoting JA(2)-585 (Newman)). To require the State to issue RFPs and designate a particular priority population to receive those particular supported housing beds also comports with the State’s current method for developing supported housing. SPA-109, 163 (describing RFP process); see also JA(2)-587, 591-592 (Newman) (stating that OMH had set aside supported housing beds for homeless individuals through a RFP).
While Olmstead does not impose a “standard of care” for the services that a State provides (see Br. 35-45), it requires States to “adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Olmstead, 527 U.S. at 603 n.14; see also SPA-117. All the plaintiffs seek is to make supported housing, which the State already offers, and the accompanying

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- 38 support services that individuals in supported housing ordinarily receive, available to adult home residents who are qualified and willing to participate and are already receiving state-provided residential and mental health services in adult homes. SPA-110-113, 199-201. The State is offering residential and other service to DAI’s constituents, but not in the most integrated setting appropriate. That is a violation of Title II and Section 504. D. The Coalition’s Additional Arguments Do Not Warrant Reversal
The Coalition raises two points that the State did not. Neither is availing. 1. The Coalition asserts (Mov. 45-50) that Olmstead requires courts to defer to the State’s treatment professionals’ judgment and that New York’s “individualized assessment and referral” practice for placing individuals in adult homes is reasonable. Although Olmstead itself involved two plaintiffs whose treatment professionals had determined community placement was appropriate, the integration mandate is not limited to that narrow fact setting. The regulation that creates the integration mandate does not refer to treating professionals; it simply requires services to be administered “in the most integrated setting appropriate to the needs of” the individual. 28 C.F.R. 35.130(d). The regulation does not in any way purport to limit the evidence on which a plaintiff may rely in showing that a more integrated setting is appropriate. Indeed, a requirement that Olmstead

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- 39 plaintiffs come to court armed with the recommendations of a State’s treating professionals would “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.” SPA-148-149 (“The court does not read Olmstead as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting. * * * To find otherwise would render the ADA’s integration mandate effectively unenforceable.”). The Court in Olmstead was simply stating that, when treating professionals determine that an individual with mental disability is eligible for community placement, there is no reason not to place that person in a more integrated setting, barring a fundamental alteration defense. 527 U.S. at 603.
In any event, despite the Coalition’s emphasis on the importance of the State’s treatment professional’s judgment, the reality is that the State does not place individuals with mental illness in adult homes, as opposed to supported housing, based on any clinical differences. Former OMH Senior Deputy Commissioner Rosenberg testified that the State’s decision to place individuals in adult homes was “by ‘luck of the draw for the most part’ rather than by any clinical determination that it is an appropriate setting” and that adult home and supported

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housing residents “by and large have similar characteristics.” SPA-130; see also SPA-124-130, 135-137 (finding no material clinical differences between adult home and supported housing residents). The State’s own studies, which concluded that most adult home residents—indeed, a “vast majority”— could be more appropriately served in supported housing, underscore the similarities between residents in adult homes and supported housing. SPA-133-134; see also SPA-131132, 139, 147 (referring to the Workgroup Report and Assessment Project report).
Furthermore, under the State’s current procedures, state “treatment professionals” are not even involved in evaluating applications for supported housing. SPA-124 n.322. The Human Resources Administration (HRA), the New York City agency that evaluates applications for supported housing, does not conduct individualized clinical assessments and relies solely on an electronic application form. SPA-124 n.322.10 Accordingly, requiring DAI’s constituents who wish to move to supported housing to ask the State for a reassessment, as the Coalition suggests (Mov. 51), would be futile.
2. The Coalition argues (Mov. 51-52) that the record does not show “either a large need or desire on the part of adult-home residents to move to supported
10 The State’s policy is consistent with the opinion of DAI’s experts that individual assessments “are only necessary to determine the specific supports that each resident would need once placed in supported housing,” and are not needed for determining whether an individual is qualified for supported housing. SPA-124 n.322.

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- 41 housing,” as evidenced by the fact that it “took two years just to fill 45 slots” of the 60 supported housing units created for adult home residents. The Coalition’s reliance on the unused supported housing beds is misplaced. In 2007, a one-time legislative initiative created 60 supported housing beds exclusively for adult home residents. SPA-164. OMH did not propose the initiative. SPA-164-165. At the time of trial, in May 2009, 45 adult home residents had moved to supported housing under the initiative, and 15 adult home residents were in the process of securing the remaining slots. SPA-164.
The Coalition incorrectly attributes the time it took to fill the slots to a lack of interest by adult home residents in moving to supported housing. Although the supported housing units were authorized in 2007, OMH did not start informing adult home residents of the availability of these beds until March 2008. JA(1)490-491 (Dorfman); see also SPA-153-154. OMH’s outreach consisted mainly of holding housing forums to discuss supported housing options at 11 adult homes and one general forum conducted at the Brooklyn Public Library. JA(1)-491 (Dorfman); SPA-154. Only a handful of residents at those 11 adult homes were invited by the residential councils (composed of adult home residents) and case managers to attend the forums. JA(1)-491, 493, 504-505 (Dorfman). Even the general forum was limited to select adult home residents at adult homes with onsite OMH-funded case managers or residents who were known to the Coalition for

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- 42 Institutionalized, Aged, and Disabled (CIAD), a volunteer organization consisting of adult home residents who advocate on behalf of adult home residents. JA(1)505 (Dorfman); JA(2)-706 (I.K.). Thus, any individual in an impacted adult home that does not have on-site OMH-funded case managers, of which there are many, and was not known to CIAD, was excluded from the forums. JA(1)-505 (Dorfman). Despite this limited outreach, all of the 60 supported housing beds were filled or accounted for within a year from the time the State informed adult home residents about supported housing. SPA-164.
The difference in the success rate of adult home residents securing placement in supported housing under the legislative initiative (60 units in one year) and under the State’s normal operating procedures (about 32 from 2002 to 2009) demonstrates not only that adult home residents are interested in receiving services in more appropriate and integrated settings, but also that they “[do] not have access to supported housing as a practical matter.” SPA-165. The “enthusiastic responses” of adult home residents at the housing forums in connection with the 60 allocated beds are consistent with the findings of DAI’s experts and the State’s own Assessment Project that, once informed of more appropriate and integrated housing alternatives, individuals in adult homes would prefer a more independent setting. SPA-150-157.

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- 43 The record also contains testimony by adult home residents that they would prefer to live in their own apartments. SPA-155. To be sure, some adult home residents have expressed “fear and reluctance” to leave adult homes, but, as the district court found, this phenomenon commonly occurs in institutional settings, where individuals fear leaving the institution even if they are capable of living independently. SPA-156. The court’s order provides that none who opposed moving to supported housing will be forced to go. SPA-150. But the district court concluded that DAI’s constituents, as a whole, are not opposed to moving to more appropriate and integrated settings, and the State does not argue that that finding was clearly erroneous. SPA-157.
* * * In sum, this case is not about how adult home providers treat their residents (Br. 36) or about requiring the State to provide integrated housing whenever it provides any mental health services (Br. 45). Rather, it is about how this State has chosen to provide mental health services in residential settings—adult homes, which are segregated institutions, and supported housing, which is not—and how it has precluded adult home residents, who are qualified and willing, from moving to the more appropriate and integrated setting. That is what the integration mandate and Olmstead prohibit. The State cannot simply argue that the Court should respect its line-drawing decisions or its choices in allocating resources (Br. 43, 47,

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58) when the State is already providing services to DAI’s constituents but only in a segregated setting. The State has made a limited number of beds in supported housing available to those with mental illness living in adult homes. As the district court found, the State has no plan to remedy the segregation of the remaining adult home residents, and the governor, because of OMH’s objections, vetoed a bill that would have required OMH to maintain a waiting list for community housing, including supported housing. SPA-193; see also SPA-166 (stating that the State does not maintain a waiting list for community housing programs).
II THE DISTRICT COURT CORRECTLY HELD THAT THE STATE FAILED TO PROVE A FUNDAMENTAL ALTERATION DEFENSE
Where an institutionalized person with a disability is qualified for and does not object to a more appropriate and integrated placement, Olmstead requires the State to make that integrated placement if it can be “reasonably accommodated,” unless the State can establish that the placement would work a “fundamental alteration” of the State’s services. Olmstead v. L.C., 527 U.S. 581, 607 (1999); id. at 603 (plurality opinion). The State contends that placing DAI’s constituents in supported housing is not a reasonable accommodation and would fundamentally alter its mental health system. The district court correctly rejected those arguments.

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A. Moving DAI’s Constituents From Adult Homes To Supported Housing Would Work Only A Reasonable Modification Moving adult home residents into supported housing would work only a
reasonable modification of the State’s current programs. As described above, the State already provides residential and supportive services to DAI’s constituents who are in adult homes, and it already provides supported housing of the type that adult home residents could use. Considering that the State has not made supported housing accessible, in a meaningful way, to qualified and willing adult home residents, offering supported housing to these individuals will necessarily increase the number of supported housing units in New York City (Br. 54). Expanding a State’s existing program, however, is not an unreasonable modification. See Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 621 (9th Cir. 2005) (stating that expansion of a State’s Medicaid waiver program could be a reasonable modification required by the ADA). That is particularly true here, where moving adult home residents to supported housing will result in a net savings for the State. SPA-172-188, 191, 195-198, 201.
The State also contends that “[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’” (Br. 51 (quoting Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737, 755 (7th Cir. 2006) (en banc))). The Seventh Circuit’s decision in Wisconsin Community Services did not involve

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the integration mandate. In the integration context, it is clear that a plaintiff need not prove that sort of causation. In Olmstead, 527 U.S. at 598, the Court held that the plaintiffs could make out a case under the integration mandate even if they could identify “no comparison class” of “similarly situated individuals” without disabilities who received the community-based services they sought. It was enough that the State currently provided them services in an institutional setting that was not “the most integrated setting appropriate.” 28 C.F.R. 35.130(d). And in Henrietta D. v. Bloomberg, 331 F.3d 261, 273-277 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004), this Court held that a Title II reasonable accommodation claim is distinct from a claim of disparate treatment or disparate impact and accordingly does not require proof of those forms of discrimination. B. Defendants Have Not Carried Their Burden To Show A Fundamental
Alteration To prove a fundamental alteration, the State has the burden “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 (plurality opinion). The record does not support the State’s fundamental alteration arguments.

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1. The District Court Did Not Clearly Err In Finding That The State Will Save Money On Net By Placing Adult Home Residents In Supported Housing
The reasonable modification regulation specifically requires “the public entity” defendant to carry the burden to “demonstrate that making the [plaintiff’s requested] modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. 35.130(b)(7). And the Olmstead plurality made clear that it is up to “the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable.” 527 U.S. at 605 (emphasis added).
After hearing extensive trial testimony, the district court ruled that the State had not satisfied that burden. SPA-198-201. The district court correctly took into account all of the costs of providing mental health services to adult home and supported housing residents. These costs include not just the rental subsidy for supported housing, but also Medicaid and SSI supplement costs. The district court found that the State’s annual costs for an individual in an adult home consist of $15,750 for Medicaid services and $8,328 for the State’s portion of the SSI (totaling $24,078), while the costs for supported housing consist of $8,234 for Medicaid services, $1,044 for SSI, and $14,654 for the rental subsidy (totaling $23,932). SPA-181. Based on these actual amounts that the State has paid, the district court found that the additional spending for rental subsidies for supported

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housing recipients ($20 million in connection with the first 1,500 new supported housing beds) was more than offset by the savings in state Medicaid and SSIsupplement outlays and that allowing qualified and willing adult home residents to move to supported housing will result in a net savings of $146 per person per year. SPA-174-175, 181 (chart taking all relevant costs into account and showing that supported housing costs the State less).11 This savings will occur immediately, as each DAI constituent moves from an adult home to supported housing, and that does not count the potential longer-term savings if the State can reduce the overhead expenses it reimburses for adult homes. SPA-181-184. Far from making it harder for the State to meet the needs of other people with disabilities (cf. Br. 58), moving DAI’s constituents from adult homes to supported housing will at the margins free up additional resources for those other disability groups.
The State makes no effort to show that those findings are clearly erroneous. Instead, it seeks to flip the burden of proof—and to heighten it to demand certainty in the finding that the requested remedy will save money. Thus, the State criticizes the district court (Br. 60) for relying on “cost estimates [that] are precisely that— estimates, which rely on future savings and funding sources that may or may not
11 The State asserts (Br. 54) that the first 1,500 supported housing units will cost $65 million. But that estimate, which appears to reflect the amount of the annual rental subsidy ($14,654) for 4,500 supported housing units, describes a gross, not a net, cost (Br. 52-66).

Case: 10-235 Document: 274 Page: 62 10/06/2010 120368 105
- 49 occur.” But the fundamental alteration defense necessarily requires predictions about the future, and the district court did not pull those predictions out of thin air. The district court’s findings of immediate and future cost savings were based on extensive testimony that relied on the State’s experience with financing both adult homes and supported housing, and that considered the nature of the disabilities that adult home residents have, and the likely cost, based on the State’s experience, of serving them in supported housing. SPA-172-201. That evidence was fully sufficient to support the district court’s finding. A district court is not required to resolve all doubts—or even all reasonable doubts—in a civil case. Rather, district courts must make factual findings based on the preponderance of the evidence, applying the relevant burden of proof, and those findings cannot be overturned unless they are clearly erroneous. Fed. R. Civ. P. 52(a)(6).
The State has not come close to showing that the district court’s cost-savings findings are clearly erroneous. The State is especially poorly positioned to challenge those findings, because it failed to provide any analysis comparing the costs of support services in adult homes with that in supported housing. SPA-184185, 188; cf. Br. 59 n.8. The State in fact criticizes the district court (Br. 61) for relying on its failure in this regard. But it is the State’s burden to establish a fundamental alteration defense, and a State cannot satisfy that burden by pointing only to “vaguely-defined fiscal constraints.” Frederick L. v. Department of Public

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- 50 Welfare, 364 F.3d 487, 496 (3d Cir. 2004). In any event, the State’s cost expert, R. Gregory Kipper, conceded on cross-examination “that there were several ways that an estimate could have been done to arrive at approximate figures to determine the effect on the State’s costs.” SPA-174. For example, 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.” SPA-174. Yet the State did not direct its cost expert to do such an analysis. JA(2)-744 (Kipper). Nor did OMH perform this analysis. OMH’s Chief Fiscal Officer Martha Schafer-Hayes testified, “[OMH did] not perform[] any studies or any analysis about the impact * * * [creating] supported housing beds for adult home residents would have on the OMH budget.” SPA-174.
As required by Olmstead, 527 U.S. at 604-605, the district court not only considered the real costs of providing services to individuals with mental disabilities in adult homes versus supported housing, but also any other costs associated with moving adult home residents to supported housing. The district court considered and rejected the State’s arguments concerning future costs because the State failed to provide any evidence in support. The State ignored evidence that it is already paying for DAI’s constituents to receive support services in adult homes and that many adult home residents would not require extensive support services to live in supported housing. The State also provided “no

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evidence” concerning how the cost of administrative services would increase. SPA-186. Likewise, the State “did not offer any evidence that backfill, if it were to occur, would result in increased costs to the State.” SPA-186. On the contrary, the district court said, the evidence showed that the vacated adult home beds would likely be provided to homeless persons and persons discharged from state psychiatric hospitals and that would result in a cost savings for the State. SPA186. The State does not argue that the court erred, much less clearly erred, in making these factual findings.
Contrary to the State’s suggestion (Br. 51, 64), the district court’s costsavings determination did not assume that the State would “divert money from other mental-health programs and close adult homes if necessary to fund a new entitlement for DAI’s constituents,” though the district court did note that the State could realize additional savings in the long term by taking such steps. SPA-181184. Even on appeal, the State cannot point to any specific costs in the record that the district court should not have considered.12
12 The Coalition incorrectly argues (Mov. 58) that supported housing providers may apply for financial assistance from the State and that the cost of debt financing adds $11,600 per year to the cost of each supported housing unit. Such debt financing is available only to providers of supportive housing (not supported housing), which is not at issue. DX(3)-552 (D-441 (chart comparing costs of the State’s residential programs to adult homes)); see also SPA-165 n.635 (distinguishing supportive housing from supported housing).

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2. The State’s Fiscal Difficulties Provide No Basis For Rejecting A Remedy That Will Actually Save The State Money
Nor do the State and Coalition’s arguments (Br. 61; Mov. 55-56) concerning its fiscal difficulties undermine the district court’s cost savings calculation. As described above, implementation of the district court’s order will impose no net costs, even in the short term. As the district court found, the State “did not present any evidence showing a nexus between the current state of the economy and the specific relief DAI seeks.” SPA-198. The court said, “[t]he record is devoid of evidence showing that the current fiscal difficulties have limited OMH’s ability to develop supported housing,” which requires no outlay of capital because it relies on existing units in the community. SPA-188. That the State had issued a Request for Proposal for “230 beds of new supported housing, with conditional awards to be made in July 2009,” demonstrates that the State is capable of developing new supported housing units notwithstanding its budget problems, even without the benefit of the cost savings associated with moving adult home residents to supported housing. SPA-188; see also SPA-142.
Although financial resources are relevant, general allegations of fiscal difficulties alone, such as the State’s references to its “financial crisis” (Br. 61), are not sufficient to establish a fundamental alteration defense (SPA-198). See Frederick L., 364 F.3d at 496; Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1183 (10th Cir. 2003) (a State cannot choose to solve a fiscal crisis by taking

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- 53 steps that impede integration when other available solutions would promote integration); Townsend v. Quasim, 328 F.3d 511, 519-520 (9th Cir. 2003) (budget constraints alone do not establish a fundamental alteration defense).
Furthermore, the record contradicts the State and Coalition’s assertion (Br. 64-66; Mov. 55) that compliance with the Remedial Order would adversely affect other needy populations and force the State to cut programs and services for other groups to fund new supported housing units. Because moving DAI’s constituents from adult homes to supported housing will save the State money on net, it will not require the State to cut back on any other state program. SPA-189 (finding that the State failed to provide sufficient evidence that the requested relief would force the State to cut back on state programs); see also SPA-195-201. Also, there is no evidence that the State has had to take funds away from others when it developed supported housing units in the past. SPA-188-189.
Pursuant to the State’s practice, the State could “use funds currently spent on adult home residents to serve adult home residents in supported housing.” SPA-71 (discussing the concept of “redirecting spending” or “money follows the person”). The State implies (Br. 15) that it would be difficult to reallocate funds between agencies in connection with transferring residents from adult homes to supported housing. The evidence contradicts this argument. As the district court found, “ample evidence in the record demonstrat[es] the State’s ability to redirect funds as

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individuals with mental illness move from one setting to another.” SPA-187. The State had in fact reallocated funds between agencies for mental health services many times in the past and its witnesses testified that the State is capable of doing so in the future. SPA-187.
As for the State’s argument (Br. 65) that downsizing or closing underpopulated adult homes would adversely affect others remaining in the adult homes, it is entirely within the State’s discretion to decide how to handle the vacancies. SPA-187. Providing those adult home spots to homeless individuals, for instance, would continue to populate those facilities while at the same time saving the State money. SPA-186-187.
3. The State Did Not Establish That It Has A Comprehensive, Effectively Working Plan To Move Adult Home Residents Into Integrated Settings
As the State points out (Br. 54), Olmstead allows a State to avoid liability if it has “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.” Olmstead, 527 U.S. at 605-606 (plurality opinion). The district court correctly concluded that the State did not have any plan—let alone “a comprehensive, effectively working plan,” Olmstead, 527 U.S. at 605—to enable adult home residents to move to more appropriate and integrated settings. SPA-

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- 55 158-172. Nor does the State even maintain a waiting list for adult-home residents who seek supported housing. SPA-166.
Despite the State’s commitment to developing supported housing, the record is clear that the State has not provided—and does not believe it is obligated to provide—qualified adult home residents with services in more integrated settings appropriate to their needs. SPA-191-195. The State cannot assert (Br. 57) that Olmstead allows it to provide mental health services to other needy groups without even a plan for serving individuals with mental illness who are “‘stuck’ in” institutional adult homes. SPA-88 (quoting PX(2)-66). Without showing that it has taken steps to place qualified and willing adult home residents in more appropriate and integrated settings, the State is not entitled to invoke the fundamental alteration defense. See Frederick L. v. Department of Welfare, 422 F.3d 151, 157 (3d Cir. 2005) (stating that “a comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense”); Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (“[T]he 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.”). Cf. Braddock, 427 F.3d at 620 (“So long as states are genuinely and effectively in the process of

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deinstitutionalizing disabled persons ‘with an even hand,’ we will not interfere.”) (citation omitted); Sanchez v. Johnson, 416 F.3d 1051, 1067-1068 (9th Cir. 2005) (“[W]hen 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, including the maintenance of institutional care facilities, is ‘effectively working,’ the courts will not tinker with that scheme.”) (citation omitted).
The State responds by sleight-of-hand. It asserts (Br. 55) that it has a plan to deinstitutionalize individuals from state psychiatric facilities. But it makes no effort to show that it has “a comprehensive, effectively working plan for placing qualified” adult home residents in less restrictive settings. Olmstead, 527 U.S. at 605-606 (plurality opinion). Instead, it contends (Br. 56) that Olmstead does not require such a plan because this case does not involve the State’s “obligation to deinstitutionalize eligible patients.” But that is exactly what this case is about. SPA-88-108 (finding that adult homes are institutions). C. The State’s Supported Housing Program Is Not Limited To Those Who Need
“Minimal” Services The Coalition contends (Mov. 53) that the remedy is a fundamental alteration of the State’s supported housing program because supported housing is appropriate only for individuals with mental illness “who are able to live independently with minimal support services.” See also Br. 59 n.8. To the

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- 57 contrary, the State has not imposed such a requirement on individuals in supported housing. SPA-118, 122. OMH’s 1990 Supported Housing Implementation Guidelines, which the State relied on at trial to argue that supported housing is for individuals with minimal needs, do not state “that supported housing is only for— or even targets—those with minimal needs.” SPA-122. In fact, OMH has issued several RFPs for supported housing targeting populations with “significant needs.” SPA-118. For instance, OMH issued a RFP in 2005, targeting individuals with “high needs,” such 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.” SPA-118. Robert Myers, OMH’s Senior Deputy Commissioner, also testified that some supported housing residents have “extensive psychiatric needs.” SPA-119. Indeed, the State’s brief on appeal (Br. 68) says that supported housing is designed “to serve individuals with serious mental illness.” Nor is supported housing only for individuals who are in “serious jeopardy” of being homeless (Mov. 53). Otherwise, the State would not have designated adult home residents as a priority population. SPA-164.

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III THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN CONCLUDING THAT THE REMEDIAL ORDER IS NARROWLY
TAILORED TO THE STATE’S VIOLATION As this Court has explained, “a district court has broad discretion to enjoin possible future violations of law where past violations have been shown.” Henrietta D. v. Bloomberg, 331 F.3d 261, 290 (2d Cir. 2003). A remedy for unlawful discrimination must “aim[] to ‘eliminate [so far as possible] the discriminatory effects of the past’ and to ‘bar like discrimination in the future.’” United States v. Virginia, 518 U.S. 515, 547 (1996) (quoting Louisiana v. United States, 380 U.S. 145, 154 (1965)) (bracketed phrase in Virginia). The district court asked the State to submit a remedial proposal, as suggested in Lewis v. Casey, 518 U.S. 343, 362-363 (1996), but the court rejected that proposal because it would not provide complete relief. That determination was not an abuse of discretion. 1. The State contends (Br. 69-72) that the Remedial Order is, on the one hand, too intrusive on state authority because it subjects the State to the courtappointed monitor and the court’s review and, on the other hand, too vague because it gives the State some discretion in implementing the court’s order. With respect to the State’s federalism argument, the Remedial Order does not unnecessarily intrude on state authority. It simply directs the State to comply with the integration mandate of Title II of the ADA and Section 504 of the

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- 59 Rehabilitation Act by developing the necessary number of supported housing slots. SPA-234. The Remedial Order is narrowly tailored to ensure that the qualified and willing adult home residents are offered supported housing beds at a “reasonable pace,” Olmstead v. L.C., 527 U.S. 581, 606 (1999) (plurality opinion), based on the evidence at trial showing that the State is capable of creating 1,500 supported housing beds per year. SPA-190.
The Remedial Order also incorporates for the most part the State’s current operating procedures for developing supported housing units. For example, it adopts the State’s normal procedures for creating supported housing through the RFP process. SPA-236; see also SPA-109, 163 (describing RFP process). And it retains the State’s eligibility requirements for supported housing. SPA-238-239. It does not require supported housing be offered to those who pose a danger to themselves or others, just as those individuals are excluded from adult homes. SPA-237. Likewise, the Remedial Order incorporates the State’s process of allowing supported housing providers—not state treatment professionals—to assess individuals to determine their necessary supports and services. SPA-237238; see also SPA-119, 148. Cf. Br. 67-68; Mov. 50. Also consistent with current procedures, supported housing providers make the “final determination” whether an individual is qualified to enter their programs. SPA-144.

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- 60 To the extent that “changing circumstances” and “new policy insights” (Br. 72) affect the State’s ability to comply with the injunction, the State may seek to modify the injunction under Federal Rule of Civil Procedure 60(b)(5) at that time. See Horne v. Flores, 129 S. Ct. 2579, 2593-2594 (2009) (bringing new policy insights to bear on institutional reform decrees is the role of Rule 60(b)(5)); Rufo v. Inmates of the Suffolk Cnty. Jail, 502 U.S. 367, 383-384 (1992) (party may seek to modify an injunction based on a significant change in factual conditions or the law). But the mere possibility that circumstances will change in the future does not warrant overturning the injunction at the outset. Contrary to the State’s argument (Br. 69-71), nothing in Olmstead requires courts to issue declaratory relief instead of injunctive relief. An injunction is especially appropriate here. Although the State has shown a commitment to developing community housing in general, it has shown an equally strong disregard of its obligation to adult home residents. SPA-193. Indeed, the State has given no assurance that, absent an injunction, it would make progress in enabling adult home residents to live in more appropriate and integrated settings. Even after being directed by the court to submit a proposed remedial order consistent with the court’s findings of fact and conclusions of law, the State did not. The State’s proposed remedial order did not merely seek to narrow the remedy, but “directly contradict[ed] the court’s explicit findings of fact.” SPA-220. For instance, it

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- 61 proposed to create 200 supported housing beds each year despite the court’s finding that it was capable of developing 1,500 beds per year. SPA-220-221. This proposal was not only inconsistent with the court’s findings, but it also was based on arguments, such as generalized assertions about the State’s fiscal problems, that the district court considered and rejected at trial. SPA-228-229.
The State’s vagueness argument is also unavailing. “Although it is true that ‘fairness requires that the litigants receive explicit notice of precisely what conduct is’ required, * * * fairness does not require a district court to resolve every possible inquiry or contingency that an injunction might raise.” Laforest v. Former Clean Air Holding Co., 376 F.3d 48, 60 (2d Cir. 2004) (citation omitted). As this Court stated in Laforest, so long as the defendant “received notice of what it [has] to do, what standard would guide its conduct, and the time frame in which to do it,” the court “need not specify * * * more precisely” how to comply with the injunction. Ibid. Here, the Remedial Order clearly requires the State to create the specified number of supported housing beds in four years, pursuant to its standard RFP procedure for developing supported housing units, and to give supported housing providers access to adult homes to conduct in-reach and to determine the necessary support services. SPA-236-238. As discussed supra, allowing support service providers to assess adult home residents is consistent with the State’s current

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- 62 practice. SPA-119. Accordingly, the State has adequate notice of what it needs to do to comply with the Remedial Order.
2. The State argued at trial that supported housing is designed for individuals with mental illness who require minimal support services, but it argues for the first time on appeal that the Remedial Order is overbroad because it would allow individuals who do not have a serious enough mental illness into supported housing. Compare Br. 68 with SPA-121-122. The State cannot raise a new argument for the first time on appeal. See Katel Ltd. Liab. Co. v. AT&T Corp., 607 F.3d 60, 68 (2d Cir. 2010) (“An argument raised for the first time on appeal is typically forfeited.”). The State also fails to cite to anything in the record showing that adult home residents do not qualify for supported housing in this respect. In any event, DAI’s constituents in adult homes do have serious mental illnesses: they “have one or more major illnesses, such as schizophrenia, bipolar disorder, depression and others, which constitute mental impairments that substantially limit one or more major life activities.” SPA-80 n.6. Moreover, the record is clear that there are no material differences between adult home residents with mental disabilities and supported housing residents. SPA-135 (finding that “[t]here is generally little distinction between the psychiatric characteristics of Adult Home residents and supported housing residents”).

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- 63 3. The State and Coalition’s remaining arguments (Br. 73-74; Mov. 58-60) are similarly without merit. First, the district court stated that DOH and its commissioner are proper defendants because DOH participates in the administration of the State’s mental health services, and their inclusion is necessary to afford full relief to DAI’s constituents (e.g., they will need to coordinate with adult homes and other state agencies to implement the Remedial Order). SPA-201-202. The State does not offer any facts or controlling law that supports a contrary conclusion. Second, the remedial order is not based on only the testimony of a handful of adult home residents, as the Coalition asserts (Mov. 58-60). The district court correctly found that, even though a large number of adult home residents are uninformed about alternative housing options, most of them are not opposed to receiving services in a more appropriate and integrated setting. SPA-157. This is consistent with the opinion of DAI’s expert, Elizabeth Jones, who spoke to 179 residents during her visits to adult homes, and the State’s Assessment Project, which found that “56% of the residents * * * reported a preference to move out of their adult home[s].” SPA-153. This evidence, coupled with the court’s finding that adult home residents are virtually shut out of the supported housing program, is sufficient to support the scope of the Remedial Order. Despite the State and Coalition’s demands (Br. 73; Mov. 58-59), the identification of an individual who

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- 64 has applied for and was denied supported housing is unnecessary in light of the foregoing evidence. Furthermore, the record shows that the filing of an application for supported housing is not an appropriate measure of whether an individual is qualified for (and interested in) supported housing. SPA-144-145. Adult home residents must rely on adult home staff or social workers employed by adult homes to help them file this electronic form and often residents are unable to find someone willing to file the form on their behalf. SPA-144-146. In fact, “[t]he record is replete with testimony from residents explaining that, when they expressed an interest to case managers or other mental health providers in moving to more independent housing, they received no help—and often outright discouragement—in exploring and securing alternative housing options.” SPA145.
Lastly, as this Court stated in Henrietta D., 331 F.3d at 290, a district court is “free to assume that past misconduct is highly suggestive of the likelihood of future violations.” The record supports enjoining any future violations. See SPA235. Besides, the Remedial Order expressly provides that the parties may file a motion to terminate the court’s jurisdiction upon a showing of good cause. SPA236. If circumstances change—e.g., the State shows that it has a comprehensive, working plan for ensuring that qualified and willing adult home residents are able to receive services in a more appropriate and integrated setting and a waiting list

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that is moving at a reasonable pace—the State is free to move the district court to terminate its jurisdiction over the case. SPA-236. That provision of the order should remove any legitimate objection to the district court’s decision to reach future adult home residents (cf. Br. 73-74).
IV THE DISTRICT COURT CORRECTLY HELD
THAT DAI HAS STANDING The district court held that DAI has statutory authority under the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. 10805(a)(1)(B), to represent its constituents in this action, and that DAI has met the requirements for associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). SPA-24-27. The State and Coalition (Br. 74-79; Mov. 28-44) contend that this Court lacks jurisdiction over this action because DAI has not suffered any injury, and that DAI fails to satisfy the requirements for associational standing. These arguments are unavailing. And even if DAI did not have standing, the intervention of the United States as a plaintiff supporting the district court’s prospective remedial order is sufficient to permit that order, and the case, to continue. A. DAI Has Standing DAI’s ability to bring this case is of considerable importance for enforcement of the ADA. The Department of Justice has limited resources and

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- 66 cannot address every violation of the civil rights laws; private litigation is an integral component of their effective enforcement. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972) (where Attorney General’s ability to enforce civil rights law is limited, the “main generating force must be private suits in which * * * complainants act not only on their own behalf but also ‘as private attorneys general in vindicating a policy that Congress considered to be of the highest priority’”) (citation omitted).
In the disability rights area, Congress created protection and advocacy systems to fill the gap left by the Department of Justice’s limited resources. PAIMI specifically grants protection and advocacy systems, which serve as an essential part of the federal disability rights enforcement scheme, authority to “pursue administrative, legal and other appropriate remedies to ensure the protection of individuals with mental illness.” 42 U.S.C. 10805(a)(1)(B). Protection and advocacy systems are created pursuant to federal statute and funded by federal appropriations; they have authority to “bring suits in [their] own right to redress incidents of abuse or neglect, discrimination, and other rights violations.” 42 C.F.R. 51.6(f). PAIMI’s specific authorization of protection and advocacy agencies to assert the rights of their constituents is “sufficient to rebut the usual presumption (in the statutory context, about Congress’s intent) that litigants may

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- 67 not assert the rights of absent third parties.” United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 557 (1996).
Even if PAIMI were not sufficient by itself to give DAI standing in this action, that statute does help demonstrate that DAI has associational standing to sue on behalf of its constituents in adult homes. In Hunt, the Supreme Court held that the Washington Apple Advertising Commission, a state agency charged with protecting and promoting Washington’s apple industry, had associational standing to challenge a North Carolina statute on behalf of Washington apple growers and dealers even though the agency was not a traditional voluntary membership organization. 432 U.S. at 343-345. The Court confirmed that an association has standing to sue on behalf of its members when “(a) its 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.” Id. at 343. The first two prongs are Article III requirements, but the third prong is a prudential requirement. United Food, 517 U.S. at 555-558. Contrary to the State and Coalition’s arguments, all three conditions are met here. SPA-25-27 & nn.2223.

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1. The State and Coalition argue (Br. 75-77; Mov. 30-32) that DAI does not meet the first prong of the Hunt test because DAI lacks “members.”13 They assert (Br. 76-78; Mov. 31-36) that the aspects of representation and control found in Hunt—the apple growers and dealers “alone elect the members of the Commission; they alone may serve on the Commission; [and] they alone finance its activities”— are the only indicia of membership that would convert DAI’s constituents into “members” to justify granting associational standing. Hunt, 432 U.S. at 344. The Supreme Court, however, did not state that those were the only indicia of membership that would be sufficient to satisfy Article III requirements. To the contrary, the Court emphasized that a broad view of associational standing was necessary to avoid “exalt[ing] form over substance.” Id. at 345.
The State and Coalition’s argument is inconsistent with Hunt. PAIMI reflects Congress’s determination that individuals with mental disabilities are a unique and vulnerable population. 42 U.S.C. 10801(a)(1). Institutionalized individuals, in particular, face significant pressure against complaining that their rights are violated by the staff members who control nearly every aspect of their daily lives. This is certainly true of adult home residents, who fear retaliation by
13 Both here and in district court, the State only argues that DAI does not meet the first prong of the test. SPA-25 n.22 (“Defendants explicitly concede that DAI has met the second element and do not contend that DAI has failed to satisfy the third element.”).

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- 69 adult home staff for participating in this action. SX(4)-331 (S-151 (E. Jones Report)). Congress recognized these barriers when it authorized and funded protection and advocacy organizations and gave them the power to access facilities, view records, and litigate on behalf of individuals with mental disabilities. As the Ninth and Eleventh Circuits concluded, protection and advocacy organizations (including DAI) are analogous to the Commission in Hunt because they “serve[] a specialized segment of the * * * community which is the primary beneficiary of its activities, including prosecution of this kind of litigation.” Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999) (quoting Hunt, 432 U.S. at 344); see also Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1111 (9th Cir. 2003).
The State and the Coalition’s formalistic definition of membership also ignores the fact that Congress created a number of mechanisms of participation and accountability to ensure that protection and advocacy organizations would be responsive to the population they are charged with serving. Congress required those organizations to have a governing board “composed of * * * members * * * who broadly represent or are knowledgeable about the needs of the clients served by the system,” including “individuals who have received or are receiving mental health services and family members of such individuals.” 42 U.S.C. 10805(c)(1)(B). Congress also required protection and advocacy systems to seek

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- 70 advice and guidance from a PAIMI advisory council, which must have “at least 60 percent [of its] membership * * * comprised of individuals who have received or are receiving mental health services or who are family members of such individuals; and * * * 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.” 42 U.S.C. 10805(a)(6)(B)-(C). The statute also requires protection and advocacy systems to establish a grievance procedure for their clients to ensure that the organization is operating in compliance with the provisions of PAIMI. 42 C.F.R. 51.25(a)(1). In addition, the public must be given the opportunity to comment on all decisions made by the PAIMI advisory council, and procedures for public comment must be in a format accessible to individuals with mental illness. 42 C.F.R. 51.24(b).
Both the Ninth and Eleventh Circuits concluded that these statutory provisions establish a tight connection between protection and advocacy organizations and their constituents that fully satisfies Article III. See Mink, 322 F.3d at 1111-1113; Stincer, 175 F.3d at 886. In doing so, those courts specifically rejected the arguments made by the State and Coalition (Br. 77; Mov. 30-36)— “that without a direct membership linkage to incapacitated defendants, [the protection and advocacy organization] cannot rely on injuries to those mentally ill defendants to meet the injury in fact requirement and establish the personal stake in

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the outcome of the litigation that the Constitution demands.” Stincer, 322 F.2d at
885-886; see also Mink, 322 F.3d at 1111-1112.
Only one court of appeals, by contrast, has found that a PAIMI advocacy
organization lacks associational standing. See Missouri Prot. & Advocacy Servs.,
Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007). The Missouri Protection &
Advocacy court appeared to require the exact indicia of membership that were
present in Hunt. But that court did not even acknowledge the extensive
mechanisms of participation and accountability Congress established to make
protection and advocacy systems responsive to their constituents, nor did it give
effect to Congress’s specific grant of authority to those systems to sue in their own
right to seek remedies on behalf of their constituents.14
14 Not surprisingly, most district courts to address the issue have held that protection and advocacy organizations have associational standing. See, e.g., Advocacy Ctr. for the Elderly & Disabled v. Louisiana Dep’t of Health & Hosps., No. 10-1088, 2010 WL 3170072, at *7 (E.D. La. Aug. 9, 2010); Office of Prot. & Advocacy for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266, 279284 (D. Conn. 2010); Indiana Prot. & Advocacy Servs. Comm. v. Commissioner, Indiana Dep’t of Correction, 642 F. Supp. 2d 872, 880 (S.D. Ind. 2009); Laflamme v. New Horizons, Inc., 605 F. Supp. 2d 378, 396-398 (D. Conn. 2009); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 307-309 (E.D.N.Y. 2008); New Jersey Prot. & Advocacy, Inc. v. Davy, No. 05-1784, 2005 WL 2416962, at *2-3 (D.N.J. Sept. 30, 2005); University Legal Servs., Inc. v. Saint Elizabeth’s Hosp., No. 1:05-cv-585, 2005 WL 3275915, at *4-5 (D.D.C. July 22, 2005); Ohio Legal Rights Serv. v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877, 883 (S.D. Ohio 2005); Unzueta v. Schalansky, No. 99-4162, 2002 WL 1334854, at *3 (D. Kan. May 23, 2002); Aiken v. Nixon, 236 F. Supp. 2d 211, 224 (N.D.N.Y. 2002); Risinger v. Concannon, 117 F. Supp. 2d 61, 68-71 (D. Me. 2000); Brown v. Stone, 66 F. Supp. 2d 412, 425-427
(continued . . .)

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The Fifth Circuit similarly declined to find associational standing in Association for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (ARC of Dallas), because the organization did not demonstrate the indicia of membership found in Hunt. ARC of Dallas involved an organization authorized by the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 6042, and is therefore inapposite. 19 F.3d at 244 n.5. Unlike in a protection and advocacy system, the constituents of the non-PAIMI organization in ARC of Dallas, the court found without elaboration, were “unable to participate and guide the organization’s efforts.” Id. at 244.
Both the State and Coalition’s demand for additional proof that DAI’s constituents control DAI is inconsistent with Supreme Court precedent. The Coalition argues (Mov. 31, 33) that DAI’s constituents did not “choose” to be its constituents or “seek” DAI’s assistance, but Hunt makes clear that membership need not be voluntary. Hunt, 432 U.S. at 345.
(…continued) (E.D.N.Y. 1999); Rubenstein v. Benedictine Hosp., 790 F. Supp. 396, 408-409 (N.D.N.Y. 1992); Trautz v. Weisman, 846 F. Supp. 1160, 1163 (S.D.N.Y. 1994); Michigan Prot. & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695, 702 n.12 (E.D. Mich. 1992), aff’d on other grounds, 18 F.3d 337 (6th Cir. 1994); Protection & Advocacy, Inc. v. Murphy, No. 90-569, 1992 WL 59100, at *10 (N.D. Ill. Mar. 16, 1992).

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The State and Coalition also argue (Br. 77; Mov. 32) that any Article III
problems could be avoided if DAI had filed this suit on behalf of specific individuals with mental disabilities and brought this action in their names.15
Neither Hunt nor this Court imposes such a requirement. See Disability Rights
Wisconsin, Inc. v. Walworth Cnty. Bd. of Supervisors, 522 F.3d 796, 802 (7th Cir.
2008) (stating that the first Hunt factor does not require organizations to name
members on whose behalf the suit is filed).
2. The second Hunt factor requires only that the lawsuit bears a reasonable
connection to the association’s knowledge and expertise and to the members’
general interests. See Building & Constr. Trades Council v. Downtown Dev., Inc.,
448 F.3d 138, 149 (2d Cir. 2006). The State concedes that DAI meets the second
Hunt factor. The Coalition, on the other hand, portrays itself as protector of the
interests of DAI’s constituents. It contends (Mov. 37) that the relief sought by
DAI would inevitably result in the State’s closing a “large number [of], if not
almost all, adult homes,” which, it contends, would harm DAI’s constituents who
15 The Coalition’s assertion (Mov. 35-36) that Article III requires “proof” that the State violated a DAI constituent’s rights under the ADA incorrectly conflates standing with the merits. It is enough that DAI alleged such a violation and provided sufficient detail to make the claim plausible. For instance, the complaint alleged that the State’s 2002 Workgroup Report found that at least 50 percent or 6,000 adult home residents could live in more integrated community settings. SA-25-26. In addition, DAI initially produced a list of 1,536 adult home residents who are unjustifiably segregated in adult homes and are qualified to receive services in more appropriate and integrated settings. SPA-26.

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choose to remain in adult homes. And it argues (Mov. 39) that “conflicting interests within an association’s membership * * * destroy the association’s power to sue for any of its members.”
But Hunt does not require unanimity within an organization. In fact, in UAW v. Brock, 477 U.S. 274, 289-290 (1986), the Supreme Court found associational standing despite evidence of the union members’ conflicting interests. The Court noted that any conflicts between an organization’s members were resolved through its internal procedures. Id. at 290; accord National Mar. Union v. Commander, Military Sealift Command, 824 F.2d 1228, 1233-1234 (D.C. Cir. 1987); Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equity, 950 F.2d 1401, 1409 (9th Cir. 1991), cert. denied, 503 U.S. 985 (1992). As a practical matter, it would be virtually impossible to obtain unanimous opinions among an organization’s members, especially with respect to contested issues that are the subject of litigation. Such a rule would prevent associational standing in most cases and “would disserve the public interest, which frequently would not be represented but for these suits.” Coalition for Econ. Equity, 950 F.2d at 1409.16 Similarly, the procedural safeguards that tie DAI to the interests of the population
16 The cases relied on by the Coalition (Mov. 39) not only failed to address Brock, but also considered serious conflicts among an organization’s membership under Hunt’s third prong, and not under germaneness.

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it serves guarantee that this lawsuit is reasonably connected to the interests of
DAI’s constituents. Indeed, the interests that DAI seeks to protect are not only
germane to its purpose, but the reason for its existence.17
3. The third Hunt factor demands that neither the claim nor the relief
requested require participation of individual members. Hunt, 432 U.S. at 343.
This factor is a prudential limitation, one “best seen as focusing on * * * matters of
administrative convenience and efficiency, not on elements of a case or
17 The Coalition’s dire prediction, moreover, has no basis in the record. The State can provide newly vacated adult home spots to homeless individuals, which will save the State money without affecting the occupancy rate in adult homes. SPA-186-187, 195-198, 201. The Coalition’s suggestion (Mov. 37) that “[t]he very premise of the court’s financial calculations was that” adult homes would be closed is also refuted by the record. The court’s calculation that the relief granted would save the State money was based solely on its determination that the additional spending for rental subsidies for supported housing recipients was more than offset by the savings in state Medicaid and SSI-supplement outlays. SPA174-175 (noting that the State’s cost comparison “ignores Medicaid costs” and that “[o]nce Medicaid costs are taken into account, it would not be more expensive to serve DAI’s constituents in supported housing rather than Adult Homes: it would actually save the State of New York $146 per year to serve an individual in supported housing instead of an Adult Home”), SPA-181 (chart taking all relevant costs into account, including the rental subsidy and Medicaid and SSI supplement costs, and showing that supported housing costs the State less, on net). Similarly, although the amici families of adult home residents are concerned that their family members would be forced to move to supported housing, only qualified and willing adult home residents would move to supported housing under the district court’s remedial order. See Amicus Curiae Brief Filed On Behalf Of Families Of Current Adult Home Residents In Support Of Appellants Arguing For Reversal Of Judgment, filed Aug. 2, 2010, at 18-22. Thus, far from denying individuals with disabilities a voice in deciding where and how they will live (cf. Mov. 44), the remedial order gives them a choice, whereas they had none before.

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- 76 controversy within the meaning of the Constitution.” United Food, 517 U.S. at 557. In United Food, the Supreme Court noted that Congress abrogated Hunt’s third prong by authorizing unions to sue on behalf of their members in the WARN Act. Id. at 558. Similarly, Congress abrogated this element in PAIMI by explicitly authorizing protection and advocacy organizations, such as DAI, to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness.” 42 U.S.C. 10805(a)(1)(B). See Mink, 322 F.3d at 1113 (“[I]n light of the role Congress assigned by statute to advocacy organizations, * * * Congress abrogated the third prong of the Hunt test.”).
Even if the Court finds that DAI must satisfy the third prong, participation by DAI’s constituents is not necessary. In Brock, the Supreme Court held that, where the issue involves resolution of a question of law and leaves resolution of individual eligibility for benefits to be determined later, individual participation is not required. 477 U.S. at 288 (stating that the “unique facts” of each member’s claim will be considered later before any member would receive benefits). This case similarly raises a legal question that does not necessitate individual assessments, a question that the State itself characterizes in its opening brief as one that does not require assessing individual claims. See Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (“[W]here the organization seeks a purely legal ruling without requesting that the federal court award individualized relief to

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- 77 its members, the Hunt test may be satisfied.”); see also Warth v. Seldin, 422 U.S. 490, 511 (1975) (“[S]o long as * * * individual participation of each injured party” is not necessary, the association may be an appropriate representative of its members” and entitled to invoke associational standing) (emphasis added). Here, the record contains overwhelming evidence by expert witnesses as well as statecommissioned reports that virtually all of DAI’s constituents are qualified for and not opposed to receiving mental health services in a more appropriate and integrated setting. SPA-146-149. Those who choose to stay in adult homes may do so, SPA-157, but those placement decisions need not be made at this time. B. The United States Has Standing To Continue Litigating This Action
Contrary to the State and Coalition’s assertions (Br. 80-81; Mov. 44), this Court may exercise jurisdiction over this action even if it determines that DAI lacks standing. Although jurisdiction must generally exist at the time an action is commenced, the Supreme Court and this Court have recognized an exception to permit appellate courts to correct jurisdictional defects “when requiring dismissal after years of litigation would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 836-837 (1989) (allowing court of appeals to dismiss non-diverse party to preserve jurisdiction); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 75 (1996) (allowing intervenor to continue action after original

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- 78 plaintiff settled because once a case “has been tried in federal court, * * * considerations of finality, efficiency, and economy become overwhelming”); Mullaney v. Anderson, 342 U.S. 415, 416-417 (1952) (“To dismiss the present petition and require the new plaintiffs to start over in the District Court would entail needless waste and runs counter to effective judicial administration.”).
This Court has long held that it may allow an additional party to continue an action even if the original plaintiff failed to properly invoke the district court’s jurisdiction. In Hackner v. Guaranty Trust Co., 117 F.2d 95, 98 (2d Cir.), cert. denied, 313 U.S. 559 (1941), this Court allowed the filing of an amended complaint adding a new plaintiff who alleged a sufficient amount in controversy where the original action was dismissed because the original plaintiffs did not allege such an amount. The Court concluded that “this action can continue with respect to [the new plaintiff] without the delay and expense of a new suit, which at long last will merely bring the parties to the point where they now are.” This Court reaffirmed the vitality of Hackner in Pressroom Unions-Printers League Income Sec. Fund v. Continental Assurance Co., 700 F.2d 889, 893 n.9 (2d Cir.), cert. denied, 464 U.S. 845 (1983), but found in that case that the district court did not abuse its discretion when it declined to allow amendment of the complaint due to statute of limitation problems.

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- 79 The Third Circuit, relying on Hackner, held that although intervention cannot ordinarily cure a jurisdictional defect, courts have the discretion to avoid unnecessary delay and expense by allowing an intervenor to continue to pursue its claims even after dismissal of the original plaintiff. Fuller v. Volk, 351 F.2d 323, 329 (3d Cir. 1965) (citing Hackner, 117 F.2d at 98). In Fuller, the Third Circuit dismissed the appeal of the original plaintiff for lack of jurisdiction and remanded for the district court to exercise its discretion to grant permissive intervention, if there was an independent basis for jurisdiction for the intervention. Id. at 328-329; see also McKay v. Heyison, 614 F.2d 899, 907 (3d Cir. 1980) (reaffirming Fuller). As in Hackner and Fuller, if this Court decides that DAI does not have standing, it should allow the United States to continue litigating this action as a separate action under its complaint-in-intervention. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430-431 (1976) (stating that “[e]xcept for the intervention of the United States, we think this case would clearly be moot,” but holding that “the presence of the United States as a party ensures that this case is not moot”). The fact that the United States’ complaint expressly adopts the district court’s findings of fact and conclusions of law (SA-45-48) eliminates any prejudice to the State. Indeed, allowing the United States, which has standing to pursue prospective relief under 42 U.S.C. 12133, to continue this action is consistent with the fundamental policy under Article III that a federal court decides

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- 80 a legal issue only if the plaintiff has a sufficient “personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult * * * questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). At bottom, “a present, live controversy” between the United States and the State exists, and the United States should be allowed to continue litigating this action. Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (holding that plaintiff did not have standing to pursue injunctive relief because he was not likely to suffer from chokeholds from police officers in the future).
After seven years of litigation, a five-week trial, and hundreds of pages of findings of fact and conclusions of law, requiring the United States to file a new complaint and retry this case is exactly the kind of needless delay and expense that Hackner and Fuller cautioned against. The United States would end up submitting the same evidence at trial and the parties, as well as DAI’s constituents who remain unnecessarily segregated from the community in adult homes, would no doubt end up in the same place as now after a new trial. See California Credit Union League v. Anaheim, 190 F.3d 997, 1001 (9th Cir. 1999) (relying on Mullaney and Newman-Green, court allowed joinder of the United States on appeal to cure a jurisdictional defect and “prevent needless judicial proceedings without any resulting prejudice to the remaining parties”), cert. denied, 528 U.S. 1154 (2000).

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- 81 -
V THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DENYING THE COALITION’S MOTION TO INTERVENE A. Standard Of Review
The district court held that the Coalition’s motion was untimely, and a determination of timeliness is committed to the sound discretion of the trial court to consider the totality of the circumstances. See United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). The deferential abuse-of-discretion standard of review is applied to denial of motions to intervene because they are based on “factintensive inquiries and a district court ‘has the advantage of having a better “sense” of the case than we do on appeal.’” Mastercard Int’l Inc. v. VISA Int’l Serv. Ass’n, 471 F.3d 377, 389 (2d Cir. 2006) (citation omitted). B. The Coalition Has Not Satisfied The Requirements For Intervention
1. To intervene as of right under Federal Rule of Civil Procedure 24(a)(2), the Coalition must satisfy four conditions: (1) file a timely motion; (2) claim an interest relating to the property or transaction that is the subject of the action; (3) be so situated that without intervention the disposition of the action may impair that interest; and (4) show that the interest is not already adequately represented by existing parties. Mastercard, 471 F.3d at 389. Intervention should be denied if even one of the requirements is not met. See In re Holocaust Victim Assets Litig., 225 F.3d 191, 197-198 (2d Cir. 2000). Unlike the United States, which was

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- 82 granted (permissive) intervention at the outset of remedial proceedings, the Coalition participated in discovery and sat in on parts of the trial, but did not seek to intervene at that time. The Coalition made a tactical bet that the State would prevail and its intervention would be unnecessary. When it lost that bet, the Coalition (unlike the United States) sought to expand the issues in a way that threatened to force new evidentiary hearings or even discovery. In this context, the district court did not abuse its discretion by denying that the Coalition’s motion to intervene and instead granting the Coalition amicus status.
a. Factors to consider in determining timeliness include: (1) how long the applicant knew or should have known of its interests before moving to intervene; (2) prejudice to the parties resulting from the delay; (3) prejudice to the applicant if intervention is denied; and (4) presence of unusual circumstances weighing in favor or against intervention. See Mastercard, 471 F.3d at 390. The district court examined all four factors and concluded that the motion was untimely. SPA-216.
As the district court stated, the Coalition was “no stranger[] to this litigation.” SPA-207. Its attorneys participated in discovery (attended depositions of adult home staff and responded to subpoenas for documents) and “sat in on portions” of the trial. SPA-207. Yet the Coalition waited until six years into the litigation and after the liability finding before it moved to intervene. SPA-205206. The court found, however, that DAI’s 2003 complaint and the parties’ 2007

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- 83 summary judgment motions put the Coalition on notice that its interests could be affected by this case. SPA-210-212. DAI’s complaint requested the “[s]hifting [of] residents and funds from impacted adult homes to community-based residential programs.” SPA-210 (quoting Compl. ¶ 118). Moreover, the parties and the court specifically addressed the cost of moving DAI’s constituents from adult homes to supported housing, including potentially eliminating grant programs. SPA-211. The Coalition does not dispute these facts. Nor does it challenge the district court’s determination that the Coalition’s claims concerning its “economic entitlement[]” would delay the proceedings and prejudice the parties by requiring the court to “conduct[] evidentiary hearings or even reopen[] discovery.” SPA-213.
The Coalition argues instead (Mov. 25-26) that the court abused its discretion by denying the Coalition’s motion to intervene as untimely, while allowing the United States to intervene during the remedial proceedings. Unlike the Coalition, the United States’ complaint-in-intervention explicitly adopted the court’s factual findings and conclusions of law and the United States would not have (and has not) delayed the proceedings. SA-40. Furthermore, the rule for permissive intervention specifically allows intervention by a federal agency in lawsuits involving federal statutes or regulations within its purview. See Fed. R. Civ. P. 24(b)(2). The Coalition suggests (Mov. 27) that, if the district court was

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- 84 concerned about the Coalition injecting collateral issues, it should have allowed the Coalition to intervene and limited the scope of the issues it could raise. But the Coalition does not explain how participating as an amicus during the remedial stage, as it did, prevented it from asserting the interests of adult home providers.
The Coalition further argues (Mov. 25) that, although the State did not formally represent its interests at any time during this lawsuit, its interests were “coterminous” with the State’s interest until the remedial stage, and timeliness should be evaluated solely in terms of adequate representation. This argument impermissibly collapses the timeliness and adequate representation requirements of intervention into one, thereby eliminating the timeliness element. No court has approved such an analysis. NRDC v. New York State Department of Environmental Conservation, 834 F.2d 60, 61-62 (2d Cir. 1987), which the Coalition cites as support, concerns only the definition of “adequate representation.” Timeliness was not at issue. The other cases cited by the Coalition are also inapposite (Mov. 26). Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010), and Brody v. Spang, 957 F.2d 1108, 1115-1116 (3d Cir. 1992), both involved only the interest requirement and did not address timeliness. In fact, the court in Brody stated that “there was no question” that the motion to intervene was timely because the intervenor filed its original motion to intervene one day after the complaint was filed and its amended motion two weeks

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- 85 later. 957 F.2d at 1115. Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.D.C. 1972), is inapposite as well. Although the motion to intervene was filed after trial, the intervenor in Hodgson, unlike the Coalition, “expressly disavowed any desire to reopen any previously-litigated question,” and consequently would not have “impose[d] any untoward burden” on the parties or the court. Ibid.
Instead, this case is similar to United States v. Yonkers Board of Education, 801 F.2d 593, 596 (2d Cir. 1986), where the putative intervenors moved to intervene three months into the remedial proceedings and sought to relitigate issues the district court had decided after lengthy proceedings. Affirming the denial of intervention as untimely, this Court stated that the motion to intervene “resemble[d] [a motion for] post-judgment intervention, which is generally disfavored.” Ibid.; Farmland Dairies v. Commissioner of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038, 1044 (2d Cir. 1988) (same).
b. The Court can affirm the denial of the Coalition’s motion to intervene based on untimeliness alone, see Farmland Dairies, 847 F.2d at 1045, but the motion also failed to meet the interest requirement for intervention. The Coalition asserts (Mov. 19-22) that it has a material interest in the appeal. But it is clear that the Coalition’s pecuniary interest is not what this case is about. At issue in this litigation is the State’s obligation to administer its services for people with

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- 86 disabilities in the most integrated setting appropriate for their needs, and not the operation of any particular adult home. See 28 C.F.R. 35.130(d) (“A public entity shall administer services * * * in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”). The pecuniary interests of adult homes do not determine whether the State has violated the integration mandate and what the State needs to do to comply with Title II of the ADA and Section 504 of the Rehabilitation Act. The State has an obligation to comply with federal law, even when acting through private entities. See Olmstead v. L.C., 527 U.S. 581, 607 (1999) (applying integration mandate to the State where State contracted with private provider to deliver mental health services); Radaszewski v. Maram, 383 F.3d 599, 614-615 (7th Cir. 2004) (same). Once a violation is proven, the State must take corrective action, subject only to the State’s showing that such an action would constitute a fundamental alteration of its program. The pecuniary interest of private businesses is not part of the calculation.
The Coalition contends (Mov. 20-22) that the Remedial Order impairs its interests because it imposes obligations on adult homes, jeopardizing their ability to operate. But the court’s order does not require adult homes to close. Furthermore, the fiscal difficulties cited by the Coalition, including having to close or losing operating certificates (Mov. 20-21), are contingent on future actions by the State. For that reason, the Coalition’s asserted interests are not sufficiently

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- 87 direct and substantial to justify intervention as of right. See Washington Elec. CoOp., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990) (“An interest that is * * * contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy [Rule 24(a)(2)].”). See also Person v. New York State Bd. of Elections, 467 F.3d 141, 144 (2d Cir. 2006) (denying motion to intervene on appeal where the putative intervenor had only an “abstract interest” in the subject of the case); United States v. Peoples Benefit Life Ins. Co., 271 F.3d 411, 415 (2d Cir. 2001) (“For an interest to be cognizable under Rule 24(a)(2), it must be ‘direct, substantial, and legally protectable.’”) (citation omitted).
An analogous case is Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871, 877 (2d Cir. 1984), in which the Court affirmed the denial of a general liability insurer’s motion to intervene as of right in a breach of contract action brought against one of its insureds. In holding that the insured did not have an interest justifying intervention, the Court relied in part on the reasoning that the insurer’s interest was only in its potential liability following an adverse judgment against its insured, and not in the underlying breach of contract action. Id. at 875.
As for the Coalition’s contention (Mov. 21-22) that the Remedial Order impairs its property and speech rights, the Remedial Order does not require adult

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- 88 homes to do anything that they are not already obligated to do under state law. For instance, the Coalition argues (Mov. 21) that the Remedial Order requires adult home providers to allow supported housing providers to enter their facilities to conduct in-reach among the residents. State law, however, already requires adult home operators to give community organizations, such as supported housing providers, access to adult homes to provide “a service or educational program.” N.Y. Soc. Serv. L. § 461-a(3)(b)(ii); 18 NYCRR § 485.14(a)(2). To the extent that the order requires that adult homes provide information to residents about supported housing (Mov. 22), that requirement is also consistent with existing state law. Under state law, adult homes must provide such case management services “as are necessary to support the resident in maintaining independence of function and personal choice,” including assisting residents in “mak[ing] and execut[ing] sound discharge or transfer plans.” 18 NYCRR § 487.7(g). Indeed, the Coalition’s proposed remedial plan states that “[a]dult homes should provide residents information about supported housing and how to access that program” and “[c]ase managers should also be trained to address questions relating to supported housing, since responding to [those] inquiries * * * [is] part of the adult homes’ already existing case management obligation.” SA-56.
2. The Coalition’s request (Mov. 27-28) for permissive intervention was also untimely. SPA-216. See Mastercard, 471 F.3d at 391 (affirming denial of

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- 89 motion for permissive intervention as untimely); United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 990 n.19 (2d Cir. 1984) (“[A] denial of permissive intervention has virtually never been reversed.”); see also Fed. R. Civ. P. 24(b) (provides for permissive intervention “[o]n timely motion”). Moreover, “[t]he principal guide in deciding whether to grant permissive intervention is ‘whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.’” Pitney Bowes, 25 F.3d at 73 (quoting Fed. R. Civ. P. 24(b)(2)). The Coalition seeks to inject arguments that have not been addressed by the parties or district court. It should not be permitted to raise new issues at this juncture. To the extent they wish to address the issues raised by the State, participation as amicus curiae should be sufficient. Accordingly, the court did not abuse its discretion in denying permissive intervention.

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- 90 -

CONCLUSION

The Court should affirm the district court’s judgment and denial of

intervention by the Coalition and ESAAL.

Respectfully submitted,

THOMAS E. PEREZ Assistant Attorney General

SAMUEL R. BAGENSTOS Principal Deputy Assistant
Attorney General

s/ Teresa Kwong

.

JESSICA DUNSAY SILVER

TERESA KWONG

Attorneys

Department of Justice

Civil Rights Division

Appellate Section

Ben Franklin Station

P.O. Box 14403

Washington, D.C. 20044-4403

(202) 514-4757

Case: 10-235 Document: 274 Page: 104 10/06/2010 120368 105

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I hereby certify that this brief complies with the type-volume limitation imposed by Rule 28.1(e)(2)(B)(i). The brief was prepared using Microsoft Word 2007 and contains 21,029 words of proportionally-spaced text. The type face is Times New Roman, 14-point font.

Dated: October 6, 2010

s/ Teresa Kwong

.

TERESA KWONG

Attorney

Case: 10-235 Document: 274 Page: 105 10/06/2010 120368 105

CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2010, a copy of the foregoing Brief For
The United States As Appellee was served by CM/ECF on:
Cecelia C. Chang New York State Office of the Attorney General 120 Broadway, 25th Floor New York, NY 10271
Andrew Gordon Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019
Patricia A. Millett Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Ave., NW Washington, D.C. 20036
David T. Luntz Hinman & Staub, P.C. 121 State Street Albany, NY 12207

s/ Teresa Kwong

.

TERESA KWONG

Attorney

 
 Case: 10-235 Document: 273 Page: 1 10/06/2010 120228 103

10-235-cv(L)

10-251 (CON), 10-767 (CON), 10-1190 (CON)
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, EMPIRE STATE ASSOCIATION OF ASSISTED LIVING, Movants-Appellants, and
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 PLAINTIFF-APPELLEE DISABILITY ADVOCATES, INC.

DISABILITY ADVOCATES, INC. Cliff Zucker Timothy A. Clune 5 Clinton Square, 3rd Floor Albany, New York 12207 (518) 432-7861

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Andrew G. Gordon Julie E. Fink Geoffrey Chepiga Elizabeth Seidlin-Bernstein Lindsey Weinstock Francine Murray 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000
(continued on inside front cover)

Case: 10-235 Document: 273 Page: 2 10/06/2010 120228 103

BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Burnim 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730

NEW YORK LAWYERS FOR THE PUBLIC INTEREST Roger Bearden Aditi Kothekar 151 West 30th Street, 11th Floor New York, New York 10001-4007 (212) 244-4664

URBAN JUSTICE CENTER Mara A. Kuns 123 William Street, 16th Floor New York, New York 10038 (646) 602-5664

MFY LEGAL SERVICES, INC. Jeanette Zelhof Jota Borgmann 299 Broadway, 4th Floor New York, New York 10007 (212) 417-3700

Counsel for Plaintiff-Appellee Disability Advocates, Inc.

Case: 10-235 Document: 273 Page: 3 10/06/2010 120228 103
RULE 26.1 STATEMENT Pursuant to Fed. R. App. P. 26.1, Plaintiff-Appellee Disability Advocates, Inc. (“DAI”) states that it has no parent corporation, and that no publicly held corporation owns 10% or more of its stock.
i

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TABLE OF CONTENTS
Page
RULE 26.1 STATEMENT .......................................................................................i TABLE OF AUTHORITIES .................................................................................iv JURISDICTIONAL STATEMENT.......................................................................1 QUESTIONS PRESENTED ...................................................................................2 STATEMENT OF THE CASE...............................................................................4 SUMMARY OF ARGUMENT...............................................................................8 STANDARD OF REVIEW ...................................................................................10 STATEMENT OF FACTS....................................................................................10 ARGUMENT ..........................................................................................................34
I. The State Discriminates Against DAI’s Constituents...........................34 A. Title II Applies to the State’s Mental Health Services System...........35 B. The District Court Properly Found that the State Discriminates Against DAI’s Constituents by Needlessly Institutionalizing Them in Adult Homes........................................................................................38
II. The State Failed to Meet its Burden of Proving a Fundamental Alteration..............................................................................46
A. The State Has No Comprehensive, Effectively Working Plan to Enable Adult Homes Residents to Receive Services in More Integrated Settings...............................................................................47
B. The State Has Not Demonstrated that the Relief Sought Would Increase Its Costs or Fundamentally Alter Its Mental Health Services System .................................................................................................50
C. The Relief Sought Would Not Adversely Affect Other Individuals with Disabilities...................................................................................54
III. The Remedial Order is Narrowly Tailored to Address the Violations Found by the District Court ...................................................55
A. The State’s Proposed Remedy Was Inadequate..................................56 B. The Court’s Remedial Order Is Narrowly Tailored ............................59
ii

Case: 10-235 Document: 273 Page: 5 10/06/2010 120228 103
C. The Remedial Order Does Not Impede Day-to-Day Management of the State’s Affairs................................................................................61
IV. DAI Has Standing .................................................................................64 A. DAI Is Statutorily Authorized to Bring Suit on Behalf of Its Constituents .........................................................................................65 B. DAI Has Associational Standing.........................................................69
V. Denying NYCQAL’s Intervention Six Years into the Litigation Was Not an Abuse of Discretion .........................................................................76
A. The District Court Properly Denied Intervention as of Right.............76 1. NYCQAL’s Motion to Intervene Was Untimely in the Extreme ...............................................................................77 2. NYCQAL Could Not Show Any Inadequacy of Representation...........................................................................81 3. NYCQAL Has No Interest in This Litigation...........................81
B. The District Court Correctly Denied Permissive Intervention ...........85 CONCLUSION.......................................................................................................86 CERTIFICATE OF COMPLIANCE ..................................................................88
iii

Case: 10-235 Document: 273 Page: 6 10/06/2010 120228 103

TABLE OF AUTHORITIES

CASES

Page(s)

Advocacy Ctr. for Elderly & Disabled v. La. Dep’t of Health & Hosps., No. 10-1088, 2010 WL 3170072 (E.D. La. Aug. 9, 2010) ...........................75

Aiken v. Nixon, 236 F. Supp. 2d 211 (N.D.N.Y. 2002) ..............................................64, 68, 72

Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 894 F. Supp. 424 (M.D. Ala. 1995)...............................................................65

Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th Cir. 1996) .........................................................................66

Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005) ...................................................................48, 49

Ass’n of Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241 (5th Cir. 1994) .....................................................................74, 75

Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) ..........................................................................70

Bernstein v. Pataki, 233 F. App’x 21 (2d Cir. 2007) .....................................................................71

Bldg. & Constr. Trades Council of Buffalo, N.Y. v. Downtown Dev., Inc., 448 F.3d 138 (2d Cir. 2006) ..........................................................................70

Brody v. Spang, 957 F.2d 1108 (3d Cir. 1992) ........................................................................79

Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967).......................................................................................84

Catanzano v. Wing, 103 F.3d 223 (2d Cir. 1996) ....................................................................10, 78

iv

Case: 10-235 Document: 273 Page: 7 10/06/2010 120228 103
Ciaramella v. Reader’s Digest Ass’n, Inc., 131 F.3d 320 (2d Cir. 1997) ..........................................................................10
Concourse Rehab. & Nursing Ctr., Inc. v. DeBuono, 179 F.3d 38 (2d Cir. 1999) ............................................................................85
Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999) ............................................................... passim
Farmland Dairies v. Comm’r of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038 (2d Cir. 1988) ......................................................76, 77, 78, 79
Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ...................................................39, 43, 52, 53
Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509 (E.D. Pa. 2001).............................................................40
Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004) ..............................................................47, 52, 53
Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009) ............................................................................70
Goldstein v. Coughlin, 83 F.R.D. 613 (W.D.N.Y. 1979) .......................................................65, 67, 68
Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) ............................................................................64
Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) ............................................................................43
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) .................................................................. passim
Hispanic Soc’y of N.Y. City Police Dep’t Inc. v. N.Y. Police Dep’t, 806 F.2d 1147 (2d Cir. 1986) ..........................................................................1
Horne v. Flores, 129 S. Ct. 2579 (2009)...................................................................................58
v

Case: 10-235 Document: 273 Page: 8 10/06/2010 120228 103
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977)............................................................................... passim
In re NASDAQ Mkt.-Makers Antitrust Litig., 189 F.3d 461 (2d Cir. 1999) ..........................................................................32
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) ......................................................................35, 36
Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274 (1986).................................................................................69, 72
Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008).....................................................40, 64
Laflamme v. New Horizons, Inc., 605 F. Supp. 2d 378 (D. Conn. 2009) .....................................................64, 72
Lakeside Manor Home for Adults, Inc. v. Novello, 843 N.Y.S.2d 108 (App. Div. 2007)..............................................................82
Larkin v. State of Mich. Dep’t of Soc. Servs., 89 F.3d 285 (6th Cir. 1996) ...........................................................................64
Leocata v. Wilson-Coker, 343 F. Supp. 2d 144 (D. Conn. 2004) ...........................................................44
Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002)....................................................37, 51
Mental Disability Law Clinic, Touro Law Ctr. v. Carpinello, 189 F. App’x 5 (2d Cir. 2006) .......................................................................67
Mich. Ass’n for Retarded Citizens v. Smith, 657 F.2d 102 (6th Cir. 1981) .........................................................................78
Mich. Prot. & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695 (E.D. Mich. 1992), aff’d, 18 F.3d 337 (6th Cir. 1994) ..............................................................................................................65
Miller & Miller Auctioneers, Inc. v. G.W. Murphy Indus., Inc., 472 F.2d 893 (10th Cir. 1973) .......................................................................75
vi

Case: 10-235 Document: 273 Page: 9 10/06/2010 120228 103
Milliken v. Bradley, 433 U.S. 267 (1977).......................................................................................56
Mo. Prot. & Advocacy Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) .........................................................................74
N.Y. Coal. for Quality Assisted Living, Inc. v. MFY Legal Servs., Inc., 895 N.Y.S.2d 84 (App. Div. 2010)................................................................83
N.Y. Pub. Interest Research Grp. v. Regents of Univ. of State of N.Y., 516 F.2d 350 (2d Cir. 1975) ..........................................................................84
Naughton v. Bevilacqua, 458 F. Supp. 610 (D.R.I. 1978), aff’d, 605 F.2d 586 (1st Cir. 1979)............67
Office of Prot. & Advocacy for Pers. with Disabilities v. Armstrong, 266 F. Supp. 2d 303 (D. Conn. 2003) ...........................................................65
Ohio Legal Rights Serv. v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877 (S.D. Ohio 2005)..........................................................64
Olmstead v. L.C., 527 U.S. 581 (1999)............................................................................... passim
Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149 (2d Cir. 2010) ..........................................................................84
Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) .....................................................64, 70, 71, 73
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).......................................................................................35
Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005) ........................................................48, 49, 50, 53
Prot. & Advocacy, Inc. v. Murphy, No. 90 C 569, 1992 WL 59100 (N.D. Ill. Mar. 16, 1992).............................65
Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) .............................................................37, 42, 45
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Case: 10-235 Document: 273 Page: 10 10/06/2010 120228 103
Reg’l Econ. Cmty. Action Program, Inc. v. Middletown, 294 F.3d 35 (2d Cir. 2002) ............................................................................71
Rios v. Enter. Ass’n Steamfitters Local Union #638 of U.A., 520 F.2d 352 (2d Cir. 1975) ..........................................................................83
Risinger v. Concannon, 117 F. Supp. 2d 61 (D. Me. 2000).................................................................65
Riverkeeper, Inc. v. Collins, 359 F.3d 156 (2d Cir. 2004) ..........................................................................39
Robbins v. Budke, 739 F. Supp. 1479 (D.N.M. 1990).................................................................66
Rodriguez v. City of N.Y., 197 F.3d 611 (2d Cir. 1999) ..............................................................44, 45, 46
Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999)........................................................37, 49
Rosa-Lino Beverage Distributors Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124 (2d Cir. 1984) ..........................................................................84
Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992) .........................................................64, 68
Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) .................................................................48, 49
Schiller v. Tower Semiconductor, Ltd., 449 F.3d 286 (2d Cir. 2006) ..........................................................................85
Sierra Club v. U.S. Army Corps of Eng’rs, 709 F.2d 175 (2d Cir. 1983) ..........................................................................84
Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001).......................................................................81
State of Conn. Office of Prot. & Advocacy for Pers. with Disabilities v. Connecticut, 706 F. Supp. 2d 266 (D. Conn. 2010) ...............................................37, 64, 72
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Case: 10-235 Document: 273 Page: 11 10/06/2010 120228 103
Tenn. Prot. & Advocacy, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., No. 3-95-0793, 1995 WL 1055174 (M.D. Tenn. Nov. 14, 1995) .................65
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ...................................................................45, 51
Trautz v. Weisman, 846 F. Supp. 1160 (S.D.N.Y. 1994) ........................................................64, 68
U.S. Postal Serv. v. Brennan, 579 F.2d 188 (2d Cir. 1978) ..........................................................................85
United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544 (1996).................................................................................69, 70
United States v. Bd. of Educ., 605 F.2d 573 (2d Cir. 1979) ..........................................................................40
United States v. Carson, 52 F.3d 1173 (2d Cir. 1995) ..........................................................................63
United States v. City of N.Y., 198 F.3d 360 (2d Cir. 1999) ..............................................................76, 82, 83
United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968 (2d Cir. 1984) ..........................................................................85
United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994) ............................................................77, 78, 80, 81
United States v. Puerto Rico, 227 F.R.D. 28 (D.P.R. 2005) .........................................................................83
United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563 (11th Cir. 1994) .......................................................................40
United States v. Yonkers Bd. of Educ., 801 F.2d 593 (2d Cir. 1986) ..........................................................................79
United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987) ..................................................................56, 60
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United States v. Yonkers Bd. of Educ., 29 F.3d 40 (2d Cir. 1994) ..................................................................58, 59, 62
Univ. Legal Servs., Inc. v. St. Elizabeth’s Hosp., No. Civ. 105CV00585TFH, 2005 WL 3275915 (D.D.C. July 22, 2005) ..............................................................................................................64
Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001) ..........................................................................85
Unzueta v. Schalansky, No. 99-4162-RDR, 2002 WL 1334854 (D. Kan. May 23, 2002) .................65
Wash. Elec. Coop. Inc. v. Mass. Mun. Elec. Co., 922 F.2d 92 (2d Cir. 1990) ............................................................................82
Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001) ..........................................................................56
STATUTES 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. § 1331........................................................................................................1 28 U.S.C. § 1343........................................................................................................1 29 U.S.C. § 794(a) ...................................................................................................13 42 U.S.C. § 10801......................................................................................................2 42 U.S.C. § 10801(a)(1)...........................................................................................66 42 U.S.C. § 10801(b)(2)(A).....................................................................................66 42 U.S.C. § 10805(a)(1)(B) ............................................................................. passim 42 U.S.C. § 10805(a)(6)(B) .....................................................................................72 42 U.S.C. § 10805(a)(6)(C) .....................................................................................72 42 U.S.C. § 10805(a)(9)...........................................................................................72
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42 U.S.C. § 12101(a)(2)...........................................................................................38 42 U.S.C. § 12101(a)(3)...........................................................................................39 42 U.S.C. § 12101(a)(5)...........................................................................................39 42 U.S.C. § 12132..............................................................................................13, 35 42 U.S.C. § 15043(a)(1)...........................................................................................66 42 U.S.C. § 15043(a)(2)(A)(i) .................................................................................66 N.Y. MENTAL HYG. LAW § 5.07 ..............................................................................11 N.Y. MENTAL HYG. LAW § 7.01 ..............................................................8, 12, 36, 42 N.Y. MENTAL HYG. LAW § 7.07 ........................................................................11, 12 N.Y. MENTAL HYG. LAW § 41.03 ............................................................................11 N.Y. MENTAL HYG. LAW § 41.39 ............................................................................11 N.Y. MENTAL HYG. LAW § 41.42 ............................................................................11 N.Y. MENTAL HYG. LAW § 45.09(a) ........................................................................17 N.Y. MENTAL HYG. LAW § 45.10(a) ........................................................................17 N.Y. PUB. HEALTH LAW § 2801-f ............................................................................82
OTHER AUTHORITIES 28 C.F.R. § 35.130(b)(6)..........................................................................................35 28 C.F.R. § 35.130(d) ............................................................................13, 35, 36, 45 28 C.F.R. pt. 35 app. ................................................................................................13 28 C.F.R. § 41.51(d) ..........................................................................................13, 45 42 C.F.R. § 51.6(f) ...................................................................................................67
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132 Cong. Rec. H2642-02 (daily ed. May 13, 1986) (statement of Rep. Waxman)........................................................................................................68
Fed. R. App. P. 3(a)(2).............................................................................................32 Fed. R. Civ. P. 24(a)(2)............................................................................................76 Fed. R. Civ. P. 24(b)(2)......................................................................................32, 81 Fed. R. Civ. P. 60(b)(5)............................................................................................63 N.Y. COMP. CODES R. & REGS. tit. 14, § 595.8(d) ...................................................62 N.Y. COMP. CODES R. & REGS. tit. 18, § 485.1(a) ...................................................11 N.Y. COMP. CODES R. & REGS. tit. 18, § 485.3(a)(1) ..............................................12 N.Y. COMP. CODES R. & REGS. tit. 18, § 485.9........................................................55 N.Y. COMP. CODES R. & REGS. tit. 18, § 487.1(b) .............................................11, 12 N.Y. COMP. CODES R. & REGS. tit. 18, § 487.4........................................................23 N.Y. COMP. CODES R. & REGS. tit. 18, §§ 485-87 ...................................................83 S. Rep. No. 103-120 (1993) .....................................................................................68 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1908.1 (3d ed. 2010) ...........................................84
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JURISDICTIONAL STATEMENT The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. The district court entered a final judgment in favor of plaintiff DAI on March 1, 2010. Before this Court are four consolidated appeals: (1) The State appealed from the final judgment on March 3, 2010, in Docket # 10-767. This Court has jurisdiction over that appeal pursuant to 28 U.S.C. § 1291. (2) The New York Coalition for Quality Assisted Living (“NYCQAL”) appealed from the denial of its motion to intervene on January 20, 2010, in Docket # 10-235. This Court has jurisdiction over that appeal pursuant to 28 U.S.C. § 1291. (3) The Empire State Association of Assisted Living (“ESAAL”) appealed from the denial of its motion to intervene in Docket #10-251, but has since abandoned its appeal. (4) NYCQAL filed a separate appeal from the final judgment on March 31, 2010, in Docket # 10-1190. Because NYCQAL is not a party and has no standing to appeal, this Court has no jurisdiction over its appeal. See Hispanic Soc’y of N.Y. City Police Dep’t Inc. v. N.Y. Police Dep’t, 806 F.2d 1147, 1152 (2d Cir. 1986).
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QUESTIONS PRESENTED (1) Did the district court properly find that New York is discriminating against DAI’s constituents by segregating them in institutional adult homes? (2) Did the State fail to prove that the proposed remedy would work a “fundamental alteration” of New York’s mental health services system when it has no plan to serve adult home residents in a more integrated setting such as supported housing, and the district court made a finding of fact that New York would actually save money by providing services to adult home residents in supported housing? (3) Did the district court, after finding extensive violations of federal law at trial, act within its discretion in entering a Remedial Order that is narrowly tailored to remedy those violations? (4) Does DAI, as an organization formed under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq., and authorized by Congress 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,” id. § 10805(a)(1)(B), have standing to sue on behalf of individuals who are needlessly institutionalized in adult homes? (5) Did the district court act within its discretion to deny intervention to NYCQAL, which moved to intervene more than six years after it became aware of
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this litigation, and, as part of its proposed intervention, sought to challenge findings of fact made by the district court at trial?
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STATEMENT OF THE CASE This case, just like Olmstead v. L.C., 527 U.S. 581 (1999), is about discrimination—in the form of needless and senseless institutionalization—against persons with mental illness in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. Plaintiff-Appellee DAI is a statutorily created protection and advocacy (“P&A”) organization representing individuals with mental illness residing in, or at risk of entry into, twenty-eight adult homes in New York City, which have more than 120 beds and in which 25% of the resident population or twenty-five residents (whichever is fewer) have a mental illness (the “Adult Homes”).1 The Defendants-Appellants, the New York State Department of Health (“DOH”), the New York State Office of Mental Health (“OMH”), Governor David A. Paterson, and the Commissioners of DOH and OMH (collectively, “the State”) plan and administer the settings in which mental health services are provided and allocate resources among those settings, including to those individuals who reside in Adult Homes. Adult Homes are large, regimented facilities in which residents live in close quarters almost entirely with other individuals with mental illness. As the district court found—just like the institutions at issue in Olmstead—Adult Homes “perpetuate[] unwarranted assumptions that persons so isolated are incapable or 1 This brief uses the term “Adult Homes” in initial capitals to refer specifically to the twenty-eight impacted adult homes.
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unworthy of participating in community life . . . [and] severely diminish[] the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” 527 U.S. at 600-01.
But DAI’s constituents do not need to be consigned to Adult Homes. New York also offers mental health services to individuals just like DAI’s constituents in supported housing—a far more integrated (and less expensive) setting in which residents live in their own apartments and receive services to support their success as tenants and their integration into the community. As one former Adult Home resident testified about supported housing: “It’s freedom for me. It’s freedom. It’s being able to actually live like a human being again.” SPA112; JA723:2751.
Relying on the overwhelming evidence presented at an eighteen-day trial—during which fifty-two witnesses testified and over 300 exhibits were admitted into evidence—the district court correctly found that New York’s institutionalization of persons with mental illness in Adult Homes violates the ADA and the RA. In its 210-page opinion, the district court found that: (1) Adult Homes are institutional settings; (2) supported housing is a less restrictive, more integrated setting; (3) Adult Home residents are qualified to live in supported housing; and (4) New York State can afford to serve—and would indeed save money by serving—Adult Home residents in supported housing. Based on the foregoing, the district court found that the State
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discriminates against individuals with mental illness in Adult Homes, in violation of federal law.
Strikingly, in its appellate brief, the State does not challenge any of the district court’s detailed factual findings as error. On the contrary, the State fully concedes that “supported housing is considered the preferred community-housing model for many persons with mental illness.” State Br. at 12. As such, the State’s “development efforts are now centered” on creating precisely the remedy ordered by the district court—namely, more beds in “supported housing and other single-roomoccupancy settings rather than older congregate housing models,” such as Adult Homes. Id. at 12-13. Indeed, even the State’s witnesses and a former high-ranking OMH official acknowledged that Adult Homes are “institutional living at, potentially, its worst”; they “impede community integration” and are “little ghettos” in which people are completely “defined by their illness.” SPA93; JA205-06:644-46. Even the State’s brief acknowledges that “sometimes significant problems” have existed in Adult Homes. State Br. at 11. Despite this recognition, the State continues to rely on institutional Adult Homes as mental health service settings. And, Adult Home residents have been categorically denied access to more integrated service settings. Only approximately 2% of Adult Home residents have ever obtained supported housing. To use the State’s own words, residents are “stuck” in Adult Homes. SPA88-89; PX(2)-66.
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As it did throughout trial, the State seeks to defend its needless institutionalization of Adult Home residents with the constant refrain that serving Adult Home residents in supported housing could cost too much. Yet the State was utterly unable to demonstrate at trial that providing mental health services to Adult Home residents in supported housing would cost more than the present system. Indeed, the district court made extensive factual findings—based on testimony from OMH’s Chief Fiscal Officer, the State’s cost expert, DAI’s experts, and others—that the State has the means, the experience, and the resources to serve individuals with mental illness in a more integrated setting where they can begin to rebuild their lives. In fact, the district court found that serving Adult Home residents in supported housing would save the State $146 per person per year. This is because, unlike supported housing, Adult Homes use a dependency model that increases the use of mental health and other services. Unlike supported housing providers, Adult Homes have financial ties to medical providers, which over decades has resulted in unusually high Medicaid costs (including for fraudulent and unnecessary medical procedures), a fact that has been well documented by the State.
* * * Having no legal or record support for their arguments, the State—and to a greater extent, NYCQAL—attempt to instill fear about the consequences of the district court’s decision by misrepresenting the Remedial Order, ignoring the court’s
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findings of fact, and manufacturing arguments that are divorced from the record. But the findings below—supported by evidence developed over six years of litigation— belie all of their misplaced concerns. The district court properly held that the ADA entitles DAI’s constituents to be free from the discrimination they are suffering. That decision should be affirmed.
SUMMARY OF ARGUMENT Each of the State’s arguments on appeal lacks merit. First, the district court correctly held that Title II applies to the State’s mental health services system. The State’s arguments that Title II does not apply because the State does not “involuntarily confine” individuals to Adult Homes and has “decoupled” residential and medical services are unsupported by both the law and the facts. Residential care is an integral component of the State’s mental health services system, N.Y. MENTAL HYG. LAW § 7.01, and there is no requirement that an individual be “involuntarily confined” by the State in order for Title II’s integration requirement to apply. To the contrary, the Supreme Court in Olmstead expressly noted that the plaintiffs in that case had been “voluntarily” committed to institutions, and yet applied Title II to their claims. The State’s argument that the district court’s decision creates “new, preferential entitlement[s]” to supported housing is similarly without merit. Consistent with Olmstead, the district court simply required the State, when it
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provides residential services as part of its mental health services system, to provide services in “the most integrated setting.”
Second, the district court properly found that the State failed to establish its affirmative defense that the proposed remedy would work a “fundamental alteration” of the State’s mental health services system. The district court found, based on compelling evidence, that the State would save money by serving Adult Home residents in supported housing. The State simply ignores these detailed factual findings, and instead claims—without offering any record evidence—that the potential costs of the remedy could be enormous. Absent a showing that the district court’s factual findings as to costs were clear error—which the State does not even attempt— those findings are fatal to the State’s claim.
Third, the Remedial Order is not overbroad. Here, again, the State’s arguments demonstrate a complete disregard for the district court’s extensive findings of fact. Despite the State’s overblown rhetoric, the Remedial Order is appropriately based on and tailored to specific findings of fact. Each aspect is no more burdensome or intrusive than necessary to ensure the State’s compliance with federal law. Notably, the State was provided an opportunity to submit its own proposed remedial order in the first instance. But, as the district court observed, the State’s proposed remedy was “egregiously deficient” and blatantly disregarded the court’s factual findings.
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Finally, in accordance with the decisions of the Ninth and Eleventh Circuits and every district court within this Circuit to have considered the issue, the district court properly held that DAI has standing to bring suit on behalf of its constituents. DAI is authorized under federal statute 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.” 42 U.S.C. § 10805(a)(1)(B) (emphasis added). Pursuant to that Congressional authorization, and consistent with principles of Article III standing, DAI may pursue claims on behalf of its constituents.
STANDARD OF REVIEW This Court reviews a district court’s bench trial findings of fact for clear error and its conclusions of law de novo. Ciaramella v. Reader’s Digest Ass’n, Inc., 131 F.3d 320, 322 (2d Cir. 1997). This Court reviews a district court’s grant of declaratory and injunctive relief under a deferential abuse of discretion standard. Henrietta D. v. Bloomberg, 331 F.3d 261, 290 (2d Cir. 2003). This Court reviews a district court’s order denying intervention under a deferential abuse of discretion standard. See Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996).
STATEMENT OF FACTS The Parties DAI
Plaintiff-Appellee DAI is a P&A organization authorized by federal statute to bring suit on behalf of individuals with disabilities—in this case, people with
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mental illness residing in, or at risk of entry into, Adult Homes in New York City (collectively, “DAI’s constituents”). SPA77. As of 2008, approximately 4,300 individuals with mental illness reside in the Adult Homes that are the subject of this litigation. SPA77, 86; Supplemental Appendix 64-97. United States
Plaintiff-Appellee the United States intervened at the remedial phase of this litigation “to ensure that the broader public interest is represented in this litigation.” JA37 (Amended Motion to Intervene by the United States (Docket Entry #358)). Defendants
Defendants-Appellants are DOH and OMH, as well as Governor David A. Paterson and the Commissioners of DOH and OMH. SPA78. As required by New York law, they administer New York State’s mental health services system, plan the settings in which mental health services are provided, and allocate resources within the mental health services system. See, e.g., N.Y. MENTAL HYG. LAW §§ 5.07, 7.07, 41.03, 41.39, 41.42; N.Y. COMP. CODES R. & REGS. tit. 18, §§ 485.1(a), 487.1(b); see also SPA78. Defendants-Appellants are jointly responsible for implementing 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
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arrangements . . . and it should rely upon . . . institutional care only when necessary and appropriate.” N.Y. MENTAL HYG. LAW § 7.01; see also SPA78. DOH is responsible for 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); see also id. § 487.1(b) (applying DOH’s responsibilities to adult homes); SPA84. OMH is responsible 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.” N.Y. MENTAL HYG. LAW § 7.07(a); see also SPA84.
In its execution of these duties, the State administers New York’s mental health services system in a manner that unnecessarily segregates people with mental illness in institutional Adult Homes and excludes them from the far more integrated mental health service setting of supported housing. SPA77, 92-93, 106-08, 192-93, 195. New York Coalition for Quality Assisted Living
Movant-Appellant NYCQAL is a trade group of adult home operators. SPA206. Despite the Adult Homes’ awareness of and participation in this litigation for more than six years, NYCQAL sought intervention only after trial, at which point it attempted to relitigate facts and introduce new evidence. SPA206, 213. NYCQAL’s motion to intervene was denied by the district court. SPA217.
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NYCQAL has appealed from the denial of its motion to intervene, and has also appealed from the judgment, claiming it has “non-party” standing to appeal. Applicable Law
In Olmstead, the Supreme Court interpreted Title II of the ADA and section 504 of the RA as explicitly prohibiting “[u]njustified isolation,” which “is properly regarded as discrimination based on disability.” 527 U.S. at 597. The Court observed that “unjustified 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.” Id. at 600.
Title II and the RA require that when a state provides services to individuals with disabilities it 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 Attorney General’s regulations implementing Title II—which are entitled to deference—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), 28 C.F.R. pt. 35 app. This Lawsuit
DAI initiated this action for declaratory and injunctive relief on July 1, 2003, seeking to end “New York State’s practice of knowingly placing and
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maintaining individuals with serious mental illnesses in . . . substandard adult homes rather than in superior, more integrated residential settings.” Supplemental Appendix 3. Discovery continued for more than three years, during which more than 70,000 documents were produced, more than seventy-five third-party subpoenas were issued, seventy-one witnesses were deposed (including twenty-one current or former Adult Home residents), and seven expert reports were exchanged. On August 10, 2007, the State filed a motion for summary judgment and DAI filed a cross-motion for partial summary judgment. SPA10. In its motion, the State argued, among other things, that Title II does not apply to DAI’s claims because Adult Homes are privately operated, and that DAI lacked standing. SPA10.
After considering the voluminous factual record presented by the parties (of more than 13,000 pages, including some 675 exhibits), the district court ruled on the parties’ motions on February 19, 2009. SPA8, 11. In its 110-page opinion, the court denied the motions for summary judgment, holding, in relevant part, that (1) the ADA applies, and (2) DAI has standing. SPA24, 30. Specifically, the district court found that the State administers a mental health services system, governed by a “comprehensive statutory and regulatory scheme,” which includes “residential and treatment services provided by public and private entities,” such as Adult Homes and supported housing. SPA12, 31-32; JA915-20. The court thus found, consistent with Olmstead, that DAI’s “claim falls squarely under Title II of the ADA.” SPA36.
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With respect to DAI’s standing, the district court rejected the State’s

argument that Section 10805(a)(1)(B) of PAIMI does not authorize P&A

organizations to sue on behalf of their constituents. SPA24-25. The court also

rejected the State’s argument that DAI lacks associational standing under Hunt v.

Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). SPA25-

27. The court found “substantial evidence” that many of DAI’s constituents were

suffering injuries-in-fact that were fairly traceable to the State’s mental health services, and that the requested relief would redress these injuries. SPA26-27.2

The court 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

sought would work a “fundamental alteration” of New York’s mental health services

system. SPA36-37, 48, 50, 78.

Trial

Over eighteen days, twenty-nine witnesses testified live, excerpts from

the depositions of twenty-three additional witnesses were entered into the record, and

more than 300 exhibits were admitted into evidence. SPA78-79. The district court

received testimony from current and former Adult Home residents, the administrator

2 The State did not argue below, as it does on appeal, that DAI lacks associational standing under Hunt because it lacks “indicia of membership,” and the district court therefore did not address this issue.
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of an Adult Home, persons who provide mental health services to current and former Adult Home residents, State officials, and experts. Id. DAI’s experts, all of whom had run public mental health systems, interviewed approximately 250 Adult Home residents, reviewed 260 Adult Home resident records, and visited twenty-three Adult Homes as well as supported housing programs. SPA124, 126, 129. The State introduced the testimony of three experts. SPA106, 174.
On September 8, 2009, the district court entered its 210-page findings of fact and conclusions of law (including nearly 1,000 citations to the record), holding that the State unlawfully discriminates against DAI’s constituents by segregating them in institutional Adult Homes. SPA77-78, 204. Specifically, through the evidence presented at trial, the district court made the following findings of fact, none of which the State contends are clearly erroneous: Adult Homes Are Not the Most Integrated Setting for DAI’s Constituents
The district court found based on “[t]he overwhelming evidence in the record” that Adult Homes, unlike supported housing, “are institutions” that “impede
the ability of . . . residents to participate in their communities outside the Homes.” In
Adult Homes, residents “are completely ‘defined by their illness.’” SPA88, 115, 93. Adult Homes Are Institutions Adult Homes are large, for-profit facilities, SPA83; JA205-06:644-45,
that provide long-term residential care, personal care, and supervision. SPA83;
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PX(4)-307 ¶ 2. Exclusively at issue in this litigation are twenty-eight Adult Homes in New York City. SPA85; JA785:2996-97; see also N.Y. MENTAL HYG. LAW §§ 45.09(a), 45.10(a); Supplemental Appendix 64-97.
An overwhelming number—eighty percent—of residents in Adult Homes have mental illness. SPA86. In eighteen of the Adult Homes, more than 95% of the residents have mental illness and in nine of those Homes, 100% of the residents have mental illness. SPA86; Supplemental Appendix 64-97. Adult Home residents do not require high levels of assistance with activities of daily living, do not need extensive medical care, and do not pose a danger to themselves or others. SPA136-37, 139-40; SX(4)-178:S-141.
As the evidence showed, Adult Homes were not developed for people with mental illness. SPA87; DX(3)-158:289. When the State began to reduce the census of its psychiatric hospitals in the 1960s and ’70s, it made a policy decision to serve large numbers of former patients in Adult Homes because “community resources weren’t up to speed with state operated bed reductions.” SPA87; PX(1)155; see also JA206:647-48. Despite the State’s recognition that Adult Homes are “de facto” or “satellite mental institutions,” SPA87; PX(1)-453; PX(1)-577, that are not desirable settings for individuals with mental illness, SPA87; JA206:648; PX(1)-104, the State continues to discharge patients from psychiatric hospitals, including those
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who have been approved for supported housing, directly to Adult Homes, see, e.g.,
SPA87; JA209:658; JA156:448; JA497:1809; JA566:2084; PX(2)-140; PX(2)-142.
Adult Homes bear little resemblance to a home. SPA90; JA116-17:289-
290. The district court found, based on the testimony of witnesses for both DAI and
the State, that Adult Homes are segregated settings that share many characteristics with state psychiatric hospitals.3 Adult Home residents are forced to relinquish their
privacy, autonomy, and connection to the community; are subjected to an extensive
set of institutional rules; and are denied the opportunity to live independently and
exercise choice. SPA89-93. As recently as September 2007, the State referred to
Adult Homes as “institutional settings” in which “people with a mental illness are
‘stuck.’” SPA88-89, 107 (n.214); PX(2)-66. The district court made the following
findings:
• Residents must abide by regimented schedules for eating, taking medication, and other aspects of daily life,4 which inhibits their ability to spend time outside the Homes. SPA89.
• Residents are assigned roommates and a specific seat in the cafeteria,5 SPA89-90, which at times prohibits them from eating meals with friends or significant others. JA164:479-80.
• Meals, medication, phone calls, and mail deliveries are announced over a public address system.6 SPA90.
3 E.g., SPA88-89; SX(4)-326; JA205:642-43; JA296:1006-07; JA605:2241-42; PX(4)-483-84.
4 E.g., JA58-59:54-57; JA116-17:289-90; JA138-39:374-78. 5 E.g., JA138:375; JA184:558-59; SLX-359:98.
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• Adult Homes have few or no private spaces, making it difficult to receive visitors or talk in private.7 SPA90. Residents lack privacy even in their bedrooms.8 SPA91.
• Adult Homes set curfews and place restrictions on when and where residents may receive visitors as well as when residents may be absent.9 SPA91.
• Residents generally are prohibited from cooking, cleaning, doing their own laundry, and administering their own medication,10 fostering what both DAI’s and the State’s experts referred to as “learned helplessness.”11 SPA104-05.
• Residents spend the great majority of their daily lives in the Adult Homes, where they usually are assigned on-site doctors12 and participate in on-site activities.13 SPA93-94.
• Residents fear retaliation, and some have been arbitrarily penalized for failure to comply with the Homes’ stringent rules.14 SPA92.
In short, as described by the State’s own witness, Adult Homes are
“community-based psychiatric ghettos in which . . . groups of individuals [are] located
in a community, but [are] never helped to become part of it.” SPA115; PX(4)-484;
6 E.g., SLX-404-05; SX(4)-328-29; SLX-130-31:236-38. 7 E.g., JA167:489-90; JA59:57-58; JA260:863-65. 8 E.g., JA164:480; JA186:565; JA188:574-75 9 E.g., JA60-1:62-65; SLX-309:84-85; SX(4)-505. 10 E.g., JA165:481; JA183:553-55; SLX-352:70-71. 11 E.g., JA634:2358; SX(4)-395-96; JA108-09:257-59. 12 E.g., JA81:148; JA160:462-63; SLX-102:125. 13 E.g., JA62:69-70; SX(4)-513-24. 14 E.g., JA161:467-68; SX(4)-331.
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JA605:2236-38. In the words of a former high-ranking OMH official, they are “institutional living at, potentially, its worst.” SPA93; JA206:645.
Supported Housing Is a Far More Integrated Setting Than Adult Homes The State also uses supported housing as a service setting for people with
mental illness. It funds and monitors supported housing, as it does Adult Homes. SPA108-09. In stark contrast to Adult Home residents, residents of supported housing live much like their non-disabled peers and are more integrated into the community: they live in their own apartments15 scattered in buildings throughout the community.16 SPA109; JA170:501; JA723:2751; SLX-580:204-05. They can control their daily lives, are free to come and go when they like, can choose to live with a spouse or their children,17 can invite whomever they would like into their home,18 and have privacy rights.19 SPA109-10. According to the testimony of the Director of OMH’s Bureau of Housing Development and Support, supported housing provides “maximum opportunities” for community integration. SPA113; JA585:2162. Indeed, the State acknowledged at trial (and again in its brief on appeal) that it is currently focused on supported housing because it is a “successful,” “cost-effective” program that gives
15 JA123:316-17. 16 JA103:236. 17 JA107:251; JA117:290. 18 JA163-64:475-77; JA117:290-91; JA107:251. 19 JA585:2160; JA107:251.
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residents “the same privacy rights as any other tenant in a landlord-tenant relationship.” SPA109; JA585:2159; JA79:139; SX(4)-305; JA207:650-51; State Br. at 12.
One former Adult Home resident who moved to supported housing testified at trial:
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. SPA112; JA723:2751. Virtually All of DAI’s Constituents Are Qualified for Supported Housing The district court found—and the State does not dispute on appeal—that virtually all of DAI’s constituents are qualified for supported housing. SPA117. This is because “there are no material differences between residents of Adult Homes and residents of supported housing.” SPA180. “[T]he support needs of Adult Home residents could, in virtually every case, be easily addressed in supported housing.” SPA146. Indeed, the State’s own expert agreed with the findings of DAI’s experts that “those who reside in adult homes could reside in apartments with varying degrees of support.” SPA119; JA637:2370. And, in 2002, a “blue ribbon panel” of mental health experts organized by the State (including thirty-eight OMH and DOH employees selected by the Governor) recommended that 6,000 individuals with
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mental illness in adult homes be served instead in more integrated settings. SPA13132; JA464:1675; SX(4)-36, 102; JA387:1369; JA463:1672-73; JA916 ¶ 13; DX(3)131:181. As the panel noted, “[a] great many people with many of the same issues and needs [as Adult Home residents] live every day in integrated, community settings across New York State.” SPA132 (first alteration in original); SX(4)-33.
OMH’s own former Senior Deputy Commissioner, Linda Rosenberg, testified that, in her experience, individuals were placed in Adult Homes based on “luck of the draw,” and Adult Home residents “by and large have similar characteristics” to residents of supported housing. SPA130; JA222:709. In fact, 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 [(Assertive Community Treatment)] Team necessarily or even a case manager.”20 JA222:709; see also SPA128 (n.347), 130.
These conclusions are not surprising—individuals enter (and remain in) Adult Homes not for clinical reasons, but because they are the only residential service setting available to them. SPA135-36; JA206:646; JA222:709; DX(3)-89:10-11. Moreover, Adult Homes are prohibited from admitting people who, for example,
20 An ACT Team is a multi-disciplinary unit that provides a wide range of service needs—from managing medications and finances to using transportation and other community resources— to those with “severe and persistent” mental illness in their natural living settings. SPA110-11; SX(4)-1-4; JA105-06:243-46; JA114:279; JA258-59:855-57; JA279:938; PX(2)-145-61.
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require “continual medical or nursing care or supervision,” pose a danger to themselves or others, or have an “unstable” medical condition requiring continual skilled observation. SPA137; N.Y. COMP. CODES R. & REGS. tit. 18, § 487.4; SX(4)178. The State Has No Plan for Serving Adult Home Residents in More Integrated Settings
Despite the State’s recognition that supported housing is the “preferred” service setting for individuals with mental illness, the State has no comprehensive or effective plan (either written or unwritten) to enable Adult Home residents to receive services in supported housing or any other integrated setting. SPA158-60; PX(3)-55354:29-30. To the contrary, the State considers Adult Homes permanent placements. SPA143, 149; JA439-40:1580-81; see also SX(3)-5-6; JA217:690-92. What is more, the State has categorically denied Adult Home residents the opportunity to enter more integrated service settings, such as supported housing. SPA193.
The State uses a Request for Proposal (“RFP”) process to develop supported housing. SPA109. In each RFP, it identifies a target population for the housing, and only the target population may be admitted to supported housing. SPA118. For almost all supported housing RFPs, Adult Home residents have not been a target group, and hence have been systematically denied access to these beds. SPA164. As of 2008, despite hundreds of applications, only 0.5% of people with mental illness living in adult homes, and only 2.6% of those submitting applications,
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were able to access supported housing in a five-year period.21 Supplemental Appendix 64-97. While the Legislature did make sixty supported housing beds available specifically to adult home residents in 2007, OMH did not propose or advance this initiative, SPA137; JA409-10:1460-61; JA422:1510; JA580:2141-42; JA874:3354, and the State has made clear that no more supported housing beds for adult home residents are on the horizon.22 Supported Housing Providers Can Serve Adult Home Residents
It is not the case—as the State contends—that supported housing cannot be developed for individuals in Adult Homes.
Supported housing providers are capable of providing the necessary support services for virtually all Adult Home residents, including those with high needs. SPA118-19, 121; JA257-60:851-63; see also JA116:288-89; DX(3)-222:203; SX(2)-220-21; JA647:2409; JA370:1304; JA425:1521; JA566:2084; PX(3)-67778:225-26; PX(4)-38:111. The supported housing providers that do serve high-need Adult Home residents have been successful. SPA118, 121-22; JA114-15:281-84;
21 In the period from January 2000 to January 2006, adult home residents submitted more than 800 applications for OMH-sponsored housing. SPA145 (n.507); JA523:1914. In the period from January 2002 to January 2006, only twenty-one adult home residents actually moved to supported housing in New York City. SPA145 (n.507); PX(1) 542-55.
22 In 2005, the Legislature passed a law that would have required OMH to establish a community residential services waiting list for individuals, including those waiting for supported housing services. The Governor vetoed the bill “based on objections raised by OMH.” SPA166; SX(2)-130.
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PX(2)-87. In fact, the service needs of individuals entering supported housing from institutional settings such as Adult Homes decrease over time because supported housing helps individuals develop greater independent living skills. SPA119; SX(2)216-49; JA101:229; JA223:715.
Supported housing providers also can create enough beds to serve Adult Home residents. The district court credited the testimony of DAI’s expert, Dennis Jones, that New York providers are ready to develop supported housing beds for Adult Home residents at a rate of approximately 1,500 per year. SPA190; JA905:3478-79; JA906-07:3482-87. Indeed, when the State issued an RFP for the 60 supported housing beds the Legislature set aside for Adult Home residents, SPA190; SX(2)-21649, supported housing providers responded by offering to create approximately 1,500 supported apartments in one year. SPA143 (n.486), 190; JA310-311:1064-65.23 Adult Home Residents Are Not Opposed to Receiving Services in Supported Housing
Nor is it the case that Adult Home residents live there by choice or because a mental health professional determined that it was the preferred setting for meeting their needs. SPA150. Adult Home residents generally are afforded no other choice, and are uneducated or intentionally misinformed by Adult Home operators
23 The State also has a demonstrated ability to redirect funds as individuals move from one service setting to another. SPA187; JA851:3261-63; SX(4)-299-300; JA532:1947; JA448:1613; JA879:3373; see also JA878:3370.
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about alternative housing options. As the district court found, they “ha[ve] nowhere else to go.” SPA150; JA206:646; see also PX(1) 155-59; DX(3)-89:10-11.
The district court found “convincing evidence that many would choose to live in an independent setting such as supported housing if given an informed choice.” SPA150. Among other things, a study commissioned by the State found that 75% of the approximately 2,000 residents with mental illness surveyed either expressed an interest in living elsewhere or did not express a preference for remaining in an Adult Home. SPA152; JA307:1050-51. These statistics significantly understate residents’ interest in moving because Adult Home residents, who are generally uninformed about other options, were not provided relevant information about the services and financial supports in other settings before they were asked their preferences. SPA152; PX(4)-34-35:97-98.
DAI’s experts concluded that the great majority of Adult Home residents would choose to move to supported housing if provided with the information necessary to make an informed choice. SPA152-53; JA263:874-75; SX(4)-333-35; see also JA55:44. Those opinions were confirmed by the Adult Home residents who testified at depositions and trial, who continually expressed a preference for living independently. SPA155; see also SLX-278-79:168-71; SLX-310-11:89:90; SLX360:102-03; SLX-580:203-04.
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Serving DAI’s Constituents in Supported Housing Would Cost Less Than the Current System
“[F]unding and programmatic limitations” are also not a barrier to serving Adult Home residents in supported housing, contrary to the State’s suggestion. State Br. at 14. The district court found that the State would actually save money by serving Adult Home residents in supported housing. SPA175, 198.
Currently, Adult Home residents in New York City receive a total of $16,416 per year in Supplemental Security Income (“SSI”)—of which the State pays $8,328—to pay for room, board, three meals a day, personal care, and supervision. SPA172-73; JA918 ¶ 27. The $8,328 state supplement—the highest offered by the State—is available only to Adult Home residents and individuals in institutions for people with developmental disabilities. SPA172, 174, 181; DX(2)-368. Supported housing is funded directly by OMH with a stipend of $14,654. SPA173; JA919 ¶ 33. Individuals in supported housing receive SSI income of $9,132 per year, of which the State pays only $1,044. SPA173; DX(2)-368. Without considering other, relevant costs, the State contended at trial it would cost an additional $7,370 per year to serve an Adult Home resident in supported housing. SPA174-75; JA731:2780; DX(3)-552; DX(3)-170.24
24 The State erroneously contends in its brief—without any record citation or support—that “[f]unding even just the first year’s 1,500 [supported housing] units will require an additional $65 million in annual appropriations.” State Br. at 50, 54. DAI is at a loss as to how the State arrived at that figure. Even accepting the 27

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However, the State’s analysis ignored considerable cost savings associated with supported housing. SPA175. Indeed, the Chief Financial Officer of OMH admitted at trial that the State performed no analysis to determine the financial impact of providing supported housing to Adult Home residents. SPA196. At DAI’s request, the State produced an analysis of the annual Medicaid costs (of which the State pays half) for a person served in an Adult Home. The State’s own analysis demonstrated that the average Medicaid cost for individuals in Adult Homes is roughly $15,000 per year higher than the average Medicaid cost for individuals served in supported housing in New York City, as the below chart indicates. SPA175; PX(1)-135-36; PX(6)-332.

Medicaid Cost/Person

Population

Supported Adult Housing Homes

Resident Populations in SFY 2004-2005

$16,467 $31,530

Severely and Persistently Mentally Ill (“SPMI”) $20,370 $36,109

Not SPMI

$11,882 $25,289

Source for Table 1: PX(1)-135-36. SPA175-76.

“[T]he difference in Medicaid costs between Adult Homes and supported

housing is not attributable to the characteristics of the persons living in Adult Homes.”

SPA179. Crucially, even when comparing spending for individuals with high mental

health needs in supported housing with spending for individuals in Adult Homes, the

State’s incorrect asserted additional cost of $7,370 per person, the first 1,500 beds would require only $11.055 million in additional appropriations.

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Medicaid costs are still vastly higher for those in Adult Homes. SPA173; PX(1)-13536. Whether a person lives in supported housing or an Adult Home is not determined by his or her functional abilities or medical needs, SPA180, but “the luck of the draw.” SPA130; JA222:709.
The court found that these higher Medicaid costs are instead caused by the systemic high use of Medicaid services in Adult Homes. SPA176. First, Adult Homes foster dependency, increasing the need for services. SPA179; JA892:3425-26. Second, as is well documented, Adult Homes deliberately promote over-utilization of Medicaid because of their financial connections to service providers. SPA176-79; JA222:712; JA892:3425-26. Indeed, in August 2002, the New York State Commission on Quality of Care issued a report concluding that “many residents [in adult homes] 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.” SPA177, 179-80; PX(1)-674; see also JA222:710-12; JA908-09:3491-92. Even the State’s witnesses testified about unnecessary surgeries and medical treatment at the Adult Homes. SPA176-77; JA393-94:1395-98. Joseph Reilly, the former director of the OMH New York City field office, testified that he was aware that multiple residents in one Adult Home had received unnecessary prostate surgery, id., and that residents in another Adult Home had received unnecessary cataract surgery. SPA178; JA394:1397-98.
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Thus, when Medicaid costs are factored in, the State would actually save

on average $146 for each individual served in supported housing instead of an Adult

Home. SPA181; see also JA895:3439.

Average Annual Costs/Person in Supported Housing vs. Adult Homes

SH Stipend Medicaid SSI TOTAL

Supported Housing

State

Total Costs Portion of

Total Costs

$14,654 $14,654

$16,467 $8,234

$9,132

$1,044

$40,253 $23,932

Adult Homes

State

Total Costs Portion of

Total Costs

$0

$0

$31,530 $15,750

$16,416 $8,328

$47,946 $24,078

Source for Table 2: DX(6)-333.

These figures underestimate the savings from serving DAI’s constituents

in supported housing, because the State also invests millions of dollars in efforts to

improve living conditions in Adult Homes—an undertaking that has not and will not

be needed for supported housing. SPA182. If fewer people are served in Adult

Homes, these State costs could be reduced as well. SPA181-84; JA463:1671;

JA472:1709-10; see generally PX(6)334-43.

Trial Decision Applying the Supreme Court’s decision in Olmstead, the district court

held that DAI had proven that its “constituents are not in the most integrated setting

appropriate to their needs and are not opposed to moving to a more integrated setting.”

SPA157. As the court found, Adult Homes are institutional, segregated settings;

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supported housing is a far more integrated setting; virtually all Adult Home residents are qualified for supported housing; and Adult Home residents would not object to receiving mental health services in more integrated settings. SPA157. The court also held that the State had failed to establish its affirmative defense that the relief DAI sought would fundamentally alter the State’s mental health system, finding that the State “do[es] not have an effective or comprehensive plan to enable DAI’s constituents to receive services in the most integrated setting appropriate to their needs, nor [has it] shown that the relief DAI seeks would increase the State’s costs.” SPA158.
Thus, in a straightforward application of Olmstead, the court held the State discriminates against Adult Home residents in violation of Title II and the RA. SPA78, 83, 204. In accordance with principles of federalism, and in deference to the State, the district court asked the State to propose a remedial plan. SPA202-04. Intervention Motions NYCQAL
In November 2009, more than six years after the complaint was filed, NYCQAL sought to intervene. NYCQAL purportedly moved to intervene solely with respect to the proposed remedy, but its brief, its proposed answer, and its proposed remedial order all demonstrated that it in fact sought to relitigate issues that had
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already been resolved. SPA213; JA37 (NYCQAL Motion to Intervene (Docket Entry #362)); Supplemental Appendix 57-61.
The Adult Homes represented by NYCQAL were undisputedly familiar with this litigation—and all of the issues involved—from the outset. Among other things, they had participated in the multi-year discovery process and had monitored much of the trial. SPA207. As a result, the district court denied NYCQAL’s motion to intervene, finding that it was untimely, that the Adult Homes were intent on relitigating factual issues that were established at trial and that any further delay in proceedings would unnecessarily harm Adult Home residents.25 SPA209-17. The United States
The United States also moved to intervene as a plaintiff after trial, citing its unique regulatory and enforcement responsibilities under Title II. The district court found that the United States’ involvement would not prejudice the original parties or unduly delay litigation because, unlike NYCQAL, the United States had expressly adopted the court’s prior findings of fact and conclusions of law. Thus, the district court granted the United States permissive intervention in accordance with Federal Rule of Civil Procedure 24(b)(2).
25 A second trade group, ESAAL, also was denied intervention and filed a notice of appeal, but has since abandoned its appeal. See In re NASDAQ Mkt.-Makers Antitrust Litig., 189 F.3d 461, 461 (2d Cir. 1999) (summary order) (dismissing appeal where appellant failed to submit a brief); Fed. R. App. P. 3(a)(2).
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Remedial Order and Judgment After considering the State’s proposed remedy, and the counter-remedies
proposed by DAI, the United States,26 and NYCQAL, which participated as amicus, the district court entered a Memorandum and Order rejecting the State’s proposed order as unreasonable and inadequate. The district court found that the State’s proposal “scarcely beg[an] to address the violations identified by the court,” SPA220, and “brazenly ignore[d] the court’s factual findings and overtly attempt[ed] to relitigate issues lost at trial,” SPA228. Among other things, the State proposed offering supported housing to only 200 Adult Home residents per year over a fiveyear period, SPA220—leaving thousands of Adult Home residents without a remedy.
The court entered its Remedial Order and Judgment on March 1, 2010 (the “Remedial Order” or “Order”). The Order directs that within four years all Adult Home residents be afforded the choice of supported housing if qualified, and that no individual with mental illness who is qualified for supported housing be offered services in an Adult Home unless he or she declines the opportunity to receive services in supported housing. SPA234. To effectuate the Order, the Court directed the State to create 1,500 supported housing beds for each of three years. SPA236.
26 The United States gave its full support to the proposal submitted by DAI. 33

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The Remedial Order does not require anyone to move out of an Adult Home who does not want to; it merely requires the State to provide Adult Home residents with a choice. Proceedings on Appeal
The State appealed from the Remedial Order and filed a motion to stay the Order. NYCQAL filed an appeal of the denial of intervention and then filed a separate appeal from the Remedial Order. DAI moved to dismiss NYCQAL’s appeal of the Remedial Order as an improper non-party appeal. One week later, NYCQAL filed a motion in this Court to intervene in the State’s appeal, which DAI and the United States opposed.
On June 23, 2010, a three-judge panel denied the State’s motion to stay the Remedial Order. The panel directed that DAI’s motion to dismiss NYCQAL’s appeal and NYCQAL’s motion to intervene in the appeal would be determined by the panel hearing NYCQAL’s appeal from the denial of its motion to intervene below.
ARGUMENT I.
THE STATE DISCRIMINATES AGAINST DAI’S CONSTITUENTS At trial, DAI proved that New York’s needless institutionalization of
Adult Home residents is discrimination in violation of Title II of the ADA. The district court properly held that (1) DAI’s constituents are “qualified individuals” with disabilities, (2) the State is subject to Title II, and (3) DAI’s constituents have been
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discriminated against by the State on account of their disabilities.27 See Henrietta D., 331 F.3d at 272; SPA80. A. Title II Applies to the State’s Mental Health Services System
The district court correctly held that the State’s mental health services system is subject to Title II of the ADA. SPA30-36. Title II applies to all “services, programs, or activities of a public entity,” 42 U.S.C. § 12132, “without any exception.” Pa. 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) (stating that “programs, services, or activities” is a “catch-all phrase that prohibits all discrimination by a public entity, regardless of the context”). The federal 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.” 28 C.F.R. § 35.130(d) (emphasis added); see also id. § 35.130(b)(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.”).
Under New York law, DOH and OMH are required to “develop a comprehensive, integrated system of treatment and rehabilitative services for the
27 Title II of the ADA and Section 504 of the RA impose identical requirements. See, e.g., Henrietta D., 331 F.3d at 272; SPA28, 80.
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mentally ill. Such a system . . . should assure the adequacy and appropriateness of residential arrangements . . . and . . . should rely upon . . . institutional care only when necessary and appropriate.” N.Y. MENTAL HYG. LAW § 7.01. The State is “responsible for determining what services to provide, in what settings to provide them, and how to allocate funds for each program.” SPA36. The State “plan[s] how and where services for individuals with mental illness will be provided, and . . . allocate[s] the State’s resources accordingly.” SPA82.
Pursuant to these requirements, OMH and DOH plan, administer, and fund all aspects of New York’s mental health services system, including Adult Homes. The State does not dispute the district court’s finding that Adult Homes are an integral part of New York’s mental health services system. SPA30-33. The State subsidizes Adult Homes, SPA174, and has spent millions of dollars in efforts to improve them. SPA182-84. The State licenses, monitors, inspects, and regulates Adult Homes, and has the power to determine their availability. SPA30-33. In fact, the State’s brief devotes much space to defending the central role of Adult Homes in its mental health services system. See, e.g., State Br. at 7-10. Thus, there can be no doubt that the State’s conduct at issue here involves the administration of New York’s mental health services system, including the allocation of State resources, and falls within the scope of Title II. See Innovative Health, 117 F.3d at 44-45; 28 C.F.R. § 35.130(d).
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To the extent that the State argues that Title II does not apply or applies differently because Adult Homes are privately owned, it is mistaken.28 SPA83 (“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.”); see also SPA 35. That a state happens to use private providers to deliver certain mental health services is, as the district court held, “immaterial.” SPA34. In fact, the Georgia mental health system to which the Supreme Court applied Title II in Olmstead made use of private providers. See Resp. Br. in Olmstead, 1999 WL 144128, at *5 (noting that Georgia had restructured its mental health system to make use of private providers of community services). Federal courts routinely apply Title II to state service systems that rely on private contractors and facilities, and DAI is not aware of a single decision denying a Title II claim on this basis. See, e.g., Radaszewski v. Maram, 383 F.3d 599, 614 (7th Cir. 2004); State of Conn. Office of Prot. & Advocacy for Pers. with Disabilities v. Connecticut, 706 F. Supp. 2d 266, 276-77 (D. Conn. 2010); Martin v. Taft, 222 F. Supp. 2d 940, 981 (S.D. Ohio 2002); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999).
28 It is not clear whether the State has abandoned this argument on appeal. See, e.g., State Br. at 6, 25. 37

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B. The District Court Properly Found that the State Discriminates Against DAI’s Constituents by Needlessly Institutionalizing Them in Adult Homes
The Supreme Court held in Olmstead that “unjustified isolation” and
segregation are “properly regarded as discrimination based on disability.” Olmstead,
527 U.S. at 597. The Court explained,
Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. 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. Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations.
Id. at 600-01 (citations omitted). Accordingly, a state violates the ADA by denying
individuals mental health services in an integrated setting where “community
placement is appropriate, the transfer . . . to a less restrictive setting is not opposed by
the affected individual, and the placement can be reasonably accommodated.” Id. at
587.29
29 See also 42 U.S.C. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such
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Applying the principles set forth in Olmstead, the district court here
found that Adult Homes are institutions that segregate people with mental illness from
the community,30 SPA88-108, that supported housing is a more integrated setting than
Adult Homes, SPA108-13, that virtually all of DAI’s constituents are qualified to live
in supported housing, SPA117-49, and that DAI’s constituents are not opposed to
living in supported housing, SPA149-57. Accordingly, the district court properly held
that the State discriminates against DAI’s constituents by needlessly institutionalizing
them in Adult Homes. Olmstead, 527 U.S. at 587.
The State does not contend that any of these findings were in error.31
Instead, in the face of this application of Supreme Court precedent, the State offers a
forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”); § 12101(a)(3) (“[D]iscrimination against individuals with disabilities persists in such critical areas as . . . institutionalization . . . .”); § 12101(a)(5) (finding that discrimination arises not only from “outright intentional exclusion,” but also from “failure to make modifications to existing . . . practices”). 30 While a plaintiff need not prove that the setting at issue is an “institution” to establish a Title II violation (as DAI did here), see, e.g., Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003), the district court considered this finding “compelling evidence” that that Adult Homes “do[] not enable interactions with nondisabled people to the fullest extent possible.” SPA114. 31 Although the State does not challenge the district court’s findings that DAI’s constituents are not in the most integrated environment suitable to their needs, NYCQAL raises certain objections to the district court’s straightforward application of Olmstead. NYCQAL Br. at 46-52. As an initial matter, this Court should not address issues that the State has elected not to pursue on appeal. See Riverkeeper, Inc. v. Collins, 359 F.3d 156, 163 n.8 (2d Cir. 2004). Even if NYCQAL is allowed to participate in this appeal, it cannot raise issues relating to
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number of arguments that mischaracterize the district court’s decision and ignore
controlling law. Each of these arguments should be rejected.
First, the State argues that Title II requires the provision of integrated,
community-based services only when a state is “forcing individuals to remain
confined in segregated state institutions” or “conditioning access to state services on
residence in an institution.” State Br. at 24-25, 33-34. Although the State claims to
derive this interpretation of Title II from Olmstead, it is nowhere to be found in that
decision. To the contrary, like the Adult Home residents here, the plaintiffs in
the merits of DAI’s claims that the State has abandoned, because such issues are outside the purported scope of their intervention. See United States v. Bd. of Educ., 605 F.2d 573, 576 (2d Cir. 1979) (stating that intervenors can participate in the lawsuit only “within the limitations of purpose imposed at the time of intervention”); United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563, 1567 n.1 (11th Cir. 1994) (“Intervenors lack standing to raise . . . issues . . . outside of the limited scope of the intervention.”). At any rate, NYCQAL’s arguments are without merit. First, Olmstead does not, as NYCQAL suggests, require the State to make a formal recommendation concerning community placement in order for an individual to be deemed qualified for such placement. Were that the case, states could avoid the integration mandate by simply failing to require professionals to make recommendations regarding necessary services. See, e.g., Joseph S. v. Hogan, 561 F. Supp. 2d 280, 290-91 (E.D.N.Y. 2008); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 540 (E.D. Pa. 2001). Second, NYCQAL’s claim that “substantial evidence of the preferences of individuals with disabilities was lacking” is without basis. The district court made extensive findings of fact (based on, among other things, the testimony of current and former Adult Home residents) demonstrating that DAI’s constituents want to—and if given the option would choose to—receive services in more integrated settings. SPA152-57. As discussed infra note 42, the length of time it took to fill the sixty supported housing beds allocated to Adult Home residents in 2007 was due to the State’s lackluster effort at in-reach—not a reflection of residents’ preferences.
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Olmstead had been voluntarily admitted to Georgia Regional Hospital and were theoretically free to leave. Olmstead, 527 U.S. at 593. In addition, here, New York is conditioning services on being institutionalized in Adult Homes. Despite the State’s insistence that DAI’s constituents live in Adult Homes voluntarily, see, e.g., State Br. at 34, that is not what the district court found. As the court explained, DAI’s constituents remain in Adult Homes because the State has categorically excluded them from more integrated service settings, ensuring that Adult Homes are the only option for large numbers of people with mental illness. SPA150. Like the plaintiffs in Olmstead, they have been denied access to community-based treatment settings and they have nowhere else to go. Olmstead, 527 U.S. at 600-03; SPA150, 163-65, 193.
It is not the case, as the State suggests, that DAI’s constituents can simply take their SSI payments and go live wherever they want. In addition to the myriad subsidies the State provides to Adult Homes as sponsorship of their major role in New York’s mental health system, the State provides a much higher rate of SSI benefits to individuals living in Adult Homes than it does to individuals living independently. If a resident leaves the Adult Home, the State reduces its portion of that resident’s SSI benefits by 87% (from $8,328 to $1,044). SPA172-73. Thus, the State has effectively conditioned support on living in institutions. See Olmstead, 527 U.S. at 601 (finding that discrimination exists where, “[i]n order to receive needed medical services, persons with mental disabilities must, because of those disabilities,
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relinquish participation in community life they could enjoy given reasonable accommodations”).
Ignoring the district court’s factual findings, the State contends that it has “decoupled” mental health services from residential services and mischaracterizes DAI’s complaint as concerning only “housing” options. State Br. at 33. But far from having “decoupled” mental health and residential services, residential services are an integral component of the State’s comprehensive mental health system. SPA83-84. Pursuant to New York law, the mental health “system . . . should assure the adequacy and appropriateness of residential arrangements.” N.Y. MENTAL HYG. LAW § 7.01. OMH’s “guiding principles” acknowledge that “[h]ousing is a basic need and necessary for recovery.” PX(1)-105; see also PX(3)-345; JA227:1010:23-25-1011:1. Moreover, while DAI’s constituents might be eligible for Medicaid if they lived outside of an Adult Home, the State’s “integrated system of treatment” (which includes mental health care, physical health care, and residential services), on which these individuals rely, is available to them only in an Adult Home. That is why the State itself has described Adult Home residents as “stuck.” SPA88.
It is well settled that a State discriminates when it forces individuals to “choose” institutional confinement because of a lack of available alternatives. See, e.g., Radaszewski, 383 F.3d at 614 (applying ADA where plaintiff’s son would need to seek admission to a privately owned institution if defendants reduced level of
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services received at home); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1179 (10th Cir. 2003) (applying ADA where plaintiffs would be forced to choose nursing home services to maintain current prescription drug levels); Helen L. v. DiDario, 46 F.3d 325, 327-28 (3d Cir. 1995) (finding ADA violated where plaintiff remained in nursing home because she lacked access to community-based services for which she was qualified).
Second, the State maintains that Title II does not allow challenges to a state’s “resource-allocation decisions.” State Br. at 47. But Olmstead did not declare such decisions to be beyond Title II’s purview. In Olmstead, the plaintiffs sought an order directing Georgia’s Department of Human Resources to fund community placements for them. 527 U.S. at 593-94. Making an argument reminiscent of the State’s here, Georgia claimed that it had no liability because “inadequate funding, not discrimination” explained plaintiffs’ needless institutionalization. Id. at 594. The Supreme Court rejected this argument. Indeed, the Court placed Georgia’s budget decisions at the center of its analysis, holding that a state discriminates by denying plaintiffs community services if their placement could “be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 592, 603-07. While the Supreme Court acknowledged that courts should give some deference to states’ budgetary discretion, it instructed that
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these considerations be addressed in the context of the fundamental alteration defense. Id. at 603-04.
Third, the State argues that the district court incorrectly “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.” State Br. at 45. This is not what the district court ordered and is a complete distortion of DAI’s claims. DAI does not contend that the State must provide “integrated housing” services to every person receiving a mental health service from the State, nor does it seek “preferred housing” for its constituents. But where, as here, a state provides residential services as a component of its mental health services system, it is discrimination for the state to provide those services in segregated, institutionalized settings that “diminish[] the everyday life activities of individuals.” See Olmstead, 527 U.S. at 601. That is the discrimination that Olmstead specifically addressed and that lies at the heart of Title II. Id.
The State also mischaracterizes DAI’s claims as requiring “additional or different” mental health services, citing to this Court’s decision in Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999). State Br. at 39. But Rodriguez is inapposite. Rodriguez held that where “New York does not [provide a service] for anyone, it does not violate the ADA by failing to provide [the] benefit” to the plaintiff. 197 F.3d at 619 (emphasis added); accord Leocata v. Wilson-Coker, 343 F. Supp. 2d
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144, 156 (D. Conn. 2004). The Rodriguez Court expressly distinguished the facts in that case from those in Olmstead, in which “the [Supreme] Court addressed only where Georgia should provide treatment, not whether it must provide it.” 197 F.3d at 619; see also Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (“[W]here the issue is the location of services, not whether services will be provided, Olmstead controls.”). Here, as in Olmstead, New York already provides mental health services to DAI’s constituents in Adult Homes, and already provides supported housing to individuals who are similar to DAI’s constituents in every material respect. SPA12426, 135-38, 201. Therefore, this case does not concern a new “level of benefits” or creation of a new “entitlement.” As in Olmstead, this case concerns only where the State should provide treatment, not whether it must provide it at all.32 See SPA157; 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d); Radaszewski, 383 F.3d at 612 (“[T]he fact that the State already provides for some private-duty nursing tends to belie the notion that providing such care to [plaintiff] . . . would require the State to . . . creat[e] an entirely ‘new’ service.”); Townsend, 328 F.3d at 517 (“If services were determined to constitute distinct programs based solely on the location in which they were
32 The State also cites to a host of additional inapposite cases for the proposition that there must be “something different about the way the plaintiff is treated ‘by reason of . . . disability’.” State Br. at 35. These arguments are all red herrings. The Supreme Court in Olmstead unequivocally held that “unjustified institutional isolation . . . is a form of discrimination” even if no disparate treatment is shown. Olmstead, 527 U.S. at 600-01.
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provided, Olmstead and the integration regulation would be effectively gutted.”); see also Rodriguez, 197 F.3d at 619.
Finally, the State suggests that the district court failed to recognize the deference that Olmstead gives to states in structuring their mental health policies. But while Olmstead recognizes that states are allowed leeway to balance conflicting needs, it does not sanction the unjustified institutionalization of thousands of individuals that can be corrected without fundamentally altering a state’s service system. Nor does Olmstead sanction the exclusion of an entire population from access to communitybased services. Rather, recognizing the importance of deference to the State, Olmstead permits defendants to establish an affirmative defense that the relief sought is a fundamental alteration. As set forth below, the State altogether failed to make such a showing here.
II. THE STATE FAILED TO MEET ITS BURDEN OF PROVING A FUNDAMENTAL ALTERATION The Supreme Court has explained that the fundamental alteration defense “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. The Court proposed that one way for a state to prevail on the fundamental alteration defense would be to
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demonstrate that it already has 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.” Id. at 605-06.
The district court properly found that the State failed at trial to meet its burden of establishing a “fundamental alteration” defense, because the State does not have a “comprehensive, effectively working plan” for placing Adult Home residents in the most integrated setting appropriate to their needs, SPA157-72, and had not shown that the relief sought would increase its costs or have an adverse impact on other individuals with mental illness, SPA172-90. See Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 492 & n.4 (3d Cir. 2004) (noting that defendant has burden of establishing fundamental alteration). The court’s decision should be upheld.33 A. The State Has No Comprehensive, Effectively Working Plan to Enable
Adult Homes Residents to Receive Services in More Integrated Settings Based on “ample evidence,” SPA192, the district court correctly found
that the State has no working plan to enable Adult Home residents to receive services in a more integrated setting, much less a “comprehensive” or “effectively working”
33 The State argues that the remedy sought is not a “reasonable modification” under Title II because DAI has not shown that “‘but for’ its [constituents’] disability, [they] would have received the ultimate benefit sought.” State Br. at 51-52. Olmstead holds that unjustified isolation of people with disabilities is a form of discrimination that must be remedied unless it would require a fundamental alteration to the state’s mental health system; there is no separate “but for” inquiry. 527 U.S. at 597-98; see also SPA191.
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plan as required by Olmstead. SPA191-95. Far from it, the State has “routinely and systematically excluded Adult Home residents from [its] efforts to comply with Olmstead,” SPA192, and has exhibited a “commit[ment] to maintaining the status quo,” leaving DAI’s constituents “stuck” in institutional Adult Homes. SPA88, 161. Indeed, the State admits in its brief that it views the placement of individuals in Adult Homes as the end of its Olmstead obligations. State Br. at 56. This argument underscores the State’s lack of “commitment to . . . compliance with the ADA and RA.”34 Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 383 (3d Cir. 2005) (admission by defendant that it had no plan for community-based services for residents of facility at issue “foreclose[d] the genuine contention that it ha[d] made a commitment to . . . compliance with the ADA and RA”).
The State argues that it is “effectively implementing a plan to ‘deinstitutionalize disabled persons,’” citing Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005), and Arc of Washington State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005), because it claims to have a plan to move residents out of state-operated psychiatric facilities. State Br. at 55-56. But such a plan, if it exists, excludes Adult Home residents—the very population discriminated against—and cannot form the
34 The State’s claim that “DAI’s constituents are in no way excluded” from its expansion of community-based services, State Br. at 57, is directly contradicted by the district court’s findings of fact: “[W]ithout a specific allocation of beds for Adult Home residents, Adult Home residents will not have access to supported housing as a practical matter.” SPA165.
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basis of a fundamental alteration defense. See Pa. Prot. & Advocacy, Inc., 402 F.3d at 384-85 & n.9 (finding no fundamental alteration where state had “chosen not to make integration provisions” for the population at issue in the suit “by excluding them from participation in its varied, successful community treatment programs”). In Sanchez and Arc of Washington, unlike here, the defendants had demonstrated a detailed plan that included the specific facilities in which the plaintiffs were institutionalized. Sanchez, 416 F.3d at 1065-66 (addressing state plan to move plaintiffs out of institutional facilities called developmental centers); Arc of Wash., 427 F.3d at 621 (addressing state plan to reduce the census of institutions in which plaintiffs lived). Because the State has no plan to serve Adult Home residents in a more integrated setting, Sanchez and Arc of Washington do not support its claims.
The State also argues that “Olmstead does not require such specific plans outside the context of unjustified institutionalization in state facilities.” State Br. at 56 (emphasis added). This argument finds no support in the law. To the contrary, as set forth above, courts routinely apply Title II to state mental health systems that rely on private entities to deliver services. See, e.g., Rolland, 52 F. Supp. 2d at 237 (finding it “immaterial” that plaintiffs lived in private rather than government-operated nursing facilities).
Because the State failed to show a “comprehensive, effectively working plan” to serve Adult Home residents in integrated settings, SPA195, it failed to meet
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its burden of establishing the fundamental alteration defense. See Pa. Prot. & Advocacy, Inc., 402 F.3d at 381 (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”). B. The State Has Not Demonstrated that the Relief Sought Would Increase
Its Costs or Fundamentally Alter Its Mental Health Services System The State’s appeal also fails because it did not establish at trial that the
relief sought would increase its costs, let alone result in any “fundamental alteration” of its mental health system.
Brazenly ignoring the district court’s finding that the State will save money by serving Adult Home residents in supported housing, SPA175, and with no citation to the record, the State asserts that it will be required to spend $65 million in additional appropriations in the first year of implementation of the remedy. State Br. at 54. This number is inconsistent with the State’s own cost calculation at trial—the State argued that each supported housing bed would cost an additional $7,370 per year, totaling only $11.055 million in the first year, SPA174-75—and it flatly ignores the cost savings identified by the district court.
Following Olmstead’s mandate, the district court properly considered the fiscal impact of the proposed remedy by reviewing the full costs of services received by Adult Home residents and how the relief sought would affect those costs. SPA172-88; Olmstead, 527 U.S. at 603-06 & n.16 (rejecting simple comparison of
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cost of community-based care with cost of institutional care, in favor of analysis of actual fiscal impact); Townsend, 328 F.3d at 520 (requiring concrete factual analysis of how proposed remedy would affect state’s mental health budget); Martin, 222 F. Supp. 2d at 986 (fundamental alteration analysis requires consideration of “vast array of evidence”). The State’s analysis improperly ignored much of the actual costs of serving DAI’s constituents in Adult Homes. As the Chief Fiscal Officer for OMH admitted at trial, the State itself did no analysis to determine the financial impact of serving people in supported housing rather than Adult Homes. SPA174.
Based on the State’s own data regarding Medicaid costs and other substantial evidence, the district court found that the State would save $146 annually per person by serving individuals in supported housing rather than in Adult Homes.35 SPA174-81. The court also pointed to additional millions of dollars the State spent on capital improvements and programming in Adult Homes that could be reduced if individuals were instead served in supported housing.36 SPA181-84.
35 The State does not contest the district court’s finding that Adult Homes foster the over-utilization of Medicaid, SPA176-79, but rather argues that in lieu of making supported housing available, it “might instead choose to step up enforcement actions against the providers.” State Br. at 64. The district court appropriately contrasted the costs of the relief sought with the State’s actual spending. In addition, the court found that the State has long been aware of but unable to reduce the over-utilization of Medicaid in Adult Homes. SPA178-79.
36 NYCQAL erroneously claims that the district court’s order “is predicated on the redirection of [capital improvement and programming] funds from adult homes to the operators of supported housing.” NYCQAL Br. at 20. However, the district
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The State does not—because it cannot—claim that the detailed cost
findings by the district court were in error. See Fisher, 335 F.3d at 1183 (“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.”).37
Paradoxically, the State faults the district court for having required the
State to produce evidence supporting its assertion that the “scale” of the proposed
remedy would fundamentally alter its mental health system. State Br. at 55, 61-63.
But under Olmstead, it is precisely the State’s burden to establish that the remedy
sought would fundamentally alter the service system at issue. See, e.g., Olmstead, 527
U.S. at 604-05; Frederick L., 364 F.3d at 493-94. The State had every opportunity to
present evidence to that end, but fell short.
The State also seeks to muddy the waters by citing to the current fiscal
crisis and anticipated budget constraints. State Br. at 60-63. However, the State’s
current budget problems, standing alone, do not establish a fundamental alteration
court identified substantial savings even without factoring in these potential cost reductions. SPA181-84. 37 While NYCQAL contends that the district court “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,” NYCQAL Br. at 58, the State does not make this argument, and for good reason: it completely misinterprets the record. The testimony to which NYCQAL refers conflated the costs of supportive housing (which is not at issue in this case) and supported housing (which is at issue). JA729-30:2775-77; DX(3)-552. Supported housing providers do not use “debt services” and thus there were no costs “overlooked” by the district court. DX(3)-552.
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defense.38 Pa. Prot. & Advocacy, Inc., 402 F.3d at 380 (“[B]udgetary constraints
alone are insufficient to establish a fundamental alteration defense.”); Frederick L.,
364 F.3d at 495 (singular focus on state’s short term fiscal constraints is “inconsistent
with Olmstead and the governing statutes”); Fisher, 335 F.3d at 1182-83 (a state’s
fiscal crisis “does not lead to an automatic conclusion” that relief “will result in a
fundamental alteration”). Moreover, the district court expressly considered the State’s
financial crisis when it entered the Order, and found that the State had failed to show a
nexus between that crisis and the relief DAI seeks. SPA198. Importantly, the district
court also found that the State’s claim was belied by the cost savings the court identified.39 SPA221.
38 The State also erroneously relies on the terms of the Remedial Order as purported evidence of a “fundamental alteration.” But the relevant fundamental alteration inquiry concerns the relief sought, not the ultimate remedy ordered. Even assuming arguendo the Remedial Order were too broad—which it is not—that would not support disturbing the court’s finding of unlawful discrimination. See Pa. Prot. & Advocacy, Inc., 402 F.3d at 381 n.5 (distinguishing “sufficiency of budgetary constraints to establish a fundamental alteration defense to liability” from “the effect of budgetary constraints on a district court’s analysis of the appropriate remedy”).
39 The State maintains that the district court’s decision, if affirmed, might lead to additional lawsuits, thus subjecting the State to “responsibilities reaching far beyond this case.” State Br. at 58. That the State may have other liabilities under Title II should not deter this Court from addressing violations where they exist. Of course, to the extent that the remedies sought in future lawsuits would fundamentally alter the State’s mental health system, the State would not be found liable.
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Finally, the State attempts to shirk its burden of proving its affirmative defense by labeling the district court’s detailed findings as “estimates.” State Br. at 60. The court’s findings, however, were not mere conjecture. They were thoroughly considered and based on a voluminous trial record, including the testimony of multiple experts, about the costs of providing supported housing services to current Adult Home residents. Moreover, the State’s argument that a defendant de facto establishes its affirmative defense whenever a district court calculates future costs (since its calculations may turn out to be wrong) is both illogical and contrary to the law. A court must necessarily consider future costs in the fundamental alteration analysis. See Olmstead, 527 U.S. at 606 n.16 (requiring analysis of fiscal impact of desired relief). Accepting the State’s view would swallow Title II whole. C. The Relief Sought Would Not Adversely Affect Other Individuals with
Disabilities Once again ignoring the district court’s factual findings, the State
suggests that the relief sought might jeopardize services for other individuals with disabilities. But the State’s apocalyptic predictions are not supported by the evidence—as demonstrated by the complete lack of citation to the record for their claims.40 State Br. at 62, 64-65; see also NYCQAL Br. at 55-56.41
40 Significantly, the Adult Homes are not as fiscally precarious as they claim. See PX(1)-670 (Often “operating profits were hidden through false or misleading financial statements, which included non-arm’s length payments to the operator. Non-arm’s length transactions often create ‘costs’ which in reality are ‘off-the54

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* * *
Accordingly, the district court properly held that the State discriminates
against DAI’s constituents, entitling them to relief.
III. THE REMEDIAL ORDER IS NARROWLY TAILORED TO ADDRESS THE VIOLATIONS FOUND BY THE DISTRICT COURT
In crafting a remedy for the violations of federal law found at trial, the
district court appropriately deferred to the State and entered an order that is narrowly
tailored—and no more intrusive of State prerogatives than necessary—to achieve
compliance with federal law.
Injunctions issued to remedy civil rights violations should be (1) related
to the “scope and nature” of the violation of federal law, (2) “designed as nearly as
possible to restore the victims of discriminatory conduct to the position they would
book’ profits to the operators.”). They also have a history of threatening closure in order to avoid reform, as they are here. JA219:698, 286:966. Moreover, the State has ample authority—which it has exercised before—to intervene when Adult Homes place residents at risk. SPA86 (n.38) (citing N.Y. COMP. CODES R. & REGS. tit. 18, § 485.9). In addition, the State argued below that Adult Homes were likely to remain full even if DAI’s constituents move to supported housing due to “backfill.” SPA196. While the district court found this claim to be equally unsupported by evidence, it illustrates that the prospect of Adult Home closures is far from certain. 41 For example, while NYCQAL raises the specter of a “zero sum game” in which the tight New York City housing market will only allow for some individuals with mental illness to live in supported housing, NYCQAL Br. at 56, such arguments are directly contradicted by the district court’s finding that the State can create 1,500 supported housing beds each year. SPA189-90.
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have occupied in the absence of such conduct,” and (3) attentive to the interests of state and local authorities in managing their own affairs. Milliken v. Bradley, 433 U.S. 267, 280-281 (1977) (internal quotation marks and citations omitted).
Where discrimination has been found, “the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Id. at 281 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). A district court has “first-hand experience with the parties . . . [and] must be given a great deal of flexibility and discretion in choosing the remedy best suited to curing the violation.” United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1236 (2d Cir. 1987) (internal quotation marks omitted). A district court does not abuse or exceed its discretion unless its decision “rests on an error of law . . . or a clearly erroneous factual finding” or “cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001). Here, the district court did not abuse its discretion. A. The State’s Proposed Remedy Was Inadequate
The State complains in its brief that the district court did not defer sufficiently to the State. That simply is not true. To the contrary, mindful of the important “principles of federalism,” SPA219 (citing Missouri v. Jenkins, 495 U.S. 33, 51 (1990)), the district court turned to the State in the first instance to present a proposed remedy that comported with the court’s findings of facts and conclusion of
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law. However, as the district court found, the State proposed a remedy that was
“grossly inadequate,” SPA223, and “egregiously deficient,” SPA220:
The [State’s] proposal brazenly ignore[d] the court’s factual findings and overtly attempt[ed] to relitigate issues lost at trial. . . . First and foremost, it simply fail[ed] to address the civil rights violations found by the court. SPA228. For example, among its other deficiencies, the State’s proposal would have
made supported housing beds available—over five years—to only 23% of the people
that the district court found to be needlessly institutionalized in the Adult Homes.
SPA223. Likewise, despite the district court’s extensive factual findings that
“residents are not adequately informed about housing alternatives to the Adult
Homes,” SPA151, the State proposed to conduct only a once-a-year “educational
opportunity” to provide information to Adult Home residents about alternative
options, SPA223. The court rightly found that an annual lecture or exhibition did not
pass muster: “The idea that this token effort would sufficiently educate adult home residents is unsupported by the evidence, not to mention common sense.”42 SPA224.
Not only did the State’s proposal fail to address the discrimination DAI’s constituents
42 The importance of effective in-reach is highlighted by the State’s bungled attempts at in-reach in 2007-2008 with respect to the sixty supported housing beds then made available to adult home residents. Although the sixty-bed initiative began in the summer of 2007, it took the State more than nine months to conduct any inreach whatsoever, and only then with a select group of invited residents at a small number of adult homes. JA490-93. Once in-reach began, there was an “enthusiastic” response. SPA153. “[W]hen the administrator of the Adult 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.’” SPA153-54.
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suffer, but it also was contingent upon numerous factors, including passage by the New York State Legislature of budget legislation, contract bidding and approval, and performance of contracts without breach. SPA226-27.
Tellingly, the State does not now contend that it proposed an adequate remedy, but rather explains its failure to do so as a litigation tactic. State Br. at 71 n.10. While a district court should allow the state to propose relief in the first instance, “[i]t goes without saying that federal courts must vigilantly enforce federal law and must not hesitate in awarding necessary relief.” Horne v. Flores, 129 S. Ct. 2579, 2594 (2009). This Court’s decision in United States v. Yonkers Board of Education, 29 F.3d 40 (2d Cir. 1994) (per curiam), is directly on point. In Yonkers, this Court affirmed a district court’s remedial order that did not adopt the City of Yonkers’ proposed remedy, because, although the plan may have been put forward in good faith,43 it was not effectual:
[T]he defendant does not shoulder its burden at the remedy stage merely by coming forward with a plan. The defendant must come forward with a plan that promises realistically to work, and promises realistically to work now. The district court has not only the power but the duty to ensure that the defendant’s proposal represents the most effective means of achieving desegregation.
43 Here, the district court found the State’s proposed remedy to be “so egregiously deficient as to arouse suspicion that [the State] submitted the proposal knowing full well that the court would have to reject it, thereby raising a question as to [its] good faith.” SPA220.
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29 F.3d at 43 (second emphasis added) (internal quotation marks and citation omitted). Consistent with these principles, the district court acted well within its discretion to reject the State’s proposal as “unreasonable and inadequate.” SPA230. B. The Court’s Remedial Order Is Narrowly Tailored
In the absence of a reasonable proposal from the State, the district court entered a Remedial Order that is consistent with the scope of the Title II violations found at trial.
In line with the district court’s finding that the State needlessly discriminates against Adult Home residents by denying them access to supported housing, the Remedial Order requires the State to ensure within four years that “Adult Home Residents who desire placement in supported housing have been afforded such placement if qualified.” SPA234 ¶ 1. Based on the court’s extensive findings at trial, and its familiarity with this case after almost seven years of litigation, the Remedial Order sets forth requirements to ensure that this goal is accomplished meaningfully and expeditiously. Each of these concomitant requirements is based on a specific finding of fact, and each is a necessary component of ensuring that all of DAI’s constituents receive relief. For example, the “in-reach” required by the Remedial Order is directly tied to the court’s finding that residents lack adequate information
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and are often misled about alternative housing.44 The district court did not abuse its discretion by requiring such assistance. See Yonkers, 837 F.2d at 1236 (district courts have “first-hand experience with the parties and [are] best qualified to deal with the flinty, intractable realities of day-to-day implementation” (internal quotation marks omitted)).
Indeed, the injunctive and declaratory relief ordered here is remarkably similar to the relief affirmed by this Court in Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003), a Title II discrimination case brought on behalf of HIV-positive recipients of New York City and State services. After plaintiffs established violations of Title II, this Court affirmed an injunction that required New York City to provide “intensive case management,” maintain specified ratios of caseworkers and supervisors, provide meaningful explanation of benefit applications, and “appoint a representative to handle all problems that . . . clients are experiencing.’” Id. at 271. The plaintiffs also were granted the right “to conduct on-site inspections . . . to monitor compliance.” Id. This Court noted that the relief may have been broad, but the “factual findings provide ample support” for the remedy. Id. at 290. Here as well, the district court’s extensive factual findings support—and require—the measures set forth in the Remedial Order.
44 In-reach also is not a new concept: OMH itself has issued RFPs for supported housing that required plans for in-reach. See, e.g., SX(4)-198.
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C. The Remedial Order Does Not Impede Day-to-Day Management of the State’s Affairs Notably, the State does not argue that the Remedial Order is untethered to
the record. Rather, the State erroneously contends that aspects of the Remedial Order “deprive[] state officials of authority to implement and administer the very program the court mandates.” State Br. at 67. But this criticism is divorced from the text of the Order itself, which properly leaves discretion to State officials.
For example, the Remedial Order does not “den[y] the State the power to draft and negotiate its own contracts with private supported-housing providers,” as the State contends. State Br. at 67. The State retains authority to draft RFPs and provider contracts, subject only to “comment[s]” from DAI “on the sufficiency of the RFPs to achieve adequate relief.” SPA238 ¶ 7. Nor does the Remedial Order place “the administration of treatment programs . . . [in] the federal courts.” State Br. at 69-70. Day-to-day decision-making remains squarely in the hands of State officials. The State acknowledges as much in its brief: “[T]he court’s injunction leaves many practical questions about day-to-day implementation unresolved.” Id. at 69.
The Remedial Order also does not deprive the State of its ability to determine eligibility for supported housing. At present, supported housing providers determine, within state guidelines, which individuals will be admitted into their programs. Under OMH’s Supported Housing Implementation Guidelines, Supported Housing service providers, either alone or in coordination with existing case
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managers, provide an “Eligibility Determination.” SX(4)-19-20; see also N.Y. COMP. CODES R. & REGS. tit. 14, § 595.8(d) (“The provider of service shall make a decision with regard to an individual’s application for admission no later than 15 working days after submission of all necessary documentation.”). Accordingly, there is no independent clinical assessment. See, e.g., SPA124 (n.322).45
Nor does the Remedial Order improperly intrude into the State’s discretion by appointing a monitor.46 “The power of the federal courts to . . . monitor compliance with their remedial order is well established.” Yonkers, 29 F.3d at 44; see also Henrietta D., 331 F.3d at 294. Moreover, the monitor’s tasks are appropriately limited to tracking compliance with the Order, facilitating the resolution of disputes, and recommending appropriate action. See Yonkers, 29 F.3d at 44 (“[A] special master vested with authority to implement a court’s order poses a greater threat of intrusion than one whose authority is limited to monitoring compliance with that order.”). As the district court aptly noted, a monitor with experience in the development, management, and oversight of community programs is both useful and appropriate, because: (1) the remedy will affect thousands of mentally ill individuals; (2) implementing the Remedial Order will require coordination of OMH, DOH, and
45 The State also complains that the Remedial Order is overbroad in that it provides the option of supported housing to all DAI’s constituents, not just those with “serious mental illness.” State Br. at 68. Title II affords rights to individuals with disabilities whether they are seriously mentally ill or less-seriously mentally ill.
46 Notably, the district court appointed the monitor nominated by the State.
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the Governor’s office; and (3) the State has demonstrated a resistance to the remedy. SPA230.
The State’s complaint that the Remedial Order does not create an “out” in the event that costs are not what the court anticipated is also without merit. State Br. at 72. If any aspect of the Remedial Order becomes unworkable, or too costly in practice, the State may return to the district court and seek relief under Federal Rule of Civil Procedure 60(b)(5). See, e.g., Henrietta D., 331 F.3d at 281 (“[I]f at any time such hardship arises the defendants would undoubtedly have the ability to return to the District Court to seek a modification of its order to reflect that condition.”).
Finally, the court properly granted relief for individuals with mental illness “at risk of entry” into Adult Homes to ensure that the Order is not a temporary bailout of current residents only. It is well established that “where past violations have been shown,” a district court enjoys “broad discretion to enjoin possible future violations of law.” Id. at 290; United States v. Carson, 52 F.3d 1173, 1183-84 (2d Cir. 1995) (“[District] [c]ourts are free to assume that past misconduct is highly suggestive of the likelihood of future violations.” (internal quotation marks omitted)).47 In this case, future violations are certain because of the State’s categorical exclusion of Adult Home residents from supported housing.
47 The State’s assertion that the district court should have entered a declaratory judgment without a specific injunction is not supported by any authority. The district court correctly found injunctive relief proper in light of the length of time 63

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IV. DAI HAS STANDING DAI has standing pursuant to PAIMI to assert claims on behalf of its constituents and also associational standing pursuant to Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). Courts routinely hold that P&A organizations, such as DAI, have standing to bring suit on behalf of their constituents. See, e.g., Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1116 (9th Cir. 2003); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999); State of Conn. Office of Prot. & Advocacy for Pers. with Disabilities, 706 F. Supp. 2d at 283-84; Laflamme v. New Horizons, Inc., 605 F. Supp. 2d 378, 396-97 (D. Conn. 2009); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 307 (E.D.N.Y. 2008); Aiken v. Nixon, 236 F. Supp. 2d 211, 224 (N.D.N.Y. 2002); Trautz v. Weisman, 846 F. Supp. 1160, 1163 (S.D.N.Y. 1994); Rubenstein v. Benedictine Hosp., 790 F. Supp. 396, 409 (N.D.N.Y. 1992).48 The district court correctly found that DAI has standing here.
that the State has been discriminating against Adult Home residents and the State’s resistance to redressing it, as reflected by, inter alia, the State’s inadequate remedial plan. 48 See also Hargrave v. Vermont, 340 F.3d 27, 32-33 (2d Cir. 2003) (noting district court grant of P&A organization’s motion to intervene); Larkin v. State of Mich. Dep’t of Soc. Servs., 89 F.3d 285, 288 (6th Cir. 1996) (same); Univ. Legal Servs., Inc. v. St. Elizabeth’s Hosp., No. Civ. 105CV00585TFH, 2005 WL 3275915, at *5 (D.D.C. July 22, 2005) (rejecting argument that PAIMI does not authorize suits on behalf of its organizations’ constituents); Ohio Legal Rights Serv. v. Buckeye
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A. DAI Is Statutorily Authorized to Bring Suit on Behalf of Its Constituents
DAI is authorized by PAIMI to bring suit in its own name on behalf of its
constituents—“individuals with mental illness.” 42 U.S.C. § 10805(a)(1)(B). In
accordance with this Congressional authorization, DAI has standing to sue in its
representative capacity.
In 1975, largely in response to the horrific conditions uncovered at
New York’s Willowbrook State School for persons with developmental disabilities,
Congress enacted the Developmental Disabilities Assistance and Bill of Rights Act
Ranch, Inc., 365 F. Supp. 2d 877, 883 (S.D. Ohio 2005) (“[PAIMI] provides [P&A] systems with the independent authority to pursue legal remedies to ensure the protection of individuals with mental illness.”); Office of Prot. & Advocacy for Pers. with Disabilities v. Armstrong, 266 F. Supp. 2d 303, 312 (D. Conn. 2003) (“[PAIMI] alone has provided . . . P&As with the standing to bring actions for declaratory or injunctive relief in a judicial forum, and courts have awarded such relief simply on the basis of [PAIMI’s] language.”); Unzueta v. Schalansky, No. 99-4162-RDR, 2002 WL 1334854, at *3 (D. Kan. May 23, 2002) (“Congress may grant an organization standing. . . . In this case, [the P&A organization] is acting under the auspices of [PAIMI].”); Risinger v. Concannon, 117 F. Supp. 2d 61, 70 (D. Me. 2000) (holding Maine P&A organization had standing); Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 894 F. Supp. 424, 427 (M.D. Ala. 1995) (holding Alabama P&A organization had standing), aff’d, 97 F.3d 492 (11th Cir. 1996); cf. Tenn. Prot. & Advocacy, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., No. 3-95-0793, 1995 WL 1055174, at *1 (M.D. Tenn. Nov. 14, 1995) (holding that the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq., similar to PAIMI, authorized P&A standing); Mich. Prot. & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695, 702 n.12 (E.D. Mich. 1992) (same), aff’d, 18 F.3d 337 (6th Cir. 1994); Prot. & Advocacy, Inc. v. Murphy, No. 90 C 569, 1992 WL 59100, at *10 (N.D. Ill. Mar. 16, 1992) (same); Goldstein v. Coughlin, 83 F.R.D. 613, 614-15 (W.D.N.Y. 1979) (same).
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(“DD Act”),49 42 U.S.C. § 6000 et seq. (repealed and replaced by 42 U.S.C. § 15001 et seq.). Under the DD Act, a state that accepts federal financial assistance for services for individuals with developmental disabilities is required to have “a system to protect and advocate the rights of individuals with developmental disabilities.” 42 U.S.C. § 15043(a)(1). These “P&A” systems were created in order to, among other things, pursue legal remedies “to ensure the protection of, and advocacy for, the rights of such individuals.” 42 U.S.C. § 15043(a)(2)(A)(i).
Congress enacted PAIMI in 1985 to address similar concerns that “individuals with mental illness are vulnerable to abuse and serious injury.” 42 U.S.C. § 10801(a)(1); see also Robbins v. Budke, 739 F. Supp. 1479, 1481 (D.N.M. 1990). Like the DD Act, PAIMI empowers P&A organizations to “pursue administrative, legal and other appropriate remedies to ensure the protection of individuals with mental illness” and “the enforcement of the Constitution and Federal and State statutes.” 42 U.S.C. §§ 10805(a)(1)(B), 10801(b)(2)(A). The federal regulations implementing PAIMI provide that a P&A organization may “bring[] lawsuits in its own right to redress incidents of abuse or neglect, discrimination, and
49 See Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492, 494 (11th Cir. 1996). 66

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other rights violations.” 42 C.F.R. § 51.6(f). DAI is designated as part of New York State’s P&A system under PAIMI.50 SPA9; Supplemental Appendix 3.
The standing of P&A organizations, like DAI, to sue “as representatives of the segment of our society afflicted with mental illness is well-established in the law.” Stincer, 175 F.3d at 884 (collecting cases). In Brown v. Stone, for example, this Court affirmed the district court’s holding that PAIMI conferred standing on a P&A organization “to address systemic issues affecting the rights of multiple individuals.” 66 F. Supp. 2d 412, 424, 425 (E.D.N.Y. 1999), aff’d sub nom. Mental Disability Law Clinic, Touro Law Ctr. v. Carpinello, 189 F. App’x 5, 7 (2d Cir. 2006) (summary order); see also, e.g., Goldstein v. Coughlin, 83 F.R.D. 613, 614-15 (W.D.N.Y. 1979) (holding that P&A has standing to litigate on behalf of its constituents); Naughton v. Bevilacqua, 458 F. Supp. 610, 616 n.3 (D.R.I. 1978) (“[L]ike any agency charged with enforcement of statutory provisions, the [P&A] need not show injury to the agency in order to initiate suit. . . . Congress can charge an agency with representation and protection of the statutory rights of the particularly helpless developmentally disabled.”), aff’d, 605 F.2d 586 (1st Cir. 1979). Consistent with this authority, courts in this Circuit have held specifically that DAI has standing under PAIMI to sue on
50 The State and NYCQAL do not argue on appeal that PAIMI does not authorize P&A organizations to bring lawsuits on behalf of others.
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behalf of its constituents. See Trautz, 846 F. Supp. at 1163; Rubenstein, 790 F. Supp.
at 408-09; Aiken, 236 F. Supp. 2d at 224.
Congress re-affirmed the standing of P&A organizations, such as DAI, to
sue on behalf of others when it amended the DD Act in 1994, citing the district court
decisions in Goldstein and Rubenstein with approval:
[T]he current statute is clear that P&A systems have standing to pursue legal remedies to ensure the protection of and advocacy for the rights of individuals with developmental disabilities within the State. The Committee has reviewed and concurs with the holdings and rationale in Goldstein v. Coughlin, 83 F.R.D. 613 (1979) and Rubenstein v. Benedictine Hospital, 790 F. Supp. 396 (N.D.N.Y. 1992). S. Rep. No. 103-120, at 39 (1993), reprinted in 1994 U.S.C.C.A.N. 164, 202-03.51
There can be no dispute that Congress has granted P&A organizations authority to sue
as a representative on behalf of their constituents.
As the Supreme Court has explained:
[A]lthough . . . a litigant will ordinarily not be permitted to assert the rights of absent third parties, we recognize[] . . . that the general prohibition on a litigant’s raising another person’s legal rights is a judicially selfimposed limi[t] on the exercise of federal jurisdiction, not a constitutional mandate. Indeed, the entire doctrine of “representational standing,” of which the notion of
51 See 132 Cong. Rec. H2642-02 (daily ed. May 13, 1986) (statement of Rep. Waxman) (discussing the language of what is now 42 U.S.C. § 10805(a)(1)(B) and stating that “[i]t is also clear that the conferees do not intend for questions of standing or jurisdiction to limit the effectiveness, range, or forums in which P&A agencies can work”).
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“associational standing” is only one strand, rests on the premise that in certain circumstances, particular relationships (recognized either by common-law tradition or by statute) are sufficient to rebut the background presumption (in the statutory context, about Congress’s intent) that litigants may not assert the rights of absent third parties. United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 557 (1996) (internal quotation marks and citations omitted) (holding that there is a “wide variety of . . . contexts in which a statute, federal rule, or accepted commonlaw practice permits one person to sue on behalf of another”); see also Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 288-90 (1986) (discussing advantages of organizational representation notwithstanding lack of Rule 23 “safeguards”).52 The district court found that the State is discriminating against DAI’s constituents, and the Remedial Order will redress this injury. In PAIMI, Congress authorized P&As to bring suits in such circumstances. Accordingly, DAI has standing under PAIMI to bring this action. B. DAI Has Associational Standing DAI also has associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977). In Hunt, the Supreme Court reaffirmed that an organization may assert claims on behalf of its members when
52 Non-governmental as well as governmental entities have been permitted to sue on behalf of others. United Food, 517 U.S. at 557-58.
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(1) at least one member has standing to sue on his own; (2) the interest the
organization seeks to protect is germane to its purpose; and (3) neither the claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit.53 Id. at 343. The Court, however, rejected the claim that only
membership organizations can have standing to sue in a representative capacity,
holding that a non-membership association with “indicia of membership” could bring
suit on behalf of its constituents. 432 U.S. at 344-45 (holding that organization that
“serves a specialized segment of the . . . community which is the primary beneficiary
of its activities, including the prosecution of . . . litigation” had standing).
53 The State does not challenge the district court’s conclusions that DAI has at least one constituent with standing to sue on his own; that the interests it seeks to protect are germane to its purpose; and that the individual participation of DAI’s constituents is not required. NYCQAL, on the other hand, challenges DAI’s standing under the third element of Hunt, arguing that DAI’s claims require individual participation. However, it is well settled that the third prong in Hunt is prudential and can be abrogated by Congress, as it has been here via PAIMI. See, e.g., United Food, 517 U.S. at 557 (holding that the third prong is prudential and can be abrogated by Congress); Mink, 322 F.3d at 1112-13 (same); see also Fulton v. Goord, 591 F.3d 37, 42 (2d Cir. 2009) (“Because of the breadth of [the ADA’s] provisions, we have held that . . . actions [under this statute] are not subject to any of the prudential limitations on standing that apply in other contexts.”). Moreover, the case on which NYCQAL relies, Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004), does not support its position. NYCQAL Br. 40, 40-44. In Bano, this Court found that the plaintiffs lacked associational standing because the organization sought monetary damages. 361 F.3d at 714-15; see also, e.g., Bldg. & Constr. Trades Council of Buffalo, N.Y. v. Downtown Dev., Inc., 448 F.3d 138, 150 (2d Cir. 2006) (finding standing because damages not sought). DAI does not seek any damages in this case.
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In its brief, the State urges this Court to read into Hunt an overly strict standard for determining when a non-membership organization has standing: “Under Hunt, a nonmembership organization has associational standing only if its constituents enjoy . . . representation and control.” State Br. at 75-77. But such an interpretation is inconsistent with Hunt itself, which specifically rejected a theory of representative standing that would “exalt form over substance.” 432 U.S. at 345.
As the Ninth and Eleventh Circuits have held, P&A organizations have all the indicia of membership necessary under Hunt. See Mink, 322 F.3d at 1110; Stincer, 175 F.3d at 886. This Court, too, has recognized the standing of a nonmembership organization statutorily designated to represent individuals with mental illness (like DAI) because it “‘serves a specialized segment of the . . . community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation.’” Bernstein v. Pataki, 233 F. App’x 21, 24 (2d Cir. 2007) (summary order) (quoting Hunt, 432 U.S. at 344).54 In fact, this Court has never applied such a rigid, formalistic test as proffered by the State to determine associational standing. See, e.g., Reg’l Econ. Cmty. Action Program, Inc. v. Middletown, 294 F.3d 35, 46 n.2 (2d Cir. 2002) (holding that organization had associational standing where it “serve[d]
54 The State attempts to distinguish Bernstein by noting that it was a putative class action. However, the fact that there was a putative class was not a factor the Court considered in reviewing the organization’s associational standing under Hunt. Bernstein, 233 F. App’x at 24-25.
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a class of individuals with discrimination claims”); see also Brock, 477 U.S. at 289
(recognizing the benefits to the judicial system and to those on whose behalf the
organization sues).
In PAIMI, Congress ensured that state P&A systems are representative of
their constituents and possess all of the “indicia of membership” required by Hunt.
Among other things, PAIMI requires that P&A systems:
• Establish an advisory council, 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, 42 U.S.C. § 10805(a)(6)(C);
• Ensure that the advisory counsel includes attorneys, mental health professionals, and individuals from the public who are knowledgeable about mental illness, and that at least 60% of its membership is composed of individuals who have received or are receiving mental health services or who are family members of such individuals, 42 U.S.C. § 10805(a)(6)(B); and
• Establish a grievance procedure for clients or prospective clients to “assure that individuals with mental illness have full access to the services of the system,” 42 U.S.C. § 10805(a)(9).
Thus, every federal district court in this Circuit that has addressed the question has
held that P&A organizations have all the “indicia of membership” necessary to
support associational standing under Hunt. See, e.g., State of Conn. Office of Prot. &
Advocacy for Pers. with Disabilities, 706 F. Supp. 2d at 283-84; Laflamme, 605
F. Supp. 2d at 396-97; Aiken, 236 F. Supp. 2d at 224.
The Ninth and Eleventh Circuits have cogently explained why P&A
organizations have associational standing. In Mink, the Ninth Circuit conducted a
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thorough review of Hunt and the Supreme Court’s jurisprudence on Article III standing, and held that P&A groups have standing to sue on behalf of their constituents because “‘[i]n a very real sense’ . . . [the P&A organization] represents those who suffer from mental illness . . . and ‘provides the means by which they express their collective views and protect their collective interests.’” 322 F.3d at 1112 (quoting Hunt, 432 U.S. at 345). While the constituents of the P&A organization were not “members” and did not have all the same indicia of membership that the apple growers and dealers possessed in Hunt, the Ninth Circuit nevertheless found:
[The P&A organization’s] constituents do possess many indicia of membership—enough to satisfy the purposes that undergird the concept of associational standing: that the organization is sufficiently identified with and subject to the influence of those it seeks to represent as to have a personal stake in the outcome of the controversy. Id. at 1111 (internal quotation marks omitted). The Ninth Circuit rejected the precise argument the State makes here: “We think [the state’s] membership argument is overly formalistic. Given [the P&A group’s] statutory mission and focus under PAIMI, its constituents . . . are the functional equivalent of members for purposes of associational standing.” Id. at 1110. The Eleventh Circuit reached the same conclusion in Stincer, holding that “under [PAIMI], individuals with mental illness possess the indicia of membership in an organization.” 175 F.3d at 886 (internal quotation marks omitted). The Eleventh Circuit carefully analyzed the Supreme Court’s decision in Hunt and the PAIMI
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statute. Id. (citing 42 U.S.C. § 10805). Noting that Congress had explicitly designated P&As to serve a “specialized segment of the community” and to “perform[] the functions of a traditional . . . association,” the court found that “[m]uch like members of a traditional association, [the P&A group’s] constituents . . . possess the means to influence the priorities and activities the [P&A group] undertakes.” Id.
The State urges this Court to reject the reasoned decisions of the Ninth and Eleventh Circuits and the legion of lower courts that have held that P&A organizations have standing, and instead follow the Fifth and Eighth Circuits. State Br. at 76-77; see also Mo. Prot. & Advocacy Servs. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007); Ass’n of Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir. 1994). These cursory decisions are inconsistent with Hunt and should not be followed by this Court.
Without performing any analysis of the PAIMI statute (or even citing to it), the Eighth Circuit in Carnahan adopted a formalistic approach to non-membership standing and held that because the plaintiff P&A did not have the same relationship with its constituents that the commission had with the apple growers in Hunt, it lacked standing. Carnahan, 499 F.3d at 810. Although the decision came after both Stincer and Mink, the Eighth Circuit did not address—or even refer to—those decisions. Id. The court relied instead on the Fifth Circuit’s two-sentence holding in Dallas County, which did not contain any serious analysis and is distinguishable on the facts. Id.
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In Dallas County, the Fifth Circuit held in two sentences that P&A
“organization[s] bear[] no relationship to traditional membership groups because most
of [their] ‘clients’—handicapped and disabled people—are unable to participate and guide the organization[s’] efforts.”55 19 F.3d at 244. In dismissing entirely the
possibility that the advocacy group could ever have associational standing under Hunt,
the court did not perform any analysis of the P&A’s authorizing statute, nor did it cite
to any legal authority for its holding. This decision is not only unpersuasive, but it is
also inapposite here. The P&A at issue in Dallas County was not asserting standing
under PAIMI. Advocacy Ctr. for Elderly & Disabled v. La. Dep’t of Health & Hosps.,
No. 10-1088, 2010 WL 3170072, at *7 (E.D. La. Aug. 9, 2010). As one district court
within the Fifth Circuit recently noted, “a PAIMI organization . . . is statutorily
obligated to have its constituents ‘participate in and guide the organization’s efforts’” and is thus “sufficiently analogous” to the commission in Hunt to have standing.56 Id.
55 To the extent the court’s analysis relied on the notion that people with disabilities are incapable of functioning like members in P&A organizations, Dallas Cnty., 19 F.3d at 244, such a view is based on unfounded stereotypes about people with disabilities that Congress rejected when it enacted the ADA.
56 Regardless, the United States indisputably has standing to enforce the ADA and continue this lawsuit. Whether an intervenor may continue the suit in the absence of the original party is a discretionary question for the court, which considers whether requiring the intervenor to begin a second, separate action would “result only in unnecessary delay.” Miller & Miller Auctioneers, Inc. v. G.W. Murphy Indus., Inc., 472 F.2d 893, 896 (10th Cir. 1973). There can be no doubt that requiring the United States to bring a second suit, following seven years of litigation, three years of discovery and a five-week trial, would unnecessarily delay
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V. DENYING NYCQAL’S INTERVENTION SIX YEARS INTO THE LITIGATION WAS NOT AN ABUSE OF DISCRETION Having monitored this lengthy and very public litigation for more than six years, NYCQAL filed an untimely motion to intervene in order to thwart the remedy to which thousands of Adult Home residents are entitled. The district court properly denied intervention, finding that NYCQAL’s motion was both untimely and a transparent effort to re-open issues that were conclusively established at trial, and that permitting intervention “would unnecessarily delay a remedial plan that is long overdue.” United States v. City of N.Y., 198 F.3d 360, 364 (2d Cir. 1999) (denial of intervention is reviewed for abuse of discretion). A. The District Court Properly Denied Intervention as of Right The district court properly found that NYCQAL had not satisfied the stringent requirements of Rule 24(a)(2) that a proposed intervenor: “(1) file timely, (2) demonstrate an interest in the action, (3) show an impairment of that interest arising from an unfavorable disposition, and (4) have an interest not otherwise adequately protected.” Farmland Dairies v. Comm’r of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038, 1043 (2d Cir. 1988) (internal quotation marks omitted). Although denial of intervention is proper where a party does not meet any one of these
a remedy to which DAI’s constituents are entitled. This would result in not only a grievous harm to DAI’s constituents, but also a needless waste of judicial and other government resources.
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factors, it was especially appropriate here, where NYCQAL failed to meet all four. Id. (“Failure to satisfy any one of these requirements is a sufficient ground to deny the application.” (emphasis added)).
1. NYCQAL’s Motion to Intervene Was Untimely in the Extreme “The determination of the timeliness of an application to intervene is
committed to the sound discretion of the trial court.” Id. at 1043-44. In reviewing the timeliness of a motion to intervene, this Court has instructed lower courts to consider, inter alia: “(1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). “[P]ost-judgment intervention is generally disfavored because it fosters delay and prejudice to existing parties.” Farmland Dairies, 847 F.2d at 1044. Having considered each of these factors, the district court correctly concluded that NYCQAL’s motion was untimely.
First, as the district court found, NYCQAL had been “fully aware of this litigation and the possible consequences to [its] interests . . . yet . . . made the conscious decision not to seek intervention until after the court found liability.” SPA216 (emphasis added). NYCQAL does not—because it cannot—dispute that it had notice of its purported interests in this litigation for more than six years before it
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made any attempt to intervene. Such an argument would be “disingenuous at best,” SPA211, since DAI’s complaint clearly set forth the nature and scope of the remedy it sought; the summary judgment order specifically addressed issues such as discharge planning and the cost effects of DAI’s requested relief; and the Adult Homes were intimately involved at all stages of the litigation. The Adult Homes negotiated the parties’ and their experts’ visits to the Adult Homes, were present at such visits, attended depositions of Adult Home staff, responded to subpoenas for documents, and sat in the courtroom and monitored much of the trial. SPA207. Accordingly, the court did not abuse its discretion in holding that NYCQAL’s motion was untimely. See Catanzano, 103 F.3d at 233 (explaining that notice of interests is measured from the point at which an issue giving rise to a proposed intervenor’s interest is “present” in the case); Mich. Ass’n for Retarded Citizens v. Smith, 657 F.2d 102, 104-05 (6th Cir. 1981) (affirming denial of intervention of employees of institution subject to a consent decree where they should have been aware at the outset that their employment could have been affected by the litigation).
NYCQAL claims that its interests suddenly were not adequately represented by the State after trial, thus excusing its untimely attempt to intervene. The district court soundly rejected this argument, because the State never represented NYCQAL’s interests. SPA212; see also Pitney Bowes, 25 F.3d at 70-71. NYCQAL simply ignores this Court’s decision in Farmland Dairies, on which the district court
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relied. In Farmland, this Court rejected the precise argument NYCQAL makes here, holding that private parties “should certainly have been aware . . . that the interests represented by the Attorney General are not coterminous with their own,” because the Attorney General has a statutory obligation to protect the interests of the state. 847 F.2d at 1044. So too here, the State’s interests and NYCQAL’s interests diverged from the outset.57 The State’s interest in the liability phase centered on the operation of the state mental health services system, not on protecting Adult Homes’ business.
Second, NYCQAL’s late intervention would have significantly prejudiced the parties—particularly DAI’s constituents—by unduly delaying the remedial proceedings. Not only did NYCQAL seek to inject collateral issues into the remedial stage (such as its members’ operating certificates), but NYCQAL’s intervention motion expressly disagreed with several of the district court findings, indicating it sought to relitigate issues the parties had spent six years analyzing and arguing. SPA213-14; United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986) (upholding denial of intervention where proposed intervenors sought to relitigate issues already thoroughly reviewed through more than six years of
57 NYCQAL mistakenly relies on Brody v. Spang, 957 F.2d 1108 (3d Cir. 1992). In Brody, the remedial stage of the litigation implicated interests that were “in no way” implicated in the merits phase. Id. at 1116-17. In contrast, all of the interests NYCQAL claimed to have in the remedial phase—essentially, interference with its members’ businesses and loss of their operating certificates—were present throughout the course of the merits phase. NYCQAL Br. at 20-22.
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litigation). As the district court explained, “[f]ull consideration of the adult homes’ newly presented claims might well require conducting evidentiary hearings or even reopening discovery.” SPA213.58
Third, NYCQAL suffered no prejudice from the denial of intervention, because the district court permitted it to contribute a remedial plan as amicus curiae, and expressly considered its proposed remedial plan. JA39, at DE389; see also Pitney Bowes, 25 F.3d at 73 (“[I]t is hard to fathom how [proposed intervenor] would suffer undue prejudice” when it “had an opportunity to express its concerns about the fairness of the consent decree during the public comment period, and availed itself of that opportunity by submitting written comments to the district court.”). Moreover, as set forth below, NYCQAL does not have any interest in this litigation. And, as the district court pointed out, any prejudice to NYCQAL “may be attributed to [its] own failure to seek intervention when [it] first had reason to become aware” of its interests. SPA214 (quoting Yonkers, 801 F.2d at 595).
Fourth, there were no “unusual circumstances” militating in favor of a finding of timeliness.59 See Pitney Bowes, 25 F.3d at 73.
58 Tellingly, NYCQAL’s arguments on appeal are not limited to the scope of the Remedial Order, confirming that its true intent in seeking to intervene was to relitigate factual issues resolved by the district court.
59 NYCQAL erroneously contends that “[i]f it was timely for the United States to seek intervention after the liability phase, it was also timely for [NYCQAL] to do so.” NYCQAL Br. at 26. The United States and NYCQAL are situated very
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2. NYCQAL Could Not Show Any Inadequacy of Representation To the extent that NYCQAL believes that the Adult Homes’ and the
State’s interests were “coterminous” during the litigation, NYCQAL Br. at 15, 22-23, their interests did not suddenly diverge after the district court entered its findings of fact and conclusions of law. NYCQAL mistakenly relies on Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001), but Smoke supports DAI’s position. NYCQAL Br. at 23. There, the court held that an inadequacy of representation arose “only when [the existing party] equivocated about whether it would appeal the adverse ruling of the district court.” 252 F.3d at 471. Here, by contrast, the State has appealed the district court’s judgment, on almost identical grounds to those asserted by NYCQAL.
3. NYCQAL Has No Interest in This Litigation Denial of intervention also was proper because NYCQAL has no
cognizable interest in this civil rights lawsuit. As this Court has explained, in order to satisfy the requirement of demonstrating an interest in the litigation, “a proposed intervenor must establish a ‘direct, substantial, and legally protectable’ interest in the subject matter of the action.” City of N.Y., 198 F.3d at 365 (quoting Wash. Elec. Coop. Inc. v. Mass. Mun. Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990)). “An interest that
differently. Rule 24(b)(2) expressly contemplates permissive intervention for a government agency charged with administering the relevant statute. Further, in contrast to NYCQAL, the United States specified that it would rely only on the record developed at trial. JA37, at DE357.
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is remote from the subject matter of the proceeding” does not suffice. Wash. Elec., 922 F.2d at 97.
NYCQAL does not have any direct, substantial, and legally protectable interests that are affected by this litigation. Though NYCQAL claims the Adult Homes might lose money as a consequence of the Remedial Order, the Homes have no rights to the discretionary funding they receive from the State. See N.Y. PUB. HEALTH LAW § 2801-f (2010) (providing that “the department may make a payment”); Lakeside Manor Home for Adults, Inc. v. Novello, 843 N.Y.S.2d 108, 109 (App. Div. 2007) (“[T]he [State] possess[es] extremely broad discretion in awarding [QuIP] funds.”). The State can choose, subject to the ADA and RA, to direct its funds to support individuals with mental illness in any number of settings.60 Moreover, the Remedial Order does not, as NYCQAL suggests, order the State to revoke Adult Home operating certificates or reallocate subsidies. Rather, if either happens, it would result from the State’s existing discretion to do so under state law.61 Nor does the
60 Furthermore, NYCQAL’s members can continue to operate if they find other customers, including people with physical disabilities, who want their “care.” There is also no merit to the Adult Homes’ unsupported assertion that, if their census declines, they will be unable to afford to provide services to those who remain. The Adult Homes are not as fiscally precarious as they claim. SPA17677; see also PX(1)-670-72. Indeed, the adult homes have a history of threatening closure in order to avoid reform. JA219:698; JA286:966; see supra note 40.
61 State laws authorize DOH to “revoke, suspend, or terminate an operating certificate if an adult home fails to comply with State regulations, or if [the State] determines that such an action is in the public interest.” SPA84.
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Remedial Order require Adult Homes to provide any information to the residents; it simply requires the State to use its existing enforcement powers to ensure that if Adult Homes choose to provide information, they do so accurately. SPA239. Adult Homes are highly regulated by the State, and must already open their doors to various inspections, including access by community organizations, that far exceed the intrusiveness of the contemplated in-reach. See, e.g., N.Y. COMP. CODES R. & REGS. tit. 18, §§ 485-87; N.Y. Coal. for Quality Assisted Living, Inc. v. MFY Legal Services, Inc., 895 N.Y.S.2d 84 (App. Div. 2010) (holding NYCQAL’s limitations on access conflict with state statutes and regulations); cf. United States v. Puerto Rico, 227 F.R.D. 28, 31 (D.P.R. 2005) (denying motion by institutions to intervene in suit alleging civil rights violations, noting the inconsistency between the institutions’ claimed financial interests and its interest in protecting residents’ rights).
In any event, all of NYCQAL’s purported interests are collateral to this litigation and do not support intervention. City of N.Y., 198 F.3d at 365. DAI’s claims concern only whether the State, in the operation of its mental health system, violates federal law by discriminating against individuals with mental illness. See, e.g., Rios v. Enter. Ass’n Steamfitters Local Union #638 of U.A., 520 F.2d 352, 354 (2d Cir. 1975) (upholding the denial of intervention of white union members, because “[t]he ‘property or transaction which is the subject of the action’ has at all times been the Union’s duty under Title VII not to discriminate against non-whites in the admission
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of new members”); Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149, 161-63 (2d Cir. 2010) (upholding denial of intervention in case concerning foreclosure on certain property in which proposed intervenor claimed a property interest, because the property interest was “remote at best”).
NYCQAL mistakenly relies on New York Public Interest Research Group v. Regents of University of State of New York, 516 F.2d 350 (2d Cir. 1975) (per curiam), NYCQAL Br. at 20-21, to support its interests, but that case is inapposite. Regents upheld intervention because, unlike here, the regulation at issue directly regulated the proposed intervenors. 516 F.2d at 351-52; see also Sierra Club v. U.S. Army Corps of Eng’rs, 709 F.2d 175, 176-77 (2d Cir. 1983) (distinguishing Regents, and affirming denial of intervention because “[h]ere a conclusion that the [defendant] has violated the court’s prior orders would have . . . at most an indirect effect”). DAI’s claims are aimed at State practices and the Remedial Order directs only the State’s conduct and is enforceable only against the State. Indeed, DAI could not have brought this civil rights litigation against the Adult Homes, because as private entities, they are not subject to Title II.62
62 The two other cases NYCQAL cites are likewise inapposite. NYCQAL Br. at 2021. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967), involved intervention in an antitrust suit based on “the public interest in a competitive system,” id. at 135, and has been significantly limited to “its own peculiar facts.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1908.1 (3d ed. 2010). Rosa-Lino Beverage Distributors Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124, 125-26 (2d
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* * * Accordingly, the district court properly denied intervention as of right. B. The District Court Correctly Denied Permissive Intervention For all the reasons set forth above, the district court did not abuse its discretion by denying permissive intervention. United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 991 n.19 (2d Cir. 1984) (“[A] denial of permissive intervention has virtually never been reversed.”); U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (the principal consideration of a Rule 24(b)(2) motion is whether the intervention will unduly delay or prejudice the rights of the existing parties).63
Cir. 1984) (per curiam), concerned a preliminary injunction and has nothing to do with Rule 24 intervention. 63 Various amici curiae have raised issues in their briefs in support of the State’s position that have not been raised by the State itself. Amici’s arguments not only lack merit, but, because they have not been raised by the State, they are not properly before this Court. Universal City Studios v. Corley, 273 F.3d 429, 445 (2d Cir. 2001); see also Schiller v. Tower Semiconductor, Ltd., 449 F.3d 286, 294 (2d Cir. 2006) (refusing to address an issue raised for the first time in an amicus brief on appeal); Concourse Rehab. & Nursing Ctr., Inc. v. DeBuono, 179 F.3d 38, 47 (2d Cir. 1999) (same).
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CONCLUSION For the foregoing reasons, Disability Advocates, Inc. respectfully

requests that the Court affirm the Judgment of the district court in its entirety.

Dated: October 6, 2010

Respectfully submitted,

PAUL, WEISS^IFKIND, WHARTON & GARRISON L^LIf (

By: Andrew G. Gordon Julie E. Fink Geoffrey Chepiga Elizabeth Seidlin-Bemstein Lindsey Weinstock Francine Murray
1285 Avenue of the Americas New York, NY 10019-6064 (212)373-3000
-and-
DISABILITY ADVOCATES, INC. Cliff Zucker Timothy A. Clune 5 Clinton Square, 3rd floor Albany, NY 12207 (518)432-7861
BAZELON CENTER FOR MENTAL HEALTH LAW Ira A. Burnim* 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730

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NEW YORK LAWYERS FOR THE PUBLIC INTEREST Roger Bearden Aditi Kothekar 151 West 30th Street, 11th floor New York, NY 10001-4007 (212) 244-4664 MFY LEGAL SERVICES, INC. Jeanette Zelhof Jota Borgmann 299 Broadway, 4th floor New York, NY 10007 (212) 417-3700 URBAN JUSTICE CENTER Mara A. Kuns 123 William Street, 16th floor New York, NY 10038 (646) 602-5664 Counsel for Plaintiff-Appellee
Disability Advocates, Inc.
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CERTIFICATE OF COMPLIANCE The undersigned counsel for Plaintiff-Appellee Disability Advocates, Inc. certifies that the foregoing brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B)(i), as modified by this Court's Order of October 4,2010. This brief contains 21,022 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). In preparing this certificate, I relied on the word count program in Microsoft Word.

Dated: October 6, 2010

By: Andrew G. Gordon

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Certificate of Service
I hereby certify that on October 6, 2010,1 caused to be served a copy of
the foregoing brief through the CM/ECF system upon the following counsel of record:
Cecelia Chang New York State Office of the Attorney General 120 Broadway New York, New York 10271 cecelia. chang@ag.ny. gov
Patricia A. Millett Akin Gump Strauss Hauer & Feld LLP 133 New Hampshire Avenue, N.W. Washington, DC 20036 pmillett@akingump.com
David T. Luntz Hinman Straub PC 121 State Street Albany, New York 12207 dluntz@hinmanstraub.com
Teresa Kwong U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC teresa.kwong@usdoj .gov
Andrew G. Gordon PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212)373-3000

 
 Case: 10-235 Document: 295 Page: 1 10/13/2010 123896 33
L10-235-cv (L)
10-251-CV, 10-767-CV, 10-1190-CV (CONSOLIDATED)
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, INC.,
Movants-Appellants. — and —
DAVID A. PATERSON, ET AL.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, CIVIL NO. 03-3209
BRIEF OF C.C., I.K., P.S., G.L. AND 13 OTHER CURRENT AND FORMER RESIDENTS OF ADULT HOMES, AS AMICI CURIAE IN
SUPPORT OF AFFIRMANCE AND PLAINTIFFS – APPELLEES, DISABILITY ADVOCATES, INC.
Elizabeth B. McCallum HOWREY LLP
1299 Pennsylvania Avenue, NW Washington, D.C. 20004 (202) 783-0800
Attorney for AMICI CURIAE

Case: 10-235 Document: 295 Page: 2 10/13/2010 123896 33
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI CURIAE..............................................................................1 SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................3 I. PEOPLE WITH MENTAL ILLNESSES WHO MOVE TO
SUPPORTED HOUSING REPORT SUBSTANTIAL IMPROVEMENTS IN QUALITY OF LIFE, HEALTH, WELLBEING, RELIEF FROM STIGMATIZATION, AND INTEGRATION INTO THE COMMUNITY.................................................3 A. C.C., Prior Resident, Riverside Manor .................................................3 B. I.K., Prior Resident, Surf Manor ...........................................................7 C. P.S., Prior Resident, Bayview Manor .................................................12 D. G.L., Prior Resident, Ocean House .....................................................14 II. PEOPLE WITH MENTAL ILLNESSES CURRENTLY IN ADULT HOMES BELIEVE MOVING TO SUPPORTED HOUSING WOULD PROVIDE FREEDOM, INTEGRATION INTO THE COMMUNITY, AND IMPROVEMENT IN QUALITY OF LIFE .............19 A. Resident I.S. ........................................................................................19 B. Resident S. U.......................................................................................21 C. Residents J.S., V.S., C.C., P.B., M.C., S.L., S.V., A.H., J.J, &
K.S. ......................................................................................................23 III. THE RECORD IS REPLETE WITH EVIDENCE THAT
SUPPORTED HOUSING IS THE BEST OPTION FOR INTEGRATING AND HEALING PEOPLE WITH MENTAL ILLNESSES...................................................................................................25 CONCLUSION ........................................................................................................28
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TABLE OF AUTHORITIES
STATE STATUTES N.Y. Soc. Serv. Law §130-o (2010) ................................................................4
MISCELLANEOUS ADA Hearing Before Subcomm. on Constitution, Civil Rights and
Civil Liberties 20 (2010) ............................................................................6 N.Y. Comp. Codes R. & Regs. Tit. 18, §485.12(a).........................................4 N. Y. Comp. Codes R. & Regs. Tit 18, §485.12(a)(2)..................................16 C.C. video, http://hub.witness.org/en/upload/choice-housing-cocos-
story (Sept. 17, 2009) .............................................................................4, 6 G.L. video, http://hub.witness.org/en/upload/choice-housing-garys-
story (Sept. 9, 2009) .................................................................................17 C.C. Interview, Sept. 27, 2010 ....................................................2, 3, 4, 5, 6, 7 G.L. Interview, Sept. 27, 2010 ....................................... 14, 15, 16, 17, 18, 19 I.K. Interview, Sept. 29, 2010......................................................7, 8, 9, 10, 11 I.S. Interview, Oct. 1, 2010................................................................19, 20, 21 S.U. Interview, Sept. 28, 2010...........................................................21, 22, 23 P.S. Interview, Sept. 27, 2010 ...........................................................12, 13, 14 J.S., V.S., C.C., P.B., M.C., S.L., S.V., A.H., J.J, & K.S. Interview,
Oct. 4, 2010 ..................................................................................23, 24, 25
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INTEREST OF AMICI CURIAE The 17 individual amici joining this brief are current and former residents of adult home institutions in New York. Some moved to independent supported housing when the State made 60 apartments available to the 4300 people with mental illnesses living in adult homes in the City. Others still live in adult home institutions, but desperately want to leave and move to their own apartments if the State makes supported housing available. These individual amici will directly benefit if this Court affirms the trial court’s decision. 1
SUMMARY OF ARGUMENT C.C., I.K., P.S., G.L., and the other individual amici have joined this brief to tell the Court their own stories. They describe their daily lives, and what it will mean to them if this Court affirms the trial court. They describe what it is like to live in adult homes. They are “warehoused,” treated like children, deprived of privacy, isolated from and stigmatized by the community, confined to strict and numbing institutional routines (sometimes spending hours in line for medication and meals every day), and even threatened with retaliation if they try to protest such conditions. The few lucky residents who already have moved to supported
1 All parties have consented to the filing of this brief. No counsel to a party authored this brief in whole or in part. No party contributed money to fund preparing or submitting this brief.

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housing describe the transformation in their lives. They talk about their new-found freedom, privacy, and autonomy with respect to daily life. Now they can do the things that people who don’t live in institutions take for granted every day, like being able to have hot buttered toast and a cup of coffee when they want one, to cook and eat healthy meals of their choosing, to live alone or with roommates they have chosen, to talk with and entertain friends and relatives in privacy, and simply to control the day-to-day details of their lives. They discuss the ability to control their own finances and medication, their improved integration into the community, and being relieved of the constant and automatic stigma and disdain from neighbors that comes with living in the local adult home. As C.C. says,
There’s nothing like having your privacy, and being able to go to bed and wake up when you feel like it or when you need to. Not to be regimented like you are in the army, and to eat what you want when you want it. That feeling of freedom is one of the greatest feelings in the world.… I can’t tell you the number of days I have woken up and I think of [life in the adult home] like it was a bad dream.2 The amici still in adult homes talk about similar improvements they believe a move to supported housing would bring to their lives and health.
2 C.C. Interview 9/27/10.
2

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ARGUMENT I. PEOPLE WITH MENTAL ILLNESSES WHO MOVE TO
SUPPORTED HOUSING REPORT SUBSTANTIAL IMPROVEMENTS IN QUALITY OF LIFE, HEALTH, WELL-BEING, RELIEF FROM STIGMATIZATION, AND INTEGRATION INTO THE COMMUNITY A. C.C., Prior Resident, Riverside Manor Throughout her life, Ms. C. has been a fighter. For 29 years, Ms. C. worked for Hadassah, the Women’s Zionist Organization of America, and was a union organizer and leader. When her mental illness made it impossible for her to continue work, she voluntarily entered the Payne Whitney Psychiatric Clinic. After three months, she was discharged with no place to go. The hospital presented Ms. C. with a choice – move to an adult home or a homeless shelter. Ms. C. visited Riverdale Manor, and was affected deeply by what she saw: “The atmosphere was dreary, the home had not been renovated and was in disrepair…. I went back to the hospital and cried myself into another depressed state…. But I had no choice. I agreed [to go to Riverdale Manor] when my social worker told me it was one of the best and recommended it.”3 Ms. C. lived in Riverdale Manor for almost three years. When the State made 60 supported housing beds/units available (to an estimated 4300 adult home residents with mental illness) Ms. C. moved into an apartment of her own. As Ms.
3 Unless otherwise noted, all material is from interview of 9/27/10.
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C. describes it, she finally had a home to return to. After visiting a friend at
Riverdale Manor, she noted:
“[W]hen I came home, I noticed I’d used something that I’ve never used when I lived in Riverdale Manor. I never called Riverdale Manor home. I never did. When I came home, I came in and I sat down and I turned on the TV and made myself a cup of coffee and I realized and I said to myself ‘this is it. This is what I really want and needed.’”4 Ms. C. described life in Riverdale Manor bluntly. In the adult home, “you’re
not living, you’re existing.”5 Ms. C. described spending hours daily simply
standing in line: four times for medication, three times for meals, and at other
times to receive her “Personal Needs Allowance.”6 Each day blends into the next,
in an unbroken routine of tedious repetition. “Living in an adult home is like the
same thing happens every day, 365 days a year.”7
In the adult home, Ms. C. was denied even the most basic of humanizing
factors people take for granted. She had no privacy. At the home “I had to share a
4 C.C. video, http://hub.witness.org/en/upload/choice-housing-cocos-story (Sept. 17, 2009). 5 Id. 6 A typical adult home resident receives $1,368 per month in SSI income. The home receives $1,190 of that amount, and the remainder ($178 per month) is paid to the resident as a monthly Personal Needs Allowance or “PNA.” Many adult homes insist that the resident’s entire SSI check be paid directly to the home, and that the home pay the resident the PNA. Some residents are budgeted, meaning that the home doles out the PNA over the course of the month. See N.Y. Comp. Codes R. & Regs. Tit. 18, §485.12(a); N.Y. Soc. Serv. Law §130-o (2010). 7 C.C. video.
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room with someone and I had no choice as to whom…. It’s close quarters and for you to expect privacy is ridiculous.”8 Strangers were paired by the adult home without consideration for their individual preference, a situation that often led to stress and tension. When residents requested a change in roommate, Ms. C. reported, the home would generally ignore them.
While the rooms had locks, the housekeepers had keys to all the rooms. This removed the last vestige of privacy. “The housekeepers were generally men. They would just knock on the door and enter, or just enter.” The institutional nature of the adult home was magnified by the control it exerted over the individual’s basic lives. Riverdale Manor controlled its residents’ medication, distributing it four times a day in a public setting, and their money, requiring benefit checks to be paid to the adult home. It also strictly controlled the items they could possess. With few exceptions,9 electronic items like irons and coffee makers were forbidden to residents. Ms. C. reported that Riverdale Manor used her PNA as a method to attempt to discipline her, threatening to withhold it if she did not follow instructions.
In Ms. C.’s view, the adult home was not a step towards recovery, but instead saw itself as a place for individuals with mental health issues to spend the
8 Id. 9 Residents were allowed items such as a TV, refrigerator, and clock-radio.
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rest of their lives. “If I missed an annual function, I would be told, ‘don’t worry, you can go next year.’” When people looked to leave the home, they were asked “why do you want to leave? We take care of you; you have everything here.”10 No assistance was given to those seeking to move into supported housing, and when one individual got work outside the adult home, she was told to quit the job or move out.
Ms. C. describes her life in her own supported housing apartment as totally different – a life of freedom. (A video of Ms. C. in her apartment is available at http://hub.witness.org/en/upload/choice-housing-cocos-story (Sept. 17, 2009).) She relates performing the basic tasks of everyday life – cooking, cleaning, shopping, laundry – with obvious happiness. Ms. C. celebrates the small day-today things that people who don’t live in institutions take for granted:
“I’m looking forward to real hot toast. Butter and melt-in-you-mouth warm toast and hot coffee. It’s going to be fantastic.”11 Ms. C. says her move to supported housing has improved her physical health. Ms. C. is diabetic, and in the 18 months since moving into supported housing “I’ve lost 20 lbs, and my blood sugar’s under control.” Ms. C. thanks cooking for herself and controlling her own medication for this improvement. By
10 ADA Hearing Before Subcomm. on Constitution, Civil Rights and Civil Liberties 20 (2010) (testimony of C.C.). 11 C.C. video.
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contrast, in the adult home, residents received large portions of carbohydrateintensive food and the home did not support or encourage residents to choose a healthy diet. Residents were not only denied control over their prescribed medication, but were also refused over-the-counter medication when they requested it.
Ms. C. also reported improved mental health from moving to supported housing. Once in her own apartment, Ms. C. felt safe, secure, and able to recover mentally. She acknowledges that adult homes can play a role in the recovery process, but as a stepping stone to more independent and integrated living.
“Had I stayed, I could not have recovered to the level I have now. I would not have been as healthy, happy and active as I am now.… I needed to move on to recover and to fulfill my life as I have now.” When asked what it would mean if this Court reversed the trial court’s decision, Ms. C. said that would be: “one of the worst things that could happen to people now in adult homes. They would be prisoners of adult homes without hope for the future as opposed to being able to move on to other housing and to live normal lives. I feel they deserve better than that.”
B. I.K., Prior Resident, Surf Manor I.K. resided in Surf Manor Adult Home for 16 years before she moved to her own apartment. She described supported housing as: “Freedom! I’m not wearing a sign pasted to my back saying ‘I’m mentally ill.’ I work on my own [advocacy] projects . . . . An
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Empowerment Center is training us as peer advocates, to get Office of Mental Health certification.12 On a typical day in supported housing, Ms. K. may shop for necessaries, or go to a bookstore or craft shop to support her numerous interests, or for decorations and furnishings for her apartment. She uses her private phone and a cell phone to keep in touch with her friends, many of whom are fellow advocates for people with mental illness. “I do my own cooking, my own laundry, and, when the mood takes me, my own housekeeping. I keep my home neat and wouldn’t be embarrassed to invite you over.” Ms. K. notes improvements in her mental health and wellbeing after her move to supported housing. When she was discharged from the hospital nearly 20 years ago, she had no option but an adult home. She chose Surf Manor because the staff let residents control their own medication, provided their psychiatrist would authorize it, and let the residents come and go, provided they logged in and out. But, she says, the living situation itself was distressing and debilitating: it was “very disheartening to see so many people in such a hopeless state, sitting in a lobby, watching TV or staring into space.” She had no choice but to accept the roommate assigned her, and it was difficult to change roommates absent a clear problem. Given the complete lack of
12 I.K. is currently training to become a peer advocate so she can help current adult home residents, including those who want to move to supported housing. Unless
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choice in roommates and the close quarters within which roommates were forced to live at the adult home, stress and difficulties emerged. For instance, Ms. K.’s first roommate drank alcohol, which presented difficulties for Ms. K., a recovering alcoholic. When she reported this, management told her she did not know what she was talking about. With a later roommate, Ms. K would “sometimes spend nights out of the room . . . wrap myself in blankets and sleep in the lounge or outside on the balcony.” With her last roommate, management simply told her to stop complaining, or they would give her a “worse” roommate.
Ms. K. recalls that the staff did not encourage residents to take control over their lives or living conditions:
“It was an atmosphere of intimidation . . . constant threats . . . they would ship residents off to the hospital, evict them without notice. . . . You were treated like children, and everything was done for you. It takes away self confidence . . . you begin to doubt your ability to start again, to cope with daily problems, to deal, mentally and emotionally, with paying bills, doing all the things that go with living in your own apartment. You’re not encouraged to be an individual. You’re treated at the level of the least functional individual at the home.” The home controlled virtually every aspect of Ms. K.’s life. Management assigned seats at meals and decided whether residents could have visitors eat with them. Activities were few, and most were at pre-school level, like coloring books
otherwise noted, all material is from interview of 9/29/10.
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and popsicle stick models. “The most complicated thing they had there was bingo.”
By law, each adult home has a “resident council,” which should give residents a voice to management about conditions in the home. Before Ms. K. was elected president, the council’s meetings were called and run by the home’s administrator. In those meetings, whenever Ms. K. or others requested improvements, such as to food, or in staff attitudes, or to the poorly managed pharmacy, management told them to stop complaining because it was “upsetting other[s].”
The home made little or no attempt to accommodate any person’s medical or religious dietary needs, let alone individual tastes. According to Ms. K., many residents refused to eat the “masses of congealed fat and grease” served at the home. The alternatives of fast-food and junk-food exacerbated many residents’ problems with diabetes and blood pressure. The home’s pharmacy was notoriously slow, with “people waiting for days . . . which led to people being hospitalized unnecessarily.” The lack of adequate adult programs caused Ms. K. and others she knew to smoke more, and it caused their psychiatric conditions to worsen. In Ms. K.’s case, the monotony and helplessness she experienced at the home caused her to slip back into depression, sometimes sleeping the day away for lack of better alternatives.
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One of the characteristics of adult homes of which Ms. K. is happiest to be free is the stigmatization she and other residents suffered. “We were pointed out as the crazies – that’s the crazy house. People in the neighborhood shied away from us, they didn’t make contact. I got tired of fighting for my own individuality.”
Now that she has her own apartment, Ms. K.’s friends say she is “a whole different person...not so defensive anymore...more relaxed.” She interacts with her neighbors as she pleases, and the only people who know she has a mental health diagnosis are those she chooses to tell. “It’s a question of how I present myself. I now have control over that.” Ms. K. has quit smoking. “The difference is a lack of stress. When people try to beg for cigarettes from me and I say I don’t have any, I feel great. I feel like a winner.” She eats more healthily, making salads and preparing meals with fresh produce seasoned to her tastes in her own kitchen. “Mine. Nobody else’s. I much prefer doing things for myself.”
Ms. K.’s testimony at trial expresses powerfully what supported housing means to those lucky enough to achieve it:
“It's free. It's freedom for me. It's freedom. It’s being able to actually live like a human being again.”13
13 JA723.
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C. P.S., Prior Resident, Bayview Manor Mr. S. is a Vietnam War veteran who has a mental illness. When he was released from a V.A. hospital, he was given two options, both adult homes. He chose Bayview Manor. When asked to describe the adult homes, Mr. S. used one word repeatedly: warehousing. “It’s warehousing. You don’t integrate in the community, because all it is is warehousing…. People sink lower as they live there. Life has to be better than that, just sitting on a park bench, smoking, looking as cars as they pass.”14 Mr. S. described an atmosphere of gloom in adult homes. “Wherever you see adult home residents, you see listlessness, hopelessness and despair. You see apathetic people, made that way by the environment.” “People give up – they get medicated and fed and that is all.” Bayview Manor provided no activities other than bingo a couple of times a week. As Mr. S. said, “you can pick out a home by looking at the people outside, [sitting] there, smoking.” When Mr. S. secured one of the 60 supported housing slots the State made available, Bayview Manor got angry at him for suggesting leaving. Mr. S. reported that the adult home would punish those who rocked the boat. He has heard residents say that the staff threatens them with hospitalization if they complain about conditions or policies at the home.
14 Unless otherwise noted, all material is from interview of 9/27/10.
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Mr. S. described the contrast between his current life, in his own apartment, and at the institution. At Bayview, “I was treated as a child by people a third my age. There was a disdain for residents that started at the top and went all the way down.” “Residents were treated with complete disrespect. They weren’t treated as adults, but kids. It was more like a detention center than a home.” In his apartment, he lives the normal life of a free adult. He can live without a roommate. At the home, in contrast, he had no choice of roommate, sharing first with an individual who would get up each night at midnight to smoke in the room, and then with an individual with incompatible sleep patterns who woke up at 3 a.m. Now Mr. S. is able to be himself. “I can go out shopping or to see something without worrying about getting home for meals or medication. I have freedom.”
Mr. S.’s life has changed dramatically since his move to supported housing. He has moved from a life controlled by others, woken up at 7:15 a.m. by housekeepers, fed at set times, to one where he gets up when he chooses, makes his own breakfast, is free to read, walk in the park, visit friends, attend Temple, all on his own schedule. He spoke with pleasure of things most people take for granted. He spoke happily of being able to have a phone, and to speak to his family in privacy. (The adult home had no outside phones in the rooms, only expensive pay phones in public areas, and opposed an initiative to provide free cell phones.)
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Mr. S. believes adult homes are detrimental to residents’ health. Unlike most of Bayview Manor’s residents, he insisted on his right to self-medicate, but believes he was permitted to do so only because he went to an outside program each morning, missing the medication call. Mr. S. said Bayview provided no real on-site treatment options for mental health. For physical problems, there was a doctor on site, but Mr. S. insisted on using his own V.A. doctor and social worker. Despite this, Bayside Manor continued to try to control his treatment, even violating his privacy by opening his personal medical mail.
Mr. S. spoke positively of the peace he feels in supported housing, as opposed to the adult home where the close proximity and lack of privacy inevitably led to tension and arguments over minor issues. When asked about the effect of adult homes on healing, Mr. S. was scathing:
“It retards [improvement]. It’s warehousing.… Everything is dumbed down to the lowest level, and there’s no attempt at social integration for those who would benefit from it…. Life has to be better than this.”
D. G.L., Prior Resident, Ocean House After Mr. L. attempted suicide, he was treated in St. John’s Hospital. Upon release the hospital gave him an ultimatum – a choice between a long-term psychiatric facility or Ocean House adult home.15 Mr. L. described the adult home
15 Ocean House was then on the Do Not Refer list because of violations, meaning new residents should not have been referred there.
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in stark terms: “the conditions were horrible – it wasn’t right.”16 However, to avoid placement in a psychiatric facility, Mr. L. chose Ocean House, and lived there for over 5 years until he chose to move to supported housing. The adult home was presented to him as a treatment option, but Mr. L. said he saw no real treatment there.
Mr. L.’s descriptions of life at Ocean House reflect the complete absence of privacy and respect for personal autonomy. His day started at 7:30 each morning, when his roommate’s aide arrived, entering the room without knocking.17 Although Mr. L and others were provided with keys to their rooms, he later discovered that some keys opened multiple rooms. Breakfast was served at 8 a.m., with residents assigned specific seats at specific tables. This was followed by the residents lining up for medication, which they received and took in public view. Lunch was at 11:30, and dinner was at 4. Dinner was served so early in order to avoid having a separate food service staff – the aides then still working would serve.
Mr. L. described a pervasive atmosphere of disrespect for residents and intimidation of those who didn’t follow administrators’ orders. He was threatened
16 Unless otherwise noted, all material is from interview of 9/27/10. 17 As in other homes, Mr. L. reported that he had no choice in roommate. Fortunately, Mr. L. got along well with his roommate.
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with being sent to the hospital if he did not go voluntarily. When there, he found returning to the home depended on him ‘behaving.’
“The head of the unit came to me and told me he wanted to send me home, but the home administrator wants you to promise if you have complaints, you won’t call the state. If I had a problem with the home, I was to talk to the administrator. I saw it as a condition of going home, and agreed under pressure.”18 Mr. L. witnessed the administrator telling people if they did not attend programs, they would not receive their PNA. He would watch these people get bussed to the program, wander off to sleep, wake up for lunch, sleep all afternoon, return to Ocean House, and only then would the administrator hand them their money.19 It resembled children being refused their allowance until they obeyed their parents. The conditions of Ocean House led some to retreat further into a shell, but had the opposite effect on Mr. L. “Some say living there is the worst thing that every happened to them and their life ended when they did it. It was the opposite for me. It kick started my life. I found a cause because of the horrible conditions and found out I was intended to be an advocate.” Since this time, Mr. L. has worked tirelessly for the rights of those in adult homes.
18 Mr. L. continued to complain directly to the state about objectionable conditions, as was his right. 19 PNA belongs to the resident, and legally cannot be withheld in this fashion. See N. Y. Comp. Codes R. & Regs. Tit 18, §485.12(a)(2).
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Mr. L. contrasted his freedom in supported housing with the control the
adult home exerts over residents. For instance, Ocean House required Mr. L. to
designate the home as the representative payee of his SSI benefits, so that instead
of him receiving them directly, they were paid to Ocean House, with the home then
paying him his monthly allowance. Often, the home provided this monthly amount
late. Mr. L. was not permitted to control his own medication, other than his asthma
inhaler. When he sought to move out, he was discouraged from doing so:
“The social workers were very downbeat about it. They told me I could apply, but it would be a long wait, and I might not like the housing I received anyway. In the end all they did was give me phone numbers and tell me I could call to find out what I needed to do to move out.” Mr. L’s life is now totally different. He controls his own medication, budget,
and finances. He handles his own doctor’s appointments and day-to-day living. He
cooks for himself and guests. “I can eat what I want when it is convenient – I am
not restricted to their times for dinner.” He cherishes this liberty:
“I have more freedom here. And I allow myself the luxury of making multiple choices. When you live in an adult home, it’s difficult to have a group of people come visit you because you live in a place where your room is so small maybe two or three people fit. I actually want to invite people here. When I lived in the home, it was like I didn’t want people coming here. I really didn’t…. This place I want people to come.”20
20 G.L. video, http://hub.witness.org/en/upload/choice-housing-garys-story (Sept. 9, 2009).
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Mr. L. believes his health has improved since the move to supported housing. In the home, the doctor associated with the institution ignored his repeated reports of pain, and he was told not to see a doctor attached to an offsite day program. Only after Mr. L. ignored the home’s instructions and sought other medical help was he referred to a urologist who diagnosed his kidney stones. In the home, Mr. L. was not permitted to control his medication. One time he saw his dosage of thyroid medication had been changed without any discussion with his doctor, a transcription mistake. But when Mr. L. complained, he was told he was being “paranoid.” The institution’s rigid medication schedule meant that Mr. L. received his medication at times different than his doctors’ instructions. His thyroid medication required an empty stomach, but the home required him to take it immediately after breakfast. Similarly, Mr. L.’s doctor told him to take his sleep aids after 10 p.m., but the home required him to take it at the final medication call at 8 p.m. In the home, the psychiatrist affiliated with the home would see Mr. L. for five minute sessions, not in an office but instead walking through the lobby or on the way from his car. Now that Mr. L. controls his medication and doctor visits and is responsible for his own health, he has seen his medical and physical wellbeing improve.
Mr. L. described how his move to supported housing allows him freedoms others take for granted.
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“Ocean House wasn’t the worst place to live, but it wasn’t the best place to live either. The rooms were very small…. You can’t put things on the walls. Why? Because that’s the rules…. You’re not living in a home, you’re living in an institution. Like I have to report my whereabouts, what I’m going to be doing, where I’m going, when I’ll be back…. I feel a lot safer here. It’s a big load off my mind. It’s really good being at my place. It’s going to reflect my emotions, my ego, me.”21
II. PEOPLE WITH MENTAL ILLNESSES CURRENTLY IN ADULT HOMES BELIEVE MOVING TO SUPPORTED HOUSING WOULD PROVIDE FREEDOM, INTEGRATION INTO THE COMMUNITY, AND IMPROVEMENT IN QUALITY OF LIFE
The stories below from people who currently live in adult homes show that
they would greatly prefer to live in supported housing because they believe
supported housing offers the best hope for them to lead successful, healthy lives.
All of the adult home residents interviewed believe their physical and mental well-
being would improve if they could escape the stigma and restrictions of the adult
home institutions and gain freedom and control over their lives.
A. Resident I.S. Ms. S. is 56 years old and has lived in an adult home since December
2003.22 Before residing in an adult home, she successfully lived independently.
She had two roommates, did her own cooking, cleaning and laundry, and attended
college courses.
21 Id. 22 Unless otherwise noted, all material is from interview of 10/1/10.
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After being hospitalized for a mental health condition, Ms. S. was given no choice but to enter an adult home. Since entering the home, she has “atrophied” and “stagnated.” Life in the adult home is “dehumanizing.” “I go to meals, I go to bed, I watch my soaps, I go to doctors, I don’t live.” Her activities outside the home are limited because the home takes most of her income each month. She comments that being identified as one of several hundred mentally ill persons “warps you and deranges you, to the point where you don’t see the world the same way.” For these reasons, Ms. S. feels relief when she occasionally visits a hospital for asthma and related difficulties: “The hospital is a return to normalcy compared to the adult home. People are normal and they treat me with respect. Life is rooted in reality. The food is decent.” At the hospital, Ms. S. becomes inspired to write poetry again – motivation she cannot muster at the home. “I go back to the home and the sense of normalcy wears away. People are … angry, they’re paranoid.... I feel lost in the shuffle.”
Ms. S. describes the home as a place run by intimidation. She reports that the operator shouts at residents and pressures them to use medical providers with whom he has some relationship. For example, when Ms. S. first moved to the home, he successfully pressured her to fill her eyeglass prescription at his daughter’s business.
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Last year, Ms. S. was forced to throw out most of her personal belongings, including irreplaceable items like original poetry, in response to a widespread bedbug infestation that had gone on for a year before affecting her. The administrator told her the home had retained a lawyer and she would be evicted if she did not follow instructions. The home did not offer to clean or treat her belongings. The home also charged Ms. S. to aircondition her 156 square-foot room (she needs the airconditioning to ease her Chronic Obstructive Pulmonary Disorder and asthma).
For Ms. S., the chance to live in supported housing would be a permanent return to normalcy. “Supported housing is about self-determination. Autonomy is healthy. When I lived independently, I was able to get all of my necessary medical care, socialize with neighbors, attend school – even take care of a dog.” Ms. S. believes that if she could return to supported housing, she would benefit mentally from the stimulation of living out in the world again: “I could go to a consciousness-raising group, or a poetry reading, or see my boyfriend.”
B. Resident S. U. Mr. U. and his wife moved into an adult home nearly three years ago. A combat veteran of the Vietnam War, Mr. U. suffers from PTSD. His wife suffers from depression and physical issues. With their only alternative being a homeless shelter, Mr. and Mrs. U. entered the adult home. According to Mr. U., “the adult
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home offers a semblance of normalcy” in that it offers three meals a day and a bed, “but all normalcy ends there.”23 Like many other residents of adult homes, he described it as a “warehouse.” The adult home has a “hotel atmosphere with limited privacy.” The staff “think they can boss you around” and management “generally downplays the number and severity of grievances” raised in resident council meetings.
Mr. U. describes the tedium of life in the home: “There’s nothing to do and nowhere to go…. The staff does nothing to stimulate people to want to participate in the few activities available.” To combat boredom, Mr. U. reads three newspapers daily, does the crossword puzzles and runs errands for fellow residents. His wife has fared much worse. Often she simply stays in her room and “sleeps more, does less.” Mr. U. believes the monotony of the home exacerbates her depression and that the institutional setting does little to facilitate a happy marriage. With unannounced interruptions from staff and nowhere to go in their small room “just for the normal separation married couples need,” their relationship has strained.
Mr. U. believes that moving into supported housing would allow him and Mrs. U to resume a normal, healthy life. Mr. U. would relish the freedoms of coming and going as he pleases, making a cup of coffee when he wants it, and
23 Unless otherwise noted, all material is from interview of 9/28/10.
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cooking healthy meals for him and his wife. “She likes fish. I don’t love fish, but it’s healthy and she likes it and I’d prepare it well. She likes green vegetables, and so I’d make fresh, green vegetables, not from a can, which is where they come from here.” He is convinced that if his wife had more space and more freedom, her depression would improve. Moreover, the additional space in an apartment would lessen the tension in their marriage. Until then, Mr. U. asks the Court to “walk a month in my shoes. You have to experience [living in an adult home]. You can’t just view it like a movie because it’s not a movie.”
C. Residents J.S., V.S., C.C., P.B., M.C., S.L., S.V., A.H., J.J, & K.S.
A group of adult home residents reported the stagnating effect the adult home has had on them. Ms. C.,24 after 13 years, “feels like I’m losing my skills here. [They] treat us like errant children. Instead of treating us like equals, they belittle us.”25 And S.L. noted, “[Staff] tell us to go to our room or they’ll send us to the hospital. They have no authority to do that. I’m an adult.” Many residents recounted that staff would threaten hospitalization to coerce residents into complying with staff’s instructions.
24 Ms. C. is not the same individual described in Section I.A. 25 Unless otherwise noted, all material is from interviews of 10/4/10.
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Ms. B. said that “[l]iving in the adult home is constant turmoil” and she sometimes feels afraid.26 The police are sometimes called to the home, as they were recently to remove a youth gang roaming the hallway, vandalizing the building. “There is no peace of mind.”
J.S. and her son V.S live at the adult home. Their third family member, Mr. S., lives in another adult home, over an hour away by public transportation. J.S. and V.S. do not see Mr. S. as often as they would like due to tight finances (most of their income goes to the adult home). J.S. has tried to have Mr. S. move in with them, but their adult home is filled to capacity with 239 residents.27 When J.S. recently inquired into reuniting her family in an apartment, the home’s assistant administrator told her she was “not ready” and threatened to call the police if she left. Her son does not understand. “Me, mom and dad lived over ten years together before we got separated. We had our good times and bad times but we were all together, and that’s what I miss.… And, I miss my mom’s cooking.”
These residents interviewed agree that moving into supported housing would improve their well-being. They would consider it a privilege to do their own chores, prepare their own meals and keep their own hours. S.V. comments: “I’d
26 Some residents have had items stolen. S.V. noted that in response to a bedbug infestation, staff removed all of his personal belongings from his room, including cash and jewelry. “I guess the bedbugs were living in my jewelry,” he quipped. 27 As J.J. notes, “It’s far too crowded here.”
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cook with fresh vegetables and real eggs.28 I wouldn’t put uneaten meals into the soup and serve it the next day.” Several of residents would seek paid work or volunteer once they moved into an apartment. “If I could get into supported housing I could get my skills back. I need more purpose in my life. Here, there’s no purpose.” Residents believe that their mental health would improve if they left the adult home. M.C. noted, “I don’t think I would need as many mood stabilizers, because a lot of that is brought on by living here.” As J.J. put it:
“I’d have no problem doing my own laundry and cooking and cleaning for myself. That’s a normal life. Here, I have no life . . . . it’s yelling and screaming, the P.A. blaring at all hours, ordering me to go to too many doctors and not telling me why I’m going. On my own, I’d be more relaxed, and that’s healthier.”29
III. THE RECORD IS REPLETE WITH EVIDENCE THAT SUPPORTED HOUSING IS THE BEST OPTION FOR INTEGRATING AND HEALING PEOPLE WITH MENTAL ILLNESSES
The personal stories of these amici confirm evidence in the record that overwhelmingly shows that qualified persons with mental illnesses prefer supported housing over adult homes and would benefit from it. Like the amici here, current and former residents of adult homes, and expert witnesses testified that in these institutions, residents have little privacy, control, or freedom or
28 The adult home serves powdered eggs. 29 S.L. concurs. “I’m a friendly person. I’d meet people, make friends, have them over for dinner.”
25

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autonomy over the day-to-day routine.30 They are confined to rigid institutional
routines, and can be threatened with retaliation if they seek improvements or do
not conform.31 They often do not control their medication or finances.32 They are
assigned roommates, forced to eat on a schedule with assigned seating, and
isolated from family, friends, and outside interests and employment.33 Far from
being integrated into the community, they are isolated and stigmatized by others.34
Such a life can sap confidence and ability or even desire to live
independently. Testimony showed that most current adult home residents believe
30 E.g., SPA90 (“few or no private spaces in which to receive visitors or talk on the phone; id. at 89-90 & nn.58-63( “there are inflexible schedules for meals, taking medication, receiving public benefits, and other daily activities...[r]esidents are assigned roommates and required to sit at a specific seat...in the cafeteria....residents lineup to receive their medications at scheduled times....Long lines also form for receiving personal needs allowances[.]” 31 E.g., SPA92 n.81; JA161 (threatening to send residents to hospital for not attending day program). 32 See SPA95 nn.108-109 (many residents are not allowed to manage their own medications and are encouraged to let the home administer medication). 33 E.g., SPA91-92 nn.73-77 & SPA95 nn.105-09; JA60 & SX-151 (E. Jones Report) 4; JA619-20; 634 (residents subject to “quite extensive rules”); JA571 (some adult homes do not allow overnight/opposite sex visitors); JA80-81 (quoting DX-391) (“if [residents] miss medication, they write it up in the charts and theyand then you usually get into some type of trouble); JA391 (many adult homes do not allow residents to manage their own medication). 34 E.g., SPA99 n.142.
26

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their lives would improve if they moved into supported housing.35 One adult home resident testified that she believed she “could run an apartment very well” and would like to “live a normal life...[g]etting up in the morning and having daily chores to do. Things to do.”36 She testified about the adult home, “I think nobody should live like that. As I said, there’s no privacy, no nothing.”37 Another testified he prefers to do his own chores because “I just felt [] I’m getting the right thing done by doing it myself.”38
Trial testimony from the few adult home residents who have moved to independent supported housing also confirms what amici say here: that the added privacy, freedom, autonomy, and integration into the community has transformed their lives. They can control their own medication, finances, and schedules, cook healthy meals for themselves, host friends and family for social engagements, and live with their spouses and children.39 These seemingly small freedoms are
35 E.g., SPA153-55 n.552; JA55 (“virtually all of the Adult Home residents [she] spoke with would choose independent living or supported housing if they were given a choice.”). 36 JA142. 37 JA141-42. 38 JA188-89 (S.P.); see also SPA 155 (deposition testimony). 39 SPA112-13; JA163-64; JA165-66; JA170; JA723; PX-546 p. 204:23-205:18.)
27

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themselves vital,40 and having “normal” lives with the freedom and autonomy that others take for granted invigorates residents in supported housing, improving their health and happiness.41

CONCLUSION When asked what she wanted to tell this Court as it considers the issues

presented here, Ms. C. said:

“Supported Housing allowed me to make a full recovery–it gives you a normal life, lets you do what you want to do, to grow, to go out into society without having a stigma.”42

Amici respectfully ask this Court to affirm the trial court’s decision. As Mr. S.

said, “There’s a world out there and people…want to join it.”43

October 13, 2010

Respectfully Submitted,

/s/ Elizabeth B. McCallum Elizabeth B. McCallum HOWREY LLP 1299 Pennsylvania Avenue, NW Washington, D.C. 20004 (202) 783-0800
Attorney for AMICI CURIAE
40 See SPA113; JA117 (“ordinary and mundane” daily freedoms are “profoundly important to build a sense of well being for the person.”)
41 SPA113 n.264 (“Compared to Adult Home residents, residents of supported housing have gar greater opportunities to interact with people who do not have disabilities and to be integrated into the larger community.”).
42 C.C. Interview 9/27/10.
43 P.S. Interview 9/27/10.

28

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CERTIFICATE OF COMPLIANCE The undersigned counsel for Amicus Curiae certifies 1. This brief complies with the length requirement of Fed. R. App. P. 29 because this brief contains 6,956 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and

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 has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14-point font, with serifs.

October 13, 2010

/s/ Elizabeth B. McCallum Elizabeth B. McCallum

29

Case: 10-235 Document: 295 Page: 33 10/13/2010 123896 33

CERTIFICATE OF SERVICE

I hereby certify that on October 13, 2010, I caused to be served a copy of the

foregoing brief through the Court’s Electronic Filing System (CM/ECF) upon the

following counsel of record:

Andrew G. Gordon Paul, Weis, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 Jfink@paulweiss.com

David T. Luntz Hinman Straub PC 121 State Street Albany, NY 12207 dluntz@hinmanstraub.com

Cecelia Chang New York State Office of the Attorney General 120 Broadway New York, NY 10271 cecelia.chang@ag.ny.gov

Teresa Kwong U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC Teresa.kwong@usdoj.gov

Patricia A. Millett Akin Gump Strauss Hauer & Feld LLP 133 New Hampshire Avenue, NW Washington, DC 20036 pmillett@akingump.com

/s/ Elizabeth B. McCallum Elizabeth B. McCallum

30

 
 10-0235-cv(L), Case: 10-235 Document: 292 Page: 1 10/13/2010 123580 54
10-0251-cv(CON), 10-0767-cv(CON), 10-1190-cv(CON)
United States Court of Appeals
for the
Second Circuit

DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA,

– against –

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 THE AMERICAN ASSOCIATION OF COMMUNITY PSYCHIATRISTS (AACP) ET AL.* IN SUPPORT OF
THE DISTRICT COURT’S DECISION AND REMEDIAL ORDER
(For List of Additional Amici Curiae See Inside Cover)

CARLA CHRISTOFFERSON JUSTINE M. DANIELS
CHRISTOPHER A. ADAMS O’MELVENY & MYERS LLP Attorneys for Amici Curiae The American Association of Community Psychiatrists, et al.
400 South Hope Street Los Angeles, California 90071
(213) 430-6000

Case: 10-235 Document: 292 Page: 2 10/13/2010 123580 54
*AARP, MENTAL HEALTH AMERICA (MHA), THE NATIONAL ALLIANCE ON MENTAL ILLNESS (NAMI), THE NATIONAL
ASSOCIATION OF SOCIAL WORKERS (NASW), THE DEPRESSION AND BIPOLAR SUPPORT ALLIANCE (DBSA), THE AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES (AAPD), THE
AMERICAN NETWORK OF COMMUNITY OPTIONS AND RESOURCES (ANCOR), THE AMERICAN OCCUPATIONAL THERAPY
ASSOCIATION (AOTA), ADAPT, THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. (DREDF), THE AUTISTIC SELF-ADVOCACY NETWORK (ASAN), THE NATIONAL HEALTH LAW PROGRAM, INC. (NHELP), THE NATIONAL SENIOR CITIZENS LAW
CENTER (NSCLC), THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA (PILCOP), THE NATIONAL ASSOCIATION OF
PEOPLE WITH AIDS (NAPWA), THE U.S. PSYCHIATRIC REHABILITATION ASSOCIATION (USPRA), NATIONAL COUNCIL
FOR COMMUNITY BEHAVIORAL HEALTH CARE (NATIONAL COUNCIL), DANIEL FISHER, AND THE NATIONAL COUNCIL ON
INDEPENDENT LIVING (NCIL)

Case: 10-235 Document: 292 Page: 3 10/13/2010 123580 54
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for the Amici Curiae hereby certifies that: 1. Amici Curiae The American Association of Community Psychiatrists (AACP), AARP, Mental Health America (MHA), The National Alliance on Mental Illness (NAMI), The National Association of Social Workers (NASW), The Depression and Bipolar Support Alliance (DBSA), The American Association of People with Disabilities (AAPD), The American Network of Community Options and Resources (ANCOR), The American Occupational Therapy Association (AOTA), ADAPT, The Disability Rights Education and Defense Fund, Inc. (DREDF), The Autistic Self-Advocacy Network (ASAN), The National Health Law Program, Inc. (NHeLP), The National Senior Citizens Law Center (NSCLC), The Public Interest Law Center of Philadelphia (PILCOP), The National Association of People with AIDS (NAPWA), The U.S. Psychiatric Rehabilitation Association (USPRA), National Council for Community Behavioral Health Care (National Council), and The National Council on Independent Living (NCIL) are not-for-profit associations that do not have parent corporations and are not owned, in whole or in part, by any publicly held corporation.

Case: 10-235 Document: 292 Page: 4 10/13/2010 123580 54
2. Amicus Curiae Daniel Fisher is an individual not subject to Federal Rules of Appellate Procedure 26.1.

Dated: October 13, 2010

O’MELVENY & MYERS LLP
/s/ Justine M. Daniels Carla Christofferson Justine M. Daniels Christopher A. Adams 400 South Hope Street Los Angeles, CA (213) 430-6000
Counsel for Amici Curiae The American Association of Community Psychiatrists et al.

Case: 10-235 Document: 292 Page: 5 10/13/2010 123580 54

TABLE OF CONTENTS

Page

INTRODUCTION AND STATEMENT OF INTEREST OF AMICI CURIAE..........................................................................................................1
SUMMARY OF THE ARGUMENT .......................................................................3
BACKGROUND ON SUPPORTED HOUSING ....................................................4
I. CURRENT STUDIES, FEDERAL AGENCIES, AND EVEN DEFENDANTS RECOGNIZE THAT SUPPORTED HOUSING IS ESSENTIAL TO RECOVERY ......................................................................7
A. Supported Housing Promotes Mental Health.......................................8
B. Multiple Federal Agencies Endorse Supported Housing...................11
C. Defendants and Their Related Agencies Recognize Supported Housing as a Best Practice .................................................................14
II. THE DISTRICT COURT PROPERLY FOUND THAT VIRTUALLY ALL DAI CONSTITUENTS QUALIFIED FOR SUPPORTED HOUSING. ...................................................................................................16
A. Virtually All DAI Constituents Are Capable of Living in Supported Housing .............................................................................16
B. DAI Constituents Want Supported Housing ......................................23
III. THE TRIAL COURT’S REMEDIAL ORDER IS NECESSARY AND PROPER..............................................................................................27
A. The Remedial Order Enables DAI Constituents to Make a Fully Informed Choice About Their Housing Options................................27
B. The Remedial Order Properly Requires that Supported-Housing Providers Determine Service Needs...................................................28

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TABLE OF AUTHORITIES
Page CASES Disability Advocates, Inc. v. Paterson et al., 653 F.Supp.2d 184 (2009) .................................................................................16 Olmstead v. L.C., 527 U.S. 581 (1999).........................................................................................3, 4 STATUTES 29 U.S.C. § 719.........................................................................................................1 42 U.S.C. § 12101.....................................................................................................1 42 U.S.C. § 8013(a) ................................................................................................13 OTHER AUTHORITIES Ann O’Hara, Housing for People With Mental Illness: Update of a Report to the President’s New Freedom Commission, Psychiatric Services, Vol. 58, No. 58 (2007) .......................................................................24 Beth Tanzman, An Overview of Surveys of Mental Health Consumers’ Preferences for Housing and Support Services, 44 Hosp. & Cmty. Psychiatry (1993) ...............................................................................................24 D. Allness and W. Knoedler, National Program Standards for ACT Teams (2003) available at http://www.nami.org/ Template.cfm?Section=ACT-TA_Center&template= /ContentManagement/ContentDisplay.cfm&ContentID=50248.........................6 Debra Srebnik et al., Housing Choice and Community Success for Individuals with Serious and Persistent Mental Illness, Community Mental Health Journal, Vol. 31, No. 2 April (1995) .....................................9, 10 Nat’l Council on Disability, Inclusive Livable Communities for People with Psychiatric Disabilities (2008) available at http://www.ncd.gov/newsroom/publications/2008/ LivableCommunities.html .........................................................................5, 8, 12 Nat’l Council on Disability, The State of Housing in America in the 21st Century: A Disability Perspective (2010) available at http://www.ncd.gov/newsroom/publications/2010/ NCD_Housing_Report508.pdf ..........................................................................13 Paul J. Carling, Major Mental Illness, Housing, and Supports: The Promise of Community Integration, 45(8) American Psychologist August (1990) (quoting text of policy statement) .............................................11 Priscilla Ridgway & Anthony M. Zipple, The Paradigm Shift in Residential Services: From Linear Continuum to Supported Housing, Psychological Rehabilitation Journal, Vol. 13, Issue 4 (1990) .................................................................................................................10
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TABLE OF AUTHORITIES (continued)
Page Sam Tsemberis & Ronda F. Eisenberg, Pathways to Housing:
Housing for Street-Dwelling Homeless Individuals with Psychiatric Disabilities, 51.4 Psychiatric Services (2000) .................................9 Sam Tsemberis et al., Housing First, Consumer Choice, and Harm Reduction for Homeless Individuals with Dual Diagnosis, 94.4 Am. J. of Public Health (2004) ............................................................................9 Substance Abuse and Mental Health Services Administration, Transforming Housing for People with Psychiatric Disabilities (2005) available at https://store.samhsa.gov/shin/content/SMA064173/SMA06-4173.pdf ..................................................................................5, 13 U.S. Dep’t of Housing & Urban Dev. Office of Policy Dev. & Research, The Applicability of Housing First Model to Homeless Persons with Serious Mental Illness (2007) available at http://www.huduser.org/Publications/pdf/hsgfirst.pdf ......................................13 U.S. Substance Abuse & Mental Health Services Admin., Blueprint for Change: Ending Chronic Homelessness for Persons with Serious Mental Illnesses and Co-Occurring Substance Use Disorders (2003) available at http://store.samhsa.gov/product/ SMA04-3870; see also JA108-109; JA257; JA297 ..........................................10 U.S. Surgeon General, Mental Health: A Report of the Surgeon General, Other Services and Supports, available at http://www.surgeongeneral.gov/library/mentalhealth/chapter4/sec6 .html .......................................................................................................10, 11, 24
RULES Fed. R. Civ. P. 52(a)(6)...........................................................................................16 Local Rule 29.1(b) ....................................................................................................1
REGULATIONS 28 C.F.R. 35.130 .......................................................................................................1 N.Y. Comp. Codes R. & Regs. tit. 18 § 487.4..................................................18, 29
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INTRODUCTION AND STATEMENT OF INTEREST OF AMICI CURIAE1 Both Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act require a state that provides services to individuals with disabilities do so in the most integrated setting appropriate to their needs. 42 U.S.C. § 12101 et seq.; 29 U.S.C. § 719 et seq.; 28 C.F.R. 35.130. For people with mental illnesses, this is more than a legislative mandate and a basic civil right; it is a necessity for taking control of their lives and pursuing recovery. While New York is a national leader in developing community-based services for people with mental illnesses, many of its citizens living in adult homes have been unjustly segregated and excluded from enjoying these benefits. Common sense and years of studies have shown that people with serious mental illnesses, like people with other disabilities, want what most people want: the opportunity to interact with society, the right to make their own choices, and a home to call their own. Adult homes cannot serve these essential needs for most of their residents. Supported housing offers a fundamentally different approach
1 The parties to this action have consented to the filing of this brief. Pursuant to Local Rule 29.1(b), the Amici Curiae represents that (1) counsel for the Amici Curiae alone authored this brief and no counsel for the parties to this action authored any part of this brief; (2) no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and (3) no person or entity other than counsel for Amici Curiae contributed money that was intended to fund preparing or submitting this brief.

Case: 10-235 Document: 292 Page: 9 10/13/2010 123580 54
where people with mental illnesses actively work with the supported-housing providers to make choices and pursue their recovery in the community.
The 20 Amici Curiae2 are organizations and an individual, who are committed to ensuring that people with mental illnesses and other disabilities can receive the care they need and desire, freely exercise their own life choices, and fully participate in community life. Amici Curiae are comprised of experts, professionals, and individuals involved in the fields of mental health, disability rights, law, community organizing and advocacy, social work, occupational therapy, independent living (including supported housing), and implementing the ADA. They have advocated before and worked with Congress, state legislatures, local communities, and the Supreme Court. Collectively, Amici Curiae represent millions of Americans with and/or concerned about people with mental illnesses and other disabilities. As a result of their years of professional and personal experience, Amici Curiae are in a unique position to detail the benefits and realities of supported housing to this Court.
2 For a full listing of the Amici Curiae—including brief statements regarding their backgrounds and interests—please see the attached Addendum.
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SUMMARY OF THE ARGUMENT Plaintiff Disability Advocates, Inc. (“DAI” or “Appellees”) brought this case on behalf of individuals with mental illnesses living in, or at risk of entering, “impacted” adult homes in New York City (“DAI constituents”).3 Following a five-week bench trial and several rounds of post-trial motions, the United States District Court for the Eastern District of New York (Garaufis, J.) (the “District Court”) entered a permanent injunction requiring the Governor, the Department of Health, the Office of Mental Health (“OMH”), and the agencies’ commissioners (“Defendants”) to make supported housing and necessary services available to DAI constituents (the “Remedial Order”). The District Court’s decision and order should be affirmed. Over twenty years of studies by professionals in the field, multiple federal government agencies, and even Defendants show that supported housing is an effective service and best practice for individuals with mental illnesses. The overwhelming evidence presented at trial—including studies commissioned by Defendants—proves that virtually all DAI constituents both qualify for and want supported housing. Lastly, the District Court’s Remedial Order fully complies with the requirements announced by the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581, 600 (1999) by providing for: (1) “in-reach” that enables DAI constituents to make 3 Impacted adult homes are those in which 25 residents or 25% of the population (whichever is fewer) have a mental illness.
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informed decisions about their housing options; and (2) a process for confirming each constituent’s eligibility to be served in supported housing.
This Court’s affirmance of the District Court’s decision and Remedial Order, consistent with Olmstead, would uphold the rights of people with mental illnesses and end the unnecessary segregation of DAI constituents. Such a ruling will return to these citizens the control over their homes, treatments, and daily lives that the law demands. The ADA, Rehabilitation Act, and Olmstead require that DAI constituents have a real choice to live in and become a part of New York City’s richly diverse community.
BACKGROUND ON SUPPORTED HOUSING Supported housing starts with housing and then “add[s] and subtract[s] the supports as [a] person needs them.”4 Unlike adult homes, supported housing is designed for people with mental illnesses5 and is based on three main principles. First, individuals served in supported housing live in their own apartments where they can be secure and in control. In these apartments, they are able to live without the limitations on freedom that are unnecessarily imposed on people with mental illnesses in adult homes.6 They participate in the selection of their apartment.7
4 JA79:139; JA207:650-651; SX(4)-302. 5 SX(3)-239. 6 JA170:501-502; JA723:2751; PX(3)-542:204-05. 7 SX(4)-14.
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They sign a lease, abide by its terms, and contribute towards the rent. 8 They can live alone or with roommates of their own choosing.9 Services and supports are
provided in the home and community, allowing people to learn and practice skills in the actual environment where they will be used.10 Among other things, they can
decide what to eat, when to sleep, which television programs to watch, and who
they spend their time with. While these choices may seem mundane and are often
taken for granted by others, they are profoundly important to people who have
been denied such freedoms for years, and they are essential “to build[ing] a sense of well being for the person.”11
Second, people living in supported housing have access to a wide array of
services and supports that are tailored to the needs and desires of each individual.
People have a “say in what they want” and work with service providers on “developing services that are tailored to their individual needs.”12 Available
services and support include mental-health and medical services, substance-abuse
8 JA104:238. 9 JA297:1010-1011; JA117:290. 10 JA166-167:488-489; JA87-88:170, 174-176. See also Substance Abuse and Mental Health Services Administration, Transforming Housing for People with Psychiatric Disabilities, (2005) available at https://store.samhsa.gov/shin/content/ SMA06-4173/SMA06-4173.pdf. 11 JA117:290-291; see also Nat’l Council on Disability, Inclusive Livable Communities for People with Psychiatric Disabilities, (2008) available at http://www.ncd.gov/newsroom/publications/2008/LivableCommunities.html. 12 JA248:816.
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treatment, medication management, case management, and help acquiring or reacquiring the skills needed to live independently and integrate back into the community (skills such as home management, budgeting, and organization). For people who require more intensive services and attention, there are Assertive Community Treatment (“ACT”) teams comprised of specialists in psychiatry, psychology, nursing, occupational therapy, and social work.13 Depending on a resident’s requirements, delivery of services can range from monthly meetings with case managers to twice-daily visits from ACT team members.14 At least one member of the ACT team is always available to respond to the residents’ needs.15 A creative “whatever-it-takes” approach is pursued, and typically, a less intense level of services is required over time as residents learn or regain independent living skills.16
Third, individuals served in supported housing are encouraged to be part of the community through employment, volunteer work, and social activities.
13 JA78:135; JA99-100:219-223. 14 JA405:1443-1444; JA588:2172-2173. 15 JA100-101:225-226. ACT teams maintain a low staff-to-client ratio to promote individualized service and are available 24 hours a day, seven days a week to respond to crises. JA100-101:225-227; see also D. Allness and W. Knoedler, National Program Standards for ACT Teams, 10-21 (2003) available at http://www.nami.org/Template.cfm?Section=ACT-TA_Center&template= /ContentManagement/ContentDisplay.cfm&ContentID=50248. 16 JA101:229; JA223:715; SX(2)-221.
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“Scattered site” apartments are located throughout the community to promote integration into the neighborhood.17 Training in vocations, managing symptoms in the workplace, and conflict resolution are often part of the programs offered. Supported housing providers often employ people with mental illnesses to assist their peers with adjustment to life outside of institutional settings like adult homes.18
ARGUMENT I. CURRENT STUDIES, FEDERAL AGENCIES, AND EVEN
DEFENDANTS RECOGNIZE THAT SUPPORTED HOUSING IS ESSENTIAL TO RECOVERY. Supported housing is a well-established service in the field of mental healthcare. It helps people with mental illnesses regain their confidence and dignity. As one supported housing resident declared:
This program has been excellent. It gave me my freedom and my life back. It helped me gain self-confidence again and feel like a human, not a disabled reject. I can never say enough about how good it is to get on my feet again!19
17 JA103:236; JA916. For example, Pathways to Housing utilizes no more than 20% of any building to avoid creating a segregated environment. JA108:254. 18 JA105-106:245-246; JA115:284-285. The Remedial Order promotes this by referencing “Peer Bridgers” who assist adult home residents make the transition to living in the community. SPA237-238. 19 PX(3)-346 (emphasis added).
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This person’s experience is corroborated by over twenty years of literature in the
field. Federal agencies and even Defendants recognize supported housing as a
“best practice” that increases the chances of recovery.
A. Supported Housing Promotes Mental Health. Supported housing provides a safe, stable, and permanent environment for
residents where they can improve. Housing—or more aptly put, a home—is a key aspect of well being and recovery.20 It enables people to meaningfully work on other aspects of their lives, including treatment engagement.21 As Sam Tsemberis,
the founder and executive director of Pathways to Housing (“Pathways”),
explained to the trial court:
I think, the key word in that sentence is “home.” Home and not housing. There is something that a psychiatrist named [R. D. Laing] said, the sense of ontological security, and people like Maslow talk about it, home is…the foundation upon which a person can find their security, safety, sense of comfort and without that first in place, they won’t be able to consider their treatment needs, or their higher order needs, so it starts with, you know, it starts with home and starts with having a place to call home, absolutely.22 Dr. Tsemberis’ testimony is supported by over forty years of expertise in the field
and numerous studies. Studies conducted by Pathways and others have shown that
20 Nat’l Council on Disability, supra note 10, at 22–23. 21 JA297:2010-2011. 22 JA118:294 (emphasis added).
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stable environment-supported housing improves the lives of people with mental disabilities and is a powerful motivator to seek and sustain treatment.23 Studies also demonstrate that individuals with mental illnesses, who were labeled in other programs as “not housing ready,” were capable of maintaining independent living in supported-housing programs.24
Overall, supported housing promotes long-term residential stability. 25 Supported-housing providers are invested in their client’s success. For example, ACT teams help their clients through a crisis like a psychotic break or additional hospitalization and help return them to their apartment once the crisis has passed.26
Supported housing also increases people’s ability to exercise meaningful choices in their lives. As defined by OMH’s comprehensive plan, “recovery” is about the ability to take control of one’s life.27 To recover, individuals with mental
23 See e.g., Sam Tsemberis et al., Housing First, Consumer Choice, and Harm Reduction for Homeless Individuals with Dual Diagnosis, 94.4 Am. J. of Public Health, 665 (2004); Debra Srebnik et al., Housing Choice and Community Success for Individuals with Serious and Persistent Mental Illness, Community Mental Health Journal, Vol. 31, No. 2, 139 April (1995). 24 Id. 25 JA102:233. See also Debra Srebnik et al., supra note 22; Sam Tsemberis & Ronda F. Eisenberg, Pathways to Housing: Housing for Street-Dwelling Homeless Individuals with Psychiatric Disabilities, 51.4 Psychiatric Services, 487 (2000). 26 JA104:239, 241. 27 JA297:1009-1010.
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illnesses must actively participate in making the choices that define their lives.28
Mental-health professionals have recognized that individuals with the most severe
mental illnesses can still make choices for themselves and live successfully within a community.29 The research shows that supported housing enhances personal empowerment and function.30 It also shows that when individuals with mental
illnesses are given access to supported housing and control over their daily
activities, the result is improvement in mental-health symptoms, decreases in
hospitalization, and increases in psychological well-being, happiness, and satisfaction with housing and life in general.31
These benefits are a product of “living in a socially integrated environment,” which exposes them to “the rhythm of daily life.”32 Indeed, the National
Association of State Mental Health Program Directors issued a policy statement
endorsing supported housing and stating: “All people with long-term mental
28 See U.S. Substance Abuse & Mental Health Services Admin., Blueprint for Change: Ending Chronic Homelessness for Persons with Serious Mental Illnesses and Co-Occurring Substance Use Disorders (2003) available at http://store.samhsa.gov/product/SMA04-3870; see also JA108-109; JA257; JA297. 29 See Debra Srebnik et al., supra note 22. 30 U.S. Surgeon General, Mental Health: A Report of the Surgeon General, Other Services and Supports, available at http://www.surgeongeneral.gov/library/mentalhealth/chapter4/sec6.html. 31 Id. 32 Priscilla Ridgway & Anthony M. Zipple, The Paradigm Shift in Residential Services: From Linear Continuum to Supported Housing, Psychological Rehabilitation Journal, Vol. 13, Issue 4 (1990).
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illness should be given the option to live in decent, stable, affordable and safe housing, in settings that maximize their integration into community activities and their ability to function independently.”33
B. Multiple Federal Agencies Endorse Supported Housing. Along with mental-health professionals, the federal government strongly endorses supported housing and intervened as a plaintiff to support DAI constituents at the remedial phase of this litigation. The Surgeon General, the National Counsel on Disability (“NCD”), the Department of Housing and Urban Development (“HUD”), and the Substance Abuse and Mental Health Services Administration (“SAMHSA”) all back supported housing. The United States Surgeon General found that, among other positive benefits:
[Supported housing] moves away from “placing clients, grouping clients by disability, staff monopolizing decision making, and use of transitional settings and standardized levels of service [and] [i]nstead, supported housing focuses on consumers having a permanent home that is integrated socially, is self chosen, and encourages empowerment and skills development.34
33 See Paul J. Carling, Major Mental Illness, Housing, and Supports: The Promise of Community Integration, 45(8) American Psychologist 969–975, August (1990) (quoting text of policy statement). 34 U.S. Surgeon General, supra note 29.
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The Surgeon General also recognized that “resident control over decisions was directly related to satisfaction and empowerment.” 35 The Surgeon General further
lauded the fact that the services offered by supported-housing programs are “individualized, flexible, and responsive to changing consumer needs.”36
The NCD (an independent federal agency established “to empower
individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society”)37 strongly
endorsed supported housing as “one of the most exciting developments” for people with mental illnesses.38 In a lengthy report, the NCD found that:
While most people with psychiatric disabilities no longer live in large state institutions…many are living in congregate housing that often does not meet their housing preferences, and they remain segregated from other people.39 The NCD recommended that federal agencies “[i]mplement changes in federal and
state funding and policy to encourage housing models that are integrated, [and] in accordance with individual choice…while providing ongoing flexible supports.”40
35 Id. 36 Id. 37 Nat’l Council on Disability, supra note 10, at 74. 38 Id. at 6. 39 Id. (Emphasis added). 40 Id.; see also Nat’l Council on Disability, The State of Housing in America in the 21st Century: A Disability Perspective, 310 (2010) available at
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HUD has recognized that supported housing increases housing stability.41
Accordingly, HUD has designed programs similar to the District Court’s Remedial
Order. For example, the Section 811 project extends federal rental subsidies to
supported-housing programs that are designed to address mental health, as well as
other, needs. See 42 U.S.C. § 8013(a).
SAMHSA, a branch of the U.S. Department of Health and Human Services
whose purpose is to reduce the impact of substance abuse and mental illnesses, also endorses supported housing. 42 In a recent report, SAMHSA recognized Pathways, a New York supported housing provider, as an exemplary program.43
The report recognizes “that even people with the most severe mental disabilities
can live in supported housing, even people coming in directly off the street, and even in an expensive market like New York’s.” 44 Moreover, SAMHSA
http://www.ncd.gov/newsroom/publications/2010/NCD_Housing_Report508.pdf (“The best types of supportive housing maximize tenant empowerment by unlinking housing from support services and allowing tenant to choose from a broad array of voluntary support services that can be provided onsite or offsite at the tenants option.”). 41 See U.S. Dep’t of Housing & Urban Dev. Office of Policy Dev. & Research, The Applicability of Housing First Model to Homeless Persons with Serious Mental Illness, 1 (2007) available at http://www.huduser.org/Publications/pdf/hsgfirst.pdf. 42 Substance Abuse and Mental Health Services Administration, Transforming Housing for People with Psychiatric Disabilities, (2005) available at https://store.samhsa.gov/shin/content/SMA06-4173/SMA06-4173.pdf. 43 Id. at p. 24. 44 Id.
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recommended to “end reliance on board and care homes for people with psychiatric disabilities by 2010.”45
C. Defendants and Their Related Agencies Recognize Supported Housing as a Best Practice.
Notwithstanding their vehement opposition to the District Court’s decision and Remedial Order, Defendants also recognize the benefits of supported housing. New York was one of the first states to implement supported-housing programs for people with mental illnesses.46 The Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies recognize that “[h]ousing is a basic need and necessary for recovery.”47 New York currently funds over 15,000 supported-housing apartments and is currently focusing on supported housing because, as Michael Newman—Director of OMH’s Bureau of Housing Development and Support—and Robert Myers—OMH’s Senior Deputy Commissioner for Adult Services—testified, supported housing is successful, costeffective, recognized as a best practice, and what people with mental illnesses want.48
OMH’s own studies show that individuals receiving supported housing are “very happy” with the services they receive, have few unmet needs, and report a 45 Id. at 27 (emphasis added). 46 JA232-233:752-753; JA330:1142; SX(1)593-608; SPA163. 47 PX(2)-67. 48 JA585:2159-2160; JA829:3172-73.
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“significantly higher overall quality of life.” 49 OMH’s research also shows that
informed choice and the ability to make one’s own decisions leads to “healthier
and more positive choices.”50 Accordingly, individuals served in supported
housing are “likely to recover more quickly.”51
Additionally, New York’s Most Integrated Setting Coordinating Counsel
(“MISCC”), which was created in 2002 in response to the Olmstead decision,52
found that:
For many consumers being served in the community, supported housing is needed as a means to move to a least restrictive setting. This is especially true for recipients currently living in adult homes. These homes differ from supported housing in that they are more institutional in nature and provide a structured environment focused on caring for the individual in large, congregate settings. Many of the newer models of supported housing focus on providing affordable housing and assuring that treatment, rehabilitation and natural supports are available in the community not in the individual’s home. The result is that persons in these settings [supported housing] are able to become a part of their community, rather than apart from their community.53

49 PX(3)-346. 50 SX(4)-3. 51 Id. 52 JA301:1082. 53 PX(4)185 (emphasis added).

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Sadly, despite MISCC’s findings and New York’s use of supported housing for other people with mental illnesses, Defendants have done very little to expand the benefits of supported housing to adult-home residents with mental illnesses. 54 Without affirmance of the District Court’s Remedial Order, DAI constituents will likely never gain access to supported housing.55 II. THE DISTRICT COURT PROPERLY FOUND THAT VIRTUALLY
ALL DAI CONSTITUENTS QUALIFIED FOR SUPPORTED HOUSING. After considering the testimony of 52 witnesses and more than 300 exhibits, the District Court determined that virtually all DAI constituents were capable of living in supported housing and most wanted to do so. Disability Advocates, Inc. v. Paterson et al., 653 F. Supp. 2d 184, 256–258, 267 (2009). These findings of fact are entitled to deference and cannot be set aside unless clearly erroneous. Fed. R. Civ. P. 52(a)(6). In fact, Defendants’ Opening Brief admits that “supported housing is considered the preferred community housing model for many persons with mental illness.” (Op. Br. 12–13.) A. Virtually All DAI Constituents Are Capable of Living in
Supported Housing. Defendants do not dispute that today supported housing is the preferred service setting for most people with mental illnesses. (Op. Br. 12.) Defendants’
54 JA315-316:1083, 1087. 55 JA317:1090-1091.
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own studies and testimony from a former OMH executive deputy commissioner, coupled with DAI’s evidence and expert testimony, demonstrate that DAI constituents share the same traits and characteristics as current residents of supported housing.
In 2002, then-Governor George Pataki convened the Adult Care Facilities Workgroup (the “Workgroup”) to perform a comprehensive review of adult-home policies and procedures in response to a series of scathing articles published by The New York Times. The Workgroup was a “blue-ribbon panel” of clinicians, adult-home operators, and mental-health providers, including 38 OMH and/or DOH employees.56 After substantial study, research, and discussion, the Workgroup found that adult-home residents had characteristics similar to individuals living more independently.57 The Workgroup recommended that 6,000 adult-home residents be served in supported housing by 2009.58 While thencommissioner of DOH Antonia Novello “applauded” the Workgroup’s report, Defendants did not follow this recommendation.59
That same year, Defendants commissioned New York Presbyterian Hospital to conduct the Adult Home Assessment Project (the “Assessment Project”) to
56 JA:449-450:1616-1619, JA463-464:1673-1675. 57 SPA132; SX(4)-33. 58 SPA240. 59 DX(3)-131.
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collect data on, among other things, the demographics of adult-home residents.60 The Assessment Project included 2,611 residents living in 19 adult homes, 15 of which are at issue in this case.61 Notwithstanding the fact that New York spent over a million dollars on the Assessment Project, the state inexplicably terminated the project before its analysis was completed.62 However, the Assessment Project’s data shows that the vast majority of adult-home residents are not severely impaired, and could be served in supported housing:
 93% had no-to-mild impairment of their overall cognitive skills (MMSE)
 68% of the currently unemployed responders reported that they had held some type of job in the past two years
 67% had no psychiatric hospitalizations or were only hospitalized once in the last three years63
60 SPA238. 61 Id. 62 JA916. 63 See PX(1)-80-103; PX(4)83,87-88, 90. The relatively high levels of functionality of adult-home residents correspond with the statutory limitations on admissions into adult homes. State regulations prohibit adult homes from taking individuals who pose a danger to themselves or others, require “continual medical or nursing care,” have “unstable medical conditions,” or chronically require the physical assistance of another person. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 18 § 487.4. Indeed, whether a particular individual ends up in an adult home or supported housing is based purely on availability. JA206:646.
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DAI’s expert on the administration of mental-health programs, Dennis Jones,64
determined that the characteristics displayed by residents of adult homes presented
“a very similar picture” to—if not one “almost better” than—what one would expect to see in residents of supported housing.65 He testified that there was a
“huge mismatch” between the people who ended up in adult homes and the homes themselves.66 Based on this and other data, Mr. Jones concluded that virtually all
of DAI’s constituents could be served in supported housing given the proper supports.67
64 Mr. Jones served as the top mental-health official for Indiana from 1981 through 1988 and held a similar position in Texas from 1988 through 1994. From 1994 through 2003 he was the chief executive officer of the largest community-based mental-health center in Indiana. Additionally, he was appointed by a federal district court to act as the receiver for the District of Columbia’s mental-health system from 2000 through 2002. In this capacity, he created a plan to completely restructure the public mental-health system in DC. JA290:984; see also SX(4)278-279, 311-314. 65 JA302-303:1032, 1034. 66 JA303-304: 1036-1038; JA304-305:1040-1041. 67 JA293:995; SX(4)-287. Additionally, Dr. Ivor Groves, another expert, also reviewed and analyzed the Assessment Project data, and determined that adulthome 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 with daily living skills.” JA804:3072. He also found that “the vast majority” of adult-home residents “could live in supported housing with appropriate supports.” JA804:3074; SX(4)-435-436.
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Elizabeth Jones, DAI’s expert on institutions and alternative communitybased mental-health services,68 came to the same conclusion by visiting 23 of the 28 impacted adult homes from 2003-2004.69 In the course of her investigation, she spoke to approximately 179 residents and reviewed over a hundred records of DAI constituents, many of whom she had previously interviewed.70 Based on her years of working with people who had been moved from institutional settings to community-based alternatives, Ms. Jones determined that virtually all were capable of living in supported housing.71 Ms. Jones saw “nothing in [her] visits to the adult homes that would lead [her] to believe that people [being moved from adult homes to supported housing] required more than is available already in the community in
68 Ms. Jones has over 30 years of experience in the field of mental health, including serving as the superintendent/director of three institutions and a court-appointed receiver of a psychiatric institution. Ms. Jones specializes in the planning, development, and management of community services for people with mental illnesses and has overseen the transitioning of such individuals from institutions and quasi-institutions to community-based care services, including supported housing. She has served as an expert in institutional conditions and the development of alternative community-based programs in Massachusetts, Texas, North Dakota, Iowa, Michigan, Romania, Bulgaria, and Paraguay. JA53-55:35-42; SX(4)-325, 338-345. 69 SX(4)-325-326. 70 JA56:45-46; JA57:49-51; JA66-67:87-89. 71 JA57-57:52-53.
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New York, or that they presented any particular challenge other than what we work with everyday in the field of mental health.”72
Dr. Kenneth Duckworth, DAI’s expert psychiatrist,73 also concurred that the
vast majority of adult-home residents could be served in supported housing. In
reaching this conclusion, he reviewed over 260 mental-health records of DAI constituents selected by Defendants’ expert.74 He also visited five of the impacted
adult homes, interviewed 38 of their residents, and reviewed the deposition testimony of several current residents.75 Based on his analysis of these and other
materials, as well as his years of experience working with supported-housing
programs, Dr. Duckworth found that “there are no material clinical differences between adult home residents and supported housing clients.”76 Duckworth
specifically reviewed the records for factors that would contraindicate placement in
72 JA64-65:79-81. 73 Dr. Duckworth is a licensed psychiatrist with 20 years of experience working with people with serious mental illnesses including schizophrenia, bipolar illness, schizoaffective disorder, and severe depression, among other disorders. Dr. Duckworth has served as the Medical Director and Acting Commissioner of the Massachusetts Department of Mental Health, where he was involved with the Massachusetts equivalent of ACT. He has worked in various treatment settings including hospital inpatient and outpatient programs, emergency triage, homeless outreach, and supported housing. JA244-246:800-807; SX(4)-388-391; SX(4)426-431. 74 JA248:813-814; JA249:820 75 JA248:813-814; JA264-265:880-83. 76 JA258:854; SX(4)-392.
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supported housing like dementia, pyromania, severe cognitive or physical impairment, and found very few in the records.77 He concluded that “virtually all” DAI constituents could live in supported housing with appropriate supports.78
Additionally, Linda Rosenberg—the former Senior Deputy Commissioner for OMH—also testified that, based on her direct experience and knowledge of New York’s service system, virtually all DAI constituents are qualified for supported housing.79 Ms. Rosenberg is aptly placed to make such an assessment. During her tenure at OMH (1997-2004), she oversaw the “community system of care for people with serious mental illnesses,” including OMH’s housing programs.80 In this capacity, Ms. Rosenberg met and observed literally thousands of adult-home residents.81 She also worked with New York’s supported-housing programs. Ms. Rosenberg testified that DAI constituents “by and large have similar characteristics” to current residents of supported housing.82 Indeed, even
77 JA197-198:812-813; JA269-270:900-901; JA271-272:907-910. In his testimony Dr. Duckworth agreed that residents exhibiting these factors may not be appropriate for supported housing and would require more intense evaluation; he further noted that such individuals do not belong in adult homes either. Id. 78 JA247: 809; SX(4)-405-406. 79 JA203:636; JA:222:710. 80 JA203:636. 81 JA204-205:640-42. 82 JA222:709.
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Defendants’ expert Dr. Jeffrey Geller conceded that adult-home residents could live in apartments with varying degrees of support.83
B. DAI Constituents Want Supported Housing. In spite of these facts, Defendants have done little to extend the benefits of
supported housing to adult-home residents. Sadly, Defendants’ efforts have been
limited to issuing only one Request for Proposal (“RFP”) to create 60 supported housing beds for adult-home residents in 2007.84 To fill these newly created beds,
OMH conducted housing forums at eleven adult homes. The response was
enthusiastic. For example, an adult-home administrator, who appeared on behalf
of Defendants, testified:
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 agency, OMH also explained the process. So having 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.85 At the Anna Erika home, “all the residents raised their hands,” when asked who
wanted to move out of the home and “[s]ome of the residents commented…that
83 SPA119; JA637:2370. 84 SPA190; SX(2)-216-49. 85 JA566:2083-2084 (emphasis added).
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they felt ‘trapped’ living in the adult home….”86 At other adult homes residents
asked detailed questions and expressed a lot of interest in the opportunity to move into supported housing.87
This is not surprising. As Dr. Duckworth testified: “Most people have the
dream of having their own place whether they’ve been saddled with schizophrenia
or not.” This common-sense insight is backed by the literature. Studies show that
“a majority of consumers of mental health services prefer to live in their own apartments or houses and not in residential mental health programs or facilities.”88
They also show that individuals with mental illness desire “social integration and participation in typical social roles.”89 Similarly, a study by the Surgeon General
found that “these individuals strongly desire their own decent living quarters where they have control over who lives with them and how decisions are made.”90
86 PX(2)-132. 87 PX(2)-129-133. 88 Beth Tanzman, An Overview of Surveys of Mental Health Consumers’ Preferences for Housing and Support Services, 44 Hosp. & Cmty. Psychiatry, 45055 (1993); Priscilla Ridgway & Anthony M. Zipple, supra note 31, at p. 11 (“[C]lients have definite housing preferences, and that the vast majority prefer typical housing to residential treatment settings.”); Ann O’Hara, Housing for People With Mental Illness: Update of a Report to the President’s New Freedom Commission, Psychiatric Services, Vol. 58, No. 58, p. 909 (2007) (“Consistently, research demonstrates that this preference is for an innovative and independent form of housing known as supported housing. . . .”). 89 Id. 90 U.S. Surgeon General, supra note 29.
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At deposition and trial, many current and former residents testified about their desire to leave the adult homes and live in a more integrated community.91 G.L. testified that he prefers supported housing because, “I have much more freedom.” When asked if he would ever voluntarily return to an adult home, he flatly answered “No.”92 I.K. eloquently described her experience in supported housing:
It’s free. It’s freedom for me. It’s freedom. It’s being able to actually live like a human being again.93 These responses comport with the findings of Ms. Jones, who observed in her expert report that 91% of the adult-home residents she interviewed wanted to live elsewhere.94 This evidence is further supported by the Assessment Project’s finding that a majority of adult-home residents interviewed wanted to leave the homes either to move to their own apartments, in with their families, or elsewhere.95 Dr. Ivor Groves, DAI’s expert who interpreted the Assessment Project’s data, found 75% of
91 SLX-278-279:168-170; SLX-310-311:89-90; SLX-360:102-103; SLX-580: 203204. 92 JA:501-502. 93 JA723:2751 (emphasis added). 94 SX(4)-333; JA55:44; JA67:89-90. 95 PX(4)-84; see also PX(1)-100.
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the residents assessed (i) expressed an interest in living elsewhere or (ii) did not express a preference for the adult home they were living in.96
The foregoing statistics do not fully account for all the adult-home residents who would take advantage of supported housing given the opportunity. The residents interviewed for the Assessment Project were not informed about other service options, artificially minimizing the number expressing an interest in moving.97 Moreover, as several expert witnesses testified, persons with mental illnesses are skeptical about making major changes in their lives because of their past experiences with the system.98
Taking this into consideration, Dr. Duckworth opined that the Assessment Project’s findings represented “a floor” and that probably “four out of five” adulthome residents would likely take advantage of more independent living if presented with the opportunity to do so.99 Mr. Jones also determined that not only were the majority of DAI constituents likely to want supported housing but that the amount of support needed to accommodate this desire could readily be supplied by New York’s systems.100
96 SX(4)-435; JA300:1023-24; JA306-307:1048-1050. 97 JA300:1021-1022. 98 JA67:91-92; JA312:1070-1071. 99 JA247:810; JA:262-264:872-877. 100 JA307:1050-1052.
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III. THE TRIAL COURT’S REMEDIAL ORDER IS NECESSARY AND PROPER. The District Court’s Remedial Order offers DAI constituents the opportunity
to exercise meaningful choices and take more control of their lives by creating access to supported housing. The Remedial Order creates 1,500 supported housing beds per year for the next three years and requires Defendants to continue at this rate until there are sufficient beds for all current DAI constituents and all “Future Adult Home Residents” who desire them.101 Consistent with the ADA, Rehabilitation Act, and Olmstead, the Remedial Order gives individuals qualified for supported housing the choice to be served in a more integrated setting, Olmstead, 527 U.S. at 602–603.
A. The Remedial Order Enables DAI Constituents to Make a Fully Informed Choice About Their Housing Options.
Because of the lack of education and information about available options, particularly supported housing, DAI constituents do not currently have adequate information to make an informed choice.102 To rectify this, the Remedial Order requires “in-reach” to:
 Discuss supported housing and its financial aspects;  Facilitate visits to prospective apartments;
101 SPA234-236. The Remedial Order defines “Future Adult Home Residents” as DAI Constituents who are admitted to adult homes during and after the transition period. 102 JA566:2083; JA649:2416.
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 Assess DAI constituents’ interest in and eligibility for supported housing;
 Explore and address potential concerns; and  Review preferences and identify services that are needed and arrange
for their timely provision.103 In-reach will be conducted by those who are in the best position to do so, supported-housing providers.104 Having received the necessary information, DAI constituents can choose the type of service setting that best meets their needs.
B. The Remedial Order Properly Requires that Supported-Housing Providers Determine Service Needs.
DAI constituents who choose supported housing are deemed qualified unless they (i) have severe dementia, (ii) require a high level of skilled nursing that cannot be met in supported housing with Medicaid home-care or other waiver services, or (iii) are likely to cause imminent danger to themselves or others.105 This standard properly considers the factors Dr. Duckworth testified would contraindicate placement in supported housing.106 It also comports with New York’s own statute regulating who can be admitted into adult homes. See, N.Y. Comp. Codes R. &
103 SPA237. 104 Id. 105 If one of these conditions exists, further assessment is performed, and the person can move into supported housing if she or he is determined to be appropriate for it with the concurrence of OMH. SPA-239. 106 JA247-248:812-813.
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Regs. tit. 18 § 487.4. 107 In accordance with current New York and national practice, providers
determine whether or not DAI constituents qualify for supported housing and what services they will need to succeed. These mental health providers are selected by OMH.108 Supported-housing providers employ clinical professionals—including psychologists, psychiatrists, nurses, and clinicians—and specialize in determining the treatment and supports required. They routinely perform similar assessments and are in the best position to determine whether or not they can appropriately serve DAI constituents’ needs.109
Since many adult-home residents have been deprived of the opportunity to live in the community, it is important to plan for their transition to supported housing before the moves actually take place. Individuals should be linked with needed services and supports in accordance with their needs and preferences. For some, it will be important to sustain these supports over time, including services such as ACT for those who need it. The Remedial Orders use of “in-reach” to identify DAI constituents’ needs and supported-housing providers to determine that those needs can be met, promotes a smoother transition into noninstitutionalized life. 107 Discussed supra note 62. 108 SPA236. 109 JA416:1486-1487; PX(4)-522.
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CONCLUSION Affirming the District Court’s decision and Remedial Order will give DAI constituents access to the benefits of supported housing: (1) the opportunity to live in and integrate into their community and (2) the necessary services to support their success as tenants and members of that community. For the foregoing reasons, the Amici Curiae respectfully request that the Court affirm the decision below.

Dated: October 13, 2010

O’MELVENY & MYERS LLP
/s/ Justine M. Daniels Carla Christofferson Justine M. Daniels Christopher A. Adams 400 South Hope Street Los Angeles, CA (213) 430-6000
Counsel for Amici Curiae The American Association of Community Psychiatrists et al.

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ADDENDUM AMICI CURIAE BACKGROUND INFORMATION 1. The American Association of Community Psychiatrists (AACP) is a national membership organization consisting of psychiatrists, psychiatric residents, medical students, and associate members from the range of allied behavioral health professions. Since 1985, the AACP has been a professional voice for psychiatric clinicians, academicians, and public policy experts who work in community-based and other public sector settings. The organization’s mission is to “encourage, equip, and empower community and public psychiatrists to develop and implement policies and high-quality practices that promote individual, family, and community resilience and recovery.” Within AACP there exists a concentration of experience, talent, and expertise that has positioned it as a national leader in advancing quality care, advocating public health, and educating psychiatrists. As such, AACP endorses the need to create sufficient supported housing in New York State for people with mental illnesses who currently live in adult homes in New York, enabling them to freely elect to move to non-institutional, community-based housing so that they might ably pursue integration into communities, effect personal healing, and optimize their quality of life. 2. AARP is a nonpartisan, nonprofit social welfare organization with a membership that helps people aged 50+ have independence, choice, and control

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in ways that are beneficial and affordable to them and society as a whole. AARP supports providing people access to quality long-term health care services in the setting that they choose and a range of financing sources for long-term care. To that end, AARP supports efforts to ensure that individuals in New York and elsewhere have access to long-term care in the most integrated settings. In several cases around the country, AARP attorneys represent classes of plaintiffs seeking enforcement of the Americans with Disabilities Act, one goal of which is the expansion of supported-housing options in order to enable older people and those with disabilities to avoid unnecessary institutionalization in nursing facilities and other segregated settings.
3. Mental Health America (MHA), formerly the National Mental Health Association, is a national membership organization consisting of individuals with mental illnesses and their family members. The nation’s oldest and largest nonprofit mental health organization, MHA has over 320 affiliates that are dedicated to improving the mental health of all Americans, especially the 54 million people who have mental disorders. Through advocacy, education, research, and service, MHA helps to ensure that people with mental illnesses are accorded respect, dignity, and the opportunity to achieve their full potential. Mental Health America’s Position Statement No. 21 specifically endorses the

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principles of the Olmstead decision, which is at the core of this case, and the need for supported housing as elaborated in this brief.
4. The National Alliance on Mental Illness (NAMI) is the nation’s largest grassroots mental health organization dedicated to improving the lives of individuals and families affected by mental illness. Founded in 1979, NAMI has over 1100 state and local affiliates that engage in research, education, support, and advocacy. A vital part of NAMI’s mission is to promote and advocate for access to treatment and services, including supported housing, that fosters recovery and enables individuals living with mental illnesses to achieve the highest possible level of functional independence and productivity in the community.
5. The National Association of Social Workers (NASW), established in 1955, is the largest association of professional social workers in the world with 145,000 members and chapters throughout the United States, in Puerto Rico, Guam, the Virgin Islands, and an International Chapter in Europe. The NASW, New York State and New York City Chapters, have a combined membership of nearly 20,000 social workers. With the purpose of developing and disseminating standards of social work practice while strengthening and unifying the social work profession as a whole, NASW provides continuing education, enforces the NASW Code of Ethics, conducts research, publishes books and studies,

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promulgates professional criteria, and develops policy statements on issues of importance to the social work profession.
The NASW Code of Ethics states that social workers are to “respect and promote the right of clients to self-determination” unless it would pose a “serious, foreseeable, and imminent risk” to the client or others. NASW’s policy on mental health specifically supports “the elimination of stigma associated with mental illness,” “a broader range of housing and vocational services to improve the quality of life, enhance independent community living, and build effective and stable interpersonal relationships,” and “culturally responsive treatment in the most therapeutic and least restrictive environment.” NASW, SOCIAL WORK SPEAKS 229, 234-5 (8th ed., 2009). Accordingly, given NASW’s policies and the work of its members, NASW has expertise that will assist the Court in reaching a proper resolution of the questions presented in this case.
6. The Depression and Bipolar Support Alliance (DBSA) is the nation’s leading consumer-focused mental health organization, with the mission “to improve the lives of people living with mood disorders.” Through over 1,000 support groups and 450 national chapters, DBSA reaches nearly 5,000,000 people each year with current, consumer-friendly information about depression and bipolar disorder, as well as empowering tools focused on an integrated approach to wellness and recovery. DBSA joins this amicus brief on behalf of its members and

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constituents who will benefit from the proper application of Olmstead and the affirmance of the District Court’s decision and Remedial Order.
7. The American Association of People with Disabilities (AAPD) is the country’s largest cross-disability membership organization. AAPD organizes the disability community to be a powerful voice for change—politically, economically, and socially. AAPD was founded in 1995 to help unite the diverse community of people with disabilities, including their family, friends, and supporters, and to be a national voice for change in implementing the goals of the Americans with Disabilities Act (ADA).
8. The American Network of Community Options and Resources (ANCOR) is a nationwide association of over 800 private agencies that provide support and services to more than 500,000 people with disabilities, including individuals with mental illness and dual diagnosis. ANCOR has been involved for almost 40 years in increasing housing options for people with a variety of disabilities, and ensuring the availability of needed supports.
9. The American Occupational Therapy Association (AOTA) is the national professional association representing the interests of more than 140,000 occupational therapists, occupational therapy assistants, and students. Occupational therapy is science-driven, and evidence-based practice, which enables people of all ages to live life to its fullest by promoting health and

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minimizing the functional effects of illness, injury, and disability. Occupational therapy has its roots in the mental-health arena, and now works to support individuals with mental illness to live in the community, to recover and maintain functional abilities, and to live life to its fullest.
10. ADAPT is a national grass-roots community that organizes disability rights activists to advocate for the civil and human rights of people with disabilities. For over 20 years, ADAPT has been striving to end the institutional biases that promote the segregation of people with disabilities into institutional settings like adult homes. ADAPT works so that people with disabilities can live in the community with real supports and the freedoms that are due to all citizens.
11. The Disability Rights Education and Defense Fund, Inc. (DREDF) is a national nonprofit law and policy center dedicated to advancing and protecting the civil rights of people with disabilities. Founded in 1979 by people with disabilities and parents of children with disabilities, DREDF remains boardand staff-led by members of the community it represents. DREDF pursues its mission through education, advocacy, and law reform efforts, and is nationally recognized for its expertise in the interpretation of federal disability civil rights laws. DREDF participated in an amicus brief submitted to the U.S. Supreme Court in the Olmstead case, which highlighted the critical importance of the ADA’s community integration mandate. DAI v. Paterson et al., represents an important

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application of Olmstead, the affirmance of which will help to fulfill the promise of the ADA.
12. The Autistic Self-Advocacy Network (ASAN) is a nonprofit organization run by and for autistic people. ASAN was created to provide support and services to individuals on the autism spectrum while working to change public perception and combat misinformation by educating communities about persons on the autism spectrum. ASAN seeks to advance the principles of the disability rights movement in the world of autism. Drawing from the principles of the crossdisability community on issues such as inclusive education, community living supports, and others, ASAN seeks to organize the community of autistic adults and youth to have their voices heard in the national conversation about autism. ASAN initiatives include the Academic Autistic Spectrum Partnership in Research and Education (AASPIRE), an active Speaker’s Bureau, and advocacy in support of autism and disability-related issues such as de-institutionalization and communityliving supports, educational opportunity and inclusion, employment supports, and other initiatives at both state and federal levels.
13. The National Health Law Program, Inc. (NHeLP) is a national public interest law firm working to improve access to quality health care on behalf of limited income people by providing litigation assistance, legal and policy analysis, information, and education. Since its inception 40 years ago, NHeLP has

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represented thousands of families and children, elderly people, and people with disabilities in federal court cases seeking to enforce provisions of the federal Medicaid Act, the Americans with Disabilities Act, and other federal civil rights laws. NHeLP has developed recognized expertise in the areas of public insurance and disability law, and serves as a national clearinghouse for legal information. As an advocate for quality health care, NHeLP works to promote greater understanding of the barriers to health care faced by low-income individuals and people with disabilities. NHeLP has worked to analyze and enforce Medicaid and ADA requirements. It has also worked to ensure that individuals have avenues for redress when their requests for publicly funded services are denied or not acted on. NHeLP is vitally interested in, and joins, the subject matter of this case and this amicus brief.
14. The National Senior Citizens Law Center (NSCLC) is a nonprofit organization that advocates nationwide to promote the independence and well-being of low-income older persons and people with disabilities. For more than 35 years, NSCLC has served these populations through litigation, administrative advocacy, legislative advocacy, and access to attorneys. NSCLC recently released the report, 10-Plus Years After the Olmstead Ruling: Progress, Problems, and Opportunities. NSCLC is deeply committed to the implementation

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of the Olmstead decision and its progeny, including this case, which will benefit its constituents in adult homes in New York City.
15. The Public Interest Law Center of Philadelphia (PILCOP) is one of the original affiliates of the Lawyers’ Committee for Civil Rights Under Law, and has a long history of representing persons with disabilities seeking quality, community-based services so that they can avoid being confined to segregated institutions. The Law Center was lead counsel in Halderman v. Pennhurst, 451 U.S. 1 (1981); 465 U.S. 89 (1984). This case, argued three times before the United States Supreme Court, resulted in the closing of the Pennhurst institution for individuals with intellectual disabilities and the placement of its residents in quality, community-based settings.
As a result of Pennhurst, similar suits were brought by the Law Center, along with others, in Connecticut, Oklahoma, New Mexico, Illinois, Montana, Delaware, and Tennessee to end or prevent the segregation of persons with disabilities both before and after the Olmstead decision. This year, the Law Center, enforcing the principles of the Olmstead decision, settled Messier v. Connecticut, 3:94-cv-01706-EBB, Doc. 1036-1 (D. Conn., July 12, 2010), and see decision at 562 F. Supp. 2d 294 (2008), enabling hundreds of individuals segregated in the Southbury Training School to move into their communities. Because this right to live in the community is a mirage if housing and services

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adapted to their needs are not available, the Law Center has devoted substantial resources to removing barriers to those services, including an amicus brief in City of Cleburne v. Clebourne Living Center, 473 U.S. 432 (1985), filing numerous suits contesting zoning restrictions on group homes, and enforcing decrees around the country concerning adequate support services for persons moving from institutions.
Both through advocacy and litigation, the Law Center helps to ensure that people with intellectual disabilities and mental illness may live in the community; it knows how important supported housing is for its clients, as explained in this brief.
16. The National Association of People with AIDS (NAPWA), founded in 1983, is the first coalition in the world of people living with HIV/AIDS, as well as the oldest AIDS organization in the United States. NAPWA is the trusted, independent voice of the more than one million people living with HIV/AIDS in America. NAPWA is a strong voice in policy, capacity building, leadership development, and social networking. NAPWA works to improve access to early and comprehensive treatment for persons living with HIV/AIDS. Advocacy initiatives support administrative, appropriations, and legislative opportunities that expand the quality of life for persons living with HIV/AIDS, including the opportunity to live in the community with necessary supports.

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NAPWA programs focus on capacity-building and consumer advocacy, providing advocacy and assistance in obtaining medical, legal, financial, housing, and other needed supportive services for people living with HIV/AIDS.
17. The U.S. Psychiatric Rehabilitation Association (USPRA) is a 501(c) (3) organization whose mission is to advance the practice of psychiatric rehabilitation so that individuals with mental illness can recover in order to be able to achieve successful and satisfying lives in the working, learning, and social environments of their choice. USPRA provides access, advocacy, and strategies to implement state-of-the-art psychiatric rehabilitation and recovery-oriented practices through education, professional credentials, research, service outcomes, and networking. As a result of its years of experience in the field, USPRA recognizes that active participation in decision making, as well as interaction with the community at large, are essential to the recovery of people with mental illnesses.
18. National Council for Community Behavioral Health Care (National Council) is the unifying voice of America’s behavioral health organizations. Together with 1,700 member organizations, the National Council serves our nation’s most vulnerable citizens—more than 6 million adults and children with mental illnesses and addiction disorders. The National Council is

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committed to providing comprehensive, quality care that affords every opportunity for recovery and inclusion in all aspects of community life.
19. Daniel Fisher earned a PhD in biochemistry, and conducted research at the National Institutes of Mental Health into the possible biochemical basis of schizophrenia. During the course of that work, at age 25, he was diagnosed with schizophrenia, and was hospitalized on several occasions. His full recovery inspired him to help others find the keys to their recovery from mental illness. Earning an MD from George Washington University and training as a psychiatrist at Harvard Medical School, he has practiced as a psychiatrist and Medical Director at Riverside Community Care in Wakefield, Massachusetts, for 25 years. Dr. Fisher’s work has been recognized by several awards, including the Clifford Beers Award for Mental Health Advocacy and the Frances Olivero Advocacy Award. He was appointed as a Commissioner to the White House New Freedom Commission on Mental Health. Dr. Fisher co-founded the National Empowerment Center and is a voice for consumers in the development of national mental health policy. Dr. Fisher endorses supported housing based on his years of experience in the field and his own experience with mental illness.
20. The National Council on Independent Living (NCIL) is the longest-running national cross-disability, grassroots organization run by and for people with disabilities. Founded in 1982, NCIL represents thousands of

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organizations and individuals including: Centers for Independent Living (CILs), Statewide Independent Living Councils (SILCs), individuals with disabilities, and other organizations that advocate for the human and civil rights of people with disabilities throughout the United States. Through consumer-driven advocacy, NCIL advances independent living and the rights of people with disabilities. NCIL was founded to embody the values of the disability culture and Independent Living philosophy, which creates a new social paradigm that emphasizes that people with disabilities are the best experts on their own needs, that they have crucial and valuable perspectives to contribute to society, and that they are deserving of an equal opportunity to decide how to live, work, and take part in their communities. NCIL envisions a world in which people with disabilities are valued equally and participate fully.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitation, Typeface Requirements and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,142 words, excluding the 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 has been prepared in a proportionately spaced typeface using Microsoft Word 2003 in 14 point Times New Roman font.

Dated: October 13, 2010

O’MELVENY & MYERS LLP

/s/ Justine M. Daniels Carla C. Christofferson Justine M. Daniels Christopher A. Adams 400 South Hope Street Los Angeles, CA (213) 430-6000
Counsel for Amici Curiae The American Association of Community Psychiatrists et al.

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STATE OF NEW YORK ) )
COUNTY OF NEW YORK )

ss.:

AFFIDAVIT OF

CM/ECF SERVICE

I, Mariana Braylovskiy, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age.
On October 13, 2010 deponent served the within: Brief of Amici Curiae American Association of Community Psychiatrists et al. In Support of the District Court’s Decision and Remedial Order
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 October 13, 2010

Maryna Sapyelkina Notary Public State of New York
No. 01SA6177490 Qualified in Kings County Commission Expires Nov. 13, 2011

s/Mariana Braylovskiy Job # 232763

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SERVICE LIST:
Cecelia Chang New York State Office of the Attorney General 120 Broadway New York, NY 10271 cecelia.chang@ag.ny.gov
Laura R. Johnson Assistant Solicitor General New York State Office of the Attorney General 120 Broadway New York, NY 10271
David T. Luntz Hinman Straub PC 121 State Street Albany, NY 12207 dluntz@hinmanstraub.com
Roger Bearden New York Lawyers for the Public Interest 11th Floor 151 West 30th Street New York, NY 10001
Jeanette Zelhof MFY Legal Services, Inc. 4th Floor 299 Broadway New York, NY 10007

Benjamin N. Gutman Deputy Solicitor General New York State Office of the Attorney General 25th Floor 120 Broadway New York, NY 10271
Patricia A. Millett Akin Gump Strauss
Hauer & Feld LLP 133 New Hampshire Avenue, N.W. Washington, DC 20036 pmillett@akingump.com
Teresa Kwong U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20530 teresa.kwong@usdoj.gov
Andrew Gordon Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019
Clifford H. Zucker Disability Advocates, Inc. 3rd Floor 5 Clinton Square Albany, NY 12207

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Timothy Aloysius Clune Disability Advocates, Inc. 3rd Floor 5 Clinton Square Albany, NY 12207
Mara Anne Kuns Urban Justice Center 16th Floor 123 William Street New York, NY 10038
Hugh Barber Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street Hartford, CT 06106
Nancy B. Ludmerer Davis Polk & Wardwell LLP Suite 3029 450 Lexington Avenue New York, NY 10017
Robert J. Alessi Dewey & LeBoeuf LLP Suite 2020 99 Washington Avenue Albany, NY 12210

Aditi Kothekar New York Lawyers for the Public Interest 11th Floor 151 West 30th Street New York, NY 10001
Jessica Dunsay Silver United States
Department of Justice Civil Rights Division P.O. Box 14403 Ben Franklin Station Washington, DC 20044
Jordan W. Siev Reed Smith LLP 26th Floor 599 Lexington Avenue New York, NY 10022
E. Christopher Murray, Esq. Ruskin Moscou Faltischek, P.C. 15th Floor 1425 RXR Plaza Uniondale, NY 11556
Steven J. Schwartz Center for Public Representation 22 Green Street Northampton, MA 01060

 
 10-235-CV(L) Case: 10-235 Document: 298 Page: 1 10/13/2010 124005 30
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, EMPIRE STATE ASSOCIATION OF ASSISTED LIVING, Movants-Appellants,
(Additional Caption On the Reverse)
On Appeal from the United States District Court for the Eastern District of New York (Brooklyn)

!!

BRIEF OF THE COALITION OF INSTITUTIONALIZED AGED AND DISABLED, COMMUNITY ACCESS, DISABLED IN ACTION, FRIA, THE
GERIATRIC MENTAL HEALTH ALLIANCE OF NEW YORK, THE INSTITUTE FOR COMMUNITY LIVING, THE LONG TERM CARE COMMUNITY COALITION, THE MENTAL HEALTH ASSOCIATION IN NEW YORK STATE, INC., MENTAL HEALTH ASSOCIATION OF NEW YORK CITY, THE MENTAL HEALTH EMPOWERMENT PROJECT, INC., NATIONAL ALLIANCE ON MENTAL ILLNESS OF NEW YORK CITY, THE NEW YORK ASSOCIATION ON INDEPENDENT LIVING, THE NEW YORK ASSOCIATION OF PSYCHIATRIC REHABILITATION SERVICES, SCHUYLER CENTER FOR ANALYSIS AND ADVOCACY, THE TRUSTEES OF COLUMBIA UNIVERSITY COMMUNITY SUPPORT SYSTEM PROGRAM AND VENTURE HOUSE AS
AMICI CURIAE SUPPORTING PLAINTIFFS-APPELLEES

On the Brief:
Peter K. Vigeland Michael Bongiorno David F. Olsky Omar Khan Natalie Rastin Leizel A. Ching

WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, New York 10022 212-230-8800
Attorneys for Amici Curiae

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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.

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STATEMENT PURSUANT TO RULE 26.1 OF THE FEDERAL RULES OF APPELLATE PROCEDURE Amici Curiae The Coalition of Institutionalized Aged and Disabled, Community Access, Disabled In Action, FRIA, The Geriatric Mental Health Alliance of New York, The Institute for Community Living, The Long Term Care Community Coalition, The Mental Health Association in New York State, Inc., Mental Health Association of New York City, The Mental Health Empowerment Project, Inc., National Alliance on Mental Illness of New York City, The New York Association on Independent Living, The New York Association of Psychiatric Rehabilitation Services, Schuyler Center for Analysis and Advocacy, The Trustees of Columbia University – Community Support System Program, and Venture House are non-profit corporations and associations. The parent corporation of The Mental Health Association in New York State, Inc. is Mental Health America. The remaining Amici have no parent corporations and are not owned, in whole or part, by any publicly held corporations.
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TABLE OF CONTENTS INTRODUCTION AND STATEMENT OF INTEREST .......................................1 ARGUMENT .........................................................................................................8
I. For Over Thirty Years, Adult Homes Have Been the Subject of Government Investigations and Public Outcry....................................................................................... 9
II. Residents of Adult Homes Continue To Suffer Discrimination On The Basis Of Their Disability.......................................................................................... 15
III. The Long-Standing Problems at Adult Homes Will Continue Unless the District Court’s Order Is Affirmed............................................................................. 18
CONCLUSION ....................................................................................................22
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TABLE OF AUTHORITIES
CASES
Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009)....................................................... passim
Locher v. Unum Life Insurance Co. of America, 389 F.3d 288 (2d Cir. 2004) .............................................................................. 8
Olmstead v. Zimring, 527 U.S. 581 (1999) .......................................................................................... 8
STATUTES, CODES & RULES
42 U.S.C. §§ 12131-65 (2006)............................................................................ 2, 8
N.Y. Mental Hygiene Law § 45.07 ....................................................................... 12
OTHER AUTHORITIES
Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults: An Interim Report (March 31, 1977) ................................................... 10
Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults: A Second Investigative Report (March 31, 1979)........................... 10, 11
Clifford J. Levy, Here, Life is Squalor and Chaos, N.Y. Times, Apr. 29, 2002 .................................................................................................... 13, 14, 20
Clifford J. Levy, For Mentally Ill, Death and Misery, N.Y. Times, Apr. 28, 2002 .......................................................................................................... 13, 14
Clifford J. Levy, Voiceless, Defenseless And a Source of Cash, N.Y. Times, Apr. 30, 2002............................................................................................. 13, 20
Clifford J. Levy and Sarah Kershaw, Inquiry Finds Mentally Ill Patients Endured “Assembly Line” Surgery, N.Y. Times, Mar. 18, 2001 ..................... 13
Expert Report of Dennis Jones, April 6, 2006................................................. 11, 18 - iii -

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Expert Report of Elizabeth Jones, April 5, 2006 ................................................... 17 Expert Report of Kenneth Duckworth, April 6, 2009................................ 17, 19. 20 Letter from New York State Department of Health to Adult Care Facility
Operators, DAL-HCBC-03-08 (December 10, 2003)....................................... 20 New York State Commission on Quality of Care for the Mentally Disabled,
Adult Homes Serving Residents with Mental Illness: A Study of Conditions, Services, and Regulation (October 1990)................................ 12, 19 New York State Commission on Quality of Care for the Mentally Disabled, Exploiting Not-For-Profit Care in an Adult Home: The Story Behind Ocean House Center, Inc. (December 2001) ............................................. 12, 13 Office of Long-Term Care, New York State Department of Health, Garden of Eden Home Inspection Report (December 10, 2009) ............................. 17, 20 Report of the Adult Care Facilities Workgroup (October 2002)...................... 14, 15 William Castro et al., The Adult Home Industry: A Preliminary Report (January 1979)............................................................................................. 9, 11
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INTRODUCTION AND STATEMENT OF INTEREST Amici Curiae The Coalition of Institutionalized Aged and Disabled, Community Access, Disabled In Action, FRIA, The Geriatric Mental Health Alliance of New York, The Institute for Community Living, The Long Term Care Community Coalition, The Mental Health Association in New York State, Inc., Mental Health Association of New York City, The Mental Health Empowerment Project, Inc., National Alliance on Mental Illness of New York City, The New York Association on Independent Living, The New York Association of Psychiatric Rehabilitation Services, Schuyler Center for Analysis and Advocacy, The Trustees of Columbia University – Community Support System Program, and Venture House (“Amici Curiae”) are non-profit organizations dedicated to the provision of mental health and/or disability services to New York residents and to advocacy on behalf of those who receive such services.1 With decades of experience in treating and working with individuals with disabilities, Amici Curiae provide the Court with a unique perspective on the treatment afforded in adult homes to individuals with disabilities. The parties have consented to Amici Curiae’s filing of this brief.
1 No party has authored the brief, in whole or in part. No person, party or party’s counsel – other than Amici Curiae, their members, or their counsel – contributed money that was intended to fund preparing or submitting the brief. See Local Rule 29.1(b).
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Amici Curiae support the District Court’s judgment below that the placement of individuals with disabilities into adult homes violates Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-65 (2006). Amici Curiae further support the District Court’s remedial order requiring New York State to provide supported housing to any constituent of Disability Advocates, Inc., who would qualify for and choose supported housing. Adult homes have been the focus of government investigations and media scrutiny for decades and the evidence at trial proved the need for the relief ordered by the Court.
The Coalition of Institutionalized Aged and Disabled (“CIAD”) provides residents in adult homes with the information and skills they need to advocate for themselves and protect their rights. CIAD was born out of a sense of disenfranchisement and isolation among residents of adult homes and nursing homes, and its leadership includes adult home residents and former residents. ClAD regularly visits adult homes and adult home residents in New York City.
Community Access provides a wide variety of services to more than 1,600 individuals with psychiatric disabilities each year, including job training, employment placement and other support services. Additionally, Community Access owns, leases and operates more than 800 units of permanent and transitional supportive housing for individuals with mental illness in New York City.
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Disabled In Action (“DIA”) is a civil rights organization committed to ending discrimination against people with all disabilities. DIA fights to eliminate the barriers that prevent people with disabilities from enjoying full equality in American society. Founded in 1970, DIA is a democratic, membership organization consisting primarily of and directed by people with disabilities, providing an organizational basis for disabled activists to join in effective unified political action.
FRIA is a New York City-based non-profit organization dedicated to fostering the dignity and independence of seniors in long-term care settings, with a special focus on nursing home residents, and to ensuring that they receive prompt, high quality, compassionate care. FRIA seeks to accomplish this by helping friends and relatives become more informed and effective caregivers for their loved ones.
The Geriatric Mental Health Alliance of New York advocates for changes in mental health practice and policy toward elder adults with mental health issues.
The Institute for Community Living (“ICL”), a non-profit Human Service Agency founded in 1986, provides a comprehensive array of treatment and support services to thousands of New Yorkers who are coping with serious mental illness while living in the communities of their choice. ICL is accredited by the Commission on the Accreditation of Rehabilitation Facilities and has been the
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recipient of many local and national awards over the years celebrating the services provided. ICL operates over 100 discrete programs within Brooklyn, Bronx, Queens, and Manhattan, including over 1400 housing options with each providing support to the individuals served.
The Long Term Care Community Coalition (“LTCCC”) is dedicated to improving care and quality of life for long-term care consumers. LTCCC researches policies, laws, and regulations affecting care for the elderly and disabled; advocates for state and national policies to improve care; addresses systemic problems in the delivery of long term care; identifies good practices and develops recommendations to improve care and dignity of the elderly and disabled, and to better conditions for professional caregivers; educates and empowers the elderly and disabled to advocate for themselves; and actively engages government agencies and elected officials in discussion and action on the needed changes.
The Mental Health Association in New York State, Inc. (“MHANYS”) and its local affiliates serve 54 counties in New York, working to ensure that New Yorkers have access to mental health services. MHANYS members include mental health consumers, family members, advocates, and professionals.
Mental Health Association of New York City (“MHA-NYC”) addresses mental health needs in New York City and across the nation. It is a local organization with a national impact and has a three-part mission consisting of
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services, advocacy, and education. MHA-NYC identifies unmet needs and develops culturally sensitive programs to improve the lives of individuals and families affected by mental illness while promoting the importance of mental health.
The Mental Health Empowerment Project, Inc. (“MHEP”) is a recipientrun, non-profit organization organized in 1988 to develop and to strengthen selfhelp and mutual support activities throughout New York State. For twenty-three years, MHEP has placed a high value on promoting community partnerships and helping people find and connect with their personal power and the power of selfhelp. To that end, MHEP is committed to supporting and upholding the rights of people with a psychiatric diagnosis and fighting for their right to choice in all areas of their lives.
National Alliance on Mental Illness of New York City (“NAMI NYCMetro”) is the largest affiliate of the National Alliance on Mental Illness. For more than thirty years, NAMI-NYC Metro has provided support, education, and advocacy to families and individuals whose lives are impacted by serious mental illness.
The New York Association on Independent Living (“NYAIL”) is a nonprofit membership organization, representing Independent Living Centers throughout New York State, which works to remove barriers to the full community
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integration of people with disabilities. Independent Living Centers (“ILCs”) are community-based providers of services, supports, and advocacy to people with all types of disabilities and of all ages, and are controlled by and largely staffed by people with disabilities. NYAIL works with ILCs, their partners, and people with disabilities to ensure their independence and civil rights, including the availability of community-based, fully integrated services and supports in the areas of health and long term care, housing, education, employment, and transportation.
The New York Association of Psychiatric Rehabilitation Services (“NYAPRS”), founded in 1981, is a non-profit organization dedicated to improving services and social conditions for people with psychiatric disabilities or diagnoses, and those with trauma-related conditions by promoting their recovery, rehabilitation, and rights. NYAPRS membership includes over 100 community mental health service agencies and thousands of New Yorkers with psychiatric disabilities who support the efforts of tens of thousands of New Yorkers by providing a wide range of services that share a fundamental belief in the capacity for recovery, healing, independence, and community integration for every individual with a psychiatric disability.
The Schuyler Center for Analysis and Advocacy (“SCAA”), established in 1872, is a statewide, independent, non-profit public policy research and advocacy think tank based in Albany, New York. SCAA promotes the public
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interest by advancing policies to improve health, welfare, and human services for all New Yorkers, with a special focus on low-income and vulnerable persons.
The Trustees of Columbia University – Community Support System Program operates a psychiatric day treatment program and provides supported case management for persons with mental illness in the greater Harlem area.
Venture House is a non-profit organization operating a Clubhouse, certified by the International Center for Clubhouse Development, for people with a mental illness in Jamaica, Queens since 1987. Venture House provides a recovery-based program focused on work and independence that includes employment opportunities, skill building, social and recreational opportunities, housing supports, and participation in a community of their own choosing. Venture House currently has an active membership of over 350 adults.
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ARGUMENT For nearly thirty years, the State of New York has funneled individuals with disabilities into privately owned adult homes in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-65. See Olmstead v. Zimring, 527 U.S. 581, 597 (1999) (“Unjustified isolation, we hold, is properly regarded as discrimination based on disability.”). Initially intended as an ad hoc, temporary housing solution when the State began deinstitutionalizing its psychiatric hospitals in the early 1970s, these privately run for-profit adult homes nevertheless have endured as “de facto . . . satellite mental institutions.” Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 197 (E.D.N.Y. 2009) (“DAI”) (SPA 87). For the past three decades, government investigations and newspaper reports have uncovered widespread resident abuse, neglect, fraud, and corruption at adult homes. State efforts at integrating the individuals consigned to these “little ghettos,” id. at 203 (SPA 93), have been largely unsuccessful. The District Court’s factual findings – which were based on a five-week bench trial in which twenty-nine witnesses testified and three hundred exhibits were entered into evidence, and which the State and its supporting amici curiae address only in passing – should be affirmed. See Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 293 (2d Cir. 2004) (factual findings from bench trial are reviewed for clear error). Those findings confirm that the District Court’s order is
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critical to preventing further violations of the ADA, and to transforming the culture of dependency that these facilities foster. Absent the remedy ordered by the District Court, individuals with disabilities who are qualified to live outside of an institutionalized setting – the vast majority of individuals with disabilities living at adult homes – will continue to suffer discrimination on the basis of their disability. I. For Over Thirty Years, Adult Homes Have Been the Subject of
Government Investigations and Public Outcry. Most adult homes are privately owned, for-profit facilities that were originally conceived to service a “well-elderly population;” individuals requiring medical or psychiatric care were historically placed in nursing homes or in psychiatric facilities. William Castro, The Adult Home Industry: A Preliminary Report 13 (January 1979) (PX(1) at 576); see also DAI, 653 F. Supp. 2d at 197 (SPA 87). When the State of New York began deinstitutionalizing its psychiatric hospitals in the 1970s, patients were discharged directly into adult homes because
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State and local authorities could not accommodate the sudden increase in demand for adequate community-based services. Id.2
Shortly after State psychiatric hospitals began discharging patients directly into adult homes, New York State and City officials initiated civil and criminal investigations of those facilities. Reports published by then-Deputy Attorney General Charles Hynes found that adult homes had been transformed into “de facto mental institutions” and “satellite mental institutions.” See Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults: An Interim Report (March 31, 1977); Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults: A Second Investigative Report 1 (March 31, 1979)
2 This practice of funneling individuals with mentally illness from State psychiatric hospitals continues today, such that twenty-eight of the forty-four adult homes in New York City that have more than 120 beds are considered “impacted,” meaning that a significant portion of the resident population have mental illness. DAI, 653 F. Supp. 2d at 195-96 (citing Department of Health 2008 Census Report) (SPA 64-67). As of December 31, 2008, more than eighty percent of the total resident population in these twenty-eight homes was reported as having mental illness. Id. Eighteen of these homes reported that more than ninety-five percent of residents have mental illness, and nine of these were homes in which every resident has a mental illness. Id.
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(PX(1) at 453).3 The reports noted “the existence of unhealthy, unsanitary and
unsafe living conditions” and further that, “[i]nadequate food, in amount and
nutritional value, is a continuing problem and the subject of frequent complaints. . .
. Inadequate staffing is widespread and causes deficiencies in personal care
services, housekeeping and maintenance.” Id. at 17.
Around the same time as the Hynes investigation, the New York City
Council Subcommittee on Adult Homes conducted its own investigation. A
preliminary report similarly found that the majority or a very large minority of
adult home residents were former mental patients, thereby creating “satellite
mental institutions.” See William Castro, The Adult Home Industry: A Preliminary
Report 14 (January 1979) (PX(1) at 577). The report further found “the
widespread use of adult homes as ‘dumping grounds’ for former mental patients.”
Id. at 2.
Beginning in 1977, the State attempted to address the horrific conditions in
adult homes through the legislation and regulation of these institutions. See Hynes,
Private Proprietary Homes for Adults: A Second Investigative Report at 7 (PX(1) 3 Numerous reports have “highlighted the fact that adult homes were neither established nor regulated with the needs of persons with serious mental illness in mind. The reports found adult homes to be stark and regimented environments with a fundamental lack of privacy and individual decision making for residents. In addition, these reports expressed serious concerns about living conditions, lack of connection to community mental health resources, and over utilization of some Medicaid services.” Expert Report of Dennis Jones (“Jones Report”), April 6, 2006, at 7 (SX(4) at 284).
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at 418). Time and again, however, legislative efforts proved inadequate to cure the
fundamental failings of adult homes. In 1989, ten years after the implementation
of the initial regulations on adult homes, the New York State Commission on
Quality of Care for the Mentally Disabled (“CQC”), an independent State agency,
conducted an audit. See N.Y. Mental Hyg. Law § 45.07. The CQC found that a
significant number of adult homes had “seriously deficient conditions that
adversely affected the day-to-day living conditions, safety, supervision and health
of the residents.” See CQC, Adult Homes Serving Residents with Mental Illness: A
Study of Conditions, Services, and Regulation (October 1990) (PX(1) at 3):
The widespread deficiencies in these homes were usually first signaled by poor exteriors and yard maintenance even before reviewers entered the homes. Once inside, the inattention to basic living conditions for residents was pervasive. Routine maintenance had apparently been neglected long term, and often serious, longstanding plumbing and roof leaks further contributed to poor conditions. The terrible odors of these homes were usually the first sign to a visitor of the serious underlying housekeeping problems. Bathrooms and resident bedrooms, as well as common living areas in many of the homes, clearly had not been attended to for long periods of time. Id. at 12 (PX(1) at 21).
Ten years later, in 2001, the CQC issued another report that was focused on
the Ocean House adult home. The report documented widespread fraud and
misuse of residents’ and State money. See CQC, Exploiting Not-For-Profit Care
in an Adult Home: The Story Behind Ocean House Center, Inc. 1 (December 2001)
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(PX(1) at 684). In addition to finding that treatment plans and activities were inadequate, the CQC’s report revealed that despite the significant amounts of State and federal money spent on adult home residents, the quantity and type of services provided to these residents appeared to be driven more by greed than by residents’ needs. Id. at i (PX(1) at 678).
In April 2002, shortly after the publication of CQC’s report on Ocean House, Clifford Levy wrote a Pulitzer Prize-winning series of articles in the New York Times reporting on the “squalor and chaos” in large New York City adult homes, including the extraordinary number of deaths occurring in those facilities.4 See Clifford J. Levy, For Mentally Ill, Death and Misery, N.Y. Times, Apr. 28, 2002, §1, at A1; Levy, Here, Life is Squalor and Chaos, N.Y. Times, Apr. 29, 2002, at A1; Levy, Voiceless, Defenseless and a Source of Cash, N.Y. Times, Apr. 30, 2002, at A1. At twenty-six of the largest and most troubled homes in the city, there were 946 deaths documented from 1995 through 2001. Of those, over a third were individuals under the age of 60, including 126 between the ages 20 and 49. Levy, For Mentally Ill, Death and Misery, Apr. 28, 2002, §1, at A1. The Times’ analysis showed that the causes of death of these residents ranged from residents suffering heat exhaustion in their rooms during heat waves, to residents throwing 4 The New York Times earlier reported on “assembly line” prostate surgery being performed on unwitting residents of Leben Home. See Clifford J. Levy and Sarah Kershaw, Inquiry Finds Mentally Ill Patients Endured “Assembly Line” Surgery, N.Y. Times, Mar. 18, 2001, §1, at 1.
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themselves from rooftops, to residents succumbing to routinely treatable ailments such as burst appendixes and seizures. Id.
Inspection reports for many adult homes during the same seven-year period frequently noted “filthy and vermin-ridden rooms.” Id. The reports also noted the poor, and often fraudulent, record-keeping by administrators involving the residents’ money and care. For example, a 2001 State inspection of an adult home in Brooklyn noted that the operator was “routinely threatening residents.” Id. A 1999 inspection report from another adult home in Brooklyn documented that investigators refused fully to examine rooms because they were so foul. See Levy, Here, Life is Squalor and Chaos, at A1. Another report noted that an inspector encountered dead cockroaches when looking into medication boxes. Id.
In the spring of 2002, at the Governor’s direction, the State of New York commissioned another comprehensive review of adult homes. This review concluded that these facilities are inappropriate settings for individuals with mental illness and that these individuals should be served in integrated community-based programs. See Report of the Adult Care Facilities Workgroup (October 2002) (SX(4) 30-143). In particular, the report stated:
Although [the adult home] model may be effective and appropriate for some elderly New Yorkers who are physically frail, it does not provide adequate care and quality services to residents with psychiatric disabilities. Documented problems with quality of care and quality of life for a small segment of the industry date back to the 1970’s.
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Id. at i (SX(4) at 33).
II. Residents of Adult Homes Continue To Suffer Discrimination On The Basis Of Their Disability As the District Court extensively documented in its opinion, adult homes
still “have . . . some of the elements of a homeless shelter and some of the elements of a state hospital.” DAI, 653 F. Supp. 2d at 203 (SPA 93). Indeed, former Office of Mental Health (“OMH”) Senior Deputy Commissioner Linda Rosenberg testified the homes were “little ghettos” with residents “sitting out front [of] the adult home, smoking, going back in, sitting in the lobby, [with] not much going on and not much exposure to the rest of the world.” Id. Susan Bear, the Assistant Executive Director of a large New York City mental health provider (and witness for the State), similarly described the adult homes located in Coney Island as “community-based psychiatric ghettos.” Id. at 218 (SPA 102).
Adult homes implement strict, regimented programs that are designed to control nearly every aspect of the residents’ daily living. Their residents “line up to receive meals, medication, and money at inflexibly scheduled times during the day,” and “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.” Id. at 199, 224 (SPA 89-90, 114); see also id. at 214-15 (SPA 104-05). The failure to
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comply with the home’s daily regimen is met with swift punishment and retaliation. One resident testified about meal times at his facility being so strict that residents who were late did not eat. JA 166. The staff at adult homes have been known to refuse to provide medication if a resident misses the prescribed time for dispensing medication. JA 183, 187. Residents who fail to take their medication on time or to participate in the day programs organized by the homes are threatened with being sent to the hospital, kicked out of the home, sent to a nursing home, and denied their daily personal needs allowance. Id.
Privacy at the homes is nonexistent. Meals, medication, phone calls, and mail deliveries are announced over a public address system. DAI, 653 F. Supp. 2d at 200 (SPA 90). The residents’ mail is routinely opened before they receive it, particularly if the mail appears to pertain to pending litigation against the homes. JA 185-86. Staff at adult homes have copies of all the room keys and often simply enter the residents’ bedrooms without knocking. Adult homes restrict when and where residents may receive visitors, requiring visitors to sign in and state the purpose of their visit. DAI, 653 F. Supp. 2d at 201 n.72 (SPA 91 n.72); JA 186. One of the resident witnesses at trial explained that when Clifford Levy, reporter for the New York Times, visited him, he attempted to take Mr. Levy to his room and “was literally followed by staff who emphatically told [him that he really didn’t] want this person going in [his] room.” JA 164.
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Living conditions in the homes remain at sub-standard, and often deplorable, levels. A recent inspection report for the Garden of Eden facility detailed a bed bug infestation that had long gone unnoticed, notwithstanding the fact that several residents had visible bite marks and many more reported prolonged distress and discomfort. Office of Long-Term Care, New York State Department of Health, Garden of Eden Home Inspection Report 8-15 (Dec. 10, 2009) (“Garden of Eden Inspection Report”). The expert reports submitted by DAI noted that residents frequently complain about many of the same problems that were brought to light in the Hynes investigation in the late 1970s, including the staff’s failure to provide adequate meals, or even to maintain basic cleanliness and hygiene at the adult homes. See, e.g., Expert Report of Elizabeth Jones, April 5, 2006 at 6-7. Residents are actively discouraged from seeking employment, administering their own medication, or otherwise exercising any independence and autonomy in the homes. Expert Report of Kenneth Duckworth, April 6, 2009 (“Duckworth Report”) at 13-16 (SX(4) at 400-01).
Several witnesses testified at trial as to the improper financial relationships between the homes and health care providers, which were also highlighted in the CQC Reports. Ms. Rosenberg described the fiscal dependency between adult home operators and the providers that rent space in the homes to provide Medicaid-billable services to adult home residents. DAI, 653 F. Supp. 2d at 287-
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88 (SPA 176-77). She testified that some adult home residents were at times unaware that they had home health aides – aides who were employed by the agencies owned by the adult home operators and whose services were billed to Medicaid. Id. She also described 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. Id. Similarly, Dennis Jones, former top mental health official for the states of Indiana and Texas and current federal court monitor for the District of Columbia’s mental health system, identified Medicaid overutilization as a problem in adult homes. Id.
III. The Long-Standing Problems at Adult Homes Will Continue Unless the District Court’s Order Is Affirmed. As Mr. Jones noted, “decades of experience have shown that efforts to
improve adult homes are likely to have little effect” because the potential for fraud and abuse is inherent in the adult home model of care. Jones Report at 8 (SX(4) at 285). The record evidence made clear the State’s reluctance to institute reform that would bring the State in compliance with Title II. Indeed, in the year before the District Court’s ruling, officials continued the State’s referrals of psychiatric patients to adult homes notwithstanding the pending litigation. DAI, 653 F. Supp. 2d at 198 (Director of Case Management Services for the Office of Mental Health
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assured facilities operators “in whatever way we can help to facilitate referrals to the adult home we would work with you and do that”) (SPA 88).
Individuals with disabilities placed in adult homes have no meaningful choice in their lives because, as the District Court found, “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.” Id. at 201 (SPA 91). The residents’ intimidation and fear of reprisal is borne of the power differential between the staff and the residents, which can result in sanctions, and in some cases, overt abuse, for voicing complaints against the homes. Duckworth Report, at 11-12 (SX(4) at 398-99).
The intimidation and fear of retaliation reported by DAI’s experts and the resident witnesses are not isolated instances, but rather a pervasive feature of the adult home care system. The CQC’s 1990 Report found that residents filed “relatively few complaints despite the abundant, egregious, and persistent violations in some of these homes,” because they were “wary of provoking the wrath of the provider and jeopardizing their ‘home.’” New York State Commission on Quality of Care for the Mentally Disabled, Adult Homes Serving Residents with Metal Illness: A Study of Conditions, Services, and Regulation 42 (October 1990) (PX(1) at 49). The Times’ investigation revealed that there have also been reprisals against staff members and State inspectors who reported the
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falsifying of records and other misconduct at adult homes. See, e.g., Clifford J. Levy, Here, Life Is Squalor and Chaos, N.Y. Times, April 29, 2002 at A1; Clifford J. Levy, Voiceless, Defenseless And a Source of Cash, N.Y. Times, April 30, 2002 at A1. In a December 2003 letter to adult home facility operators, the Department of Health (“DOH”) stated that it “continues to receive complaints of threats and retaliation against residents by facility operators or staff when they have had contact with advocacy organizations, advocates or other parties.” Letter from New York State Department of Health to Adult Care Facility Operators, DAL-HCBC03-08 at 2 (December 10, 2003). The latest inspection report for the Garden of Eden home illustrates the extent to which the homes exploit and abuse their control over residents:
Resident #1 through Resident #11 each expressed to the investigator that they were afraid to express their fears and anxieties to the operator and administrator because they were terrified of retaliation . . . Each of the 11 residents detailed the operator’s threats to them being put out onto the street, forced to go to a hospital, forced to go to a nursing home, if they ever expressed their dislike . . . . Garden of Eden Inspection Report at 1-3. Efforts to make adult homes cleaner, safer, and more rehabilitative do not change the power dynamic within adult homes. Duckworth Report at 11-12 (SX 4 at 398-99). Even when the residents are able to overcome their fear of retaliation and approach the staff about alternatives, they often find themselves confronted with a hostile administration with contrary interests. JA 157-58. Adult homes are
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private, for-profit entities for which the principal source of revenue – federal and State funding – depends on the extent to which the residents, as the vehicles for that funding, can be persuaded to remain at the adult home. DAI, 653 F. Supp. 2d at 256, 259 (SPA 146, 149). Most adult home residents pay for all or part of the cost of their housing with Supplemental Security Income (“SSI”), which is jointly funded by the State and the federal government. Id. at 283 (SPA 173). The homes also receive Quality Incentive Payments (“QuIP”) – grants awarded to adult homes based on the number of SSI-eligible residents living in the home. QuIP funds go directly to adult home owners and operators, not to adult home residents, for capital improvements and for the training and education of adult home staff. Legislative appropriations and grants for improving the infrastructure of the adult homes are yet another source of income. Through the “EnAbLE” program – Enhancing Abilities and Life Experiences – DOH has provided further grants of up to $100,000 to adult homes to provide certain activities and services within the facilities. Id. at 292-93 (SPA 182-83). Finally, as noted in Section II supra, the homes also share in the Medicaid payments received by on-site or affiliated health care providers.
Adult home operators therefore have financial interests that are directly at odds with assisting residents in locating and applying for alternative settings. At trial, residents described their unsuccessful attempts to obtain assistance from
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social workers or treatment professionals at adult homes – one testified as to

receiving “very, very little” information despite repeated requests specifically for

information on alternative housing. JA 157. Given this evidence, the District

Court was correct to conclude that “Adult Homes (and the treatment providers

employed by them) have no incentive to assist them in moving to alternative

housing. . . . [C]ase managers and other providers have actually discouraged Adult

Home residents who seek to move.” DAI, 653 F. Supp. 2d at 259 (SPA 149).

CONCLUSION

For the reasons stated herein and in the briefs submitted by Disability

Advocates, Inc. and the United States, this Court should affirm the District Court’s

judgment and remedial order to end the decades-long discrimination against

individuals with disabilities living in adult homes.

Submitted October 13, 2010 New York, New York

/s/ Peter K. Vigeland Peter K. Vigeland Michael Bongiorno David F. Olsky Omar Khan Natalie Rastin Leizel A. Ching WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE This brief contains 4,980 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and consequently complies with Fed. R. App. P. 32(a)(7)(B). 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 has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 (part of the MS Office Professional Edition 2003 edition) in Times New Roman 14-point font.
/s/ Peter K. Vigeland Peter K. Vigeland

Case: 10-235 Document: 298 Page: 30 10/13/2010 124005 30
CERTIFICATE OF SERVICE I hereby certify that on this 13th day of October, 2010, I 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 all Filing Users.
Additionally, I caused a courtesy pdf version and two courtesy paper copies
of the foregoing Brief to be sent via electronic mail and overnight delivery service
to:
Christopher M. Egleson Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, New York 10036
Cecelia C. Chang Assistant Solicitor General Office of the Attorney General of the State of New York 120 Broadway New York, NY 10271
/s/ Peter K. Vigeland Peter K. Vigeland

 
 Case: 10-235 Document: 293 Page: 1 10/13/2010 123868 51
10-235-cv(L)
10-251-cv(CON), 10-767-cv(CON), 10-1190-cv(CON)

United States Court of Appeals

FOR THE SECOND CIRCUIT
d DISABILITY ADVOCATES, INC., UNITED STATES OF AMERICA,

—against—

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 OF DICK THORNBURGH, FORMER GOVERNOR AND UNITED STATES ATTORNEY GENERAL, AND 30 FORMER STATE
MENTAL HEALTH COMMISSIONERS, AS AMICI CURIAE, IN SUPPORT OF PLAINTIFFS-APPELLEES

ROBERT J. ALESSI GREGORY G. NICKSON JEFFREY D. KUHN DEWEY & LEBOEUF LLP 99 Washington Avenue, Suite 2020 Albany, New York 12210 (518) 626-9000

STEVEN J. SCHWARTZ MOLLIE RICHARDSON CENTER FOR PUBLIC REPRESENTATION 22 Green Street Northampton, Massachusetts 01060 (413) 586-6024

Attorneys for Amici Curiae

Case: 10-235 Document: 293 Page: 2 10/13/2010 123868 51
TABLE OF CONTENTS
INTEREST OF AMICI..............................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................5
I. NEW YORK STATE OFFICIALS AND AGENCIES ARE SUBJECT TO THE INTEGRATION MANDATE OF THE ADA BECAUSE THEY PLAN, ADMINISTER, FUND, AND MAINTAIN NEW YORK'S MENTAL HEALTH SYSTEM FOR PERSONS WITH PSYCHIATRIC DISABILITIES, INCLUDING ITS SEGREGATED INSTITUTIONS LIKE ADULT HOMES. .....................................................5
A. New York Plans, Administers, Develops, and Maintains Its Mental Health System, Including Adult Homes, Through Multiple State Agencies and Entities.....................................................6
B. New York Cannot Avoid Its Duty to Comply with the Integration Mandate of the ADA By Relying Upon Private Agencies and Entities Like Adult Homes to Provide Mental Health Residential and Treatment Services.....................................................11
II. NEW YORK'S ADMINISTRATION OF ITS MENTAL HEALTH SYSTEM, WHICH DELIBERATELY INCORPORATES AND RELIES UPON SEGREGATED ADULT HOMES AS A CORE COMPONENT OF THAT SYSTEM, VIOLATES TITLE II OF THE ADA. ...............................................................................................13
A. Adult Homes Are a Core Component of New York's Mental Health System..........................................................................13
1. New York Intentionally Implemented a Policy to Include Segregated Adult Homes as a Core Residential Treatment Setting for Persons with Psychiatric Disabilities.......................13
2. New York Continues to Rely Upon Segregated Adult Homes as a Core Component of Its Mental Health System. ...........................................................................14
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B. New York's Deliberate Reliance on Segregated Adult Homes to Provide Both Mental Health Residential and Treatment Services Violates the ADA.................................................................................19
C. New York's Design, Development, and Administration of its Mental Health System Fails to Include a Sufficient Number of Integrated Community Living Alternatives, Thereby Forcing Persons with Psychiatric Disabilities to Enter and to Continue to be Confined in Segregated Adult Homes. .......................................24 1. New York Does Not Fund a Sufficient Capacity of Integrated Community Living Arrangements to Serve Adult Home Residents With Psychiatric Disabilities, Leaving Them With No Meaningful Choice But to Remain in Segregated Institutions. ............................................24 2. New York Has Established a Process to Access Its Limited Integrated Community Living Arrangements Which Effectively Precludes Adult Home Residents from Leaving Segregated Institutions...............................................................26 3. Because of New York's Lack of Integrated Community Living Alternatives, Persons with Psychiatric Disabilities Have Little Choice About Whether to Enter Adult Homes or to Remain There, and Thus the Placements Are Not Truly Voluntary.......27
CONCLUSION ........................................................................................................30
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TABLE OF AUTHORITIES FEDERAL CASES
Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) .................................................... passim
Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) .................................................... passim
Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003) ....................................................12, 21, 22, 23
Frederick L. v. Department of Public Welfare of Pennsylvania, 364 F.3d 487 (3d Cir. 2004)............................................................................22
Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002)............................................12 Olmstead v. L.C., 527 U.S. 581 (1999)............................................................ passim Pennsylvania Department of Corrections v. Yeskey,
524 U.S. 206 (1998)........................................................................................12 Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) ............................................22 Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999) .................................12, 22 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)..........................................12, 22
STATE CASES State of Connecticut Office of Protection and Advocacy for
Persons with Disabilities v. State of Connecticut, 2010 WL. 1416146 (D. Conn. 2010) ..............................................................22
FEDERAL STATUTES 42 U.S.C. § 12132....................................................................................................20 42 U.S.C. § 12182(b)(1)(B) .................................................................................1, 20
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FEDERAL REGULATIONS 28 C.F.R. § 35.130 .....................................................................................................1 28 C.F.R. § 35.130(d) ..............................................................................................20
STATE STATUTES N.Y. Const. Art. XVII, § 4.......................................................................................10 N.Y. Mental Hyg. L. § 7.07 .......................................................................................9 N.Y. Mental Hyg. L. § 31.01 .....................................................................................9 N.Y. Mental Hyg. L. § 31.04 .....................................................................................9 N.Y. Soc. Serv. Law § 363-a(1)-(4).........................................................................10
STATE REGULATIONS 18 N.Y.C.R.R. § 485.3(a)(1)....................................................................................10 18 N.Y.C.R.R. § 485.3(a)(3)......................................................................................9 18 N.Y.C.R.R. § 485.3(a)(5)....................................................................................10 18 N.Y.C.R.R. § 485.3(b)(1) ...................................................................................10 18 N.Y.C.R.R. § 485.5(c) ....................................................................................9, 10 18 N.Y.C.R.R. § 485.5(l) .........................................................................................10 18 N.Y.C.R.R. § 485.5(m) .......................................................................................10
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INTEREST OF AMICI1 This case raises issues of great importance to the mental health and disability communities throughout this country. As a former governor,2 two former New
York State commissioners of mental health, and thirty former commissioners and
directors of other state mental health agencies, amici are uniquely positioned to
speak to many of the issues presented by this case, including how public systems
of care may operate in a manner that best addresses the needs of people with
disabilities. As a result of our considerable experience, which includes managing
state systems of care as well as serving people with disabilities directly, amici have
a breadth of understanding about the background and facts of this case, such as the
mechanisms states use to fund disability services and the long and tortured history
of the states' treatment of people with mental disabilities.
Amici have been involved with every aspect of our respective state service
systems, including planning and developing services, collaborating with other state
agencies to implement service systems, overseeing the closing of institutions, 1 The parties to this action have consented to the filing of this brief. Pursuant to
Local Rule 29.1, no party's counsel authored any part of this brief, no party to this action or their counsel contributed money to fund preparing or submitting this brief, and no other person or entity other than counsel for amici curiae contributed money to fund preparing or submitting this brief. 2 Former Pennsylvania governor Dick Thornburgh subsequently was appointed the Attorney General of the United States. In that capacity, he drafted, promulgated and implemented the Americans with Disabilities Act (ADA) integration regulations, 42 U.S.C. § 12182(b)(1)(B); 28 C.F.R. § 35.130, which are at the core of this case.

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developing new community care alternatives, managing limited state appropriations, and providing services in the most effective and efficient manner. As state officials responsible for administering state mental health agencies, amici are committed to implementing the integration mandate of Title II of the ADA, consistent with the Supreme Court's instructions in Olmstead v. L.C., 527 U.S. 581 (1999).
Amici are keenly aware of the administrative, fiscal, and programmatic challenges of reducing and eliminating segregation in our disability service systems and have developed an array of methods and strategies for fulfilling the mandate of the ADA. In order to expand our limited state resources, amici have depended heavily on federal Medicaid revenue, and have developed methods of administering and financing integrated mental health services in conjunction with our state Medicaid agencies and other state entities. In recognition of our limited resources to operate public facilities and services, amici have relied upon private providers – mostly non-profit agencies but occasionally for-profit companies – to deliver disability services. While we shared our responsibilities with other state entities and private providers, amici recognize that our agencies and states remain ultimately responsible for complying with the integration mandate of the ADA.
Amici are deeply troubled by New York's argument that its actions do not violate Title II of the ADA because they do not directly operate adult homes,
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because they are not responsible for certain aspects of adult homes even though they provide mental health support services in the homes, and because they do not explicitly mandate the segregation of persons with psychiatric disabilities in these homes. The district court properly recognized that New York, like all of our states, is directly involved in planning, administering, funding, and overseeing public mental health services, including incorporating mental health treatment in residential treatment settings like adult homes. The lower court correctly held that this combination of mental health settings and services is encompassed by the ADA. It properly concluded that New York's excessive reliance upon large, segregated adult homes,3 and its failure to offer services in the most integrated setting violates the ADA.
If New York's argument were accepted by this Court, it would eviscerate Congress' command and the Supreme Court's directive to prevent the unnecessary segregation of persons with disabilities. In fact, it even could provide other states with a road map to avoid the requirements of federal law by sharing the responsibility for providing residential and non-residential services with other public and private entities. Amici urge the Court to reject this argument and affirm the district court's judgment. 3 The district court's decision, and this brief, focus exclusively on twenty-eight
adult homes in New York City with more than 120 beds and in which 25% of the resident population or twenty-five residents (whichever is fewer) have a mental illness (the "adult homes").
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For a listing of the individual amici, please see the Appendix. SUMMARY OF THE ARGUMENT
Consistent with state law, New York's Department of Health (DOH), Office of Mental Health (OMH), governor and commissioners of DOH and OMH (hereafter "New York" or "the State") plan, administer, fund, monitor, and regulate the State's mental health system, which includes public institutions, segregated adult homes, and an array of integrated community programs and services. Neither the fact that New York, like virtually all states, allocates the responsibility to administer and fund this system between several state agencies nor the fact that it relies upon private providers to deliver mental health services exempts it from complying with Title II of the ADA.
New York deliberately incorporates large, segregated adult homes as a core residential treatment component of its mental health system, and historically relied upon these institutions to depopulate its public psychiatric hospitals and "transinstitutionalize" its residents. Since the adult homes in this case undisputedly are segregated "mini-institutions" that provide a combination of residential support services and mental health treatment to persons with psychiatric disabilities who cannot live on their own, the State's failure to offer adult homes residents meaningful access to its integrated supported housing program violates the integration mandate of the ADA.
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ARGUMENT
I. NEW YORK STATE OFFICIALS AND AGENCIES ARE SUBJECT TO THE INTEGRATION MANDATE OF THE ADA BECAUSE THEY PLAN, ADMINISTER, FUND, AND MAINTAIN NEW YORK'S MENTAL HEALTH SYSTEM FOR PERSONS WITH PSYCHIATRIC DISABILITIES, INCLUDING ITS SEGREGATED INSTITUTIONS LIKE ADULT HOMES.
The district court correctly concluded that New York's administration of its mental health system, which relies on large, segregated adult homes4 to provide residential and treatment services to thousands of persons with mental illness whose individual needs can be met in more integrated settings like supported housing, violates the ADA's integration mandate. Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 187-188 (E.D.N.Y. 2009) ("DAI II"). Based upon their experience planning, administering, funding, and delivering mental health services, amici strongly support the district court's application of the ADA to New York's adult homes, and similarly support the district court's determination that supported housing is a professionally-accepted and effective method for providing mental health treatment in the community.
4 Thus, it is critical to understand that the reference to "adult homes" in the context of New York's system describes large, heavily-populated facilities that have almost all of the attributes of institutional settings. In virtually every sense, these are "institutions" and not "homes."
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A. New York Plans, Administers, Develops, and Maintains Its Mental Health System, Including Adult Homes, Through Multiple State Agencies and Entities.
New York, like virtually all states, offers an array of mental health services
which are provided in an array of residential treatment settings and locations. It
operates twenty-five state psychiatric hospitals that segregates and confines over
4,000 persons with psychiatric disabilities. See 2008 Update to the OMH 2006-
2010 Statewide Comprehensive Plan for Mental Health Services,
http://www.omh.state.ny.us/omhweb/Statewideplan
/2008/update/2008_update.pdf. New York also funds twenty-eight segregated
adult homes in New York City that serve over 4,000 persons with disabilities, with
almost three times this number in adult homes throughout the state. Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 296 (E.D.N.Y. 2009) ("DAI I").5
It manages integrated residential settings for over 30,000 individuals with
psychiatric disabilities, including supported housing for over 13,000 individuals.
5 In its summary judgment motion below, New York argued that Title II was inapplicable to adult homes because the State's role in licensing, inspecting, and monitoring them is not a "service, program, or activit[y]." See DAI I, 598 F. Supp. 2d at 313. It appears that New York has abandoned that argument on appeal, and now concedes both that adult homes are part of its service system and that DAI's claims relate to state services, programs, or activities. Appellants' Br. 29, 40, 41, 46, 48, 64. This concession is inevitable given the State's choice to fund adult homes as a residential treatment setting for persons with psychiatric disabilities who cannot live independently, and then to incorporate publicly-funded mental health treatment into the adult homes.
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DAI II, 653 F. Supp. at 273. New York, like virtually all states, allocates the responsibilities to plan,
administer, fund, and manage this array of mental health services and settings among various state agencies, including OMH, DOH (which is also the state Medicaid agency), and related human service agencies. Services and settings are funded by state and federal revenues, most significantly through the federal Medicaid program that is operated by DOH. Various agencies license, regulate, and oversee the appropriateness of services provided to persons with psychiatric disabilities, including the safety and appropriateness of the settings where they reside. Some of the settings, like public psychiatric hospitals, are operated directly by governmental entities, such as OMH or the City of New York. Others, like adult homes and supported housing, are funded by public agencies but operated by private corporations. Many of these private entities are charitable corporations, like the non-profit supported housing providers. Others are for-profit businesses, like the adult homes.
Under state law, New York, like all states, is responsible for administering a mental health service system. It cannot evade its federal statutory obligations simply by dividing these functions between various state agencies and public entities. Nor can it avoid the commands of the ADA by employing private providers – either non-profit or for-profit – to fulfill its statutory duties to its
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citizens with disabilities. See § I(B), infra. Based upon the facts and statutory duties of various state agencies, the
district court found that New York has created a mental health system that deliberately includes adult homes and which depends on adult homes to reduce its state hospital population. DAI I, 598 F. Supp. 2d at 295-97. The court properly held that New York, including the governor, OMH, DOH, and the commissioners of these agencies, have a shared responsibility for planning, administering, funding, and maintaining the mental health system that relegates persons with psychiatric disabilities to adult homes. Id. at 317-18. It did so both in reliance on state laws and policies that prescribe this allocation of functions, as well as the reality that New York, like other states, elects to divide these responsibilities between various state agencies and to depend upon private entities to directly provide the services and to operate the settings. Id. Finally, it concluded that New York's actions in developing, supporting, overseeing, and relying upon adult homes as a segregated residential service setting for persons with psychiatric disabilities violates the ADA. DAI II, 653 F. Supp. 2d at 314.
OMH and DOH are the two state agencies with the primary responsibility for planning, administering, funding, and maintaining New York's mental health system and the segregated adult homes in that system. OMH plans and develops mental health services, decides upon the settings where services will be delivered,
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funds and oversees a range of mental health residential and treatment services, and contracts with private providers to deliver most of these services. See N.Y. Mental Hyg. L. § 7.07; DAI I, 598 F. Supp. 2d at 313. As summarized by the district court, "OMH is responsible for planning what mental health services the State will provide, and allocating resources to those services." Id. at 314.
OMH also sets standards and issues regulations governing the quality of mental health service providers, including those which provide mental health services in the adult homes. See N.Y. Mental Hyg. L. §§ 31.01, 31.04. In addition, OMH funds, oversees, licenses and credentials providers of mental health services to adult home residents with psychiatric disabilities and "provides treatment services directly inside some adult homes." DAI I, 598 F. Supp. 2d at 315-16.
DOH plays a major role in developing, funding, regulating, and overseeing mental health services and settings. Id. at 314-15. In order to ensure that there are a sufficient, but not an excessive, number of adult home beds, DOH issues operating certificates for adult homes, which must be renewed every four years. 18 N.Y.C.R.R. §§ 485.3(a)(3), 485.5(c). To the extent that persons with psychiatric disabilities are needlessly institutionalized in adult homes, DOH has the authority and the duty to certify fewer beds than currently exist.
New York's Medicaid program is administered by DOH, which pays for
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most of the mental health services provided to most of OMH's clients. See N.Y. Soc. Serv. Law § 363-a(1)-(4). Specifically, DOH funds the mental health services for adult home residents, while the residents use other federal funding from the Social Security Administration to pay for services like room and board, which is not covered by Medicaid. DAI II, 653 F. Supp. 2d at 282-283. Then New York pays a targeted SSI supplement for adult home residents to pay the additional costs of their residential services in the adult homes. Id.
Both DOH and OMH share the authority and responsibility to monitor and inspect adult homes. N.Y. Const. Art. XVII, § 4; 18 N.Y.C.R.R. § 485.3(a)(1), (a)(5), (b)(1). If an adult home does not comply with state regulations or if the agency determines that it would be in the public interest, DOH has the authority and duty to revoke or suspend the home's operating certificate. 18 N.Y.C.R.R. § 485.5(c), (l), (m).
Thus, through the coordinated administration of OMH and DOH, and with the direct support of the State Medicaid program, New York plans, funds, regulates, and monitors adult homes as a critical component of its mental health service system. These state activities are clearly encompassed within the scope of Title II of the ADA. Moreover, given New York's decision to rely upon adult homes as a residential treatment setting for persons with psychiatric disabilities who cannot live independently; to fund, certify, and incorporate these homes in its
10

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mental health system; and to provide mental health services directly in the homes, adult homes are clearly a state service within the meaning of Title II of the ADA. Therefore, the district court properly concluded that New York must comply with Title II's integration mandate with respect to residents of its adult homes. DAI I, 598 F. Supp. 2d at 317-18.
B. New York Cannot Avoid Its Duty to Comply with the Integration Mandate of the ADA By Relying Upon Private Agencies and Entities Like Adult Homes to Provide Mental Health Residential and Treatment Services.
In order to provide services to individuals with psychiatric disabilities, New York, like virtually all states, does not rely entirely – or even primarily – on statefunded and operated service settings, such as state psychiatric hospitals. Rather, New York has developed a service network that combines public facilities, private for-profit corporations, and non-profit organizations to deliver residential and treatment services. Its adult homes and other segregated institutions (other than public psychiatric hospitals) are operated by corporations that are organized to generate profits, while most of its community-based mental health services, such as supported housing, are run by charitable, non-profit organizations. DAI I, 598 F. Supp. 2d at 295. This combination of delivery mechanisms, as well as the precise delegation of services to different entities, does not relieve New York from its obligation to comply with Title II of the ADA, and specifically to ensure that
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services are provided in the most integrated setting. DAI I, 598 F. Supp. 2d at 31618 ("Title II covers all programs, services, and activities of a state or local government entity 'without any exception.'") (citing Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 209 (1998)). If it did, states would simply outsource their human services systems to avoid federal law.
Other circuit courts of appeals consistently have held that states cannot escape their duty to comply with Title II by utilizing private providers to deliver disability services. Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (Title II's integration mandate is applicable to residents of community-based, private "adult homes"); Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181 (10th Cir. 2003) (policy which required persons to be admitted to private nursing facilities in order to obtain certain pharmacy benefits not available to individuals living in private community programs violated Title II of the ADA). Lower courts that have addressed the issue concur. See Martin v. Taft, 222 F. Supp. 2d 940, 981 (S.D. Ohio 2002) ("the ADA applies to 'services, programs and activities,' and liability does not hinge upon whether the setting in question is owned or run directly by the State."); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (in class action seeking integrated community services under the ADA, the court found it "immaterial" that "many Plaintiffs reside in private rather than public nursing facilities").
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Here, the district court recognized that: "Olmstead … 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." DAI I, 598 F. Supp. 2d at 316. New York "cannot evade its obligation to comply with the ADA by using private entities to deliver some of those services." Id. at 318. The State is required by Title II to administer its service system so that individuals with psychiatric disabilities receive services in the most integrated setting possible, even if it chooses to rely on private providers such as adult homes to deliver residential and treatment services. II. NEW YORK'S ADMINISTRATION OF ITS MENTAL HEALTH
SYSTEM, WHICH DELIBERATELY INCORPORATES AND RELIES UPON SEGREGATED ADULT HOMES AS A CORE COMPONENT OF THAT SYSTEM, VIOLATES TITLE II OF THE ADA.
A. Adult Homes Are a Core Component of New York's Mental Health System.
1. New York Intentionally Implemented a Policy to Include Segregated Adult Homes as a Core Residential Treatment Setting for Persons with Psychiatric Disabilities.
Prior to 1970, New York confined 93,000 citizens with psychiatric disabilities in its segregated state hospitals. DAI I, 598 F. Supp. 2d at 297 n.7. During the next 30 years, New York, like most states, reduced the population of its psychiatric institutions in response to improvements in mental health care and the
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escalating costs of maintaining state-operated psychiatric hospitals. However, rather than create a network of integrated community supports and services as many other states did, New York made a "'policy decision' to serve a large number of former patients in adult homes" and chose to rely on the availability and economic interests of private, for-profit corporations to operate adult homes. DAI I, 598 F. Supp. 2d at 296-97; see also DAI II, 653 F. Supp. 2d at 197; Tr. 640 (Rosenberg). In order to achieve this policy objective, New York "licensed private providers to create adult homes using under-utilized facilities, such as hotels, motels, YMCAs, and other similar buildings." DAI I, 598 F. Supp. 2d at 297.
New York's transfer of thousands of individuals with psychiatric disabilities from state hospitals to adult homes was simply a massive trans-institutionalization, not based upon individualized determinations of the benefits of integrated community living. See S-150 (D. Jones Report) at 7. Rather than developing sufficient community-based services for citizens with psychiatric disabilities who were discharged from state hospitals, New York chose the more expedient policy of relying on the private, for-profit adult home industry to effectuate a dramatic shift in its service system. Tr. 1004-05 (D. Jones).
2. New York Continues to Rely Upon Segregated Adult Homes as a Core Component of Its Mental Health System.
New York now administers and maintains a service delivery network that
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relies on adult homes as a core component for providing residential and treatment services to individuals with psychiatric disabilities. New York officials recognize that these adult homes are "de facto mental institutions," "satellite mental institutions," and "mini-institutions." DAI I, 598 F. Supp. 2d at 297; Tr. 643 (Rosenberg).
New York's reliance on these "de facto mental institutions" to serve individuals with psychiatric disabilities has continued unabated since the 1970s, despite widespread evidence of mismanagement, abuse and neglect, deplorable living conditions, and fraud. S-150 (D. Jones Report) at 7. Additionally, even after the enactment of the integration mandate in Title II of the ADA, New York has continued to rely on adult homes as an important part of its mental health system. While the number of transfers from state hospitals has substantially decreased, due mostly to the reduction of the number of people remaining in state hospitals, New York continues to include adult homes as part of its residential service alternatives for people leaving other institutions.
New York's excessive reliance on adult homes – both to transinstitutionalize former state hospital residents and to institutionalize a new generation of persons with psychiatric disabilities – is unique in the nation. Few states have so blatantly incorporated privately-operated, state-funded "miniinstitutions" directly into their mental health system, nor continued to rely so
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heavily on these segregated institutions to confine more than 4,000 of their citizens with psychiatric disabilities.
Through its consistent and deliberate policy choices, funding priorities, and limited service options, New York intentionally continues to incorporate segregated adult homes as a key residential setting for persons with psychiatric disabilities. DAI I, 598 F.Supp.2d at 296. New York subsidizes each resident's placement in an adult home by providing an annual supplement of $8,328 for SSI recipients who live in adult homes. Appellants' Br. 7. New York also makes significant annual contributions to adult homes for capital improvements, staff training, and treatment programs. Id. at 9. New York refers people with disabilities to these homes and then provides mental health services while they remain in the homes. New York also makes it difficult for persons with disabilities to leave these adult homes for more integrated settings. In fact, New York has excluded adult home residents from its supported housing program by prioritizing other individuals and populations for its limited supported housing slots. DAI I, 598 F. Supp. 2d at 355.6 Only in 2007 did New York modify that exclusionary policy, and then only to allow 60 adult home residents to move to supported
6 The district court found that OMH has "designated 9,000 new community housing beds for homeless individuals with mental illness." Id. (emphasis added).
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housing.7 Id. Thus, New York's policy to maintain adult homes as a major provider of
residential and treatment services for individuals with psychiatric disabilities is deliberate and coordinated. In order to reduce state expenditures for mental health services, New York chose to shift persons with mental illness from its stateoperated hospitals to adult homes. Although New York has reduced the number of individuals who are trans-institutionalized from state hospitals to adult homes in recent years, persons with psychiatric disabilities still are discharged to adult homes from shelters, hospitals, and nursing facilities. DAI I, 598 F. Supp. 2d at 296.
For almost two decades, New York has been on notice that its support and maintenance of adult homes contravenes the basic goal of the ADA and the specific command of its integration mandate. During the past ten years, the State has commissioned several revealing studies of adult homes and their residents, which document the State's perpetuation of the unnecessary segregation of thousands of adult home residents.
In early 2002, at the governor's direction, New York commissioned a
7 Dennis Jones, a former mental health commissioner in Texas, testified that he had reviewed several emails from state officials to adult home operators indicating that the state would be happy to facilitate referrals into the adult homes to replace the individuals who left as part of the 60 bed set-aside. Tr. 1078-79 (D. Jones).
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Workgroup to complete "a comprehensive review of adult homes, including relevant issues of policy, program and financing." S-150 (D. Jones Report) at 13. The Workgroup, which included staff members from OMH, DOH and the Commission on Quality of Care, "concluded that 6000 persons (or 50% of the adult home residents with psychiatric disabilities) could move to a more integrated setting," and "proposed a seven-year time line for implementation." Id. at 14-15. However, state officials decided not to implement the recommendation, and instead elected to maintain New York's historical reliance upon, and support for, segregated adult homes.
In 2004, New York contracted with researchers from Columbia Presbyterian to complete individual assessments of adult home residents "for the express purpose of determining the demographic, clinical and functional (health and mental health) status of the persons living in impacted adult homes." Id. at 11. More than half of the adult home residents indicated that they would prefer to live somewhere other than an adult home, but New York officials forbade Columbia Presbyterian from further analyzing any of the data collected. Tr. 1035 (D. Jones); S-150 (D. Jones Report) at 12.
Rather than engaging in a thoughtful planning process to discharge patients from segregated state hospitals to integrated community settings, New York instead trans-institutionalized thousands of citizens with psychiatric disabilities to
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segregated adult homes. Since then, New York has deliberately relied on adult homes to provide residential and treatment services to persons with psychiatric disabilities, and adult homes have expanded to become a core part of New York's mental health system.8 Consequently, New York is directly responsible for administering its mental health system in a manner that segregates thousands of individuals in adult homes.
B. New York's Deliberate Reliance on Segregated Adult Homes to Provide Both Mental Health Residential and Treatment Services Violates the ADA.
New York cannot deny its role in creating, and its legal responsibility for maintaining and funding, its mental health system that incorporates segregated adult homes. New York made a deliberate policy decision to rely upon adult homes to house and treat its citizens with psychiatric disabilities. It maintains persons with psychiatric disabilities in these homes. It provides significant funding to these homes. It has the authority to certify the needed capacity for these homes, and the duty to monitor, inspect, regulate, and oversee these homes. As a result, it
8 New York's proffered fundamental alteration defense to its ADA violations reveals that its service delivery system is heavily dependant on adult homes. New York's argument that reallocating resources to integrated living arrangements like supported housing would result in a reduction in the number of adult homes, Appellants' Br. 64-65, acknowledges that New York's funding policy is directly responsible for maintaining the large network of adult homes and that the system, as presently administered, is heavily dependant on the State's continued support of its adult home industry. Id.
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is inconsistent with the language of Title II of the ADA, as interpreted by the Supreme Court in Yeskey and Olmstead, for New York to claim it is not obligated to comply with the ADA's integration mandate with respect to residents of these homes.
Title II of the ADA prohibits discrimination by reason of disability. 42 U.S.C. § 12132. One such form of discrimination is violation of the ADA's "integration mandate." Olmstead, 527 U.S. at 592, 600-601. The integration mandate – as expressed in the statutory language of the ADA (42 U.S.C. § 12182(b)(1)(B)), the Attorney General's regulations implementing Title II (28 C.F.R. § 35.130(d)), and the Supreme Court's decision in Olmstead – requires that persons with disabilities receive services in the most integrated setting appropriate to their needs. In Olmstead, the Supreme Court held that where a communitybased placement is appropriate for a person with mental disabilities, the "unjustified institutional isolation" of such a person violates the mandate of Title II and "is properly regarded as discrimination based on disability." 527 U.S. at 594600.
New York has created a package of mental health residential and support services that are only available in a segregated adult home. For persons with psychiatric disabilities who cannot live independently, who need structured assistance in their residential setting, and who need mental health treatment for
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their disabling condition, New York relies upon segregated adult homes as one core option. Just like a state's decision to unnecessarily segregate persons with psychiatric disabilities in a publicly-operated state hospital or a privately-managed institution violates the ADA, see Olmstead, 527 U.S. at 601, and Fisher, 335 F.3d at 1181, New York's policy of offering this package in segregated adult homes does so as well.
New York erroneously argues that Olmstead requires that a violation of the ADA's integration mandate must involve "state-mandated segregation."9 Appellants' Br. 30-31. The term "state-mandated segregation" does not appear anywhere in the Olmstead decision, nor does New York provide any other citation for its erroneous characterization of the Court's Olmstead holding. In fact, New York's pre-condition for an ADA violation – state-mandated segregation – is neither clear nor correct. It clearly cannot mean that the state must require the segregation of persons with psychiatric disabilities, through judicial commitment or other forms of coercion, since even Olmstead did not involve such involuntary detention.10 Olmstead, U.S. 527 at 593. Nor can it mean, as New York attempts to
9 New York invents a definition of "state-mandated segregation" to include two "narrow types of state action [that] constitute unlawful discrimination under Title II: (1) conditioning access to state services on institutional confinement, and (2) unwarranted confinement in segregated state institutions." Appellants' Br. at 28-29.
10 No case supports this narrowing of the ADA and Olmstead plainly rejects it. In Olmstead, both plaintiffs, L.C. and E.W., were voluntarily admitted to the state
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argue, Appellants' Br. 29, that prohibited segregation under the ADA can only take
place in a "segregated state institution." See, e.g., Radaszewski v. Maram, 383
F.3d 599 (7th Cir. 2004); Frederick L. v. Dep't of Public Welfare of Pennsylvania,
364 F.3d 487 (3d Cir. 2004); Fisher, 335 F.3d at 1179 n.3; Townsend, 328 F.3d
511.
But even under its own invented test, New York's maintenance of segregated
adult homes violates the ADA. Because New York administers, funds, and
maintains a mental health system that relies so heavily on segregated adult homes
to provide a combination of residential and treatment services to persons with
psychiatric disabilities who cannot live independently, and because New York
denies residents of these homes services in the most integrated setting appropriate
for their needs, New York most certainly does "mandate segregation."
The overwhelming evidence demonstrates that New York funds and
maintains adult homes as a residential setting that provides monitoring and support
hospital in question. Other courts have applied the integration mandate to individuals who "voluntarily" reside in nursing facilities solely because the state does not provide access to community-based services, even though those individuals have not been "involuntarily" confined. See e.g., State of Connecticut Office of Protection and Advocacy for Persons with Disabilities v. State of Connecticut, 2010 WL 1416146, *4-6 (D. Conn. 2010) (voluntary nursing facility residents have Title II claim for community-based services); Rolland, 52 F. Supp. 2d at 236-37 (refusing to dismiss complaint by nursing facility residents that state officials violated the ADA by failing to provide appropriate community-based services, which resulted in unnecessary institutionalization).
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to individuals who cannot live independently. DAI I, 598 F. Supp. 2d at 351. Persons with psychiatric disabilities must enter adult homes in order to access the combined residential and treatment services that they require. See Fisher, 335 F.3d at 1179 n.3. Because New York "packages" these residential and support services in segregated adult homes, New York violates the ADA by requiring persons to live in adult homes in order to receive both the special SSI supplement and the Medicaid-funded mental health services that they need.
Similarly, because thousands of residents could receive the same support services in a far more integrated setting, like supported housing, New York violates the ADA by unnecessarily maintaining them in segregated adult homes and failing to offer them an integrated alternative.11 See § II(C), infra. New York's administration of its mental health system, which deliberately incorporates adult homes as a core component of that system and then conditions the receipt of a combination of residential support and mental health treatment services on segregation in an adult home, is directly responsible for the unjustified institutional isolation of persons with psychiatric disabilities.
11 Both plaintiffs in Olmstead, like many adult home residents, wanted to leave the facility in order to be treated in the community, but the state's failure to provide access to community services left them no choice, in violation of the integration mandate. 527 U.S. at 607.
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C. New York's Design, Development, and Administration of its Mental Health System Fails to Include a Sufficient Number of Integrated Community Living Alternatives, Thereby Forcing Persons with Psychiatric Disabilities to Enter and to Continue to be Confined in Segregated Adult Homes.
1. New York Does Not Fund a Sufficient Capacity of Integrated Community Living Arrangements to Serve Adult Home Residents With Psychiatric Disabilities, Leaving Them With No Meaningful Choice But to Remain in Segregated Institutions.
Through the deliberate actions of the defendants, adult home residents have
been virtually excluded from most community residential treatment programs and
all but a miniscule fraction of the supported housing placements. New York has
chosen to fund only 60 supported housing beds specifically for adult home
residents, even though there are thousands of persons with psychiatric disabilities
in adult homes who qualify for and need this program to avoid continued
segregation.12 DAI II, 653 F. Supp. 2d at 274-75. As Linda Rosenberg, a former
12 In 2007, without any involvement by the defendants and in part to counter the effects of the State's exclusionary policies, the New York Legislature allocated funding for 60 supported housing beds designated solely for adult home residents. DAI II, 653 F. Supp. 2d at 274. This belated access to supported housing pales in comparison to the number of adult home residents who need and prefer supported housing. The district court pointedly noted that "OMH did not propose or advance this initiative, and Defendants' witnesses testified that there is no plan to undertake a similar initiative in the future." Id. at 274-75. In light of the fact that adult home residents cannot access OMH's supported housing program because other groups are given a higher priority, "[o]nce the 60 supported housing beds from the set-aside are filled, the pipeline of supported housing beds for Adult Home residents will be closed." Id. at 275.
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senior OMH official, testified, individuals with psychiatric disabilities generally are admitted to adult homes because that is the only placement that is available, not because it is an appropriate placement. Tr. 658 (Rosenberg). Thus, by funding its mental health services and settings so that there are ample placements available in adult homes but only 60 supported housing slots, New York is directly responsible for thousands of its citizens remaining segregated in adult homes.
When OMH requests proposals and enters into contracts with providers, it identifies the specific populations or target groups that are eligible for the new supported housing. DAI II, 653 F. Supp. 2d at 273. State officials testified that they administer their residential system to ensure that only members of the priority populations receive supported housing, thereby making it very unlikely that other individuals will be able to access these services. Id. For most of the past two decades, residents of adult homes were explicitly excluded from all supported housing programs because they were not designated as a target population in any request for proposal. Id. A modest loosening of this exclusionary policy in 2005 did not alter the fact that adult home residents remained excluded from this and similar integrated residential services because other populations explicitly were afforded a higher priority. DAI II, 653 F. Supp. 2d at 274; see also DAI I, 598 F. Supp. 2d at 347. In fact, Ms. Rosenberg testified that the inclusion of adult home residents as a targeted population did not have "any impact on Adult Home
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residents' access to supported housing beds." DAI II, 653 F. Supp. 2d at 274; Tr. 662 (Rosenberg).
The ADA does not permit states to continue to maintain persons with disabilities in segregated institutions and deny them access to integrated programs that the state currently administers. While New York may have discretion to identify priorities for its mental health services and programs, it cannot do so in a manner that discriminates against persons living in segregated institutions like adult homes, and which relegates these individuals to indefinite confinement in those institutions.
2. New York Has Established a Process to Access Its Limited Integrated Community Living Arrangements Which Effectively Precludes Adult Home Residents from Leaving Segregated Institutions.
In addition to explicitly excluding adult home residents from almost all supported housing programs through its contract and eligibility procedures, New York also administers other aspects of its mental health system in such a way that persons with psychiatric disabilities have virtually no opportunity to transition from adult homes to integrated community settings, such as supported housing.
One major obstacle to leaving adult homes is the dearth of information provided about alternative residential services. During the trial, several witnesses, including the defendants' expert, Dr. Jeffrey Geller, "agreed that adult home
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residents are not adequately informed of housing options." DAI II, 653 F. Supp. 2d at 261. "In general, residents are unaware of other housing options and the wide range of assistance that would be available to them in supported housing and other settings." Id. Residents stated that even when they expressed interest in transitioning to more integrated service settings, they were either ignored or actively discouraged by case managers or other providers in the adult homes. DAI I, 598 F. Supp. 2d at 300.
Even if adult home residents find a way to apply for supported housing despite all of the obstacles identified above, the State does not maintain a waiting list to facilitate a future placement if none is available. DAI I, 598 F. Supp. 2d at 348. As a consequence, there is no record of which adult home residents have actively pursued supported housing. DAI II, 653 F. Supp. 2d at 276. New York cannot restrict access to its limited, integrated residential services and then not even allow adult home residents fair access to these services like supported housing.
3. Because of New York's Lack of Integrated Community Living Alternatives, Persons with Psychiatric Disabilities Have Little Choice About Whether to Enter Adult Homes or to Remain There, and Thus the Placements Are Not Truly Voluntary.
New York asserts that "no state law, regulation, or policy forces individuals with mental disabilities to accept any form of community residence, including
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adult homes. If residents are dissatisfied with living in an adult home, they may leave." Appellants' Br. 33-34. The evidence presented at trial and the facts found by the district court directly contradict this assertion and reveal that, as a direct result of New York's administration of its residential service network, persons with psychiatric disabilities have no choice but to enter adult homes, and, once there, no opportunity to leave.
Because New York funds a significant number of segregated adult home placements and such an inadequate number of supported housing placements for adult homes residents, persons with psychiatric disabilities often have no choice but to enter and remain in adult homes.13 During the trial, Ms. Rosenberg testified that most individuals did not have access to supported housing, and instead were placed in adult homes "because there are lots of them, there are lots of beds…it really is more about availability than anything else." Tr. 658 (Rosenberg). In an affidavit, 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." DAI I, 598 F. Supp. 2d at 300.
There is also overwhelming evidence in the record that the vast majority of 13 When he was asked by defense counsel whether some individuals may prefer
being in an adult home, Mr. Jones testified that "it comes down to a question of…what choices people really have, and I guess one of my premises as a commissioner has always been one choice is no choice. And I think we've got lots and lots of evidence that there were people who moved into adult homes because there was no other choice." Tr. at 1167-68 (D. Jones).
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adult home residents want to leave these institutions. Dr. Groves reviewed the Columbia Presbyterian data and concluded that, of the 2,080 adult home residents who were assessed, "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." DAI I, 598 F. Supp. 2d at 302. Several experts noted that the large number of people who expressed a desire to leave the adult homes significantly understates the number of persons who actually would prefer to leave, because the residents were not provided a clear explanation of the alternatives that were available and the assessments were being conducted by total strangers. See id.; Tr. at 1020-22 (D. Jones). Nevertheless, despite these factors, nearly 75% of participants asserted that they did not want to live in an adult home if given another choice.
New York's claim that all adult home residents are there voluntarily belies the State's denial of an adequate number integrated service options for these individuals as well as New York's purposeful exclusion of adult home residents from the limited available integrated residential alternatives. Similarly, their unsupported speculation that adult home residents are content with their situation is contradicted by the district court's findings, which are entitled to deference.
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CONCLUSION For the reasons set forth above, this Court should affirm the judgment of the

district court in all respects.

Respectfully submitted,

s/ Robert J. Alessi __________________________ Robert J. Alessi Gregory G. Nickson Jeffrey D. Kuhn Dewey & LeBoeuf LLP 99 Washington Avenue – Suite 2020 Albany, New York 12210 (518) 626-9000

Steven J. Schwartz Mollie Richardson Center for Public Representation 22 Green Street Northampton, Massachusetts 01060 (413) 586-6024

Dated: October 13, 2010

Attorneys for Amici Curiae

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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,965 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7(B)(iii). In preparing this certificate, I relied on the word count program in Microsoft Word. 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 the brief has been prepared in a proportionally spaced typeface (Times New Roman) in 14-point font size.

Dated: October 13, 2010

s/ Robert J. Alessi ______________________________ Robert J. Alessi

Case: 10-235 Document: 293 Page: 37 10/13/2010 123868 51

CERTIFICATE OF SERVICE

I, Robert J. Alessi, certify that on October 13, 2010, a copy of the foregoing

Brief of Dick Thornburgh, Former Governor and United States Attorney General,

and 30 Former State Mental Health Commissioners, as Amici Curiae, in Support of

Plaintiffs-Appellees was filed electronically through the CM/ECF system. Notice

of this filing will be sent by e-mail to the counsel of record for all parties by

operation of the CM/ECF system.

Dated: October 13, 2010

s/ Robert J. Alessi ______________________________ Robert J. Alessi

Case: 10-235 Document: 293 Page: 38 10/13/2010 123868 51
APPENDIX
Richard L. "Dick" Thornburgh
The Honorable Dick Thornburgh is the former Governor of Pennsylvania and former Attorney General of the United States. He served from 1979 to 1987 as Governor of Pennsylvania. He then served as Attorney General from 1988 to 1991 under Presidents Ronald Reagan and George H. W. Bush. He is also a parent of a man with a disability, and cites working on the passage of the Americans with Disabilities Act of 1990 as one of his proudest achievements as Attorney General.
Meredith Alden, Ph.D., M.D.
Meredith Alden was Director of the Utah Division of Mental Health from 1995 to 2000. She has been a provider of psychiatric care for persons with serious mental illness who are served in the public mental health system in Utah for 30 years. She is presently a Clinical Associate Professor of psychiatry at the University of Utah School of Medicine. Alden has served on the National Advisory Council of the U.S. Substance Abuse and Mental Health Services Administration. She is currently a member of the board of directors of Alliance House, a training base clubhouse certified by the International Center for Clubhouse Development.
C. Patrick Babcock
C. Patrick Babcock was Director of the Michigan Department of Mental Health from 1981 to 1986. He had executive responsibility for community mental health services, community residential services for individuals with mental illness or developmental disabilities, state hospitals for mentally ill adults, state treatment centers for mentally ill children, and residential centers for developmentally disabled citizens. He also served as the Director of the Michigan Department of Social Services, and as the Director of the Michigan Department of Labor, where his responsibilities included services to people with disabilities. In addition, he established and directed two new agencies in Michigan – the Office of Services to the Aging and the Office of Drug Abuse and Alcoholism.
Babcock's other public appointments include serving as co-chair of the Michigan Child Welfare Improvement Task Force and the Michigan Mental Health Reform Commission. His private sector appointments include serving as a board member on Michigan Partners in Crises; member and vice-chair of the Michigan Association for Mental Health; member of the Board of Directors of the National

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Schizophrenia Foundation; and member of the Robert Wood Johnson Foundation's National Advisory Committee for Services to Seriously Mentally Ill Children. He also has served as Director of Public Policy and Vice President for Health Programming at the W.K. Kellogg Foundation.
Joseph J. Bevilacqua, Ph.D.
Joseph Bevilacqua is widely respected as a dean of public mental health administrators, having spent 21 consecutive years as Commissioner of Mental Health Services in Rhode Island, Virginia, and South Carolina from 1975 to 1996. He accomplished important reforms in each state, including balancing resources between institutional and community mental health services, establishing systems of community support to enable persons with severe mental illness to live independently, and strengthening connections between the state mental health agency and other human service systems. Following his 10-year tenure as the South Carolina Mental Health Commissioner, Bevilacqua served from 1996 to 1999 as Director of the State Initiatives Office at the Bazelon Center for Mental Health Law in Washington, DC. He also served two terms as President of the National Association of State Mental Health Program Directors. Currently, he works as a consultant and presenter on a wide variety of mental health topics.
Geraldine Botwinick
Geraldine Botwinick became Acting Division Director of the New Jersey Division of Mental Health after serving as Deputy Director, Director of Community Services, and Regional Coordinator. During her tenure, she significantly increased New Jersey's funding base and the community continuum of mental health services by securing the state's first federal Housing and Urban Development grant for individuals with mental illness. She also developed and implemented a regionalization plan to unify the hospital and community continuum. In addition, she rewrote the State Rules and Regulations Governing Community Services, prioritizing people discharged from psychiatric hospitals and, as the Division's Legislative Liaison, assisted in drafting new screening legislation. Botwinick executed the first consumer-run contract and formed the first Minority Advisory Committee. After leaving the Division, she served as Executive Director of the statewide Mental Health Association and as Vice-Chairperson of the State Community Mental Health Citizens Advisory Board. For the past 20 years, she has been a health and human services consultant for public and non-profit agencies. In 1997, she formed her own consulting business, the Strategic Consulting Group. Her current foci include behavioral health service planning and
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delivery, systems of care for people living with HIV/AIDS, and quality management.
Elizabeth Childs, M.D., M.P.A.
Elizabeth Childs was the Commissioner of the Massachusetts Department of Mental Health from 2003 to 2007. She has an extensive background in serving people with mental illness in both the private and public sectors. She served on the National Institute of Mental Health Advisory Council from 2006 to 2010, and as President of the Massachusetts Psychiatric Society in 2002 and 2003. She currently is appointed to the Board of the Massachusetts Department of Early Education and Care, serving as chair of its Fiscal and Policy Committee. Childs has held academic appointments at the Massachusetts Institute of Technology, Harvard University, and the University of Cincinnati. She holds Diplomates in Adult, Child and Adolescent Psychiatry from the American Board of Psychiatry and Neurology, and from 1996 to 2003, was Chief and Director of Psychiatry at Carney Hospital in Dorchester, Massachusetts.
Robert Constantine, Ph.D., M.P.H.
Robert Constantine served as both the State Mental Health Director and the Assistant Secretary for Mental Health and Substance Abuse at the Florida Department of Health and Rehabilitative Services. He also was a District Administrator for the Department, with responsibilities for all state-supported health and human services in southwest Florida. In addition, from 1996 to 2004, Constantine was the Chief Executive Officer of the Florida Council for Behavioral Healthcare, a trade association of community-based behavioral health care providers. In this capacity he helped frame state policy and advocated for the resources to improve the performance of Florida's mental health system. He is currently a Research Associate Professor in the Department of Mental Health Law and Policy at the Louis De La Parte Florida Mental Health Institute, University of South Florida. He has been the principle investigator for the administrative data component of a large managed care evaluation, the Behavioral Pharmacy Management Program, and the Medicaid Drug Therapy Management Program for Behavioral Health.
King Davis, Ph.D.
King Davis served as Commissioner of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services from 1990 to 1994. As
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Commissioner, Davis was responsible for administering the state's community and institutional mental health programs. During his tenure, Virginia significantly reduced the number of individuals in large segregated mental health institutions and moved them to the community. These populations included adults, children, and the aged. Virginia also developed an exceptional tracking system that allowed the state system to examine the extent to which individuals return to the more segregated system after their transition to the community. Currently, Davis holds the Robert Lee Sutherland Chair in Mental Health and Social Policy at the University of Texas at Austin, where he teaches courses in mental health policy, planning, and theory.
Joel A. Dvoskin, Ph.D., ABFP
Joel Dvoskin was named the Acting Commissioner of Mental Health for the State of New York in 1995 after serving more than a decade as Associate Commissioner of the Department. He was in charge of New York's forensic and correctional mental health systems. He was responsible for inpatient services at three large forensic hospitals and two regional forensic units, and for all mental health services in New York State prisons, including innovative community forensic programs. Dvoskin currently teaches at the University of Arizona Medical School, and has a consulting practice in forensic psychology in Tucson, Arizona. He provides a wide array of training and consulting services to state mental health and criminal justice agencies, federal courts, corporations, and universities throughout the United States and Canada.
Eileen Elias, M. Ed.
Eileen Elias was Commissioner for the Commonwealth of Massachusetts, Department of Mental Health from 1991 to 1996. She was the Acting Commissioner for the District of Columbia's Commission on Mental Health Services in 1997. She brings more than 40 years of experience as a public health disability-based policy leader, manager, analyst, planner, trainer, and educator with a record of transforming international and national health and human service systems for persons with a disability. Elias also served as Deputy Director of the United States Department of Health and Human Services' Office on Disability, and Senior Policy Analyst for the DHHS' Substance Abuse and Mental Health Services Administration Office on Policy, Planning and Budget. She has published extensively, served on numerous local and national boards and received recognition awards from Federal and State organizations, providers and consumers. She is currently Senior Policy Advisor for Disability and Mental Health for JBS
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International, a Washington-based consulting and contracting firm specializing in national and international public health social services issues.
Joan L. Erney, J.D.
Joan Erney was Deputy Secretary for the Pennsylvania Office of Mental Health and Substance Abuse Services from 2003 to 2010. During her tenure, two state facilities were closed; the closing of a third facility is underway. Erney also oversaw the expansion of HealthChoices, Pennsylvania's mandatory Medicaid behavioral health managed care program, and the development of certified peer specialists under Medicaid and other evidenced-based practices for children, adults, and older adults. She was instrumental in forwarding a major supportive housing initiative within the state and investing in the development of forensic peer and other criminal justice services. Erney is currently the Chief Business Development and Public Policy Officer for a not-for-profit behavioral health managed care organization.
Mary Jane England, M.D.
Mary Jane England served the Commonwealth of Massachusetts as Commissioner of the Department of Social Services and Associate Commissioner of the Department of Mental Health. In addition, she was an Associate Dean at Harvard University's John F. Kennedy School of Government, where she was the Director of the Lucius N. Littauer Master in Public Administration Program. She also was the program director of the Robert Wood Johnson Foundation's Mental Health Services Program for Youth. She is currently President of Regis College. England has served on numerous public and non-profit boards, as well as work groups and task forces, including the Carter Center Mental Health Task Force. She chaired the National Advisory Mental Health Council's Work Group on Child and Adolescent Mental Health Intervention, Development and Deployment that produced Blueprint for Change: Research on Child and Adolescent Health. She also chaired the Institute of Medicine (IOM) committee that produced the report on mental health and substance abuse, "Crossing the Quality Chasm," and more recently, the IOM committee that focused on parental depression and its effect on children and family members.
David L. Evans
David Evans, the State Commissioner for Mental Health, Mental Retardation and Substance Abuse in Georgia from 1990 to 1993, has more than 35 years experience
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in the mental health, mental retardation and chemical dependence field. He previously served as State Director for the Office of Mental Retardation in Nebraska and Acting Director of the Community Services Division for Developmental Disabilities in Michigan. He is presently the Executive Director at Austin-Travis County Integral Care in Austin, Texas, and its affiliated non-profit New Milestones Foundation, Inc. He also teaches public policy at the University of Texas School of Social Work and St. Edwards University.
He is a member of the National Alliance for the Mentally Ill, the Texas Council of Community Mental Health Mental Retardation Centers, Inc., Tejas Behavioral Health Services, the Texas Children's Policy Council, the American Association on Intellectual and Developmental Disabilities, and the Mayor's Mental Health Task Force Monitoring Committee. He previously served as a member of the National Association of State Mental Health Directors and the Georgia Planning Council for Developmental Disabilities, and was President of the National Association for State Mental Retardation Program Directors.
John J. Gates, Ph.D.
John Gates was the Georgia State Director of the Division of Mental Health, Mental Retardation and Substance Abuse from 1983 to 1990. Over the course of 30 years, he has held multiple positions in the Georgia Department of Human Resources, now known as the Department of Behavioral Health and Developmental Disabilities. He presently serves on the Board of the Rosalynn Carter Institute for Caregiving at Georgia Southwestern University, and is an exofficio member of the Carter Center Mental Health Task Force in Atlanta. He was Director of the Mental Health Program at the Carter Center from 1993 to 2000. Gates is a past member of the Board of the National Mental Health Association (now known as Mental Health America) and the Board of the World Federation for Mental Health. He is an honorary life member of the Georgia Mental Health Association and a Fellow of the Georgia Psychological Association.
William Goldman, M.D.
William Goldman was Commissioner of the Massachusetts Department of Mental Health and Mental Retardation in the mid-1970s. Under his leadership, the Commonwealth began dismantling the mental health system and started closing state hospitals. Goldman subsequently served as the Director of Mental Health, Drug and Alcoholism Services for the City and County of San Francisco, and the Associate Medical Director for Mental Health Services for HealthAmerica, Inc.
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He also was the Medical Director at both Contra Costa Health Plan in Martinez, California, and U.S. Behavioral Health/United Behavioral Health in San Francisco. In addition, he was the Senior Vice President for Behavioral Health Services at United Behavioral Health in San Francisco. Goldman, who has authored more than 40 articles in scientific journals, is a retired Clinical Professor of Psychiatry at the University of California in San Francisco.
Donald J. Hevey
Donald J. Hevey was the Director of the Alcohol, Drug Abuse and Mental Health Office for the State of Florida from 1982 to 1985. He previously served as the Assistant Director of the office. As Director, he was responsible for the statewide administration of community alcohol, drug abuse and mental health programs as well institutional mental health, substance abuse and forensic programs. Previously, from 1975 to 1981, he was the Executive Director of the Manatee County Community Mental Health Center, a comprehensive mental health and substance abuse center in Bradenton, Florida. Currently, Hevey is President and Chief Executive Officer of Mental Health Corporations of America, Inc., a national alliance of select organizations that provide behavioral health services. He has served in this capacity since 1985.
Thomas A. Kirk, Jr., Ph.D.
Thomas Kirk was Commissioner of the Connecticut Department of Mental Health and Addiction Services from 2000-2009. He served as Deputy Commissioner of the department from 1995 to 2000. During his tenure, Kirk focused on the design, implementation and management of recovery-oriented healthcare systems. In 2006, the National Alliance on Mental Illness rated Connecticut and Ohio highest in a review of the mental health systems in all 50 states. Kirk has served on the Board of Directors of the Foundation for Mental Health and the National Association of State Mental Health Program Directors Research Institute, Inc., and on the National Advisory Council of the federal Substance Abuse and Mental Health Services Administration.
Danna Mauch, Ph.D.
Danna Mauch served the State of Rhode Island as the Executive Director for Mental Health and Community Support Services. She also was Assistant Commissioner of the Massachusetts Department of Mental Health, where she directed the divisions of mental health, substance abuse and forensic medicine. In
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both states, she directed planning, financing, regulatory and federal research and demonstration grants for a range of initiatives on treatment improvements, community-based care systems, and consumer directed care for developmental disabilities, mental health and chronic disease populations. In addition, Mauch served as the Special Master for the United States District Court for the District of Columbia, aiding implementation of the Dixon consent decree to reform the publicly-financed mental health system in the nation's capital.
She was the founding president and chief executive officer of Magellan Public Solutions, Inc., the subsidiary of Magellan Health Services, and chief administrative officer at Comprehensive NeuroScience, Inc. Currently, as a principal associate and principal scientist at Abt Associates, her work has concentrated on the adoption of evidence-based practices in prevention and treatment of health conditions impacting vulnerable populations, and financing of integrated prevention and care solutions for persons with social and economic disadvantages. She has continued to serve on several foundation, government, and nonprofit boards addressing prevention, treatment and care management for vulnerable persons at risk for or having complex, disabling and chronic health conditions.
Oscar Morgan
Oscar Morgan was Director of the Mental Hygiene Administration for the Maryland Department of Health and Mental Hygiene. He served in multiple positions during his career with the state's public mental health system. In addition, he has served as Project Director for Magna Systems, Inc., Vice President of Health Management Consultants, and Chief Operating Officer of Mental Health America, where he also was a senior consultant on Mental Health Policy and Programs. Morgan currently is Project Director at Affirma Solutions, Inc., which provides consulting services focusing on health and human services to underserved populations. He also chairs the Citizens Advisory Board of the Clifton T. Perkins Hospital Center, which is operated by the Maryland Department of Health and Mental Hygiene for offenders found not guilty by reason of insanity and for prisoners with mental illness who require hospitalization.
John A. Morris
John Morris, who has spent more than 35 years in the public behavioral health field as a clinician, administrator, researcher and educator, was the State Director of Mental Health in South Carolina from 1995 to 1997. He served as the Deputy
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State Director of Mental Health from 1990 until 1995. During his tenure, the department implemented the Toward Local Care (TLC) Initiative, which moved hundreds of individuals from state psychiatric hospitals to supported housing and employment. One of the state's major psychiatric hospitals was closed on his watch. From 1999 to 2004, Morris was the founding Director of the South Carolina Center for Innovation in Public Mental Health, a joint venture between the South Carolina Department of Mental Health and the University of South Carolina. The Center focused on implementation of evidence-based practices designed to support persons with serious mental illnesses live successfully in their home communities.
Currently, Morris is Executive Director of the Annapolis Coalition on the Behavioral Health Workforce, which published the nation's first action plan for workforce development in partnership with the Substance Abuse and Mental Health Services Administration in 2007, and continues to provide leadership and technical assistance on workforce issues nationally. He also is a consultant with the non-profit Technical Assistance Collaborative, Inc., where a current project seeks to divert youth from institutional settings such as juvenile correctional facilities and psychiatric hospitals. Morris also has served as the Chair of the Board of Directors of Mental Health America and as President of the American College of Mental Health Administration and of the ACMHA Foundation.
Frank M. Ochberg, M.D.
Frank Ochberg served from 1979 to 1981 as the Director of the Michigan Mental Health Department with responsibilities for the administration of both institutional and community services. He was affiliated with the National Institute of Mental Health for ten years, the last two as Associate Director. He is currently a clinical professor of psychiatry at Michigan State University. He is a founding board member of the International Society for Traumatic Stress Studies and recipient of their highest honor, the Lifetime Achievement Award. Ochberg also founded the Dart Center for Journalism and Trauma at Columbia University and served as its first chairman. Drawing on an extensive global network of news professionals, mental health experts and researchers, the Dart Center provides journalists with resources to understand and report on traumatic events.
Robert L. Okin, M.D.
Robert Okin was the Commissioner of the Massachusetts Department of Mental Health from 1975 to 1981 after serving as the Commissioner of the Vermont
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Department of Mental Health from 1973 to 1975. Also during the mid-1970s, he chaired the State Mental Health Program Directors' Deinstitutionalization Task Force, and was a member of the federal Task Force on Deinstitutionalization convened by Joseph Califano, Secretary of the United States Office of Health, Education and Welfare. Okin taught at Harvard Medical School and Massachusetts General Hospital before moving to California where he was Vice Chairman of the Department of Psychiatry at the University of California at San Francisco (UCSF) and Chief of Psychiatry at San Francisco General Hospital. He has taught at UCSF since 1990, and currently is Professor Emeritus of Psychiatry at the UCSF School of Medicine. A renowned expert in human rights for people with psychiatric disabilities, he has been Principal Psychiatrist for Mental Disability Rights International since 1995. Okin has received multiple honors and awards, and has presented papers throughout the country and the world on deinstitutionalization, mental health disability rights, and best practices.
Michael S. Pedneau
Michael Pedneau was the State Director of Mental Health, Developmental Disabilities and Substance Abuse in North Carolina. He oversaw implementation of reforms mandated by two class action lawsuits, including the Willie M. settlement agreement on behalf of youth with serious emotional disturbance. During Pedneau's six-year tenure, state psychiatric hospitals in North Carolina decreased the use of seclusion and restraint. The State also enacted laws for mental health advance directives and for appointments of guardians for mental health decisions.
R. Emmett Poundstone III
R. Emmett Poundstone III was the Commissioner of the Alabama Department of Mental Health / Mental Retardation in 1995 and 1996. He also served as the Department's Deputy Commissioner in 1996 and 1997, as the Acting Commissioner in 1985 and1986, and as an Associate Commissioner from 1984 to 1995. In addition, he was the Director of the Division of Legal & Administrative Services within the Department from 1981 to 1984. He previously served as Chief Counsel, Director of Legal Services, and Assistant Chief Counsel for the Department of Mental Health. Poundstone currently is Vice Chair of the Board of Directors of Southeastern Psychiatric Management, Inc. He also chairs the Psychiatric Section of the Alabama Hospital Association, the Coalition for Mental Health Insurance Parity, and the Board of Directors of Respect International. In addition, he is a member of Alabama Consumer Empowerment and Supports
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(ACES), the Department of Mental Health / Mental Retardation Mental Illness (94142) Planning Committee, the National, Alabama and Montgomery Alliances for the Mentally Ill, and the Montgomery Mental Health Association.
Elisabeth Rukeyser
Elisabeth Rukeyser, a volunteer and leader in the mental health field for more than 30 years, was Commissioner of the Tennessee Department of Mental Health and Developmental Disabilities from 1999 to 2003. Currently, she is vice chair of Respect International, which seeks to improve conditions for people with mental illness around the world, and a board member of Centerstone Community Mental Health Centers, Inc. in middle Tennessee, and Lakeshore Regional Mental Health Institute in Knoxville. Rukeyser was chairman of the board of the National Mental Health Association from 1990 to 1992. She also served as facilitator of Tennessee Governor Don Sundquist's 1998 TennCare Partners Program Advisory Committee. Previously, she chaired Covenant Behavioral Health and eight affiliated housing corporations of the federal Department of Housing and Urban Development in Knoxville. She also served on the boards of Covenant Health Systems and Tennessee Voices for Children. Rukeyser gained national prominence as a member of the board of directors of the National Alliance for Research on Schizophrenia and Depression (NARSAD) and as a member of the Advisory Council to Boston University's Center for Psychiatric Rehabilitation. In 1993, Secretary of Health and Human Services Donna Shalala appointed her a member of the Center for Mental Health Services National Advisory Council of the federal Substance Abuse and Mental Health Services Administration. In addition, Rukeyser served on the National Leadership Forum for Mental Health and the National Council for Community Behavioral Healthcare.
Sinikka Santala
Sinikka Santala (McCabe) was the Administrator of the Division of Long Term Care in Wisconsin Department of Health Services. During her 26-year career with the State of Wisconsin, she held numerous leadership positions and was the governor-appointed administrator of three divisions. In those positions, she was responsible for long-term care, community and institutional mental health services, substance abuse services, community-based and institutional developmental disability services, and regulation and licensing. She also was the Director of the State's Bureau of Community Mental Health. In addition, she previously worked for the University of Vermont as the director of a national technical assistance center that assisted states, counties and provinces in the United States and Canada
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to develop community-based services, regular housing and improved consumer choices for people with severe mental illness.
Leslie Schwalbe
Leslie Schwalbe was the Deputy Director of the Arizona Department of Health Services from 1999 until 2005. Schwalbe was responsible for the state's behavioral health system that served 140,000 individuals and their families. She also directed reduction initiatives that were targeted to inpatient admissions and stays at Arizona State Hospital, and developed thousands of community housing alternatives for persons leaving the hospital and living in congregate settings. Currently, Schwalbe is a national behavioral health consultant; she provides consulting services that focus on states' Medicaid programs. Her clients include the federal Substance Abuse and Mental Health Services Administration / Center for Mental Health Services, numerous state and local health and human services departments, national associations, and private healthcare organizations. She specializes in developing and sustaining effective quality-driven oversight and public financial management practices.
Donald L. Shumway
Donald Shumway was Director of the Division of Mental Health and Developmental Services of New Hampshire from 1984 to 1996. During this period, he managed the first closing, nationally, of all institutional services for persons with developmental disabilities. Additionally, he managed the restructuring of the State's mental health system including the development of a comprehensive community mental health system. From 1999 to 2002, Shumway led New Hampshire's comprehensive human services agency as the Commissioner of the Department of Health and Human Services. Since 2002, he has been the President of Crotched Mountain Foundation in Greenfield, N.H. He has served as President of the National Association of State Mental Health Program Directors and as a member of the National Advisory Council of the National Institute of Mental Health and the Endowment for Health and Leadership in New Hampshire.
Leigh Steiner, Ph.D.
Leigh Steiner was the Director of Mental Health in Illinois from 1989-2002 (first in the Department of Mental Health and Developmental Disabilities, and then in the Department of Human Services). She led the effort to improve the quality of care in Illinois state hospitals. During her tenure, she closed several state hospitals
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Case: 10-235 Document: 293 Page: 50 10/13/2010 123868 51
and used the money to strengthen community systems of care. Steiner launched initiatives to make evidence-based services available across the state, and created the first Office of Consumer Affairs. She is currently an organizational development consultant specializing in Appreciative Inquiry and teaches at the University of Illinois at Springfield.
Marylou Sudders
Marylou Sudders was Commissioner of Mental Health for the Commonwealth of Massachusetts from 1996 to 2003. During her tenure, she successfully advocated for legislation to overhaul the children's mental health and child welfare systems, to ensure fundamental rights for mental health consumers, to reform civil commitment, to reform commercial mental health insurance coverage, and to establish the children's mental health commission. In May 1999, she was honored at the first White House Conference on Mental Health. She testified before Congress in 2002 on criminal justice and mental health. For the past seven years, Sudders has been the President and Chief Executive Officer of the Massachusetts Society for the Prevention of Cruelty to Children (MSPCC), one of the Commonwealth's largest children's agencies. She provides executive leadership to the private non-profit agency that serves more than 30,000 children and families in child abuse intervention and prevention programs, provides clinical mental health services and engages in public policy advocacy. She currently serves on the Board of Directors of the National Alliance on Mental Illness of Massachusetts and the Massachusetts Association for Mental Health. She co-chaired then Governor-elect Deval Patrick's Transition Team on Human Services in 2006, and now serves as a member of the Governor's Commission on Sexual Assault and Domestic Violence and the Children's Behavioral Health Advisory Council.
Richard C. Surles, Ph.D.
Richard Surles was the Commissioner of Mental Health for the State of New York from 1987 until 1994. Previously, he was the Commissioner of Mental Health for the State of Vermont, the Director of the Office of Mental Health and Mental Retardation for the City and County of Philadelphia, and an Assistant Director of the North Carolina Division of Mental Health and Mental Retardation. In addition, Surles was the Executive Director for the Center for State Health Policy of the Institute for Healthcare, Healthcare Policy, and Aging Research at Rutgers University. He also was the Executive Vice President for National Operations and Chief Executive Officer for the Public Sector Services Division of Merit Behavioral Services. Currently, he is the Chief Development Officer for APS
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Healthcare. He has extensive experience in administering public mental health systems and in developing community-based programs for the disabled. He has served on numerous national advisory committees on mental health and healthcare policies. Surles has authored more than 40 publications in areas of government policy and organizing system of care for people with disabilities, and has been recognized nationally for his work with the mentally ill, especially among the homeless.
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 Case 1:03-cv-03209-NGG -MDG Document 357 Filed 10/23/09 Page 1 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

____________________________________

DISABILITY ADVOCATES, INC.,

)

)

Plaintiff,

)

)

V.

)

)

DAVID A. PATERSON, et al.

)

)

Defendants.

)

____________________________________)

Civil Action No. 03-CV-3209 (NGG) (MDG)

MEMORANDUM OF LAW IN SUPPORT OF UNITED STATES’ MOTION TO INTERVENE

BENTON J. CAMPBELL United States Attorney Eastern District of New York
Michael J. Goldberger Chief of Civil Rights Civil Division 271 Cadman Plaza East Brooklyn, New York 11201

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
John L. Wodatch, Chief Rene M. Wohlenhaus, Deputy Chief Amanda Maisels, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530

Case 1:03-cv-03209-NGG -MDG Document 357 Filed 10/23/09 Page 2 of 15
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATUTORY AND REGULATORY BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 FACTUAL AND PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The United States Should Be Permitted To Intervene As of Right Because of the Department of Justice’s Unique Regulatory and Enforcement Responsibilities Under Title II of the ADA . . . . . . . . . . . . . . . 5 A. The United States’ Motion for Intervention Is Timely . . . . . . . . . . . . . . . 6 B. The United States’ Significant Interests In this Litigation Cannot Be Adequately Protected by the Exis9ting Private Parties
II. In the Alternative, This Court Should Grant the United States’ Request for Permissive Intervention Pursuant to Rule 24(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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INTRODUCTION On September 8, 2009, this Court issued an order ruling on the merits of the case and setting forth a briefing schedule for the remedies phase. (Memorandum & Order Setting Forth Findings of Fact and Conclusions of Law, Sep. 8, 2009 [hereinafter, Memorandum & Order]) The United States now seeks to intervene at the remedy stage, and for any appeal should Defendants seek to challenge any of this Court’s findings. Intervention by the United States is essential to ensure that the broader public interest is represented in this litigation.1 While the intervention sought is at the remedial phase, it will not prejudice the existing parties. Furthermore, the Justice Department has a strong interest in the remedial phase of this litigation as it implicates the proper interpretation and application of its regulations implementing the Americans with Disabilities Act (42 U.S.C. § 12101 et. seq.) (“ADA”) and compliance with the mandate of community integration under Olmstead v. L.C, 527 U.S. 581 (1999). Due to the timing and significance of this important decision, which may serve as a model for other courts in similar cases, the United States has a compelling interest to participate in the remedial stage of this case and help develop the plan for compliance. Accordingly, the United States moves herein to intervene as of right or, in the alternative, permissively, pursuant to Rule 24 of the Federal Rules of Civil Procedure for the purpose of participating in the crafting of an appropriate remedy. Plaintiff consents to the United States’ intervention; Defendant does not.
1The United States seeks to intervene rather than seek leave to participate as amicus at this stage because it does not believe that amicus status would sufficiently protect its interests, both at this stage and on appeal, if there is an appeal.
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STATUTORY AND REGULATORY BACKGROUND As this Court has found, Congress enacted the Americans with Disabilities Act (“ADA”) in 1990 “ ‘to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities.’ 42 U.S.C. § 12101(b)(1).” Memorandum & Order at 6. The Court noted the historical isolation and segregation of individuals with disabilities and recognized that despite some positive developments for these individuals, discrimination ‘continue[s] to be a serious and pervasive social problem.’ 42 U.S.C. § 12101(a)(2).” Id. Against this backdrop, the Court restated the ADA’s prohibition of discrimination: [N]o 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 or a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Id. Title II of the ADA, 42 U.S.C. 12131 et seq., prohibits public entities from discriminating against individuals with disabilities. Congress directed the Attorney General to issue a regulation implementing this general mandate consistent with the rest of the ADA, as well as the coordination regulation, 28 C.F.R. § 41, which implements Section 504 of the Rehabilitation Act. 42 U.S.C. § 12134(a). Both the Section 504 coordination regulation and the rest of the ADA make clear that the unnecessary segregation of individuals with disabilities in the provision of public services is itself a form of discrimination within the meaning of those statutes, independent of the discrimination that arises when individuals with disabilities receive different services than those provided to others. Memorandum & Order at 8. The Attorney General thus issued 28 C.F.R. 35.130(d), requiring public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”
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As the Court stated, the test for establishing violations of the ADA in this case, following Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d. Cir. 2003), is that: “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.” Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289, 311 (E.D.N.Y. 2009). The Court noted that one recognized form of discrimination includes violation of the “integration mandate” of Title II of the ADA, found in the Attorney General’s regulations implementing Title II and the Supreme Court’s decision in Olmstead v. LC, 527 U.S. 581 (1999). This mandate requires that “when a state provides services to individuals with disabilities, it must do so ‘in the most integrated 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.” Memorandum & Order at 7-8.
The Court further explained the contours of the ADA’s integration mandate, citing to Olmstead for the proposition that ‘unjustified isolation...[is] discrimination based on disability.’ Olmstead 527 U.S. at 597.” Id. at 8. Such “unjustified isolation” includes “unjustified ‘segregation’, ” and the “ ‘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’ every day activities.’ Olmstead 527 U.S. at 600.” Id. A state’s obligation to provide services in the most integrated setting is limited, however, but may be “excused only when the state can demonstrate that the relief sought would result in a ‘fundamental alteration’ of the state’s service system.” Id.
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FACTUAL AND PROCEDURAL HISTORY As the factual and procedural history of this action were clearly set forth by this Court in its September 8, 2009, Order ruling on the merits of the case, the United States will not burden the Court with a recitation of those facts. See Memorandum & Order. In its opinion, the Court held that: DAI has proven that Defendants have discriminated against DAI’s constituents in violation of the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act. In carrying out their administration of New York's mental health service system, 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. DAI has proven that the large, impacted Adult Homes at issue are not the most integrated setting appropriate to the needs of DAI’s constituents, especially compared to supported housing, in which individuals with mental illness live in apartments and receive flexible support services as needed. DAI has also proven that virtually all of DAI’s constituents are qualified to receive services in supported housing and are unopposed to receiving services in a more integrated setting. Defendants have failed to prove that the relief DAI seeks would constitute a ‘fundamental alteration’ of the State’s mental health service system. Accordingly, DAI is entitled to declaratory and injunctive relief. Following additional briefing from the parties, the court will issue a separate Order and Judgment once it determines the appropriate injunctive remedy. Id. at 208. Having resolved the merits of the case, the Court has set forth the briefing schedule for the remedial phase. The Court ordered the Defendants to propose a remedial plan consistent with the September 8, 2009 Memorandum & Order by October 23, 2009. Defendants’ response will include written objections to any elements of Plaintiff’s proposed relief (as set forth in the July 13, 2009 filing). Plaintiffs then have an opportunity to respond to Defendants’ proposed remedial plan by November 8, 2009.
4

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ARGUMENT I. The United States Should Be Permitted To Intervene As of Right Because of the
Department of Justice’s Unique Regulatory and Enforcement Responsibilities Under Title II of the ADA Rule 24(a)(2) of the Federal Rules of Civil Procedure sets forth the requirements for intervention as of right. As construed by the Second Circuit, a party moving for intervention as of right must: (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action. See, e.g., Brennan v. New York City Bd. of Educ., 260 F.3d 123, 128-29 (2d Cir. 2001); D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001); Catanzano by Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996). While post-judgment interventions are generally disfavored, United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986); Farmland Dairies v. Commissioner of the New York State Dept. of Agric. and Mkts., 847 F.2d 1038, 1044 (2d Cir. 1988), intervention at the remedial stage is nonetheless appropriate where, as here, the requirements of Rule 24 are satisfied. Yonkers Bd. of Educ., 801 F.2d at 596 (“courts have held that intervention after the liability phase of a litigation can be timely when the remedy will affect the rights of the intervening third party”). Here, the United States’ intervention request satisfies Rule 24(a)(2)’s requirements for intervention as of right. The United States is timely seeking to intervene in this action shortly after the issuance of the District Court’s ruling on the merits and in advance of any remedial proceedings have been conducted by this Court. The United States’ intervention will not disrupt the Court’s briefing schedule or prejudice either party. Moreover, the United States Department of Justice – as the agency with primary regulatory and enforcement responsibilities under Title II
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of the ADA – has direct and significant interests in this action that cannot be adequately protected by private parties. Taken together, these considerations strongly counsel in favor of granting the United States’ motion to intervene as of right.
A. The United States’ Motion for Intervention Is Timely There are no precise chronological parameters to guide the court’s Rule 24(a)(2) timeliness inquiry; instead, determinations as to timeliness are committed to the sound discretion of the district court based on the circumstances of each case. See, e.g., NAACP v. New York, 413 U.S. 345, 366 (1973); Farmland Dairies v. Comm’r of the New York State Dept. of Agric. and Mkts, 847 F.2d 1038, 1043-1044 (2d Cir. 1988). Factors considered by courts in the Second Circuit when assessing the timeliness of a motion to intervene include: (1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness. United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994); Commack Self-Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93, 100 (E.D.N.Y. 1996). The United States’ intervention motion, while occurring after the decision on the merits, is filed in advance of any substantive briefs on remedies by existing parties and will not prejudice the existing parties or delay the proceedings. The United States seeks no extensions of the briefing schedule for remedies and will rely on the record developed at trial and the Court’s orders.2 Further, for the reasons discussed below, the United States’ interests will be impaired if
2 This is not an instance in which intervention will seek to “unravel” or “derail[] a lawsuit within sight of the terminal.” Reid L. v. Illinois Bd. of Ed., et al., 289 F.3d 1009, 1018
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intervention is denied. See discussion infra pp. 9-11. In addition, the importance of the United States’ participation in formulating a remedy militates for a finding of timeliness.
Courts have been particularly mindful of the distinct stages of the litigation in analyzing the party’s legal interest in institutional reform litigation. The Third Circuit stated that while “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.... [G]iven the complexity of much public law litigation, permitting courts to limit intervention as of right to discrete phases of the litigation may be necessary in some cases.” Brody v. Spang, 957 F.2d 1108, 1116 (3d Cir. 1992).3 In Caterino v. Barry, 922 F.2d 37 (1st Cir. 1990), the court acknowledged that the propriety of intervention may be analyzed at two junctures – the liability phase and the remedy phase – and noted that the proposed intervenor’s voice in that case would be most important at the remedy stage. Id. at 43.
The Department of Justice plays a unique role in enforcing and interpreting Title II and its implementing regulations on behalf of the broad public interest. The United States seeks to intervene at this moment because of the significance and scope of the proposed remedy, which will help transform the lives of individuals with mental illness whom the Court found to be living in segregated communities. Indeed, in June of this year, the President proclaimed the
(7th Cir. 2002). Instead, it is at the beginning of the remedial process where “input could [be] received without undoing the long and difficult process that all other parties to this litigation had been pursuing in good faith.” Id.
3 The Court in Brody went on to add: “The plaintiffs’ underlying claims ask the straightforward, if nonetheless complex, question of whether or not the defendants’ policies violate the Constitution, whereas the proposed remedy affects all the people involved in an entire institution. Moreover...the existing parties chose to enter a consent decree, and we are now concerned with the breadth of injunctive relief that is appropriate at the remedial stage.” Id. at 1116.
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Administration’s commitment to enforcing the Olmstead decision and its goals of community integration, coining it the “Year of Community Living.”4 Further, the final judgment that this court will reach will likely implicate the United States’ interests in the recently signed U.N. Convention on the Rights of Persons with Disabilities.5
Therefore, because the United States moves for intervention in the remedial stage of the case, shortly after the issuance of the District Court’s rulings on the merits and at the earliest stage in the remedial phase, the motion for intervention should be deemed timely. See, e.g., Heaton v. Monogram Bank of Georgia, 297 F.3d 416, 422-25 (5th Cir. 2002) (finding FDIC motion to intervene in remand proceedings timely since motion was filed shortly after issuance of appellate mandate and agency’s participation as a party was necessary to protect both its regulatory program and the public interest); see also Abondolo v. GGR Holbrook Medford, Inc., 285 B.R. 101, 109-10 (E.D.N.Y. 2002) (holding United States’ intervention motion in third-party action timely, despite pendency of litigation for several years, since United States acted quickly to intervene after learning of alleged fraudulent conveyance and its participation was necessary to protect tax lien against property at issue in litigation); United States v. Covington Techs. Co., 967 F.2d 1391, 1395 (9th Cir. 1992) (finding post-judgment intervention six months after stipulation for dismissal approved by District Court timely because it was filed within the time
4 “President Obama Commemorates Anniversary of Olmstead and Announces New Initiatives to Assist Americans with Disabilities,” June 22, 2009, Office of the Press Secretary, available at http://www.whitehouse.gov/the_press_office/President-Obama-Commemorates-Anniversary-ofOlmstead-and-Announces-New-Initiatives-to-Assist-Americans-with-Disabilities/).
5 This treaty was signed by President Obama on July 30, 2009 and is pending ratification in the Senate. Susan E. Rice, Permanent Representative to the United Nations, Remarks at the Signing of the UN Convention on the Rights of Persons with Disabilities (Jul. 30, 2009), available at http://paei.state.gov/usun.state.gov/usun/briefing/statements/2009/july/126836.htm.
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allowed for the filing of an appeal); United States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989) (finding that a six week delay between approval of remedy and the filing by intervenors did not make intervention untimely); South v. Rowe, 759 F.2d 610, 612 (7th Cir. 1985) (finding motion for intervention timely even though motion was filed only a day before consent decree was set to expire).
B. The United States’ Significant Interests In this Litigation Cannot Be Adequately Protected by the Existing Private Parties
Turning to Rule 24(a)(2)’s latter three requirements for intervention as of right, the United States has significant and legally cognizable interests in the remedy phase of this litigation given the United States’ unique role in the administration and enforcement of Title II of the ADA. For an “interest” to be cognizable under Rule 24(a)(2), the Second Circuit has noted that such an interest must be “ ‘direct, substantial, and legally protectable.’ ” Brennan, 260 F.3d at 129 (quoting Washington Elec. Co-op., Inc. v. Massachusetts Municipal Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990)); see also Donaldson v. United States, 400 U.S. 517, 531 (1971) (finding that interest, for purposes of intervention as of right, must be “significantly protectable”). Beyond these broad parameters, however, the interest requirement defies more specific definition and depends on the facts and practicalities of each case. See Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d 871, 874-75 (2d Cir. 1984).
The United States has a substantial interest in the crafting of the remedy in this case as the Department of Justice is the agency with primary regulatory and enforcement authority under Title II of the ADA. The Department of Justice has an interest not only in the outcome of this particular litigation, but also in ensuring the proper and consistent application of its own ADA regulations. The United States is charged with representing the public interest on a national
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scale, which does not necessarily align with the interests represented by private plaintiffs.6 See, e.g., Heaton, 297 F.3d at 424 (reversing district court’s denial of intervention request by FDIC under Rule 24(a)(2), noting that “[i]t cannot be assumed that the existing [private] parties to the litigation would protect the FDIC’s and the public’s interest” in the proper regulation of the federal deposit insurance system); Coal. of Arizona/New Mexico Counties, 100 F.3d 837, 845 (10th Cir. 1996) (distinguishing between public and private interests when assessing intervention motion under Rule 24(a)(2)); Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992) (finding that Director of the Office of Workers’ Compensation Programs’ interest is not adequately represented by private parties and granting Director intervention; denying intervention would impair the Director’s ability to provide his interpretation of the law that he is charged with administering).
Additionally, courts have applied the interest requirement less rigidly in cases that “implicate[] important issues of public law.” Tachiona v. Mugabe, 186 F.Supp.2d 383, 395 (S.D.N.Y. 2002) (citing Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967).) The United States’ interests in this litigation include ensuring that 1) appropriate relief be granted as the remedy for the Title II violations found by this Court; 2) the relief be consistent with the United States’ interpretation of the integration mandate of the ADA; and 3) the framework for the remedy can be followed by other courts redressing similar injuries. For all of the foregoing reasons, the United States should be permitted to intervene as of right in the remedy phase of this litigation.
6 Further, the burden of establishing inadequacy of representation of interests is “minimal.” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972).
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II. In the Alternative, This Court Should Grant the United States’ Request for Permissive Intervention Pursuant to Rule 24(b)(2) Rule 24(b) of the Federal Rules of Civil Procedure provides an alternative basis for the
United States’ permissive intervention in this action. Rule 24(b) provides that permissive intervention may be granted “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Fed. R. Civ. P. 24(b)(2). Rule 24(b) also makes special provision for intervention by a federal agency in lawsuits concerning federal statutes or regulations within its administrative purview. This Rule provides that where, as here, a party rests a claim or defense on a federal statute or regulation, the federal officer or agency “upon timely application may be permitted to intervene in the action.” Id. When assessing a motion for permissive intervention, the primary consideration is “whether the intervention will unduly delay or prejudice the existing parties.” Commack Self-Service Kosher Meats, 170 F.R.D. at 106.
The United States’ motion for intervention easily satisfies these requirements for permissive intervention. First, the United States’ central claims in this action – namely, that a system-wide remedy to move individuals out of segregated settings and into more integrated community settings is appropriate based on this Court’s findings of liability under Title II of the ADA and its regulations – share common legal and factual issues with the private plaintiff’s claims in this action. Second, as discussed above, the United States’ intervention motion will not unduly delay the proceedings on remedy because this motion was filed shortly after the Court’s ruling on the merits and the United States seeks to comply with that briefing schedule and rely on the factual record already developed. Third, the private plaintiffs’ claims plainly
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concern the ADA and its implementing regulations, thereby providing a separate basis for the United States’ permissive intervention.
Taken together, these considerations demonstrate the propriety of the United States’ permissive intervention. The Department of Justice, as the agency charged with administering Title II of the ADA, has a vested interest in ensuring that this Court fashions a remedy consistent with the United States’ interpretation of the integration regulation. This is precisely the scenario for permissive intervention by a federal agency contemplated by Rule 24(b). See, e.g., Metro Transp. Co. v. Balboa Ins. Co., 118 F.R.D. 423, 424 (E.D. Pa. 1987) (granting Public Utilities Commissioner’s motion for permissive intervention in litigation concerning interpretation of PUC regulation and commenting: “The rule [24(b)] requires that intervention be granted liberally to governmental agencies because they purport to speak for the public interest.”); Meyer v. Macmillan Pub. Co, Inc., 85 F.R.D. 149, 149-50 (S.D.N.Y. 1980) (granting EEOC motion for permissive intervention in light of Rule 24(b)’s “ ‘hospitable attitude’ ” towards intervention by federal agencies) (internal citation omitted); Sobel v. Yeshiva Univ., 438 F. Supp. 625, 626-27 (S.D.N.Y. 1977) (same).
CONCLUSION For the foregoing reasons, the Court should grant the United States’ intervention motion and order its intervention in this action (i) as a matter or right pursuant to Fed. R. Civ. P.
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24(a)(2) or, in the alternative, (ii) permissively pursuant to Fed. R. Civ. P. 24(b). A Complaint in Intervention accompanies this memorandum. Dated: October 23, 2009
Respectfully submitted,

BENTON J. CAMPBELL United States Attorney Eastern District of New York
By:_________/s/_____________________ MICHAEL J. GOLDBERGER Chief of Civil Rights, Civil Division United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052 michael.goldberger@usdoj.gov

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
_________/s/__________________ JOHN L. WODATCH, Chief RENEE M. WOHLENHAUS, Deputy Chief AMANDA MAISELS, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-0663 Facsimile: (202) 616-6862 Amanda.maisels@usdoj.gov

Counsel for Proposed Plaintiff-Intervenor United States of America

Counsel for Proposed Plaintiff-Intervenor United States of America

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 Case 1:03-cv-03209-NGG -MDG Document 384 Filed 11/23/09 Page 1 of 5

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)

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, certain “adult homes” in New York City.1 (See Compl. (Docket Entry #1).) Following six years of litigation and a five-week bench
trial, the 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

1 Adult homes are for-profit residential adult care facilities licensed by the State of New York. The adult homes at issue in this litigation are those 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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needs,”2 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. (Sept. 8, 2009 Mem. and Order (Docket Entry #341) (“Trial M&O”) 3.) The court assumes familiarity with that Memorandum & Order. Although the court found that Plaintiff is entitled to some form of declaratory and injunctive relief, it directed briefing from the parties regarding the particular injunctive remedy to be imposed. (Id. at 208.)
Subsequently, three non-parties moved to intervene in the action: the United States, the Empire State Association of Assisted Living, and the New York Coalition for Quality Assisted Living.3 In this Memorandum & Order, the court rules on the United States’ Motion to Intervene (Docket Entry #358) (“Motion”). The United States has moved to intervene as of right under Federal Rule of Civil Procedure 24(a) or, in the alternative, permissively under Rule 24(b). For the reasons that follow, the court grants the Motion.
Intervention as of right under Rule 24(a) must be granted when an applicant “(1) files a timely motion; (2) asserts an interest relating to the property or transaction that is the subject of the action; (3) is so situated that without intervention the disposition of the action may, as a practical matter, impair or impede its ability to protect its interest; and (4) has an interest not adequately represented by the other parties.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). Failure to satisfy even one of the four requirements will defeat a claim to intervention as of right. Id.
Since three of the four requirements concern the proposed intervenor’s interest in the action, the court first considers the nature of the interest asserted. The United States identifies
2 The “most integrated setting,” according to the federal regulations promulgated by the Department of Justice, 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); 28 C.F.R. pt. 35 app. A. 3 Additionally, the City of New York submitted a letter to this court requesting leave to participate in the remedial phase of this litigation as a “litigating amicus.”
2

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three interests, all of which arise from the Department of Justice’s regulatory and enforcement authority under Title II of the ADA: “ensuring that 1) appropriate relief be granted as the remedy for the Title II violations found by this Court; 2) the relief be consistent with the United States’ interpretation of the integration mandate of the ADA; and 3) the framework for the remedy can be followed by other courts redressing similar injuries.” (Motion 10.) Simply put, the Department of Justice has an interest in the uniform interpretation and enforcement of its regulations under Title II.
Although the court does not diminish the importance of this interest, the structure of Rule 24 suggests that this is not the sort of interest contemplated by Rule 24(a) for intervention as of right. Rule 24(a)(1) speaks generically of interests “relating to the property or transaction that is the subject of the action.” In contrast, Rule 24(b)(2) expressly provides for permissive intervention by a federal agency in lawsuits based on federal statutes or regulations within its administrative purview. See Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 92 (3d Cir. 1979) (noting that Rule 24(b)(2) makes “specific provision for intervention by governmental agencies interested in statutes, regulations or agreements relied upon by the parties in the action”). This case falls squarely within this provision of the Rule. Here, the ADA authorizes the Department of Justice to promulgate regulations to implement and enforce Title II, 42 U.S.C. § 12134(a), and Plaintiff’s claims are based on the “integration mandate” found in the Attorney General’s regulations implementing Title II. (Trial M&O 7-8.) Since this is the exact situation specifically contemplated by Rule 24(b)(2), the court declines to consider intervention under the more general terms of Rule 24(a).
The court’s discretion regarding whether to grant permissive intervention under Rule 24(b) is very broad. H. L. Hayden Co. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir.
3

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1986). The primary consideration guiding the exercise of discretion is “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Id. In this respect, the court finds it significant that neither party has opposed the United States’ Motion. In fact, Plaintiff urges the court to grant the Motion. (Pl. Mem. 1 (Docket Entry #373) (“DAI believes that the United States will add valuable expertise and that its addition to the case will not cause delay or otherwise prejudice the parties.”).)
Although the United States’ Motion comes very late in the litigation process, the court finds that intervention by the United States will not prejudice the original parties or unduly delay the proceedings concerning the appropriate injunctive remedy to be imposed. Central to this finding is the fact that the United States “seeks no extensions of the briefing schedule for remedies and will rely on the record developed at trial and the Court’s orders.” Moreover, the United States’ proposed Complaint in Intervention explicitly adopts the court’s prior factual findings and legal conclusions in the case. (Proposed Compl. (Docket Entry #358), at ¶¶ 10, 17.)
Furthermore, the Second Circuit has instructed courts to take a “hospitable attitude” toward “allowing a government agency to intervene in cases involving a statute it is required to enforce.” Blowers v. Lawyers Coop. Publishing Co., 527 F.2d 333, 334 (2d Cir. 1975); see also 7C Wright & Miller, Federal Practice & Procedure § 1912, at 471-72 (2007) (noting that the whole thrust of the amendment adding Rule 24(b)(2) “is in the direction of allowing intervention liberally to governmental agencies and officers seeking to speak for the public interest . . . and courts have permitted intervention accordingly.”). In light of these considerations and the absence of any indication of prejudice or undue delay, permissive intervention is appropriate. Accordingly, the United States’ Motion is GRANTED.
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The court directs the United States to file its response to Defendant’s proposed remedy no

later than November 24, 2009, a deadline the United States has repeatedly assured the court it

can meet. Any response by the parties must be submitted no later than December 1, 2009. The

court further directs the United States to serve its Complaint in Intervention as expeditiously as

possible. However, since the liability phase of this litigation is concluded, the United States may

not assert any additional claims or name any additional defendants in its Complaint in

Intervention; its pleadings must be congruent to the pleadings of the Plaintiff. Defendant shall

have twenty days from the date of service to respond to the intervenor’s pleadings.

SO ORDERED.

Dated: Brooklyn, New York November 23, 2009

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

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 Case 1:03-cv-03209-NGG-MDG Document 385 Filed 11/24/09 Page 1 of 18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

__________________________________________

DISABILITY ADVOCATES, INC.,

)

)

Plaintiff,

)

and

)

)

THE UNITED STATES OF AMERICA,

)

)

Plaintiff-Intervenor,

)

v.

) Civil No. 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.

)

_________________________________________ )

PLAINTIFF-INTERVENOR UNITED STATES’ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S REMEDIAL PLAN AND IN OPPOSITION TO DEFENDANTS’ PROPOSED REMEDIAL PLAN

BENTON J. CAMPBELL United States Attorney Eastern District of New York

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

Michael J. Goldberger Chief of Civil Rights Civil Division (Of Counsel)
November 24, 2009

SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
John L. Wodatch, Chief Rene M. Wohlenhaus, Deputy Chief Amanda Maisels, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice

Case 1:03-cv-03209-NGG-MDG Document 385 Filed 11/24/09 Page 2 of 18
TABLE OF CONTENTS I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Defendants Propose to Create an Inadequate Number of Supported Housing Units . . . . 3
A. Defendants’ Proposal Fails to Comply With the Scope of the Court’s Findings and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Defendants Improperly Reject the Court’s Findings and Order on Grounds of Expense and Need for Legislative Appropriations . . . . . . . . . . . . . . . 5
C. Defendants Improperly Reject the Court’s Findings and Order on the Ground of Feasibility of a Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Defendants Improperly Reject the Court’s Findings that Providing Supported Housing for Adult Home Residents is not a Fundamental Alteration . . . . . . . . . . 8
III. Defendants Improperly Propose Education, Assessment and Training that the Court Has Already Determined is Largely Unnecessary and Will Only Cause Further Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV. Defendants’ Proposed Remedy Fails to Satisfy the Court’s Order to Provide Adequately for Future Adult Home Residents . . . . . . . . . . . . . . . . . . . 14
V. Defendants’ Proposal Improperly Rejects Independent Monitoring of their Compliance with the Remedial Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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I. Introduction The United States has carefully reviewed the Plaintiff’s remedial plan and the
Defendants’ remedial plan. A plan must effectively carry out the carefully considered decision of this Court and comply with federal law. The remedial order is also not the place to reargue or resurrect positions that were lost at trial. The United States avers that Defendants’ proposed plan is unreasonable and inadequate to address the violations found by the Court in its September 8, 2009 Memorandum & Order Setting Forth Findings of Fact and Conclusions of Law (“Order”). In contrast, Plaintiff’s proposed plan will reasonably remedy the violations found by the Court in its Order. Thus, the United States supports the Plaintiff’s proposed remedial plan and objects to Defendants’ remedial plan.
Plaintiff’s plan proposes that Defendants create 1,500 units of supported housing per year, for up to four years, until such time as there are sufficient supported housing beds for all DAI constituents and future adult homes residents who desire such housing, and that no fewer than 4,500 beds are developed. (Plaintiff’s Proposed Findings of Fact and Conclusions of Law 128-129.) Plaintiff’s plan further proposes that supported housing providers be identified and awarded contracts to provide scattered site supported housing and supports, assess residents’ need for supportive services and secure those services, and conduct in-reach to residents of Adult Homes. (Id. 130-131.) Also, Plaintiff proposes that Defendants require Adult Home staff and others who discuss housing options with DAI’s constituents to accurately inform them about supported housing. (Id. 130.) Plaintiff’s plan also proposes the appointment of a Special Master to oversee compliance with the remedial order. (Id. 132-133.) Plaintiff’s proposed plan will effectively implement the rulings of this Court and the important community integration
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mandate of Olmstead v. L.C., 527 U.S. 581 (1999), to which this Administration is fully committed.
The United States recognizes the federalism concerns implicated in a court’s decision to issue injunctive relief against a state government. (Defs.’ Mem. of Law in Supp. of their Proposed Remedial Plan 3 (“Defs.’ Mem.”).) But those concerns cannot prevent this Court from issuing such relief “where a state has failed to come forward with a reasonable plan or remedy.” Dean v. Coughlin, 804 F.2d 207, 214 (2d Cir. 1986); see also Milliken v. Bradley, 433 U.S. 267, 281 (1977) (if state and local authorities fail in their affirmative obligations, judicial authority may be invoked). While Defendants claim that their proposed remedy is reasonable (Defs.’ Mem. 3-4), in fact, Defendants’ proposal contradicts the factual and legal rulings issued by this Court and fails to remedy the violations already identified in this Court’s Order. That Order recognized the urgent mandate to remedy the longstanding discrimination against persons with mental disabilities in the Adult Homes, as defined by the Supreme Court in Olmstead. It is not sufficient for the Defendants to come forward with a proposal that addresses only a fraction of the violations found by the Court. The defendant must “come forward with a plan that promises realistically to work, and promises realistically to work now.” U.S. v. Yonkers Bd. of Educ., 29 F.3d 40, 43 (2d Cir. 1994) (emphasis in original, citing Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 439 (1968))
The Court has determined that Defendants have failed to comply with the Supreme Court decision in Olmstead, more than ten years after it was decided. Further, Defendants have repeatedly shown themselves unready and unwilling to accept responsibility for remedying known Olmstead violations, going back to 2002. In 2002, Governor Pataki convened and
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selected the Adult Home Facilities Workgroup, which recommended that Adult Home residents be served in more integrated settings; Defendants never implemented that recommendation. (Order 84-86, 151.) Also in 2002, New York State commissioned a study of Adult Home residents by New York Presbyterian Hospital, costing $1.3 million, to “deflect[] . . . what had become a crisis for the Governor’s office.” (Order 87-88.) The data from that study demonstrated that the vast majority of Adult Home residents could be served in supported housing. (Order 87.) However, the State prevented the director of the study from analyzing the data and never used it to determine how many Adult Home residents could live in integrated settings. (Order 149-150.) Defendants’ proposal is the latest evidence of its long-standing unwillingness to remedy the unnecessary segregation of residents of Adult Homes.
Discrimination on the basis of disability against individuals residing in the Adult Homes was fully documented in an exhaustive trial of the facts before the Court. The remedial order should fully address the violations found be the Court and be implemented immediately. Defendants may not now hide behind arguments against coming into compliance with the law that this Court has already rejected. Instead, they must be ordered to take the steps necessary to comply with federal law. Should some genuine obstacles to compliance arise, the parties are free to come to the Court at some future point for a modification of the Order based upon fact rather than conjecture about potential obstacles to compliance. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992). II. Defendants Propose to Create an Inadequate Number of Supported Housing Units
A. Defendants’ Proposal Fails to Comply With the Scope of the Court’s Findings and Order
Defendants propose creating a total of 1,000 supported housing units over a five year - 3 -

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period (Defs.’ Proposed Order 7), a number of units that is woefully inadequate to remedy the violations identified by the Court. The Court found that “virtually all” of Plaintiff’s 4,300 constituents – including those “who might have relatively high needs” – are qualified for supported housing and are not opposed to moving to a more integrated setting. (Order 3, 12, 67, 64-108, 109-128.)
Defendants argue that their proposal of 1,000 units is consistent with the alleged assumption of the Adult Care Facilities Workgroup that 800 adult home residents with mental illness could live in independent settings. (Defs.’ Mem. 7). But Defendants mischaracterize the Workgroup report, in an attempt to re-argue an issue on which the Court has already ruled against them. As this Court explained, the Adult Care Facilities Workgroup “recommended that 6,000 individuals with mental illness in Adult Homes be moved to supported housing.” (Order 111.)
Defendants propose to release any supported housing unit that is not filled by an Adult Home resident within 3 months of its availability, to individuals not covered by the remedial order. (Defs.’ Order 7.) The United States objects to this proposal because it reflects the Defendants’ position, already rejected by the Court, that few adult home residents will choose to move to supported housing. The United States also objects to this proposal because it may legitimize a lack of effort by Defendants to facilitate the transition of Adult Home residents into supported housing, which, given Defendants’ history with this population, is a legitimate concern. Further, under the current procedure for filling supported housing, supported housing providers first identify a client, and then select an apartment with the client so that the apartment satisfies the client’s desires with respect to location and other factors. Consequently, housing
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units do not sit waiting, empty, for a tenant. It is within Defendants’ control to structure the Request for Proposals process and subsequent in-reach efforts so as to ensure that units are being fully utilized by Plaintiff’s constituents.
Defendants’ proposal rejects the scope of the Court’s findings in another way. Defendants’ proposal states that supported housing is available only to those who “are able to maintain their living environment, shop and prepare meals, and manage their medications without ongoing assistance.” (Defs.’ Order 7.) This statement directly contradicts the Court’s ruling that supported housing, in fact, serves individuals who have a wide range of support needs, including those who are considered “high need.” (Order 109.) The Court specifically rejected Defendants’ position “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.’” (Order 70.) Thus, Defendants may not so limit eligibility for supported housing in the remedial plan.
B. Defendants Improperly Reject the Court’s Findings and Order on Grounds of Expense and Need for Legislative Appropriations
Defendants’ stated primary reason for proposing only 1,000 units of supported housing is the alleged expense. Defendants, by refusing to propose a remedy that complies with this Court’s Order, argue that they “preserve their position that moving individuals from Adult Homes to supported housing will not be cost neutral or result in savings, in Medicaid costs or otherwise.” (Defs.’ Mem. 8 n.6.) While the Court found that moving individuals from Adult Homes to supported housing will save the State money – specifically, $146 per year to serve an individual in supported housing instead of an Adult Home – Defendants’ proposed remedy
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refuses to accept that finding. (Order 152-168.) Defendants cling to their position, rejected at trial, that it will cost them somewhere between $14,654 and $23,162 per year to serve an individual in supported housing with services, and that creating 1,000 units will cost $18 million per year when fully implemented. (Aff. of Martha Schaefer Hayes ¶¶5, 6, 7, 13.) Significantly, Defendants ignore the comparative Medicaid costs for individuals in adult homes versus those in supported housing, a fatal error in their analysis and the fundamental pillar of the Plaintiff’s case. The Court found that Medicaid costs are much lower in supported housing than in Adult Homes and drive the overall cost savings of supported housing compared to Adult Homes for the State. (Order 157-168.) Defendants’ burden at trial was to prove their defense of a fundamental alteration based on the expense of providing supported housing for Plaintiff’s constituents, and now, having failed to carry that burden, they cannot simply reject the Court’s findings and Order.
Defendants further contend that creating additional supported housing units must be contingent upon the New York State legislature appropriating the money to fund the units. (Defs.’ Order 9.) Even assuming – contrary to this Court’s findings – that creating additional supported housing units will result in a net cost to the State, that would provide the State no legal basis for failing to comply. See Milliken v. Bradley, 433 U.S. 267 (1977) (affirming lower court’s order to state to fund future costs associated with prospective remedial plan to desegregate schools); Missouri v. Jenkins, 495 U.S. 33, 55 (1990) (holding that a District Court may order a local government entity to raise money to fund a desegregation order); Glover v. Johnson, 934 F.2d 703, 708-12 (6th Cir. 1991) (rejecting defendant’s argument that its compliance failures were caused by the legislature’s failure to appropriate sufficient funding); Halderman v. Pennhurst State School and Hosp. 542 F.Supp. 619, 625-626 (E.D. Pa..1982)
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(rejecting defendant’s argument that it could not comply with court’s order to transition individuals into community settings because legislature did not appropriate the funds it requested, as there was evidence that defendant had control over sufficient funds to comply with the order).
C. Defendants Improperly Reject the Court’s Findings and Order on the Ground of the Feasibility of a Remedy.
Defendants argue that creating 1,500 beds of supported housing per year is not feasible given the difficulty of finding that number of affordable housing units in that time period. (Def.’s Mem. 8.) But this Court found, to the contrary, that the State is capable of expanding its supported housing program at that rate to meet the needs of adult home residents. This finding was based, in part, on expert testimony from Dennis Jones that New York is capable of developing supported housing beds for Adult Home residents at a rate of approximately 1,500 per year for several years, and that it would be possible, given the real estate market in New York City, to identify a sufficient number of units or appropriate housing to achieve this goal. (Order 181-183.) Further, New York has a history of taking on big projects, like the New York/New York Initiative to provide supported housing for homeless individuals, which has planned for the development of 9,000 beds in its third phase alone. (Order 182-183.)
The United States agrees with Plaintiff’s proposal that New York create 1,500 units of supported housing each year, for up to four years, until sufficient housing has been created to meet the needs of current and future adult home residents. (Plaintiff’s Proposed Findings of Fact and Conclusions of Law 128-129.) This plan will create enough supported housing to satisfy the needs of “virtually all” of Plaintiff’s 4,300 constituents, and thus remedy the ADA violations found by the Court. The Court has already found that New York is capable of developing
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supported housing beds at this rate, and that doing so is feasible in the New York City real estate market. (Order 181-183.)
D. Defendants Improperly Reject the Court’s Findings that Providing Supported Housing for Adult Home Residents is not a Fundamental Alteration
Defendants argue that allocating supported housing for adult home residents will result in less supported housing for other populations, thus constituting a fundamental alteration (citing to Olmstead v. L.C., 527 U.S. 581, 604 (1999)). (Defs.’ Mem. 7-8.) Defendants lost this fundamental alteration argument at trial (Order 128-203), however, and cannot reargue that issue at the remedial stage. Because the Court found that moving adult home residents into supported housing will save the State money, doing so should have no affect on the number of units of supported housing available to other populations. III. Defendants Improperly Propose Education, Assessment and Training that the
Court Has Already Determined is Largely Unnecessary and Will Only Cause Further Delay The Defendants propose education, assessment, and training that will not effectively prepare people in Adult Homes to transition to the community, and will unnecessarily delay the remedy for one year. The United States agrees that in-reach to, and assessment of, adult home residents is needed in order for those individuals to move into supported housing, but that inreach and assessment can and should be performed by supported housing providers, in accordance with current State procedures. OMH already has a process in place by which supported housing providers – the organizations and groups that find housing and provide staff support for the clients in supported housing – conduct assessments to enable individuals to move to that setting. Supported housing providers (typically non-profit social service organizations selected by OMH through a Request
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for Proposals process) fill their units by doing in-reach into psychiatric and other hospitals, homeless shelters and the streets, prisons, Adult Homes, and other places, to educate individuals about, and determine the correct supports the individual will need to succeed in, supported housing. (Order 67-68, 68 n.293, 112.) As Linda Rosenberg, a former Senior Deputy Commissioner of OMH, testified at trial, OMH currently contracts with providers of supported housing, Assertive Community Treatment (“ACT”) services, and case management services, who go into prisons to do in-reach to individuals with mental illness reaching the end of their prison term. Providers could proceed the same way with “[residents] in the Adult Homes and begin to get to know them, develop a relationship, develop trust, have them visit, as I said, and then offer them the chance to live in their own home with supports.” (Trial Tr. 698-99.) The same process occurs for individuals in state psychiatric centers: OMH’s April 2009 RFP for Supported Housing for Adults with Serious Mental Illness specified that “Agencies must work with the psychiatric center . . . [and] provide in-reach, develop coordinated discharge admission plans, . . . identify/provide services and supports to ensure successful transition into the community.” (Trial Tr. 3467-69.)
The most effective education about the actual experience of using supported housing and services is this kind of in-reach by supported housing and treatment providers. The providers can most accurately describe and show potential residents their program and which supports would be available to the resident. As Dennis Jones testified at trial, the supported housing providers’ in-reach should include taking potential clients to look at different apartments, building trust with the clients, and helping them to understand how their benefits and services will be maintained. (Trial Tr. 3485-86.)
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Identifying the correct supports for the individual is a critical part of the supportive housing providers’ job as well. As the Court stated, “Supported housing providers routinely do assessments as part of their work to identify the specific supports and services that their clients will require.” (Order 68, 112.) The supported housing provider is also in the best position to determine if there is some reason that the resident would not succeed in its housing, and thus not be accepted.
In contrast, Defendants’ proposed once-per-year educational opportunity for adult home residents to learn about supported housing is inadequate and ineffective, and Defendants do not commit to more than one opportunity per year. Some individuals who have been living in Adult Homes for many years may need multiple meetings or discussions about supported housing, and trips to see what supported housing and their potential apartment looks like, before they feel sufficiently informed to make a decision to move to supported housing. Residents of Adult Homes should not be limited to an annual OMH educational opportunity to get the information they need to decide whether to move into supported housing.1 This element of Defendants’ proposal appears to be a token effort without any real commitment to the education and encouragement that residents, like many individuals who have lived for long periods in an institution, may need to overcome their fear of leaving the institution. (Order 126.)
Defendants recommend unnecessarily limiting criteria to determine who will be permitted to move to supported housing. These elements of Defendants’ proposal once again
1As a separate requirement, the United States agrees with the Defendants that a written handout or fact sheet, developed by the parties, would be a good way to facilitate a requirement that clinicians, adult home staff, and others relay accurate information to adult home residents about supported housing. (Defs.’ Mem. 5.)
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contradict the Court’s ruling that virtually all of Plaintiff’s constituents are qualified for, and not opposed to, supported housing. (Order 3, 12, 64-108, 109-128.) Defendants attempt to limit the individuals eligible for supported housing to those with “serious mental illness” (Defs.’ Proposed Order 3), but who also have minimal needs. (Id. 7.) As discussed above, the Court rejected Defendants’ proposition that supported housing is only for individuals with minimal needs. In addition, the Court did not limit the individuals who are entitled to relief to those with “serious mental illness.” The Court’s order applies to “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.” (Order 2.) The Court further identified Plaintiff’s constituents as “approximately 4,300 individuals with mental illness, [whom Plaintiff proved] are not receiving services in the most integrated setting appropriate to their needs.” (Order 2.) Defendant cannot be permitted, at the remedial stage, to change the definition of those entitled to relief, in contradiction of the Court’s Order.
Additional limitations on eligibility for supported housing offered in the Defendants’ plan make no sense and serve only to frustrate and undermine an appropriate remedy for Plaintiff’s constituents. First, Defendants make ineligible any resident who “refuses or declines to participate in or cooperate with the assessment process.” (Defs.’ Proposed Order 4.) Second, Defendants make ineligible any resident who expresses “that he or she does not desire to move from the adult home to Supported Housing.” (Id. 5.) There is no legitimate reason to disqualify from supported housing a person who initially refuses or declines to participate in whatever assessment process is provided, or who initially expresses a lack of desire to move to supported
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housing. If there are individuals who do not wish to move after receiving appropriate information, or who refuse to participate in whatever assessment or transition process is required, then those individuals will not move. There is no need to permanently disqualify them as they may choose to move at a subsequent time.
Once more contradicting the Court’s findings and Order, Defendants assert that ACT teams should be available only to three groups: a) individuals who are under a court’s Assisted Outpatient Treatment order; b) individuals who demonstrate a high use of acute psychiatric hospitalization or psychiatric emergency or mobile crisis services; or, c) individuals who have an inpatient psychiatric hospitalization during the last year that lasted ninety days or longer. (Defs.’ Order 7). These eligibility criteria for ACT are the current criteria used in New York City, while less restrictive guidelines apply to the rest of the State. (Defs.’ Mem. 10.) The Court, however, has already ruled that OMH’s statewide ACT guidelines would apply to any adult home residents with high needs, and that applying those guidelines in New York City would not be a fundamental alteration of its program. (Order 202.) Thus, Defendants may not limit ACT services for adult home residents in New York City as they propose, if doing so will prevent such residents from moving into supported housing.
Defendants argue that Plaintiff’s proposal impermissibly constrains the judgment of the professionals assessing adult home residents’ qualifications to live in supported housing. (Defs. Mem. 6.) To the contrary, Plaintiff’s proposal is consistent with the Court’s findings, and allows appropriate deference for professional judgment. Plaintiff proposes that almost all of its constituents be treated as qualified for supported housing. (Pl.’s Proposed Findings at 130.) This is consistent with the Court’s finding that virtually all of Plaintiff’s constituents are
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qualified for supported housing. Plaintiff then defines certain characteristics which may disqualify an individual from supported housing, depending on the assessment of the supported housing provider. (Id.) This standard allows the assessing professional appropriate deference.
Defendants propose that, after assessment, some residents go through training before they will be considered eligible for supported housing. (Defs.’ Proposed Order 5, 6.) Defendants assert that this training is necessary because “some individuals may need to learn how to use the public transportation system, so that they will not become lost, or require education concerning their medications, managing their money, or shopping or cooking.” (Defs.’ Mem. 5.) The United States agrees that some individuals may need or wish to learn certain skills in order to successfully live in supported housing. The United States rejects, however, that residents must complete such training while living in Adult Homes in order to qualify for supported housing, and the Court rejected this approach as ineffective. The Court found that “teaching skills in a setting in which they cannot be applied or practiced is ineffective” (Order 61), and that the best way for people with mental illness to retain skills is to practice them in the environment in which they actually live. (Order 41-42.) Individuals who move into supported housing do get help with and training on life skills through ACT, which “delivers comprehensive and flexible treatment, support, and rehabilitation services to individuals in their natural living settings,” and other case management services. (Order 52.) ACT can assist recipients with teaching medication management, personal care and safety, grocery shopping and cooking, using transportation, managing finances, and other activities. (Order 53.) Thus Defendants’ proposal to require adult home residents to undergo training in order to become eligible for supported housing appears to be just another unnecessary obstacle to effectuating a remedy for the
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Case 1:03-cv-03209-NGG-MDG Document 385 Filed 11/24/09 Page 16 of 18
violations found in this case. IV. Defendants’ Proposed Remedy Fails to Satisfy the Court’s Order to Provide
Adequately for Future Adult Home Residents Defendants’ proposed remedy does not include the creation of supported housing units for future adult home residents who desire placement in supported housing. While Defendants agree to inform such future adult home residents that Adult Homes are not the most integrated setting available to individuals with mental illness (Defs.’ Proposed Order 10), such knowledge is meaningless if there is no integrated residential setting available for the person. The Court’s conclusion that Adult Homes are not the most integrated setting appropriate to the needs of Plaintiff’s constituents is no less true for future Adult Homes residents with mental illness, and serving such individuals in Adult Homes will similarly violate the ADA. In yet another regard, Defendants ignore the Court’s findings as they apply to future adult home residents, and propose to knowingly discriminate against those individuals in the future, by failing to provide sufficient supported housing for current and future adult home residents. V. Defendants’ Proposal Improperly Rejects Independent Monitoring of their Compliance with the Remedial Order It is within a federal court’s power to appoint a special master to monitor compliance with its remedial power. United States v. Yonkers Bd. of Ed., 29 F.3d 40, 44 (2d Cir. 1994) Further, where defendants have demonstrated resistance to the remedy, as Defendants have here, courts have found a monitor to be necessary. Toussaint v. McCarthy, 926 F.2d 800, 807 (9th Cir. 1991) (“appointment of a monitor is peculiarly appropriate when there has been recalcitrance on the part of prison officials” that evinced a lack of “desire or the ability to comply in the future”). Furthermore, this court does not need to wait for compliance issues to arise in order to appoint a
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Case 1:03-cv-03209-NGG-MDG Document 385 Filed 11/24/09 Page 17 of 18
special master. Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir. 1982). Defendants reject the proposal for a Special Master and instead propose that Defendants
report directly to Plaintiff’s counsel, who may receive attorneys’ fees for no more than 40 hours of work per year for monitoring Defendants’ compliance in this case. While a Special Master may or may not be necessary, the United States believes that an independent monitor will be necessary to ensure the State’s compliance with the remedy in this case. As the Defendants’ proposed remedy illustrates, Defendants have not accepted the findings of this Court and do not propose a plan that will remedy the violations found. Based upon the inadequacy of the Defendants’ remedial proposal and the repeated rejection of the Court’s findings, it is reasonable to anticipate that Defendants will comply only begrudgingly, at best, with whatever remedy this Court ultimately orders. Consequently, it will be important for effectuating this Court’s order to have an independent monitor who has the time and knowledge to collect accurate data and assess Defendants’ compliance with the requirements set out by the Court’s remedial order. While Plaintiff’s counsel may have the expertise to do this, such monitoring is very time consuming, and will certainly take more than 40 hours per year. Plaintiff’s counsel cannot be expected to perform this function pro bono.
For the foregoing reasons, the United States supports the Plaintiff’s proposed remedial plan and objects to Defendants’ remedial plan. The United States respectfully requests that the Court issue an order consistent with Plaintiff’s proposed remedial plan, and reject the Defendants’ invitation to rewrite its well-reasoned and carefully drafted Order as proposed in their proposed remedial plan.
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Case 1:03-cv-03209-NGG-MDG Document 385 Filed 11/24/09 Page 18 of 18

Date: November 24, 2009

Respectfully submitted,

BENTON J. CAMPBELL United States Attorney Eastern District of New York
By:_________/s/_____________________ MICHAEL J. GOLDBERGER Chief of Civil Rights, Civil Division United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052 michael.goldberger@usdoj.gov
Counsel for Proposed Plaintiff-Intervenor United States of America

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
_________/s/__________________ JOHN L. WODATCH, Chief RENEE M. WOHLENHAUS, Deputy Chief AMANDA MAISELS, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-0663 Facsimile: (202) 616-6862 Amanda.maisels@usdoj.gov
Counsel for Proposed Plaintiff-Intervenor United States of America

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

03 Civ. 3209 (NGG) (MDG)

DISABILITY ADVOCATES, INC.’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
December 3, 2007
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

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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.
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................................................................. iii
Preliminary Statement .........................................................................................................1
Statement of Facts................................................................................................................6 A. Disability Advocates, Inc............................................................................ 6 B. Defendants .................................................................................................. 7 C. Adult Homes Are Part of the State’s Mental Health System...................... 9 D. Adult Homes............................................................................................. 11 E. Supported Housing ................................................................................... 16 F. Numerous Adult Home Residents with Mental Illness Desire to Live in More Integrated Settings .............................................................. 17 G. Virtually All Adult Home Residents with Mental Illness Are Qualified for Supported Housing.............................................................. 19 H. Defendants Have Not Developed a Plan to Ensure that Persons with Mental Illness who Reside in Adult Homes Can Move to Integrated, Community-Based Settings .................................................... 21 I. Defendants Have Excluded Residents of Adult Homes from More Integrated Housing.................................................................................... 25 J. The Relief in This Action ......................................................................... 27
Argument ...........................................................................................................................30
I. DAI HAS STANDING TO ASSERT ITS CLAIMS ............................................31 A. DAI’S Enabling Statute Authorizes This Suit .......................................... 33 B. DAI Meets The Requirements For Associational Standing ..................... 34 1. DAI Has Identified Numerous Constituents With Standing..........34 2. DAI Has Standing to Seek Systemic Relief ..................................38
II. DAI’S CLAIMS ARE PROPERLY BROUGHT UNDER TITLE II OF THE ADA..............................................................................................................41 A. DAI Challenges Discrimination by Defendants in their Own State Programs and Activities............................................................................ 42 B. The Unnecessary Segregation of DAI’s Constituents in Adult Homes Results from Defendants’ Policies and Choices in Administering Programs and Activities.................................................... 45 C. A State’s Use of Private Entities to Deliver Services in its Mental Health System does not Negate the State’s Obligation to Comply with the ADA’s Integration Mandate ....................................................... 51
III. DAI’S CONSTITUENTS ARE NOT IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR NEEDS..................................................53

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A. The ADA And Rehabilitation Act Contain An Expansive Integration Mandate.................................................................................. 55
B. Supported Housing is Far More Integrated Than Adult Homes............... 58 1. Substantial Evidence Supports DAI’s Contention that Adult Homes are Segregated Institutions that Impede Interaction with NonDisabled Adults .........................................................................................59 2. Supported Housing is a Far More Integrated Setting than an Adult Home 61
IV. DAI’S CONSTITUENTS ARE QUALIFIED FOR SUPPORTED HOUSING .............................................................................................................63
V. DEFENDANTS HAVE NOT PROVED THEIR “FUNDAMENTAL ALTERATION” DEFENSE..................................................................................68 A. Defendants Have Not Demonstrated That Their Costs Would Increase as a Result of the Relief in this Action....................................... 69 B. Defendants Have Not Demonstrated that Other Individuals Would Be Adversely Affected by the Relief Sought in this Action..................... 74 C. Defendants Have Not Demonstrated that Relief in this Action Would Require Alteration of the State’s Programs .................................. 76
VI. DAI’S THIRD AND SIXTH CLAIMS FOR RELIEF..........................................79 VII. THE GOVERNOR IS A PROPER PARTY TO THIS LITIGATION..................79 Conclusion .........................................................................................................................82
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TABLE OF AUTHORITIES

CASES

Page(s)

Adickes v. S.H. Kress & Co. 398 U.S. 144 (1970).................................................................................................................32

Aiken v. Nixon 236 F. Supp. 2d 211 (N.D.N.Y. 2002)...............................................................................39, 42

Alford v. City of Cannon Beach No. CV-00-303-HU, 2000 WL 33200554 (D. Or. Jan. 17, 2000)...........................................45

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................................................................32

Autism Society of Michigan v. Fuller, No. 05:05-CV-73, 2006 WL 1519966 (W.D. Mich. May 26, 2006).......................................42

Blum v. Yaretsky, 457 U.S. 991 (1982).................................................................................................................45

Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999) aff’d. sub nom, Mental Disability Law Clinic, Touro Law Center v. Carpinello, No. 04-6619-cv, 2006 WL 1527117 (2d Cir. May 31, 2006)...........................................passim

Bruggeman v. Blagojevich, 219 F.R.D. 430 (N.D. 111. 2004) ......................................................................................74, 75

Bryson v. Stephen, No. 99-CV-558-SM, 2006 WL 2805238 (D.N.H. Sep. 29, 2006)...........................................74

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...................................................................................................................41

Clark v. Burger King Corp., 255 F. Supp. 2d 334 (D.N.J. 2003)..........................................................................................41

Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003)..................................................................................................41

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

Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999) .................................................................................................33

iii
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Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54 (2d Cir. 1987) ......................................................................................................32
E.K. v. New York Hosp.-Cornell Med. Ctr., 158 Misc.2d 334 (N.Y. Sup. Ct. 1992)....................................................................................33
Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ........................................................................................passim
Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005) .............................................................................................passim
Frederick L. v. Dep’t of Public Welfare, 157 F.Supp.2d 509 (E.D. Pa. 2001)...................................................................................66, 79
Goldstein v. Coughlin, 83 F.R.D. 613 (W.D.N.Y. 1979) .............................................................................................34
Hahn Barta v. Linn County, IA, 130 F.Supp.2d 1036 (N.D. Iowa 2001) ...................................................................................68
Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) ..........................................................................................49, 54, 59
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) .......................................................55, 69
Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1997)...........................................................................................................36, 40
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) ......................................................................................................47
Int’l Union, United Auto., Aerospace & Agr. Implement. Workers of Am. v. Brock, 477 U.S. 274 (1986).....................................................................................................37, 41, 42
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................40
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................................39
Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002) ........................................................................54, 71, 74
Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993) ...........................................................................33, 68, 69
Mclnnis-Misenor v. Maine Med. Ctr., 211 F. Supp. 2d 256 (D. Me. 2002) .........................................................................................39
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Michigan Protection & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695 (E.D. Mich. 1992) .......................................................................................33
Monaco v. Stone, No. CV-98-3386, 2002 WL 32984617 (E.D.N.Y. Dec. 20, 2002)..............................33, 35, 37
N.J. Protection & Advocacy v. Davy, No. Civ. 05-1784, 2005 WL 2416962 ...............................................................................35, 42
Ohio Legal Rights Serv. v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877 (S.D. Ohio 2005) ....................................................................................33
Olmstead v. L.C., 527 U.S. 581 (1999)..........................................................................................................passim
Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) ...............................................................................35, 36, 39, 42
Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) .................................................................................................. 47
Pennsylvania Protection and Advocacy, Inc. v. Houston, 136 F. Supp. 2d 353 (E.D. Pa. 2001).......................................................................................42
PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).................................................................................................................67
Protection & Advocacy, Inc. v. Murphy, No. 90 C 569, 1992 WL 59100 (N.D. Ill. Mar. 16, 1992).......................................................33
Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) .......................................................................................43, 49, 53
Reeves v. Queen City Transp., Inc., 10 F. Supp.2d 1181 (D. Colo. 1998)........................................................................................45
Risinger v. Concannon, 117 F. Supp. 2d 61 (D. Me. 2000) ...............................................................................33, 35, 42
Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999)..................................................................................54, 81
Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992)..........................................................................................33
Shotz v. Gates, 256 F.3d 1077 (11th Cir. 2001) ...............................................................................................39
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Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) ...........................................................................39, 40, 41
Tenn. Protection & Advocacy, Inc. v. Metro. Gov’t of Nashville, No. 3-95-0793, 1995 WL 1055174 (M.D. Tenn. Nov.14, 1995) ......................................33, 42
Tennessee Protection and Advocacy, Inc. v. Bd. of Ed. of Putnam County, 24 F. Supp. 2d 808 (M.D. Tenn. 1998)....................................................................................42
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ............................................................................................passim
Trautz v. Weisman, 846 F. Supp. 1160 (S.D.N.Y. 1994) ............................................................................33, 35, 42
Tyler v. City of Manhattan, 849 F. Supp. 1429 (D. Kan. 1994)...........................................................................................45
United Food & Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544 (1996).................................................................................................................36
Univ. Legal Servs., Inc. v. St. Elizabeth’s Hosp., No. Civ. 105CV00585TFH, 2005 WL 3275915 (D.D.C. July 22, 2005)..............33, 35, 39, 42
Unzueta v. Schalansky, No. 99-4162, 2002 WL 1334854 (D. Kan. May 23, 2002) .....................................................33
Warth v. Seldin, 422 U.S. 490 (1975).................................................................................................................40
CONSTITUTIONAL ARTICLES N.Y. Const. Art. XVII, § 4 ............................................................................................................10 U.S. Const., Art. III, § 2.................................................................................................................36
UNITED STATES STATUTES AND REGULATIONS 42 U.S.C. § 10801, et seq. ...............................................................................................4, 6, 33, 34 42 U.S.C. § 10802............................................................................................................................7 42 U.S.C. § 10805..........................................................................................................................35 42 U.S.C. § 12101..........................................................................................................................57
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42 U.S.C. § 12132....................................................................................................................47, 56 42 U.S.C. § 12134..........................................................................................................................57 Protection and Advocacy for Individuals with Mental Illness Act of 2000, Pub. L.
No. 106-310 § 3206, 114 Stat. 1193, 1193-94........................................................................34 28 C.F.R. § 35.130.............................................................................................................31, 52, 57
NEW YORK STATE STATUTES AND REGULATIONS N.Y. EXEC. LAW § 700 ..................................................................................................................22 N.Y. Exec. Law §§ 702 .................................................................................................................82 N.Y. MENTAL HYG. LAW § 5.03 ....................................................................................................83 N.Y. MENTAL HYG. LAW § 5.07........................................................................................43, 47, 48 N.Y. MENTAL HYG. LAW § 7.01 ..........................................................................................8, 47, 48 N.Y. MENTAL HYG. LAW § 7.07................................................................................................9, 47 N.Y. MENTAL HYG. LAW § 29.15 .................................................................................................11 N.Y. MENTAL HYG. LAW § 45.10..................................................................................................11 N.Y. PUB. HEALTH LAW § 204.......................................................................................................83 18 N.Y.C.R.R. § 487......................................................................................................9, 11, 47, 62 18 N.Y.C.R.R. § 485...............................................................................................................passim
FEDERAL RULES Federal Rule of Civil Procedure Rule 21.......................................................................................83 Federal Rule of Civil Procedure 23 ...............................................................................................41 Federal Rule of Civil Procedure 56(c)...........................................................................................32
OTHER AUTHORITIES S. 568, 2007-2008 Reg. Sess. (N.Y. 2007) ...................................................................................23
vii
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A. 3864, 2007-2008 Reg. Sess. (N.Y. 2007) (New York State Assembly counterpart).................................................................................23
S. 568, Bill Summary, 2007-2008 Reg. Sess. (N.Y. 2007) ..........................................................23
Local Civil Rule 56.1.....................................................................................................................66

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viii

Plaintiff Disability Advocates, Inc. (“DAI”) respectfully submits this Memorandum of Law in Opposition to the Motion for Summary Judgment 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 (collectively, “defendants” or “the State”).
Preliminary Statement The State’s motion for summary judgment is replete with disputed issues of fact and errors of law. But it establishes one thing—that the State is committed to relying on segregated adult homes in its mental health system as a last stop for people with mental illness. Far from setting forth an effective plan to enable residents of adult homes to have a meaningful opportunity to access more integrated housing, the defendants argue instead that adult home residents already live in fully integrated settings, that they receive mental health services that will help them live more independently and that the State has developed community-based housing that they can access if they so desire. But the record evidence establishes otherwise. The testimony of adult home residents, adult home operators, State employees and DAI’s and defendants’ experts alike demonstrate that adult homes are segregated settings akin to psychiatric institutions. People with mental illness who reside in adult homes live in close quarters entirely with other persons with disabilities and almost exclusively with other persons with mental illness. Almost every aspect of their daily lives is highly regimented and limited by rigid rules and practices. While defendants extol activities and programs that are available to adult home residents, any benefit these programs may offer is purely artificial for someone who has been relegated indefinitely to an institution, with scores of other persons with
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mental illness and with no hope of moving on to a setting in which he or she would use those daily living skills. Moreover, the evidence shows that such programs do nothing to enable adult home residents to move to more integrated settings because, with very few exceptions, no one moves. Indeed, the State acknowledges that only a handful of adult home residents have moved to supported housing. Additionally, the State concedes that there is a 2% vacancy rate in supported housing and that demand for that housing far exceeds availability. Thus, despite the State’s recent designation of adult home residents as one of many “priority” populations for a very small percentage of OMH housing, such individuals are a priority in name only, as there is no realistic probability that they will be able to access supported housing.
To counter the fact that very few adult home residents move to supported housing, defendants argue that adult home residents are not capable of living in such housing and that only individuals who are capable of living independently with few support services are eligible for such housing. But the record evidence shows that numerous individuals with mental illness who reside in adult homes are capable of living in supported housing. A governor-appointed workgroup reached that conclusion; medical professionals hired by the State reached that conclusion; DAI’s mental health experts reached that conclusion; and even defendants’ expert reached that conclusion.
Defendants claim that the relief DAI seeks in this action would prejudice other persons with mental illness who seek community housing. But DAI does not ask that defendants use money now designated for other needy populations to fund a remedy in this case; DAI seeks to redirect funds the State currently spends on persons with mental illness in adult homes to support those same individuals in supported housing.
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For this reason, the relief in this action will not require the State to cut services currently provided to other needy populations.
While defendants criticize DAI for seeking a “set aside” of beds for a particular group, defendants have, on several occasions, reserved beds solely for certain populations. Such a remedy is thus consistent with the State’s own practices. People with mental illness who reside in adult homes have been almost entirely excluded from the State’s community-based housing for decades. DAI simply seeks through this action to enforce the State’s obligation to ensure that these individuals have access to this housing.
Perhaps it is because the State has no viable plan to bring its mental health system into compliance with Olmstead v. L.C., 527 U.S. 581 (1999), and the Americans with Disabilities Act (“ADA”) that defendants argue at this late date that DAI lacks standing to bring this suit and that the State cannot be held liable under the ADA because it does not own or operate the homes. This case is not premised on the poor conditions and abuses in adult homes; it is about the choice the State has made to plan, structure and administer its mental health system to deliver services to thousands of individuals with mental illness in large, segregated adult homes, and to allocate funding to serve these individuals in adult homes rather than in more integrated settings. It is the State itself that is causing injury to adult home residents, and DAI has standing, by statute, to bring claims on behalf of people with mental illness in adult homes to remedy that injury.
Defendants’ motion for summary judgment should be denied for the following reasons:
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First, as a protection and advocacy agency, DAI has standing, under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801, et seq., to bring this action on behalf of individuals with mental illness who reside in adult homes in New York State. DAI’s constituents are suffering injury in fact; that injury is caused by the actions of the State; and an order directed to the State will remedy that injury. Thus, DAI has standing to bring this action on behalf of its constituents.
Second, DAI’s claims seek to end discrimination by defendants in their own services, programs and activities. DAI does not, as defendants suggest, challenge the conduct of licensees of the State, but rather the State’s own failure to ensure that its service system affords individuals with mental illness the opportunity to receive services in the most integrated setting appropriate to their needs. In discharging their responsibility to coordinate a system of mental health services with appropriate residential arrangements, defendants have chosen to administer the State’s mental health system in a way that segregates persons with mental illness in large institutional adult homes rather than provides services in more integrated settings. Defendants cannot evade their responsibilities under the ADA and Olmstead by arranging to use privatelyowned facilities as part of their mental health system.
Third, DAI’s constituents are not in the most integrated setting appropriate to their needs. Defendants argue that the integration mandate of the ADA and Olmstead requires only “opportunity for contact with nondisabled persons,” but the law unequivocally requires the State to administer its services in the “most integrated setting appropriate to the needs of qualified individuals with a disability.” The record is replete
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with evidence, including the opinions of defendants’ own experts, that adult homes segregate and isolate persons with mental illness and impose significant barriers to integration and interactions with nondisabled persons. While the State makes available scattered-site supported apartments that are far more integrated than adult homes and serve persons with the same diagnoses and symptoms as those in adult homes, individuals with mental illness in adult homes are not afforded the opportunity to access such housing.
Fourth, the record evidence shows that numerous persons with mental illness in adult homes both desire to live in supported housing and are capable of doing so with appropriate supports. Estimates reached by State workgroups and conclusions reached by professionals conducting assessments for the State indicate that thousands of adult home residents could live in more integrated settings. Additionally, DAI’s experts—(1) a psychiatrist and former Director of the Massachusetts Department of Mental Health, (2) a former public mental health official who has overseen the development of housing and services in integrated settings for people with mental illness, and (3) a former Assistant Secretary for Alcohol, Drug Abuse and Mental Health of the State of Florida, and (4) a former Commissioner of the Texas Department of Mental Health and former Commissioner for Mental Health in the State of Indiana—have concluded that virtually all of the residents of the adult homes at issue are qualified to move to more integrated supported housing.
Fifth, defendants have failed to demonstrate that granting relief in this action would fundamentally alter the nature of their services, programs or activities. As DAI demonstrated in its motion for partial summary judgment, defendants’ failure to
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develop a comprehensive, effectively working plan to enable persons with mental illness in adult homes to receive services in more integrated settings places the fundamental alteration defense beyond their reach. Even if defendants could avail themselves of such a defense, they have failed to perform a fiscal analysis sufficient to sustain their burden of proof. Moreover, to the extent they performed a post-litigation fiscal analysis, their analysis was seriously flawed in that it relied on baseless assumptions and failed to consider cost savings the State would realize from the relief sought. They have similarly failed to demonstrate that the relief sought would alter the nature of the State’s existing programs, as DAI simply seeks meaningful access to a service that already exists.
Finally, contrary to the defendants’ assertions, the presence of the Governor is necessary for the full relief requested by DAI. Consistent with the obligations conferred on him by the State’s mental health laws, the Governor has extensive involvement in overseeing and administering the State’s mental health system. Because the relief sought in this action requires the coordinated effort of all the defendants, including the Governor, he should not be dismissed from this action.
For all of these reasons, defendants’ motion for summary judgment should be denied.
Statement of Facts A. Disability Advocates, Inc.
DAI is a New York not-for-profit corporation which since 1989 has been an authorized protection and advocacy agency pursuant to the Protection and Advocacy
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for Individuals with Mental Illness Act, 42 U.S.C. § 10801, et seq. (“PAIMI”).1 (Zucker Decl. ¶ 4.)2 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.” (Murray Decl. Ex. 52 (Disability Advocates, Inc., http://www.disabilityadvocates.info/.) Its constituents consist of “individual[s] with mental illness,” as defined under PAIMI. 42 U.S.C. § 10802(4). B. Defendants
Defendant New York State Department of Health (“DOH”) is an agency of New York State. (Answer ¶ 14.) Defendant Richard Daines is the Commissioner of DOH. DOH administers and enforces New York’s public health laws. DOH licenses and monitors facilities in which health care and other services are provided, and enforces the laws and regulations applicable to these facilities. (Wickens Dep. 12:9-19; Reilly Dep. 39:18-20; Kerr Dep. 38:5-10.)
Defendant New York State Office of Mental Health (“OMH”), a component of the Department of Mental Hygiene, is also an agency of New York State. (Answer ¶ 16.) Defendant Michael Hogan is the Commissioner of OMH. OMH funds, oversees, licenses, and credentials mental health programs serving persons with mental illness in New York State. (Answer ¶ 40; Tacaronti Dep. 18:2-19:3, 167:8-11; Baer Dep.
1 Pursuant to PAIMI, every state, the District of Columbia, Puerto Rico, and the federal territories have established protection and advocacy organizations (“P&As”) for individuals with mental illness. (Zucker Decl. ¶ 5.)
2 Throughout this Memorandum of Law, Declarations will be cited by the witness’s name and “Decl. ¶ __,” Affidavits will be cited by the witness’s name and “Aff. ¶ __,” and Depositions, which are attached to the declarations of Francine N. Murray, Esq. will be cited by the witness’s name and “Dep. __.” Defendants’ Memorandum of Law in Support its Motion for Summary Judgment is referred to throughout as “Defs.’ Br.”
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237:17-242:15.)3 Among these programs, OMH operates 25 state psychiatric hospitals located across the state.4 OMH funds other mental health programs by issuing requests for proposals (RFPs) that seek proposals from localities and nonprofit service providers. (See, e.g., Newman Aff. ¶¶ 60-63; Murray Decl. Ex. 128 (2000 Supported Housing RFP); Murray Decl. Ex. 55 (2003 CR/SRO RFP); Murray Decl. Ex. 56 (2005 Supported Housing RFP).) These programs include “supported housing” programs: scattered site apartments with supportive mental health services and other services. See infra Part E.
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 in conformity with the Americans with Disabilities Act and the Rehabilitation Act.
Defendants are jointly responsible for New York State’s mental health care delivery programs and services: “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.” (Declaration of Anne S. Raish in Support of DAI’s Motion for Partial Summary Judgment, dated Aug. 10, 2007 (“Raish Decl.”) Ex. 36 (N.Y. MENTAL HYG. LAW § 7.01).) Specifically, DOH is responsible for promoting the “development of sufficient and appropriate residential care programs for dependent
3 See also Murray Decl. Ex. 53 (New York State Office of Mental Health, About OMH (last visited Dec. 3, 2007), at http://www.omh.state.ny.us/omhweb/about/).
4 Murray Decl. Ex. 54 (Comprehensive Statewide Plan for Mental Health Services, October 2007 Update, at http://www.omh.state.ny.us/omhweb/Statewideplan/ childrens_mental_health_act/oct2007_update.html.).
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adults.” (Raish Decl. Ex. 34 (18 N.Y.C.R.R. §§ 485.3(a)(1), 487.1(b).) OMH is responsible 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.” (Raish Decl. Ex. 36 (N.Y. MENTAL HYG. LAW § 7.07(a).) Among its programs are community support, residential, and family care programs.5 Further, OMH “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.” (Id. § 7.07(b).) C. Adult Homes Are Part of the State’s Mental Health System
As New York State downsized its state hospital system, it increasingly relied on adult homes to provide housing for people with mental illness. (Murray Decl. Ex. 57, at 1 (ADULT HOME WORKGROUP, THERE’S NO PLACE LIKE HOME: RECOMMENDATIONS FOR IMPROVING THE QUALITY OF LIFE IN ADULT HOMES SERVING PEOPLE WITH MENTAL ILLNESS (June 2000).) The placement of large numbers of people with mental illness into adult homes is 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. (Sundram Aff. ¶ 8; Rosenberg Aff. ¶ 5; Raish Decl. Ex. 38 (Memorandum to Members of Mnetal Health Services Council from Commissioner James Stone (Nov. 22, 2002); Schimke Dep. 10:15-11:10.) To meet the growing need for housing created by the large numbers of discharges from State psychiatric hospitals, the State licensed private
5 Murray Decl. Ex. 53.
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providers to create adult homes using under-utilized facilities, such as hotels, motels, YMCAs and other similar buildings. (Sundram Aff. ¶ 9; see also Raish Decl. Ex. 38.)
The number of people with mental illness living in adult homes has increased by 27% since 1979. (Murray Decl. Ex. 57, at 2.) In 2002, there were 12,586 recipients of mental health services residing in adult homes—more than twice the number served in state hospitals. OMH, 2004-2008 Statewide Comprehensive Plan for Mental Health Services (Raish Decl. Ex. 56 at 69.)6
Together, DOH and OMH monitor and inspect adult homes. (Answer ¶¶ 16, 17; Murray Decl. Ex. 58 (N.Y. Const. Art. XVII, § 4); Raish Decl. Ex. 34 (18 N.Y.C.R.R. § 485.3(b)(1).) Additionally, they exert direct control over the availability of adult home beds for individuals with mental illness through the certificate of need process. Under state law, no one may operate an adult home facility without an operating certificate from DOH. (Raish Decl. Ex. 34 (18 N.Y.C.R.R. § 485.3(a)(3).) Operating certificates for adult homes must be reissued at least every four years. (Murray Decl. Ex. 60 (18 N.Y.C.R.R. § 485.5(c).) DOH may revoke, suspend or limit an adult home’s operating certificate upon determining that this action would be in the public interest because it would conserve resources. (Id. § 485.5(m)(1)(i).) Hence, DOH has the authority to certify a need for fewer adult home beds, based on the availability of other programs in which mental health services are provided—including supported housing.
A state statute explicitly recognizes that state hospitals and other psychiatric inpatient facilities licensed by the State will use adult homes for discharges,
6 See also Murray Decl. Ex. 59 (OMH, Table 1.A: Clients Served During Week Of 2005 Pcs, By Major Age Group By Program, www.omh.state.ny.us/omhweb/pcs/survey05/state_tables/ ny_t1.htm (last visited Dec. 3, 2007) (state survey data showed 4,865 individuals over 18 in state hospitals in 2005)).
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(Murray Decl. Ex. 61 (N.Y. MENTAL HYG. LAW § 29.15(i)(2)(II) (amended as recently as L 2006, Ch. 534).) Additionally, state psychiatric centers directly operate mental health programs located inside the walls of some adult homes,7 and State officials must approve contracts by which other providers undertake to do so in adult homes with significant numbers of people with mental illness (Murray Decl. Ex. 64 (18 N.Y.C.R.R. § 487.7(b), (c)(1); Tacoronti Dep. 18:17-23.)8 D. Adult Homes
Adult homes are segregated, institutional for-profit settings in which individuals with mental illness reside in close quarters entirely with other persons with disabilities and almost entirely with 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; Kaufman Decl. Ex. A at 8.) The adult homes at issue in this case house resident populations numbering anywhere from 125 people to 427 people. (Raish Decl. Exs. 2, 31 (New York State DOH Adult Care Facilities Census Reports).) The most recent census data available for the homes at issue indicate that in 15 of the 21 homes, 95% or more of the residents have mental disabilities and in seven of these, more than 99% of residents have mental disabilities. (Id.)
7 See Defs.’ Br. 5; Murray Decl. Ex. 62 (OMH, South Beach Psychiatric Center, http://www.omh.state.ny.us/omhweb/facilities/sbpc/facility.htm#inpatient); Murray Decl. Ex. 63 (OMH, Creedmoor Psychiatric Center Outpatient Services, http://www.omh.state.ny.us/ omhweb/facilities/crpc/outpatient%5Fservices.htm); S.B. Dep. 151:4-15, 161:14-19; S.P. Dep. 16:23-17:11.
8 In addition, oversight by the State Commission on Quality of Care and Advocacy for Persons with Disabilities, formerly the Commission on Quality of Care for the Mentally Disabled, includes the quality of mental hygiene services in such homes. (Murray Decl. Ex. 65 (N.Y. MENTAL HYG. LAW § 45.10(a)(1).)
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In April 2002, a Pulitzer Prize-winning series of articles in The New York Times reported abuse, neglect, negligent supervision, inadequate medical care and chaos pervading New York City Adult Homes, referred to as “psychiatric flophouses” in the Times articles. (Murray Decl. Ex. 66 (Clifford J. Levy, For Mentally Ill, Death and Misery, N.Y. TIMES, Apr. 28, 2002, § 1); Murray Decl. Ex. 67 (Levy, Here, Life Is Squalor and Chaos, N.Y. TIMES, Apr. 29, 2002, at A1); Murray Decl. Ex. 68 (Levy, Voiceless, Defenseless And a Source of Cash, N.Y. TIMES, Apr. 30, 2002, at A1).) The revelations in the New York Times were old news to anyone familiar with adult homes in New York City. New York State and New York City officials referred to these adult homes as “de facto mental institutions” and “satellite mental institutions” over twentyfive years ago. (Murray Decl. Ex. 69 at 38 (Charles J. Hynes, Private Proprietary Homes for Adults (Mar. 31, 1979); Murray Decl. Ex. 70 at “Summary of Preliminary Findings” (New York City Council Subcommittee on Adult Homes, The Adult Home Industry: A Preliminary Report (1979).)
The large impacted adult homes at issue in this case severely limit residents’ interaction with non-disabled people. (Kaufman Decl. Ex. A at 10-11; E. Jones Aff. Ex. A at 3, 8; D. Jones Decl. Ex. A at 9.) A manager of a private mental health agency in New York City, who spent much time in adult homes over two decades,9 testified in his deposition that “[t]hese large homes tend to have institutional qualities such as lack of individualized services, little opportunity for residents to have input into the services and conditions in their home, minimal interaction between residents and the surrounding community and a lack of privacy.” (Schwartz Dep. 298:25-300:9; see also
9 Schwartz Dep. 15:24-16:6, 59:18-93:24.
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id. at 297:24-298:14.) He stated that adult homes are for the most part “institutions for
people with mental illness” (id. at 272:11-13), the “modern day back wards [of state
hospitals]” where people are kept until they die (id. at 282:24-284:17). Defendants’
experts have likewise concluded that adult homes are very much like psychiatric
institutions. (Kaufman Decl. Ex. A at 8; Geller Decl. Ex. A at 26.)
People with mental illness who reside in adult homes spend the vast
majority of their time with other people with mental disabilities, and opportunities for
interactions with non-disabled persons are limited. (D. Jones Decl. Ex. A at 9.) Most
aspects of residents’ daily lives take place inside the homes. For example, many
residents receive their medical care and medications, and attend mental health programs, all inside the homes.10 (E. Jones Aff. Ex. A at 8, E. Jones Dep. 243:5-19; Baer Dep.
19:16-20:21; L.G. Dep. 39:10-14; B.J. Dep. 122:8-123:2.) Many residents also attend religious services inside the homes.11 (S.B. Dep. 54:17-55:16; B.J. Dep. 28:21-24; J.M.
Dep. 51:14-52:8; D.W. Dep. 150:7-18.)
While adult home residents would like to manage their own daily
activities, (see R.A. Decl. ¶¶ 17-24; N.B. Decl. ¶¶ 31-33; A.C. Decl. ¶¶ 12-13; L.J. Decl.
¶¶ 25-30; B.R. Decl. ¶¶ 22-23; H.S. Decl. ¶¶ 20-22), adult homes either outright prohibit
or actively discourage residents from doing their own cooking, laundry, housekeeping,
10 If residents attend day treatment programs outside the home, they go to the programs in vans or buses with other mentally ill residents of the same home (E. Jones Aff. Ex. A at 3, 8; G.H. Dep. 34:4-11, 245:6-247:5), spend the day with other people with disabilities, and then return to the home where they take their meals and share their rooms with other mentally disabled people.
11 To the extent adult homes arrange outings, they are group outings attended entirely by people with disabilities and usually limited to as many people who can fit in a van. (E. Jones Aff. Ex. A at 3; L.G. Dep. 37:12-19; see also Levine Dep. 255:12-19; R.H. Dep. 49:16-20; S.P. Dep. 22:4-23:8.)
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grocery shopping, and taking their own medication (Schwartz Dep. 319:9-320:3, 331:10332:11; A.M. Dep. 95:25-96:9; S.P. Dep. 64:11-65:2; G.L. Dep. 202:13-212:20, Duckworth Dep. 142:8-21).
The homes impose an array of restrictions on the lives of people with mental illness who reside in them, including limitations on receiving visitors, lack of privacy, rigid schedules for meals, long lines for the administration of medications and the distribution of personal needs allowances, and repetitive program and recreational activities. (E. Jones Aff. Ex. A at 5-6; Schwartz Dep. 317:16-318:7.) Adult home residents have no choice in when they eat, what they eat or with whom they share a meal. (Geller Decl. Ex. A at 12-13 (citing Brooklyn Manor rules); B.R. Decl. ¶ 12 (residents with diabetes must take their meals with everyone else with diabetes, 30 minutes before others eat.); E. Jones Dep. 148:18-22 (visitors not permitted to join those they visit at meals at some adult homes).)
Adult homes have curfews and visiting hours. (G.L. Dep. 227:2-7; D.W. Dep. 132:4-14; E. Jones Aff. Ex. A at 3; Kessler Dep. 423:22-425:7; P.C. Dep. 98:19-25; Burstein Dep. 20:5-7; Schwartz Dep. 325:15-23.) Visitors must identify themselves and sign in and cannot join in meals or stay overnight. (D.W. Dep. 132:15-17; B.J. Dep. 115:12-15; E. Jones Aff. Ex. A at 3, 8; see also Geller Decl. Ex. A at 12-13 (citing Brooklyn Manor rules).)
Adult home residents have almost no privacy. Because at least two residents (both with mental illness) are generally assigned to live as roommates in the same room, residents usually have no private space in which to receive visitors except with their roommate’s permission. (S.P. Dep. 134:24-136:9; O.J. Decl. ¶ 13; H.S. Decl. ¶
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11; G.H. Dep. 128:21-25; E. Jones Aff. Ex. A at 5.) Residents receive visitors and share phones in noisy common areas (D.N. Dep. 238:17-241:16; S.B. Dep. 60:20-61:19; G.H. Dep. 159:14-24; E. Jones Aff. Ex. A at 3), and depend on calls coming through home switchboards and/or on extensions or payphones in common areas (B.J. Dep. 125:7126:13; S.P. Dep. 68:15-69:10) that lack privacy and are often chaotic (L.G. Dep. 116:13-118:21; J.M. Dep. 53:22-54:20; D.N. Dep. 238:21-244:21). As a result, any friendships and romantic relationships that do exist typically predate admission to adult homes. (R.H. Dep. 96:12-97:9; G.H. Dep. 120:7-124:5, 126:24-128:9, 240:6-15; B.J. Dep. 53:5-25; D.N. Dep. 15:8-16:7, 29:6-31:8, 63:13-15.) Residents also see living in an adult home as a barrier to paid employment. (See A.M. Dep. 31:25-32:19.)
Throughout this litigation, residents of the adult homes have expressed their isolation as a result of being segregated in adult homes. (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.”); A.C. Decl. ¶ 8 (“I want to see what life is like on the outside.”); O.J. Decl. ¶ 16 (“The 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. 110:1924 (“It’s difficult to meet different people now . . . [because y]ou’re in program, you’re in home.”); S.P. Dep. 58:9-15 (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”).
The State itself views adult homes as settings that are segregated from the community. It has acknowledged that because of a lack of housing, people with mental illness are “stuck in adult homes.” (Murray Decl. Ex. 71 at 1 (New York State Office of
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Mental Health, Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies).) E. Supported Housing
OMH Supported Housing is a category of housing for people with mental illness in which residents live in apartments that are generally “scattered-site,” meaning that they are scattered throughout the community in regular apartment buildings rather than clustered in one building (Baer Dep. 109:4-8; 150:5-153:20; Schwartz Dep. 198:11199:7; Tsemberis Dep. 20:12-20.) Supported housing is permanent housing. The residents either hold the lease to the apartment themselves or are sub-tenants of the housing provider. (Tsemberis Dep. 46:19-47:18.) Residents in supported housing can come and go at any hour of the day, maintain their own schedules for meals, have overnight visitors, and in most ways, live like any non-disabled member of the community and among non-disabled members of the community. (Schwartz Dep. 202:25.)
Services in supported apartments are 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 (Schwartz Dep. 191:4-12, 193:22-194:15, 195:20-196:23, 288:13-24, 289:7-290:6l; Tsemberis 28:1-29:22; Duckworth Aff. Ex. A at 10.) The flexibility of services means that they can be increased or withdrawn as necessary and are usually more intensive when a person first moves in. (Baer Dep. 108:15-109:3; Schwartz Dep. 187:22-188:9.) Some residents receive only one or two visits per month from a case manager. Those who need more intensive services may have an Assertive Community Treatment (ACT) team, which consists of six to eight staff members from the fields of psychiatry, nursing, social
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work, substance/alcohol abuse, vocational rehabilitation, and other areas of expertise. (Murray Decl. Ex. 72 (New York State Office of Mental Health, Assertive Community Treatment (ACT)).) OMH has promoted the use of ACT as an evidence-based, best practice for serving individuals with mental illness. (Duckworth Decl. Ex. A at 15; Murray Decl. Ex. 73 (New York State Office of Mental Health, Implementing EvidenceBased Practices and Quality Care in New York State).) F. Numerous Adult Home Residents with Mental Illness Desire to Live in More
Integrated Settings Adult home residents with mental illness desire to live in the integrated
setting of their own apartment rather than the highly segregated environment of the adult home. (See R.A. Decl. ¶ 9 (“I want to move out of this place. I feel stuck here.”); N.B. Decl. ¶¶ 11-18; A.C. Decl. ¶ 8 (“I would like to move out of here. I want to see what life is like on the outside.”); 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. 98:11-24, 111:12-16; L.G. Dep. 102:15-21; L.H. Dep. 121:25-122:11; G.H. 8:21-10:14; C.H. Dep. 127:25-129:13; I.K. Dep. 94:2495:2; G.L. Dep. 101:25-102:6; D.N. Dep. 155:7-18; T.M. Dep. 98:8-13; S.P. Dep. 106:21-107:7, 137:18-137:21 (“I just want to get out. I want to get out. I don’t like it. I want to get out of there, before anything else serious happens.”); D.W. Dep. 144:3-9, 187:11-12.)
The results of a State-sponsored study of adult home residents with mental illness confirm that the majority of such residents desire to live in more independent settings, including in supported housing. The New York State Adult Home Assessment
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Project, a $1.3 million study of 19 adult homes in New York City, concluded that approximately thirty-five percent of the residents with mental illness assessed stated that they wanted to move to their own apartment, and another 21.2% expressed a desire to move in with their family. (Bruce Dep. 94:23-95:6; see also Raish Decl. Ex. 7 (Adult Home Assessment Project Data Documentation, 2003-2005); Liebman Dep. 25:20-22 (“[P]art of the assessment process was to review to see if there were people who wanted to live in other settings.”); Murray Decl. Ex. 118 (Analytic Plan for Adult Home Assessments).)12 Examining these same data, and excluding four adult homes not a subject of this litigation, DAI’s expert, Dr. Ivor Groves, concluded that of 2080 residents, “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.) These results confirmed the impressions of Lisa Wickens, the DOH official responsible for explaining the Assessment Project to residents at “town hall” meetings, who testified that residents repeatedly asked her “‘When do I do the assessment, when can I leave?’” (Wickens Dep. 74:21-22.)
12 The Adult Home Assessment Project, “greatly underestimates those who would want to move if given a meaningful choice.” (Duckworth Aff. Ex. A at 14; see also E. Jones Aff. Ex. A at 10; Groves Aff. Ex. A at 4-5.) In answering questions about their housing preferences in the Adult Homes Assessment Project, residents “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; Bruce Dep. 97:12-18 (“Q. When people were asked that question about their own apartment, was any effort made [before] asking the question to educate them about the availability of supported housing as an option? A. No.”); Groves Aff. Ex. A at 5 (“If more information regarding options were available and if a range of supports and living settings were available, a great majority of the current residents would choose to live elsewhere”).)
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DAI’s expert, Elizabeth Jones, similarly found that roughly 90% of the adult home residents whom she interviewed expressed a desire to live somewhere else if there were options available. (E. Jones Aff. Ex. A at 3; E. Jones Dep. 130:4-13; see also Duckworth Aff. Ex. A at 14-16.) Even defendants’ psychiatric expert, Dr. Jeffrey Geller, concluded that 67 out of 134 residents for whom he reviewed records that he sampled want to live some place other than the adult home. (Geller Dep. 209:2-6.)
Most residents of adult homes were not given a meaningful choice when they moved to an adult home. (Duckworth Aff. Ex. A at 15 (“[A]dult home residents I met were frequently given no choice about where to live. At best, if there were given a choice, it was between two adult homes.”); E. Jones Aff. Ex. A at 9 (“Residents were admitted to the adult homes with little or no choice.”); 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. 30:16-17; M.B. Dep. 19:5-17; L.G. Dep. 9:25-10:12; G.H. Dep. 267:8-268:17; T.M. Dep. 28:2329:6; J.M. Dep. 10:12-24; D.N. Dep. 13:6-11; S.P. Dep. 93:20-94:23; D.W. Dep. 192:9193:23.) G. Virtually All Adult Home Residents with Mental Illness Are Qualified for
Supported Housing Based upon his review of residents’ records and in-person interviews,
DAI’s psychiatric expert Dr. Kenneth Duckworth concluded 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.”).)
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Based upon her interviews of approximately 180 residents of 23 of the adult homes at issue in this case, Ms. Jones found that the vast majority of them were qualified for supported housing with appropriate supports. (E. Jones Aff. Ex. A at 1, 3; E. Jones Dep. 78:15-84:11, 88:6-23, 93:20-94:10.) Dr. Ivor Groves’s analysis of the Adult Home Assessment Project data reached a similar conclusion. Of the 2,080 residents in the adult homes of interest, “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.)
Consistent with DAI’s experts, the State’s own analysis reflects that large numbers of residents of adult homes with mental illness can live more independently. The State recently reported that of the 1,688 residents examined in the Adult Home 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. (Murray Decl. Ex. 74 at 28 (Adult Home Assessments, PowerPoint Presentation-Draft (Nov. 2006).) Likewise, defendants’ expert, Dr. Jeffrey Geller also concluded that 66.5% out of a group of 188 adult home residents are not in the most appropriate residential setting for their needs. (Geller Dep. 135:10-19; Geller Decl. Ex. A at 44.) In an analysis of a second group of 206 residents, Dr. Geller found that 134 out of 206, or 65% of the residents were eligible for OMH’s community housing program. (Geller Decl. Ex. B at 6-7.) Of those 134 residents, 66 residents could leave the adult home and go into supportive housing, including 59 who could leave with over eleven hours of supportive case management or less, and seven who could leave after transitional housing. (Geller Dep. 196:10-199:22, 210:7-17.)
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These opinions are consistent with the report issued by the Adult Home Workgroup, which concluded that 50% of residents of adult homes with mental illness could reside in more integrated setting and that most of these would move to OMH community housing.13 (Raish Decl. Ex. 57 at 30 (Report of the Adult Care Facilities Workgroup (Oct. 2002); see also Murray Decl. Ex. 76 at 20 (Report of the SubWorkgroup, New Models for Adult Care Facilities).) They are likewise consistent with the testimony of State officials that residents of adult homes with mental illness could live in more integrated settings (Wickens Dep. 46:8-11; Tacoronti Dep. 225:16-226:8; Reilly Aff. ¶ 25); and with the testimony of treatment professionals for adult home residents that most, if not all, the clients served could live in more independent, less restrictive settings (Levine Dep. 82:7-85:15). H. Defendants Have Not Developed a Plan to Ensure that Persons with Mental
Illness who Reside in Adult Homes Can Move to Integrated, CommunityBased Settings
In 2002, New York established the Most Integrated Setting Coordinating Council (“MISCC”) “[i]n order to ensure that the state of New York is in compliance with the requirements of the Olmstead decision” and “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.” (Murray Decl. Ex. 76 (N.Y. EXEC. LAW § 700).) MISCC’s Final Report called for each state agency to have “measurable standards by which the state agency can demonstrate its
13 The Adult Home Workgroup was formed to develop recommendations for improving the quality of life in adult homes servicing people with mental illness in the wake of press reports of widespread abuse of adult home residents. (Raish Decl. Ex. 57 at ii.) DOH and OMH participated in formulating these recommendations, and then-Governor Pataki directed the group’s work. (Id.; Wollner Aff. ¶ 23.)
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accountability to MISCC general principles and guidelines.” (Wollner Aff. Ex. BB at
23.) Among these general principles and guidelines, the Report listed specific data state
agencies should collect in order to monitor and assure compliance with Olmstead. The
MISCC Report stated that:
“• Individuals living in institutions should be regularly assessed to explore opportunities that meet their service needs in the most integrated setting. • To appropriately plan for a community-based service system, it is important to maintain data on the service needs of individuals, service usage patterns and movement of people. • People should be able to access needed services at a reasonable pace and data should be collected to demonstrate that this outcome is achieved. • There should be ongoing reviews of data collected to ensure that there is adequate information to achieve “most integrated setting outcomes” for people with all disabilities of all ages.” (Id. at 13.)
New York has not undertaken these actions for mentally ill residents of
adult homes. Since defendants do not regard adult home residents with mental illness as
institutionalized, they exclude people with mental illness who reside in adult homes from
the State’s MISCC efforts. (Wollner Aff. ¶ 65 (“DOH does not consider adult home
residents to be ‘institutionalized’ and therefore did not include them in providing data on
this subject to the MISCC”); Kuhmerker Dep. 29:7-30:3, 30:21-31:7; see also Newman
Dep. 180:19-181:17; 176:7-180:11.) They do not assess or ensure that others are
assessing people with mental illness who reside in adult homes in order to explore
opportunities that meet their service needs in the most integrated setting. (Tacoronti Dep.
30:6-35:19, 202:22-203:6; Defs.’ Br. 34.) They do not maintain a waiting list for OMH-
funded community housing (Wagner Dep. 70:13-71:2), and the governor recently vetoed
a bill to require a waiting list. (See Murray Decl. Ex. 77 (S. 568, 2007-2008 Reg. Sess.
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(N.Y. 2007); A. 3864, 2007-2008 Reg. Sess. (N.Y. 2007) (New York State Assembly counterpart); S. 568, Bill Summary, 2007-2008 Reg. Sess. (N.Y. 2007).) OMH collects no data to show that adult home residents access community housing at a reasonable pace. (See Wollner Aff. Ex. BB at 13.)
In adult homes, there is no expectation that people will move on, and there is no emphasis on skill maintenance or development. (E. Jones Aff. Ex. A at 3 (“[T]he adult homes are permanent placements. Comprehensive discharge planning is nonexistent.”); see also Duckworth Aff. Ex. A at 9; Duckworth Dep. 119:23-120:18.) The State itself views adult homes as settings that are segregated from the community and has acknowledged that people with mental illness are “stuck in adult homes” because of, among other things, a lack of housing. (Murray Decl. Ex. 71 at 1.)
The mental health program staff who serve adult home residents are illinformed about supported housing. (Duckworth Aff. Ex. A at 14.) Some are decidedly unhelpful. (See, e.g., Kessler Dep. 208:23-210:10; M.B. Dep. 96:25-97:3, 116:16117:20, 118:21-121:5; L.G. Dep. 105:8-106:24; C.H. Dep. 119:14-25; A.M. Dep. 128:7132:23.) Indeed, they may discourage residents from moving out. (See, e.g., G.L. Dep. 102:7-103:21, 105:10-107:3, 123:11-124:12).
Some programs provided to adult home residents are grossly infantilizing (see M.B. Dep. 54:15-55:23; G.H. Dep. 73:8-20; G.L. Dep. 40:16-21; Mendel Dep. 43:14-43:6), or consist largely of watching TV (see S.P. Dep. 22:4-23:8, 24:4-28:25, 39:22-41:20). The continuing day treatment programs that enroll adult home residents are characterized by deficient treatment planning; group TV and movie watching; and art programs varying from high quality to provision of crayons, markers and coloring books.
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(Murray Decl. Ex. 78 at 1-6, 13 (New York State Commission on Quality of Care and Advocacy for Persons with Disabilities, Continuing Day Treatment Review).) Although many residents were interested in finding work or learning skills for work, less than 20% of these programs’ treatment plans reviewed in a study had treatment objectives for finding work, and only 14% had objectives for obtaining vocational training. (Id. at 13.)
Residents do not know about housing alternatives. (E. Jones Aff. Ex. A at 3, 10; see also Duckworth Aff. Ex. A at 10.) As a result, they are afraid to leave the adult home. (E. Jones Aff. Ex. A at 10; see H.S. Decl. ¶¶ 12-13 (“No one here is helping me move . . . No one has explained the different types of housing to me, or explained how to go about applying. No one has submitted any housing applications for me.”); A.C. Decl. ¶ 11 (“No one at Garden of Eden is helping me to find another place to live.”); N.B. Decl. ¶ 11 (“When I told the owner of Queens Manor I wanted to leave, he said I couldn’t be released, so if I wanted to go, they would put me in the hospital. That’s when they put me in Creedmore.”), id. ¶ 29 (“Because of what happened at Queens Manor, I’m afraid that if I try to leave, they will put me back in the hospital.”); R.A. Decl. ¶ 16 (“When I brought up the idea of moving out, the owner, Mr. Rosenfeld, told me that if I move out of here, I will lose my SSI.”), id. ¶¶ 13-15; B.R. Decl. ¶¶ 20-21; D.N. Dep. 255:15-17 (“Q. Before this afternoon [of the deposition], did you know what an HRA 2000 form was? A. No, I didn’t.”); see also P.B. Dep. 175:4-12; S.B. Dep. 90:11-92:3; L.G. Dep. 105:25-107:21; G.H. Dep. 102:7-25; 144:17-145:6; S.P. Dep. 107:8-20, 110:19-24, 111:20-112:8; A.M. Dep. 134:15-136:6.) Indeed, Defendants’ expert, Dr. Geller, confirmed that adult home residents are not adequately informed about what their
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housing options are and that they therefore cannot make an informed choice. (Geller Dep. 181:15-21.) I. Defendants Have Excluded Residents of Adult Homes from More Integrated
Housing Adult home residents are not able to access community housing at a
reasonable pace. During the 18 month period from April 2005 to September 2006, 195 adult home residents with mental illness allegedly moved from adult homes to the OMH community housing programs in the entire State of New York, an annual rate of 130 persons per year. (See Reilly Aff. ¶ 29.) At that rate, it would take 97 years to place virtually all of the adult home residents with mental illness in more integrated OMH housing, and at least 48 years for only half of them to move.
Defendants have chosen not to reinvest money now spent on adult home residents with mental illness to develop more supported housing for them. The Adult Home Workgroup recommended that the state downsize adult homes and develop capacity to serve approximately 6,000 adult home residents statewide in more integrated settings. (Raish Decl. Ex. 57 at 26-28, 32; see also Murray Decl. Ex. 79 at 18 (New York State Commission on Quality of Care for the Mentally Disabled, Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services (2003)) (recommending exploration of ways in which money state pays to fund services in adult homes could be better spent developing alternatives).) Rather than following these recommendations, defendants continue to support large numbers of individuals with mental illnesses in adult homes. (Wollner Aff. ¶ 46 (“State officials ultimately determined not to implement the recommendation for a number of reasons.”).)
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Neither OMH nor the other defendants have created more than a token
amount of supported housing for individuals with mental illness who reside in adult
homes. When OMH develops supported housing, it identifies a target population for the
housing as a “priority.” (Newman Dep. 65:23-66:4; Murray Decl. Ex. 128 at 2-3; Murray
Decl. Ex. 55 at 3; Murray Decl. Ex. 56 at 1; Murray Decl. Ex. 80, at 5 (Supported
Housing Implementation Guidelines).) Those not designated as a target population are
effectively excluded from the beds. (Schwartz Dep. 103:24-104:16; Rosenthal Dep.
102:5-107:9; Lieberman Decl. ¶ 4.) Historically, adult home residents have not been a
target group for supported housing. (Murray Decl. Ex. 80 at 5; Newman Dep. 80:2-16;
Murray Decl. 128 at 2-3.) It was not until 2005 that OMH, for the first time, designated
adult home residents as a target group—along with five other groups—but only for the new supported housing it was developing. (Murray Decl. 56 at 1.)14 Even when OMH
designates adult home residents as a target group for supported housing, the residents
rarely get access. In practice, the beds go to other target groups, such as individuals
coming out of psychiatric hospitals, prisons, or jails. (Raish Decl. Ex. 32 (Response to
Davin Robinson’s FOIL Request Dated Jan. 9, 2006); Lasicki Dep. 172:8-17.) Accordingly, very few former adult home residents reside in supported housing.15
(Lieberman Decl. ¶¶ 5-8; Rosenthal Dep., July 12, 2005, 102:5-107:9.)
14 The total number of beds developed by the 2005 RFP was 318. Id. The legislature also funded a small number of supported housing beds—60 for the entire state—that were specifically reserved for adult home residents. (See Murray Decl. Ex. 81, at 3 (Request for Proposals: Supported Housing for Adult Home Referrals).)
15 In 1990, 1999, and 2006, the State of New York and the City of New York concluded agreements to develop housing specifically targeted for homeless individuals with mental illness. (Murray Decl. Ex. 82, at 1-2 (Background Info on NY/NY and OMH Residential Resources); Murray Decl. Ex. 83 (Handout on NY/NY Criterion, The New York/New York Agreement to House Homeless Mentally Ill Individuals).) The first two “New York/New
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J. The Relief in This Action
In this action, DAI seeks an order that will require the defendants to
comply with their legal duty to provide services in the most integrated setting, by offering
supported housing to qualified DAI constituents with mental illness.16 (Zucker Decl. ¶¶
19-20.)
The evidence shows that costs to the State would remain constant if the
Court were to order such relief. There are significantly higher Medicaid costs for
individuals with mental illness residing in adult homes than those residing in supported
housing. (Murray Decl. Ex. 84 (2004-05 Medicaid Expenditures by Impacted Adult
Home); Murray Decl. Ex. 85 (2004-05 Medicaid Expenditures by Diagnosis); D. Jones
Decl. Ex.A at 21-22; D. Jones Decl. Ex. B at 3-6.) Higher Medicaid costs are common in
highly institutional environments, such as adult homes, which encourage dependency on
institutional care. (D. Jones Decl. Ex. B at 5.) They are likewise consistent with
numerous reports indicating widespread fraud and overuse of Medicaid services in adult
York” agreements created 5,105 units of supportive housing reserved for homeless individuals with mental illness. (Murray Decl. Ex. 83 at 1-2.) The third agreement will create 9,000 supportive housing principally for chronically homeless individuals, families in which the head of household is mentally ill, people with HIV/AIDS, and people with substance abuse disorder who are not mentally ill. (Newman Aff. Ex. C, at 5 (New York/New York III Supportive Housing Agreement).) Thus these 14,105 New York/New York supportive housing beds are totally unavailable to adult home residents. In 2003, OMH developed 800 units of Service-Enriched Single Room Occupancy (SRO) housing in New York City for which adult home residents were one of the target populations. (See Murray Decl. Ex. 55 at 3.) SRO housing shares some features of supported housing but is not supported housing. Few adult home residents got access to these beds. (See Lieberman Decl. ¶¶ 6-8.) 16 DAI does not ask the Court to decide which adult home residents are qualified for more integrated residential mental health services and desire to move. It is the defendants’ duty to make these determinations, and DAI seeks an order compelling them to do so.
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homes. (D. Jones Decl. Ex. B at 4-5; Murray Decl. Ex. 79; Murray Decl. Ex. 86 (Exploiting Not-For-Profit Care in an Adult Home); Murray Decl. Ex. 87 (A Review of Assisted Living Programs in “Impacted” Adult Homes).) Significantly, “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. Ex. 84; Murray Decl. Ex. 85; Asimakopoulos Dep. 75:11-76:21.)
Taking into account the higher Medicaid costs in adult homes, the comparative State costs for individuals with mental illness residing in adult homes and in supported housing are as follows:

Funding Source
Stipend17 Medicaid18 SSI19
Total

Adult Home Costs
$0 $15,750 $7,692 $23,442

Supported Housing Costs
$14,197 $8,234 $1,044 $23,475

In addition to the costs summarized in the table, the State incurs

significant additional costs for adult home residents with mental illness which it does not

incur for individuals residing in supported housing. From 2003 to 2007, the State spent

approximately $10 million on a variety of adult home programs—including the Quality

17 Myers Aff. ¶ 190.
18 Murray Decl. Ex. 84 at DOH 0131663-0131664; Murray Decl. Ex. 129 (NYC Medicaid Expenditure Report for CY 2004).
19 See Murray Decl. Ex. 91 (Office of Temporary and Disability Assistance, SSI Benefit Levels Chart effective January 1, 2007). The state’s share of an SSI payment for an adult home resident is at the “Congregate Care Level 3” rate of $641 per month, while the state’s share for a supported housing resident is at the “Living Alone” rate of $87 per month.

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Incentive Program (“QUIP”), the ACF Infrastructure Initiative, the Case Management Initiative, and the Enhancing Abilities and Life Experience Program (“EnAbLE”).20 (D. Jones Decl. Ex. B at 1-3; Wollner Dep. 102:14-20; Wollner Aff. ¶¶ 36-38, 66-67 & Exs. H-P thereto.)
Thus, the record evidence shows that relief in this action will not impose additional costs to the State, as it would use resources now spent on providing services in adult homes to develop supported housing for the individuals residing in adult homes. The development of supported housing for specified populations has a long precedent in New York and can be done here. (Murray Decl. Ex. 82; Newman Aff. Ex. C; Madan Dep. 54:24-55:13, 57:13-59:8.)
20 The Quality Incentive Payment Program (QUIP) offers a cash bonus to adult home operators who have not significantly violated DOH regulations. (See, e.g., Murray Decl. Ex. 88, at DOH 007351, 007356 (2003 QUIP Funding Announcement).) The ACF Infrastructure grants are for improvements to the physical plant of adult homes, such as adding air conditioning. (See, e.g., Murray Decl. Ex. 89, at DOH 0129146 (ACF Infrastructure Improvement Procurement).) The EnABLE program is intended to increase residents’ skills. See, e.g., Murray Decl. Ex. 90, at DOH 0130776 (Enhancing Abilities and Life Experience Program (EnABLE)—Request for Applications).
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Argument The Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), held that unnecessary segregation of individuals with disabilities is a form of discrimination that violates the ADA.21 Olmstead requires states to administer their services to individuals with disabilities in the “most integrated setting appropriate” to their needs. 527 U.S. at 596-97; see also 28 C.F.R. § 35.130(d). According to the National Council on Disability, a federal agency, the “most integrated setting” is generally understood to be: (1) “a place where the person exercises choice and control,” (2) “[a] home of one’s own shared with persons whom one has chosen to live with, or where one lives alone,” and (3) “living in the community with everyone else like everyone else.” (Murray Decl. Ex. 92 at 9 (National Council on Disability, Olmstead: Reclaiming Institutionalized Lives (Sept. 29, 2003).) The ADA allows a “fundamental alteration defense” to states that have developed a comprehensive and effectively working plan to serve individuals in the most integrated setting. Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 158-59 (3d Cir. 2005). To establish the defense, the state must show that affording plaintiffs the relief they seek would be inequitable, taking into account the resources available to the state and its responsibility to serve other individuals with mental disabilities. Olmstead, 527 U.S. at 604, 607. Additional cost alone does not establish a fundamental alteration defense. “If every alteration in a program or service that required the outlay of funds
21 The Court reasoned that (1) institutionalization of individuals who could live in the community perpetuates unwarranted assumptions that these individuals are incapable or unworthy of participating in community life, and (2) confinement in an institution severely diminishes opportunities for everyday life activities such as social contacts, employment, economic independence, and educational advancement. 527 U.S. at 600-01.
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were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.” Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1183 (10th Cir. 2003). 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.” Id. (quoting from H.R. Rep. No. 101-485, pt. 3, at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 473).
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only when “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” To support a motion for summary judgment, “the moving party [has] the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not only “must there be no genuine issue as to the evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them.” Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 57 (2d Cir. 1987).
As we now show, defendants cannot satisfy these standards. I.
DAI HAS STANDING TO ASSERT ITS CLAIMS DAI has standing to bring this action and to obtain the relief sought. DAI is a protection and advocacy agency (“P&A”) that is authorized by Congress to advance
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the rights of individuals with disabilities through litigation. 42 U.S.C. §§ 10801, et seq.
It is well established that P&A organizations may bring lawsuits as plaintiffs on behalf of
their constituents. Monaco v. Stone, No. CV-98-3386, 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.”).22 Evidence in the record demonstrates that virtually all of the individuals
with mental illness who reside in the adult homes in question themselves have standing to
sue. Thus, DAI has standing to sue on their behalf.
Defendants’ attack on DAI’s standing is premised on errors of law and
relies on facts that are in dispute. For example, defendants improperly conflate the merits
22 See also Doe v. Stincer, 175 F.3d 879, 884 (11th Cir. 1999) (“[A]s the text of PAMII indicates, a protect[ion] and advocacy organization may sue on behalf of its constituents . . . .”); Trautz v. Weisman, 846 F. Supp. 1160, 1163 (S.D.N.Y. 1994) (same); Univ. Legal Servs., Inc. v. St. Elizabeth’s Hosp., No. Civ. 105CV00585TFH, 2005 WL 3275915, at *5 (D.D.C. July 22, 2005) (same); Ohio Legal Rights Serv. v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877, 883 (S.D. Ohio 2005) (“PAMII provides [P&A] systems with the independent authority to pursue legal remedies to ensure the protection of individuals with mental illness.”); Unzueta v. Schalansky, No. 99-4162, 2002 WL 1334854, at *3 (D. Kan. May 23, 2002) (“Congress may grant an organization standing . . . . In this case, [the P&A organization] is acting under the auspices of [PAMII].”); Risinger v. Concannon, 117 F. Supp. 2d 61, 70 (D. Me. 2000) (Maine P&A has standing); Brown v. Stone, 66 F. Supp. 2d 412, 425 (E.D.N.Y. 1999) (New York P&A has standing), aff’d. sub nom, Mental Disability Law Clinic, Touro Law Center v. Carpinello, No. 04-6619-cv, 2006 WL 1527117 (2d Cir. May 31, 2006); E.K. v. New York Hosp.-Cornell Med. Ctr., 158 Misc.2d 334, 337 (N.Y. Sup. Ct. 1992) (same); Rubenstein v. Benedictine Hosp., 790 F. Supp. 396, 409 (N.D.N.Y. 1992) (“Given the broad remedial purposes of [PAIMI], and the statutory language apparently conferring a right upon entities such as DAI to pursue legal remedies such as those sought through the present lawsuit, the defendants’ motion to dismiss DAI for lack of standing is denied.”); cf. Tenn. Protection & Advocacy, Inc. v. Metro. Gov’t of Nashville & Davidson County, No. 3-95-0793, 1995 WL 1055174, at *1 (M.D. Tenn. Nov.14, 1995) (holding that the Protection and Advocacy for Developmental Disabilities Act, similar to PAIMI, authorizes P&A standing); Martin v. Voinovich, 840 F. Supp. 1175, 1181 n.2 (S.D. Ohio 1993) (same); Michigan Protection & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695, 702 n.12 (E.D. Mich. 1992) (same); Protection & Advocacy, Inc. v. Murphy, No. 90 C 569, 1992 WL 59100, at *10 (N.D. Ill. Mar. 16, 1992) (same); Goldstein v. Coughlin, 83 F.R.D. 613, 614-15 (W.D.N.Y. 1979) (same).
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of DAI’s claims with standing to raise those claims: they ask this Court to rule that DAI lacks standing because, in their view, DAI’s constituents have failed to establish all of the elements of their claims. But, as another court in this district has explained, “standing in no way depends on the merits of the plaintiffs’ contention that particular conduct is illegal.” Brown v. Stone, 66 F. Supp. 2d 412, 423 (E.D.N.Y. 1999) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). DAI has standing if the record contains evidence that would support standing if credited at trial. Id. That is clearly the case here. A. DAI’S Enabling Statute Authorizes This Suit
DAI is authorized to bring lawsuits on behalf of its constituents— “individuals with mental illness”—by the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. §§ 10801 et seq.23 (See Defs.’ Br. at 35-36 (“A protection and advocacy organization (PAIMI), such as DAI, may bring claims . . . on behalf of its constituents . . . .”); id. at 42-43.)24 PAIMI authorizes P&As such as DAI 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.” 42 U.S.C. § 10805(a)(l)(B) (emphasis added).25
23 DAI’s mission statement echoes PAIMI. (See Murray Decl. Ex. 52 (“Since 1989, it has been the mission of Disability Advocates 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.”).)
24 Reported decisions sometimes refer to the “PAIMI” program as the “PAMII” program, its prior name. The program was renamed in 2000. See Protection and Advocacy for Individuals with Mental Illness Act of 2000, Pub. L. No. 106-310 § 3206, 114 Stat. 1193, 1193-94.
25 Defendants do not contest that DAI’s constituents are “individuals with mental illness” as the term is used in PAIMI.
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Defendants argue that subsection (B) of 42 U.S.C. § 10805(a)(1) does not
authorize P&As to bring actions on behalf their constituents. (See Defs.’ Br. at 43
(arguing that subsection (C) is “the only provision [of § 10805(a)(1)] that authorizes
PAIMI groups to bring actions ‘on behalf’ of its constituents”).) But not a single court
has endorsed defendants’ view of the statute, and decisions in the Southern and Eastern
Districts of New York have explicitly rejected it. Brown, 66 F. Supp. 2d at 425 (finding
that plaintiff P&A had standing under § 10805(a)(1)(B) to sue on behalf of current
residents of state hospital); Trautz, 846 F. Supp. at 1163 (“[I]f Congress merely intended
for state systems to act as advocates [and not as a plaintiff] on behalf of mentally [ill]
individuals, it would not have included (a)(l)(B) in the statute in addition to (a)(1)(C).”).26
B. DAI Meets The Requirements For Associational Standing 1. DAI Has Identified Numerous Constituents With Standing In evaluating whether a P&A has associational standing in a particular
case, courts rely on the analysis in Hunt v. Washington State Apple Advertising
Commission, 432 U.S. 333 (1997). See, e.g., Mink, 322 F.3d at 1109. Under Hunt, DAI
has standing to sue if (1) at least one constituent has standing to sue on his own; (2) the
interest DAI seeks to protect is germane to its purpose; and (3) neither the claim asserted
26 Univ. Legal Services, 2005 WL 3275915, at *5 (“PAIMI authorizes organizations like ULS to pursue claims for system-wide change on their own behalf as an advocacy organization under § 10805(a)(l)(B).”); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1113 (9th Cir. 2003) (citing subsection (B) of the statute and holding that “Congress clearly intended PAIMI to confer standing on [P&As] to litigate on behalf of those suffering from mental illness.”); N.J. Protection & Advocacy v. Davy, No. Civ. 05-1784, 2005 WL 2416962, at **l-3 (D.N.J. Sep. 30, 2005) (standing on behalf of one thousand individuals “who are currently confined in psychiatric hospitals”); Monaco, 2002 WL 32984617, at *25 (standing on behalf of individuals currently facing civil commitment); Risinger, 117 F. Supp. 2d at 69-71 (standing on behalf of children with mental illness).
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nor the relief requested requires the participation of individual members in the lawsuit.
Id. (See Defs.’ Br. at 36 (“to establish associational standing, a PAIMI organization must
show that at least one of its constituents would have standing to bring a claim in his own
right . . . .” (emphasis omitted).)27
Defendants’ sole argument under Hunt is under prong (1)—defendants
assert that DAI has not established that a single resident has standing to sue in his or her
own right.28 (Defs.’ Br. at 36.) Contrary to defendants’ argument, however, beyond
establishing that a single resident has standing to sue in his or her own right, DAI has put
forth substantial evidence demonstrating that well over a thousand of its constituents are
suffering injury as a direct result of the State’s policies, procedures and activities.
Indeed, defendants concede elsewhere in their brief that DAI has identified 1,536
residents who are qualified to move to more integrated housing but remain stuck in adult
homes.29 (Defs.’ Br. at 65.) Thus, it is clear that defendants’ attack on standing is simply
27 Hunt addresses situations in which there is no Congressional enactment explicitly bestowing standing on an organization. Here, however, Congress has statutorily bestowed standing on DAI, as it is authorized to do under Article III. U.S. Const., Art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under . . . the laws of the United States.”); United Food & Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 558 (1996) (noting that by its enactment of the WARN Act Congress authorized unions to sue on behalf of their members, and that in so doing it abrogated the third prong of the Hunt test).
28 Defendants explicitly concede that prong (2) is satisfied here, namely, that suing to ensure that constituents receive services in the most integrated setting is germane to DAI’s purpose. (Defs.’ Br. at 36 n.52.) Moreover, defendants appear to concede that prong (3) is satisfied as well. Defendants make no argument that it is essential that constituents participate as parties in this case.
29 There are numerous other sources of substantial evidence in the record—from both sides— that many of DAI’s constituents are able to live and receive services in more integrated settings and would choose to do so if given the opportunity, but remain stuck in segregated adult homes. (See, e.g., E. Jones Aff. Ex. A at 11 (all of the 179 residents she interviewed were qualified for supported housing with appropriate supports); Raish Decl. Ex. 57 at 30 (estimating that 6,000 persons with mental illness residing in adult homes could be moved to
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an attack on the merits of DAI’s claims. But whether or not DAI ultimately prevails on the merits does not deprive it of standing. See Monaco, 2002 WL 32984617, at *21 (“Whether or not plaintiff Law Clinic can produce evidence to establish the liability of defendant . . . is the ‘very heart of the matter in [this] case and does not implicate standing.’” (alteration in original)); Brown, 66 F. Supp. 2d at 423 (“[S]tanding in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal.” (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975))).
The injuries of DAI’s constituents are a direct result of the manner in which defendants administer New York’s mental health service system. See Section II, infra pp. 43-54. Defendants administer New York’s service delivery system in a manner that denies DAI’s constituents the opportunity to live in integrated settings. DAI seeks an order compelling defendants to take the action needed to allow adult home residents to live and receive services in more integrated settings. See International Union, United Auto., Aerospace & Agr. Implement. Workers of America v. Brock, 477 U.S. 274, 283-84 (1986) (plaintiff union had associational standing because it did not seek Court’s determination that benefits are due each of its members, but rather an order compelling defendant to correctly determine such benefits). Clearly such an order will redress the injuries of DAI’s constituents. (Rosenberg Aff. ¶ 11 (“If ordered to do so by this Court, defendants could . . . secure for DAI’s constituents the relief they seek . . . .”); D. Jones Decl. Ex. A at 31 (“New York is entirely capable of developing sufficient capacity in its supported housing program . . . .”).)
supported housing)); Bruce Dep. 111: 8-25 (people assessed in the New York Adult Home Assessment Project could and wanted to live in their own apartment, such as supported housing)); Raish Decl. Ex. 33; see also supra pp. 17-27.)
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Defendants’ argument that those of DAI’s constituents who have not submitted HRA applications do not have standing is likewise without merit. (Defs.’ Br. at 37-38.) 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. See Olmstead, 527 U.S. at 601-03 (requiring community-based care for those qualified and unopposed to it, defining “qualified” as able to “meet[] the essential eligibility requirements” to receive community-based services with or without reasonable accommodation); see also infra pp. 67-68.
Further, the record here indicates that, despite defendants’ protestations to the contrary, participation in the HRA 2000 application process is not a prerequisite for obtaining more integrated residential services. (Raish Decl. Ex. 50.) Individuals are placed in OMH housing, which includes supported housing, without completing an HRA 2000 application. (See Tsemberis Dep. 32:8-36:9; Schwartz Dep. 146:15-147:10, 167:6– 17.)
Moreover, the record evidence shows that, for virtually all of DAI’s constituents, filing an HRA application would be a futile act. As defendants have conceded, vacancies in supported housing are far outstripped by demand for those vacancies. (See Schafer Hayes Aff. ¶ 58; Madan Aff. ¶ 14; Wagner Dep. 67:9-21.) Standing under the ADA is not dependent on futile gestures. See, e.g., Small v. General Nutrition Cos., Inc., 388 F. Supp. 2d 83, 88-90 (E.D.N.Y. 2005) (plaintiff has standing to sue an inaccessible store in his immediate neighborhood, and need not make a futile gesture of seeking to enter a store which is known to be inaccessible).
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Finally, defendants assert that 807 adult home residents have submitted
HRA applications and that, in defendants’ own sampling of 1,536 adult home residents
identified by DAI’s expert Dr. Groves, approximately 9% filed HRA 2000 applications.
(Defs.’ Br. at 37.) Thus, DAI has standing even if defendants’ argument with respect to
HRA applications had any merit. See, e.g., Mink, 322 F.3d at 1112 (P&A has standing
where 7 constituents identified); Univ. Legal Servs., 2005 WL 3275915, at *4 (P&A
standing found where 2 constituents identified); Aiken v. Nixon, 236 F. Supp. 2d 211, 224 (N.D.N.Y. 2002) (1 constituent identified).30
2. DAI Has Standing to Seek Systemic Relief Defendants argue that DAI does not have standing to seek system-wide
relief, but its argument is based on the conflation of two discrete and distinct issues—(1)
whether DAI has standing to seek injunctive relief and (2) the scope of the relief
ultimately ordered. Indeed, none of the cases cited by defendants is on point. Instead, in
an attempt to assert an argument that has no support in the law, defendants string together
30 The cases defendants cite are not on point. Shotz v. Gates, 256 F.3d 1077 (11th Cir. 2001) involved plaintiffs who had no plans to visit an inaccessible court house and only alleged past discrimination. Id. at 1082. This is totally unlike the instant case, where hundreds of individuals with mental illness are currently stuck in adult homes and desire immediate access to more integrated residential mental health services. Mclnnis-Misenor v. Maine Medical Center, 211 F. Supp. 2d 256 (D. Me. 2002), denied standing to a woman who was denied access to an inaccessible maternity ward during her pregnancy, because it was “conjectural” that she would become pregnant again and need access to the facility. Id. at 260. As discussed above, here there is ample evidence that there is nothing “conjectural” about the adult home residents’ qualifications and desire for more integrated residential mental health services. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) holds that plaintiffs raising only an abstract “generally available grievance” about government conduct, based only on “citizen[s’] interests,” do not have Article III standing. Id. at 573-74. DAI raises no such abstract claim here: it sues on behalf of individuals who are denied access to integrated residential mental health services.
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cases concerning standing that have nothing to do with system-wide relief and cases concerning system-wide relief that have nothing with standing.
For example, Lewis v. Casey, 518 U.S. 343 (1996), did not concern whether plaintiff had standing to prove that it was entitled to system-wide relief—it concerned whether there was sufficient evidence at trial to warrant the relief that was ordered by the trial court. Id. at 359. DAI does not dispute that the ultimate relief in this case must be commensurate with the evidence presented at trial. But that in no way compromises DAI’s standing to seek the relief requested in this case. Warth v. Seldin, 422 U.S. 490, 515 (1975) (declaratory and/or injunctive relief are prospective in nature, and “it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.”).
The other cases cited by defendants are equally inapposite. They concerned whether plaintiff had standing to seek any injunctive relief against the particular defendants at issue, not whether that relief could be system-wide. In Small v. General Nutritional Companies, Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005), a case in which plaintiffs alleged discrimination based on the inaccessibility of a retailer’s stores to wheelchair users, the court found that plaintiff association failed to satisfy the first prong of the Hunt test because it failed to allege that a single constituent 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 97; 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 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
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was illegally stopped by police and choked on one occasion did not establish an immediate threat that he would in the future be stopped and illegally choked).31
Unlike the cases cited by defendants which involved only isolated
instances of injury or the mere uncertain possibility of future injury, there is substantial
evidence in the record in this case that defendants’ violation of federal law is both
ongoing and system-wide. Hundreds if not thousands of persons with mental illness are
not in the most integrated setting appropriate to their needs because of defendants’
conduct. See supra pp. 17-27.
Finally, DAI is not attempting to “evade” Federal Rule 23, as defendants suggest.32 (Defs.’ Br. at 40.) By its very nature, P&A standing is a substitute for class
certification. The cases upholding associational standing so hold. See, e.g., International
Union v. Brock, 477 U.S. 274, 289 (1986) (permitting a union, as plaintiff, 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). Hence, P&As are regularly
allowed to bring cases as plaintiff on constituents’ behalf without seeking class
31 In Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003), the court did find that the associational plaintiff had standing to assert its claims for injunctive relief based on the fact that it established that one constituent had standing. Id. at 215-16. It expressed no opinion regarding whether organization could prove its claims as to more constituents in later stages of the litigation. Id. at 216.
32 Defendants’ argument that DAI cannot obtain injunctive relief because its constituents cannot be bound by the judgment is without merit. It is well-established that DAI may obtain injunctive relief that inures to the benefits of its constituents without naming those constituents. McDonald’s Corp., 213 F.R.D. at 207 (“It is almost a bright-line rule ‘that requests by an association for declaratory and injunctive relief do not require participation by individual association members.’” (quoting Hosp. Council of W. Pa. v. Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991))). Indeed, defendants cite no case in support of their argument.
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certification. See, e.g., Mink, 322 F.3d at 1116; Davy, 2005 WL 2416962 at *3; Univ.
Legal Servs., 2005 WL 3275915 at *5; Aiken, 236 F. Supp. 2d at 224; Risinger, 117 F.
Supp. 2d at 71; Brown, 66 F. Supp. 2d at 425; Trautz, 846 F. Supp. at 1166 n.7
(“[S]hould DAI prevail in its suit for injunctive relief, the practical effect may be
indistinguishable from that of a successful class action for injunctive relief.”); Tenn.
Protection & Advocacy, 1995 WL 1055174 at *1. Here, as in Brock, defendants have
“given [the Court] absolutely no reason to doubt the ability of [the plaintiff organization]
to proceed on behalf of its aggrieved members, and has . . . fallen far short of meeting the
heavy burden of persuading [it] to abandon settled principles of associational standing.” 477 U.S. at 290.33
II. DAI’S CLAIMS ARE PROPERLY BROUGHT UNDER TITLE II OF THE ADA
DAI seeks to end discrimination by defendants in the administration of
their service system for individuals with mental illness. DAI’s claims do not challenge
adult homes’ failure to comply with the ADA, as defendants contend. Instead, DAI
challenges defendants’ decision to rely on adult homes, rather than the more integrated
setting of supported housing, to provide residential and treatment services to individuals
33 None of the cases cited by defendants requires DAI to fashion its claims as class claims, rather than individual ones. Tennessee Protection and Advocacy, Inc. v. Board of Education of Putnam County, Tennessee, 24 F. Supp. 2d 808 (M.D. Tenn. 1998), merely emphasizes the first requirement of the associational standing: that at least one “member” be identified. Id. at 816. Pennsylvania Protection and Advocacy, Inc. v. Houston, 136 F. Supp. 2d 353 (E.D. Pa. 2001), merely repeats the proposition that a P&A organization identify at least one constituent for which it seeks relief, and that the claims of this constituent must not be moot or unripe. Id. at 363-68. The court in Autism Society of Michigan v. Fuller, No. 05:05-CV73, 2006 WL 1519966 (W.D. Mich. May 26, 2006), found that the P&A plaintiff in that case lacked standing because the restraint policy at issue was not a “real and immediate” threat to the constituent it identified. Id. at *7.
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with mental illness. The Olmstead decision imposes an obligation on the state agencies responsible for providing services, not on the facilities in which service recipients are needlessly segregated. Olmstead v. L.C., 527 U.S. 581 (1999).
It is defendants’ deliberate policy choices that have resulted in DAI’s constituents receiving services in adult homes. (Rosenberg Aff. ¶¶ 7-9; Sundram Aff. ¶¶ 8-9.) Defendants determine the settings used in the mental health service system. Statement of Facts, infra at pp. 7 to 11; Raish Decl. Ex. 17 (N.Y. MENTAL HYG. LAW § 5.07); Raish Decl. Ex. 36 (18 N.Y.C.R.R. § 485.5); Raish Decl. Ex. 56 at 12.)
Defendants cannot evade their responsibility for ensuring New York’s compliance with the ADA by making use of privately operated programs to deliver services to individuals with mental illness. The service system at issue in Olmstead itself was partially operated by private providers. Numerous courts have applied the ADA’s integration mandate to state service systems that unnecessarily segregate individuals with disabilities in private facilities. 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. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003). A. DAI Challenges Discrimination by Defendants in their Own State Programs
and Activities DAI challenges discrimination by defendants in their own state programs
and activities. DAI does not, as defendants suggest, challenge conduct of the adult homes themselves. Instead, DAI complains of defendants’ failure to ensure that their service system affords individuals with mental illness the opportunity to receive services in the most integrated setting appropriate to their needs. Defendants have chosen to plan, structure, and administer their state mental health system to deliver services to thousands
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of individuals with mental illness in large segregated adult homes rather than in more integrated settings. Due to defendants’ policy choices, adult homes are the only option available to many individuals with mental illness, even though such homes are not the most integrated setting appropriate to their needs.
Defendants completely misconstrue the nature of DAI’s claims. DAI’s claims do not seek to force adult homes to reinvent themselves as community settings. Rather, they seek to compel defendants to change the way they operate their service delivery system by avoiding unnecessary reliance on segregated adult homes to provide treatment and housing to individuals with mental illness. Thus, DAI does not contend that defendants fail to force adult homes to comply with the ADA’s integration mandate, but that defendants violate the integration mandate.
The Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), required the state Department of Human Resources—not the state hospital where plaintiffs were institutionalized—to comply with the ADA’s integration mandate. Because the Department ran a service system that delivered services in segregated state hospitals as well as integrated community settings, it had an obligation to ensure that the plaintiffs were not unnecessarily hospitalized when they could be served instead in the community—unless doing so would fundamentally alter the service system. Olmstead, 527 U.S. 581. This obligation had nothing to do with whether the Department directly operated the institutional and community facilities or made use of private facilities in its disability service system. Indeed, the community facilities that were part of the state’s service system in Olmstead were privately operated. See infra at II.C. Numerous federal courts have also recognized that Olmstead applies to states’ administration of service
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systems that segregate individuals with disabilities in private as well as public institutions. Id.
By contrast, the cases on which defendants rely are completely inapposite. These cases stand simply for the proposition that the ADA imposes no duty on a public entity to force the businesses it licenses to comply with the licensees’ obligations under the ADA. See, e.g., Tyler v. City of Manhattan, 849 F. Supp. 1429, 1441-42 (D. Kan. 1994) (city had no duty under ADA Title II to force restaurants and stores that it licensed and inspected to comply with their ADA obligation to provide wheelchair access); Reeves v. Queen City Transportation, Inc., 10 F. Supp.2d 1181, 1183-88 (D. Colo. 1998) (public utility commission had no duty under ADA Title II to force bus company it certified to comply with its obligations under the ADA); Alford v. City of Cannon Beach, 2000 WL 33200554, No. CV-00-303-HU (D. Or. Jan. 17, 2000) (city had no duty under ADA Title II to force restaurants and stores that received city building permits to comply with the ADA, nor a duty to force entities receiving city permits for social events to comply with the ADA); cf. Blum v. Yaretsky, 457 U.S. 991, 1005-10 (1982) (actions of nursing home in transferring or discharging residents did not constitute state action simply because state required nursing home to complete forms and could impose penalties). These cases have no applicability to Olmstead claims, which concern public entities’ obligation to make reasonable modifications to their service systems to enable individuals with disabilities to receive services in the most integrated setting appropriate. Olmstead has nothing to do with a public entity’s failure to correct discriminatory conduct on the part of service providers it licenses. Furthermore, defendants’ view that the ADA’s integration mandate does not apply to choices a public entity makes regarding its service delivery system, but
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only to the conduct of facilities that the public entity operates, is flatly contradicted by the Olmstead decision itself. B. The Unnecessary Segregation of DAI’s Constituents in Adult Homes Results
from Defendants’ Policies and Choices in Administering Programs and Activities
The State plans, oversees, funds and regulates programs, services and activities for persons with mental illness in a way that leaves thousands of people with mental illness isolated in segregated adult homes. Defendants administer a system of mental health care, including residential and treatment services provided by public and private entities. See Statement of Facts, infra, pp. 7-11. OMH administers both residential services (see Defs.’ Br. at 6 n.5 (“Housing Programs”)), and treatment services, such as case management, clinic treatment programs, and continuing day treatment programs. It directly provides treatment services to individuals with mental illness in adult homes (Defs.’ Br. at 24), and approves contracts by which others do so. (See Murray Decl. Ex. 64 (18 N.Y.C.R.R. §§ 487.7(b), (c)(1)) (OMH approves service agreements between mental health providers and operators of impacted homes).)34
These programs and activities fall squarely within the scope of Title II of the ADA. Title II bars public entities from discriminating on the basis of disability in their programs, services and activities, 42 U.S.C. § 12132, and 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 Systems, Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997)
34 See also Murray Decl. Ex. 94 (DAI’s Supplemental Responses and Objections to Defendants’ Third Set of Interrogatories, dated Mar. 27, 2006).
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(“programs, services, or activities” is a “catch-all phrase that prohibits all discrimination
by a public entity, regardless of the context”).
Defendants have responsibility for New York’s mental health services,
programs and activities under state law, which requires them to create a state system of
services for individuals with mental illnesses, including residential and treatment
services, and to plan for how and where these services will be delivered. (Raish Decl.
Ex. 17 (N.Y. MENTAL HYG. LAW § 5.07(b)); Raish Decl. Ex. 36 (N.Y. MENTAL HYG.
LAW § 7.07).) State law provides that:
It shall be the policy of the state . . . to develop a comprehensive, integrated system of treatment and rehabilitation services for the mentally ill. Such a system . . . should assure the adequacy and appropriateness of residential arrangements . . . and rely upon . . . institutional care only when necessary and appropriate. . . (Raish Decl. Ex. 36 (N.Y. MENTAL HYG. LAW § 7.01).)35
It is defendants who determine what settings will be developed and funded
as part of the state’s system. To fulfill their responsibilities, defendants engage in a
planning process to determine what needs exist, what types of settings will be used to
meet those needs, what resource allocations should be prioritized, and whether resources
should be reallocated. OMH, for example,
formulate[s] a statewide comprehensive five-year plan for the provision of all state and local services for the mentally ill . . . [which shall] identify needs and problems . . . ; specify time-limited goals to meet those needs; identify resources to achieve the goals, including but not limited to resource reallocations; [and] establish priorities for resource allocation . . .
35 “The office [of mental health] . . . shall . . . 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 including those provided by voluntary organizations.” (Id.)
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(Raish Decl. Ex. 17 (N.Y. MENTAL HYG. LAW § 5.07(b)(1).) This plan must include a description of “the available community-based . . . community support services,” a determination of unmet need, and information on “new or expanded programs or services that may be required” to meet unmet need[s] . . . .” (Id. § 5.07(b)(2)(e), (f).)
OMH openly acknowledges the state’s role in determining the settings in which individuals with mental illness live and receive services. (Raish Decl. Ex. 56 at 12.) Its Statewide Comprehensive Plan for Mental Health Services emphasizes OMH’s accountability for the functioning of the service system—“coordinated, comprehensive networks of providers [that] deliver a balanced array of medical, self-help, social, supportive and rehabilitative services and programs”—as well as its role in coordinating the system. (Id. at 4-5.) These descriptions belie defendants’ assertions that they are merely licensing and inspecting entities with no responsibility for, or role in determining where, individuals with mental illness live or receive services.
Defendants’ insistence that “there is no existing State program, service or activity which provides housing referral services or placement in alternative housing to adult home residents” (Defs.’ Br. at 49) is patently false, as defendants’ own brief makes clear. (Id. at 23 (referencing “activities and programs that are designed to help adult home residents . . . access [OMH] Housing for Persons with Mental Illness”).) For example, OMH recently issued a request for proposals for supported housing beds targeted specifically for residents of adult homes.36 The problem is not a total lack of
36 Murray Decl. Ex. 81 (OMH Request for Proposals, Supported Housing for Adult Homes, Jan. 2007). In addition, OMH has taken steps to refer adult home residents to appropriate housing when adult homes have closed. (See, e.g., Wagner Dep. 86:24-88:9; Tacaronti Dep. 53:1857:8.)
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activity, but that defendants have not taken the steps necessary to ensure that adult home
residents’ Olmstead rights are respected.37
Defendants have conducted these programs and activities in a manner that
results in little choice for many individuals with mental illness other than to receive
needed services in the unnecessarily segregated setting of an adult home. Defendants’
administration of residential services and treatment to DAI’s constituents in the
unnecessarily segregated setting of adult homes is not an accident; it is the direct result of
state policy choices. (Rosenberg Aff. ¶¶ 7-9; Sundram Aff. ¶¶ 8-9.)
Adult home operators themselves have recognized that it is defendants’
exercise of this role that ensures the state’s reliance on adult homes to serve individuals
with mental illness. A 2003 lawsuit filed against the state by adult home operators
alleged that “New York has established a special arrangement with private adult care
facilities” to “provide shelter, food and mandated services” to adult home residents, “as
set forth in the extensive laws and regulations governing adult care facilities.” (Murray
Decl. Ex. 132 (Peluso v. New York, No. 03119529 (NY Sup. Ct., filed Nov. 12, 2003),
Complaint at ¶ 13).) The suit claims that “the State of New York needs” adult homes “in
37 Defendants’ contention that “in recent years only a small percentage of patients discharged from State hospitals have moved to adult homes” is irrelevant, as DAI’s claims concern defendants’ administration of the state service system for individuals with mental illness in a manner that makes adult homes the only option available to many individuals; whether the state makes actual placement determinations is not central to DAI’s claims. Defs’ Brief at 48. Similarly, defendants’ contention that adult home placements are “voluntary” is irrelevant, as DAI’s evidence shows that adult homes are the only option available to many of its constituents, not that they are involuntarily confined in these homes. See, e.g., Radaszewski v. Maram, 383 F.3d 599, 614 (7th Cir. 2004); Fisher v. Oklahoma Health Auth., 335 F.3d 1175 (10th Cir. 2003); Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003); Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied, 516 U.S. 813 (1995) (state policies ensuring that only segregated options are available for individuals with disabilities in state’s service system may violate the integration mandate, even if placement in the segregated settings is voluntary).
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order to gain access” to federal SSI payments, which are not available for individuals in publicly operated institutions. (Id. at ¶ 12.)
In discharging their responsibilities to administer a comprehensive system of care, defendants have made, and continue to make, choices that ensure that adult home beds are the only available option for large numbers of people with mental illness. (Rosenberg Aff. ¶¶ 7-9; Sundram Aff. ¶¶ 8-9.) Defendants have chosen to accept adult homes as a treatment and residential setting for thousands of individuals with mental illness who could live in more integrated settings. (See D. Jones Decl. Ex. A at 5 (“New York by policy and practice has sanctioned and heavily utilized adult homes as a setting for persons with serious mental illness[,] . . . has done virtually nothing to ensure that adult home residents with mental illness are offered the choice to live in more integrated, non-institutional settings that would afford them the ability to live a normal life . . . [, and] has continued to accept adult homes as a large part of its mental health system.”).)38 As Mr. Jones reported, “New York made a policy decision to utilize adult homes as a major source of placement for persons with mental illness” as part of its effort to downsize its state psychiatric centers. (D. Jones Decl. Ex. A at 6; see also Murray Decl. Ex. 57 at 1 (Adult Home Workgroup, THERE’S NO PLACE LIKE HOME: RECOMMENDATIONS FOR IMPROVING THE QUALITY OF LIFE IN ADULT HOMES SERVING PEOPLE WITH MENTAL ILLNESS).)
38 OMH’s Statewide Comprehensive Plan for Mental Health Services for 2004-2008 reflects that in 2002 there were 12,586 recipients of mental health services lived in adult homes. (Raish Decl. Ex. 56 at 69.) This is more than twice the number of individuals who were served in New York’s state hospitals in 2005. (See Murray Decl. Ex. 59 (OMH, Table 1.A:
Clients Served During Week of 2005 Pcs by Major Age Group by Program) (state survey data
showed 4,865 individuals over 18 in state hospitals in 2005).)
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Not only have defendants declined to use money now spent on adult homes to develop more appropriate housing, despite recommendations for such action, (see, e.g., Murray Decl. Ex. 79 at 18; Raish Decl. Ex. 57 at 26-28, 32 (Report of the Adult Care Facility Workgroup)), but defendants have also declined to exert influence over the number of adult home beds. DOH has authority to revoke, suspend or limit an adult home’s operating certificate in the public interest—to conserve resources:
by restricting the number of 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. (Murray Decl. Ex. 60 (18 N.Y.C.R.R. § 485.5(m)(1)(i).) DOH could certify that fewer adult home beds are needed to support a shift in funds from adult homes to supported housing.39 Instead, defendants have continued to support the existence of large adult homes.
As the above discussion shows, the discrimination of which DAI complains stems from programs and activities administered by the defendants here. They have, inter alia, refused to plan and develop more integrated settings for adult home residents, shift funds from adult homes to more integrated settings, or use the certificate of need process to facilitate the delivery of services in integrated settings. As a result, thousands of DAI’s constituents are unable to live and receive services in the most integrated setting appropriate to their needs.
39 The ADA forbids a public entity from administering a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(6).
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C. A State’s Use of Private Entities to Deliver Services in its Mental Health System does not Negate the State’s Obligation to Comply with the ADA’s Integration Mandate Defendants incorrectly contend that they can eliminate any obligation to
comply with Olmstead by simply making use of private entities to deliver services in the
state’s mental health system. The mere fact that the State arranges with private facilities
to deliver services as part of its mental health system, however, does not eliminate the
State’s obligation to operate its mental health system in compliance with the ADA.
Indeed, the community service system in Olmstead v. L.C. made use of privately operated
facilities, as do virtually all state mental health and developmental disabilities service
systems. See Brief of Respondents in Olmstead v. L.C., 1999 WL 144128, at *5 (noting
that Georgia had restructured its system of delivering community services to make use of
private providers). Yet this did not mean that these community services were not part of
the state’s service system or that Title II of the ADA was inapplicable.
In fact, four federal circuit courts have applied the ADA’s integration
mandate in cases where the state’s service system unnecessarily segregated individuals with disabilities in privately operated facilities.40 See, e.g., Radaszewski v. Maram, 383
F.3d 599, 614 (7th Cir. 2004) (“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 at-home care
40 Three of these cases did not specifically discuss whether the nursing homes at issue were or could have been private facilities. However, the decisions clearly view Olmstead as applicable to individuals in privately operated nursing homes, which constitute the
overwhelming majority of nursing homes. (See, e.g., Murray Decl. Ex. 95 at 20 (NURSING
FACILITIES, STAFFING, RESIDENTS, AND FACILITY DEFICIENCIES, 1995-2001) (in 2001, only 6.4 percent of Medicaid- and Medicare-certified nursing homes across the country were government-operated).)
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would amount to an unreasonable, fundamental alteration of its programs and services.”); Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) (state’s decision to fund nursing services for certain Medicaid recipients only in nursing homes would violate ADA unless state could demonstrate that offering nursing services for these individuals at home or elsewhere in the community would fundamentally alter the state’s Medicaid program); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) (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 that funding comparable prescription drug coverage in the waiver program would fundamentally alter the state’s Medicaid program);41 Helen L. v. DiDario, 46 F.3d 325, 328 (3d Cir. 1995), cert. denied, 516 U.S. 813 (1995) (pre-Olmstead case finding violation of ADA’s integration mandate where state public welfare department ran “two different programs that provide physically disabled persons with assistance in daily living”—nursing homes and attendant care provided in an individual’s own home—and plaintiffs were unnecessarily institutionalized in nursing homes). Other courts have ruled similarly. Martin v. Taft, 222 F. Supp. 2d 940, 946 (S.D. Ohio 2002) (denying motion to dismiss claims against state in Olmstead case where plaintiffs were institutionalized in both public and private institutions); Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (finding it immaterial for purposes of Olmstead claim against state that
41 Defendants’ attempt to distinguish Fisher is unavailing. Like DAI’s constituents in this case, the Fisher plaintiffs were not placed by state officials in nursing homes or directly required by state policy to enter nursing homes. Instead, the state’s policy of funding more prescription drugs in the nursing homes than in the community left many individuals little choice but to enter nursing homes. Id. at 1179. Similarly, in this case, state policies have left DAI’s constituents little choice but to live in adult homes.
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many of the plaintiffs lived in private rather than public nursing facilities).42 In each of
these cases, Olmstead’s requirements were triggered by the state’s choices in
administering its service system for people with disabilities. Who owned the facilities
where individuals were segregated was irrelevant.
Thus, it is clear that defendants cannot evade their responsibilities under
Olmstead simply by arranging to use privately operated facilities as part of the state
service system for individuals with mental illness.
III.
DAI’S CONSTITUENTS ARE NOT IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR NEEDS
The ADA and the Rehabilitation Act forbid unnecessary segregation and
require defendants to serve individuals with mental illness, including adult home residents, in “the most integrated setting” appropriate to their needs.43 Defendants must
adhere to this requirement in all of their programs, services, and activities, including the
provision of treatment and residential services to adult home residents.
The record evidence in this case demonstrates persuasively that
defendants’ delivery of services to residents of large adult homes—where nearly all
residents have been diagnosed with one or more severe mental illnesses—violates the
ADA’s requirement that services be provided in the most integrated setting. Residents
42 The Justice Department has recognized that Olmstead applies to state service systems that segregate individuals in facilities that are not state-operated. (See Murray Decl. Ex. 96 (Findings of Department of Justice, Civil Rights Division, Re: Laguna Honda Hospital and Rehabilitation Center) (concluding that state violated integration requirement by among other things failing to develop sufficient community services to afford choice to residents of nursing home operated by a locality).)
43 Defendants’ obligations under Title II of the ADA and the Rehabilitation Act are the same. (Defs.’ Br. at 32 n.50 (the subtle differences between the two statutes are “not relevant here”).) See, e.g., Henrietta D., 331 F.3d at 272.
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have little opportunity for interaction with nondisabled adults: they live with other disabled individuals, eat and take medication on regimented schedules, and are subjected to curfews and other restrictions that limit interactions outside the homes. As adult home residents themselves have testified, living in an adult home is in many respects like living in a psychiatric institution. (See A.M. Dep. 154:25-155:23; Statement of Facts, infra pp. 6 to 29; DAI’s Response to Defendants’ Statement Pursuant to Local Civil Rule 56.1 ¶¶ 3, 6-9, 22-25; see also Defs.’ Br. at 61 (adult homes “have some institution-like qualities”).) This testimony is supported by DAI’s experts and other witnesses, who have explained in depth why adult homes are not the most integrated setting for DAI’s constituents—and why supported housing is less isolating, providing far richer opportunities for interactions with non-disabled individuals. (See, e.g., Duckworth Aff. Ex. A at 7-14; D. Jones Decl. Ex. A at 8-13; E. Jones Aff. Ex. A at 4-7.)
Defendants’ reading of the ADA eviscerates the statute: they argue that adult homes are “integrated” because residents have some opportunities for contact with people who are not disabled. This contention misapprehends key provisions of the ADA and ignores the text of implementing regulations embraced by the Supreme Court in Olmstead. Moreover, defendants’ description of the record ignores compelling evidence—much of it their own—that adult homes in fact isolate and segregate residents, limiting opportunities for interactions with nondisabled adults. Although it is true that some residents leave these facilities, travel by public transportation, and sometimes hold part-time or volunteer jobs, this simply reflects the extent of residents’ ability and desire to be more integrated into their communities—not that they live and receive services in the most integrated setting. Significantly, nowhere do defendants assert that adult homes,
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even when they offer opportunities for outside contact, provide greater or equal opportunity than does supported housing. A. The ADA And Rehabilitation Act Contain An Expansive Integration
Mandate Title II of the Americans with Disabilities Act prohibits discrimination
against individuals with disabilities by state and local governments. 42 U.S.C. § 12132. Among the forms of discrimination prohibited by the ADA are the isolation and segregation of individuals with disabilities. (See Defs.’ Br. at 52 (“The ADA identifies isolation and segregation . . . as forms of discrimination.”)); 42 U.S.C. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such . . . discrimination . . . continue[s] to be a serious and pervasive social problem.”).
To combat isolation and segregation, Congress outlawed through the ADA governmental activity that unjustifiably circumscribes opportunities available to people with disabilities for “full [societal] participation, independent living, and economic selfsufficiency.” Id. at § 12101(a)(8). Unjustified institutionalization is one such form of discrimination. Olmstead, 527 U.S. at 600. By its very nature, it isolates individuals with disabilities, denies social and other opportunities, and “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id.44
44 As the Court in Olmstead noted, the ADA was enacted against the backdrop of—and was intended to bolster—earlier efforts to end the unnecessary segregation of persons with disabilities. 527 U.S. at 599.
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The Department of Justice has issued regulations implementing Title II of the Act, applicable to state and local governments.45 In recognition of Congress’s expansive mandate, these regulations require, among other things, that public agencies “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). “Most integrated setting” is defined 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 (emphasis added). The Court in Olmstead “tacitly endorsed this definition.” (Defs.’ Br. at 52); see Olmstead, 527 U.S. at 597-98.
In an effort to justify the State’s actions, defendants excise important concepts from the regulation. They suggest that under Olmstead the ADA’s integration mandate is satisfied when “qualified individuals with mental illnesses [are] moved from institutional settings to more integrated settings,” (Defs.’ Br. at 51), and that “the key is whether persons with disabilities have opportunities for contact with nondisabled persons, rather than the number of actual contacts” (id. at 52-53). But this interpretation reads the terms “most integrated setting” and “interact . . . to the fullest extent possible” out of the law. These terms are crucial to a correct understanding of the State’s obligations.
The law is clear. Various settings provide persons with disabilities with varying degrees of integration. Some settings are more integrated than others. The proper approach is not one that views the world through a binary, integration-versussegregation lens. Under the ADA, providing services in settings with some opportunities
45 See 42 U.S.C. § 12134(a) (requiring DOJ to issue regulations enforcing Title II).
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for interaction is unlawful if another appropriate setting would provide more opportunities, and the individual in question does not oppose the more integrated setting.
As Olmstead and the DOJ regulations instruct, and as defendants would have this Court forget, the ADA integration mandate is not limited to people confined behind the walls of state hospitals or “State-run residences.” (Defs.’ Br. 60.) The integration regulation simply states that “public entities are to provide ‘services, programs, and activities in the most integrated setting appropriate’ for a qualified person with disabilities.” Fisher v. Oklahoma Health Care Authority, 335 F. 3d 1175, 1181 (10th Cir. 2003).
Thus, for example, in Townsend v. Quasim, the Ninth Circuit reversed a lower court’s grant of summary judgment against plaintiffs challenging Washington State’s policy of requiring certain Medicaid recipients with disabilities to receive services in nursing homes rather than more community-based settings. 328 F.3d 511, 517 (9th Cir. 2003). The court flatly held that, in absence of a fundamental alternation defense, Washington’s policy “violates the ADA.” Id. at 520. Similarly, the Third Circuit has ruled in favor of a nursing home resident who was “not asserting a right to community care or deinstitutionalization per se” but instead complaining that defendant’s “failure to provide [attendant care] services in the ‘most integrated setting appropriate’ to her needs . . . violates the ADA.” Helen L. v. DiDario, 46 F.3d 325, 336 (3d Cir. 1995).
The facts of Olmstead itself further confirm this principle. Olmstead plaintiff L.C. had some opportunities for contact outside the hospital. As her condition improved while in the state hospital, she
receive[d] a wide variety of community-care services[,] . . . leaving [the hospital] during the day . . . via public transportation for persons with
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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. Reply Brief at 17-18, Olmstead v. L.C., 527 U.S. 581 (1999) (No. 98-536), 1999 WL 220130.
It was on this record that the Supreme Court permitted the plaintiffs’ ADA integration claim to go forward: the fact that L.C. had some opportunities to interact outside the hospital with people without disabilities did not end the matter. L.C.’s demand to be placed in a setting that was more integrated than the hospital was a cognizable ADA claim. See Olmstead, 527 U.S. at 607.
The evidence establishes that supported housing is far more integrated and far less isolating than are adult homes. Hence, under the ADA, when supported housing is appropriate for an adult home resident, the resident must be given the opportunity to receive services in that setting. Tellingly, nowhere in defendants’ papers do they claim that adult homes are the most integrated setting appropriate to the needs of adult home residents—only that these homes are integrated to some degree. Under the ADA, as construed in Olmstead, that is not enough. B. Supported Housing is Far More Integrated Than Adult Homes
By their nature, adult homes limit interaction with individuals without disabilities. There is abundant evidence that adult homes are institutional in nature and pose significant barriers to social interaction. Additionally, there is plentiful evidence that supported housing is far more integrated than adult homes. At the very least, the evidence creates a genuine issue of fact concerning whether DAI’s constituents are being served in the most integrated setting.
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1. Substantial Evidence Supports DAI’s Contention that Adult Homes are Segregated Institutions that Impede Interaction with NonDisabled Adults
Adult homes are large institutional facilities in which scores of people
with mental illness reside together under one roof, have virtually no opportunities to
interact with nondisabled persons, and must adhere to rules, restrictions and rigid
schedules controlling most aspects of their daily lives. (See Statement of Facts, infra pp.
11 to 16; DAI’s Response to Defendants’ Statement Pursuant to Local Civil Rule 56.1
¶¶ 3, 6-9, 22-25). Both sides’ experts agree that in almost all respects, adult homes are
akin to psychiatric institutions. (D. Jones Decl. Ex. A at 9-10; E. Jones Aff. Ex. A. at 8;
E. Jones Dep. 159:17-161:4; see also A.M. Dep. 154:25-155:17 (adult home no different
from state hospital except that he could leave the grounds).)
Defendants’ expert Alan G. Kaufman, who ran New Jersey’s mental
health system, found that
By virtue of the populations served, as well as the physical size and logistics associated with day-to-day operations, Adult Homes appear to share certain characteristics with inpatient psychiatric facilities. Noteworthy among them is that significant numbers of residents suffer from serious mental illness and share similar histories of psychiatric hospitalization. The number of beds in many 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.) Institution-like routines:
include areas such as inflexible schedules for meals and other daily activities; assigned dining room seating; assigned roommates; rigid medication administration procedures and medication dispensing lines; routinized program and recreational activities; public address announcements; and the constant presence of medical and mental health staff. Moreover, provision by the Adult Home 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.
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(Id. at 8-9.) Mr. Kaufman 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.” (Id. at 10; see also Schwartz Dep. 297:24-298:14, 298:25-300:15; Rosenberg Aff. ¶¶ 6, 12 (“The adult homes that are the subject of this case are large, segregated institutions”; “[They] are more like institutions than community settings[, and] they impede the community integration of people with mental illness.”); S.P. Dep. 58:9-15 (“Everybody’s like indoors on top of one another.”).)
Life in the home is highly regimented, and residents have very little control over the activities in their daily lives, most of which occur within the walls of the adult homes. (See, e.g., Schwartz Dep. 317:16-318:7, 325:15-23; Kessler Dep. 423:22425:7; Geller Decl. Ex. A at 12-13 (citing Brooklyn Manor rules); B.R. Decl. ¶ 12; G.L. Dep. 227:2-7; D.W. Dep. 132:4-14; E. Jones Aff. Ex. A at 3, 8; E. Jones Dep. 243:5-19; B.J. Dep. 115:16-21, 121:19-122:7.) The homes limit residents’ ability to interact and maintain relationships with nondisabled individuals. (See, e.g., N.B. Decl. ¶¶ 15-16, 1920; A.C. Aff. ¶¶ 9-10; B.R. Aff. ¶¶ 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. 297:24-298:14, 298:25-300:15.)
Defendants cite regulations that require adult homes to assist residents to maintain family and community ties and to provide and encourage participation in community-based activities; they also contend that DOH inspectors monitor compliance with these regulations. (Defs.’ Br. at 58 (noting that DOH is supposed to monitor compliance with N.Y.C.R.R § 487.7(g) & (h)).) But the record shows the activities
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undertaken by the homes are not meaningful. (See Statement of Facts supra at 23 to 24; DAI’s Response to Defendants’ Statement Pursuant to Local Civil Rule 56.1 ¶¶ 3, 6-9, 22-25; N.B. Decl. ¶¶ 19-20; B.R. Decl. ¶¶ 16-18; A.C. Decl. ¶¶ 9-10.) In fact, the record evidence shows that many programs available to adult home residents are infantilizing and conduct virtually no activities relating to daily living skills. (See M.B. Dep. 54:1555:23; G.H. Dep. 73:14-19; E. Jones Aff. Ex. A at 3, 5; Duckworth Aff. Ex. A at 9; Duckworth Dep. 119:23-120:18, 142:8-21.) But even if homes made required efforts, they could not overcome the institutional qualities inherent in a large facility. See E. Jones Aff. Ex. A at 4 (noting that in adult homes “[t]he physical environment is institutional”; adult 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”); Kaufman Aff. Ex. A at 8 (“[S]ignificant numbers of [adult home] 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.”).) Furthermore, better enforcement will never make the homes more integrated than the supported housing that DAI seeks.
2. Supported Housing is a Far More Integrated Setting than an Adult Home Supported housing is far more integrated than an adult home. Scattered-
site apartments are in apartment buildings where people without disabilities live. (See Schwartz Dep. 188:11-25, 198:11-199:7.) Most are apartments for only one client; if they are shared, they are shared with only one or two other people, some of whom may
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be family members. (See id. at 179:18-180:24; Tsemberis Dep. 101:21-102:12; see also id. at 109:16 (noting “[i]t’s real housing”).)
Clients set their own schedules. There is no regimentation: none is required, they are not living as part of a large group. There are no restrictions on visiting. Clients usually have their own phones. Clients 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 of their community. (See E. Jones Dep. 231:10-25.)
For all of these reasons, it is unsurprising that the experts, as well as a former top official in New York’s mental heath system, agree that supported housing is more integrated than adult homes. (See D. Jones Decl. Ex. A at 25 (“Supported housing . . . is a home, not a residential treatment setting.”); Duckworth Aff. Ex. A at 8 (“In contrast to the apartments in the supported housing model, adult homes have the look and feel of large custodial institutions.”); Rosenberg Aff. ¶ 12 (“Without question, supported housing is a more integrated setting than an adult home.”).) For the same reasons, it is unsurprising that many adult home residents would prefer supported apartments. See Statement of Facts supra at 17-19.
As shown above, the focus of the ADA and Olmstead is on the “most” integrated setting and interaction with nondisabled individuals “to the fullest extent possible.” At the very least, a factual dispute exists over whether adult homes satisfy these obligations, particularly in light of the existence in New York of supported housing as an alternative setting.
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IV. DAI’S CONSTITUENTS ARE QUALIFIED FOR SUPPORTED HOUSING
There is substantial evidence that large numbers of the residents of New York City’s large adult homes are qualified to live and receive services in supported housing. (See, e.g. Duckworth Aff. Ex. A at 2 (“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”); E. Jones Aff. Ex. A at 3, 9 (virtually all of the 179 residents she interviewed were qualified for supported housing with appropriate supports); Groves Aff. Ex. A at 4 (most, if not all, residents of adult homes could live in the community with appropriate supports); Raish Decl. Ex. 57 at 3132 (estimating that 6000 persons with mental illness residing in adult homes could be moved to supported housing); Bruce Dep. 111:8-25 (people assessed in the New York Adult Home Assessment Project could and wanted to live in their own apartment, such as supported housing); Geller Dep. 196:10-199:22, 210:7-17 (finding that in a sample of 206 adult home residents, 134 were eligible for OMH’s community housing program and 66 could live in supportive housing); Murray Decl. Ex. 74 at 28 (Nov. 2006 Powerpoint presentation (finding that of 1,688 residents assessed in the New York Adult Home Assessment Project 39% had sufficient cognitive function for independent living); Tacoronti Dep. 225:16-226:8 (there are a number of residents of adult homes who could live in supported housing); Wickens Dep. 46:8-11, 119:15-120:4 (there are people in adult homes who could live in more integrated settings). DAI’s evidence is more than adequate to satisfy DAI’s burden under Olmstead. See Olmstead, 527 U.S. at 602. At the very least, it creates a genuine issue of material fact.
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Defendants take three different approaches to this evidence, none of which
has merit. First, they argue that some of the evidence should be disregarded because of
“methodological” problems: this Court, defendants argue, should not rely on DAI’s
experts’ findings because they did not conduct “in-person clinical examinations” of the
residents. (Defs.’ Br. at 67.) However, as shown in DAI’s opposition to defendants’
motion in limine, DAI’s experts, each of whom has extensive experience in the mental
health field, employed rigorous and reliable methodologies in reaching their opinions in
this case. See Memorandum of Law in Opposition to Defendants’ Motion to Exclude
Testimony, Reports and Opinions of Plaintiff’s Expert Witnesses at 3-13. There is no
support for defendants’ assertion that in-person clinical examinations and assessments by
multi-disciplinary treatment teams were necessary to an opinion of whether individuals
are qualified for supported housing. Id. Indeed, defendants did not require Dr. Geller to
conduct such examinations before opining on whether sample residents were qualified to move.46 (See Geller Dep. 51:20-56:14.)47
46 DAI’s experts reviewed all individual records reviewed by Dr. Geller. (Duckworth Dep. 209:15-210:12; E. Jones Dep. 266:18-268:5.)
47 Defendants claim that they have never assessed the “capacity” of any of the adult home residents to move to supported housing. (Defs.’ Br. at 66.) This is tantamount to an admission of noncompliance with the Olmstead integration mandate. See Frederick L. v. Dep’t of Public Welfare, 157 F.Supp.2d 509, 540 (E.D. Pa. 2001) (“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.”); (Murray Decl. Ex. 97 at 7 (Letter of Timothy M. Westmoreland, Director, Center for Medicaid and State Operations Health Care Financing Administration and Thomas Perez, Director, Office for Civil Rights, United States Department of Health and Human Services, to State Medicaid Directors) (to effectively prevent or correct unjustified institutionalization, state must have reliable sense of how many individuals with disabilities are currently institutionalized and are eligible for services in community-based settings).)
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Second, defendants claim that DAI’s constituents are not “qualified” to be in supported housing because they do not meet “essential eligibility standards.” (Defs.’ Br. at 65-66.) Yet defendants do not even define or identify those eligibility requirements, or which of those requirements are essential. Their motion should be denied on that basis alone. There is nothing in defendants’ Rule 56.1 statement identifying the eligibility standards for supported housing, let alone those standards properly considered “essential.”
Not every eligibility requirement is an “essential eligibility requirement.” Whether an eligibility requirement is essential turns on its purpose and whether those who seek access can be accommodated without altering the fundamental nature of the service or activity. PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001). The defendants have failed to show that DAI’s constituents failed to meet the “essential” eligibility requirements for supported housing.
Instead of identifying the essential eligibility standards for supported housing, defendants claim that DAI’s constituents fail to meet two alleged requirements that are neither essential nor imposed: that supported housing clients must need only a “minimal” level of support and that they must have completed an HRA 2000 application. (Defs.’ Br. at 37-38 and 66.)
The evidence shows that individuals may participate in supported housing in New York if they need more than “minimal” support, and OMH has admitted it.48
48 Defendant OMH has stated: “Supported Housing provides access to affordable, independent housing and support services based on the needs and desires of the resident. 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 an Assertive Community Treatment (ACT) team of Blended Case
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Supported housing clients are provided the level of support they need, and it is frequently
more than minimal support. (See Duckworth Aff. Ex. A at 7-8; Tsemberis Dep. 48:15-
25; Lasicki Dep. 70:3-6.) 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. (Schwartz Dep. 191:4-12; 193: 22-194:15, 195:20-
196:23, 288:13-24, 289:7-290:6. Lasicki Dep. 70:5-6.) Services are flexible; can be
increased, decreased, or withdrawn as necessary; and are usually more intensive at first.
(Baer Dep. 108:15-109:3; Schwartz Dep. 187:22-188:9; Lasicki Dep. 68:3-10.) Twenty-
one percent of supported housing residents have case managers to assist them in addition
to the case management provided by the supported housing provider. (Lasicki Dep.
99:24-100:2) Defendants admit that ACT teams are available to residents of supported
housing, which is a very intensive form of community support available in New York.
(Defs.’ Br. at 24, 31; see also Rosenberg Aff, ¶ 13; E. Jones Dep. 35:21-37:15; Tsemberis Dep. 51:2-4.) In their brief, defendants misrepresent supported housing in New York.49
management (BCM) services. Many recipients will be coping with co-occurring substance abuse disorders and be a various stages of recovery . . . . Services provided by the sponsoring agency will vary, depending upon the needs of the recipient. Supported Housing staff will encourage and assist recipients to develop natural community supports, use community resources and pursue an individualized path towards recovery. Staff will help the individual to establish a household and facilitate the resolution of landlord-tenant issues. 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.” (Murray Decl. Ex. 81 at 5-6.) 49 Defendants claim that they permit some of the supported housing providers to serve only the cream of the crop by excluding individuals who need more than “minimal” support, although the OMH Supported Housing Implementation Guidelines, the RFPs for Supported Housing, the eligibility regulation and the eligibility statute make such individuals eligible for services. This is no defense because defendants, who contract for and pay for these services, can require the providers to serve all eligible individuals. Also, under the ADA, defendants cannot serve only the least disabled eligible persons. See Hahn Barta v. Linn County, IA, 130 F.Supp.2d 1036, 1050 (N.D. Iowa 2001) (regulations promulgated under both the RA and the
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Certainly, defendants have not, as required by Martin, supra, demonstrated that permitting individuals who need greater than minimal support would fundamentally alter supported housing or their mental health service system.
Additionally, completing an HRA 2000 is not an essential precondition for obtaining OMH housing. Individuals often enter OMH housing without completing an HRA 2000. (Tsemberis Dep. 32:8-36:9.) And even if the HRA 2000 were a precondition to obtaining OMH housing, it is not an “essential” eligibility requirement as that term is used in the ADA. It is but a step in a bureaucratic process, unrelated to the characteristics of an individual that render him or her suitable for supported housing. See Olmstead, 527 U.S. at 602; Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003). Moreover, a significant number of DAI’s constituents have actually completed HRA 2000’s.50 (See Defs.’ Br. at 37.) As part of the relief in this action, defendants can assist those constituents who have not yet done so to complete HRA 2000 applications. Certainly, defendants have not, as required by Martin, supra, demonstrated undisputed facts showing that providing supported housing to individuals who have not yet completed an HRA 2000 application would fundamentally alter their program or activity.
Finally, defendants argue that DAI’s constituents are not qualified for supported housing because the records of “some” of the 1,536 residents identified by DAI “reflect[] that the mental health providers who actually treat . . . these residents have concluded they are not qualified to move from their adult homes.” (Defs.’ Br. at 67.)
ADA clearly prohibit discrimination based upon severity of disability), and cases cited therein. 50 “From January 1, to January 26, 2006, HRA received 807 applications from adult home residents.” Defendants’ Rule 56.1 Statement, ¶ 54.
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Defendants identify only six such residents,51 and substantial evidence contradicts defendants’ characterization of their records. For example, in October 2000, it was determined that resident M.M (Hathaway Aff. Ex. L) was “ready for housing placement” and that he would “do well in supportive housing.” Murray Decl. Ex. 98 (Psychosocial summary for M.M.) Indeed, defendants’ expert examined the records of four of the six residents and determined that three were appropriate for supported housing. (See Murray Decl. Ex. 99 (Evaluation of Residences for AH Residents for M.M.); Murray Decl. Ex. 100 (Evaluation of Residences for AH Residents for P.W.); Murray Decl. Ex. 101 (Evaluation of Residences for AH Residents for E.R.); Murray Decl. Ex. 102 (Evaluation of Residences for AH Residents for L.B.).)
Plainly, whether the constituents are qualified involves material facts in dispute, and thus defendants are not entitled to summary judgment.
V. DEFENDANTS HAVE NOT PROVED THEIR “FUNDAMENTAL ALTERATION” DEFENSE Defendants bear the burden of proving their “fundamental alteration” defense. E.g., Townsend, 328 F.3d at 520. As DAI demonstrated in its motion for partial summary judgment, defendants are foreclosed from asserting this affirmative defense because they have failed to develop an Olmstead plan. Frederick L. v. Dep’t of Public Welfare, 422 F.3d 151, 157 (3d Cir. 2005). In their motion for summary judgment, defendants make clear they have not undertaken even the most basic step required to develop such a plan—namely, to identify the individuals in adult homes who could be
51 Defendants offer no evidence that the records reflect “reasonable assessments,” as required for deference under Olmstead. 527 U.S. at 602.
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served in more integrated settings. (Defs.’ Br. at 76 (it would be a “new program” for defendants to identify adult homes residents who could live in more integrated settings); id. at 78 (it would be impractical to maintain a list of adult home residents who desire supported housing).)52 Their brief underscores that whatever “plan” defendants may have lacks “reasonably specific and measurable targets” for adult home residents moving to more integrated settings. Frederick L., 422 F.3d at 158, and has no “time-frame,” id. at 160.
If the Court is not inclined to grant DAI’s motion for partial summary judgment, it should deny defendants’ motion for summary judgment based on its fundamental alteration defense. Whether the relief DAI seeks in this case would work a “fundamental alteration” is a “complex fact-intensive” inquiry particularly inappropriate for summary judgment. Martin v. Taft, 222 F. Supp. 2d 940, 986 (S.D. Ohio 2002); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1183 (10th Cir. 2003) (fact that outlay of funds is required is not “tantamount to a fundamental alteration”). Moreover, as shown below, defendants have not established that “transferring” adult home residents would increase the State’s costs, unjustly impact other programs, or otherwise work a fundamental alteration of their service delivery system. A. Defendants Have Not Demonstrated That Their Costs Would Increase as a
Result of the Relief in this Action Defendants assert that the relief DAI seeks “would dramatically increase
the State’s costs.” (Defs.’ Br. at 72.) Yet, defendants have never formulated any actual
52 One way for the State to identify adult home residents who can live in more integrated settings would be to follow up on the assessments done by New York Presbyterian Hospital. (See Defs.’ Br. at 20-21.) Instead, defendants asked New York Presbyterian not to use its data to identify residents who could live in more integrated settings. (Bruce Dep. 54:8-55:9.)
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estimate of what it would cost to serve qualified adult home residents in supported housing. (Tenenini Dep. 51:13-52:2, Schaefer-Hayes Dep. 188:12-16; see D. Jones Decl. Ex. A at 21 (“New York has not done any detailed fiscal analysis on the relief sought.”).)
DAI’s expert Dennis Jones identified what formulating such an estimate would entail. At a minimum, defendants would: “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’ own expert agreed with Mr. Jones on this point. (Kipper Dep. 24:15-25:14.) Yet, defendants have never performed this analysis.53
While defendants have done some analysis of some of the relevant costs— albeit only after this litigation was initiated—DAI’s experts have shown that defendants’ cost analysis is seriously flawed. (See, e.g., D. Jones Decl. Ex. A at 21; D. Jones Decl. Ex. B at 1-6; D. Jones Dep. 313:15-317:25; see also supra Statement of Facts, Section J.) For example, defendants did not properly take into account savings from the Medicaid program. DAI’s expert Dennis Jones explains in his report that such savings would be substantial, perhaps as much as $16,000 per adult home resident. (D. Jones Decl. Ex. A at 21; D. Jones Decl. Ex. B at 3-5; D. Jones Dep. 290:18-293:7; see also
53 Contrary to defendants’ protestations (Defs.’ Br. at 74 n.128,) it was not for lack of a list of adult home residents who could move to supported housing. DAI produced a list of residents identified as qualified to move to supported housing. (See Groves Aff. Ex. B at 4-5; Murray Decl. Ex. 103 (Revised Data Runs—March 2005 Database).) In fact, one of defendants’ experts used the list to select a sample of residents. Geller Decl. Ex. A at 2.
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Murray Decl. Ex. 84; Murray Decl. Ex. 85.) Defendants claim that Mr. Jones’ conclusions are “wholly speculative.” (Defs.’ Br. at 73.) But substantial evidence supports Mr. Jones conclusion. See Murray Decl. Ex. 79 (showing inflated Medicaid costs for adult home residents); Murray Decl. Ex. 104 (Adult Home Payment SubWorkgroup Report) (acknowledging same).54
In addition, defendants’ cost analysis assumes both that (a) adult home beds currently occupied by residents with mental illness would be filled when DAI’s constituents move to supported housing and (b) as a result, the State’s overall costs would increase. However, New York is under no obligation to maintain adult homes at their census, and the State could limit admissions, as has been done in similar “deinstitutionalization” contexts. (D. Jones Dep. 15:17-21, 318:9-14.)55 Also, assuming the vacated beds would be filled, this would not necessarily increase the State’s costs. The actual impact would depend on the costs of the prior placements of the individuals filling the beds, and defendants have offered no evidence regarding what the costs would be.
DAI expert Dennis Jones, former OMH senior deputy commissioner Linda Rosenberg, and former NYS Commission on Quality of Care Commissioner Clarence Sundram have all attested that, taking all relevant factors into account, the relief DAI
54 Defendants’ expert Mr. Kipper admitted that he failed to evaluate the impact of Medicaid savings, Kipper Dep. 26:22-27:3, but justified this omission based on his “intuitive sense” that such savings would not occur, id. at 27:19-29:10, 33:9-34:13.
55 For example, New York law allows DOH, through a certificate of need process under 18 N.Y.C.R.R. § 485.5(c), to revoke, suspend or limit an adult home’s operating certificate upon determining that such action would be “in the public interest” because it would “conserve resources” (i.e., support a state shift in funds from adult homes to supported housing). (Murray Decl. Ex. 122 (18 N.Y.C.R.R. § 485.5(m)(1)(i)).)
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seeks can be implemented without increasing the state’s costs. (D. Jones Decl. Ex. A at 21-22; accord Rosenberg Aff. ¶ 14 (“[I]t would be less expensive for defendants to serve current and future adult home residents in supported housing instead of adult homes.”); Sundram Aff. ¶ 12 (“[T]he true cost of segregating persons with mental illness in adult homes is approximately the same as providing them with supported housing in the community[.]”).) Defendants may strongly disagree with their analysis, but that disagreement merely creates a factual dispute, not a basis for summary judgment.
Defendants’ assertion that an analysis of savings is limited to only OMH’s budget, rather than taking into account all the State’s savings, flies directly in the face of Olmstead. In Olmstead, the Supreme Court instructed the trial court on remand to conduct an assessment of the state’s actual savings from implementing the relief plaintiffs sought. 527 U.S. at 604-07 & n.16 (rejecting simple comparison of cost of communitybased care with cost of institutional care, in favor of analysis of actual fiscal impact). Case law since Olmstead has been faithful to this command: a trial court must consider the actual cost of the relief plaintiffs seek. See, e.g., Frederick L., 364 F.3d at 496; Townsend, 328 F.3d at 520; Martin, 222 F. Supp. 2d at 986 (fundamental alteration analysis requires consideration of “vast array of evidence” including evidence on available resources to cover the costs of more integrated services).
The cases cited by defendants do not support defendants’ assertion that this Court must limit its examination to OMH’s budget, ignoring the actual fiscal impact of the relief DAI seeks. Those cases treated the “mental health budget” as including more than the budget of the state’s mental health department. Each considered, in addition, other state expenditures on individuals with mental illness. Bryson treated
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Medicaid costs as part of the state’s mental health budget. Bryson v. Stephen, No. 99-
CV-558-SM, 2006 WL 2805238, at *7-8 (D.N.H. Sep. 29, 2006). Bruggeman did the
same, permitting an inquiry into the state’s efforts to obtain Medicaid funding for the
services at issue. Bruggeman v. Blagojevich, 219 F.R.D. 430, 434-35 (N.D. 111. 2004).
Frederick L. viewed the mental health budget as including all state funding with a nexus
to mental health services. 364 F.3d at 496-97 n.6. The above cases make clear that it is
entirely appropriate to consider both Medicaid and other relevant factors in examining the
fiscal impact of the relief DAI seeks, instead of limiting the analysis to OMH’s budget.
Defendants’ own conduct confirms that limiting analysis to OMH’s
budget makes no sense here. Typically, when defendants conduct fiscal analyses of
changes in the delivery of services to individuals with mental illness, they consider the budgets of both OMH and DOH.56 The budget of DOH is considered because it includes
(among other things) the Medicaid program, which is a major source of funding for
services provided to OMH clients. (Tenenini Dep. 40:16-41:7; Schaefer-Hayes Dep. 98:11-16.)57 In essence, defendants in their motion ask the Court to conduct a fiscal
analysis using an approach that they themselves reject in making budget decisions.
56 For example, to increase funding for mental health services, OMH has developed a variety of initiatives to maximize federal reimbursements under the Medicaid program for services to persons with mental illness. This technique, known as Medicaid maximization, shifts state dollars from OMH’s budget to DOH’s budget, using the state dollars to generate additional federal dollars. Medicaid maximization, by its very nature, requires treating the DOH budget as part of the state’s mental health budget. (See, e.g., Schaefer-Hayes Aff. ¶¶ 72-78; Schaefer-Hayes Dep. 76:5-17; Murray Decl. Ex. 105 at 123 (Portion of OMH 2003-2004 Executive Budget); Murray Decl. Ex. 106 at 145 (Portion of OMH 2002-2003 Executive Budget); Murray Decl. 107 at 4 (OMH Aid to Localities 2003-04 Enacted Budget).)
57 See also Murray Decl. Ex. 108 (Jeffrey A. Buck, Ph.D., Medicaid, Health Care Financing Trends, and the Future of State-Based Public Mental Health Services, Psychiatric Services 54:969-975 (2003).)
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B. Defendants Have Not Demonstrated that Other Individuals Would Be Adversely Affected by the Relief Sought in this Action Because serving adult home residents in supported housing would result in
savings, (D. Jones Decl. Ex. A at 21-22), it will not require cuts in programs or prejudice other persons who seek supported housing (D. Jones Decl. Ex. B at 1-6; Rosenberg Aff. ¶ 14.) DAI is not asking defendants to use money now designated for other needy populations to fund a remedy in this case. To the contrary, DAI requests here that funds currently spent on adult home residents be spent in another way—to serve DAI’s constituents in more integrated settings.
This is precisely the kind of relief anticipated by Olmstead. The Olmstead plaintiffs asked that the money Georgia was spending on serving them at the hospital be spent instead on serving them in a community residence. The Supreme Court approved their request, but subject to a more searching inquiry than had earlier been conducted; the Supreme Court directed the trial court to examine what it would actually cost Georgia to facilitate plaintiffs’ move, including savings generated by reduced hospital census. 527 U.S. at 603-07. This case requires a similar analysis.58
Redirecting spending—the relief approved in Olmstead—is a nationally accepted approach to promoting community integration. (D. Jones Dep. 261:5-262:2.) This approach is often referred to as “money follows the person.” (Murray Decl. Ex. 109 (Money Follows the Person Federal Rebalancing Demonstration Grant Summary (March 2007).) It has been used in New York, as well as other states, to facilitate the movement of individuals from segregated to more integrated settings. (See Schaefer-Hayes Dep.
58 The Olmstead Court acknowledged that Georgia had no obligation to provide plaintiffs mental health services; however, once Georgia chose to provide services, the ADA required the services be provided in the most integrated setting. 527 U.S. at 603 n.14.
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89:20-92:17 (through its community reinvestment program, OMH has reinvested money from state-operated facilities into community services since the mid-1990’s by budgeting census reductions in state-operated facilities and commensurately increasing funding for community services); D. Jones Decl. Ex. A at 23 (“this reinvestment [may] occur within the same budget year with money following the consumer as she/he moves to the community.”).)
If, as DAI’s evidence shows, redirecting money now spent on adult home residents is sufficient to fund the remedy in this case, there will be no prejudice to other individuals served by the State. (D. Jones Decl. Ex. A at 22 (concluding that it would be less expensive to serve adult home residents in supported housing).) No money from “other” programs is required. Defendants have not shown otherwise.
In addition, the relief DAI seeks will not disadvantage others seeking supported housing. DAI is not proposing that supported housing now earmarked for others be redirected to adult home residents. Instead, DAI is proposing to increase the pool of supported housing, with monies currently spent on adult home residents. The evidence indicates that New York can develop additional supported housing for adult home residents, while continuing with whatever plan New York may now have to develop supported housing for other populations. (D. Jones Decl. Ex. A at 31 (“New York is entirely capable of developing sufficient capacity in its supported housing program”); Rosenberg Aff. ¶ 11 (“If ordered to do so by this Court, defendants could . . . secure for DAI’s constituents the relief they seek. . . .”); Tsemberis Dep. 238:11-22 (Pathways could create 1,000 supported housing beds over next 5 years if state asked); Schwartz Dep. 225:21-226:19 (Venture House will “certainly knock on the door again”
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when state makes funds for supported housing available); Lasicki Dep. 203:7-9 (director of association of community-based housing providers serving over 20,000 people with severe mental illnesses did not “have any doubt that [her] member organizations could serve any client who’s in an adult home with mental illness”).) The recent response of New York City providers to a Request for Proposal for supported housing underscores that the potential supply of such housing is far greater than what the defendants have sought to tap. When, in 2005, defendants issued an RFP for providers to develop 318 supported housing beds, 44 providers responded with plans to develop 1500 beds. (See Murray Decl. Ex. 56 at 3; D. Jones Dep. 148:11-21 (noting response to request for proposals).) Similarly, when defendants recently issued an RFP for 60 additional supported housing beds, OMH received seven proposals but accepted only three. (See Murray Decl. Ex. 81 (Request for Proposals, Supported Housing for Adult Home Referrals) and responsive letters; Murray Decl. Ex. 110 (Letter from OMH to Comunilife); Murray Decl. Ex. 111 (Letter from OMH to Transitional Services for NY); Murray Decl. Ex. 112 (Letter from OMH to Postgraduate Center for Mental Health); Murray Decl. Ex. 113 (Letter from OMH to Baltic Street Mental Health Board); Murray Decl. Ex. 114 (Letter from OMH to Center for Behavioral Health Services); Murray Decl. Ex. 115 (Letter from OMH to Federation of Organizations); Murray Decl. Ex. 116 (Letter from OMH to SI Behavioral Network).)
The above evidence makes clear that defendants can provide supported housing to DAI’s constituents without prejudicing others the State may be planning to serve. C. Defendants Have Not Demonstrated that Relief in this Action Would Require
Alteration of the State’s Programs
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Defendants make a number of arguments suggesting that DAI’s requested relief would change the nature of defendants’ service delivery program. These arguments are not supported by law or record evidence.
Defendants argue that, to the extent they are required to assess and place adult home residents in more integrated housing, “it would create a new program that does not exist, along with an obligation to staff and fund it.” (Defs.’ Br. at 76.) This contention misapprehends the law: defendants must assess and place adult home residents in more integrated housing if it would be more appropriate to their needs and not objectionable to them. (See Olmstead, 527 U.S. at 605-06 (court may order community placement for plaintiffs if state lacks plan for meeting ADA’s mandate); Townsend, 328 F. 3d at 519 (“[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.”); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 540 (E.D. Pa. 2001) (“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.”). Moreover, defendants’ assertion that they have no program for assessing and placing adult home residents in more integrated settings is at odds with their contention that, under their Olmstead plan, they ensure that qualified adult home residents who desire supported housing are identified and helped to move. (Defs.’ Br. at 23, 77-79.)
Defendants also argue that DAI seeks to change the nature of supported housing. (Defs.’ Br. at 76.) In their brief and affidavits, defendants describe supported housing in New York as a service for individuals with little need for support. Record
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evidence contradicts this assertion. (See Tsemberis Dep. 48:8-25; Rosenberg Aff. ¶ 13 (“Intensity of services is adjusted based on clients’ needs. More services are provided in times of greater need, and fewer services are provided in times of lesser need.”); Murray Decl. Ex. 81 at 5 (recognizing that supported housing residents “may be able to live in the community with a minimum of staff intervention” while “[o]thers may need the provision of additional supports”).) Moreover, DAI’s evidence shows that virtually all adult home residents can successfully live in the supported housing as it is presently configured in New York. (See D. Jones Decl. Ex. A at 10-13; E. Jones Aff. Ex. A at 11-12; Duckworth Aff. Ex. A at 18-19; Groves Aff. Ex. A at 4; Rosenberg Aff. ¶ 14; see also supra Point IV.)
Defendants contend that providing mental health services to the adult home residents in the most integrated setting appropriate would create an “entitlement” that does not now exist. (Defs.’ Br. at 76.) But this is an exercise in semantics: DAI does not seek a new entitlement to treatment or residential services; it seeks only that New York provide services in the most integrated setting to individuals who are already receiving services from New York’s mental health system.
Finally, defendants argue that a “set-aside” of housing for a designated population would be “contrary to OMH policies.” (Id.) But record evidence shows that New York regularly sets aside beds for designated populations. One example is the “New York/New York III agreement,” in which OMH designated 9,000 new community housing beds for homeless individuals with mental illness. (See D. Jones Dep. 258:1225, 260:7-14; Lasicki Dep. 85:7-15.) Another is OMH’s designation of “priority populations” for supported housing beds developed since 1990. (Defs.’ Br. at 78
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n.131.)59 Ironically, there is also an example of defendants’ making precisely the type of “set-aside” that DAI seeks here. Recently OMH issued a Request for Proposals for the development of 60 supported housing beds specifically for adult home residents. (Murray Decl. Ex. 81.)
VI. DAI’S THIRD AND SIXTH CLAIMS FOR RELIEF DAI’s third and sixth claims for relief allege discrimination by the defendants in their methods of enforcement and administration—that is, by failing “to take adequate measures to redress continued poor conditions in impacted adult homes that . . . they do not tolerate in adult homes and facilities that primarily serve individuals with physical disabilities.” (Complaint ¶¶ 137-142, 158-165.) Defendants seek summary judgment with respect to these claims. (Defs.’ Br. 79-81.) Discovery has shown that since the filing of this case defendants have increased their efforts to redress poor conditions in impacted adult homes. Therefore, DAI is prepared to drop its third and sixth claims for relief.
VII. THE GOVERNOR IS A PROPER PARTY TO THIS LITIGATION
Defendants ask that Governor Spitzer be dismissed from this litigation because “full relief [can] be provided by the four other named defendants,” the Commissioners of DOH and OMH and those agencies themselves. (Defs.’ Br. at 82-83.)
As New York’s chief executive officer, Governor Spitzer is responsible under federal law for ensuring that New York operates its mental health service systems
59 Although Defendants tout this policy, the designation of adult home residents as a “priority population” is all but meaningless in practice. See supra Statement of Facts, Section I.
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in conformity with the ADA and the Rehabilitation Act. No more is needed to show he is an appropriate defendant. Roland v. Celluci, 52 F. Supp. 2d 231, 243 (D. Mass. 1999) (where 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”).
Here, in addition to his general role as chief executive of the state, the record shows that the governor is actively involved in addressing adult home issues. According to a former senior staffer, the governor’s office has a direct role in such matters as drafting regulations regarding adult care facilities, (Wollner Dep. 32:2133:11), issuing requests for proposals and associated departmental recommendations relating to adult home residents, id. at 33:8-17, proposing legislation and other initiatives relating to adult homes, id. at 33:18-35:12, determining funding for the Office of Mental Health’s case management and peer support services, (id. at 88:1-9), working with the Interagency Task Force on Housing for People with Special needs to increase access to existing housing and support service programs, (id. at 143:1-144:15), initiating the Adult Care Facilities Workgroup and reviewing, modifying, and implementing the Workgroup’s recommendations; (id. at 145:6-146:2), and directing the governor’s capital budget to various housing initiatives relating to special populations. (Id. at 49:13-50:10). In addition, the governor appoints and receives reports from state most integrated setting coordinating council. Murray Decl. Ex. 76 (N.Y. Exec. Law §§ 702(1); 703(4).) In short, the governor’s office not only plays a key role in shaping the mental health policies of this State but also has access to resources, such as the governor’s capital budget, unavailable to the other defendants that could potentially be used to provide relief to
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DAI. Without the cooperation of the governor’s office, the other defendants in this matter may well be unable to provide DAI with the full relief it seeks in this matter.
If anything, the case relied upon by defendants, Committee for Public Education and Religious Liberty v. Rockefeller, 322 F. Supp. 678 (S.D.N.Y. 1971), confirms that the Governor is an appropriate defendant in this litigation. In that case, involving a constitutional challenge to a statute providing public funding to sectarian schools, the court dismissed the governor as a defendant only because the officials expressly charged by the legislature with “sole responsibility” for administration of the statute were not appointees of the governor, and thus, not subject to the governor’s authority. See id. at 686 (noting that the Commissioner of Education is appointed by the Board of Regents, which is appointed by the legislature “without gubernatorial approval” and that the Comptroller is elected). Here, in stark contrast, both Commissioner Daines and Commissioner Hogan are appointees of Governor Spitzer and thus part of his administration. See Murray Decl. Ex. 133 (N.Y. PUB. HEALTH LAW § 204); Murray Decl. Ex. 134 (N.Y. MENTAL HYG. LAW § 5.03).) Indeed, by statute, the Mental Health Commissioner “serves at the pleasure of the Governor.” Murray Decl. Ex. 134 (N.Y. MENTAL HYG. LAW § 5.03.)
Rule 21 provides that parties may be dropped only “on such terms as are just.” Because dropping the governor as a defendant at this stage of the case has the potential to limit the relief available to DAI and because defendants identify no specific prejudice they will suffer if the governor remains a defendant, the interests of justice require that the governor remain a defendant.
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Conclusion
For the foregoing reasons, DAI respectfully requests that the Court deny
defendants’ motion for summary judgment.
Dated: New York, New York December 3, 2007
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By: ____________________ Jeh C. Johnson (JJ-3753) Andrew G. Gordon (AG-9239) Anne S. Raish (AR-8643) Sandra Sheldon (SS-4481) Francine N. Murray (FM-1924) 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 araish@paulweiss.com
- 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. Burnim* Jennifer Mathis* 1105 15th Street, N.W., Suite 1212 Washington, DC 20005 (202) 467-5730
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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 MFY LEGAL SERVICES, INC. Jeanette Zelhof (JZ-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
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 Case 1:03-cv-03209-NGG -MDG Document 400 Filed 12/23/09 Page 1 of 13

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

-against-

Plaintiff,

MEMORANDUM & ORDER 03-CV-3209 (NGG)

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 a
five-week bench trial, the 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

1 In this litigation, impacted adult homes refers to those adult homes with more than 120 beds and in which twentyfive residents or 25% of the resident population (whichever is fewer) have a mental illness.
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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. 8 Order”), at 3.) The court assumes familiarity with that Order. Although the court found that Plaintiff is entitled to some form of declaratory and injunctive relief, it directed briefing from the parties regarding the particular injunctive remedy to be imposed. (Id. at 208.)
Following the court’s liability finding, three non-parties moved to intervene in the action: the United States, the Empire State Association of Assisted Living (“ESAAL”), and the New York Coalition for Quality Assisted Living (“NYCQAL”).2 In an Order dated November 23, 2009 (“U.S. Order”), the court granted permissive intervention to the United States. (See Docket Entry #384.) While the other motions to intervene were still pending, the court permitted ESAAL and NYCQAL to submit amicus curiae briefs regarding their views as to the appropriate remedy. (See Order (Docket Entry #389).) For the reasons that follow, the court now denies the ESAAL Motion (Docket Entry #361) and the NYCQAL Motion (Docket Entry #362). I. BACKGROUND
ESAAL and NYCQAL are non-profit trade associations that represent the interests of assisted living residences and adult homes throughout New York State. (See Affidavit of Lisa Newcomb (Docket Entry #361) (“Newcomb Aff.”) ¶ 2; Affidavit of Francesca Sommer (Docket Entry #362) (“Sommer Aff.”) ¶ 2.) Of the twenty-eight adult homes at issue in this litigation, eight are members of ESAAL and fourteen are members of NYCQAL. (Newcomb Aff. ¶ 5; Sommer Aff. ¶ 4.)
2 Somewhat later, the City of New York submitted a letter to this court requesting leave to participate in the remedial phase of this litigation as a “litigating amicus.” (Docket Entry #375.) In an Order dated November 24, 2009, the court granted the request in part, allowing the City to submit an amicus brief concerning the remedy. (Docket Entry #388.)
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Although they are not parties, ESAAL and NYCQAL are no strangers to this litigation.
During the several years of discovery in this case, the litigants were in frequent contact with the
attorneys for the adult homes. The adult homes “actually facilitated the parties’ discovery proceedings” and their attorneys negotiated stipulations with Plaintiff’s counsel.3 When the
parties and their expert witnesses sought to visit the adult homes, ESAAL and NYCQAL’s attorneys arranged the scheduling and terms of the visits,4 and even accompanied the parties on their tours of the homes.5 These attorneys attended depositions of adult home staff,6 responded to subpoenas for documents in their possession,7 and sat in on portions of the five-week bench
trial in this case. In short, they have been active participants in this case for years.
Suddenly discontent with participating from the sidelines, ESAAL and NYCQAL have
now decided that the time is right to enter the fray. In support of their motions to intervene, they
assert several interests relating to the action. Chief among these is a concern over the economic
ramifications for the adult homes of any remedy that might be imposed. In particular, the adult
homes point to the possibility that, in implementing the remedy, the State might eliminate adult
home grant programs, reduce or reallocate public funding for adult homes, revoke operating
certificates for certain adult homes, or interfere with the homes’ private contracts with their
residents. (See ESAAL Motion 11; NYCQAL Motion 14-15.) They also contend that Plaintiff’s
requested relief – moving qualified adult home residents into supported housing – threatens the
3 (Sommer Aff. ¶ 11; see also Declaration of Anne S. Raish (Docket Entry #372) (“Raish Decl.”) Ex. B, Letter dated Jan. 24, 2005 (referencing stipulation negotiated between Plaintiff’s counsel and Hinman Straub, counsel for ESAAL).) 4 (Sommer Aff. ¶ 12; see also Raish Decl. Ex. B, Letters dated Mar. 18, 2005, Sept. 1, 2004, and Jan. 24, 2005 respectively.) 5 (See Raish Decl. Ex. B, Letter dated Mar. 18, 2005 (“I look forward to meeting you and sharing the thrill of watching adult home residents for six hours.”); Raish Decl. Ex. B, Letter dated Jan. 24, 2005 (“I intend to be present during the on-site visits to these two adult homes.”).) 6 (See Raish Decl. Ex. C, Excerpt from Deposition of Hinda Burstein, Aug. 16, 2005 (reflecting presence of attorney from O’Connell and Aronowitz, counsel for NYCQAL).) 7 (See Sommer Aff. ¶ 13.)
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business model and continued viability of the affected homes. (See ESAAL Motion 11; NYCQAL Motion 10.)
Beyond these economic interests, the adult homes assert two other interests in the action. The first concerns the welfare of Plaintiff’s constituents: the adult homes claim an interest in ensuring that residents are “properly assessed for their mental and physical readiness” before being moved into supported housing. (ESAAL Motion 11.) Second, the adult homes claim an interest in fashioning a remedy because certain implementation measures could occur in adult homes or require coordination with adult home operators. On the strength of these purported interests in the litigation, both ESAAL and NYCQAL have moved to intervene as of right or, in the alternative, permissively. II. DISCUSSION
Intervention as of right under Federal Rule of Civil Procedure 24(a) requires that an applicant satisfy four criteria: the would-be intervenor must “(1) file a timely motion; (2) claim an interest relating to the property or transaction that is the subject of the action; (3) be so situated that without intervention the disposition of the action may impair that interest; and (4) show that the interest is not already adequately represented by existing parties.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 176 (2d Cir. 2001). Failure to satisfy even one of the four requirements will defeat a claim to intervention as of right. Id. Therefore, an untimely motion to intervene must be denied.
The requirement of timeliness “defies precise definition, although it certainly is not confined strictly to chronology.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). Courts evaluating timeliness consider the totality of the circumstances, focusing on a variety of factors: “(1) the length of time the applicant knew or should have known of his interest
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before making the motion; (2) prejudice to existing parties resulting from the applicant’s delay; (3) prejudice to the applicant if the motion is denied; and (4) the presence of unusual circumstances militating for or against a finding of timeliness.” Farmland Dairies v. Comm’r of N.Y. Dep’t of Agric. & Mkts., 847 F.2d 1038, 1044 (2d Cir. 1988). As an additional consideration, intervention after the liability phase of litigation “resembles post-judgment intervention, which is generally disfavored.” United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986). A. Notice of Interest
The first factor to consider is the length of time the adult homes knew or should have known of their interest in this action. As discussed previously, the present motions to intervene come at a very late stage in this litigation: six years after the filing of the Complaint, three years after the close of discovery, two years after the parties’ motions for summary judgment, and four months after a five-week bench trial. Yet, according to ESAAL and NYCQAL, they did not know of their interest until approximately two months before they sought intervention. For the adult homes, the moment of clarity arrived only when the court issued its September 8, 2009 Memorandum and Order, which found for the Plaintiff and ordered briefing on the appropriate injunctive relief. (See ESAAL Motion 6-7; NYCQAL Motion 7-8.) That Order, they argue, was the first indication that a remedy in this case might impair their interests. And only then did the adult homes perceive that their interests might diverge from Defendants’ interests. (Id.)
Contrary to the adult homes’ assertions, the possibility of a remedy that could adversely affect their interests arose not when the court issued the September Order, but when this action was filed. Plaintiff’s requested relief is clearly set forth in the 2003 Complaint. The Complaint makes clear that Plaintiff has always sought to allow current and future residents of impacted
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adult homes to move to more integrated settings.8 It explicitly references “the need for alternative, more integrated settings for current and future residents of large adult homes,” and states in no uncertain terms that the “relief here sought is directed exclusively at impacted adult homes with over 120 beds located in New York City and the New York State system that steers people with mental illness into such homes.” (Compl. ¶¶ 32, 34.) Equally clear is that Plaintiff would achieve this result by “[s]hifting residents and funds from impacted adult homes to community-based residential programs.” (Id. ¶ 118.)
The parties’ 2007 motions for summary judgment reprised these same themes. As the court noted in resolving those motions, the parties’ briefs “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.” (Memorandum & Order dated Feb. 19, 2009 (Docket Entry #232) (“Feb. 19 Order”) 99; see also id. at 99-108 (discussing these issues at length).) In the summary judgment briefing, just as in the Complaint, Plaintiff requested “that Defendants use funds currently spent on adult home residents to serve adult home residents in supported housing.” (Id. at 107.) Further, Plaintiff specifically enumerated ways the State might redirect spending to facilitate the relief they seek: “the State could limit admissions to adult homes . . . or terminate operating certificates from adult homes” to conserve financial resources. (Id. at 106.) Plaintiff also suggested that examination of the State’s grant programs for adult homes might provide another means of cutting costs. (See id. at 105 (noting that Plaintiff had provided evidence that “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.”).) These filings provided additional
8 (Compl. 34 (praying for, inter alia, declaratory and injunctive relief and an order enabling “Plaintiff’s constituents to receive services in the most integrated setting appropriate to their needs”).)
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indication to the adult homes that their interests might be affected by an unfavorable ruling in this case.
In spite of all of this, the adult homes claim that the post-trial September Order provided the first indication that a remedy might affect their interests. 9 They express great surprise at the references in the September Order to “the possible elimination of grant programs, the reallocation of beneficial public funding, and injunctive relief which may threaten adult home operating certificates.” (ESAAL Motion 6.) In light of the Complaint and the summary judgment filings, the adult homes’ argument strikes the court as disingenuous, at best. The relief Plaintiff seeks – and the means by which it would achieve that relief – has been abundantly clear for six years. The possibility of “reallocation of beneficial public funding”10 is explicitly discussed in the Complaint. The other potential cost-cutting measures referenced in the September Order, which the adult homes claim came as a complete surprise – “elimination of grant programs” and “injunctive relief which may threaten adult home operating certificates”11 – were fully briefed by the parties and addressed by the court at summary judgment. Plaintiff has been pursuing the same relief for six years and the September Order changes nothing in this regard. The only uncertainty remaining before the court issued the September Order was whether Plaintiff would ultimately prevail respecting liability. Thus, the Order has no bearing upon the issue of the adult homes’ awareness of the remedies under consideration.
9 (See ESAAL Motion 6; NYCQAL Motion 7 (“The [September Order] is the first time that we had notice that the Court may consider ordering relief so extensive as to impair the adult homes’ very operating certificates, and the funding sources that pay for their . . . services.”).) 10 (ESAAL Motion 6.) 11 (Id.)
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Under the circumstances, the court rejects the adult homes’ absurd contention that the time they “knew or should have known of their interest” in this action is less than two months.12 The court also rejects the adult homes’ claim that they waited to intervene because they believed that the State Defendants adequately represented their interests up until this point. In service of this fallacy, the adult homes assert that their interests did not diverge from the State Defendants’ interests until Defendants lost on the merits. In truth, their interests were never aligned with the State. Defendants, as the regulatory agencies, “have never taken the position that their interests are coextensive with those of adult homes.” (See Letter dated Nov. 13, 2009 (Docket Entry #370) 1 n.2.) Addressing a similar argument for intervention, the Second Circuit has admonished that private parties “should certainly have been aware . . . that the interests represented by the Attorney General are not coterminous with their own.” Farmland, 847 F.2d at 1044. The Attorney General has a statutory obligation to “[p]rosecute and defend all actions and proceedings in which the state is interested . . . in order to protect the interest of the state.” N.Y. Exec. Law § 63(1) (emphasis added).
Even if the adult homes, despite their intimate involvement in the proceedings, somehow managed to remain blissfully ignorant of these matters until after the trial, there is ample evidence that they should have perceived their interests in this litigation much earlier: at least at the summary judgment stage, if not upon the filing of the Complaint. Although lapse of time is only one of several factors to consider, see Pitney Bowes, 25 F.3d at 71, the lengthy and intentional delay in this case weighs in favor of denying intervention.
12 NYCQAL argues that its delay is excusable because the organization was not formed until late 2005. (See Sommer Aff. ¶¶ 6-9.) However, this does not change the fact that its member homes should have been aware of their interest when the action was filed in 2003. Even if the court credits the argument, NYCQAL is left with a fouryear delay in moving to intervene and a hollow excuse for failing to do so in a timely manner.
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B. Prejudice to Existing Parties Allowing ESAAL and NYCQAL to intervene at this late stage would prejudice the
existing parties by unduly delaying the remedial proceedings. After years of discovery and a trial on the merits, ESAAL and NYCQAL would inject collateral issues regarding their economic entitlements into Plaintiff’s civil rights action. Because the nature of the relief Plaintiff seeks has so long been clear, the considerations affecting the remedy – costs, logistics, supports available in supported housing, characteristics of adult home residents who could be served in supported housing, etc. – were extensively argued at trial. The remedy is now fully briefed and the court is poised to grant appropriate relief. Full consideration of the adult homes’ newly presented claims might well require conducting evidentiary hearings or even reopening discovery.
Worse still, ESAAL and NYCQAL seem intent on “relitigating issues which have already been decided after lengthy proceedings.” Yonkers, 801 F.2d at 596. Although they claim they will rely on the record developed at trial, their motion papers strongly suggest otherwise by explicitly disputing the court’s findings. NYCQAL’s submissions take issue with the court’s findings regarding the costs of Plaintiff’s proposed relief: “While the Court found that the overall cost to the State will be no greater for residents in supported housing beds as opposed to adult home beds . . ., a finding with which NYCQAL strongly disagrees, the fact is that payments to adult homes, as opposed to outside medical providers, are far less than those to supported housing providers.” (Sommer Aff. ¶ 28.) ESAAL expresses the intention to dispute whether private-pay residents are part of Plaintiff’s constituency and to challenge the court’s determination as to which adult homes are impacted. (See Newcomb Aff. ¶¶ 8, 20-23.) These statements evidence a willingness to disregard the findings of the court in this action, which
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would further delay the remedial proceedings. In light of these considerations, the court is convinced that delay that would be occasioned by the post-trial intervention of the adult homes would be highly prejudicial to the existing parties. C. Prejudice to ESAAL and NYCQAL
Although the adult homes may be prejudiced if intervention is denied, the court is not sympathetic to their self-created plight. Knowing full well what was at stake in this litigation, the adult homes sat on their rights for six years, hoping that Defendants would prevail and that the case would simply go away. They made the tactical decision to litigate “on the cheap” by sitting on the sidelines, apparently planning to parade into court at the eleventh hour should the proceedings conclude unfavorably. Thus, any prejudice to the adult homes “resulting from the denial of intervention may be attributed to their own failure to seek intervention when they first had reason to become aware” of their interests in the action. Yonkers, 801 F.2d at 595.
Moreover, the degree of prejudice is mitigated in this case. To the extent that the adult homes have legally protectable interests in their State funding, contracts, or operating certificates, nothing prevents them from vindicating these interests in another forum. For example, New York law provides hearing and appeal procedures and a state forum for challenging the revocation of an operating certificate. See N.Y. Soc. Serv. Law §§ 460-d, 461-b. Furthermore, the adult homes have not been denied the opportunity to be heard in this matter. The court has granted ESAAL and NYCQAL amicus curiae status so that they may provide input to the Court regarding an appropriate remedial plan. (See Order (Docket Entry #389).) Thus, the harms the adult homes face as a result of their untimely motion are significantly mitigated in this case.
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D. Unusual Circumstances NYCQAL argues that the intervention of the United States is an unusual circumstance
that weighs in favor of allowing the adult homes to intervene. (NYCQAL Motion 11-12.) They point out that the United States “has asserted a vested interest in ensuring that this Court fashions a remedy consistent with the United States’ interpretation of the integration regulation,” and “has expressed its view that this case may serve as a model for other courts in similar cases.” (Id. at 11.) NYCQAL expresses concern that “this Court’s relief may ultimately be used as a springboard to pursue similar relief in other homes, or for other residents of the same homes” and that this is exactly what the United States intends. (Id. at 12.)
The fact that the court’s decision in a case may have precedential consequences, however, hardly constitutes an unusual circumstance. Perhaps the true concern animating this argument is the fear that the United States will seek to broaden the potential scope of the remedy in this case. Whether or not this might constitute an unusual circumstance in some other context, in this case the fear is unfounded. Rather than putting forth its own remedial plan, the United States has expressed its support for Plaintiff’s plan – the same plan described in the court’s September 8 Order. (See United States’ Memorandum (Docket Entry #385) (“Thus, the United States supports the Plaintiff’s proposed remedial plan and objects to Defendants’ remedial plan.”).) In this context, the intervention of the United States is not an unusual circumstance favoring intervention. E. Timeliness
Considering all the factors set forth above, the court concludes that ESAAL and NYCQAL’s motions to intervene in this case are not timely and must be denied.13 After six
13 NYCQAL argues that it would be unfair for the court to allow the United States to intervene, but not allow intervention by the adult homes. The argument fails to apprehend salient differences between the adult homes’
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years of litigation, the court determined that DAI's constituents are entitled to a remedy, and
permitting intervention by the adult homes at this late juncture would unnecessarily delay a
remedial plan that is long overdue. Absent intervention, the harm facing the adult homes is
largely of their own making. They were fully aware of this litigation and the possible
consequences to their interests should Plaintiff prevail, yet they made the conscious decision not
to seek intervention until after the court found liability. Faced with “the choice between the
possibility of harm to the late-arriving prospective intervenors as against the possible harm to
parties who have participated diligently during the pertinent portions of this litigation, it does not
strike [the court] as unjust that intervention on the part of the late-arrivers must yield” under the
circumstances. Yonkers, 801 F.2d at 596. Therefore, the court finds the motions to be untimely and therefore denies intervention as of right under Rule 24(a).14 For the same reasons, the court denies permissive intervention under Rule 24(b), which also requires a timely motion.15 See
Fed. R. Civ. P. 24(b)(1) (allowing the court to permit intervention under certain circumstances
“[o]n timely motion”).
motions and the United States’ motion. As the court noted in granting that motion, “intervention by the United States will not prejudice the original parties or unduly delay the proceedings concerning the appropriate injunctive remedy to be imposed.” (U.S. Order 4.) Tellingly, neither party objected to the intervention of the United States. Moreover, unlike the adult homes, who are seeking to relitigate already-decided issues at the remedial stage, the United States “explicitly adopts the court’s prior factual findings and legal conclusions in this case.” (Id.) Nor does the intervention of the United States inject collateral issues into the case; it has merely lent its support to the remedy proposed by Plaintiff. In short, the court’s decisions regarding intervention are neither inconsistent nor unfair: the court granted intervention when it would not prejudice the rights of the existing parties to the action. 14 Having denied intervention as of right on timeliness grounds, the court need not consider the other requirements under Rule 24(a). As noted at the outset, failure to satisfy even one requirement defeats a claim to intervention as of right. Butler, 250 F.3d at 176. 15 Even leaving aside timeliness, permissive intervention would be denied. In deciding a motion for permissive intervention, the “principal consideration set forth in the Rule is whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” United States Postal Svc. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (internal quotation marks omitted). As set forth above, the court finds that allowing intervention would be highly prejudicial to the existing parties.
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III. CONCLUSION

For the reasons set forth above, ESAAL and NYCQAL’s respective motions to intervene

are DENIED.

SO ORDERED.

Dated: Brooklyn, New York December 23, 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
DISABILITY ADVOCATES, INC.,
Plaintiff,
v.
GEORGE PATAKI, in his official capacity 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, JAMES STONE, 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.

COMPLAINT

Plaintiff Disability Advocates, Inc., a New York protection and advocacy agency, sues the defendants on behalf of residents in large New York City adult homes and those at risk of entry into such homes and alleges:
PRELIMINARY STATEMENT 1. 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 benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

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2. Further, Title II of the ADA 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.” See 28 C.F.R. § 35.130(d) (emphasis added).
3. In the landmark decision Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that these provisions of law are violated when a state places people with mental illness in “unjustified isolation,” and that a person with mental illness may sue the state for failing to place him or her “in the most integrated setting appropriate to [his or her] needs.”
4. This action is brought in furtherance of these mandates. Rather than comply with these laws, New York State officials and agencies responsible for the care and treatment of people with mental illness (and hospitals they license and supervise) discharge thousands of these people from psychiatric hospitals to equally oppressive, large and isolated institution-like settings commonly referred to as “adult homes,” which offer little or no rehabilitative treatment to promote integration into the community. As chronicled in an April 2002 Pulitzer Prize-winning series of articles in the New York Times, abuse, neglect, negligent supervision, inadequate medical care and chaos pervade many of these adult homes – referred to as “psychiatric flophouses” – in New York City. Clifford J. Levy, For Mentally Ill, Death and Misery, N. Y. TIMES, Apr. 28, 2002, § 1, at 1; Levy, Here, Life Is Squalor and Chaos, N. Y. TIMES, Apr. 29, 2002, at A1; Levy, Voiceless, Defenseless And a Source of Cash, N. Y. TIMES, Apr. 30, 2002, at A1.

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5. Ironically, people with mental illness are often left to languish in these adult homes while equally affordable and more humane residential settings exist and/or could be made available. Such residential settings are more integrated and more appropriately meet the needs of thousands of people with mental illness currently residing in adult homes.
6. By this action, Plaintiff seeks an end to New York State’s practice of knowingly placing and maintaining individuals with serious mental illness in these substandard adult homes rather than in superior, more integrated residential settings already existing in this State.
7. In addition, permitting such substandard conditions in adult homes constitutes discrimination pursuant to Title II of the ADA and Section 504 of the Rehabilitation Act by providing housing and services to those with mental illness in a manner not commensurate with the quality of housing and services directed primarily at individuals without mental illness.
PARTIES 8. Plaintiff Disability Advocates, Inc. (“Disability Advocates” or “Plaintiff”), is a not-for-profit corporation, authorized to practice law under New York State law. Disability Advocates is an authorized protection and advocacy agency under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq. Disability Advocates has statutory authority to pursue legal, administrative and other appropriate remedies to ensure the protection of individuals with mental illness who are or will be receiving care and treatment in New York State. 42 U.S.C. § 10805.

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9. Disability Advocates is pursuing this action to protect and advocate for the rights and interests of residents of adult homes and those at risk of entry into such homes who are all “individuals with mental illness” as that term is defined in 42 U.S.C. § 10802. These individuals are Disability Advocates’ constituents.
10. These constituents have a significant mental illness and reside in adult homes, psychiatric hospitals, and other “facilities” rendering care and treatment for mentally ill individuals as that term is defined in 42 U.S.C. § 10802.
11. These constituents have a significant mental illness that substantially limits one or more major life activities, including personal care, working, and sleeping. They are therefore individuals with disabilities for purposes of the Americans with Disabilities Act and the Rehabilitation Act.
12. These constituents have each suffered injuries, or will suffer such injuries, that would allow them to bring suit against defendants in their own right.
13. Defendant George Pataki is the Governor of the State of New York, a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). He is ultimately responsible for ensuring that New York operates its service systems in conformity with the Americans with Disabilities Act and the Rehabilitation Act. He is sued in his official capacity.
14. Defendant New York State Department of Health (“DOH”) is the agency created by the State of New York that licenses, supervises and enforces the laws and regulations applicable to adult homes, and is responsible for protecting the rights of the residents. DOH is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1).

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15. Defendant Antonia C. Novello is the Commissioner of DOH. She is responsible for the operation and administration of DOH, including its activities regarding adult homes. She is sued in her official capacity.
16. Defendant New York State Office of Mental Health (“OMH”) is the agency responsible for jointly inspecting adult homes that are “impacted” by a large percentage of residents who have serious and persistent mental illness. OMH is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1).
17. OMH shares the responsibility for protecting the rights of the residents of impacted adult homes with DOH.
18. OMH also operates state inpatient psychiatric facilities and is responsible for discharge planning, placement and follow up for individuals residing in such facilities. Additionally, OMH funds privately operated psychiatric hospitals for clients of the public mental health system and is responsible for developing standards for discharges from these hospitals.
19. OMH is charged by statute with “the responsibility for seeing that mentally ill persons are provided with care and treatment, that such care, treatment and rehabilitation is of high quality and effectiveness, and that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.” Mental Hyg. Law § 7.07(c).
20. Defendant James Stone is the Commissioner of OMH. He is responsible for the operation and administration of OMH, including its activities regarding adult homes and state psychiatric facilities and the overall planning, programs

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and services for the mental health system in New York. He is sued in his official capacity.
21. DOH and OMH are recipients of federal funds. 22. DOH and OMH are programs of state government.
JURISDICTION 23. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 for civil actions arising under the laws of the United States; and 28 U.S.C. § 1343 for actions under laws providing for the protection of civil rights. 24. Declaratory and injunctive relief are sought under 28 U.S.C. § 2201 et seq. 25. Venue in the Eastern District of New York is proper under 28 U.S.C. § 1391, as it is the judicial district in which a substantial portion of the events or omissions giving rise to the claims herein occurred.
BACKGROUND 26. Beginning in the 1970s, the State of New York began discharging large numbers of individuals with mental illness from its psychiatric institutions, and it continues to do so. 27. Some fortunate individuals are discharged from a psychiatric institution and placed in residential programs that are designed to help them achieve independence and recovery from their illnesses. Most others, however, are placed in large institutions, known as “adult homes.” 1 Adult homes are part of the New York State system for providing services to people with mental illness.

1 Adult homes may house individuals with physical disabilities as well. An adult home in which the great majority of residents have mental illness is known as an

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28. In general, these institutions have substandard conditions and do not provide recovery-oriented services. These adult homes generally segregate individuals from others who do not have mental illness. New York has long known of the poor conditions in these long-term placements. New York State and New York City officials referred to these adult homes as “de facto mental institutions” and “satellite mental institutions” over twenty years ago. Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults,37-38 (March 31, 1979); New York City Council Subcommittee on Adult Homes, The Adult Home Industry: A Preliminary Report, Summary of Preliminary Findings, at 2 (1979).
29. Adult homes were established to provide room and board, housekeeping, personal care and supervision. N.Y. Comp. Codes R. & Regs. Title 18, § 487.2(a); N.Y. Soc. Serv. L. § 2(25). Adult homes also must arrange services for residents, such as medical care and transportation. However, each service they provide could be provided in the more integrated and state-supported residential programs.
30. Instead of serving individuals with mental illness in more integrated settings, New York has chosen to operate a mental health system that depends on these large and substandard adult homes.
31. Historically, the defendants have knowingly permitted and continue to permit the operators of adult homes to provide unsafe, unsanitary and inadequate care amounting to abuse and neglect. Some residents have died due to the
“impacted” home. Technically an “impacted” home is one in which at least 25% of the residents have mental illness. In most impacted homes, however, the proportion of residents with mental illness is at least 75%. It is these impacted adult homes that concern Plaintiff, and all references hereinafter to “adult homes” refer to impacted adult homes unless otherwise indicated.

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lack of appropriate medical care, mental health treatment or supervision. Many others have been forced to live in filthy, squalid conditions. While the defendants may have recently increased their efforts to address these problems, their efforts have been insufficient to correct the results of years of discriminatory toleration of such unsafe, unsanitary and inadequate care.
32. Proposals recently announced by the State of New York in response to media exposure of the shameful conditions of these homes fail to meet the need for alternative, more integrated settings for current and future residents of large adult homes. Defendants have had detailed knowledge of the unnecessary segregation and poor conditions in adult homes for many years, through reports of the New York State Commission on Quality of Care for the Mentally Disabled, defendants’ own agencies, the press, the New York City Council, the New York State Assembly and other sources. Yet defendants have failed to take adequate steps to create more appropriate settings. Judicial relief is needed.
33. Recognizing that larger adult homes exacerbate the problems described above, New York recently announced a plan to cap the size of new housing for individuals with mental illness at 120 beds per facility. Moreover, the problems described above are exacerbated in those homes that are “impacted,” which is an adult home in which at least 25% of the residents have mental illness.
34. As such, Plaintiff brings this action on behalf of those residents with mental illness in homes with more than 120 beds or at risk of being placed in such homes in recognition that the state’s prohibition on homes of this size indicates a mutual concern about the institutional nature of such large facilities. Moreover, the relief here

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sought is directed exclusively at impacted adult homes with over 120 beds located in New York City, and the New York State system that steers people with mental illness into such homes.
35. Approximately 26 adult homes in New York City house more than 120 people and are designated by the State as “impacted.” These homes are: Anna Erika, Bayview Manor, Belle Harbor Manor, Brooklyn Manor, Elm-York Home, Garden of Eden, Harbor View Home, King Solomon Manor, Lakeside Manor, Long Island Hebrew, Mermaid Manor, New Central Manor, New Gloria’s Manor, New Haven Manor, Ocean House Center, Ocean View Manor Home for Adults, Palm Beach House, Park Inn, Parkview Manor, Queens Adult Care Center, Riverdale Manor, Sanford, Seaview Manor, Surf Manor Home for Adults, Surfside Manor and Thomas Jefferson Home.
FACTS Discharge From Hospital 36. New York State historically and currently provides inpatient hospitalization to individuals with mental illness in public and private psychiatric hospitals. 37. While in the hospital, an individual generally lives in a congregate setting with many others. Meals are provided with little choice about what to eat. Medication is dispensed daily and taken under watchful eyes. Bedrooms are shared, and there is little privacy. Often bedrooms are located around a day room, where individuals can watch TV or engage in other activities. 38. In this setting, individuals are extremely segregated from society; they live only with others with mental illness and have little opportunity to engage in normal community life.

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39. OMH is required to implement and monitor a comprehensive program to ensure, among other things, that an individual is placed upon discharge in an “adequate and appropriate residence for the person’s needs.” Mental Hyg. Law § 29.15(h). OMH is also responsible for developing appropriate standards for the discharge of individuals from privately operated psychiatric hospitals. Mental Hyg. Law § 41.17(a)(2).
40. Some individuals discharged from psychiatric hospitals go home to family or friends following hospitalization. Others are discharged to nursing homes. Many are discharged to a “transitional residence,” which is often just a different floor in the same hospital and, thus, still constitutes a segregated setting.
41. Some individuals are discharged from hospitals and others are discharged from “transitional residences” to various residential programs that are dependent on state funding.
42. In many of these residential programs, individuals live in their own apartments with privacy and choice of activities. They generally live in buildings with individuals who do not have mental illnesses. They are able to receive and entertain visitors and communicate by phone in privacy. Residents go to stores to shop for food and other necessities. They go to doctors of their choice and engage in social activities of their choice. They tend to these and other daily needs to the degree they are able, with supportive services offered to them by case managers as needed. These programs are designed to foster independence and recovery and to enable individuals to become as self-sufficient as possible. Such programs are known as “supported housing.” Close to

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10,000 individuals are served in these residential programs statewide, and over 4,600 of those individuals are in New York City.2
43. When no openings are available in supported housing or other similar facilities, individuals with serious mental illness are discharged to adult homes.
Impacted Adult Homes 44. Impacted adult homes are institutions with characteristics similar to those of a hospital. Like hospitals, they place many limitations on residents’ autonomy and privacy. Residents live a regimented lifestyle where most daily activities are conducted in one place, in the company of large numbers of other individuals with mental illness, and subject to restrictive rules and policies. In some instances the time for various events during the day is announced by the ringing of a bell like a school bell. Residents in some homes are assigned a fixed place to sit in the common dining area. In contrast, the more integrated community residential programs for individuals with mental illness afford people much more choice, freedom and privacy as well as the opportunity to maintain family relationships and to interact with and form friendships with people who do not have mental illness. 45. In most impacted adult homes, the proportion of residents with mental illness is at least 75%. 46. Individuals who reside in impacted adult homes share common areas with scores of other people with mental illness. They have little to no privacy.
2 Additionally, New York has “supportive single room occupancy residence” programs, which are programs that do not provide as intensive a level of services as some other programs but do provide 24-hour supervision, case management and other services such as budgeting assistance. Participation in on-site programming is voluntary, depending on need.

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Meals are provided with little choice. Hundreds of individuals share access to a single common area. Residents must line up for medication, which is only dispensed at specific times in the common areas.
47. The impacted adult homes provide almost no recreational or other activities. Residents spend hours watching television in a common room or smoking cigarettes in a smoking room during the winter or outside when the weather allows. Residents wander aimlessly in and out of the common room and smoking room with nothing to do for the majority of the day. Only a minority of residents attend day programs outside the home.
48. Residents of impacted adult homes have almost no control over their personal space. They share rooms with at least one other person (some homes have rooms with three beds). In most cases, four residents share a bathroom. Residents have no control over when or by whom their rooms are cleaned or who can access their room. Residents frequently complain of thefts of clothing and other personal effects.
49. Impacted adult home residents have virtually no privacy. Pay phones are in common areas where anyone can overhear a conversation. In homes where residents can receive calls through the home’s switchboard, residents are paged over a loudspeaker to come to a phone. Residents are paged to come take their medications if they do not line up to get them at the designated time. Some impacted adult homes have policies restricting incoming telephone calls to very limited hours.
50. The lack of privacy in impacted adult homes makes it very difficult for residents to exercise their rights. Since residents often cannot make phone calls without the home’s knowing they are doing so, residents are fearful of calling attorneys

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or other advocates when they have a problem. Residents are also fearful that if an advocate calls them at the home, the home will find out about it and retaliate. Some impacted adult homes limit residents’ access to advocates by simply barring the advocates from the home. Some operators and administrators intimidate residents with threats of eviction or hospitalization. Residents who do exercise their rights can and do face retaliation from the impacted homes. This serves as a further disincentive to residents exercising any kind of independence.
51. Residents have little contact with members of the community outside the impacted home. Some homes bar residents from congregating in front of the home, limiting their contact with the communities in which they are housed. Outsiders’ visits are limited. Most visitors may not be received in privacy. Residents often develop their own systems of exchange within an impacted home, borrowing money at exorbitant interest rates and bartering for cigarettes, sex and personal items.
52. The depersonalization and lack of mental stimulation in the impacted adult homes erode residents’ ability to live independently.
53. Moreover, many impacted adult homes have policies the effect of which are to prevent residents from moving out of the home, including withholding money from residents and creating barriers that inhibit the ability of case managers to assist residents in seeking and applying for other types of housing. Furthermore, residents are not educated about alternatives to adult homes and are often told that if they leave the impacted adult home, they will become homeless.

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54. Operators often take control of individuals’ Medicaid cards, forcing residents to use doctors and pharmacies chosen by the operator, often for the operator’s financial gain.
55. Adult home operators frequently serve as the representative payee for residents and control the residents’ finances. Operators who serve as representative payees receive residents’ SSI checks directly from the government and distribute to residents the small personal needs allowance that residents are permitted to retain from these checks. This “personal needs allowance” is between $124 and $144 a month – between $4 and $5 per day.
56. Residents’ money is sometimes withheld as punishment for failure to follow the home’s rules or attend scheduled programs.
57. Countless DOH inspection reports have documented numerous health, safety and sanitation citations. Residents of adult homes have been at risk of death or injury due to unsafe and unsanitary conditions. The same types of violations persist year after year.
58. Residents are also at increased risk of death or injury from suicide because they are denied necessary care and rehabilitation.
59. On-site mental health providers typically rent space in the homes from the operators. New York State law requires that operators of impacted adult homes arrange for residents to receive needed mental health services. Home-health care service providers also pay the operators for space. These arrangements have led to repeated and well-documented instances of abuse (e.g. kickback schemes, unnecessary medical procedures and misleading billing practices). See New York State Commission on

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Quality of Care for the Mentally Disabled, Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services (Aug. 2002).
60. Adult homes do not meet the needs of persons with serious and persistent mental illness.
61. Adult homes fail to adequately provide rehabilitative treatment designed to promote recovery, independence and integration into the community.
62. Adult homes lack the trained staff necessary to provide adequate care to individuals with mental illness.
The Role of OMH and DOH 63. Defendants OMH and DOH have a joint duty to inspect impacted homes and ensure compliance with applicable laws and regulations. DOH licenses the homes. 64. Many individuals with mental illness who reside in impacted homes were discharged directly from psychiatric hospitals to the homes. 65. Individuals with mental illness are placed in adult homes because there are insufficient discharge options in the community for people with mental illnesses who need some degree of supervision or support. 66. There are long waiting periods for admission to supported housing programs, so people with serious mental illness are inappropriately discharged from psychiatric hospitals to adult homes because of insufficient capacity in community residential programs, including supported housing. The decision to discharge an individual to an adult home as opposed to supported housing is not based on any relevant treatment criteria or diagnosis, but simply on availability.

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67. Once individuals are placed in adult homes, they are rarely able to transfer to OMH supported housing, such that being discharged into an adult home has dramatic, long-term consequences for the individual.
68. Defendants categorize adult homes as permanent placements and, as a result, do not consider the needs of adult home residents for more integrated housing when they plan for development of integrated supported housing programs.
69. Defendants do not provide adult home residents with information on alternatives to adult homes or assist them in exploring these alternatives.
70. Residents are left to stagnate in adult homes and, in all too many cases, to live permanently with fear of abuse and fear of retaliation against those who voice concerns or express a desire to leave.
71. Defendants are responsible for administering a system of care for individuals with mental illness.
72. Defendants are also responsible for establishing appropriate discharge standards at the psychiatric hospitals that traditionally place individuals in adult homes.
73. Defendants are administering their program of services in a manner that supports and encourages the segregation of individuals with mental illness through their over reliance on adult homes.
74. Defendants have developed and fund long-term residential programs that enable individuals to receive services in settings far more integrated than adult homes.

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75. However, defendants have failed to develop and fund sufficient capacity in these programs, forcing into adult homes thousands of individuals who could, and would, prefer to be served in more integrated settings.
76. New York has policies, rules and practices that discourage the development of integrated residential settings for people with mental illness and instead perpetuate the current system of adult homes. Changing these policies, rules and practices would not be a fundamental alteration under Olmstead, 527 U.S. 581 (1999). Services can be provided in a more integrated setting at a cost equivalent to or less than the average cost of providing services to an adult home resident.
These Problems Have Persisted For Over 25 Years 77. Defendants have long been aware of the substandard conditions of adult homes and of their institutional nature. Despite numerous reports and newspaper accounts over the past 25 years, defendants have persistently and knowingly permitted the operators of adult homes to abuse and neglect residents, providing unsafe, unsanitary and inadequate care in needlessly segregated settings. 78. In 1977, as a result of an investigation by Deputy Attorney General Charles Hynes, the New York State Attorney General’s Office put the defendants on notice that adult homes were inappropriate placements for people with mental illness. 79. The first interim report of the Hynes Investigation (“1977 Hynes Report”) detailed the existence of unhealthy, unsafe and unsanitary conditions in adult homes. It noted that a large number of patients were discharged from state psychiatric centers into adult homes without adequate services. Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults: An Interim Report (March 13, 1977).

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80. The 1977 Hynes Report recommended accelerating the
development of community-based facilities.
81. As a result of the 1977 Hynes Report, legislation was enacted
requiring the Department of Social Services (now Department of Health) and the
Department of Mental Hygiene (now Office of Mental Health) to establish a system of
joint inspections of adult homes with significant numbers of individuals with mental
illnesses. New York State Commission on Quality of Care for the Mentally Disabled,
Adult Homes Services Residents with Mental Illness: A Study of Conditions, Services,
and Regulations 1 (Oct. 1990).
82. Additionally, legislation was passed that specifically authorized the
Department of Mental Hygiene (now the Office of Mental Health) to propose
supplementary standards for the care and protection of individuals with mental illness in
adult homes housing a significant number of such persons. Id. To date, the Department
has not promulgated any additional standards or regulations for the care of individuals
with mental illness in impacted adult homes.
83. In 1979, Deputy Attorney General Hynes issued a follow up report
(“1979 Hynes Report”). Hynes found that in some impacted homes,
Residents still appear totally uncared for: they are dirty, disheveled, unshaven, unbathed and dressed in soiled clothing. Inadequate food, in amount and nutritional value, is a continuing problem and the subject of frequent complaints. Special diets are not always provided. Recreational programs are minimal or non-existent in many homes. Kitchen sanitation and food handling practices are frequently health hazards. Building, fire and safety violations, often serious and dangerous, are common.

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Inadequate staffing is widespread and causes deficiencies in personal care services, housekeeping, and maintenance. Charles J. Hynes, Deputy Attorney General, Private Proprietary Homes for Adults 17 (March 31, 1979). 84. The 1979 Hynes Report stated that since 1968, deinstitutionalization had been the mental health policy of the state, with inpatient census of the state psychiatric centers dropping from 60,321 to 26,000 during the first decade of this policy. “Massive deinstitutionalization coincided with high adult home vacancy rates and a shortage of alternative residential arrangements. . . There is a fundamental disparity between the kind of care, supervision, and support needed by many dischargees and the kind of care and services that adult homes provide.” Id. at 30-31. The Report noted that most of the dischargees did not need help with daily self-care such as eating, toileting and mobility. On the other hand, they had behavioral problems that the adult home staff did not know how to address. 85. The 1979 Hynes Report also noted, “Large numbers of patients have been placed in facilities that cannot or do not meet their needs. Institutional life continues and there is little or no integration into the life of the community.” Id. at 37-38. The report described adult homes as “de facto mental institutions.” Id. It also concluded that the development of alternative placements for adult home residents has been “woefully slow and inadequate given the need for such facilities.” Id. at 53. 86. Also in 1979, a report on the adult home industry by the New York City Council Subcommittee on Adult Homes stated that “former mental patients often constitute the majority or a very large minority of the residents of private, proprietary homes – creating, in fact, satellite mental institutions. (Some homes in New York City

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have between 200 and 300 former mental patients, larger populations than some state hospitals).” The Adult Home Industry: A Preliminary Report (1979), Summary of Preliminary Findings.
87. The Council Subcommittee’s report also contains information regarding high numbers of suicides, unsafe conditions and fraudulent financial practices. New York City Council Subcommittee on Adult Homes, The Adult Home Industry: A Preliminary Report (1979).
88. In 1990, the New York State Commission on Quality of Care for the Mentally Disabled (“CQC”) reported to the New York State Legislature that large adult homes serving people with mental illness were unable to meet residents’ needs. The CQC is a state agency responsible for monitoring and reporting on the quality of care for persons with mental disabilities.
89. The CQC surveyed a sample of 47 impacted adult homes that serve large numbers of residents with mental illness, examining conditions in the home, financing and effectiveness of the regulatory system.
90. The CQC found a significant number of homes with seriously deficient conditions that jeopardized residents’ health and safety. Moreover, in many instances, the CQC found that these conditions had existed over time and had been cited repeatedly by state inspectors, but had remained uncorrected or had recurred repeatedly. New York State Commission on Quality of Care for the Mentally Disabled, Adult Homes Serving Residents with Mental Illness: A Study of Conditions, Services and Regulation 12-21, 30, 32-36 (Oct. 1990).

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91. The CQC provided detailed descriptions of the substandard
conditions it discovered in many of the larger homes. For example, at the Park Inn
Home, the CQC found:
The grounds of the home were littered with garbage, the hedges needed trimming, and the walls on the side of the home were marred with graffiti. The interior of the home was dimly and poorly ventilated, with unattractive, damaged institutional furniture set on dark, buckled, and worn carpeting. One bathroom . . . had a large hole in the floor by the bathtub which permitted the viewer to see the basement. Some residents . . . were poorly dressed in stained, ill fitting, layered attire, sometimes without socks or stockings . . . many were dirty and appeared to require additional staff assistance with personal hygiene.
Id. at 14.
92. The CQC noted that the Department of Mental Hygiene (now
OMH) had not used its regulatory authority to propose new regulatory standards for adult
homes serving individuals with mental illnesses, despite substantial evidence that
residents’ needs were not being met and that there were significant deficiencies in
treatment.
93. The CQC found that “although mental hygiene law requires that
discharge planning for patients include a determination of whether facilities to which
patients are discharged are ‘adequate and appropriate’ to meet their needs, patients
continue to be discharged to adult homes which regularly fail to meet standards on DSS
inspections.” Memo from Clarence J. Sundram, December 5, 1990, accompanying
report, Adult Homes Serving Residents with Mental Illness.

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94. The CQC found that once residents with mental illness become a majority in an adult home, the change in the overall composition accelerates until almost all the residents are individuals with mental illness.
95. The CQC found a de facto state policy of segregating residents with mental illness into particular homes. The CQC found that “there appears to be a pattern developing that as residents with mental illness become a majority, the change in the overall composition of the home accelerates until it predominantly serves only those residents.” New York State Commission on Quality of Care for the Mentally Disabled, Adult Homes Serving Residents with Mental Illness: A Study of Conditions, Services, and Regulation 39 (Oct. 1990).
96. The CQC found that adult homes in New York City would not be able to appropriately serve the increasing number of patients discharged from inpatient psychiatric facilities.
97. The CQC made a number of recommendations, including the systematic assessment of residents’ mental health needs and development of alternatives to meet the needs of residents with mental illness for personal care and supervision, medical, mental health and psychiatric rehabilitation services.
98. In December of 2001, the CQC issued a report on the Ocean House adult home (one of the homes enumerated in paragraph 35), entitled Exploiting Not-ForProfit Care in an Adult Home: The Story Behind Ocean House Center, Inc.
99. The report documents widespread fraud and misuse of residents’ and state money at Ocean House. Residents were receiving medical care that they did not need, and providers fraudulently billed Medicaid and Medicare for that care. The report

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found that significant amounts of state and federal money are spent on adult home residents, but the quantity and type of services provided appear to be driven more by greed than residents’ needs. The report also found that treatment plans and activities were inadequate.
100. In April 2002, Clifford Levy wrote a Pulitzer Prize-winning series of articles in the New York Times depicting squalor and chaos in large New York City adult homes and reporting that an extraordinary number of deaths had occurred in these facilities. Clifford J. Levy, For Mentally Ill, Death and Misery, N. Y. TIMES, Apr. 28, 2002, § 1, at 1; Levy, Here, Life Is Squalor and Chaos, N. Y. TIMES, Apr. 29, 2002, at A1; Levy, Voiceless, Defenseless And a Source of Cash, N. Y. TIMES, Apr. 30, 2002, at A1.
101. Levy wrote, “State investigators . . . [for] three decades described many of the homes as little more than psychiatric flophouses, with negligent supervision and incompetent distribution of crucial medication. At one, Brooklyn Manor, the staffing was so sparse that a resident was put in charge of the entire place on one evening, a routine 2001 state inspection report shows.” Clifford J. Levy, For Mentally Ill, Death and Misery, N. Y. TIMES, Apr. 28, 2002, § 1, at 1.
102. Mr. Levy’s independent analysis of death rates in 26 of the largest and most troubled homes in the city documented 946 deaths between 1995 and 2001. Of those, 326 were people under 60, including 126 in their 20’s, 30’s and 40’s. When asked for records of investigations of these deaths, the Department of Health provided only 3. Clifford J. Levy, For Mentally Ill, Death and Misery, N. Y. TIMES, Apr. 28, 2002, § 1, at 1.

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103. In August 2002, the CQC released a report entitled, Adult Homes Serving Residents With Mental Illness: A Study on Layering of Services, describing the cost and quality of Medicaid-funded services provided to adult home residents. The CQC examined information from the 11 largest impacted homes in the greater New York City area. Each home had a census over 200, one had a census over 300, and 90% of the residents had mental illness. New York State Commission on Quality of Care for the Mentally Disabled, Adult Homes Serving Residents with Mental Illness: A Study on Layering of Services (Aug. 2002).
104. The CQC found that the average cost of providing services to an adult home resident was $37,435. Id. at 4.
105. Adult homes’ costs are paid for by Supplemental Security Income, including state supplements and public assistance funds. Health and mental health care for adult home residents with mental illness are paid for largely by Medicaid, which, as detailed in the CQC report, is vastly over-used in impacted adult homes. The CQC found services were “costly, fragmented, sometimes unnecessary, and often appeared to be revenue-driven, rather than based on medical necessity.” Id. at 3. The CQC recommended exploring ways that the money currently spent on adult home residents could be better utilized by shifting the funding “to develop alternatives to adult homes that promote responsibility and independence.” Id. at 18.
106. Despite the recommendation in this state-sponsored report and the many prior reports, defendants have not proposed the development of sufficient community residential services for impacted adult home residents and those individuals

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at risk of entering adult homes. The result is that New York fails to serve individuals with mental illness in the most integrated setting appropriate to their needs.
107. Year after year, DOH inspection reports have documented numerous health, safety and sanitation citations that have put residents of adult homes at risk due to unsafe and unsanitary conditions. Defendants, however, have failed to take adequate measures to redress continued poor conditions in impacted adult homes.
108. The conditions in impacted adult homes make it more difficult for residents to learn to live in normalized community settings. In fact, residents of adult homes lose daily living skills and become more dependent on the homes for every aspect of their lives.
109. Defendants continue to encourage and facilitate the placement of people with mental illness into adult homes even though the homes are not the most integrated setting appropriate to their needs and the homes are unable to provide them appropriate services.
110. Defendants have no reliable system for assessing whether current or prospective adult home residents can be served in more integrated settings.
111. In response to the series of articles in the New York Times exposing the horrible conditions prevalent in adult homes, the Commissioner of DOH formed an Adult Home Workgroup consisting of professionals, advocates, adult home operators, state officials and others.
112. The State Adult Home Workgroup found that at least one half of adult home residents could be appropriately served in more integrated community residential programs and urged the development of community alternatives. The

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Workgroup made detailed proposals for reform, including proposals to create 6,000 more integrated housing and treatment alternative beds, and proposals to improve the quality of care for those persons who remain in adult homes. New York has failed to enact laws implementing most of those proposals.3
113. As the State Workgroup reported, approximately 12,000 individuals with psychiatric disabilities live in adult homes in the New York State, and at least 50% or 6,000 of those individuals could live in more integrated community settings. This Complaint is directed at the over 4,000 individuals with psychiatric disabilities living in impacted homes with more than 120 residents in New York City. Thus, applying the State Workgroup’s 50% projection specifically to these homes, it can be expected that at least half of over 4,000 people on whose behalf this case is brought could be served in more integrated settings. Upon information and belief, the evidence will show that far more than 50% of the residents can be served in more integrated settings.
114. The recently enacted State budget for Fiscal Year 2003-04 creates between 100 and 900 alternative residential beds for adults with mental illness statewide. In his budget message the Governor also promised to request funding for 600 additional beds in Fiscal Year 2004-05, and another 100 to 900 beds in Fiscal Year 2005-06. The housing that would be created in 2003-2004 and 2005-2006 would be contingent on a
3 While the Governor proposed an assessment of every adult home resident, the budget that was enacted only funded assessments of a small percentage of the residents. Most of the money that the Governor proposed for assessments and for improving care and treatment of residents was redirected into a so-called Quality Incentive Payment Program, which provides financial bonuses to adult home operators who comply with minimal regulatory and statutory requirements – rather than addressing integration.

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dollar-for dollar local match, except for 100 beds in each of these fiscal years. None of the housing which might be created under these proposals would necessarily be for adult home residents or those at risk of being placed in adult homes.
115. Upon information and belief, the first 100-900 beds will not actually become available until more than two years from when they were proposed. Moreover, because of the “local match” requirement, if localities such as New York City choose not to spend millions of dollars for new beds, most of the housing proposed for 2003-2004 and 2005-2006 will not be developed. Funding for additional beds beyond the first year is uncertain. Thus, after the conclusion of the Legislative session on June 19, 2003, New York State has no definite plan to provide a more integrated community residential setting for even a single adult home resident with mental illness.
116. Even if every single bed promised is actually created and is allocated to residents of impacted adult homes, which is far from assured, this would only provide integrated community residential beds to a small portion of those entitled to them. The proposal will not serve the needs of the majority of the adult home residents in New York City. The proposal is woefully inadequate to meet the needs of Plaintiff’s constituents.
117. In his Executive Budget, the Governor requested funding to, among other things, assess the needs of adult home residents with mental illness for more integrated housing and services. The recently enacted State budget eliminated three quarters of the requested funding, with the result that only a small portion of residents will be assessed to determine their need for more integrated housing and services.

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118. Moreover, the Governor’s proposal fails to shift funding from adult homes to integrated community residential services. Shifting residents and funds from impacted adult homes to community-based residential programs would enable far more of Plaintiff’s constituents to be served in integrated settings and would entail no additional cost.
119. By reason of the foregoing allegations, there exists a justiciable controversy with respect to which Plaintiff is entitled to the relief prayed for herein.
FIRST CLAIM FOR RELIEF VIOLATION OF THE AMERICANS WITH DISABILITIES
ACT MANDATE TO ADMINISTER SERVICES AND PROGRAMS IN THE MOST INTEGRATED SETTING 120. Plaintiff repeats and realleges the above paragraphs. 121. This claim for relief is brought against defendants George Pataki, Antonia Novello, and James Stone in their official capacities. 122. Plaintiff Disability Advocates’ constituents are individuals with serious and persistent mental illness. They have mental impairments that substantially limit one or more major life activity. 123. Plaintiff’s constituents are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2). 124. Plaintiff’s constituents who reside in impacted adult homes or are at risk of placement in such homes are qualified to participate in more integrated community residential programs that meet their mental health needs. 125. Serving Plaintiff’s constituents in more integrated settings can be reasonably accommodated.

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126. Defendants Pataki, Novello and Stone are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C.§§ 12131(1)(A) and (B).
127. Title II of the ADA prohibits defendants from discriminating against individuals with disabilities in programs and activities. 42 U.S.C. §§ 12131, 12132.
128. Title II also 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.” See 28 C.F.R. § 35.130(d).
129. The defendants are obligated under the ADA to administer New York State programs in a manner that supports the availability of services and programs in the most integrated setting for individuals with disabilities.
130. Defendants have failed to meet this obligation. Defendants are instead requiring thousands of individuals to live and receive services in adult homes, although the homes are not the most integrated setting appropriate to their needs.
SECOND CLAIM FOR RELIEF VIOLATION OF THE AMERICANS WITH DISABILITIES ACT’S PROHIBITION ON USING METHODS OF ADMINISTRATION THAT SUBJECT PLAINTIFFS TO DISCRIMINATION 131. Plaintiff repeats and realleges the above paragraphs. 132. This claim for relief is brought against defendants George Pataki, Antonia Novello, and James Stone in their official capacities. 133. Plaintiff’s constituents who reside in impacted adult homes or are at risk of placement in such homes are qualified to participate in more integrated community residential programs that meet their mental health needs.

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134. Title II of the ADA prohibits defendants from discriminating against individuals with disabilities. 42 U.S.C. §§ 12131, 12132.
135. Regulations implementing Title II of the ADA provide that “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; [or] (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. . .” 28 C.F.R. § 35.130(b)(3).
136. Defendants utilize methods of administration that have the effect of subjecting individuals with disabilities to discrimination. Defendants utilize methods of administration that perpetuate the current adult home system rather than facilitate the receipt of services in the most integrated setting appropriate to the needs of Plaintiff’s constituents and result in continued placement in settings that are segregated, unsafe, unsanitary and inappropriate.
THIRD CLAIM FOR RELIEF DISCRIMINATION ON THE BASIS OF DISABILITY IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
137. Plaintiff repeats and realleges the above paragraphs. 138. This claim for relief is brought against defendants George Pataki, Antonia Novello, and James Stone in their official capacities. 139. Plaintiff’s constituents who reside in impacted adult homes or are at risk of placement in such homes are qualified to participate in more integrated community residential programs that meet their mental health needs.

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140. Title II of the ADA prohibits defendants from discriminating
against individuals with disabilities. 42 U.S.C. §§ 12131, 12132.
141. Defendants discriminate against Plaintiff’s constituents on the
basis of their mental illness in violation of the ADA by placing Plaintiff’s constituents
into impacted homes knowing that these homes are not appropriate to meet their needs
and 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.
142. The state’s practice of knowingly placing and maintaining
individuals with serious mental illness in impacted adult homes constitutes discrimination
because such substandard conditions are not tolerated in other state-sponsored, state-run
and/or state-regulated facilities that provide housing and services primarily on behalf of
individuals without mental illness.
FOURTH CLAIM FOR RELIEF FAILURE TO ADMINISTER SERVICES IN THE MOST INTEGRATED SETTING APPROPRIATE IN VIOLATION OF THE REHABILITATION ACT 143. Plaintiff repeats and realleges the above paragraphs.
144. This claim for relief is brought against each and every named
defendant.
145. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
146. Defendants are recipients of Federal financial assistance.

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147. OMH and DOH are programs receiving Federal financial assistance.
148. Plaintiff’s constituents who reside in impacted adult homes or are at risk of placement in such homes are qualified to participate in more integrated community residential programs that meet their mental health needs.
149. Serving Plaintiff’s constituents in more integrated settings can be reasonably accommodated.
150. Defendants violate Section 504 of the Rehabilitation Act by failing to administer services to Plaintiff’s constituents in the most integrated setting appropriate for them.
FIFTH CLAIM FOR RELIEF VIOLATION OF THE REHABILITATION ACT’S
PROHIBITION ON USING METHODS OF ADMINISTRATION THAT SUBJECT PLAINTIFFS TO DISCRIMINATION 151. The plaintiff repeats and realleges the above paragraphs. 152. This claim for relief is brought against each and every named defendant. 153. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 prohibits defendants from discriminating against individuals with disabilities. 154. Regulations implementing Section 504 of the Rehabilitation Act provide that a “recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified handicapped persons to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the

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objectives of the recipient’s program with respect to handicapped persons . . .” 45 C.F.R.
§ 84.4(b)(4).
155. The defendants are recipients of Federal financial assistance.
156. OMH and DOH are programs receiving Federal financial
assistance.
157. Defendants utilize methods of administration that have the effect
of subjecting individuals with disabilities to discrimination. Defendants utilize methods
of administration that perpetuate the current adult home system rather than facilitate the
receipt of services in the most integrated setting appropriate to the needs of Plaintiff’s
constituents and result in continued placement in settings that are segregated, unsafe,
unsanitary and inappropriate.
SIXTH CLAIM FOR RELIEF DISCRIMINATION ON THE BASIS OF DISABILITY
IN VIOLATION OF THE REHABILITATION ACT 158. Plaintiff repeats and realleges the above paragraphs.
159. This claim for relief is brought against each and every named
defendant.
160. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

assistance.

161. The defendants are recipients of Federal financial assistance. 162. OMH and DOH are programs receiving Federal financial

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163. Plaintiff’s constituents are qualified to participate in more integrated community residential programs that meet their mental health needs.
164. Defendants discriminate against Plaintiff’s constituents on the basis of their mental illness in violation of Section 504 of the Rehabilitation Act 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.
165. The state’s practice of knowingly placing and maintaining individuals with serious mental illness in impacted adult homes constitutes discrimination because such substandard conditions are not tolerated in other state-sponsored, state-run and/or state-regulated facilities that provide housing and services primarily on behalf of individuals without mental illness.
WHEREFORE, Plaintiff prays for the following relief: a. declaratory and injunctive relief; b. an order requiring that defendants promptly take such steps as are necessary to enable Plaintiff’s constituents to receive services in the most integrated setting appropriate to their needs; c. an order directing defendants to remedy unlawful conditions in impacted adult homes and to treat such impacted adult homes in the same way as homes that provide housing and services primarily on behalf of individuals without mental illness; d. an award of prevailing party costs, disbursements and attorney fees;

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e. such other relief as the Court deems appropriate.

Dated: New York, New York June 30, 2003

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

Doc #:NY6:510626.4

By:_________________________________________ Jeh C. Johnson (JJ-3753) Amelia A. Cottrell (AC-9117) Joshua P. Groban (JG-9162) 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000
- and –
DISABILITY ADVOCATES, INC. Cliff Zucker (CZ-2245) Timothy A. Clune (TC-1506) 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 (JG-5720) 151 West 30th Street, 11th floor New York, NY 10001-4007 (212) 244-4664
MFY LEGAL SERVICES, INC. Jeanette Zelhof (JZ-0639) Lycette Nelson* 299 Broadway, 4th floor New York, NY 10007 (212) 417-3700
35

URBAN JUSTICE CENTER William G. Lienhard (WL-6340) 666 Broadway, 10th floor New York, NY 10012 (646) 602-5667
Counsel for Plaintiff
*Not yet admitted to the Eastern District of New York

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 Case 1:03-cv-03209-NGG-MDG Document 447-1 Filed 05/31/12 Page 1 of 20 PageID #: 21913

10-235(L) Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2010

(Argued: December 8, 2010)

(Decided: April 6, 2012)

Docket Nos. 10-235(L), 10-251(CON), 10-767(CON), 10-1190(CON)

DISABILITY ADVOCATES, INC., and UNITED STATES OF AMERICA,

Plaintiffs-Appellees,

v.

NEW YORK COALITION FOR QUALITY ASSISTED LIVING, INC.,

Movant-Appellant,

ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, NIRAV R. SHAH, 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,

EMPIRE STATE ASSOCIATION OF ASSISTED LIVING,

Movant.*

Before: CABRANES and PARKER, Circuit Judges, and KORMAN, District Judge. ** ______________

Appeal from a March 1, 2010 judgment and remedial order of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge). The District Court ordered the Governor of the State of New York and various state commissioners and agencies (the “State”) to make certain modifications to the State’s mental health system to ensure compliance with 28 C.F.R. § 35.130(d)—the so-called “integration mandate” of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. We

* The Clerk of the Court is directed to amend the official caption of this action to conform to the caption listed above.
** The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.
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hold that plaintiff Disability Advocates, Inc. (“DAI”), a nonprofit organization contracted to provide services to New York’s Protection and Advocacy System under the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq., lacks standing under Article III of the United States Constitution to bring this claim. We also hold that the intervention of the United States after the liability phase of the litigation had concluded was insufficient to cure the jurisdictional defect created by DAI’s lack of standing. We therefore vacate the judgment and remedial order of the District Court and dismiss the action for want of jurisdiction.
PATRICIA A. MILLETT (Steven M. Pesner, Robert H. Pees, James P. Chou, and Christopher M. Egleson, on the brief), Akin Gump Strauss Hauer & Feld LLP, Washington DC, for MovantAppellant New York State Coalition for Quality Assisted Living.
BARBARA D. UNDERWOOD, Solicitor General of the State of New York (Andrew M. Cuomo, Attorney General, Benjamin Gutman, Deputy Solicitor General, Cecilia C. Chang, Laura R. Johnson, Steven C. Wu, Assistant Solicitors General, on the brief), New York, NY, for New York State Defendants-Appellants.
ANDREW G. GORDON (Julie E. Fink, Geoffrey Chepiga, Elizabeth Seidlin-Bernstein, Lindsey Weinstock, and Francine Murray, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Cliff Zucker (Timothy A. Clune, on the brief) Disability Advocates, Inc., Albany, NY; Ira A. Burnim, Bazelon Center for Mental Health Law, Washington, DC; Mara A. Kuns, Urban Justice Center, New York, NY; Roger Bearden (Aditi Koethekar, on the brief), New York Lawyers for the Public Interest, New York, NY; and Jeannette Zelhof (Jota Borgmann, on the brief), MFY Legal Services, Inc., New York, NY, for Plaintiff-Appellee Disability Advocates, Inc.
SAMUEL R. BAGENSTOS, Principal Deputy Assistant Attorney General (Thomas E. Perez, Assistant Attorney General, Jessica Dunsay Silver and Terese Kwon, Attorneys, on the brief), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Plaintiff-Appellee United States of America.
Hugh Barber, Assistant Attorney General of Connecticut (on behalf of Richard Blumenthal, Attorney General of Connecticut, 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), Hartford, CT, for amici curiae States of Connecticut, Arkansas, Tennessee, Utah and Wyoming, in support of New York State Appellants.
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Christopher Murray (Matthew F. Didora, on the brief), Ruskin Moscou Faltischek, PC, Uniondale, NY, for amici curiae Americare Certified Special Services, Inc. et al., in support of Appellants.
David T. Luntz (Lori A. Sievers, on the brief), Hinman Straub, PC, Albany, NY, for Movant Empire State Association of Assisted Living, in support of Appellants.
Jordan W. Siev (Christopher A. Lynch, Cameron G. Van Tassell and David J. De Jesus, on the brief), Reed Smith LLP, New York, NY, for amicus curiae Families of Current Adult Home Residents, in support of Appellants.
Carla Christofferson (Justine M Daniels and Christopher A. Adams, on the brief), O’Melveny & Myers LLP, Los Angeles, CA, for amici curiae American Association of Community Psychiatrists et al., in support of Appellees.
Steven J. Schwartz (Mollie Richardson, on the brief), Center for Public Representation, Northampton, MA; and Robert J. Alessi (Gregory G. Nickson and Jeffrey D. Kuhn, on the brief), Dewey & LeBoeuf LLP, Albany, NY, for amici curiae Dick Thornburgh (former United States Attorney General) and 30 former state mental health commissioners, in support of Appellees.
Elizabeth B. McCallum, Howrey LLP, Washington, DC, for amici curiae C.C. et al. (current and former residents of Adult Homes), in support of Appellees.
Antony L. Ryan (Rebecca R. Silber and Alejandro H. Cruz), Cravath Swaine & Moore LLP, New York, NY, for amici curiae The National Disability Rights Network et al., in support of Appellee Disability Advocates.
Peter K. Vigeland (Michael Bongiorno, David F. Olsky, Omar Kahn, Natalie Rastin, Leizel A. Ching, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for amici curiae The Coalition of Institutionalized Aged and Disabled et al., in support of Appellees.
JOSÉ A. CABRANES, Circuit Judge:
The question presented is whether plaintiff Disability Advocates, Inc. (“DAI”)—a private
nonprofit organization contracted to provide services to New York State’s protection and advocacy
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(“P&A”) system under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq.—has standing to sue various state agencies and officials on behalf of certain individuals with mental illness residing in New York City for an alleged violation of the “integration mandate” of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
We conclude that because DAI does not have the “indicia of membership” required of nonmembership organizations for “associational standing,” see Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977), DAI fails to satisfy the standing requirements under Article III of the United States Constitution as interpreted by the Supreme Court.
Because DAI lacks standing, we must also decide whether the intervention of the United States—which occurred after the determination of liability by the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) but before the imposition of a remedy—was sufficient to cure the jurisdictional defect that would have barred the District Court from hearing the suit as originally brought. We hold that in the circumstances presented here it was not sufficient. We therefore vacate the March 1, 2010 judgment and remedial order of the District Court and dismiss the action for want of jurisdiction.
BACKGROUND
A. The PAIMI In 1986, Congress enacted PAIMI1 in order to “ensure that the rights of individuals with mental illness are protected” and to “assist States to establish and operate a protection and advocacy
1 As we have previously explained, PAIMI was originally enacted as the “Protection and Advocacy for Mentally Ill Individuals Act of 1986,” Pub. L. No. 99-319, 100 Stat. 478 (May 23, 1986), and was commonly referred to by the acronym “PAMII.” See, e.g., Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1263 (10th Cir. 2003). In 1991, amendments to the Act substituted “individuals with mental illness” for “mentally ill individuals” wherever it appeared in the Act. See Pub. L. No. 102-173, § 10(2), 105 Stat. 1217, 1219 (Nov. 27, 1991). The short title,
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system for individuals with mental illness which will . . . protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes.” 42 U.S.C. §§ 10801(b)(1), (b)(2)(A).2 In line with these objectives, PAIMI conditions certain federal funding for states on the establishment of protection and advocacy (“P&A”) systems. 42 U.S.C. § 10803(2)(A). The designated P&A system may be either an independent state agency or a private entity. 42 U.S.C. § 15044(a), incorporated by reference in 42 U.S.C. § 10802(2). In turn, P&A systems are authorized to “pursue . . . legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(B).
however, remained unchanged until 2000, when Congress amended the short title so that the Act would be known by its current name, the “Protection and Advocacy for Individuals with Mental Illness Act,” or “PAIMI.” See Pub. L. No. 106-310, 114 Stat. 1101, 1193-94 (Oct. 17, 2000). Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 233 n.1 (2d Cir. 2006). To avoid confusion, we refer to the Act exclusively by its current acronym, PAIMI. 2 The term “individual with mental illness” is defined under PAIMI to mean any person
(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 (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. 42 U.S.C. § 10802(4). 42 U.S.C. § 10804(d) modifies the definition under certain circumstances for individuals with mental illness as defined under § 10802(4)(B)(i)(III). 42 U.S.C. 10804(d) (“The definition of ‘individual with a mental illness’ contained in section 10802(4)(B)(iii) of this title shall apply . . . only if the total allotment under this title for any fiscal year is $30,000,000 or more.”). None of the parties contend that § 10804(d) is applicable here.
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New York has designated the Commission on Quality of Care and Advocacy for Persons with Disabilities (“CQCAPD”) as the State’s P&A system for persons with mental illness pursuant to PAIMI, 42 U.S.C. § 10821.3 See N.Y. Mental Hyg. Law § 45.07(p)4; 42 U.S.C. § 10821. In 1989, CQCAPD entered into a contract with DAI as permitted by 42 U.S.C. § 108045 and New York Mental Hygiene Law § 45.07(i).6 See Disability Advocates, Inc. v. Pataki, No. 03-cv-3209 (NGG), Zucker Aff. ¶ 6, Docket No. 205 (E.D.N.Y. Dec. 3, 2007) (“Zucker Aff.”).7 That contract “designates DAI as an authorized PAIMI agency and . . . authorizes DAI to provide protection and advocacy services to individuals with mental illness throughout the state.” Id.
B. Procedural History On July 1, 2003, DAI initiated this action by filing suit against the Governor of the State of New York, the New York State Department of Health, the New York State Department of Mental Health, and the commissioners of those two agencies (collectively, the “State” or “defendants”)8 on behalf of its “constituents”: individuals with mental illness as defined under 42 U.S.C. § 10802(4), who reside, or might one day reside, in specified “adult homes” in New York City. 9 Compl. ¶ 9.
3 42 U.S.C. § 10821(a) provides, in relevant part, that “[n]o allotment may be made under [PAIMI] to an eligible [P&A] system unless an application therefor is submitted to the Secretary [of Health and Human Services].” 4 N.Y. Mental Hyg. Law § 45.07(p) grants CQCAPD the authority to “[a]dminister such protection and advocacy and client assistance programs as may be established by federal law, pursuant to such authorization or designation as may be required.” 5 42 U.S.C. § 10804 provides, in relevant part, that “an eligible system may use its allotment under [PAIMI] to enter into contracts with State agencies and nonprofit organizations which operate throughout the State” provided that “(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.” 42 U.S.C. § 10804(a)(1). 6 N.Y. Mental Hyg. Law § 45.07(i) grants CQCAPD the authority to “[e]nter into contracts with any person, firm, corporation, municipality or governmental agency for the performance of functions authorized by law.” 7 Further citations to the District Court record are reflected as follows: [Name of Document], Docket No. __ (E.D.N.Y. [date]). The District Court docket sheet conforms to the original caption of the case. 8 All individual defendants were sued in their official capacities.
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DAI alleged that the mental health system run by the State violated the “integration mandate” of Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which requires the provision of mental health services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d); see Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999) (holding that the provision of mental health services in an institutionalized setting when the recipients are capable and willing to live in a manner more fully integrated into the community constitutes a violation of Title II of the ADA, provided that such integration can be reasonably accommodated). DAI sought declaratory and injunctive relief that would require the State to “shift[ ] residents and funds [away] from impacted [sic] adult homes to community-based residential programs” and to end “[t]he State’s practice of knowingly placing and maintaining individuals with serious mental illness in impacted [sic] adult homes.” Compl. ¶¶ 118, 165.
After discovery, the State brought a motion for summary judgment challenging, among other things, DAI’s standing to sue on behalf of its constituents under PAIMI and Article III of the United States Constitution. The District Court denied the motion for summary judgment and rejected the standing argument, concluding that DAI had statutory standing pursuant to § 10805(a)(1)(B)10 and satisfied the minimum requirements of constitutional standing under Article
9 Adult homes are a type of privately owned, for-profit 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. Joint Stipulations of Fact ¶¶ 2, 17, Docket No. 260 (E.D.N.Y. April 29, 2009). Pursuant to state law, adult homes are intended to provide care 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 disability. N.Y. Soc. Servs. Law § 2(21). It is undisputed that all of the adult homes in New York State are populated entirely by people with disabilities and/or mental illness. Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 295 (E.D.N.Y. 2009). 10 In relevant part, § 10805(a)(1)(B) provides: “A system established in a State under section 103 to protect and advocate the rights of individuals with mental illness shall 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[.]” 42 U.S.C. § 10805(a)(1)(B).
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III. Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 307–10 (E.D.N.Y. 2009) (“DAI I”). The case then proceeded to trial.
Following a five-week bench trial, the District Court concluded that “[i]n carrying out their administration of New York’s mental health service system, [d]efendants 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.” Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 314 (E.D.N.Y. 2009) (“DAI II”). Accordingly, in a September 8, 2009 memorandum setting forth findings of fact and conclusions of law, the District Court determined that DAI had adequately “proven that [d]efendants discriminated against DAI’s constituents in violation of the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act.” Id. The Court announced its intention to enter “the appropriate injunctive remedy” following further briefing. Id.
On October 23, 2009, more than six years after the complaint was filed, the United States moved to intervene at the remedial stage of the litigation pursuant to Rule 24 of the Federal Rules of Civil Procedure.11 United States Motion to Intervene, Docket No. 358 (E.D.N.Y. Oct. 23, 2009). Noting that “the United States’ [m]otion comes very late in the litigation process,” the District Court nevertheless determined that intervention would not “prejudice the original parties or unduly delay the proceedings concerning the appropriate injunctive remedy to be imposed.” Disability Advocates, Inc. v. Paterson, No. 03-cv-3209, 2009 WL 4506301, at *2 (E.D.N.Y. Nov. 23, 2009). Accordingly, the Court granted the United States’ motion. Id. at *4.12
11 Rule 24 provides, in relevant part, that intervention is mandatory for any party that “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). In addition, Rule 24(b) provides for permissive intervention for “a federal or state governmental officer or agency . . . if a party’s claim or defense is based on . . . a statute or executive order administered by the officer or agency; or . . . any regulation, order, requirement, or agreement issued or made under the statute or executive order.” Fed. R. Civ. P. 24(b)(2). 12 On December 23, 2009, the District Court denied motions to intervene by two parties asserting the interests of adult homes. See Disability Advocates, Inc. v. Paterson, No. 03-cv-3209, 2009 WL 5185807, at *7 (E.D.N.Y. Dec. 23, 2009). One
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On March 1, 2010, the District Court rejected the State’s proposed remedial plan as
“unreasonable and inadequate,” Disability Advocates, Inc. v. Paterson, No. 03-cv-3209, 2010 WL 786657,
at *7 (E.D.N.Y. Mar. 1, 2010), and entered a judgment and remedial order adopting DAI’s proposed
remedy with minor modifications, see Judgment and Remedial Order, Docket No. 405 (E.D.N.Y.
Mar. 1, 2010). Among other things, the remedy fashioned by the District Court required the State to
ensure that, within four years of the entry of the District Court’s order,
(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.
Id. at *3 (emphasis supplied).13 Over the objection of defendants, the District Court ordered that a
court-appointed monitor oversee the State’s compliance with the injunctive relief imposed by the
District Court. Id. at **8–9. By Order dated February 23, 2011, this Court granted a stay of the
remedial order pending the outcome of this appeal.
of those movants, the New York Coalition for Quality Assisted Living (“NYCQAL”), appeals from that decision. See NYCQAL Br. 1. Because we conclude that DAI lacked standing to bring the original suit and the intervention of the United States was insufficient to cure that jurisdictional defect, the NYCQAL’s motion to intervene is denied as moot. See Aref v. United States, 452 F.3d 202, 206 (2d Cir. 2006).
13 The District Court’s judgment and remedial order went on to define Current Adult Home Residents as “DAI’s Constituents who are residents of an Adult Home” as of the entry of the order and Future Adult Home Residents as “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.” Id. at *4.
“Supported Housing” refers to scattered-site residential settings “in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community.” Id. The District Court’s findings that (1) “virtually all of [DAI’s] constituents are qualified to receive services in ‘supported housing’”; (2) supported housing is “a far more integrated setting” than adult homes; and (3) that DAI’s constituents are not opposed to receiving services in more integrated settings, served as the basis for the Court’s conclusion that “DAI ha[d] established a violation of the integration mandate of the ADA and the Rehabilitation Act.” DAI II, 653 F. Supp. 2d at 187-88.
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C. This Appeal Defendants appeal from the March 1, 2010 judgment and remedial order of the District Court. On appeal, they argue, among other things, that the District Court erred in concluding that DAI had constitutional standing to pursue this litigation. State’s Br. 74–79. Because standing is “the threshold question in every federal case” and raises an issue with respect to the Court’s subjectmatter jurisdiction, we turn first to that claim. Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).14 And because we conclude that DAI lacked standing and that the intervention of the United States was insufficient to cure that jurisdictional defect, we dismiss the action for want of jurisdiction.
DISCUSSION A. Standard of Review Whether a plaintiff has standing to sue is a question of law, which we review de novo. See, e.g., Carver v. City of New York, 621 F.3d 221, 225 (2d Cir. 2010). B. Associational Standing What constitutes the “irreducible constitutional minimum of standing” is firmly established. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The limitation on the federal judicial power under the United States Constitution to “cases” and “controversies,” U.S. Const. art. III, § 2, requires that the party invoking federal jurisdiction demonstrate “(1) injury-in-fact, which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2) causation in the form of a ‘fairly traceable’ connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.”
14 Because defendants fail to raise their objection to DAI’s standing under PAIMI, see State’s Br. 74-81, that argument is deemed abandoned, see, e.g., Major League Baseball Props. Inc. v. Salvino, Inc., 542 F.3d 290, 294 (2d Cir. 2008); Hobbs v. Cnty. of Westchester, 397 F.3d 133, 147 (2d Cir. 2005).
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W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106–07 (2d Cir. 2008) (quoting Lujan, 504 U.S. at 560–61).
When an association asserts standing solely as the representative of its members, it “must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” Warth v. Seldin, 422 U.S. 490, 511 (1975). This requirement was further elaborated in Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977), in which the Supreme Court announced the current three-pronged test for “associational standing.” Under Hunt,
an association has standing to bring suit on behalf of its members when: (a) its 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. 432 U.S. at 343. Two decades after Hunt, the Supreme Court clarified that the first two of these requirements are constitutional limitations, whereas the third requirement is a “prudential limitation” that may be abrogated by Congress. United Food & Commercial Workers Union Local 751 v. Brown Grp., 517 U.S. 544, 557 (1996). The Hunt Court concluded that the Washington State Apple Advertising Commission—a state agency charged by statute with the promotion and protection of the State’s apple industry on behalf of apple growers and dealers—was not a membership organization, but it nevertheless satisfied the first prong of the associational standing test because “in a very real sense . . . the Commission represent[ed] the State’s growers and dealers and provide[d] the means by which they express[ed] their collective views and protect[ed] their collective interests.” Id. at 344–45. Furthermore, the apple growers and dealers “alone elect[ed] the members of the Commission; they
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alone [could] serve on the Commission; they alone finance[d] its activities, including the costs of [litigating Hunt], through assessments levied upon them.” Id.
In sum, the Supreme Court reasoned that, although the Commission did not have “members” in the “traditional” sense, its “constituency” possessed “all the indicia of membership.” Id. We have therefore recognized that—assuming the other criteria for associational standing are met—non-membership organizations may sue in a representative capacity when they “function[ ] effectively as a membership organization.” In re Holocaust Victim Assets Litig., 225 F.3d 191, 196 (2d Cir. 2000).
On the threshold jurisdictional question of standing, the only dispute is whether DAI— which is not a membership organization—satisfies the first prong of the test for associational standing under Hunt. Defendants argue that DAI cannot meet this requirement (i.e. that its members would otherwise have standing to sue in their own right) because DAI’s constituents lack two key indicia of membership: representation and control. In turn, DAI and the United States contend that Hunt does not render representation and control the only indicia of membership sufficient to create “members” out of “constituents” for purposes of associational standing.
Pursuant to PAIMI, P&A systems must ensure that they are responsive to the needs of the community they were created to represent. Accordingly, the governing board of all P&A systems must be “composed of . . . members . . . who broadly represent or are knowledgeable about the needs of the clients served by the system”; such members are defined to include “individuals who have received or are receiving mental health services and family members of such individuals.” 42 U.S.C. § 10805(c)(1)(B). In addition, a P&A system must:
establish an advisory council . . . which shall include . . . 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
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individuals; and . . . which shall be chaired by an individual who has received or who is receiving mental health services or is a family member of such an individual. Id. § 10805(a)(6)(B-C). Finally, PAIMI also requires that P&A systems establish a grievance procedure for clients or prospective clients to “assure that individuals with mental illness have full access to the services of the system.” Id. § 10805(a)(9). Whether these protections are sufficient to connote the “indicia of membership” required for associational standing under Hunt has not heretofore been addressed in this Circuit. Some, but not all, courts of appeals to address the question have concluded that they are sufficient. See Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2003) (concluding that the “constituents” of Oregon’s P&A system “possess many indicia of membership—enough to satisfy the purposes that undergird the concept of associational standing: that the organization is sufficiently identified with and subject to the influence of those it seeks to represent as to have a ‘personal stake in the outcome of the controversy.’” (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261 (1977))); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999) (concluding that the requirements under § 10805 ensure that “[m]uch like members of a traditional association, the constituents of the [P&A system] possess the means to influence the priorities and activities the [system] undertakes”); but see Ass’n for Retarded Citizens of Dall. v. Dall. Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir. 1994) (concluding that Texas’s P&A system bore “no relationship to [a] traditional membership group[ ], because most of its ‘clients’ . . . are unable to participate in and guide the organization’s efforts”); Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007) (concluding same with respect to Missouri’s P&A system). We need not—and do not—decide which of our sister circuits has the better of this argument, because DAI is not a P&A system but a contractor to the system, see notes 5–6, ante, designated to provide protection and advocacy services under PAIMI. Zucker Aff. ¶ 6. This
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distinction is critical to the question of whether DAI has associational standing because the sole basis cited in both Stincer (Eleventh Circuit) and Mink (Ninth Circuit) for finding that P&A systems have associational standing to sue on behalf of individuals with mental illness is that § 10805 affords individuals with mental illness (and their families and representatives) the requisite “indicia of membership” in the administration of the system.
The District Court did not consider whether DAI is subject to any of the statutory requirements under § 10805 such that it might satisfy the constitutional requirements for standing under Hunt. More importantly, however, DAI does not claim that its constituents have a sufficiently active affiliation with the organization. Cf. Hunt, 532 U.S. at 344–45 (recognizing that the apple growers and dealers “alone elect the members of the Commission; they alone may serve on the Commission; [and] they alone finance its activities”). Tellingly, there is scant evidence in the record that the individuals with mental illness whom DAI purports to represent have the power to elect its directors, make budget decisions, or influence DAI’s activities or litigation strategies. For instance, the record does not contain the contract between CQCAPD and DAI. Nor does it contain agendas, minutes, or other evidence regarding the quarterly meetings between DAI and CQCAPD’s Advisory Council; names and descriptions of the members of the Advisory Council; or ways that individuals with mental illness convey information, requests, or inquiries to the Advisory Council. Finally, the record does not establish that DAI ever notified its “constituents” or any of their legal guardians that it was filing this suit purportedly on their behalf. Accordingly, DAI has failed to satisfy its burden of establishing the elements of its purported associational standing. Lujan, 504 U.S. at 561.
To the extent DAI relies on District Court cases in this Circuit for the proposition that contractors have associational standing to sue on behalf of individuals with mental illness, those cases are inapposite in one of two ways. First, cases that have recognized the associational standing of non-membership organizations have almost exclusively concerned P&A systems rather than P&A
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contractors such as DAI. See, e.g., State of Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Connecticut, 706 F. Supp. 2d 266, 281–83 (D. Conn. 2010). Second, those cases that have recognized the distinction between systems and contractors of systems have elided the constitutional dimensions of associational standing entirely. See, e.g., Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992). They are therefore of little value to DAI and the United States in this case, which turns entirely on whether DAI meets the constitutional threshold for associational standing set forth by the Supreme Court.
Hunt held that the Constitution requires that the constituents of a non-membership organization manifest the “indicia of membership” for that organization to have associational standing to sue on their behalf. On the record before us, DAI has established that CQCAPD, New York’s P&A system, is bound by the statutory requirements of § 10805, but we can find no support for the proposition that DAI itself is subject to those requirements or has adopted the same statutory protections. Without those protections, there is no evidence that the individuals with mental illness on behalf of whom DAI brought this case have anything approaching the indicia of membership that is required under Hunt, much less that DAI “function[s] effectively as a membership organization.” See In re Holocaust Litig., 225 F.3d at 196. We therefore hold that DAI has failed to satisfy the constitutional requirements for associational standing prescribed by the Supreme Court in Hunt and its progeny.15
15 Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P&A system necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt. We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing. We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness.” 28 U.S.C. § 10805(a)(1)(B); see United States Br. 66. In circumstances where P&A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.
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C. Intervention The United States argues that even if DAI lacks standing to pursue this claim, the intervention of the United States after the completion of the liability phase of the case is sufficient to permit the case to move forward. See United States Br. 77–80. We disagree. We have long recognized that “‘if jurisdiction is lacking at the commencement of [a] suit, it cannot be aided by the intervention of a [plaintiff] with a sufficient claim.’” Pressroom Unions-Printers League Income Sec. Fund v. Cont’l Assurance Co., 700 F.2d 889, 893 (2d Cir. 1983) (“Pressroom”) (quoting Pianta v. H.M. Reich Co., 77 F.2d 888, 890 (2d Cir. 1935)) (brackets in original); see also 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1917, at 457 (3d ed. 2005) (“Intervention cannot cure any jurisdictional defect that would have barred the federal court from hearing the original action.” ). This is no casual observation; our recognition that “[t]he right to intervene presupposes an action duly brought,” Pianta, 77 F.2d at 890, reflects the Supreme Court’s long-held understanding that where a “cause of action ha[s] not accrued to the [party] who undertook to bring the suit originally . . . . intervention [can]not cure th[e] vice in the original suit.” U.S. ex rel. Tex. Portland Cement Co. v. McCord, 233 U.S. 157, 163–64 (1911); accord Town of West Hartford v. Operation Rescue, 915 F.2d 92, 95 (2d Cir. 1990) (“[I]t is fundamental that an intervening claim cannot confer subject matter jurisdiction over the action it seeks to join.”).
Indeed, as the District Court observed, citing one of plaintiff’s own experts, “some of the current and former Adult Home residents who testified in this case engage in advocacy on behalf of Adult Home residents—they lobby State government, participate in rallies, and attend meetings of advocacy organizations for individuals with mental illness.” DAI II, 653 F. Supp. 2d at 216. One witness testified 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.” Id. at 216 n.207 (quotation marks omitted). As one of the amici explained, “the vast majority of adult-home residents are not severely impaired,” and “93% had no-to-mild impairment of their overall cognitive skills . . . .” Am. Ass’n of Cmty. Psychiatrists Br. 18. This evidence supports the conclusion that most of the individuals on behalf of whom DAI advocates were not precluded, by virtue of their mental illness, from either exercising some degree of control over an organization that purports to represent their legal interests or, as appears to be the norm in DAI’s own protection and advocacy litigation, participating alongside DAI as plaintiffs (either in their own names or using initials or “John Doe”).
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The logic that underlies this rule is clear enough. Intervention is a procedural means for entering an existing federal action. See Canatella v. California, 404 F.3d 1106, 1113 (9th Cir. 2005). The Federal Rules of Civil Procedure “do not extend or limit the jurisdiction of the district courts.” Fed R. Civ. P. 82. That is, Rule 24 does not itself provide a basis for jurisdiction. Accordingly, “since intervention contemplates an existing suit in a court of competent jurisdiction and because intervention is ancillary to the main cause of action, intervention will not be permitted to breathe life into a ‘nonexistent’ law suit.” Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965). Indeed, this rule is so deeply entrenched in our jurisprudence that it is an axiomatic principle of federal jurisdiction in every circuit to have addressed the question. See, e.g., Hofheimer v. McIntee, 179 F.2d 789, 792 (7th Cir. 1950) (“An existing suit within the court’s jurisdiction is a prerequisite of an intervention, which is an ancillary proceeding in an already instituted suit.”) (quotation marks omitted); see also Canatella, 404 F.3d at 1113 (“Because Rule 24 cannot extend federal jurisdiction[,] . . . intervention as of right cannot be used to circumvent Younger [v. Harris, 401 U.S. 31 (1971)] abstention.”); Black v. Cent. Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974) (“By its very nature intervention presupposes pendency of an action in a court of competent jurisdiction.”); Kendrick v. Kendrick, 16 F.2d 744, 745 (5th Cir. 1926) (explaining that an existing lawsuit within the court’s jurisdiction is a prerequisite of intervention); Brictsom Mfg. Co. v. Woodrough, 284 F. 484, 487 (8th Cir. 1922) (same).
In Hackner v. Guar. Trust Co., 117 F.2d 95 (2d Cir. 1941), we recognized a district court’s discretion to treat the pleading of an intervenor as a separate action in order to adjudicate the claims raised by the intervenor even if the underlying claim was jurisdictionally deficient. There, plaintiffs sought to amend the complaint by substituting one party for two others twenty two days after the complaint was filed and before any action by the defendants had been taken. Rather than start again, we distinguished Pianta and its progeny and permitted the suit to proceed because the intervention had occurred before any action by the defendants had been taken. Id. at 99. As Judge
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Charles E. Clark, the chief architect of the Federal Rules of Civil Procedure, noted, “whether the matter is treated as one of amendment . . . or of commencement of a new action,” the action can continue “without the delay and expense of a new suit, which at long last will merely bring the parties to the point where they now are.” Id. Since Hackner, this prudential approach has found favor in other courts. See, e.g., Miller & Miller Auctioneers, Inc. v. G.W. Murphy Indus., Inc., 472 F.2d 893, 895 (10th Cir. 1973).
Unlike in Hackner, however, the United States intervened in this case after the trial had concluded. Permitting this case to continue would allow the Hackner exception (that curative interventions be construed as separate actions when they are effected at the beginning of the proceedings) to swallow the clearly established constitutional rule that intervention cannot cure any jurisdictional defect that would have barred the federal court from hearing the original action.
The fact that the United States adopted in its complaint the findings of fact and conclusions of law of the District Court does not justify the conclusion that we should exercise our discretion to permit this case to proceed. The relevant question under Hackner is not whether the curative intervenor is prepared to take the case “as he finds it” for the sake of judicial economy, but rather, whether he entered sufficiently early in the litigation to ensure that parties “invok[ing] the court’s jurisdiction have ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.’” Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 72 (1978) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). In this case, the District Court decided important questions of fact and law based entirely on the presentation of a plaintiff who
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lacked standing. The fact that the United States later “adopted” those findings and conclusions

cannot remedy the absence of jurisdiction at trial and in pretrial proceedings.16

In sum, we conclude that because “[t]he right to intervene presupposes an action duly

brought,” Pianta, 77 F.2d at 890, the intervention of the United States six years into this litigation

and after the conclusion of a trial on liability, was not sufficient to cure the defect in the District

Court’s jurisdiction when it entered its findings of fact and conclusions of law on the merits.17

*

*

*

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). Because we agree with defendants that DAI does not have standing and that the

intervention of the United States was insufficient to cure that jurisdictional defect, we vacate the

judgment and remedial order of the District Court and dismiss the action for want of jurisdiction.

In reaching this conclusion, we are mindful of the possibility that this litigation will continue,

inasmuch as the United States—whose standing is not disputed—has represented that, in the event

of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a

subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well,

either in conjunction DAI or on their own. We are not unsympathetic to the concern that our

disposition will delay the resolution of this controversy and impose substantial burdens and

16 The United States also suggests that Mullaney v. Anderson, 342 U.S. 415 (1952), provides a basis for avoiding dismissal of this case. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 834 n.8 (1989) (noting that, in Mullaney, “[t]he addition of the union members was considered necessary to establish the existence of a justiciable case”); cf. Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372, 1381–82 (Fed. Cir. 2000); Cal. Credit Union League v. City of Anaheim, 190 F.3d 997, 999, 1001 (9th Cir. 1999). But Mullaney did not address U.S. ex rel. Tex. Portland Cement Co. v. McCord, 233 U.S. 157 (1911), or the continuing vitality of the basic rule that intervention cannot cure a jurisdictionally deficient suit. We are not inclined to conclude that the Supreme Court intended sub silientio to abrogate a basic feature of constitutional standing. If we have misunderstood the requirements of Article III, we rest with confidence that higher authority stands ready to correct us.
17 Because we conclude that the intervention of the United States does not permit the case to proceed in the absence of proper jurisdiction at the commencement of the suit, we need not consider defendants’ arguments on the merits.
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transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.
Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continues, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.
CONCLUSION To summarize, we conclude that: (1) DAI lacks standing under Article III of the United States Constitution to bring this suit
because it failed to demonstrate that that its constituents possess the “indicia of membership” necessary for a non-membership organization to exercise associational standing. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). (2) The intervention of the United States after the complaint, discovery, disposition of motions for summary judgment, trial and the entry of the District Court’s findings of facts and conclusions of law with respect to plaintiff’s claims on the merits was insufficient to cure the jurisdictional defect in the case as brought. The District Court’s March 1, 2010 judgment and remedial order is therefore VACATED and the action is DISMISSED for lack of jurisdiction. Each party shall bear its own costs.
20

 
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UNITED STATES DISTRICT COURT

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELiiFi:::

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The United States of America, by its undersigned attorneys, for its complaint, ·states11'w

following:

I. The United States brings this complaint against the State ofNew York ("the State") for

failing to serve individuals with mental illness in the "most integrated setting" as required by ftle

II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-12134, and

Section 504 of the Rehabilitation Act ("Rehabilitation Act"), 29 U.S.C. § 794, and their

implementing regulations (as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999)). This suit seeks to vindicate the rights of people with mental illness in "impacted"1 adult homes with 12(1

or more beds in New York City (hereinafter, "Adult Homes"), and those at risk of entry into

Adult Homes, to receive services in the most integrated setting appropriate to their needs.

2. Title II of the ADA prohibits the unjustified isolation of persons with disabilities, see 42

U.S.C. § 12132; Olmstead, 527 U.S. 581 (1999), and requires states and other public entities to

1 Impacted adult homes are homes in which at least 25% of the residents or 25 residents (whichever is fewer) have mental disabilities. 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 service!: from a mental hygiene provider which is licensed, operated or funded by the office of mental health, or the office for people with development disabilities").

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"administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.P.R.§ 35.130(d). The Rehabilitation Act similarly prohibits recipients of federal financial assistance from discriminating against individuals with disabilities, and requires that they provide services and supports in the most integrated setting appropriate to the needs of individuals with disabilities. 29 U.S.C. § 794,45 C.P.R. § 84.4. 3. As set forth herein, thousands of individuals with mental illness in New York City are segregated in large, for-profit institutional residential care facilities known as "impacted" adul1 homes that are part of the State's system for providing services to people with mental illness, even though they could be more appropriately served in more integrated settings. 4. More integrated and appropriate alternatives for persons with mental illness exist withirr New York's mental health service system. These alternatives include supported housingintegrated, community-based housing that provides tenants with all the rights of tenancycombined with an array of mental health services to support people with mental illness living ia the community. Accord Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 218-223 (E.D.N.Y. 2009).
JURISDICTION and VENUE 5. This Court has jurisdiction over this action under title II of the ADA, 42 U.S.C. § 1213 3, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794a, and 28 U.S.C. §§ 1331 and 1345. 6. The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201-2202. 7. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because a substantial part of the acts and omissions giving rise to this action occurred in the Eastern District of New York. 28 U.S.C. § 139l(b).
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PARTIES
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8. Plaintiff is the United States of America. The United States Department of Justice is the federal agency responsible for administering and enforcing title II of the ADA, 42 U.S.C. § 12131 etseg. 9. Defendant New York State is a "public entity" within the meaning of the ADA, 42 U.S.C. § 12131(1), 28 C.F.R. § 35.104, and is therefore subject to title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35. 10. At all times relevant to this action, the State of New York has been a recipient of Federal financial assistance, including Medicaid funds, and is therefore subject to the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulations, 45 C.F.R. Part 84.
STATUTORY AND REGULATORY BACKGROUND 11. Congress enacted the ADA in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities[.]" 42 U.S.C.
.§ 1210l(b)(l). It found 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. § 1210l(a)(2). 12. The ADA provides that "[N]o 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.
13. Congress directed the Attorney General to issue regulations implementing title II ofth(' ADA. 42 U.S.C. § 12134. The title II regulations require public entities to "administer servic·~s,
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' programs, and activities in the most integrated setting appropriate to the needs of qualified
individuals with disabilities." 28 C.P.R. § 35.130(d). The preamble discussion of the "integration regulation" explains that "the most integrated setting" is one that "enables individuals with disabilities fo interact with nondisabled persons to the fullest extent possible[ ]" 28 C.P.R. pt 35, App. B, section 35.130(d) (2011). 14. Regulations implementing title II of the ADA further prohibit public entities, "directly or through contractual or other arrangements" from utilizing "criteria or methods of administration" that (1) "have the effect of subjecting qualified individuals with disabilities to discrimination" and (2) "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[.]" 28 C.P.R.§ 35.130(b)(3). Accord 45 C.P.R.§ 84.4(b)(4) (Rehabilitation Act). 15. In Olmstead v. L.C., 527 U.S. 581, 597 (1999), the Supreme Court held that title II of the ADA prohibits the unjustified segregation of individuals with disabilities. The Court explained that its holding "reflects two evident judgments." Id. at 600. "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." Id. "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 601. 16. Under Olmstead, public entities are required to provide community-based services when (1) such services are appropriate, (2) the affected persons do not oppose community-based treatment, and (3) community-based services can be reasonably accommodated, taking into
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account the resources available to the entity and the needs of other persons with disabilities. .[1!, at 607. 17. Discrimination on the basis of disability is also prohibited by Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a):
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[.] 18. The Rehabilitation Act's implementing regulations provide that recipients of federal funds "shall administer programs and activities in the most integrated setting appropriate to th<: needs of qualified handicapped persons." 28 C.F.R. § 41.5l(d); see also 45 C.F.R. § 84.4.
FACTS A. New York's Mental Health Scheme 19. Pursuant to New York State law, "New York and its local governments have a responsibility for the prevention and early detection of mental illness and for the comprehensively planned care, treatment and rehabilitation of their mentally ill citizens." N.Y. Mental Hyg. Law§ 7.01; see also id. §§ 5.07, 7.07. In this regard, "[s]uch a system should include, whenever possible, the provision of necessary treatment to people in their home communities; it should assure the adequacy and appropriateness of residential arrangements for people in need of services; and it should rely upon improved programs of institutional care only when necessary and appropriate." N.Y. Mental Hyg. Law§ 7.01. 20. Defendant New York State operates its mental health system through two state agencies, the New York State Office of Mental Health ("OMH") and the Department of Health ("DOH"). OMH and DOH 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
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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. 21. Specifically, 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)(l ), 487.1(b). DOH issues operating certificates to establish and operate adult homes. N.Y. Soc. Servs. Law§§ 460-b, 461-b; N.Y. Comp. Codes R. & Regs. tit. 18, §§ 485.3, 485.5. DOH also licenses and monitors adult homes and enforces the applicable statutes and regulations through unannounced inspections of each adult home every twelve or .eighteen months, depending on the facility's record. N.Y. Soc. Servs. Law§§ 461-a, 461-b. OMH is also involved in the inspection process. See id. § 485.3(b)(l). OMH is required by l:1w to plan how and where New York's mental health services will be delivered. N.Y. Mental Hyg. Law§ 7.07. In particular, OMH is responsible for developing an "effective, integrated, comprehensive system for delivery of all services to the mentally ill and to create financing procedures and mechanisms to support such a system of services to ensure that mentally ill persons in need of services receive appropriate care, treatment and rehabilitation close to their families and communities," and it relies on both public and private providers of those services. Id. § 7.01. OMH also serves an advisory role to "assist the governor in developing policies designed to meet the needs of the mentally ill and to encourage their full participation in society." Id. at§ 7.07(b). 22. OMH licenses, funds, and oversees an array of mental health housing and support service programs statewide, including community support. residential, and family care programs. N.Y. Mental Hyg. Law§§ 41.03, 41.42, 41.39. Housing programs include Supported Housing, whi,;h is a scattered site setting in which individuals live in their own apartment and receive services to
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support their success as tenants and their integration into the community. In carrying out thes'~ roles and responsibilities, the State determines what mental health services to provide, who will provide them, in what settings to provide them, and how to allocate funds among various services and settings. By virtue of the manner in which New York has designed, administered, and funded its service system, adult homes are a significant part of the State's mental health service system. Accord DAI, 653 F. Supp. 2d at 192-94; Disability Advocates, Inc. v. Patersorr, I
I
598 F. Supp. 2d 289,317-19 (E.D.N.Y. 2009).
B. Adult Homes Are Not the Most Integrated Setting Appropriate for Persons with Mental Illness
23. 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. 24. There are approximately 380 adult homes in New York State; approximately 44 ofthe!;e are in New York City. 25. Certain adult homes are krrown as "impacted" homes. These are adult homes in which at least 25% of the residents, or twenty-five residents, whichever is fewer, have mental illnesses. In Adult Homes, defined herein as impacted facilities with 120 or more total residents in New York City, the proportion of residents with mental illness far exceeds 25%. 26. There are approximately 23 Adult Homes in New York City; the vast majority of residents in these homes have mental illness. 27. For the most part, Adult Homes have the characteristics of an institution. Accord DAI, 653 F. Supp. 2d at 198-215, 282-88. Residents live with other persons with disabilities, and have limited opportunity to interact with individuals who do not have disabilities. They are assignei
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to small rooms that they share with at least one other resident. Bathrooms are also shared with at least one other person. 28. Residents of Adult Homes have very little autonomy over their daily lives, including over with whom they live and eat meals, and what they eat and when, and are afforded virtually no privacy. Most Adult Home residents are denied the right to administer their own medication, and instead, are required to line up at a medication station at specific times of day. Some Aduit Homes require residents to notify staff each time they leave the facility or if they are going to he away from the facility overnight, such as visiting relatives. Some facilities have evening curfews. 29. Adult Homes generally control and manage residents' "personal needs allowance" - $187 -from their Social Security Supplemental Security Income (SSI) benefits each month. The remainder of the resident's SSI benefits is paid to the Adult Home. 30. Adult Homes do not afford people with mental illness opportunities to achieve greater independence and community integration. For example, the Adult Homes do not permit residents to cook for themselves or do their own laundry at the facility. Consequently, the facilities foster learned helplessness. Accord id. at 214-15. 31. The State itself has characterized residents with mental illness as "stuck" in "institutional settings," including adult homes. OMH Guiding Principles for the Redesign of the OMH Housing and Community Support Policies (2007), at 1; OMH Statewide Comprehensive Plan, 2006-2010 (2008 Update); 2009-2010 Mental Health Update & Executive Budget Testimony of OMH Commissioner M. Hogan (Jan. 29, 2009). 32. OMH recently recognized that impacted adult homes are not clinically appropriate settings for the significant number of persons with serious mental illnesses who reside in such

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settings, and are not conducive to the rehabilitation or recovery of persons with serious mental illness. Clinical Advisory from Lloyd I. Sederer, M.D. to OMH Facility, Clinical, and Nursing Directors, Directors ofOMH Licensed Inpatient Programs (August 8, 2012), available at www.omh.ny.gov/omhweb/advisories/Clinical Advisory Adult.pdf. OMH has further acknowledged that impacted adult homes "do not foster independent living, with the use of congregate meals, ritualized medication administration and programming that may not be tailored to the individual needs of the residents." Office of Mental Health, Notice of Adoption, Operation of Psychiatric Inpatient Units of General Hospitals and Operation ofHospitals for Person with Mental Illness, I.D. No. OMH-32-12-00019-A, NYS Register at 13 (Jan. 16, 201:l), available at http://docs.dos.ny.gov/info/register/2013/jan16/pdf/rulemaking.pdf. 33. Similarly, the Department of Health has recognized that impacted adult homes "do no;: foster independent living due to institutional practices such as of congregate meals or ritualizf:d medication administration; and do not provide specifically designed rehabilitation programs linked to community work settings." Department of Health, Notice of Adoption, Adult Homes, I.D. No. HLT-32-12-00020-A, NYS Register, at 6 (Jan. 16, 2013), available at http:/Idocs.dos.ny. gov/info/register/20 13/jan16/pd£'rulemaking.pdf.
D. People with Mental Illness in Adult Homes Are Persons with Disabilities Who Are Qualified to Receive Services in More Integrated Settings and Do Not Oppose It
34. Persons with mental illness residing in, and persons with mental illness at risk of entry into, Adult Homes are individuals with mental illnesses, such as schizophrenia, bipolar disorder, depression, and others, that substantially limit one or more major life activities, including personal care, working, concentrating, thinking, and sleeping. They are therefore persons with disabilities for purposes of the ADA and the Rehabilitation Act.
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35. Virtually all of the individuals with mental illness in Adult Homes and those at risk of entry into Adult Homes can be served in more integrated settings, specifically, supported housing. Accord DAI, 653 F. Supp. 2d at 218-23, 229. 36. The placement of persons with mental illness in Adult Homes is not based on a determination that such placement is clinically necessary. Instead, people with mental illness tend to end up in Adult Homes following a hospitalization or homelessness because there are no available residential placements in integrated community settings, such as supported housing. Accord id. at 245-46, 260-61. 37. OMH currently funds and develops supported housing for individuals with mental illn•:ss, ' including a limited supply of units for adult home residents. Supported housing is an initiative to provide permanent housing, mostly in apartments scattered throughout the community, to individuals with mental illness, with individualized support services to assist them in succeeding ·in their housing. 38. One of the key principles of the State's supported housing program is to separate housing from support services by assisting the resident to remain in the housing of his choice while the services vary to meet the changing needs of the individual. 39. Supported housing is a successful, cost-effective program that gives residents the same privacy rights as any other tenant in a landlord-tenant relationship. In supported housing, people with mental illness live much like their nondisabled peers. It is the individual's home. Residents of supported housing sometimes live alone and sometimes share their apartment with a roommate, whom they choose. They can control their own schedules and daily lives. They can come and go when they like, eat what and when they like, decide when to go to sleep and when to wake up, and invite guests over at whatever times they choose. Accord id. at 218-23.
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40. Compared to residents of Adult Homes, residents of supported housing have far greater opportunities to interact with non-disabled persons and be integrated into the larger community. Accord id. at 218-24,227. 41. People with mental illness in Adult Homes are not materially different from people with mental illness who receive services in more integrated settings, including supported housing. People with mental illness in Adult Homes have similar diagnoses and symptoms of people who live successfully in more independent settings, including supported housing, with the supports and services that exist in the State's community mental health system. Accord id. at 245-47. 42. In supported housing, community mental health providers offer a variety of support services, depending on the needs of the individual. Such services include case management such as Assertive Community Treatment ("ACT") or "intensive" or "blended" case managem~nt which, among other things, can assist individuals with daily activities such as personal care ar.d safety, grocery shopping and cooking, purchasing and caring for clothing, household chores, using transportation and other community resources, and managing finances. 43. Most individuals with mental illness in Adult Homes would not oppose moving to integrated settings such as supported housing, if they had a fully-informed choice and a realistic opportunity to do so. Accord id. at 259-67. Numerous Adult Home residents have expressed their desire to leave the Adult Home and become members of their communities once again.
E. Serving Individuals with Mental Illness in an Integrated Setting Can Be Reasonably Accommodated
44. Providing services in community settings to individuals with mental illness residing ir, or at risk of entry into, Adult Homes can be accomplished with reasonable modifications to the Defendant's programs and services. Accord DAI, 653 F. Supp. 2d at 300-11.
II

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i;

45. The types of programs and services needed to support individuals with mental illness in

community-based settings, including supported housing, ACT teams, case management, and peer

support services, already exist inNew York's mental health service system.

46. However, very few Adult Home residents have accessed the State's community housing

programs due to the insufficient supply of supported housing units for the approximately 4,000

residents with mental illness in Adult Homes and the many more individuals with mental illness

who are at risk of entry into Adult Homes.

47. Serving individuals with mental illness residing in, or at risk of entry into, Adult HoiDI:s

in supported housing rather than Adult Homes would not adversely impact the State's ability lo

serve other individuals with disabilities. Id. at 298-99, 305-08. To the contrary, serving thosf:

individuals in supported housing will likely save money, thus freeing State funds to use for otller

individuals with disabilities. According to DOH, "it is expected that when adult home residents

with behavioral health needs transition to appropriate community housing, coupled with

appropriate supportive services, their overall utilization of Medicaid-funded services will

decrease and significant savings will result." Department of Health, Notice ofAdoption, Adult

Homes, I.D. No. HLT-32-12-00020-A, NYS Register at 6 (Jan. 16, 2013), available at

http:/Idocs.dos.ny. gov/info/register/20 13/jan16/pdflrulemaking.pdf.

F.

Resolution of the United States' Claims

48. On November 23, 2009, the court granted the United States' intervention as plaintiff-

intervenor in Disability Advocates, Inc. v. Paterson, No. 03-CV-3209 (E.D.N.Y.). The United

States participated in implementation of the district court's remedial order and in the State's

appeal of the court's order to the Second Circuit. On April 6, 2012, the Second Circuit vacated

the district court's remedial order and judgment and dismissed the action for lack of jurisdiction.

12

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49. In lieu ofre-filing a complaint, United States officials met with State officials over the past year and exchanged written proposals in an attempt to reach a resolution to the violations identified by the United States in the United States' Complaint in Disability Advocates. Inc. v. Paterson, No. 03-CV-3209 (E.D.N.Y.) and in its on-going investigation. The parties ultimately reached a settlement agreement. 50. Accordingly, all conditions precedent to the filing of this Complaint have occurred or been performed.
COUNT I VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT 51. The allegations of Paragraphs 1 through 50 of the Complaint are hereby realleged and incorporated by reference. 52. Defendant is a public entity subject to title II of the ADA. 42 U.S.C. § 12131 (1 ). 53. Defendant violates the ADA by administering its mental health service system in a manner that deniespersons with mental illness residing in, and at risk of entry into, Adult Homes the opportunity to receive services in the most integrated setting appropriate to their needs. 54. The persons with mental illness residing in, and at risk of entry into, Adult Homes are persons with disabilities covered by title II of the ADA, and they are qualified to receive services in a more integrated setting. 42 U.S.C. §§ 12102, 12131(2). 55. Providing services in more integrated settings to persons with mental illness residing in, and at risk of entry into, Adult Homes can be accomplished with reasonable modifications to the Defendant's programs and services. 56. Defendant's actions constitute discrimination in violation of title II ofthe ADA, 42 U.S.C. § 12132, and its implementing regulations, 28 C.F.R. Part 35.
13
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57. All conditions precedent to the filing of this claim have occurred or have been performed. COUNT II
VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 58. The allegations of Paragraphs 1 through 50 of the Complaint are hereby realleged and incorporated by reference. 59. The State of New York, which is a recipient of federal financial assistance, discriminat<~s against "qualified individual[s] with a disability" within the meaning of the Rehabilitation Act by administering programs and services for individuals with mental illness in a manner that denie:; individuals the opportunity to receive services in the most integrated setting appropriate to their needs. 29 U.S.C. § 794; 45 C.F.R. § 84.4. 60. The persons with mental illness residing in, and at risk of entry into, Adult Homes are persons with disabilities covered by Se.ction 504 of the Rehabilitation Act, and they are qualified to receive services in a more integrated setting. 61. Providing services in more integrated settings to persons with mental illness residing in, and at risk of entry into, Adult Homes can be accomplished with reasonable modifications to the Defendant's programs and services. 62. All conditions precedent to the filing of this claim have occurred or have been perform<~d.
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PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the Court:
A. Grant judgment in favor of the United States on its Complaint and declare that Defendant has violated title II of the ADA, 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S. C. § 794;
B. Enjoin Defendant from: I. failing to provide appropriate, integrated community services and suppc,rts
to persons with mental illness residing in, and at risk of entry into, Adult Homes; 2. discriminating against persons with mental illness residing in, and at risk
of entry into, Adult Homes by failing to provide services and supports in the most integrated setting appropriate to their needs;
C. Issue a declaratory judgment declaring that: I. Defendant has violated title II of the ADA and Section 504 of the
Rehabilitation Act by failing to make reasonable modifications to services, programs, and supports for persons with mental illness residing in, and at risk of entry into, Adult Homes to enable them to receive services in the most integrated setting appropriate to their needs; and
D. Order such other appropriate relief as the interests ofjustice may require.
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u u Case 1:13-cv-04165-NGG-MDG Document 1 Filed 07/23/13 .P.age 16 of 17 PageID #: 16

'

Respectfully submitted,

--fcpae~a\e.~09...
C16cELYN S ELS
Acting Assistant Attorney General
Civil Rights Division

EVEL.HILL Deputy Assistant Attorney General Civil Rights Division

ALISON BARKOFF, Special Counsel for

Olmstead Enforcement

Civil Rights Division

~ -<1

.,/

I I
16
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u Case 1:13-cv-04165-NGG-MDG Document 1 Filed 07/23/13 Page 17 of 17 PageID #: 17
LORETTA E. LYNCH BY:
Assistant U.S. Attorney United States Attorney's Office Eastern District ofNew York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052 michael. goldberger@usdoj .gov Counselfor Plaintiff United States ofAmerica
17

 
 Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 1 of 31 PageID #: 74

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

• I t.. .... ~,.,;;. JI ~..... ;I ,..: !":._·, .:. ... ·.,
~-.\: Sl,.tT~K'S rJ~T:!Cf'
* JUL 2013 * U ::::; iJ!ST~ICT COURT ED NY 2 3

THE UNITED STATES OF AMERICA, Plaintiff,
v. STATE OF NEW YORK,
Defendant.

)

BROOKLYN OFFICE

)

)

)

)

)

)

Civil Action No. CV-13-4165

)

(Mauskopf, J.)

)

(Pohorelsky, M.J.)

RAYMOND O'TOOLE, ILONA SPIEGEL, and )

STEVEN FARRELL, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, in his official

)

capacity as Governor of the State ofNew

)

York, NIRAV R. SHAH, in his official

)

capacity as Commissioner of the New York

)

State Department of Health, KRISTIN M.

)

WOODLOCK, in her official capacity as

)

Acting Commissioner of the New York

)

State Office of Mental Health, THE NEW

)

YORKSTATEDEPARTMENTOF

)

HEALTH, and THE NEW YORK STATE

)

OFFICE OF MENTAL HEALTH,

)

)

Defendants.

)

Civil Action No. CV-13-4166 (Irizarry, J.) (Bloome, M.J.)

STIPULATION AND ORDER OF SETTLEMENT
WHEREAS, the United States of America asserts as against the State ofNew York, and the Plaintiff Class asserts as against certain State agencies and officials, that they are prepared to commence litigation seeking declaratory and injunctive relief, alleging violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 2 of 31 PageID #: 75
§ 12131 et seq., and Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. § 794, with respect to individuals with serious mental illness who reside in, or who may in the future reside in, NYC Impacted Adult Homes, meaning Adult Homes in New York City with certified capacities of 120 or more in which 25 percent or more of the residents or 25 residents, whichever is less, have serious mental illness; and
WHEREAS, the United States of America and the Plaintiff Class (collectively, the "Plaintiffs") allege that the State of New York and certain State agencies and officials (collectively, the "State") violate the ADA and the Rehabilitation Act by designing, fimding, and administering the State's mental health service system in a manner that discriminates against Persons with Serious Mental Illness who reside in NYC Impacted Adult Homes; that there are more than 4,000 individuals with serious mental illness who currently reside in NYC Impacted Adult Homes; and that NYC Impacted Adult Homes are segregated facilities that are not the most integrated setting appropriate for individuals with serious mental illness, virtually all of whom can be served in more integrated settings, specifically, supported housing; and
WHEREAS, the State ofNew York and State agencies and officials, namely the Commissioner of the New York State Office of Mental Health, the Commissioner ofthe New York State Department of Health, and the Governor ofthe State ofNew York, all in their official capacities, and the New York State Office of Mental Health ("OMH") and the New York State Department ofHealth ("DOH") (collectively "the Defendants" or "the State"), deny that they have violated the ADA or the Rehabilitation Act; and
WHEREAS, OMH has issued a Clinical Advisory stating that Adult Homes with a significant proportion of residents with serious mental illness are not conducive to the recovery and rehabilitation of these individuals and thus are not clinically appropriate settings for such individuals; and
WHEREAS, on January 16,2013, DOH adopted regulations providing that no operator of an Adult Home located anywhere in New York State with a certified capacity of 80 or more shall admit any person with serious mental illness whose admission will cause such Adult Home to become or remain a "Transitional Adult Home" -meaning that the mental health census of such particular adult horne is 25 percent or more of the resident population - and that the operator of any Transitional Adult Home must submit a compliance plan to DOH demonstrating how it will reduce such mental health census below 25 percent; and
WHEREAS, on January 16,2013, OMH adopted regulations prohibiting OMHlicensed psychiatric inpatient units of general hospitals and private psychiatric hospitals from discharging individuals with Serious Mental Illness to Transitional Adult Homes, and has issued similar guidance to its state-operated psychiatric centers through amendments to its Official Policy Manual; and
WHEREAS, the Medicaid Redesign Team ("MRT"), established by the Governor in Executive Order No.5 on January 5, 2011, recommended a series of reforms
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in the Medicaid Program, most of which were incorporated into the budget for State Fiscal Years 2011-12 and 2012-13, including the creation of Health Homes and the institution of an accelerated shift to Managed Long Term Care Plans ("MLTCPs") for eligible Medicaid recipients; and
WHEREAS, as part of the implementation of the aforementioned MRT initiatives, Persons with Serious Mental Illness who reside in Transitional Adult Homes throughout the State will be enrolled in either Health Homes or MLTCPs, which will perform comprehensive assessments of the residents' physical and behavioral health needs and arrange for needed services; and
WHEREAS, the State will require that Health Homes and MLTCPs, as part of the comprehensive assessment of a Person with Serious Mental Illness residing in a Transitional Adult Home, affirmatively work with the individual and his or her family as appropriate to recommend housing and coordinate other social, medical and behavioral health services that would be necessary to support such individual and facilitate his or her ability to live in the community; and
WHEREAS, pursuant to a Request for Proposals issued on August 10, 2012, OMH entered into contracts to fund the development of 1,050 Supported Housing units in Kings and Queens Counties over a three year period for the purpose of helping Persons with Serious Mental Illness residing in Transitional Adult Homes in such counties transition to the community as appropriate and will enter into additional similar arrangements as necessary; and
WHEREAS, the State has developed a Community Transition Unit within DOH, which includes several Community Transition Coordinators who will help facilitate efforts to transition individuals with Serious Mental Illness residing in Transitional Adult Homes to the community; and
WHEREAS, by Executive Order No. 84 issued on November 30, 2012, the Governor established a body of State officials to provide guidance in the creation of a formal Olmstead Plan; and
WHEREAS, in addition to these efforts, the State and Plaintiffs intend that the measures required pursuant to this Agreement will provide residents of Impacted Adult Homes in New York City who have serious mental illness with the opportunity to live in the most integrated setting and will ensure that they are provided with the information necessary to allow them to make informed choices about those opportunities;
IT IS HEREBY STIPULATED AND AGREED by and among the undersigned that Plaintiffs' claims are settled on the following terms and conditions:
A. INTRODUCTION
The Parties agree that it is in their mutual interest to avoid the time, expense, and
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risk of litigation and hereby resolve the allegations by entering into this Agreement.
B. JURISDICTION
The Parties acknowledge that the Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331,28 U.S.C. § 1345, and 42 U.S.C. §§ 12131-12132 and authority to enter this Agreement and to enforce its terms as set forth herein. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
C. DEFINITIONS
1. "Adult Home" means an adult care facility licensed as an adult home by the Department of Health pursuant to Social Services Law Article 7.
2. "Transitional Adult Home" means an Adult Home with a certified capacity of 80 or more beds and a Mental Health Census of 25 percent or more of the resident population. Transitional Adult Homes include NYC Impacted Adult Homes.
3. ''NYC Impacted Adult Home" means an Adult Home located in New York City with a certified capacity of 120 or more beds and a Mental Health Census of 25 percent or more of the resident population or 25 persons, whichever is less, consisting of the facilities listed in Appendix A.
4. "NYC Adult Home Resident" means a Person with Serious Mental lllness residing in a NYC Impacted Adult Home.
5. A "Person with Serious Mental Illness" means an individual who meets criteria established by the Commissioner of Mental Health, which shall be persons who have a designated diagnosis of mental illness under the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (but not a primary diagnosis of alcohol or drug disorders, organic brain syndromes, developmental disabilities or social conditions) and whose severity and duration of mental illness results in substantial functional disability.
An individual is presumed to have a substantial functional disability as a result of mental illness ifthe individual:
a. received treatment from a mental health services provider operated, licensed or funded by OMH within the 24 months preceding the date on which this Agreement is "so ordered" by the Court, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document,
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that the individual's mental illness has not resulted in a substantial functional disability; or
b. is under the age of 65 and receives Supplemental Security Income ("SSI'') or Social Security Disability Insurance ("SSDI") due to mental illness (but not a primary diagnosis of alcohol or drug disorders, organic brain syndromes, developmental disabilities or social conditions):
i. according to reliable information received from the Social Security Administration, pursuant to a reasonable agreement to share data, that the individual's receipt of SSI or SSDI is due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document, that the individual's mental illness has not resulted in a substantial functional disability; provided, however, that: (1) this subparagraph (b)(i) shall not apply to individuals who receive in-reach or are assessed by Health Homes or MLTCPs prior to the date on which such agreement to share data is in place; and (2) this subparagraph (b)(i) shall not apply if the State determines that it cannot reach a reasonable agreement to share data with the Social Security Administration within four months of the date on which this Agreement is "so ordered" by the Court; or
ii. according to a written final administrative determination from the Social Security Administration specifying that the individual was awarded SSI or SSDI due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document, that the individual's mental illness has not resulted in a substantial functional disability.
6. "Mental Health Census" means the number of residents in an Adult Home who are Persons with Serious Mental Illness.
7. "Supported Housing" means scattered-site apartments for which OMH funding provides rental assistance and a minimum level of housing-related support services from the housing provider for individuals with Serious Mental Illness. These housing-related support services include assisting the resident in managing tenant/landlord relations and with transitioning to the new housing unit. In situations where a resident needs ongoing additional support to manage his or her symptoms, or assistance with living skills such as shopping, maintaining his or her living environment, medication management, and/or personal care services, the supported housing provider may assist in linking the resident with the entities that
5

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directly provide these additional services in coordination with the resident's care manager (Health Home or MLTCP). These additional support services may include the Community Services listed in paragraph 8 below.
8. "Community Services" means services and supports provided in New York State that assist persons with Serious Mental Illness to live in the community. Such services and supports include, but are not limited to, Assertive Community Treatment ("ACT"), care coordination, employment services, outpatient services, Intensive Psychiatric Rehabilitation Treatment, medical services, Personalized Recovery Oriented Services ("PROS"), crisis services, assistance with taking medication (including through prompting), Medicaid benefits for which the Adult Home Resident is eligible, including but not limited to home and community based services ("HCBS") waivers, clinic services, certified home health care, personal care assistance, nursing and rehabilitative services.
9. "Community Transition List" means one or more lists maintained for the purpose of facilitating efforts to transition NYC Adult Home Residents into the community.
10. "Health Home" means a State-approved entity that provides or arranges for care management from care management partner agencies that provide health home services including comprehensive assessment, comprehensive care management, health promotion, transitional care including appropriate follow-up from inpatient to other settings, patient and family support, referral to community and social support services, and use of health information technology to link services.
11. "Managed Long Term Care Plan" or "MLTCP" means an entity that provides or arranges for the provision of health and long-term care services to adults with chronic illness or disabilities. MLTCP services include -but are not limited to - nursing, physical therapy, occupational therapy, speech pathology, medical equipment and supplies, podiatry, dentistry, optometry, respiration therapy, transportation and social day care. These services are provided under contract with the State and Federal governments.
D. SUPPORTED HOUSING
1. The State shall fund Supported Housing units in a quantity sufficient such that every NYC Adult Home Resident for whom Supported Housing is appropriate in accordance with sections F and G of this Agreement is afforded the opportunity to transition to a unit during the time when this Agreement is in effect. The State shall have the discretion to allocate Supported Housing units within New York City as necessary for the
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implementation and oversight ofthe Transitional Adult Home compliance plans approved pursuant to regulations adopted by DOH; provided however, that the State shall make all reasonable efforts to coordinate the performance of assessments by Health Homes and MLTCPs with the development of Supported Housing units so that the assessments take into account Supported Housing units that are actually available or will soon become available.
2. The State shall dedicate a minimum of 2,000 Supported Housing units to help transition NYC Adult Home Residents for whom Supported Housing is appropriate out of NYC Impacted Adult Homes. The Supported Housing units referenced under this paragraph shall include:
a. The 1,050 units that are being funded and operated in Kings and Queens Counties pursuant to the RFP issued by OMH on August 10, 2012;
b. Additional units that the State will fund for development and operation of Supported Housing units in Staten Island and the Bronx pursuant to one or more RFPs that will be issued by OMH within two years of the execution of this Agreement; and
c. Additional units that the State will fund for development and operation in New York City pursuant to one or more additional RFPs to be issued by OMH, as necessary pursuant to Section D(l ).
3. The use of Supported Housing units for other populations shall not reduce the State's obligation under Section D(l) during the time when this Agreement is in effect.
E. IN-REACH
1. The State shall arrange for the entities that provide Supported Housing, as set forth in Section D, pursuant to contracts with OMH ("Housing Contractors"), to conduct in-reach in the NYC Impacted Adult Homes. In-reach shall not be provided by operators of NYC Impacted Adult Homes. For any housing contracts procured after the date of this agreement, OMH shall consider whether prospective bidders have provided onsite case management to any of the NYC Impacted Adult Homes listed in Appendix A and whether that experience, in addition to other relevant experience, would impact their ability to conduct effective in-reach.
2. The goal of in-reach is to actively support NYC Adult Home Residents in considering and making an informed choice about moving to Supported
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Housing or other housing that is the most integrated setting appropriate to the individual.
a. The State shall require Housing Contractors, in providing in-reach, to provide information about the benefits of Supported Housing and discuss any concerns that a NYC Adult Home Resident may have about moving to Supported Housing.
b. The State shall use best efforts to locate persons who live in Supported Housing and are willing to speak with NYC Adult Home Residents, so that Housing Contractors can offer NYC Adult Home Residents opportunities to speak with such persons.
c. The State shall require Housing Contractors> in providing in-reach, to provide information such as photographs and/or virtual tours of sample Supported Housing apartments that will help residents visualize Supported Housing settings.
d. The State shall require Housing Contractors to facilitate visits for those NYC Adult Home Residents who have been identified by the Health Home or MLTCP as Residents who appear to be appropriate candidates for Supported Housing pursuant to Section F but are undecided about their desire to move to Supported Housing and could benefit from such visit.
3. Housing Contractors shall provide in-reach to their designated NYC Adult Home Residents on a regular and continuing basis during the time period of their contracts with OMH.
4. The State shall advise NYC Impacted Adult Homes that they may not interfere with the reasonable access of Housing Contractors to the NYC Impacted Adult Homes and may not discourage NYC Adult Home residents from meeting with Housing Contractors. The State shall require Housing Contractors to report to the State any instances of such interference or discouragement. The State shall take appropriate corrective action to address interference or discouragement, which may include action available under Social Services Law§§ 460-d, 461 and 461-a and 18 NYCRR Parts 485 and 487 to the extent deemed appropriate by DOH.
F. ASSESSMENT
1. The State shall arrange for Health Homes and MLTCPs that have completed the State's training> as defmed in Section H, to conduct a comprehensive assessment of each NYC Adult Home Resident. If a NYC Adult Home Resident is not enrolled in a Health Home or MLTCP, then
8

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the State shall provide the person with a care coordinator who shall carry out th~ functions in this Agreement that would otherwise be assigned to a Health Horne and MLTCP.
2. The assessment shall determine the housing and service needs and preferences of the NYC Adult Horne Resident for purposes of transitioning from the NYC Impacted Adult Horne. Each assessment shall identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual's needs and personal preferences.
3. Community integration and self-determination shall be key considerations in the assessment process.
4. Health Homes and MLTCPs shall have the linguistic and cultural competence in the aggregate to serve competently all NYC Adult Horne Residents.
5. Assessments shall begin with the presumption that NYC Adult Horne Residents can live in Supported Housing. A resident will be considered appropriate for Supported Housing if desired by the resident, unless the assessment discloses that the resident:
a. Has significant dementia;
b. Would be a danger to self or others in Supported Housing even if receiving the services referenced in subparagraph d below;
c. Needs skilled nursing care that cannot be provided outside of a nursing horne or.hospital; or
d. Needs a type and/or frequency and duration of service on an ongoing and sustained basis in order to live in Supported Housing that is not available under the New York State Medicaid program, unless another public (e.g., Medicare) or private (e.g., Meals on Wheels) program will pay for or provide the needed service, the individual is eligible for such program, and such program is available to such individual.
Services available through the New York State Medicaid program include, but are not limited to, Medicaid-billable Community Services, such as assertive community treatment ("ACT'), care coordination, crisis services, horne health services, assistance with taking medication (including through prompting), personal care services, licensed mental health clinic services and successor programs that serve the same functions as these services; provided,
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however, that (i) Medicaid services shall be available to NYC Adult Home Residents pursuant to the same criteria applicable to other similarly situated individuals enrolled in the Medicaid program; and (ii) nothing in this Agreement shall prevent the State from discontinuing or revising these or any other services offered in the Medicaid program, subject to Section J(2) below.
6. A NYC Adult Home Resident shall not be determined to be inappropriate for Supported Housing solely based on lack of desire unless he or she has been provided with the opportunity to receive In-Reach, pursuant to Section E above.
7. If a NYC Adult Home Resident is assessed as not appropriate for Supported Housing:
a. the assessment must identify the specific reasons why such Supported Housing is not appropriate; and
b. the Resident will be afforded the opportunity to live in the most integrated setting desired by the Resident that is appropriate to the Resident's needs.
G. PERSON-CENTERED CARE PLANNING
1. The State shall require that for each NYC Adult Home Resident assessed pursuant to Section F, the Health Home or MLTCP shall develop the individual's person-centered care plan. The person-centered care planning shall include consideration of the current and unique psychosocial and medical needs and history ofthe individual as well as the functional level and support systems developed by the Health Home or MLTCP care manager.
2. The State shall require that each NYC Adult Home Resident be provided with a primary role in developing the plan and with information reasonably sufficient to assist him or her in making informed choices about housing and services.
3. The State shall require that each person-centered plan identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual's needs and personal preferences and subject to the provisions of Section F(5). In cases where OMH Supported Housing is part of the person-centered plan developed by the Health Home or MLTCP, the assigned Health Home or MLTCP care manager will make a referral to the appropriate Housing Contractor.
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H. TRAINING
1. Within 180 days of the execution of this Agreement or within 30 days of the commencement of operations of a Health Home or MLTCP, whichever is later, the State shall provide guidance and training to the Health Homes and MLTCPs pertaining to the assessment ofNYC Adult Home Residents and the development of person-centered care plans. Such guidance and training shall include the requirement that each assessment identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual's needs and personal preferences and subject to the provisions of Section F (5), and the presumption that all NYC Adult Home Residents can live in Supported Housing, subject to the provisions of Section F (5).
2. Within 180 days of the execution ofthis Agreement or within 30 days of the commencement of activity on a contract awarded to a Housing Contractor, whichever is later, the State shall provide guidance and training to the Housing Contractors pertaining to their obligations to provide in-reach, including techniques of motivational interviewing, and the presumption that all NYC Adult Home Residents can live in Supported Housing, subject to the provisions of Section F (5).
I. TRANSITIONING
1. The State shall require the Housing Contractors, Health Homes and MLTCPs to carry out their responsibilities so that the following schedule is achieved:
a. Within four years of execution of this Agreement, at least 2,500 NYC Adult Home Residents shall be assessed by Health Homes or MLTCPs pursuant to Section F and, if appropriate under a personcentered care plan developed pursuant to Section G, transitioned from NYC Impacted Adult Homes.
b. Within five years of the execution of this Agreement, all NYC Adult Home Residents shall be assessed by Health Homes or MLTCPs pursuant to Section F and, if appropriate under a personcentered care plan developed pursuant to Section G, transitioned from NYC Impacted Adult Homes.
2. The State shall provide any NYC Adult Home Resident who is otherwise eligible for Supported Housing pursuant to Section F, but who declines an offer for Supported Housing, with the opportunity for additional in-reach and, if the Resident so desires, the opportunity to move to Supported Housing, during the period in which this Agreement is in effect. Such
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additional in-reach shall be provided periodically, but on no less than an annual basis, by a Housing Contractor. If no Housing Contractor is available, in the discretion of OMH, to provide such in-reach, the State shall provide or arrange for an equivalent in-reach function.
J. COMMUNITY SERVICES
1. For the duration of this Agreement, the State shall ensure that Health Homes and MLTCPs arrange for the provision of Community Services identified in NYC Adult Home Residents' person-centered plans, consistent with Section G, and ensure that such Services are available.
2. For the duration of this Agreement, the Community Services available to NYC Adult Home Residents (whether through the Medicaid program or another program), if the Resident is eligible for the service, shall include the following services or, if the State replaces or changes the services, services that perform substantially the same function: licensed mental health clinic services, assertive community treatment ('"ACT'), home health services, mobile crisis services, care coordination, assistance with taking medication (including through prompting), and personal care services; provided, however, that eligibility for such services must be determined on an individual basis based on eligibility criteria that are comparable to criteria in place on the date this Agreement is executed.
3. For purposes of determining an individual's eligibility for ACT, eligibility shall be determined by the OMH Statewide ACT Guidelines.
K. REPORTING
1. Until the Court terminates jurisdiction over this matter, Defendants shall provide to the Plaintiffs and the Independent Reviewer (defined in Section L below) a quarterly report that indicates:
a. The number of Supported Housing units for which the State has provided funding and the Housing Contractors that received funding.
b. The number of Supported Housing units created pursuant to this Agreement that are occupied by NYC Adult Home Residents.
c. The name of each NYC Adult Home resident who has been identified as a Person with Serious Mental Illness at each of the NYC Impacted Adult Homes listed in Appendix A.
d. The name of each NYC Adult Home Resident who has been assessed under Section F, the date of assessment, the NYC
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Impacted Adult Home at which he or she resided when assessed, and the housing recommendation made as a result of each assessment.
e. The name of each NYC Adult Home Resident who has transitioned, the Adult Home in which he or she lived, the date on which he or she moved, and the type of housing to which he or she moved.
f. The name of each NYC Adult Home Resident assessed as not appropriate for Supported Housing, and the specific reasons why such Supported Housing is not appropriate.
2. The quarterly report required in Section K(l) shall be provided in an electronic format that may be imported into standard spreadsheet software.
3. Until the Court terminates jurisdiction over this matter, Defendants shall provide to Plaintiffs and the Reviewer:
a. A copy of any training materials used in connection with the State's training pursuant to Section H.
b. A copy of the Community Transition List, updated quarterly.
4. Until the Court terminates jurisdiction over this matter, Defendants shall notify Plaintiffs and the Reviewer about any instances in which the State has received a report that a NYC Adult Home Resident is being discouraged by an Adult Home from exploring alternatives to or transitioning from Adult Homes.
5. A request by Plaintiffs or the Independent Reviewer for relevant information shall not be unreasonably denied. The Parties shall negotiate in good faith any areas of disagreement as to whether and when such information shall be made available.
6. Any personally identifying information shared with the Plaintiffs or the Reviewer under this Agreement shall be treated and maintained as confidential.
7. The Parties and the Reviewer shall meet quarterly to discuss implementation progress and obstacles and how to overcome obstacles to achieving the goals of this Agreement.
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L. INDEPENDENT REVIEWER
1. The Parties agree that Clarence Sundram shall be the Independent Reviewer ("Reviewer") to monitor the State's implementation of this Agreement (the "Reviewer"). The State shall retain the Independent Reviewer within 60 days of executing this Agreement.
2. In the event the Reviewer resigns or the Parties agree to replace the Reviewer, the Parties shall meet and confer within 30 days of the resignation or their agreement and select a replacement. If they are unable to agree on the replacement Reviewer at the "meet and confer," the Plaintiffs and the State shall each, within 21 days of the "meet and confer," nominate up to two individuals with expertise in the provision of community services to persons with mental illness. The Court shall select the Reviewer from among those nominated by the Parties.
3. The annual budget for the Reviewer shall be $350,000.00. All reasonable fees, costs and expenses ofthe Reviewer, including the cost of any consultants or staff hired by the Reviewer, shall be borne by the State up to the amount of this annual budget. The Reviewer shall provide a monthly accounting justifying the fees, costs and expenses. In no event will the State reimburse the Reviewer for any fees, costs or expenses that exceed the amount of this annual budget. Provided, however, in the event of significant changes in circumstances that result in the Independent Reviewer having to spend substantially more time or incur substantial and unforeseen expenses, the Independent Reviewer may seek approval by the State for an amendment to the budget and submit a justification for such amendment. Within 30 days, the State may question the need for, or the amount of, such additional unforeseen expenses, may suggest other alternatives to avoid some or all of such expenditures, and may withhold approval of such expenses; provided that approval of the proposed amendment shall not be unreasonably withheld. The State shall be the final arbiter of what costs and expenses are considered reasonable; provided, however, that any costs incurred consistent with the methodology approved pursuant to Section L (11) shall be considered reasonable.
4. Within the budget described in Section L (3) above, the Reviewer may hire staff and consultants, in consultation with and subject to reasonable objections by the State, to assist in his or her evaluation of the State's compliance with this Agreement. The Reviewer and any hired staff or consultants are neither agents nor business associates of the State, the United States, the Plaintiff Class, or the Court.
5. The Reviewer shall confer regularly and informally with the Parties on matters related to implementation efforts and compliance.
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6. The Reviewer, and any hired staff or consultants, may:

a. Have ex parte communications at any time with the Parties, including counsel for the Parties, and employees, agents, contractors and all others working for or on behalf of the State, the Plaintiff Class or the United States to implement the terms of this Agreement.

b. Request meetings with either or both Parties. The purpose of these meetings shall include, among other things, prioritizing areas for the Reviewer to review, scheduling visits, discussing areas of concern, and discussing areas in which technical assistance may be appropriate.

c. Speak with stakeholders with such stakeholders' consent, on a confidential basis or otherwise, at the Reviewer's discretion.

d. Speak with anyone else the Reviewer and any staff/consultants deem necessary for completing the compliance evaluations and reports required by this Agreement. However, the State has no obligation to require any individual who is not a State employee or contractor to speak with the Reviewer.

e. Provide technical assistance to the State regarding any issue related to compliance with this Agreement.

f.

Attempt to resolve any dispute arising out of 1:!- Party's position

with regard to the construction or implementation of this

Agreement.

g. Testify in this case regarding any matter relating to the implementation, enforcement, or dissolution of the Agreement, including the Reviewer's observations, findings and recommendations in this matter. The Reviewer may not voluntarily testify as an expert witness against the State in any other administrative or civil proceeding of whatever nature brought before any federal or state court or other administrative or judicial tribunal. This limitation shall be a required term in the State's Contract with the Reviewer, which is subject to the approval of the New York State Comptroller.
7. Throughout the pendency of this Agreement, the Reviewer will pursue a problem·solving approach so that disagreements can be minimized and resolved amicably and the energies of the Parties can be focused on the State's compliance with the provisions of the Agreement.

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8. The Reviewer shall comply with all federal and State patient rights and confidentiality laws and regulations, including, but not limited to, those set forth in the New York State Public Health Law and Mental Hygiene Law, the Health Insurance Portability and Accountability Act of 1996 ("IDPAA''), the Standard for Privacy of Individually Identifiable Health Information and Health Insurance Reform: Security Standards, 45 C.F.R. Part 164, alcohol and drug abuse patient records laws codified at 42 U.S.C. § 290dd-2 and 42 C.F.R. Part 2, the Health Information Technology for Economics and Clinical Health Act ("HITECH Act") adopted as part of the American Recovery and Reinvestment Act of2009 (Public Law 111-5). For the purposes of Mental Hygiene Law§ 33.13 (c) 1, the need for the Reviewer to access all relevant, otherwise confidential information shall be deemed to significantly outweigh the need for confidentiality.
9. The duties of the Reviewer shall be to observe, review, report findings, and make recommendations to the parties solely with respect to the implementation ofand compliance with the Agreement. The State shall direct all agencies, employees and contractors to cooperate fully with the Reviewer. Neither Party shall interfere with the independent functions of the Reviewer. The Reviewer shall devote such time as is necessary to fulfill the purposes of the duties and responsibilities of the Reviewer pursuant to this Agreement, but within the annual budget set forth in Section L (3 ).
10. The Reviewer and any staff/consultants will have full access to the people, places, and documents that are necessary to assess the State's compliance with and/or implementation of this Agreement, as permitted by law and in accordance with the limitations set forth in Section L (8).
11. The Reviewer shall consult with the Parties and shall submit a written plan with regard to the methodologies to be used by the Reviewer to assess compliance with and implementation of the Agreement. The Parties shall approve the plan prior to implementation. The Reviewer's evaluations may include regular onsite inspection of individuals' residences, with the consent of such individuals, and interviews with individuals receiving services under this Agreement who consent to be interviewed.
12. In consultation with the Independent Reviewer, the State shall develop a work plan to guide its implementation of this Agreement within 120 days after the Reviewer is engaged by the State. The State shall share the work plan with the Parties.
13. The Reviewer shall conduct evaluations of and issue five annual written reports regarding the State's compliance. The Reviewer shall produce five annual reports regarding the State's compliance with particular provisions
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ofthe Agreement to the Parties pursuant to the time frame in Section L (14). The Reviewer will not file these reports with the Court without the express authorization of the Parties, unless submission to the Court is in connection with the process set forth in Sections M(2) or (3).
14. The written report shall detail with as much specificity as possible how the State is or is not in compliance with particular provisions of the Agreement. A draft of the Reviewer's report shall be provided to the Parties for comment each year within 30 days after the anniversary date of the Court's approval of this Agreement. The parties shall have 30 days after receipt of such draft report to provide comments to the Reviewer, on notice to each other, and the Reviewer shall issue to the Parties a final annual report within 15 days after receiving such comments; provided, however, that the parties may agree to extend such deadlines.
15. The Reviewer, including any hired staff or consultants, shall not enter into any new contract with the State, the Plaintiff Class, or the United States while serving as the Reviewer without the written consent of the other Party.
16. The Reviewer, including any hired staff or consultants, shall not be:
a. Liable for any claim, lawsuit, or demand arising out of the reviewing functions set forth in this Settlement Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for reviewing functions under this Settlement Agreement.
b. Subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Independent Reviewer's records or communications, although the Independent Reviewer may provide copies ofrecords or communications at the Reviewer's discretion. The Court may review relevant records of the Reviewer in an enforcement proceeding pursuant to Court order under Section M ofthis Agreement.
M. ENFORCEMENT
1. The Parties agree jointly to file this Agreement with the United States District Court for the Eastern District of New York.
2. The Court shall retain jurisdiction to assure compliance with this Agreement but not for more than 60 days after the Reviewer has provided
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the Parties with its fifth and final report, at which time this Agreement shall expire, provided, however:
a. The Parties may agree to jointly ask the Court to terminate the Agreement earlier. Upon 30 days' notice to the Parties and the Independent Reviewer, the State may also move to terminate the Agreement, which motion shall be granted if the State demonstrates that it has substantially complied with all its obligations as set out in this Stipulation. Before the Court considers the motion, the Independent Reviewer shall evaluate the State's compliance since the last annual report and the Parties shall have an additional30 days to review the evaluation.
b. Plaintiffs may move to extend the Court's jurisdiction, which motion shall be granted if the Plaintiffs advise the Court, on notice to the State, no later than 60 days after receiving the Independent Reviewer's fifth and final report, that the State is not in substantial compliance with the Agreement. In such case, Plaintiffs shall describe with as much specificity as possible how the State is not in substantial compliance with particular provisions of the Agreement. If the State contends that it is in substantial compliance, the Court shall schedule further proceedings, and in such proceedings the burden shall be on the State to demonstrate substantial compliance as to the provisions identified by Plaintiffs. If the State demonstrates such substantial compliance, the motion to extend the Court's jurisdiction shall not be granted.
3. In the event Plaintiffs allege non-compliance by Defendants with a material provision of this Agreement, counsel to the Parties shall meet and confer in an effort to resolve the reported non-compliance within 30 days after Defendants' counsel receives written notice.
a. If such efforts fail to achieve a resolution of the issue within 60 days of such "meet and confer," Plaintiffs may bring a motion for enforcement of this Agreement and the Court shall determine a reasonable schedule for the hearing and determination of such motion.
b. In the event of such a motion, Defendants will be considered to be in "compliance" unless Plaintiffs establish that Defendants' failures or omissions to meet the terms of this Agreement were not minimal or isolated but were substantial and sufficiently frequent or widespread to be systemic.
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N. ATTORNEYS' FEES; POST-SETTLEMENT ACTIVITIES
1. Defendants shall pay to Plaintiff Class the sum of $200,000 in full satisfaction of any and all claims in this lawsuit and in Disability Advocates, Inc. v. Paterson, 03 CV 3209 (NGG), for attorneys' fees, costs and disbursements up to and including the date of execution of this Agreement, which fees, costs and disbursements shall be substantiated by back-up documentation including contemporaneous time sheets. In the event that payment ofthis amount is not made within one hundred twenty (120) days after the receipt by defendants' counsel of a copy of this fully executed Agreement, approved by the Court, interest shall accrue on the outstanding balance at the rate set forth in 28 U.S.C. § 1961, beginning on the one hundred and twenty-first day after receipt by defendants' counsel of a copy of this fully executed and so-ordered Agreement. The foregoing payment shall be made payable to Disability Advocates, Inc. and sent to Disability Advocates, Inc. DBA Disability Rights New York, 5 Clinton Square, Albany, NY 12207, or in the event its offices shall relocate to its then current address.
2. During the term of this Agreement it is anticipated that Plaintiff Class will incur certain legal fees, and other costs and disbursements. Plaintiffs, Plaintiff Class and counsel for the Plaintiff Class agree to limit all such attorneys' fees, costs and disbursements to what is directly and reasonably necessary, up to a combined total, which shall not exceed $75,000 per year, calculated on the basis of a 365 day year, beginning on the date of execution of this Agreement and ending on the date this Agreement expires under Section M.2. During the term ofthis Agreement, Counsel for the Plaintiff Class agree to submit vouchers and contemporaneous time records to defendants' counsel on a semi-annual basis for any such attorneys' fees, costs and disbursements and defendants agree to reimburse counsel for the Plaintiff Class within one hundred twenty (120) days of receipt of such vouchers. If payment is delayed beyond one hundred twenty (120) days, defendants will also pay interest at the rate set forth in 28 U.S.C. § 1961, which shall accrue beginning on the one hundred twenty-first day. The foregoing payment(s) shall be made payable to Disability Advocates, Inc. and sent to Disability Advocates, Inc. DBA Disability Rights New York, 5 Clinton Square, Albany, NY 12207, or in the event its offices shall relocate to its then current address.
3. For and in consideration of the payments referred to in paragraph N.1 and N.2 above, the sufficiency of which is hereby acknowledged, Plaintiffs, Plaintiff Class, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Disability Advocates, Inc., New York Lawyers for the Public Interest, Bazelon Center for Mental Health Law, Urban Justice Center and MFY Legal Services, Inc., hereby release and forever discharge the State of New York, OMH, DOH, and all oftheir present and former principals, officers,
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directors, members, employees, agents, attorneys, insurers, subdivisions, subsidiaries, heirs, administrators, and assigns, individually and in their official capacities, from any and all claims for attorneys' fees, costs, and/or disbursements incurred in connection with this action, including but not limited to all pre-litigation activities including negotiations, and all claims for attorneys' fees, costs, fees, and/or disbursements incurred in connection with Disability Advocates, Inc. v. Paterson, 03 CV 3209 (NGG) in the United States District Court for the Eastern District ofNew York, and in this Action.
4. The payment(s) referenced in paragraph N .1 and N.2 of this Agreement are subject to the approval of all appropriate state officials in accordance with N.Y. Public Officers Law§ 17.
0. MISCELLANEOUS
1. In the event that, subsequent to the date of execution of this Agreement, a court of competent jurisdiction issues a temporary restraining order, a preliminary or permanent injunction, or judgment staying the enforcement of, or invalidating, whether in whole or in material part, the Adult Home Regulations (as defined herein), the Parties shall meet and confer in good faith to determine appropriate modifications to this Agreement that would give effect to the original intent of the Parties as expressed herein. The Parties commit to meeting and conferring in good faith at least three times during a period of 120 days after such a court order. If, after the 120-day period, the Parties fail to reach an agreement on appropriate modifications to this Agreement, then this Agreement will become null and void, and the Parties retain all rights to revive any claims or defenses otherwise barred by operation of this Agreement. For purposes of this subsection, the term "Adult Home Regulations" shall refer to any of 18 NYCRR § 487.4(c) or 14 NYCRR §§ 580.6(c)(2) or 582.6(c)(2) as adopted January 16, 2013 (I.D. No. HLT-32-12-00020-A, and I.D. No. OMH-32-12-00019-A). or as thereafter amended. Notwithstanding any ofthe foregoing, the parties may mutually agree to a stay of enforcement of this Agreement, during which it will not be rendered null and void.
2. The Defendants shall use best efforts to seek and secure funding necessary to implement the terms of this Agreement. This Agreement is subject to legislative appropriation of such funding and if such appropriations are not made, the Parties shall retain all rights to revive any claims or defenses otherwise barred by operation of this Agreement.
3. Solely for purposes of this agreement, the Parties agree to entry of an Order certifying the class, defined as NYC Adult Home Residents, as defined in Section C (4). Any costs associated with certification of or notification to such class shall be borne by Plaintiffs. In the event that the
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class is not certified, this Agreement shall remain unaffected as between the Named Plaintiffs, the United States and the State.
4. Nothing contained herein shall be deemed to be an admission by the Defendants that they have in any manner or way violated the Plaintiffs' or any individual Adult Home Resident's rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules or regulations ofthe United States, the State ofNew York, or the City of New York or any other rules, regulations or by-laws of any department or subdivision of the State ofNew York.
5. This Agreement shall not be admissible in, nor is it related to, any other litigation or settlement negotiations, except in an action or proceeding by the Plaintiff to enforce the terms of this Agreement, or in a civil action involving the State and another party in which the validity of the regulations adopted on January 16,2013 (I.D. No. HLT-32-12-00020-A, and I.D. No. OMH-32-12-00019-A), or as thereafter amended, is at issue.
6. Nothing in this Agreement shall be enforced in a manner that would require a fundamental alteration of the State's programs, activities, or services for Persons with Serious Mental Illnesses. Nothing in this paragraph is intended to amend or change in any way the obligations set forth in this Agreement, or prevent appropriate enforcement of this Agreement.
7. This Agreement contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein.
8. All Parties to this Agreement have participated in its drafting; consequently, any ambiguity shall not be construed for or against any party.
9. If any of the dates or periods oftime described in this Agreement fall or end on a public holiday or on a weekend, the date or period of time shall be extended to the next business day.
10. All correspondence concerning this Agreement should be sent to the following (or to such other address as the recipient named below shall specify by notice in writing hereunder):
To Defendants:
Barbara K. Hathaway, Assistant Attorney General
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Office of the Attorney General 120 Broadway 24th floor New York, New York 10271 Tel: 212-416-8560 e-mail: barbara.hathaway@ag.ny.gov
To PlaintiffUnited States:
Chief of the Disability Rights Section U.S. Department of Justice 950 Pennsylvania Ave., NW- NYA Washington, DC 20530 Tel: 202-307-0663
To the Plaintiff Class:
Andrew G. Gordon PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue ofthe Americas New York, NY 10019-6064 Tel: 212-373-3543
-and-
Cliff Zucker DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207 Tel: 518-432-7861
11. This Agreement may not be modified without the express written agreement of counsel for the Parties. Absent such agreement, the Parties may seek a modification of this Agreement only for good cause shown, with the Court's approval, upon thirty (30) days' written notice to counsel for the other Parties.
12. This Agreement may be executed in counterparts, and each counterpart, when executed shall have the full efficacy of a signed original. Photocopies of such signed counterparts may be used in lieu of the originals for any purpose.
13. Signatories
a. The undersigned representative of the Defendants and the Attorney General of the State ofNew York certifies that he or she is
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Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 23 of 31 PageID #: 96 authorized to enter into the terms and conditions of this Agreement and to execute and bind legally such Defendants to this document.
b. Each undersigned representative of Plaintiffs certifies that he or she is authorized to enter into the terms and conditions of the Agreement and to bind legally the Plaintiff to this document.
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ForPlaintiffUNITED STATES OF AMERICA:
Dated: j ~J ~' lo/ 3

LORETTA E. LYNCH United States Attorney Eastern District ofNe Yo

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division

EVEL.HILL Deputy Assistant Attorney General Civil Rights Division

ALISONN. BARK.OFF

.

Special Counsel for Olmstead Enforcement

Civil Rights Division

REBECCA B. BOND, .Chief SHEILA M. FORAN, Special Legal Counsel Disability Rights Section Civil Rights Division
~~
AMANDA MAISELS NICHOLAS C. LEE Trial Attorneys Civil Rights Division U.S. Department of Justice

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Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 25 of 31 PageID #: 98

drewG ord Julie E. Fink Geoffrey Chepiga PAUL, WEISS, RIFKIND, WHARTON & GARRlSON LLP 1285 Avenue of the Americas New York, NY 10019-6064

Cliff Zucker Timothy A. Clune DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207

VeronicaS. Jung Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street, 11th floor New York, NY 10001-4007

Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005

MaraKuns URBAN JUSTICE CENTER 123 William Street, 16th floor New York, NY 10038

Jeanette Zelhof Kevin Cremin Jota Borgmann MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

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Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 26 of 31 PageID #: 99

For the PlaintiffClass:

W /13 Dated:

-.7

Andrew G. Gordon Julie E. Fink Geoffrey Chepiga PAUL, WEISS, RlFK.IND, WHARTON &
GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064

Cliff Zucker Timothy A. Clune DISABILITY ADVOCATES, INC. 5 'Clinton Square, 3rd floor Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street, 11th floor New York, NY 10001-4007

Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005

MaraKuns
URBAN JUSTICE CENTER 123 William Street, 16th floor New York, NY 10038

Jeanette Zelhof Kevin Cremin Jota Borgmann MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

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Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 27 of 31 PageID #: 100

For the Plaintiff Class:

/12- /J Dated: --?

3

Andrew 0. Gordon Julie E. Fink Oeoffi'ey Chepiga PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064

Cliff Zucker Timothy A. Clune DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207

VeronicaS. Jung Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street, 11th floor New York, NY 10001-4007
~~~

Ira A. Burnim Jennifer Mathis
BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005

Jeanette Zelhof Kevin Cremin Jota Borgmann
MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York. NY 10007

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Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 28 of 31 PageID #: 101

For the PtitiffC~:

Dated:

1'2.....- ')-pI~

Andrew G. Gordon Julie E. Fink Geoffrey Chepiga PAUL~ WEISS, RlFKIND, WHARTON & GARRISON LLP 1285 Avenue ofthe Americas . New York, NY 10019-6064
VeronicaS. Jung Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street~ 11th floor New York, NY 10001-4007

Cliff~9~
Timothy A. Cl e DISABILITY VOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207

~·a.~

Ira A. Burnim Jennifer Mathis

~C.,.~
' U

BAZELON CENTER FOR MENTAL

HEALTH LAW

1105 15th Street, N.W., Suite 1212

Washington, DC 20005

MaraKuns URBAN JUSTICE CENTER 123 William Street, 16th floor New York, NY 10038

Jeanette Zelhof Kevin Cremin Jota Borgmann MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

25

Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 29 of 31 PageID #: 102

For the Plaintiff Class:
Dated: 7/;.2.. ,/13
Andrew G. Gordon Julie E. Fink Geoffrey Chepiga PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue ofthe Americas New York, NY 10019-6064

Cliff Zucker Timothy A. Clune DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207

VeronicaS. Jung Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street, 11th floor New York, NY 10001-4007

Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005

MaraKuns URBAN JUSTICE CENTER 123 William Street, 16th floor New York, NY 10038

Jea:QA~~
Ke ·n remin Jota Borgmann MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

25

Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 30 of 31 PageID #: 103
l
I
I

For Defendants STATE OF NEW YORK, ACTING COMMISSIONER KRISTIN M.

WOODLOC~ THE NEW YORK STATE. OFFICE OF MENTAL HEALTH, COMMISSIONER NIRAV R. SHAH, THE NEW YORK STATE DEPARTMENT OF

I

HEALTI:I, and GOVERNOR ANDREW M. CUOMO:

M ~ ~,t/- Dated:

I ~~o I 3 By: .

j( ~

, !
.

.Barbara· . away

.

ERIC T. SCHNEIDERMAN

I·

Attorney General of the State ofNew York 120 Broadway New York, NY 10271

!
I

(212) 416-8560

I

SO ORDERED

r

_ Date_d: -_-_- -_-_ - "_.2N0e1w3 York

I

I··

I

United States District Judge

26

I

j.

) '

Case 1:13-cv-04165-NGG-MDG Document 5 Filed 07/23/13 Page 31 of 31 PageID #: 104
Appendix A: NYC Impacted Adult Homes 1
I. Belle Harbor Manor 2. Brooklyn Adult Care Center 3. Central Assisted Living, LLC 4. Elm York LLC 5. Garden of Eden Home 6. Harbor Terrace Adult Home and Assisted Living 7. Kings Adult Care Center 8. Lakeside Manor Home for Adults, Inc. 9. Mermaid Manor Home for Adults 10. New Gloria's Manor Home for Adults 11. New Haven Manor 12. Oceanview Manor Home for Adults 13. Park Inn Home 14. Parkview Home for Adults 15. Queens Adult Care Center 16. Riverdale Manor Home for Adults 17. Rockaway Manor HFA 18. S.S. Cosmas and Damian Adult Home 19. Sanford Home 20. Seaview Manor, LLC 21. Surf Manor Home for Adults 22. Surfside Manor Home for Adults, LLC 23. Wavecrest Home for Adults
1 This list is based on the New York State Department of Health's Adult Care Facility Annual Census Report.

 
 Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 1 of 74 PageID #: 411

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

__________________________________________

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NEW YORK,

) Civ. Action No. 13-CIV-4165 (NGG)

)

)

Defendant.

)

__________________________________________)

__________________________________________

RAYMOND O’TOOLE, ILONA SPIEGEL, and )

STEVEN FARRELL, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, in his official

)

capacity as Governor of the State of New

)

York, NIRAV R. SHAH, in his official

)

capacity as Commissioner of the New York

)

State Department of Health, KRISTIN M.

)

WOODLOCK, in her official capacity as

)

Acting 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.

)

________________________________________ )

Civ. Action No. 13-CIV-4166 (NGG)

ANNUAL REPORT SUBMITTED BY
CLARENCE J. SUNDRAM INDEPENDENT REVIEWER

 The members of the Independent Review team, Thomas Harmon and Stephen Hirschhorn, contributed substantially in the research and preparation of this report.
1

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 2 of 74 PageID #: 412
Contents Executive Summary ........................................................................................................................ 4 Introduction..................................................................................................................................... 6 Methodology ................................................................................................................................... 7 Findings......................................................................................................................................... 11
a. Preparatory actions  ....................................................................................................... 11 b. In-reach.............................................................................................................................. 15 c. Assessment ......................................................................................................................... 19
1. Delays in completing assessments ................................................................................. 21 2. Cases in Limbo .............................................................................................................. 24 3. Declinations of Assessment or Transition...................................................................... 27 4. Referrals to other types of community housing ............................................................. 32 5. Training for Nurse Assessors ......................................................................................... 33 6. Linguistic competence.................................................................................................... 35 7. Access to current, comprehensive psychiatric evaluations ............................................ 35 8. Disenrollment from MLTCPs ........................................................................................ 37 d. HRA review process ........................................................................................................... 39 e. Person-Centered Care Planning Process .......................................................................... 44 1. Delays in arranging necessary services .......................................................................... 47 2. Need for a Person-Centered Care Plan template ............................................................ 50 3. Absence of care plans..................................................................................................... 51 4. Changing care managers and high caseloads ................................................................. 52 5. Poor Communication between care managers and class members ................................ 53
2

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 3 of 74 PageID #: 413 f. Community Placements...................................................................................................... 53 1. Changing their minds at the point of transition.............................................................. 54 2. Choice of housing ......................................................................................................... 57
Conclusion .................................................................................................................................... 65 Recommendations......................................................................................................................... 67 List of Acronyms/Abbreviations................................................................................................... 73 Appendix A Discharge Planning Tool .......................................................................................... 74
3

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 4 of 74 PageID #: 414

Executive Summary
Fig. 1. Overview of Implementation Activities July 23, 2013-March 13, 20151

4500

4197

4000

3500 3000

2838

2500

2000 1500 1000

1256

599

758 511

500

0

Class Total # in Bklyn Fast Track Had In-

& Queens

Reach

Said Yes

UAS-NY Final

401
AHRAR Final

276

248

165

40

Ref. to

HRA Care Plan Moved

HRA Approved Sched

1 The data in this report are largely drawn from the Defendants’ weekly reports up to Week 52, the most recent available at the time of drafting the report.
4

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 5 of 74 PageID #: 415
In the quarterly report filed with the Court on January 16, 2015, the Defendants expressed the opinion that the five-year goal of the Settlement Agreement to transition all qualified and interested class members to the community “is attainable.” (The State’s Third Quarterly Report, p. 5) In order for that to happen, the pace of implementation will have to increase dramatically and be sustained for the remainder of the five-year period.
Out of the 4,197 class members identified as of March 13, 2015, 1,256 have received inreach by a Housing Contractor, and 758 (60.35%) of those class members have expressed an interest in moving to supported housing. Assuming that the rate of interest remains at this level for the total class over the duration of the Settlement Agreement,2 2,533 class members will have to be assessed and moved. As of March 13, 2015, 40 have been moved over the first six and-ahalf quarters that the Settlement Agreement has been in effect.3 This leaves 2,493 class members to be assessed and moved in the remaining 13.5 quarters.4 In the 90 day period ending March 13, 2015, 30 class members were moved. In the remaining 13.5 quarters, the rate of movement will need to average 185 per quarter or six times the rate achieved in the most recent three month period.
Although the State has been closely monitoring the implementation process, and implementing changes and refinements as obstacles have been encountered and identified, the magnitude of the task ahead is obviously substantial. Thus far, the modest tweaks to the existing processes for implementation have not achieved the quantum leap in performance that will be required to attain the goals of the Settlement Agreement.
2 There is good reason to expect that as class members see other residents move out of the adult home and settle successfully in the community, the rate of interest in moving out will increase substantially, especially if the recommendations offered in this report regarding in-reach and care planning are implemented. (See Report, pp 6771) 3 The State notes that the Settlement Agreement did not come into effect until the Court’s final approval was ordered on March 17, 2014, and that in-reach efforts began on the same day, and assessments on April 3, 2014. The timelines in the Settlement Agreement, however, are measured from the date of its execution on July 23, 2013. 4 The State expects that the number probably will be less than 2,493, given that the initiative has thus far focused heavily on class members with a high level of interest in moving, and yet many of them have changed their minds during the process.
5

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 6 of 74 PageID #: 416
Introduction
Paragraph 13 of the Settlement Agreement requires the Independent Reviewer to provide five written annual reports to the parties and the Court regarding the State’s compliance. Paragraph 14 of Section L of the Settlement Agreement in this matter provides:
A draft of the Reviewer’s report shall be provided to the Parties for comment each year within 30 days after the anniversary date of the Court’s approval of this Agreement. The parties shall have 30 days after receipt of such draft report to provide comments to the Reviewer, on notice to each other, and the Reviewer shall issue to the Parties a final annual report within 15 days after receiving such comments; provided, however, that the parties may agree to extend such deadlines.
The Court’s final approval of the Settlement Agreement was filed on March 17, 2014. Based on that date, the Independent Reviewer prepared and submitted to the parties a schedule for the preparation of the required five annual reports. For the first year, the schedule requires that the Independent Reviewer’s draft be provided to the parties by February 13, 2015, with their comments due by March 17, 2015, and the Final report submitted by April 1, 2015.
A draft of this report was provided to the parties on February 13, 2015. Subsequently, on February 24, 2015 and March 2, 2015, the Independent Reviewer submitted supplementary memos to the parties regarding the report. Comments were received from the parties orally and in writing by March 17, 2015. In addition, a parties’ meeting was held on March 25, 2015 to discuss the report and its recommendations in anticipation of the status conference. The Independent Reviewer has carefully considered all the comments received from the parties in the preparation of this report and has made such changes as appeared to be warranted.
The Settlement Agreement also requires the Independent Reviewer to develop a "written plan with regard to the methodology to be used by the Reviewer to assess compliance with an implementation of the Agreement." (Settlement Agreement, ¶ L. [10] hereinafter "Monitoring Plan”) Although the Settlement Agreement provides that the annual report “shall detail with as much specificity as possible how the State is or is not in compliance with particular provisions of the Agreement” (¶ L [14]), in the Monitoring Plan submitted to the parties shortly after the Court’s final approval of the Settlement Agreement, the Reviewer recognized that most of the specific compliance measures in the Agreement would not be relevant until the later years in the implementation process. Therefore, the Independent Reviewer advised the parties that in the initial year, the Reviewer would focus on monitoring the development of the building blocks that are necessary for successful implementation of the Settlement Agreement. Many of these activities described in the Monitoring Plan are not specifically required by the Settlement Agreement nor are they compliance measures themselves. The purpose in performing these activities is not to conclude that the State is or is not in compliance with the Settlement Agreement at this time, but to examine what is helping or hindering implementation of the
6

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 7 of 74 PageID #: 417
Agreement, consistent with the directive in the Agreement to “pursue a problem-solving approach.” (¶ L [7])
Methodology
The Settlement Agreement identified some of the potential monitoring methods, e.g., visiting individuals’ residences with their consent and conducting interviews. (Settlement Agreement, ¶ L. [10]) The Settlement Agreement also required the State, in consultation with the Independent Reviewer, to develop a work plan to guide its implementation of the Agreement within 120 days after the Reviewer is engaged by the State.
Although the Independent Reviewer and his associates (Thomas Harmon and Stephen Hirschhorn) began monitoring activities shortly after their appointment, it made sense to defer the development of the written plan required by the Settlement Agreement until the State’s development of its work plan to guide its implementation of the Settlement Agreement.
As required, the State finalized its work plan on February 7, 2014 after consulting with and receiving written comments from the Independent Reviewer. To achieve its goal of offering nearly 4,200 class members in 23 Adult Homes an informed choice and opportunity to transition to integrated supported or other housing appropriate to their needs within five years, the State’s work plan outlined phases and major tasks that must be accomplished, and identified goals and targets with the intention of adjusting targets and modifying the plan in light of experience gained through the implementation process. Among the critical components of the State’s work plan were:
 identification of residents who will be offered in-reach, assessment and the opportunity to transition;
 education of residents through in-reach;  enrollment and assessment of residents by Health Homes (HH) and/or Managed Long
Term Care Plans (MLTCP) resulting in the development of a person-centered plan of care;  development of supported housing units by Housing Contractors;  training to educate Health Home and MLTCP personnel (assessors and care managers) and Housing Contractors in the goals and skills necessary to properly perform their roles in the Agreement; and  transition to Supported Apartments or other community housing as appropriate and preferred by the resident; and  monitoring and quality control.
The Independent Reviewer’s Monitoring Plan called for:
 Reviewing training materials and strategies for the front-line workers who will be performing tasks such as in-reach, assessment, person-centered planning and care 7

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 8 of 74 PageID #: 418
coordination; participating in and observing such training; and speaking with the staff who have received the training;  Reviewing and evaluating informational materials and data regarding in-reach activities to the class members;  Evaluating assessment tools, reporting mechanisms and formats, and data base structures;  Reviewing and evaluating data regarding the enrollment of class members in Health Homes and MLTCPs;  Visiting mental health programs serving class members and interviewing staff and adult home residents regarding their understanding of the Settlement Agreement to assess the effectiveness of information and outreach that has been provided; and  Visiting adult homes to interview staff and residents for the same purpose.
As the State’s implementation entered and progressed through the various stages of in-reach, assessment, care planning and management, and transition, the Independent Reviewer’s plan also called for the monitoring of these processes through direct observation, record reviews and interviews with individuals and staff on a sample basis. It also called for reviewing and analyzing reports by the State and its contractors concerning these activities and the development of supported housing beds.
Finally, the Independent Reviewer’s Monitoring Plan called for the Reviewer to provide the parties with regular reports of findings and observations as well as recommendations to facilitate the successful implementation of the Settlement Agreement. In addition to formal communications, such reports would be made in writing or at periodic meetings with the State and Plaintiffs with the goal of providing the parties information as early as possible to enable them to act as warranted to achieve the shared objective: successful implementation of the Settlement Agreement.
Among the specific monitoring activities carried out by the Independent Reviewer and his associates during the past year or so which inform the content of this annual report were:
1. Participated in and observed at least 20 training sessions sponsored by the State for Housing Contractors, Health Homes and MLTCPs. These educational sessions focused on the goals of the Settlement Agreement and the skills these frontline staff required in conducting in-reach, assessment, care planning and care management. Also participated in State sponsored training for mental health providers designed to acquaint them with the Agreement.
2. Reviewed materials prepared for in-reach to class members to educate them about their options and opportunities including MOVING TO SUPPORTED HOUSING: A User’s Guide for Adult Home Residents created by the Adult Home Research Group at the Nathan Kline Institute of the Office of Mental Health.
3. Reviewed the database structures developed by the State Department of Health (DOH) and the Office of Mental Health (OMH) to capture and record data, and made
8

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 9 of 74 PageID #: 419
recommendations regarding the same.
4. Reviewed the tools and guidelines developed for assessing class members and developing care plans.
5. Participated in regularly scheduled State-sponsored meetings of all six Housing Contractors responsible for in-reach, supported housing bed development, transition of residents and their housing/case management following transition.
6. Met with New York City Human Resources Administration (HRA) and the Center for Urban Community Services (CUCS) both of which have a role in the implementation process, with HRA reviewing and approving applications for community housing and CUCS serving as a gateway for entry into housing for individuals who are not recommended for supported housing but require other Office of Mental Health licensed programs.
7. Met with administrators and staff of nine adult homes to discuss their understanding of and experiences with the Settlement Agreement implementation process.
8. Met with managers and staff of mental health programs serving class members to discuss their understanding of the Settlement Agreement and the capabilities and needs of class members.
9. Met with representatives of the Coalition of Institutionalized Aged and Disabled (CIAD) which provides advocacy services on behalf of adult home residents and is active in homes covered by the Settlement Agreement.
10. Met with more than 600 adult home residents at their adult homes, in their mental health programs or in other venues to learn more about their understanding of the Settlement Agreement and the transition process, their desires and to answer questions, or relay their questions to the appropriate parties.
11. Observed, by participating in, more than 120 individual in-reach, assessment and transition/care planning sessions with class members and their Housing Contractors and HH/MLTCP assessor and care management staff.
12. Additionally, participated in more than 40 pre-transition conference calls in which Housing Contractors, HH/MLTCP staff and DOH and OMH representatives confer to ensure that all elements of a successful transition (housing, utilities, community supports, entitlements/benefits, etc.) are in place for an individual. Such calls usually happen about three weeks before an individual moves. In addition, as the State has started posttransitions calls to check up on implementation of the plan, members of the Independent Reviewer team have been participating in these calls.
9

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 10 of 74 PageID #: 420
13. With their permission, made 16 visits to the apartments of individuals who had transitioned to observe their new environs and to hear their perspectives on their transition, their new living arrangements, the adequacy of services/supports, and matters that might be improved.
14. Reviewed the records of 21 individuals and spoke with 14 individuals who had said they were interested in supported housing during in-reach but subsequently declined to be assessed or to transition, to better understand why they changed their minds.
15. Conducted a more in-depth review of a sample of 11 cases of class members who appeared to be encountering difficulties in the transition process, such as being found questionable or unsuitable for supported housing. This included interviews with their clinicians and assessors/care managers and reviews of key documents including in-reach records, UAS-NY nursing assessments, comprehensive psychiatric evaluations, other clinical records and HRA applications and determinations. Eight of these class members were also interviewed.
16. In the process of observing and participating in individual in-reach, assessment and transition/care planning sessions, spoke with staff of all six Housing Contractors and 12 HH/MLTCPs and/or their downstream providers, inviting their input on the adequacy of their preparation for their roles and feedback on how well the process is progressing, barriers encountered and what could be improved.
17. Reviewed case-specific data reported weekly by the State on implementation activities as individuals pass through the in-reach, assessment, care-planning, HRA approval and transition phases as well as quarterly progress reports and other reports prepared by the State on the status of the Settlement Agreement’s implementation.
18. Maintained almost weekly contact through telephone calls and emails with DOH and OMH staff responsible for Settlement Agreement implementation and had face-to-face meetings with such staff on nearly a monthly basis to share the Reviewer’s observations and to discuss progress, developments and changes in the implementation process.
19. Issued four progress reports to the parties on the Independent Reviewer’s activities, findings and recommendations where warranted and participated in seven all parties' meetings to discuss the status of implementation and the Reviewers’ observations. In addition, maintained regular contact with attorneys for the Plaintiffs and the USDOJ through email and periodic telephone conferences.
20. Participated in three status conferences and hearings convened by the Court.
21. Met with researchers from the Nathan Kline Institute who have been conducting research on adult home residents’ community transition and working on the development of a
10

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 11 of 74 PageID #: 421
handbook for adult home residents on the Settlement Agreement and the transition process.
Throughout the monitoring process, the Independent Reviewer and his team have had the cooperation of the staff from the Department of Health and the Office of Mental Health. They have been generally responsive to requests for information that has been needed to perform our monitoring functions, and have intervened when requested to address issues of access to adult homes and mental health programs. The Independent Reviewer would especially like to acknowledge the assistance provided by Valerie Deetz, Director of the Divisions of Assisted Living & Community Transitions Program in the New York State Department of Health, and Rebecca Briney, Director of Special Projects of the New York State Office of Mental Health. They, as well as their respective staff members, have been of immense help to the Independent Reviewer team. The staff of the Housing Contractors, and many Health Homes and MLTCPs have also been cooperative with the Independent Reviewer and generous with their time.
Nevertheless, due to concerns expressed about the confidentiality of records, the Independent Reviewer has experienced difficulty in obtaining access to plans of care for class members and information about the processing of complaints from adult home residents by the New York Justice Center for the Protection of Persons with Special Needs. These concerns have limited the Independent Reviewer’s ability to fully perform the monitoring functions. Similar concerns have been raised by the NYC Human Resources Administration which processes applications for approval of recommendations for community housing of class members. As this report is being drafted, the Independent Reviewer is working with the parties to draft a supplementary court order to resolve these access issues.
Findings
a. Preparatory actions 
The Settlement Agreement recognized that many preparatory steps would need to be taken for implementation of its provisions. These included:
1. The identification of all class members, which has been an on-going process.
2. The enrollment of class members in Health Homes or MLTCPs, or both. The State’s work plan stated that 1,817 class members were already enrolled (p. 5) and that further enrollments were anticipated at the time of the assessments of individual class members. As of the December 31, 2014, the state reported a total of 1,821 class members enrolled in Health Homes or MLTCPs (1,190 Health Home enrollees, 1,228 MLTCPs enrollees and 597 dually enrolled in both programs).
3. Entering into contracts for the development of supported housing units to enable class members to transition to the community. It recognized that, pursuant to a Request for Proposals issued on August 10, 2012, OMH had entered into contracts to fund the 11

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 12 of 74 PageID #: 422
development of 1,050 supported housing units in Kings and Queens counties over a three year period and will enter into additional similar arrangements as necessary, including the issuance of one or more RFPs for the development and operation of supported housing units in Staten Island and the Bronx within two years of the execution of the Settlement Agreement. (Settlement Agreement, ¶ D (1) (2)). In the initial phase, contracts were awarded in February and March 2013 for 350 supported housing units to six Housing Contractors, and on January 28, 2015, the State issued an RFP for 900 additional supported housing units in Staten Island and the Bronx with a target date for contracts with the successful bidders of April 1, 2015. As will be discussed later in this report, as of March 13, 2015, 29 of these supported housing units have been occupied by 40 class members. 4. The development of training materials and the provision of guidance and training through webinars, computer–based instruction, and in-person training sessions to Housing Contractors, Health Homes and MLTCPs regarding the in-reach, assessment of class members and the development of person-centered care plans, including the presumption that class members can live in supported housing with appropriate supports. (Settlement Agreement, ¶ F) The process for implementation of the Settlement Agreement has multiple steps and required actions by the two state agencies primarily responsible for its management – the Department of Health (DOH) and the Office of Mental Health (OMH), as well as Housing Contractors, and Health Homes and MLTCPs, many of which have relationships with “downstream providers” with which they contract for the performance of class members’ assessments, and other providers which deliver medical, mental health and support services.5 The graphic developed by the DOH and used in training for Health Homes and MLTCPs depicts the process.
5 In addition to the six housing contractors, there are six Health Homes which directly and/or through 13 “downstream providers” provide care management. It should be noted that some of these downstream providers work for more than one Health Home and some are even part of Housing Contractor agencies, like FOO, FEGS and JBFCS. There are 25 MLTCPs and seven managed care plans also involved in providing care management to class members. Some class members are enrolled in both Health Homes and MLTCPs.
12

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 13 of 74 PageID #: 423
Fig. 2. Decision Tree 13

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 14 of 74 PageID #: 424 An overview of the major implementation activities conducted over the report period is depicted below.

Pre SA

Q1 (7/23/139/30/13

Q2 (10/1/1312/31/13)

Q3 (1/1/143/31/14)

Q4 (4/1/20146/30/14)

Q5 (7/1/149/30/14)

Q6 (10/1/1412/31/14)

Q7 (1/1/153/13/15)

•Develop suported

•SA executed on July 23, •Send list of adult home •Fairness Hearing held •In-Reach continues at

housing RFP and enter 2013

residents to SSA to

(1/9/14) and Final

Pilot Adult Homes

into contracts with

•Develop Roster of Adult identify class members Court Approval of SA

Housing Contractors for Home Residents

•Create AHRAR format (3/17/14)

bed devlopment

Statistical Report

•Create database of NYC •Develop state's Work

•Selection of UAS-NY for Impacted Adult Home Plan for

use by HH /MLTCPs

Residents

implementation of the

•Enter into contract with Settlement Agreement

Independent Reviewer •Ensure that HH and

•Issued directive

MLTC complete HRA

regarding cooperation application training

with Independent

•On Going training for

Reviewer

frontline staff

•336 residents receive in-reach
•Assessments begun
•123 UAS-NY assessments finalized
•4 applications submitted to HRA
•3 applications for supported housing approved by HRA

•Develop streamlined •Coordinate enrollment

HRA housing

of adult home residents

application

in HH/MLTC for

•Develop training materials for UAS-NY, AHRAR, PCP etc.

assessment for supported housing, as appropriate

•Provide training for HH/MLTC/HC staff, care

•Finalize CAIRS and AHRAR formats

coordinators and

•In-reach begins at Pilot

assessors

Adult Homes

•Develop and issue DAL •57 residents receive in-

to AH operators

reach

regarding the SA

•Develop and Issue

letter of authorization

for IR and staff

•In-reach expanded to •162 residents receive

all 17 impaced adult

in-reach

homes in Brooklyn & •115 UAS-NY

Queens

assessments finalized

•591 residents receive •123 applications

in-reach

submitted to HRA

•205 UAS-NY

•121 application s

assessments finalized approved by HRA

•83 applications submitted to HRA

•11 residents transitioned to

•58 Applications

supported housing

approved by HRA

•First 3 residents

transition to supported

housing

•Issue RFP for SH beds inthe Bronx and Staten Island
•173 residents receive in-reach
•68 UAS-NY assessments finalized
•66 applications submitted to HRA
•67 application s approved by HRA
•26 residents transitioned to supported housing

Fig. 3. Timeline of Implementation Activities

14

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 15 of 74 PageID #: 425
b. In-reach. The Settlement Agreement requires the State to arrange for the entities that provide
supported housing to conduct in-reach in the NYC Impacted Adult Homes on a regular and continuing basis to provide information about the benefits of supported housing and discuss any concerns that class members may have about moving to supported housing. (Settlement Agreement, ¶ E. 1) It also identifies some strategies for effective in-reach, including conversations with persons who already live in supported housing, visits to apartments, and the use of photographs and virtual tours. There are also provisions requiring adult homes to provide reasonable access of Housing Contractors to class members, and requiring that they not discourage class members from meeting with the Housing Contractors. (Id. ¶ E. (3) (4))
The State’s work plan target was to complete in-reach for 558 residents of the Stage I homes and 1,000 class members in the first year. As of March 13, 2015, the State reported that there had been at least one in-reach contact with 1,256 class members in 17 impacted adult homes. For the first three months of the first year, the in-reach efforts were limited to three Stage I pilot homes assigned to one Housing Contractor, to test the process and identify and address any issues that surfaced before extending the effort to the remaining adult homes.
Fig. 4. Class members receiving In-Reach While this is an understandable strategy, the Independent Reviewer had recommended a different approach to in-reach, by extending the initial effort to all class members who had expressed an interest in supported housing, regardless of the adult home in which they resided, recognizing that there were likely many class members who had been waiting for a long time to move to the community and did not require substantial in-reach or education about supported housing.
15

Case 1:13-cv-04165-NGG-MDG Document 36 Filed 03/30/15 Page 16 of 74 PageID #: 426
The Independent Reviewer identified several benefits both to the class members and to the implementers in pursuing this strategy. First, it would be responsive to the class members’ expressed desires to live in supported housing. Second, it was likely to provide early momentum for this initiative and some concrete outcomes in the first year. This is particularly the case given the substantial educational effort that seemed to be necessary for the feasibility of supported housing to be more broadly embraced, especially among mental health program staff that provides services to class members. Third, it was likely to engage a broader range of supported housing providers, Health Homes and MLTCPs in implementation of this Settlement Agreement. There are many parties who had essentially been waiting on the sidelines for this initiative to start since the supported housing contracts were first let out in February and March 2013, and this would jumpstart the implementation process beyond the initial three homes. Perhaps most importantly, the Independent Reviewer believed that adult home residents are most likely to learn about the potential of the option of supported housing as they see people whom they know making this transition. This would be an important educational tool to supplement the in-reach activities required under the Settlement Agreement. 
The State adopted a modified version of this recommendation by initiating a “fast track” process within the three pilot homes for class members who had previously expressed an interest in supported housing.
During observations by the Independent Reviewer Team of the in-reach process, several recommendations were made to the Defendants. These included requiring the in-reach workers to use a script or checklist to make sure that they covered all essential information about the Settlement Agreement, about the choices available to the class member, about the services available in supported housing, and about the financial implications of the decision. We also recommended the use of brochures and the handing out of business cards so that class members would have a ready resource to access as questions arose subsequent to the in-reach meeting. We also noted that in some of the adult homes there was inadequate privacy for the discussion with class members, and recommended that the adult homes be requested to provide a private space for in-reach workers to meet with class members. The Independent Reviewer also recommended that the in-reach workers consider holding group meetings with adult home residents to explain the Settlement Agreement and the choices available to them, followed by individual sessions. Each of these recommendations was implemented by the state and by the Housing Contractors.
On July 1, 2014, authorization for in-reach was extended to 14 additional adult homes in Brooklyn and Queens by the remaining five Housing Contractors, although the actual in-reach activity did not commence immediately. Initially, in-reach was limited to adult home residents on a Fast-Track List (FTL), who had previously indicated an interest in supported housing by serving as a named plaintiff, speaking at the fairness hearing, writing a letter to the Court, or otherwise making an affirmative effort to seek supported housing. In these 14 homes with 2,452 class members, there were 415 (16.92%) residents on the FTL. Due to concerns about the capacity to complete assessments reasonably soon after the in-reach (which is discussed in greater detail in the following section of the report), the pace of in-reach to these additional homes was later restricted to no more than 10 residents per home per month who consented to
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assessment for supported housing. However, in actuality the pace of in-reach was substantially less than that. While the restricted pace would have permitted 140 new in-reaches and referrals for assessment per month at the 14 additional adult homes, for most months there were less than half that number of new cases in in-reach.
Fig. 5. Number of class members in-reached by quarter The effect of these decisions has been to slow the pace of the work that needs to be done. While the concern to avoid exacerbating the assessment bottleneck is understandable, the strategy of deliberately slowing down in-reach has had the effect of postponing this task to a later time when the Housing Contractor staff also will be busy with the heavy workload of transitioning residents who have been approved for supported housing. The allocation of work responsibilities is such that the Housing Contractors have workloads at the front-end of the process (in-reach) and the back-end after assessments are completed and HRA approval is obtained (conducting intake interviews with residents approved for supported housing, arranging visits to prospective apartments, locating apartments, furnishing them, working out landlordtenant issues, utilities, and facilitating movement to supported housing). Keeping Housing Contractors idle during the assessment phase which occurs in the middle simply puts off work that could be done to a later, busier time.
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Fig. 6. Class members expressing initial interest in supported housing Forty percent of the class members receiving in-reach did not express interest in supported housing. Under the terms of the Settlement Agreement, they will have at least an annual opportunity to receive additional in-reach to discuss their option to move to supported housing or another less restrictive community living arrangement. The Independent Reviewer anticipates that the rate of positive response at in-reach will increase substantially as adult home residents have greater opportunities to learn about the successful transition to supported housing of people they know, and as the recommendations made in this report regarding the method of in-reach and care planning are implemented. In a number of cases, residents came to the meeting with the in-reach staff and quickly announced that they were not interested in moving or discussing their options any further. During some observations, the residents immediately said they did not want supported housing. In one case, the worker probed for the reasons, and discovered that the resident had a job in the deli, a roommate he gets along with and is happy. She thought he had a well-reasoned decision for now. There are indications that some residents have been discouraged by other residents from exploring their options to leave the adult home. The Independent Reviewer has had reports that at one adult home the president and vice president of the resident council have been actively discouraging residents from moving by fanning their fears of being "stuck" in housing they don't like, and being unable to return to the adult home once they leave. There have also been reports that adult home staff has been contacting family members to raise concerns about the prospect of their relatives leaving the adult home. The Independent Reviewer heard the outcome of one such contact when a resident loudly refused to meet with the in-reach staff, and proclaimed "My mother said it's not for me and I'll never amount to anything."
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As will be discussed later in this report, approximately 15% of those who initially expressed interest in supported housing changed their minds either during the assessment process or subsequently. c. Assessment
Consistent with the provisions of the Settlement Agreement, each class member must undergo a comprehensive assessment conducted by a registered nurse from a Health Home or MLTCP to determine the person’s housing and service needs and preferences for the purpose of transitioning from an adult home. (Settlement Agreement, ¶ F (1) (2)) There is a presumption in the Settlement Agreement that class members can live in, and will be considered appropriate for supported housing if desired by the resident, unless the assessment discloses a disqualifying condition. (Id. (4) (5)) If the assessment concludes that a class member is not appropriate for supported housing, it must specify the reason and the class member must be provided the opportunity to live in the most integrated setting desired that is appropriate to his or her needs. (Id. (7))
The assessment phase of the transition process consists of three components: a face-toface assessment of the individual by a registered nurse who completes the mandated report: UAS-NY; securing and reviewing a comprehensive psychiatric evaluation conducted by the individual’s psychiatrist within the past six months; and formulating recommendations for housing and community services, based on the UAS-NY assessment and the current comprehensive psychiatric evaluation, which are recorded on an Adult Home Resident Assessment Report (AHRAR). Beginning in August 2014, all three documents are forwarded by the assessing entity to DOH for review. Upon DOH’s approval, a final AHRAR is prepared by the assessing entity and distributed to DOH, the Housing Contractor, the Care Manager and other appropriate parties. The final AHRAR, UAS-NY and psychiatric evaluation are forwarded to the HRA along with an HRA application by the assessing entity, thus beginning the HRA review phase of the transition process.6
In the training provided by DOH in December 2013 for Health Homes/MLTCPs, the assessment and care planning process was depicted in the graphic below:
6 For the purpose of reporting data in this report on timeframes for the assessment phase, two points in time are utilized: the date that the UAS-NY is completed by the nurse assessor and the date the final AHRAR is distributed to appropriate parties.
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Fig. 7. Flow Chart The Settlement Agreement sets forth a schedule that within four years of its execution (July 23, 2013), at least 2,500 class members shall be assessed by Health Homes or MLTCPs and, if appropriate under a person-centered care plan developed pursuant to ¶ G, transitioned from NYC Impacted Adult Homes. And within five years of the execution, all class members shall be assessed by Health Homes or MLTCPs pursuant to ¶ F and, if appropriate under a person-centered care plan, transitioned from NYC Impacted Adult Homes. (Settlement Agreement, ¶ I) Although the state’s work plan had anticipated starting assessments in mid-February 2014, and completing them within 15 business days of receipt of the in-reach forms submitted by the Housing Contractors, this expectation ran into numerous unanticipated difficulties. The State’s work plan anticipated conducting a quality assurance review of 10% of the assessments for the first six months, but due to the issues the DOH encountered in the course of their review of the Adult Home Resident Assessment Reports (AHRAR) which summarize the results of the assessment conducted by a registered nurse, this plan was altered to review 100% of the AHRARs, and later, at the recommendation of the Independent Reviewer, extended to review additional supporting documentation underlying the AHRAR. The initial goal of completing 558
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assessments within 180 days and 750 within the first year (30% of the four-year requirement of 2,500) was not met. As of 3/13/15, 401 final AHRARs were submitted to DOH, which require the completion of the UAS-NY Assessment as well as submission of a recent psychiatric evaluation. This is 53% of the 758 cases of people who said yes to supported housing at in-reach and were referred to HH/MLTCPs for assessment.
Fig. 8. Class members assessed, by quarter 1. Delays in completing assessments There are many circumstances that slow down the assessment process including
difficulties in assembling all of the documents necessary, such as obtaining a current psychiatric evaluation including an adequate psychosocial history; incomplete UAS-NY or AHRAR reports submitted by the assessors and repeated re-submissions of these reports to DOH for approval; and the ambivalence of some class members about the decision to seek supported housing.
As Fig. 8 indicates, the pace of scheduling of assessments has slowed significantly. Robin G.,7 a 55 year old woman, expressed an interest in moving after hearing a presentation about the Settlement Agreement from a member of the Independent Reviewer team at her PROS program in March 2014. She wanted to spend more time with her daughter and was placed on the Fast Track List, leading to her inreach visit on 4/1/14 and UAS Assessment shortly thereafter on 4/9/14. An assessor from her Health Home submitted six AHRARs between 4/9/14 and 11/5/14, when it was finally approved by DOH. The earlier AHRARs were rejected for a variety of reasons: The UAS assessment done in April did not contain the needed comments on Sections D, E, and F in the Mental Health
7 All the names of class members in this report are pseudonyms. A Reference Table with the correct names has been provided to the parties.
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Supplement, to address any possible histories of substance abuse; fire-setting; and domestic violence. Her comprehensive Psychiatric Evaluation was submitted on 8/5/14, but required more detailed history, which was received on10/20/14. Her HRA application was submitted and approved on 11/17/14. Her full package was sent to the Housing Contractor on 12/3/14 and six days later she was interviewed. The Housing Contractor began the search for a two-bedroom apartment for her as well as a compatible roommate.
When the Independent Reviewer team member met Robin again at the adult home on 1/13/15, she said that she had seen a sample apartment and liked it, and “was willing to live anywhere they found for her.” When asked about the length of time the process had taken she said it had “not taken too long.” She said she had been in the home for five years and “it was time to move on” but she was not anxious to move. She said that her Care Manager at the Health Home had kept her informed of the process once a month and she was fine with that. She looked forward to having her independence and would go grocery shopping and cook her favorite meatballs and spaghetti. She had cut her PROS visits to once a week, but said after she moved out she would go back to five days a week. Although the process had taken a long time, Robin took it all in stride and to her it “didn’t seem long at all.” Robin and a friend of hers from the adult home subsequently saw a two-bedroom apartment they liked and moved in on 3/23/15. In all, it took a little less than one year from the date of in-reach to the date of her planned move to supported housing.
***
Carl P., a 52 y/o African American male, has been at an adult home for15 years. He appears to have been put on the Fast Track by a mental health program on site at the adult home, which also provides psychiatric coverage. He was assessed on 8/22/14. He attends a PROS program three days a week. His short term and long-term memory were impaired and he was a poor historian. He was very interested in moving out as he felt that the other residents gave him a hard time at the adult home and he wanted to live with another adult home resident, but had not asked him yet. He denied active psychiatric symptoms, or being hospitalized “recently,” but again it was unclear from what was presented or reviewed by the assessor. Carl wanted to attend program every day when he moved out, so he wouldn’t be home without anything to do. He was not concerned about cooking, budgeting or taking his meds, although he had no history of managing these tasks. He did attend the cooking class at the adult home, but only went once a month. An initial AHRAR had been submitted to DOH on 9/3/14 but as of 3/13/15, more than six months later, a final AHRAR had not been approved due to an incomplete psychiatric evaluation, and a psychosocial evaluation was being requested to supplement this information.
***
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Arlene F., 59, & Joan M, 61, who were roommates at an adult home, heard about the Settlement Agreement at a PROS program in March 2014 and asked to be on the Fast Track list as they were eager to move and share an apartment. They had lived in community housing with ICL together before admission to the adult home four years ago.
Arlene had received in-reach on 3/31/14; was assessed by a RN assessor on 4/17/14. There had been multiple AHRAR’s submitted and psychiatric evaluations due to lack of adequate history. An addendum to the psychiatric evaluation was accepted more than six months later on 10/30/14, and the HRA application was submitted and approved on 11/17/14. The Housing Contractor interviewed her on 11/28/14. Similarly, Joan had received in-reach on 3/27/14; and was assessed on 4/11/14. The first of many AHRARs was submitted on 5/29/14 and another on 6/27/14, which DOH approved on 7/11/14. On 9/12/14, the Health Home informed DOH that the delay in proceeding with the application was because its downstream provider, Services for the Underserved (SUS), had not received the HRA training to complete it. Subsequent AHRARs were submitted to DOH on 9/25/14, 10/30/14, and 11/5/14, before it was finalized and submitted to HRA on 11/13/14. On 11/14/14 the application was found to be Unable to Complete (UTC) due to an incomplete Comprehensive Psychiatric Evaluation and it was noted that “the assessment of 9/4/14 is missing all even numbered pages.” The application was resubmitted and approved for Supported Housing on 11/18/14, seven months after the date that she was assessed. The Housing Contractor interviewed her on 12/9/14.
They approved of a two-bedroom apartment and were slated to move in on 1/22/15. A 21 day Transitional Call for Joan was cancelled on 1/9/15 because she had been admitted to the hospital for pneumonia, and later developed sepsis and was in the ICU. Arlene had informed JBFCS that she would not move alone at this time and they agreed to hold the apartment until the situation was clarified. JBFCS was concerned that if Joan did not make it, Arlene would not take it well and become very depressed.
When the Independent Reviewer team member met with Arlene on 1/12/15, in speaking of the process that has delayed the move this many months she said, “some of the paperwork got messed up” and “the nurses didn’t know how to resolve the problems.” She said she was frustrated with the wait, and while she “didn’t give up” she “started to doubt it.” She mentioned getting negative feedback from other clients at the adult home who would tell her “it was never ‘gonna’ happen.” She did say that she was kept apprised of the progress by regular contact with her care manager, and sometimes from the Housing Contractor. She said that her care plan called for Meals on Wheels until her Food Stamps kicked in, but most other things, like cooking, cleaning, budgeting and
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shopping she could do by herself. She said she might miss some of the friends here, but little else.
She said she had visited Joan in the hospital and had no intention of moving until Joan was better. Joan subsequently passed away on 1/18/15. Although Arlene initially wanted to put off her plans to move, she viewed another apartment with her friend Robin from the adult home, and they moved on 3/23/15. In all, it took almost one year from the date of in reach to the point of her transition to Supported Housing.
2. Cases in Limbo
As of 3/13/15, a UAS Assessment has been finalized for 511 class members. Of those that had a UAS Assessment finalized, 17 were noted as having refused the assessment and 13 as having refused transition. Of the remaining 481 class members with a finalized UAS, 276 had a complete assessment package (UAS; the comprehensive psychiatric evaluation; and the AHRAR) submitted to HRA by 3/13/15, leaving 205 class members waiting for their applications to go forward. Of these class members, 127 or 62% had their UAS finalized between 4/11/14-10/31/14, and have been waiting in limbo for a median number of 190 days for their applications to be completed and for it to be sent to HRA. Given that the UAS and the psychiatric evaluations expire after 180 days, most of these class members will have to be reassessed, further delaying the process. All of the 205 class members with a finalized UAS have been waiting a median of 158 days for their applications to proceed. In fact, 145 of the 205, or 71% of these class members, have not yet had an initial AHRAR submitted to the DOH Community Transitions Program (CTP). As of 3/13/15, 100 of these class members had a finalized UAS more than 165 days ago, and would most likely need a new UAS as of the filing of this report. In light of these findings, the Independent Reviewer recommends that the HH/MLTCP be advised to begin the process of updating the UAS for these class members and all others whose assessments are expiring.
On 7/29/14, a member of the Independent Reviewer’s team observed the assessment of Oscar V., 63, a Vietnam Veteran who is a paraplegic, post Stroke, using a motorized W/C. He had a friend, Diane, sit in on the interview to assist him as he said he could not read. Throughout the assessment he seemed a bit confused, and appeared to have some memory/cognitive deficit, making him very susceptible to being led to answers, which Diane corrected several times. For example, he talked about his wife dying in June. The Nurse, asked “last June?” to which he said yes, and his friend corrected him, saying it was before she was in the home four years ago, or when he first came to the home seven years ago. So a lot of what he reported, including not having a mental illness, or having received treatment by a psychiatrist, did not seem to be accurate (he reportedly sees a therapist who contracts with the AH, weekly on-site).
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Following the completion of the UAS assessment, the nurse assessor informed the reviewer that she did feel that Oscar could live in supported housing with sufficient supports. Oscar reported that he had a girlfriend in the home that he wanted to live with, who is also a class member (although he didn’t think she was). Living with her would address some of his needs that living alone would challenge. Oscar needed a psychiatric evaluation, as he apparently has not had one in some time. When the Social Worker at the Adult Home called the psychiatrist that they contract with about doing an evaluation of Oscar, he said to have the MLTCP call him to arrange for compensation, as it will take an hour, as opposed to just billing Medicare/Medicaid. On that date the Adult Home’s Administrator said he would arrange for another psychiatrist to do the evaluation, which apparently never happened. The UAS was finalized on 7/30/14, but as of 3/13/15 an initial AHRAR has not been submitted to DOH. On 3/27/15, DOH reported that they last spoke to the Social Worker at the Adult Home on 12/9/14 and was told he had to speak with the psychiatrist, and the MLTCP last called the home on 11/14/14. Oscar is still waiting for the psychiatric evaluation as he sits in limbo, 240 days since he was assessed, or 60 days since the assessment that was conducted has expired. The difficulty getting psychiatric evaluations for class members who are treated by the psychiatrist at this home has been reported to DOH and is under investigation.
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Median Length of Time in Days from In-Reach, through Critical Stages in Transition Process, to Placement (with number of cases and range of days for each stage)8

From In-reach By Housing Contractor (Day1) to:















Referral to MLTC/HH UAS-NY Assessment

Final MLTC/HH

MLTC/HH

HRA

Transition to

For Assessment &

by Nurse

AHRAR Report/

Application to

Approval**

Community

Housing/Service

Recommendations

HRA

Recommendation*

to DOH

Median: 1 Day N=751 Cases Range: 0-24 Days

Median: 41 Days N=502 Cases Range: 1-280 Days

Median: 127 Days N=392 Cases Range: 1-337 Days

Median: 132 Days N=273 Cases Range: 22-316 Days

Median: 140 Days Median:203.5 Days

N=246 Cases

N=40 Cases

Range: 23-321 Days Range: 131-360 Days

*The assessment and recommendation phase by MLTC/HH entails: conduct of an assessment by an RN using the UAS-NY form; securing/reviewing a recent (within six months) comprehensive psychiatric evaluation and other documents deemed necessary; preparation of an Adult Home Resident Assessment Report (AHRAR) with housing and service recommendations; submission of these documents for DOH QA review and approval; remediation of any deficiencies identified by DOH; and distribution of the final AHRAR to DOH, the Housing Contractor, the class member and other parties.

** Post HRA approval activities include: Interview of client by Housing Contractor (HC); selection of apartment; furnishing it; arranging for utilities, community medical and mental health services, and Food Stamps as needed; transition/care planning involving client, MLTC/HH, HC and others as appropriate; client submission of 30 day notice to adult home; and final pre-placement call to assure elements of transition/care plan are in place involving DOH, OMH, MLTC/HH, HC and others as appropriate.

8 The total number of cases (and thus the range/median # of days) is based on the availability of accurate dates for the two points in time being measured. For example, the weekly report for week 52 indicated that 511 UAS-NY Assessments were done, but we only had both dates (and accurate ones) for In-reach and UAS-NY RN assessment in 502 cases. The data reported are the best available and should be regarded as a close approximation of the actual performance.
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Significant delays in the process occur between the time an in-reach referral is made to an HH/MLTCP for an assessment, and the whole assessment process described above has been completed. This process took a median of 127 days for 392 cases, and as long as 337 days –both of which are significantly longer than the 15 business days the process was anticipated to take in the state’s initial work plan. As this report describes, there have been many factors that have contributed to the overall delays in the assessment process, leading the state to conclude that the target of 15 days for completion of the assessment was unrealistic. While this expectation has been modified to require the scheduling of a visit by an assessor within 15 days of receiving an in-reach form, it has not been replaced by a target time for completing the whole assessment process and submitting a final AHRAR.
Other aspects of the process accounted for lesser delays. The HRA approval process took a median of three days for 248 cases, and the transmission of the HRA approval to the Housing Contractor took a median of four days for 223 of these cases. From the Housing Contractor’s receipt of the housing package to the actual move to supported housing took a median of 96 days for the 40 cases thus far, including the 30 day notice of the move to the adult home.
3. Declinations of Assessment or Transition
As of March 13, 2015, 113 of 758 (15%) class members who expressed interest in transitioning upon in-reach declined either assessment or transition during the assessment phase of the transition process. To better understand this phenomena, Independent Reviewer staff reviewed AHRAR reports for 21 of these individuals. Additionally, some class members and Housing Contractors were interviewed.
In all but one of the AHRARs reviewed, the assessor provided a narrative description of the reason for the declination. In many cases, the explanation was a brief one-liner, e.g., “Member doesn’t want to transition at this time” or “Member stated ‘I don’t want to move anywhere. I want to live here.’”
In other cases, the explanations were longer and described the residents’ reasons. In some of these cases, the resident’s choice seemed reasonable. For example, one individual indicated that she wanted to move, but only if she could return home to her husband if he would have her back. In another case, the resident did not want to move because of her medical condition; she was undergoing chemotherapy for cancer at the time.
In other cases, however, the class member’s decision appeared to require follow up. One individual who expressed an interest in moving at the time of in-reach told the assessor at the time of the assessment that he did not “feel ready to be on his own,” yet there was no information about what would help him to get ready or support him if he moved. In another case, the individual wanted to move, but to a different state. In two other declinations, it appeared more work needed to be done by or with guardians. In one case, the guardian had reportedly not received in-reach
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information needed to make an informed decision; in the second case, the guardian reportedly indicated that a court order would be necessary to facilitate transition given the individual’s history.
Patrick F, 57years old, has lived in the adult home for seven years and another home before that. He last lived alone 30 years ago “before I got sick.” When the assessor and the Independent Reviewer’s staff arrived the day of the assessment he said he had changed his mind. He was concerned that “if something goes wrong, there wouldn’t be anybody (the staff) to help me.” He spoke of the Settlement Agreement being “very seductive”, and acknowledged that he was not perfectly happy (here), but liked having an aide who did his laundry and put his clothes in a drawer and said, “I am treated like a king here.” He mentioned that he has known the Asst. Administrator for 22 years from his current and prior adult home, and that she brought him here. “I think she kind of wants me here,” and when asked if she spoke to him he said: “she gave me a look and that was enough.” He acknowledged that if he left it would disappoint her. Then he said his psychiatrist is also against it. When asked to explain, she said, “she told me all about it, and reading between the lines she is telling me don’t go.”
* * *
Freddie C., 46 years old, said he has lived in the adult home since July 31, 2003. He was placed on the Fast Track when he expressed an interest in moving to staff from CIAD and affirmed his interest during in-reach July 2014. However, he refused to be assessed, saying he had changed his mind. When meeting with the Independent Reviewer’s staff, he spoke of not being happy in the adult home and “wanting to be independent and have a normal life.” He said he had never lived on his own and had been psychiatrically hospitalized many times, starting at age 13. He said he lived alone for one month in his family’s apartment after his mother passed away, “but I had no money, just $300 SSI, so I came here (adult home.)” When asked why he refused the assessment, he said his psychiatrist and his therapist said he was not ready because of his problems with taking his oral medications, as he does receive a long-acting injection every three weeks; and he acknowledged that that he “stops from time to time…last week I didn’t take my meds,” which he attributes to the side effects, including difficulty having an erection. He was proud that he was one of only a few residents that had his own Direct TV account that he maintained from money he saved with his therapist’s help. His therapist said he could move with his roommate, Michael, when they are both ready; but Michael’s mother is preventing him, saying: “when I’m gone you can do whatever you want.”
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* * *
Jack E., 57 years old, has been living at the adult home since 2006. He agreed to inreach in August and was assessed in September 2014, after which he changed his mind about moving out. When interviewed by the Independent Reviewer’s staff, he said that he originally was interested in moving. “I liked the idea of having my own place.” Jack said he changed his mind because “I have medical issues that would make it hard for me to get around (if living on my own).” Although he didn’t want to discuss what his medical concerns are, he said he liked that the adult home took care of his medical needs and a van took him to appointments. He said “I feel better here than (when I was) on the outside.” When asked about his life in the community, he said, “when I lived alone I was up and around more.”
Interviews with residents and others raised the possibility that assessors may influence class members’ decision to decline assessment/transition.
While mentioning her own concerns about her health and her sister-in-law's opinion of her inability to live on her own, during an interview with Independent Reviewer staff, Joyce C. also related that “the nurse who came to assess me had some comments about my ability to live on my own.” She indicated this was a contributing factor to her decision not to move.
Carol C., who had sustained multiple injuries following an assault in the community a year earlier, reported she initially told the nurse assessor that she was not interested in supported housing as she was using a walker and she walked away from the assessor. But when she learned she could get an apartment in a building with an elevator, she contacted the assessor and told her she was interested and wanted to be assessed. She said the assessor “started going on about the trouble I would have going to the supermarket, the bank, the Laundromat” and “she said that I wouldn’t be able to do it.” She said the assessor told her to call the Housing Contractor back in January (2015) and tell them you are interested. Carol reported that she didn’t see the point of calling in January, since she would still be on a walker, most probably until April 2015. When asked if the assessor had told her that she could get services in her apartment that would help her with cleaning, laundry, cooking, banking, etc., she said “no, why didn’t she tell me that?” Carol told Independent Reviewer staff she was very much interested in moving now, with or without her walker.
Staff from the Housing Contractor, CommuniLife, reported that Aldo B., who had expressed interest in moving during an August in-reach session and was scheduled for assessment in October 2014, told them that the assessor told him "this program is not for you." The Housing Contractor staff wrote up Aldo’s report and sent it to OMH which shared it with
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DOH. It is their understanding that OMH and DOH were going to wait to see what was reported on the AHRAR. As of March 13, 2015, an AHRAR has not been submitted to DOH.
In early 2015, the Independent Reviewer noted that a disproportionate percentage of declinations were coming from a single assessment entity and a particular nurse assessor with the entity. The concern was shared with the State which has initiated a review of the matter.
As indicated in the foregoing, factors influencing class members declinations of assessment or transition are varied – ranging from well-founded resident choices such as the desire to be reunited with one’s husband or to move after a medical condition has been resolved, to residents’ own sense of readiness or perceptions, perhaps shaped by their interactions with an assessor, to more concrete factors such as the need for information or action for or by guardians.
Of concern to the Independent Reviewer is the fact that Housing Contractors and/or care managers who are in the position to address reasons behind the declinations are not informed of them for months. Typically Housing Contractors and care managers learn of assessment outcomes, including declinations, upon receipt of a final AHRAR distributed by the assessing entity. On reviewing the 21 cases declining assessment/transition, the Independent Reviewer found that it took anywhere from 1 to 167 days from the point of assessment until the final AHRAR was distributed. The average number of days was 59; the median number of days was 56.
As of March 13, 2015, three of the 21 individuals who declined assessment or transition when they first met with a nurse assessor have had a subsequent in-reach session during which they expressed a desire to move. They have again been referred for a nursing assessment.
The remaining 18 individuals who declined assessment or transition have not had a subsequent in-reach session as of March 13, 2015. It has been anywhere from 164 to 273 days since they declined assessment or transition when they first met a nurse assessor after initially expressing a desire to move.
The Independent Reviewer recommends that when a class member declines assessment/transition after having expressed an interest in moving at the time of in-reach, the Housing Contractor and care manager should be immediately informed of the declination and the reason so they can take timely and appropriate follow-up action.
Joe I. . 57, has lived in the adult home for 11 years. He explained that he separated from his wife and family when they lost their home to foreclosure. He then became homeless and came here. When asked why he originally expressed an interest in supported housing, he responded “because everyone was doing it; it was the thing to do…I got caught up.” Joe said he wanted “to cook my own food . . . buy things that belong to me . . . do things with my 21 year old twin sons.” On changing his
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mind at the point of assessment, he said: “if it was five to seven years ago I would have done it.” He explained that four years ago he had heart surgery and a stent was inserted. “Now I can stay here at my leisure, not worry about going shopping for food…I am comfortable here.” Joe said he has a few friends here, attends the Ocean View Lodge Program three days a week in Staten Island where he socializes and attends AA meetings and group therapy. The adult home Administrator noted he also has a girlfriend at the adult home that may have influenced his decision.
* * *
Barry L, 52, has been living in adult homes since 1997 and had previously met the Independent Reviewer and his team at his Mental Health Clinic (MHC) in December 2013, when they were first meeting with class members and talking about the Settlement Agreement. Although he was mildly interested at that time, saying “maybe in three to five years,” he was ambivalent because of prior bad experiences with roommates when living in independent housing. However, he was a Fast Track member who spoke at the Fairness Hearing and told the in-reach team that he was interested. When asked why he had refused the assessment, Barry explained that he was on his way to his day program when the Administrator came out to tell him the assessor was here. He said he told the Administrator he had important things to discuss at program and “had to go.” Since that time he often hangs out with the inreach team on the day they visit the home, and he said he has spoken to them about wanting to be assessed.
* * *
Genevieve F., 58 years old, has been at the adult home for 15 years, and attends the on-site Mental Health Clinic (MHC). She was placed on the Fast Track by MFY, which led to her in-reach in April 2014. However, when she was to be assessed by the assessor from her Health Home, she refused. When she met with the Independent Reviewer’s staff, she said she had a problem with “having to declare ourselves as disturbed” to qualify, and that she is “not disturbed.” When asked about her initial interest, she said “I want to get back to my own housing, be independent.” But she was concerned about the neighborhoods where the housing would be offered to her, and expressed an interest in living in Bedford Stuyvesant, where she has lived in the past. She said she would think about it and let the Housing Contractor know if she changed her mind.
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4. Referrals to other types of community housing
When the assessment recommends that class members require OMH housing other than supported housing, generally they are referred to the Center for Urban Community Services (“CUCS”), which is an OMH-funded referral program for various housing programs and provides administrative support for the NYC Single Point of Access housing program. 9 It receives about 30 referrals a week from all sources and reports there has been a recent surge in referrals from the Adult Home settlement. Several of the class members initially referred to CUCS were reassessed after a review of the AHRAR by DOH, and the recommendation was changed to supported housing, returning them to the process under the Settlement Agreement. Although referral for OMH housing other than supported housing are supposed to be sent to CUCS, the Independent Reviewer has encountered cases in which the care manager has made a direct referral to a specific housing program, by-passing CUCS.
CUCS receives referrals from various sources which are searching for housing, including the NY/NY program, the nursing home settlement, prison discharges, Assertive Outpatient Treatment, psychiatric center discharges, etc., including this Settlement Agreement. While the adult home referrals are supposed to get priority, so too do all the other referrals. Further diluting the effect of the priority is that this is not the only way in which referrals get to housing providers. In fact, CUCS estimates that 80% of the referrals that providers receive come to them from other sources which approach them directly.
The applications for alternate forms of OMH housing are made by the HH/MLTCPs, which are given three referrals to housing providers. They are expected to contact the providers within five days and the providers in turn are expected to interview the resident within 21 business days.
The burden is on the HH/MLTCP to follow up on the referrals that are made, but CUCS reports that there is no sense of urgency in doing so, perhaps because of the unfamiliarity of the MLTCP with OMH Housing and perhaps because there is no other urgency for doing so under the SA. There is no consequence for failing to comply with these timeframes, except for CUCS to report to the provider's funding source.
The referrals are a bottleneck because there are not a lot of vacancies and a high demand for those that do exist. Unlike supported housing which is permanent and for which there is a specific commitment for bed development under this Settlement Agreement, most of the alternate housing is transitional with an anticipated length of stay of 18-24 months, and there is no specific requirement to develop additional beds to meet class members’ needs. The anticipated difficulty of transitioning adult home residents after 18-24 months may also play a role in the providers being reluctant to serve them. The provider can decide to accept the referred resident, wait list them or
9 If class members are referred for non-OMH generic housing, such as senior housing, the responsibility rests with the MLTCP or Health Home care manager to follow up on the recommendation.
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reject them as not suitable. In the last instance, CUCS or OMH may follow up to find out the reason for a rejection and may advocate to change the decision by helping think through how the resident’s needs might be met with additional services.
Most people so far have been wait-listed, not rejected. But the wait list may expire when the HRA Approval does (180 days) and necessitate a fresh application and new psychiatric evaluation, which may lead to a referral for a different type of housing. CUCS does not know how fast this wait list moves, and applicants may choose to continue working directly with a housing provider after the referral expires, without informing CUCS of later developments. A person might be on multiple wait lists at different agencies but there is not a central place to keep track of this.
CUCS does training on filling out the housing application for different types of housing options. They report that they have provided training for staff of Health Homes but have not yet had a request to do such training for the MLTCPs.
The Independent Reviewer is concerned about the class members who are referred to CUCS to find housing. Their rights under the Settlement Agreement may be extinguished and there seems little likelihood that they will get housing anytime soon, as there is no dedicated allocation of beds other than for supported housing. The Independent Reviewer has recommended that notice be provided to class counsel prior to referring any class members for alternate housing. This recommendation recognizes that in the early phases of implementation there have been several such referrals for alternate housing that were poorly supported by the assessor, and later changed to supported housing. (See discussion infra, pp. 38-41) The State has added this information to the weekly report which is distributed to class counsel.
5. Training for Nurse Assessors
The State OMH and DOH have made a considerable investment in providing training for Housing Contractor, Health Home and MLTCP staff regarding the Settlement Agreement and the plans for implementation, and the various processes they entail. This training has been made available on multiple occasions to managers and executives, as well as to the frontline staff who will actually be involved in direct contact with class members, including peer advocates, in-reach workers, nurse assessors and care managers. While many of the training sessions were targeted at specific audiences such as HHs, or MLTCPs, there have also been training programs which brought the different groups together to encourage interaction and the formation of working relationships.
Nurse assessors must complete an online training program on the UAS-NY before they are authorized to perform assessments. In monitoring the assessment phase of the process, it appears there is a need for ongoing training for nurse assessors. While the Independent Reviewer’s team met several assessors who had a strong and working knowledge of mental health programs and available community services, others indicated they are not comfortable making a specific
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recommendation for the type of housing that is most suitable for the resident, due to their lack of familiarity with the various housing choices and the array of services that could be available to individuals. Initially, they were forwarding their AHRAR to the Housing Contractor for input. However, without more detailed information and supporting documentation regarding the assessment, the Housing Contractor was not prepared to make a recommendation.
The review team has also encountered cases in which the assessors indicated that the individual was not appropriate for supported housing and recommended another housing option. Yet the AHRAR completed by the assessor did not provide a sufficient explanation to justify the recommendation, or the conclusion was not supported by the clinical records. The assessors seemed unaware of and could benefit from additional guidance regarding the frequency and intensity of services that can be provided in supported housing as it appears that some recommendations for other types of housing were based on needing a significant level of supervision/support or nursing services. (DOH, understandably, requested that such individuals be re-assessed, thus adding to delays in the transition process.)
The DOH has taken steps to address this issue. Before the AHRAR is sent to the Housing Contractor it is sent to DOH for review. As recommended by the Independent Reviewer, in August, 2014, DOH began reviewing the complete assessment package: the AHRAR and the underlying documents - the UAS-NY and Comprehensive Psychiatric Evaluation - which should support the AHRAR’s conclusions and recommendations.
DOH has also provided one-on-one training for the assessors whose cases needed reassessment and more general training for all assessors, including a case-study style of training as recommended by the Independent Reviewer. The Independent Reviewer, however, believes more can be done to assist assessors and bolster the assessment phase of the process.
Currently, the assessment process is fragmented among many different direct and downstream providers, some of whom contract on a per diem basis for nursing assessments. Some assessing staff have little working experience with a mental health population, and assessing class members for transition may be just one element, and perhaps a minor one, of their routine daily duties. The Independent Reviewer stands by a recommendation offered on several occasions previously, which has received no clear response, that the State arrange for the performance of assessments under the Settlement Agreement to be assigned to a dedicated team of experienced psychiatric nurses to promote consistency, quality and timeliness of this critical function. This would also enable the State to better monitor caseloads, work assignments and performance expectations relative to the timelines and demands of the Settlement Agreement.
The Independent Reviewer team has also noted that many adult home residents are not good historians about their medical and health care histories, and are frequently unable to identify their providers or the types of services they have received or when.10 Although in-reach and
10 The State’s response to a draft of this report acknowledges that the “State has found that class members are often unable to accurately identify or provide contact information for their mental health provider.”
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assessment workers make efforts to obtain records from adult homes and other providers, the results of these efforts are highly variable. As has been recommended on several occasions, the Independent Reviewer believes that both the assessment and the care planning process could be aided greatly by conducting a review of the Medicaid data to identify current medical and mental health providers of the class members, and develop a snapshot of the services provided over the past 6-12 months which would be highly relevant to identifying their needs. This information should be provided to the assessors and the care managers responsible for the personal planning process.
6. Linguistic competence
The Independent Reviewer has heard of reports that language barriers have impeded the assessment/transition process. Reportedly, there have been instances in which it was believed that an individual was refusing the opportunity for assessment and transition, perhaps due to a language barrier.
The OMH has acted on this concern by instructing in-reach staff to document the preferred language of individuals on in-reach forms forwarded to assessing entities. Moreover, OMH also had the brochure used by in-reach workers translated into nine languages, and made these available to the Housing Contractors. During OMH and DOH trainings, both in-reach and assessment agencies have been instructed to avail themselves of translation services through language lines or other means. During these sessions, the agencies indicated that they either have translators on staff or use language lines. They have also indicated that these means are preferable to using adult home staff as translators/intermediaries in the in-reach and assessment stages of the process.
7. Access to current, comprehensive psychiatric evaluations
Completion of the AHRAR requires that the nurse assessor conduct the UAS-NY assessment and receive and review a Comprehensive Psychiatric Evaluation that has been completed within the past six months. The complete assessment package - UAS-NY, Comprehensive Psychiatric Evaluation and AHRAR – is required by HRA and is reviewed by DOH, to ensure its quality and completeness, prior to being sent to HRA.
The Independent Reviewer has received reports that assessing entities have had difficulty securing current and complete Comprehensive Psychiatric Evaluations. Reportedly, requests for such were not acted on in a timely manner or the evaluations submitted were not comprehensive or were older than six months.
Since the initiation of the assessment phase and reports of these problems, OMH and DOH have taken action to address the issue. OMH has provided guidance and training for agencies/psychiatrists it regulates concerning the Settlement Agreement, the need for timely and comprehensive psychiatric evaluations and their duty to respond to requests for such. (It should be
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noted that at the time of in-reach, class members interested in transitioning provide consent for their psychiatrists to release evaluations to assessing agencies.) DOH has requested that adult homes provide it with the names of psychiatrists treating class members which are shared with inreach agencies; previously, in-reach agencies would ask the individual for the name and contact information for his or her psychiatrist and the information received was not always accurate. And, on a case-by-case basis, both agencies have made follow-up calls: OMH to providers it certifies to ascertain the status of requested evaluations; and DOH to HH/MLTCPs regarding the status of evaluations they have requested and their efforts to follow up and secure such.
Nevertheless, the problem persists.
Reportedly, it is a larger problem with independent psychiatrists who are not affiliated with an OMH certified/regulated program but who work under contract with the adult home. These psychiatrists have relationships with adult home operators and may have a conflict of interest in facilitating the departure of a resident by complying with a request for a comprehensive psychiatric evaluation. For example, the Independent Reviewer reviewed a case from an adult home in which the psychiatrist made it clear in the evaluation "that writer is questioning patient’s ability to live independently" although there is nothing in the assessment to indicate that he met any of the exclusionary criteria for supported housing. In speaking with the representative from the Human Resources Administration, he made it very clear that statements like this by the treating psychiatrist on the comprehensive psychiatric evaluation weighs heavily in their decision to not approve the individual for supported housing and to recommend a more supervised setting.11 In another evaluation, the same psychiatrist made it clear that the resident was not taking her medications and listed this and an altercation with another resident as the reason for the evaluation, rather than the need for an updated evaluation pursuant to the Settlement Agreement. A third resident at this home refused the assessment and attributed the refusal, in part, to his "reading between the lines" and knowing that the same psychiatrist did not think it would be good for him.
It should be noted that, despite requests from both the Plaintiffs and the Independent Reviewer, the state had not provided any information on the extent of this problem, namely how many assessments have not yet been completed due to problems with receiving timely and comprehensive psychiatric evaluations and which providers/psychiatrists are involved. In its response to a draft of this report, the State estimated that approximately 250-300 class members who have said yes at in-reach are awaiting the completion of comprehensive psychiatric evaluations. In addition to the measures discussed earlier, the State also reported that it has asked a
11 It should be noted that the statement of the psychiatrist in this case did not identify one of the exclusionary criteria that would overcome the presumption in the Settlement Agreement that class members are qualified and appropriate for supported housing. The exclusionary criteria are: 1. Significant dementia; 2. Would be a danger to self or others in supported housing even if receiving the services available under the NYS Medicaid program, Medicare or another available program; or 3. Needs skilled nursing care that cannot be provided outside a nursing home or hospital.
(Settlement Agreement, ¶ F. (5))
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psychiatrist in the DOH Office of Professional Medical Conduct to call certain unresponsive or reluctant private psychiatrists to request the missing psychiatric evaluations.
If the data supports the contention that this is more of a problem with private psychiatrists working under contract with adult homes, the continued reliance on such physicians for quality and timely information requires attention. One alternative might be to arrange for a comprehensive psychiatric evaluation to be conducted by an independent practitioner, such as the individual’s HH/MLTCP or a program certified by the OMH.
At one adult home it was reported that since July 2014 the psychiatrist contracted by the home, who treated almost all of the class members, was asking to be paid by the HH/MLTCP to do the evaluations. It was reported that the home recently contracted with another psychiatrist who, the Housing Contractor reports, is unaware of what is needed for these evaluations. As of 3/13/15, of the 25 class members at this home that said they were interested in supported housing, 11 have been assessed, some as early as July 2014, but only two who were assessed have had a Final AHRAR approved by DOH. As of 3/13/15, no applications have been submitted to HRA for any of the class members at this home. DOH has reported that the matter is under investigation.
8. Disenrollment from MLTCPs
Another factor impacting the assessment phase of transition, as well as care planning phase, is an individual’s disenrollment from his or her MLTCP. Individuals can disenroll voluntarily – e.g., they opt to join another organization/plan; or involuntarily – e.g., they no longer meet enrollment criteria. In late 2014, for example, approximately 90 class members were disenrolled from the Centerlight MLTCP, most involuntarily because they did not meet the enrollment criteria of need for 120 days of long-term care services.
Disenrollment, whether voluntary or involuntary, can result in delays in assessment. For example, if an individual is disenrolled after in-reach but before the HH/MLTCP begins the assessment process, the in-reach form and referral must be sent to a new care management entity, once identified. If the individual is disenrolled in the midst of the assessment process before the assessor has gathered all the information (e.g., comprehensive psychiatric evaluation) necessary to reach conclusions and make recommendations in the AHRAR, the assessment process (including the completion of a UAS-NY assessment, even if one had been completed) must be re-initiated by the new assessment entity because the assessor's recommendations must be based on their own inperson assessment and review of documentation.
It is expected that when an individual is disenrolled, the MLTCP will refer the individual to the Health Home that he has been matched with through DOH’s loyalty match process. The MLTCP must also inform the Health Home where the individual stands in the assessment process and share any applicable documentation. Also, the MLTCP must notify the Housing Contractor of the change and the contact information of the Health Home. Sharing of information by the MLTCP is complicated when there is not an Administrative Services Agreement between the MLTCP and
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the HH, as is reportedly the case with Centerlight and many of the Health Homes involved in this initiative. In addition, the consents signed by the individual do not routinely include the DOH or OMH. So in instances of disenrollment, including those by Centerlight, referenced above, while DOH may have all of the prior documents, including psychiatric evaluations that took months to acquire, they cannot share them with the new HH, which may have difficulty obtaining them from the MLTCP.
On November 3, 2014, DOH directed all MLTCPs to report the disenrollment of any class members to DOH to allow the State to immediately intervene and facilitate the smooth transition to another care plan and reduce the negative impact resulting from a gap in care management services. Most of the disenrollments to date have been from MLTCPs, primarily Centerlight, followed by subsequent loyalty matching and enrollment with a HH. Therefore, it would make sense to offer enrollment in the matched HH to the class member at the time that the class member says yes during in reach. This would jump-start the process, since the HH has particular expertise in working with individuals with behavioral health issues.
Julio S., 60 years old, said yes to in-reach by JBFCS on 4/2/14 and was assessed by Centerlight on 4/19/14. AHRARs were submitted on 7/1/14 and 7/8/14 and a Final AHRAR on 8/2/14, recommending him for supported housing. On 8/14/14, the HRA application was submitted and was Unable to Complete (UTC), as the psychiatric evaluation of 5/5/14 was not comprehensive enough and the UAS lacked a statement addressing the risk of arson. On 10/24/14, DOH asked Julio’s mental health provider, to send an updated psychiatric evaluation and they faxed a 24 page evaluation dated 9/9/14, and sent it to Centerlight, However, on 10/16/14, the UAS expired as 180 days had elapsed. On 11/30/14, Centerlight disenrolled him. DOH reported that Alpha Care was the new MLTCP and as of 12/1/14 Julio was also loyalty-matched with CBC-HH. As of 2/10/15, CBC has reportedly received none of the materials from Centerlight, including the psychiatric evaluation that will expire on 3/6/15. DOH, which has copies of the prior UAS and the psychiatric evaluation, is unable to share it with the HH due to the absence of consent. Julio, whose application had been UTC for six months, needed a new UAS completed and submitted to HRA before 3/9/15, or an updated psychiatric evaluation would be required.
Charles Z., 47 years old, said yes to in reach on 4/9/14, and was assessed by Centerlight on 5/1/14. An initial AHRAR was submitted to DOH on 7/9/14, and a final AHRAR on 8/18/14, which recommended him for supported housing, An HRA application was submitted on 8/27/14 and on 9/5/14 there was a conference call with HRA, which included Centerlight and DOH. The HRA representative informed them that they required more information about the class member’s history of violence and intimidation of others, which was noted on the UAS. On 10/15/14, the HRA application was resubmitted, and included a revised comprehensive
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psychiatric evaluation dated 8/18/14, which was also UTC. On 11/10/14, HRA issued a final determination that the application was UTC and that the issue of prior history of violence and intimidation needed to be addressed. On 11/30/14, Centerlight disenrolled Charles, who was loyalty matched with CBC-HH. DOH reports that as of 2/2/14 CBC has been unable to acquire any of the materials that Centerlight has on this class member. Post Graduate Center for Mental Health, the downstream provider for CBC, will need to conduct a new UAS assessment and acquire an updated psychiatric evaluation, as the current evaluation expired on 2/14/15. As of 3/13/15, almost one year since he first said yes to supported housing, Charles is beginning the process anew.
d. HRA review process
At the beginning of October 2014 the Independent Reviewer team met with the Acting Assistant Commissioner, Office of Clinical & Service Systems Integration at the NYC Human Resources Administration (HRA), whose unit is responsible for the review of the HRA applications for housing. In 2013, before the Settlement Agreement, it handled 22,500 applications for housing arising out of mental health sectors and the NY/NY agreement. Major referral sources are psychiatric hospitals, shelters and correctional facilities. Many applicants are repeat HRA customers and their prior applications/histories are retained by HRA and reviewed as part of the process of reviewing a current application. According to the HRA representative, applications are reviewed and generally turned around within 1-3 business days.
In anticipation of the Settlement Agreement, in mid-2013, HRA and DOH/OMH began discussions on the role of HRA in the Settlement Agreement process. Consistent with the State’s work plan, HRA did develop a streamlined HRA application process, specifically to be used when applying for housing for the adult home residents included in the Settlement Agreement. HRA participated in DOH/OMH training sessions for partners in the Settlement Agreement initiative and training was initiated and is ongoing for those responsible for completing the HRA application. HRA initially had weekly telephone conferences with DOH/OMH re problems that arose. Most commonly those were about applications that lacked sufficient information to complete a HRA review. At the time of the meeting, there had been HRA applications for 84 Class members and 27 were Unable to Complete (UTC). In most of the cases that were deemed UTC, the deficiency was an inadequate psychiatric evaluation. Other problems, but to a lesser extent, were: need for clarification of items in the UAS-NY; staff error; did not upload needed information; and technical glitches in the electronic transfer of information. Soon after our meeting, HRA gave DOH access to its computer system to follow cases/retrieve information, no longer requiring weekly problem solving teleconferences.
When the Independent Reviewer’s team spoke with the HRA representative on January 30, 2015 regarding the average length of time it has been taking, he explained that the total number of
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UTC cases has remained fairly constant, around 30, while the number of processed applications continues to increase. HRA has noted improvements in the quality of the psychiatric evaluations being submitted and those making the referrals are better at providing what is needed, that they had been getting far fewer incomplete applications, which appears to be due in large part to the 100% Quality Assurance Review on all three parts of the application by DOH since August 22, 2014. In discussions with DOH staff in following up on the status of those cases that are Unable To Complete or are not even submitted, most of the delays seem to be in the area of the psychiatric evaluations. The specific problem appears to be that the standard psychiatric evaluation is an assessment of the individual’s presentation and mental status at a given point in time. Most of the evaluations are cursory and do not routinely include a detailed psychiatric history that would provide the kind of background information that HRA or a Housing Contractor, would need to adequately evaluate an individual for community housing.
Based on our review, as of March 13, 2015, there had been 276 case applications submitted to HRA, 248 approved by HRA, and 28 Unable To Complete (UTC), including one resident who is incarcerated.
Fig. 9. HRA Review of Housing Applications However, despite the relatively low number of cases noted as UTC on the weekly reports, most applications submitted to HRA are initially unable to complete before the issue is resolved, and a second, or sometimes more, application needs to be resubmitted. Based on the most recent HRA report of 3/23/15, the 276 distinct class members required a total of 426 submissions, before 248 were approved and 28 were left UTC. Of these, 99, or 36% required two or more submissions. As stated above, many of the issues are minor and can be resolved rather quickly.
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Overall, for the cases approved, the median length of time from submission to approval was three calendar days, while the range was from 0-191 days due in large part to applications that were UTC for several months prior to approval.
As indicated below, since the initiation of DOH’s 100% Quality Assurance review of applications before they are sent to HRA, there has been a reduction in the number of days it takes for HRA to complete its review of an application.

Pre-Aug. 22, 14

Post -Aug. 22, 14

# of Cases

36

212

Range in Days

0-191

0-167

Median # Days

7

2

Average # Days

33

10

Table 1. Length of Time for HRA Determinations from Submission of Application to Determination

As of March 13, 2015, there were 28 UTC cases. Of the 28 UTC cases, two were submitted prior to 8/22/2014 and have yet to be resolved; the remaining 26 were submitted after 8/22/2014. Based on regular discussions with DOH staff, most had problems with the psychiatric evaluations. Most commonly the problem was an inadequate psychiatric history; but some were missing the psychiatric evaluation altogether, or did not sufficiently address specific concerns like history of prior violence noted on the UAS, recent psychiatric hospitalization, hoarding of medications or prior history of fire-setting noted in HRA archives.

Eduardo G.’s HRA application has been UTC since 11/25/14. Unbeknownst to the adult home or his treating psychiatrist of four years, he had a history of fire setting documented in prior HRA applications dating back to 2000. According to HRA, there were multiple instances of fire setting in his past which was viewed as a symptom of his psychiatric de-compensation. HRA viewed this as serious and would not approve the resident for placement until his current capacity for this type of high-risk behavior had been assessed, despite the time that had elapsed since the last documented occurrence. In order to address this issue, at HRA’s recommendation, OMH had clinical staff from the NYC Field Office conduct a risk assessment of EG related to this behavior. On 2/27/15, three months after the initial submission, Eduardo was approved by HRA for supported housing and was

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interviewed by the Housing Contractor on 3/3/15, to begin the search for an apartment.
The outstanding UTC cases have resulted in multiple requests to psychiatrists, by the MLTCP by certified letter, and multiple calls by DOH staff. In eight instances, in addition to needing a new or more comprehensive psychiatric evaluation, the UAS also expired (since 180 days had elapsed since it was completed), including six that were due to disenrollments by Centerlight Healthcare (which as discussed above, has disenrolled approximately 90 class members to date). In these instances the class members were reassigned to another MLTC, or were loyaltymatched to a Health Home, which has to re-start the process and prepare a complete package (UAS, Psychiatric Evaluation; AHRAR) for submission to HRA. Additional problems included incomplete UAS, or wrong HRA application submitted. Most disconcerting is the length of time that the majority of the cases have been UTC. The median number of days that the 28 applications have been UTC, as of 3/13/15, is 120.5 days. Considering that the psychiatric evaluations and UAS expire after 180 days, the cycle of having to reassess residents and have often reluctant psychiatrists conduct new psychiatric evaluations to be retrieved by assessors and/or DOH staff, compounds the delays. As this report is being drafted, there are on-going discussions between the parties about strategies to address the delays in obtaining adequate psychiatric evaluations.
The underlying presumption of the Settlement Agreement is that any adult home resident with a Serious Mental Illness would be eligible for supported housing. The four exceptions were detailed in the Settlement Agreement (Para. F(5)), with the stipulation that if an assessor determined that a resident was inappropriate for supported housing the reasons would be clearly documented, and the resident would be given an opportunity, if interested, to seek other appropriate community placement. Of the 248 approvals by HRA as of 3/13/15, 229 (92%) were approved for supported housing, while 19 (8%) were Approved for Level II, or other than supported housing. Level II approval is for other types of OMH Housing, including Community Residence-Single Room Occupancy (CR/SRO); Supported Single Room Occupancy (SP-SRO); Congregate Treatment; Apartment Treatment; Family Care; or Senior Housing. In four of the 19 cases that HRA approved for level II, the Assessor had recommended Supported Apartment, but HRA approved the resident for Level II only. According to HRA, in each of the four cases information that they had received during the application process, often in the psychiatric evaluation or UAS, led to a determination that the resident would not be safe in supported housing, and the class member was approved for Level II only.
Robert B. was assessed on 9/18/14 and an HRA application was submitted on 11/17/14 with a recommendation for supported housing. It came to the attention of HRA that he had been hospitalized from 9/25/14-10/9/14 due to suicidal ideation with command hallucinations to kill himself. On 11/19/14, due to concerns for Robert’s safety to live independently, HRA approved the application for Level II only.
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Salvatore G. was assessed on 9/5/14 and an HRA application was submitted on 11/12/14 with a recommendation for supported housing. On 11/20/14, based on information in the psychiatric evaluation, HRA determined that Salvatore was not suitable for independent living and approved the application for Level II only. According to HRA, the psychiatric evaluation of 10/13/14, documented that “psychiatric symptoms prevent the individual from living in an independent setting.” In the absence of an amended psychiatric evaluation or a new evaluation by another psychiatrist the determination cannot be changed.
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Elena O. currently lives in an adult home with her husband Vito, a class member who was approved for supported housing. She was assessed on 9/12/14 and an HRA application was submitted on 10/29/14 recommending supported housing. On 11/18/14, Elena was approved for Level II only. HRA said it came to their attention that she had a stay in a psychiatric Emergency Room in 2013; a history of prior failed attempts to live independently; and her psychiatrist had written in her psychiatric evaluation of 9/22/14 that she was not medication compliant and “is not a good candidate for independent living without direct supervision.”
In reviewing the mental health clinic records of five residents that were previously found inappropriate for supported housing, by an MLTC assessor with a disproportionate number of recommendations for other than supported housing, the Independent Reviewer’s team found insufficient evidence to support the assessor’s conclusion that the individual would pose a danger to themselves or others in supported housing. Four of the class members were subsequently reassessed and found appropriate for supported housing; three have been referred to the Housing Contractor for placement (DP, GS and RP); and one of these is currently UTC (JJ), pending a new updated psychiatric evaluation. The fifth (JB) was reassessed, with no change in determination and was referred to CUCS for community placement in a CR/SRO.
Jesse J. is a 65 year-old black male with a long psychiatric history who has been living at an adult home for five years. He was assessed on June 13, 2014 and found “inappropriate for supported housing” with a recommendation for a CR/SRO. He had been approved by HRA for Level II only, and his MLTCP, had submitted an application to CUCS on 11/4/14. The Independent Reviewer’s staff visited the Continuing Day Treatment Program on 12/4/14 to review Jesse’s record, meet with him and talk to those that knew him. Jesse, who attends the day treatment program daily and participates in a full range of classes, was neatly and appropriately dressed and was very friendly. He was responsive to questions, though at times it was a bit hard to follow him without asking additional questions. He expressed an interest in moving out of the adult home to supported housing, but had reportedly told his psychiatrist that he was not interested, as noted in the record. Although some ambivalence was noted, in general he seemed interested if he found the right
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apartment, lived alone or had the right house mate, and was in a safe and comfortable neighborhood, as he was fearful of being hurt or having his things stolen.
The assessor’s justification that the transition would present “a danger to self or others in supported housing” lacked specificity. Poor insight and judgment and “poor processing skills” did not seem to support that the transition to supported housing would present a danger precluding this as a housing option. Significantly, and similar to the other cases that the Independent Reviewer’s staff had reviewed, Jesse did not have any awareness or knowledge that he had been recommended for CR-SRO or for anything other than supported housing, or that an application had been submitted to CUCS to obtain supervised housing. The mental health Program Director believed that Jesse could make it in supported housing if he maintained the level of stability he had recently achieved following changes in his medication regimen. He was reassessed on 11/25/14 and the assessor recommended supported housing on the new AHRAR. However, on submission to HRA on 1/6/15, his application was found to be “Unable to Complete” pending the receipt of a new comprehensive psychiatric evaluation and remains UTC as of 3/13/15.
e. Person-Centered Care Planning Process
The Settlement Agreement requires that for each class member assessed, the Health Home or MLTCP shall develop a person-centered care plan with the informed and active involvement of the class member, and include consideration of the current and unique psychosocial and medical needs and history of the individual as well as the functional level and support systems developed by the Health Home or MLTCP care manager. (Settlement Agreement, ¶ F (1) (2))
Each person-centered plan must identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual’s needs and personal preferences. If supported housing is part of the person-centered plan, the care manager must make a referral to the appropriate Housing Contractor. (Id. F (3))
According to the DOH, care planning begins upon the class member's enrollment in a Health Home or MLTCP.12 Person-centered care plans are based on individual needs and desires,
12 Although the development of care plans and the provision of care management to shepherd the plans are integral components of HH/MLTCPs, in the early stages of the Settlement Agreement 1,817 adult home residents were enrolled in HH/MLTCPs. For these individuals, existing care plans would have to be revised with the prospect of their transition from an adult home - where many services such as medication management, meals, housekeeping services and sometimes mental health and health services - are offered on site, in order to support them in more independent living upon transfer. As additional residents are identified as interested in transitioning and enrolled in HH/MLTCPs, care planning and management begin and are orchestrated by the HH/MLTCP.
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and focus on attainable goals. When a class member expresses a desire to move to the community, transition care planning should begin. Upon approval of the HRA application, the HH/MLTCP care manager should notify the Housing Contractor and send him/her a copy of the referral package and with the class member and Housing Contractor work toward developing a transition care plan that identifies and arranges for the supports needed by the class member to successfully move to supported housing. Care planning for transition involves numerous service providers who provide and/or coordinate the services/benefits that the class member needs, as identified in the assessment process as well as by the individual. Services to be coordinated can include SNAP benefits (Food Stamps), furniture, transportation, mental health programs, psychiatric and medical visits, aide and visiting nurse services, etc. Care planning is not a one-time event that is "completed," but is a continuous and fluid process. Once a supported apartment is secured, the care manager with the support of the care team, which includes the class member, works to coordinate all necessary services and benefits to meet the class member's needs in the community. Care managers must coordinate care before, during and after transition, serving as the class member's point-of-contact 24/7.
Care managers must also make the final care plan available to the Housing Contractor at least two weeks prior to scheduled transition.
In addition to care planning sessions involving the individual, HH/MLTCP care manager, Housing Contractors and others as appropriate, in November 2014, DOH initiated a Quality Assurance mechanism of “Transition Calls.” The purpose of these calls is to ensure that all components of a safe transition for a class member have been adequately addressed and secured. Transition calls are made approximately three weeks (21-days) prior the class member’s identified move-in date. Participants include care managers from the Health Homes and/or MLTCP, the Housing Contractor and representatives from DOH and OMH. Among the items discussed are:
• Has a Transition Care Plan Meeting Occurred? • Review of Recommendations on AHRAR and the HRA Decision • Securing Required Documents (e.g., picture ID) • Medication Management and the Need for Assistance • Scheduling of Medical Appointments • Scheduling of Mental Health Appointments • Enrollment in Mental Health Programs • Emergency Contacts • Arrangements for Meals • Furniture and Household Items in the Apartment • Telephone Services and Utility Set-ups in the Apartment • Need for Transportation Services • Representative Payee if Applicable
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• Securing of Essential Benefits and Entitlements (SNAP, etc.) • First Scheduled Meeting with care manager Following Transition • First Scheduled Meeting with Housing Contractor Following Transition
As of March 13, 2015, 165 transition care planning sessions have been scheduled and/or conducted for individuals approved by HRA to move to supported housing. Additionally, the status of transition care plan implementation for most if not all the individuals who have moved to supported housing since November 2014 has been reviewed in at least one 21-day pre-transition call; oftentimes, a second or third transition call is made in the days/week prior to a move in those cases where it appeared that not all of the essential elements of a care plan were in place at the time of the first call.
The Independent Reviewer team attended care planning sessions for 14 individuals and participated in 40 initial and follow-up transition calls. Generally, the Independent Reviewer team found many positive aspects to the care planning sessions observed. There has been a good representation from HH/MLTCP care managers, Housing Contractors, adult home case managers, class members and occasionally other parties such as mental health providers. The planning team members seem enthusiastic and committed to assisting class members make a successful transition to supported housing, and recommending a package of services to ensure the individual has adequate support and assistance initially, with a view to re-assessing the continuing need for these services as time passes. Class members were excited that they had reached this stage of the transition process and were consistently encouraged to give their opinions and voice questions when they felt the need to.
Among the items discussed, in the context of the individual’s needs and desires, were: medication administration/management and proficiency/need for assistance; basic ADL skills – cooking, shopping, laundry, housekeeping skill, bathing/self-care, etc.; current array of health and mental health providers and the need for change in such upon transition; housemate arrangements; entitlements/needs (SNAP, Meals on Wheels, etc.); and representative payee status/situation. During these meetings there was generally agreement on a division of labor as to who, the HH/MLTCP or Housing Contractor, would take the lead in arranging for needed services, such as securing in-home aide/nursing serves, scheduling appointments with new health/mental health providers, applying for SNAP (Food Stamps), changing representative payees if needed, etc.
Care managers appeared to be diligent in ensuring adequate supports for individuals even when the need for such tended to be downplayed by the individual. When offered the opportunity of aide or nursing services to assist in such things as shopping, meal preparation or medication monitoring, a number of individuals would respond saying, “but I don’t need it.” The care managers would explain that these services could be faded/discontinued as time goes on and all goes well. They explained that it is easier to put such services in place from the beginning to assess how well the transition is going and then discontinue them, rather than trying to arrange for them after transition when it is realized the services are needed.
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Monitoring activities, however, did raise concerns about the care planning process which the Independent Reviewer has shared with the parties.
1. Delays in arranging necessary services
While there appeared to be general agreement during care planning meetings as to who would do what to ensure that necessary services, supports and benefits are in place at the time a class member transitions, transition calls revealed delays in arranging for these services. A number of 21-day calls needed to be followed up with additional calls because not all the services agreed to had been arranged 21 days before the move. In some cases, during follow-up transition calls made just a few days before the scheduled move, it was found that necessary services still had not yet been secured or put in place. The following cases are illustrative:
Cliff F. This follow-up transition call occurred on 1/15/15, three business days (considering the Martin Luther King Holiday) before the individual’s scheduled 1/20/15 transition date. As of 1/15/15, the individual had not yet applied for Food Stamps as he goes to a mental health PROS program Monday through Thursday and did not want to miss program. The care manager was planning to take Cliff to apply for Food Stamps the next day, Friday 1/16/15. It is laudable that the care manager did not interfere with the individual’s desired attendance at his PROS program, but considering that the individual had given the adult home notice of his intent to move at least 30 days before the 1/20/15 scheduled move date, one would question why weren’t the Fridays in the weeks preceding 1/16/15 used to assist the individual in applying for Food Stamps? During the call, the care manager reported that, absent Food Stamps, he would stock the apartment with food he could get from a food pantry that his agency knows of. He also asked the Housing Contractor if his agency knew of or operated any pantries in the area.
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Goral G. This second follow-up transition call was held on 12/31/14, three business days before a 1/6/15 anticipated move. At this time, as with the earlier transition call, a mental health provider had not been identified nor an appointment scheduled. Reportedly, there were difficulties getting through by phone to the provider with whom the individual wished to make an appointment. Others on the phone call found that highly unusual given the reputation of the provider. The care manager was again given the contact information for this provider and OMH staff instructed her to call them immediately if she ever has problems contacting a provider in the future. As the conversation progressed it was not clear who attempted to contact the provider or when. At one point the care manager indicated she encouraged Goral to call the provider. But she also said she asked a member of her staff to assist him in making the call to the provider. In the end, she didn’t know
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if the client alone, or with staff assistance, called the provider to schedule the appointment or when such was attempted. She was urged to immediately assist Goral in calling the provider at the number provided to schedule an appointment and to report back to the parties that afternoon whether an appointment had been scheduled as such was deemed critical for a safe transition the next week. She did, was successful and the move happened as planned on 1/6/15.
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Jerry L. This follow-up call was made on 12/29/14, the day before Jerry’s scheduled move on 12/30/14. At the time of the call, two items that were outstanding during the previous 12/12/14 call were still outstanding: Jerry did not have Food Stamps nor did he have a mental health appointment. However, he did have some Personal Needs Allowance funds which he was willing to use to purchase food until the arrival of Food Stamps. The mental health appointment was a bit more complicated. During the earlier planning sessions, Jerry indicated that he did not want to continue at his Continuing Day Treatment Program (CDTP) as he wanted to get a job and regular attendance at the program (or a PROS program) would interfere with work availability. By 12/12/14, the plan was to find a mental health clinic and also vocational programs/opportunities. By the time of the 12/29/14 call, the issue still remained unresolved – referrals for mental health and vocational services had not been completed. However, Jerry would be leaving the adult home with a 30-day supply of medications and his CDTP was willing to provide a new prescription if he had not found a clinic or psychiatrist by the time the supply ran out. With this assurance, the move proceeded as scheduled. Following the move, Jerry actually agreed to attend the PROS program that his care manager had recommended.
Delays in applying for SNAP benefits and arranging for new mental health providers seemed to be the most recurring problems.
With regard to SNAP/Food Stamps, there appeared to be confusion and disagreement among care managers and Housing Contractors as to when one can apply – before or after the move – and how to secure emergency Food Stamps.13 Consequently, individuals transitioned to their supported apartments without this benefit and staff scrambled to make sure the class member had food: Housing Contractors provided the individual with funds to buy groceries and HH/MLTCP care managers searched for Food Pantries and Soup Kitchens which could provide nutrition. In January 2015, DOH clarified the SNAP issue in a Frequently Asked Questions fact sheet provided to all involved: SNAP benefits can be applied for 30 days prior to a move as long as one has a new address and transition date (which is usually the case as the individual has to give the adult home operator a 30-day notice prior to moving).
13 In at least one case, an adult home was not cooperative in providing the assistance and documentation needed for an individual to apply for SNAP benefits. DOH is addressing this issue.
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Despite the actions taken by DOH, the Independent Reviewer team has observed several care planning meetings and pre-transition telephone conferences where there have been problems in ensuring that SNAP benefits are in place or the class members have emergency food stamps available to them at the time of the move. These issues have arisen in 14 out of the 22 cases observed. There have also been issues with the transfer of their financial entitlements and Personal Needs Allowances (“PNA”), especially for class members for whom the adult home has been the representative payee.
The reasons for these problems seem to vary from cases to case, including applications that were made too late; difficulties getting governmental IDs required for the application; bureaucratic issues with the office processing the application, etc. In all cases, the planning teams have been creative in identifying temporary, ad hoc fixes for the problem such as locating food pantries and soup kitchens, purchasing food for a transitional period, or providing a small amount of cash to cover food purchases. While these are commendable efforts, there is something fundamentally wrong with forcing class members to rely on charity and handouts in this patchwork approach to meeting a basic need for support in the community as part of a court-ordered transition process. The Independent Reviewer is concerned that these uncertainties may contribute to class members changing their minds at the eleventh hour and declining a transition from an adult home which dependably provides three meals a day, and a monthly PNA.
It is unclear at this point whether the problems being encountered are systemic in nature or case specific. The Independent Reviewer has recommended that the State convene a small group of knowledgeable care managers and Housing Contractors to further explore these issues and determine whether they need a systemic solution or more specific guidance to the planning teams so that the outcome is dependable access to funding for food and incidental. Among the options that may need to be considered are:
 building in a transitional stipend to cover the cost of food until SNAP benefits become available:
 providing for a cash advance to the class members against the anticipated financial entitlements;
 exploring the possibility of expediting the processing of applications for SNAP benefits for class members.
Mental health appointments, particularly for individuals who need to change providers upon transition from the adult home, are particularly important. Such individuals will be leaving the adult home with a 30-day or less supply of medications and will need to see their new provider in order to receive and fill a new prescription for medications. In most cases, mental health clinics request that the individual who is in need of service call to arrange for a first appointment, although the individual can be assisted in placing this call by a case/care manager, advocate, family member, etc. In cases where the scheduling of an appointment with a new mental health provider was
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problematic, it appeared that the care manager did not offer sufficient support of assistance to the individual in making the initial call to schedule the appointment.
Given that class members provide adult homes with a 30-day notice of their intent to move, there seems to be plenty of lead time to secure/arrange the necessary services called for in the care plan. To ensure that this lead time is used wisely, on January 14, 2015, DOH issued an Adult Home class member Discharge Planning Tool Guidance (Appendix A) The tool provides a detailed list of items necessary for discharge along with boxes and text areas in which one can provide dates and explanations about what has been accomplished and put in place. DOH asked care managers to complete the tool prior to the 21-day Transition Call as the items on the tool will be discussed during the call.
The Independent Reviewer believes this tool will be a helpful reminder to start early and remain vigilant in securing the services needed upon transition. However, the Independent Reviewer has recommended to DOH and OMH that a system of post-transition calls be put into place to monitor whether the services called for in plans are actually in place and being delivered now that the move has occurred. This recommendation was implemented by the State beginning on February 13, 2015. Post transition calls are routinely scheduled during the last call prior to the move, to occur within the first week to 10 days after transition.
2. Need for a Person-Centered Care Plan template
In December 2013, the Independent Reviewer recommended that a template be developed to guide person-centered care planning. In response, DOH forwarded a sample of care plan templates already in use by a number of HH/MLTCPs that would be involved in implementing the Settlement Agreement. A review of these indicated that they varied significantly one from the other. Some focused primarily on medical issues while others took a broader approach and in addition to medical issues focused on other dimensions of an individual’s life.
Considering the large number of care management entities involved in Settlement Agreement implementation and the number of Housing Contractors that must interact with a multitude of these entities,14 it would make sense – for staff training, care planning and implementation monitoring purposes – to develop a uniform template for care management plans for class members.
As stated in the Independent Reviewer’s May 3, 2014 progress report to the parties: “This does not have to be a massive undertaking. OMH already has a complete workbook on Person Centered Planning for PROS programs, which can serve as the basis for care planning for this effort. (http://www.omh.ny.gov/omhweb/pros/Person_Centered_Workbook/)”
14 See, fn. 3 supra.
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To a limited degree, DOH’s recently issued tool/guidance on discharge planning addresses this issue by identifying key items that need to be addressed to ensure a safe transition to the community, such as the availability of food, utilities, financial support, ADL assistance, appointments with health and mental health providers, etc. But it does not address other major domains in an individual’s life that could ensure not just a safe, but successful and fruitful transition and quality of life in the community – issues including the individual’s interests, desires and needs in such areas as continuing/adult education, employment/volunteer activities, inclusion in culturally relevant social opportunities and faith communities, civic/community activities, etc.
Considering that many class members have spent years in adult homes and other institutions that address basic life and safety needs but do not promote community inclusion, many may not have an understanding of what enriching and life-fulfilling opportunities exist in the communities into which they are being transitioned. This should be probed and addressed in the transition care planning process.
The Independent Reviewer again recommends the creation of a care planning template that ensures the wide range of dimensions of an individual’s life are discussed and plans put in place to address his/her needs and preferences.
3. Absence of care plans
At a minimum, to be successful, care plans involving a multi-member team approach require that all members of the team are on the same page as to what the plan calls for and who is responsible. Although DOH has stated that care plans developed by HH/MLTCPs, with the input of the individual, Housing Contractor and other parties as appropriate, should be made available to Housing Contractors two weeks prior to transition, this is not consistently happening. In some cases, it appears that consent is an issue; in others cases there appear to be technical difficulties in sharing computer files.
Due to laws governing the confidentiality of Protected Health Information, there are barriers to sharing information among agencies that must collaborate to support class members in the community, and many of these agencies have not yet executed Administrative Services Agreements that would permit the necessary sharing of information. It also appears that this is a larger problem with the MLTCPs, rather than Health Homes. DOH is continuing to work on this matter, but it is critically important that it be resolved quickly as the number of individuals transitioned increases.
The lack of access to care plans also impedes the Independent Reviewer in his efforts to monitor the implementation of the Settlement Agreement and in determining whether services are being delivered as planned for and address the class member’s needs. Without access to the Plans of Care themselves, it is not possible for the Independent Reviewer to assess their adequacy, nor to monitor their implementation. This is an issue all parties are aware of and working on. The Independent Reviewer regards it as an urgent matter to resolve access issues to all records and
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documents that are needed to adequately monitor the implementation of the Settlement Agreement.
4. Changing care managers and high caseloads
The HH/MLTCP care manager is viewed as the glue that holds all the pieces and parties to the care plan in place. According to DOH, he or she must coordinate care before, during and after transition and serve as the class member’s point of contact 24/7. In response to inquiries from the Independent Reviewer, DOH stated although there were no specific required care manager caseload limits, on average it was anticipated that the caseloads for care managers assigned adult home residents could range from 1:12 to 1:50. The range reflects the presumption that many of the adult home residents that choose to live in supported housing will initially require a higher intensity of care management services which will decrease as they stabilize in the community.
In its monitoring activities, the Independent Reviewer team has received reports which give rise to concerns about the consistency and availability of care managers. We have encountered care managers with caseloads as high as 163 while at some Health Homes/MLTCPs caseloads as high as 80 are not unusual. Moreover, it has been reported that some care managers in MLTCPs will assist the class member up to the point of transition from the adult home, or perhaps for a month after, but at that point a new care manager from the MLTCP will be assigned to the case. This break in continuity, combined with large caseloads, is not a desirable method of supporting class members making a transition to the community. The case of J.C is illustrative.
Jessica C. transitioned from her adult home to an apartment on December 1, 2014. Since the time of her transition care planning meeting, she has had three different care managers through her MLTCP. The third care manager was assigned to her case about one month after her transition, at around the time of the Christmas/New Year holiday. As of February 5, 201 –more than two months since her move --, Jessica had not yet met this new care manager who had called her and promised to visit. Jessica still does not have Food Stamps, which was recognized as a need prior to transition. She was hoping the care manager would assist her in this regard and is growing increasingly frustrated that she hasn’t even met the care manager.
The Independent Reviewer recommends that if a care manager is truly intended to be the lynch pin in ensuring a successful transition and life in the community, the State must examine and establish expectations for meaningful assignments and caseloads that enable the care manager to fulfill his or her role. At a parties’ meeting on January 6, 2015, representatives of the DOH stated that they were re-considering whether to establish maximum caseload limits for the Settlement Agreement class.
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5. Poor Communication between care managers and class members
The Independent Reviewer’s team has received numerous reports from class members and Housing Contractors that individuals who have expressed an interest in transitioning to supported housing and who have been referred to HH/MLTCPs for assessment, and perhaps even have been assessed, have had little or no contact with their HH/MLTCP care manager and are in the dark as to where they stand in the process, months after their referral and perhaps assessment. Similar concerns have been voiced directly by class members to the Court at a status conference.
As described above, the Independent Reviewer team met one individual who has yet to meet her new care manager two months after transition. In another instance, upon visiting New Haven Manor on December 9, 2014 to observe a care planning session, the Independent Reviewer team was approached by a woman who reported she was referred to a HH/MLTCP in July 2014 upon in-reach and assessed that same month, but had not heard anything else from the HH/MLTCP, now more than four months later. She broke down crying and plaintively asked what her status was, which neither the in-reach worker nor Independent Review staff could tell her, as the most recent information at that time, as provided in weekly reports issued by the State, indicated only that she had been assessed in July. (In late January 2015, her application was submitted to the HRA by the HH/MLTCP and approved; as of March 13, 2015, she has not been interviewed by the Housing Contractor.)
The Independent Reviewer team has also received reports that some class members who are capable self-advocates learn of their status in the process by calling DOH directly or CIAD or Plaintiffs’ attorneys who make inquiries of DOH on their behalf. But many class members who are not as skilled at being self-advocates are left in the dark.
The Independent Reviewer acknowledges that in training sessions DOH has stressed the importance of care managers maintaining contact with the individuals they serve to keep them abreast of where they stand in the transition process. And the Independent Reviewer’s Team has met individuals who reported being kept abreast of their status by care managers. But apparently, the lack of consistent communication persists, perhaps due to care manager turnover or high caseloads. This underscores the need for the State to establish expectations and meaningful caseloads for care managers, as referenced above. It is unknown what effect the lack of information on the status of one’s case for the sometimes lengthy period between in-reach and personal care planning has on the dropout rate of persons who initially expressed an interest in supported housing but later withdrew from the process.
f. Community Placements
The Settlement Agreement requires the State to find sufficient supported housing units to provide any class member for whom supported housing is found to be appropriate is afforded an opportunity to do so (Para. D). The State is required to make all reasonable efforts to coordinate
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the performance of assessments by Health Homes and MLTCPs with the development of supported housing units so that the assessments take into account supported housing units that are actually available or will soon become available.
As noted above, as of March 13, 2015 HRA has approved 248 class members for Community Care (supported housing). As of that date, 40 class members have transitioned to supported housing. Thus far, it has taken a median of 203.5 days from in-reach to transition to supported housing. The rate at which class members are currently transitioning and being prepared to move is clearly improving but the amount of time it is taking also has been increasing. At the time of the preparation of the draft report in February, the median length of time from in-reach to transition was approximately 187 days or 16.5 days less than at present. With the inception of inreach to all of the other Brooklyn and Queens adult homes by the five other Housing Contractor’s during July 2014, and the early issuance of the RFP for the Bronx and Staten island, the prospects for increasing the numbers of transitioned residents is promising, although the pace remains far short of what would be required to attain the Settlement Agreement goals.
1. Changing their minds at the point of transition
After expressing an interest in moving to supported housing during in-reach, and going through the assessment process and being approved by HRA, class members sometimes change their mind and refuse to move. Some of the residents who have gone through the HRA process and then refused are included on the State’s Focus 69 table that tracked the progress of 69 class members who were slated to move to supported housing. For some it occurs after they have seen one or more apartments, and in some instances after they have given notice and have a date to move out. The reasons given for this change of heart include plans to move elsewhere, like Section 8 Housing, or to “Florida with my cousin” which, according to their mental health clinic providers is most likely delusional thinking. One woman, after cancelling twice before, changed her mind the day of the move, saying “I want to move, but not to East New York.” The Independent Reviewer’s staff met with some of these residents, to understand their reasons for changing their minds.
Gail S, 61 years old, who has been living at the adult home for eight years, is a Fast Track member who received in-reach and was assessed during July 2014. A Care Planning meeting and HRA approval occurred in September, and she met with the Housing Contractor in October when the process for finding an apartment started. She found a two-bedroom apartment she liked and gave her notice to the adult home on 11/5/14. Following two transition meetings, the planned move date was 12/8/14. However, on 12/4/14 Gail changed her mind reportedly because there was “no roommate in the apartment.” She did say that she still wanted to move and the Housing Contractor agreed to move her into their model apartment, which she said she liked, in the same East New York neighborhood, with a scheduled move date of 12/29/14.
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Because of issues with turning on the utilities and the apartment lease, the move was postponed until 2/2/15. With everything in place on the day of the move, including cashing the check for her start-up funds, putting the utilities in her name, and submitting her documents to Social Security, Gail refused to move. She reportedly informed the Housing Contractor that she changed her mind and no longer wanted to move into the apartment program. When the Independent Reviewer’s staff met with her and the Housing Contractor on 2/5/15, she said she still was interested in moving and “didn’t want to live here anymore…I’ve been here long enough.” When asked why she changed her mind, she said she really didn’t like the neighborhood and would move to another apartment in a different neighborhood. When she mentioned neighborhoods like Bensonhurst, Bay Ridge and Sunset Park, the Housing Contractor said that the rents there were much higher, and that it would take longer to find an apartment for her. When Coney Island, Brighton Beach and Crown Heights were mentioned, she said she would be interested. The Housing Contractor said they had an apartment in Crown Heights that they could show her and she agreed to see it. After seeing the apartment and meeting her prospective roommate, Gail seemed to be initially excited about moving there, but then rejected the apartment, reportedly saying she wanted to live with “someone of her own ethnicity.” The adult home Administrator did caution that Gail had been offered housing several years ago, through referral of her mental health program, and also changed her mind when it came close to moving.
* * *
John M., 67 years old, is a veteran who has been at the adult home for three years, and receives his mental health treatment at the VA Hospital. He expressed interest in supported housing upon in-reach in September and was assessed later in the month, after which he told the assessor that he had changed his mind and said he did not want to move. He spoke of not liking the adult home as “I don’t like the food” and “people pick up the cigarette butts off of the floor.” When asked by the Independent Reviewer’s staff why he changed his mind, John said he was concerned about the racial makeup of the neighborhoods where he believed the apartments being offered were located. He added “my friends are looking for a place for me.” He explained that he had lived in Park Slope for 15 years before coming to the adult home, but it is too expensive now and mentioned being able to get a room in Sunset Park for $600/month.
* * *
Greg Y., 55 years old, was placed on the Fast Track by a resident advocate in the adult home, expressed interest in supported housing upon in-reach on 4/16/14 and was assessed on 4/22/14. However, his HRA application, which was approved for supported housing on the first attempt, was not submitted until 8/5/14. The referral
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package was sent to the Housing Contractor on 9/16/14 and he was interviewed on 9/22/14. According to the Focus 69 table prepared by the State, Greg (#55) informed his care manager on 9/24/14 that he wanted to ”hold off” on moving, and on 12/9/14 would not take the care manger’s call. When he met with the Independent Reviewer’s staff on 2/5/15, he appeared very friendly and social and was observed moving rapidly in the lobby, briefly greeting and fist bumping/elbow touching with many residents. His therapist at the program located in the home said he knows everybody, and is a real “social butterfly.” When asked by the reviewer about supported housing, even though he had been approved and had gotten as far as being interviewed, Greg was difficult to understand as he spoke in disjointed phrasings with a lot of inflection. When asked why he changed his mind he responded, after several attempts, “Exactly a given, OK…a lot of friendships, dealings, connections, hanging out, hooking up…just like a given, ya know, yeah, yeah…OK?” His therapist says that it is his OCD behavior that presents when he feels “pressured.” If one would attempt to make sense of this, coupled with observations of his interactions with other residents, one might infer that Greg likes being in the adult home and would miss the other residents; but that remains a matter for further exploration during in-reach in the future.
* * *
Elden C., 61 years old, has been living at the adult home for 15 years. He expressed interest in supported housing upon in-reach on 4/16/14 and was assessed on 4/25/14. His application was initially submitted to HRA almost four months later on 8/19/14; was noted as Unable to Complete (UTC); and re-submitted and approved for supported housing on 9/2/14, the same day that the referral package was sent to the Housing Contractor. However, as noted on the State’s Focus 69 Table (#64), when approached about supported housing he “reported (he is) not interested in moving.” Although he had gone as far as referral to the Housing Contractor before changing his mind, when interviewed by the Independent Reviewer’s staff, Elden stated ”he was never assessed and never wanted to go.” He has a girlfriend who stood by as we spoke and she made it clear that “he didn’t want to move, because I’m not moving…and he has to take his medications.”
* * *
Mark P., 49 years old, expressed interest in supported housing upon in-reach on 6/18/14 and was assessed on 6/25/14. His HRA application was submitted on 8/12/14 and approved on 8/14/14. His complete referral was sent to the Housing Contractor on 8/28/14. As noted on the State’s Focus 69 Table (#58), Mark has been difficult to reach and vacillates regarding his desire to move, and did not attend the scheduled housing interview on 11/28/14. When interviewed by the Independent Reviewer’s staff on 2/5/15, Mark said he “wants to move” but “has no
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time to do the papers with housing.” He talked about going regularly to Crown Heights and Williamsburg to see friends and said he is very busy. When asked where he would like to live, Mark mentioned Boro Park and said he would need a home attendant. He also said that he would move when his friend Filip S., also of Russian Jewish extraction, is ready to move, and that they will move in to a Supported Apartment together.
When the reviewer looked into it, he learned that Filip S. 53 years old is a class member who was on the Fast Track, and expressed interest in supported housing upon in-reach on 4/18/14. According to the weekly report of March 13, 2015 it appears that he has not been assessed by Metro Plus MLTC, after the in-reach form was sent to them on the same day as the in-reach visit. In response to our inquiry, DOH reported that he was on the initial Community Transition List (CTL) in error and was not restored to the CTL until 6/16/14. However, no action has been taken on his case since that time, and that oversight is now having a negative impact upon another class member’s willingness to move to supported housing.
2. Choice of housing
Central to the Settlement Agreement was the element of individual choice; including that the class member’s preferences would be taken into consideration, and they would have a choice about where they wanted to live; if they wanted to live alone in a studio or onebedroom apartment, or with another class member in a two bedroom apartment, or maybe in another borough. During the in-reach process and through assessment, care planning and transition the Independent Reviewer’s staff observed these questions being asked by the inreach staff, as well as whether they would be able to walk up a flight or more of stairs, would they need a ground floor or elevator apartment, etc. Consistent with this level of choice, and as documented in the original RFP, each of the six Housing Contractors had agreed to provide apartments for class members to live alone or share an apartment with separate bedrooms.
As reported by the Housing Contractors, the specific preferences of the class members, especially the location, have posed significant challenges given budgetary constraints, the current housing market, and requests to live in Forest Hills, Bay Ridge, or other neighborhoods that are highly desirable and thus costly. In addition, in some areas where class members want to live the housing stock is primarily two family homes, where reactions to being approached by Housing Contractors to rent to class members have not always been positive. While Housing Contractors do not say it is not possible to fulfill the member’s specific requests, they inform them that it will most likely take longer to acquire, and continue to offer alternative areas for their consideration.
As noted on Table 3 below, as of 3/13/15, the 40 class members transitioned from 10 of the 17 NYC Impacted Adult Homes, with housing acquired by all of the six Housing
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Contractors. Twenty-two of the moves occurred in the three Phase I Pilot Homes for whom JBFCS is the Housing Contractor. However, in one of the moves, the class member from Surf Manor wanted to live in the Bronx. So he was transferred to CommuniLife, the Housing Contractor who has housing in that area, and they worked with him to find something to his liking, which he accepted.

IMPACTED ADULT HOME

NUMBER

OF HOUSING

CLASS MEMBERS CONTRACTOR

TRANSITIONED

BROOKLYN ACC

3

ICL

ELM YORK

2

TSI

KINGS ACC

6

FEGS

MERMAID MANOR

3

JBFCS

NEW HAVEN MANOR 1

FOO

OCEANVIEW MANOR 5

JBFCS

PARK INN HOME

3

COMMUNILIFE

QUEENS ACC

2

ICL

SURFSIDE MANOR

1

COMMUNILIFE

SURF MANOR

13

JBFCS

1

COMMUNILIFE

Table 3. Class Members Transitions as of March 13, 2015

The 40 class members who have moved are living in 29 apartments and one three-
bedroom house. Twelve are living alone in one-bedroom apartments; 20 are sharing 10 two-
bedroom apartments; seven are currently alone in two-bedroom apartments; and one is in a
house with three bedrooms, eventually to be shared with other class members. Fourteen of the class members have first floor apartments in non-elevator buildings; 17 are on the 2nd floor and one on the 3rd floor of walk-up buildings; and eight live in elevator buildings.

To date the Independent Reviewer’s team has visited nine apartments of 12 of the 40 class members who transitioned. JBFCS was the Housing Contractor for five of the apartments, housing seven class members, all in Brooklyn; FEGS for two in Brooklyn, with three class members; and ICL , where a class member had his own one bedroom apartment in a one floor walk-up on Sutphin Blvd. in Queens; and CommuniLife, where a class member was in a two bedroom apartment in a two family home in the Rockaways, waiting for her roommate to be assigned..
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All of the apartments were in residential areas in close proximity to shopping and transportation, and all were freshly painted, with new furniture and a start-up kit of kitchen utensils, bed linens, and most things one would need when moving into a new apartment. Each of the JBFCS apartments had a full size bed, one or two dressers, depending on closet space, a love-seat and couch in the living room, and a dining room table that some had placed in the kitchen and others in the living room. The furniture in each of the JBFCS apartments was identical and selected by JBFCS. In the ICL apartment in Queens, the class member had picked the furniture from a catalogue that was shown to him by the Housing Contractor. The two FEGS apartments visited were also fully furnished with items selected by FEGS, and nicely appointed, as was the CommuniLife apartment we visited.
On 12/30/14 the Independent Reviewer’s staff participated in the move of Walter F. and Jerry L. from an adult home to their new apartment in the Seagate section of Brooklyn. Seagate is a gated community at the very end of Coney Island in Brooklyn. The two-bedroom apartment was one flight up in an owner occupied two-family home on a quiet residential block. On entering the apartment one was struck by the newly finished wood floors and the new appliances, including a washer-dryer in the kitchen. In addition to two nicely sized bedrooms, the apartment had a terrace that looked out on the street. The microwave oven was in a box, along with the other items in the startup kit. On visiting with Walter a week later, he said he liked the apartment better than the adult home as he “has his independence” and “doesn’t have to share a bedroom.” He also liked the quiet neighborhood and its proximity to stores and transportation. All of the apartment facilities, including heat and hot water, were working fine. But the outlet in the bathroom was out for a few days. He had not told the landlord and his care manager encouraged him to do so. He had no other problems or complaints. He was most happy about the rent. Walter said he was a private pay resident at the adult home and paid $2,000 a month to live there for the last 8½ years. His rent was now $234.
* * *
Andrew P. is a 55 y/o African American male who walks with a limp due to a hip replacement. He transitioned on December 12, 2014 from an adult home. Andrew looked right at home in his new one bedroom apartment on Sutphin Boulevard, in Jamaica Queens. He said he does not have a problem navigating the 18 steps to his 2nd floor apartment, doing laundry or shopping. While the living room, which is right off of the dining room and kitchen, is small, it all felt very homey and cozy. The room was nicely furnished with a couch and chair, with leather style seat and wood arms, and was loaded with pictures on bookcases and on walls, along with many books and CDs, as well as a stereo system. The kitchen was very modern and bright with a skylight over the dining room table. As I told him, it felt like he had been living there for years. Although his first month has not been what one would call
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“easy,” Andrew said he was “ecstatic,” “grateful,” and “loves it.” He likes that there is only one neighbor in the building and it gives him “privacy” and a “comfortable feeling.” About the neighborhood, he said “it seems decent,” and he “feels safe.” It is also close to public transportation, shopping, family and his girlfriend, who still lives at his former adult home, and is the only thing he misses from there.
Following approval of the complete package by HRA, the care manager for the Health Home or MLTCP sends it to the Housing Contractor, who schedules an interview with the class member. As of March 13, 2015 there were 211 referrals sent to the Housing Contractors for supported housing, with a median of five days to forward the package. Of the referrals sent to the Housing Contractor, 155 of the class members had been interviewed, with a median number of days from receipt of the referral to the interview of 12 days.
Although the Housing Contractors staff had previously met with the class member during in-reach to determine if they were interested in moving, the interview at this time is focused on learning more about the individual and what their preferences are in terms of where they want to live, the type of apartment they want, and what, if any accommodations will they need for a successful transition (e.g., 1st floor, elevator, or walk-up apartment). After the housing interview the process of looking for the apartments begins. Many of the residents are shown model apartments before they are shown apartments that are under lease to the Housing Contractor and available for transition. Once they are shown apartments they can either accept the apartment or ask to see another. Of the residents that the Independent Reviewer’s staff met with who transitioned, most liked and accepted the first apartment they saw. However, we are aware from reports of the parties to this agreement that is not the case for all of the class members. Of the first 40 to transition, the median number of days it has taken from the date of the referral to the Housing Contractor to find an apartment and move is 96, and 104 days from the date of HRA Approval. This includes the 30 day notice that the adult home operators have requested, to ensure that the resident will not be charged for days that they do not live in the adult home.
Following transition continuity of care is to be assured through the efforts of the care manager from the Health Home and/or MLTCP and the Case Manager or Associate from the Housing Contractor. In addition, the ability of the two or three entities (in the case of those class members enrolled in both a Health Home and an MLTCP) to work successfully together is critical. Through the 21 Day Transition call that is described above in the Assessment section, efforts are made to ensure that all of the steps are in place prior to the move. Most important, as related to the medical and psychiatric needs of the individual, is that appointments are in place for follow-up with the mental health provider and their doctor. However, during some of the visits of the Independent Reviewer’s team questions arose as to whether all that was to be arranged was actually in place.
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Walter F. During the 21 Day Transition Call on 12/12/14, in preparation for his move on 12/30/14, DOH suggested referring Walter to a Licensed Home Care Services Agency (LHCSA) and for Personal Care Services (PCS) for medication oversight, particularly since the care manager (CM) from the Health Home mentioned he was pre-diabetic. Although not listed on the AHRAR, DOH also suggested a Certified Home Health Aide (CHHA). As some concern was raised on the call about his diet and being pre-diabetic, they felt it would be good to have it at the start; that way the CHHA could refer him to a dietician. On the follow-up call on 12/29/14, the day prior to his move, the CM reiterated that she would be referring him for a CHHA to help with medication management. When the Independent Reviewer’s staff visited Walter on 1/13/15 with the CM, he explained that he was using finger sticks to keep track of his blood sugar, which seemed to surprise her. When asked about the LHCSA or the CHHA, she stated that they were not yet in place nor were they documented on his Care Plan. In fact she explained that she had called his doctor and asked the office manager to submit the necessary forms so that Walter could receive these services, but had not heard back. On follow-up, she reported that the doctor’s office did not have the form and she was to drop it off. This information was subsequently shared with the Health Home Supervisor.
* * *
Andrew P. described the whole process from in-reach to moving out as slow at first, having to wait until July for the in-reach to start in the Queens adult homes, but “relatively smooth” after that. The entire process took five months from in-reach to his move on December 10th. Andrew credited staff from CIAD and Plaintiff Counsel, from NYLPI “for keeping me informed every step of the way.” The “glitches,” as he described them occurred after the move. Although he had sufficient money when he left the home, he had budgeted counting on Food Stamps. However, contrary to the plan at the 21 Day meeting, his care manager, who did not transition with him into the community, had not arranged this. Although he had collected cans and bottles to redeem for food, he was always with funds, he received some provisions from a food pantry where his girlfriend’s father works, and his Housing Contractor, ICL, intervened as soon as they were aware of the situation. As of the day of my visit the MLTCP social worker was handling the application process and it was expected to take 30-60 days. His community care manager from the MLTCP visited him for the first time one month after transition. In addition, the Physical Therapy Assessment that was to occur post transition apparently had not occurred. As Andrew had requested at the Transition Meeting, ICL had a safety bar installed in the shower. However the bar, which was secured by suction, gave way and he slipped and injured his wrist. He required a cast when he sought Emergency Room treatment for pain that persisted several days later. ICL then had a new bar installed that was secured to the wall. The MLTCP had planned to disenroll
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Andrew due to his high level of independence, but because of the cast and ICL’s request, they agreed to send in an RN and a HHA 3days a week for now, starting 1/15/15.
As helpful as the pre transition call is to ensuring that all of the necessary supports are in place prior to the move, it is equally important that there be a process to ensure follow-up with all of the members of the team following the move. For this reason the Independent Reviewer recommends that there be a post transition call within 10 days of the move, with follow-up calls as indicated. Unlike most of the 21 day calls, theses calls should include the class member, until the team is satisfied that the care plan and all supports are in place and that all of the participants, most importantly the class member, are on the same page. Although the State has implemented post transition calls as of February 13, 2015, generally within a week of the move, to date these calls do not include the class member.
In general, class members who were interviewed by the Independent Reviewer’s team, who had moved from the adult home, after living there from two to 20 years, responded positively when asked about their new living situation, and how getting to this point had been for them. They were excited to have the freedom to do what they wanted to do, when they wanted to. They spoke of not missing the noise, chaos and frequent fights in the adult home, and all loved having their own room. They spoke of liking their independence to go shopping and the additional money they had, compared with just the Personal Needs Allowance they received in the adult home.
Albert P. When the Independent Reviewer’s staff first visited him on 10/13/14, Albert said it was a long process but he realized he was one of the first two to move (on 9/15/14) and a lot of problems had to be worked out. He said it took a lot of coordination between him, the HC and Centerlight, his original MLTCP, who disenrolled him in the middle of the process. He said he did a lot of the things needed to move and was still taking care of things. Specifically, Albert had gotten the psychiatric evaluation from his PROS Program that was needed to complete the application; he had gone to Social Security to arrange for direct deposit before the move; renewed his driver’s license, and rented a car to visit family. Although the adult home managed his medications, he said he was doing that on his own now without a problem. He loved his new apartment and proudly served me cake and coffee. He spoke of his newfound independence and enjoying it. When visited again on 1/15/15, Albert said he “was doing really well” and “would change nothing.” The apartment was clean, although still barren of pictures and personal touches on the walls. He had a nice bed cover and books around and near his bed. He served me juice and coffee and seemed to be well supplied. He loved the apartment, as well as the neighborhood and said: “I couldn’t have picked a better spot myself.” He spoke of the convenience to transportation and shopping, showed me his cart and mentioned the Laundromat he uses nearby on Surf Avenue. He takes daily walks to pick up the neighborhood papers and also uses the library nearby to borrow DVDS, as he “loves movies.” He is still attending PROS once a week but is transitioning to
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the mental health clinic. He called on his own and got an intake appointment February 9th. Albert said his goal in PROS was to get his own apartment and he achieved that. He spoke positively about Mark, his care manager from Post Graduate Center, who visits with him once a month. His Care Plan focused on food choices/shopping, budgeting, and coordination of community appointments.
* * *
Clinton K. On 1/21/15 the Independent Reviewer’s staff visited Clinton’s apartment with JBFCS-HC staff. The apartment is a one-bedroom walk-up apartment on the 3rd floor on W. 36th Street in a newly renovated walk-up building post Hurricane Sandy. He moved in on January 13th from the adult home, where he had lived for two years. Clinton is a very pleasant 67 year-old Afro-Caribbean gentleman from Jamaica, who smiled during the entire visit. He reported no difficulty walking up the two floors to his apartment. When I entered the apartment it was clearly brand new from top to bottom with nice stone tiles in the kitchen and wood floors that had a shiny finish. Clinton had received in-reach in May 2014, and the process took 8 months until he moved. When I asked him how the process was for him, he beamed and said “the process was very good…like the ticking of a clock, everything was super…a blessing.” When I asked if he was kept apprised of what was going on, he said that former resident council President from the adult home, who placed his name on the Fast Track, gave him the idea to move and kept him informed. He said he liked and accepted the “first apartment he saw.” He said he loved everything about his new apartment He liked that the neighborhood was “very quiet and peaceful.” He has attended a CDTP for two years, and now is transported there three days a week to allow for his HHA to come on Wednesday and Friday from 2 PM- 6 PM, in contrast to the five days a week he attended prior to his transition. Clinton said he can wash, clean and cook for himself and talked of making pancakes and coffee for breakfast and steaks and chicken for dinner. However, at the present time the HHA washes dishes, cleans and shops for him when she comes. When asked about Food Stamps, he already had them from when he was in the adult home which seems to be the case with residents for whom the adult home was not their representative payee. Clinton takes medications for High BP; High Cholesterol and Osteoarthritis, on his own, which he did not do in the adult home. The Independent Reviewer’s staff and the HC were both unable to get a copy of his Care Plan from the HC, as the MLTCP would not give it to the HC without a consent, which the HC obtained from Clinton during the visit.
* * *
Jessica C. & Christopher H. They moved from the adult home on 12/1/14 and share a two- bedroom apartment, in a residential neighborhood on the first floor of a prewar, multi-story brick building, looking in good repair from the outside. The
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apartment was clean and odor free. The walls were clean/freshly painted and the hard wood floors seemed clean. The apartment was well furnished with a kitchen table/chairs, pots/pans, utensils, etc.; living room furniture with lamps on end tables, TV; regular bedroom sets (beds, dressers, etc.); The apartment, however, was rather stark with no personalizing touches like pictures, wall decorations, plants, etc., (but these are items the individuals should add as they please and as their tastes suggest; they had just moved in and their discretionary cash flow at this transition point is tight.)
Each said they liked where they were living and so glad to be out of Kings ACC. Jessica said she “loved it!” Christopher was less exuberant. When asked why she “loved it,” she spoke of all the nearby shops – fish market, butcher, etc. – and how she enjoys the stores/shopping. Christopher reported that he and Jessica have settled into a routine: he does all the cooking and she does the cleaning. It was then he became a bit more excited, and began talking about his love of cooking. He showed the reviewer a shelf-full of spices in the kitchen and explained: “I am Caribbean, I use them all.” Jessica had mentioned a fish market and he indicated he makes fish frequently. Jessica’s aide was present when we entered Christopher and Jessica’s apartment and was doing some paper work at the kitchen table. Jessica was in the living room watching TV…she was going out for a routine medical appointment later. Upon entering, Christopher told the staff from FEGS-HC, that he had just called her…the apartment has had no heat since yesterday. He said: “it wasn’t that bad yesterday, but it’s colder today…but we put on warm clothes.” The staff asked him if he had called the emergency number she had given him. He indicated that he had forgotten to do so. He had the number she had given him, which she confirmed, and reviewed with him the protocol for dealing with issues like this: the person at the other end of the emergency number can quickly get a hold of the landlord or other appropriate parties. The Housing Contractor staff said that she would handle it at this point. (The same condition also existed in the apartment of Martin E., also a former adult home resident, which we visited upon leaving. However, he had called the Emergency number and the heat was starting to come up, in both apartments.)
* * *
Scott F. On 1/21/15 the Independent Reviewer’s staff visited Scott’s apartment with staff from JBFCS – HC. The apartment, which was one flight up, was clean and freshly painted and the floors were recently stripped and stained. It was a twobedroom apartment and the furnishings were standard and similar to the other JBFCS apartments previously visited. Scott, a 65 y/o Caucasian male had lived at an adult home for three years and was in a JBFCS Apartment Treatment Program for three years before that. He said: “he had to leave (the Apt. Program)” and explained he wasn’t taking his medications and was hospitalized. Scott had in-reach
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at the end of March, but was not assessed until August, and HRA approval occurred at the end of October. He moved in on January 9th to live with Julio V., who moved in on 11/7/14.
When asked about the process, he said it was “a long period of time…with a lot of uncertainty...I had no idea what was going on……I thought I was being rejected…but now it’s over.” He said he discussed his frustration and uncertainty with his therapist in the PROS program. He said he liked the apartment and the neighborhood that he was familiar with from living at the adult home and attending PROS, both up the block. He said he had no problems living with Julio V; “so far so good.” He said they would share utility and telephone bills which have not come up yet, and share the refrigerator while keeping their food separated. He liked having his privacy and cooking his own food. He liked doing whatever he wanted to do and did not want to be in the PROS program more than the one hour a day he attends now. He was most frustrated by not having Food Stamps, and there was a problem acquiring the ID needed to apply. He said he had gone down and submitted the documents and would be called on 1/22/15 for a phone interview, followed by an inperson interview. After that it could take up to 30 days. His Care Plan did not provide for HHA services, as he was independent in cooking, shopping, laundry and other ADL. Julio does have a HHA, who was present during my visit, and does clean the common areas. The plan focused primarily on acquiring the IDs needed for Food Stamps and helping him with the process. The adult home was his representative payee and JBFCS serves that function now, ensuring his rent is paid.
Conclusion
In the quarterly report filed with the Court on January 16, 2015, the Defendants expressed the opinion that the five-year goal of the Settlement Agreement to transition all qualified and interested class members to the community “is attainable.” (The State’s Third Quarterly Report, p. 5) In order for that to happen, the pace of implementation will have to increase dramatically and be sustained for the remainder of the five-year period.
Out of the 4,197 class members identified as of March 13, 2015, 1,256 have received inreach by a Housing Contractor, and 60.35% of those class members have expressed an interest in moving to supported housing. Assuming that the rate of interest remains at this level for the total class over the duration of the Settlement Agreement, 2,533 class members will have to be assessed and moved. As of March 13, 2015, 40 have been moved over the first six and-a-half quarters that the Settlement Agreement has been in effect. This leaves 2,493 class members to be assessed and moved in the remaining 13.5 quarters. In the 90 day period ending March 13, 2015, 30 class members were moved. In the remaining 13.5 quarters, the rate of movement will need to average
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185 per quarter or six times the rate achieved in the most recent three month period.
Although the State has been closely monitoring the implementation process, and implementing changes and refinements as obstacles have been encountered and identified, the magnitude of the task ahead is obviously substantial. Thus far, the modest tweaks to the existing processes for implementation have not achieved the quantum leap in performance that will be required to attain the goals of the Settlement Agreement.
The implementation process is fraught with numerous obstacles that make navigating its course a time-consuming, treacherous and frustrating ordeal for class members.
 An assessment process that is taking months to properly complete an assessment report;
 The lack of an efficient process to timely obtain necessary mental health records to support an application for supported housing;
 Incomplete assessments that languish for months with no discernible movement;
 Care mangers with caseloads so large that they scarcely have time to keep their clients informed of the status of their cases;
 MLTCs which disenroll their clients midstream in the process, returning them to the starting point, with inadequate processes to transfer records and assure continuity;
 Psychiatric evaluations, UAS-NYs and HRA approvals that expire in 180 days, requiring them to be redone, and causing more delays; and
 Multiple service providers serving the same client who cannot share necessary information because they have failed to execute Administrative Service Agreements or obtain consents.
Due to these obstacles and dysfunctions, although 600 class members were placed on the Fast Track due to their expressed interest in transitioning to supported housing, and despite funding being available for 1,050 supported housing units, and contracts in place for 350 beds, after 18 months of implementation effort, only 40 of the 600 have managed to successfully run this gauntlet. For the 608 class members who indicated an interest in supported housing at in-reach, and have not dropped out of the process or been placed, the median length of time they have been waiting is 227 days as of March 13, 2015.
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acknowledged the hard work and effort by the DOH and OMH to implement the Settlement Agreement. Both OMH and DOH have conducted several training sessions for Housing Contractors, Health Homes and MLTCPs and have issued regular updates to Frequently Asked Questions. DOH conducts regular conference calls with Health Homes and MLTCPs to address emerging issues, and OMH convenes regular meetings of all of its Housing Contractors to discuss their progress and troubleshoot issues that arise. The staff of both agencies are in regular contact with their contractors to monitor progress with individual cases, and especially the transition planning process. Notwithstanding these efforts, the Independent Reviewer raised concerns about the inherent complexity, fragmentation of responsibility and cumbersomeness of the implementation process, and the small results achieved, and suggested a re-examination of the workability of the process with a view to consideration of simpler alternatives. That observation is equally current today.
Most of the work of implementing the Settlement Agreement at the class member level has been delegated to private contractors –Housing Contractors, Health Homes and MLTCS –and the latter two have further delegated the work to downstream providers and their contractors. But there are no apparent benchmarks or performance measures for these contractors that are related to the specific requirements and timelines of the Settlement Agreement. For the nurse assessors, after the initial 15 day timeframe in the State’s work plan for completing an assessment proved to be unrealistic, there has been no revised timeline expectation for completing this essential task. The level of activity among the Housing Contractor agencies varies widely, and there is a sizable proportion of the class members who have not yet been enrolled in a Health Home or MLTCP or assigned a care manager to begin the person centered care planning process with them. The two state agencies that bear the oversight responsibility for these contractors do not have ready access to information about how the contractors have elected to staff their efforts, or caseloads or workloads of the staff upon whose efforts the success of this entire enterprise is dependent and are therefore ill-equipped to determine whether adequate resources are being committed to the implementation effort.
Recommendations
Consistent with the requirement in the Settlement Agreement that the Independent Reviewer take a "problem-solving approach" (¶ L [7]), the Independent Reviewer has considered how the assessment and transitioning process might be speeded up, and the rate of initial declines at in-reach and later dropouts might be reduced, and offered several ideas for a different approach.
1. The linear approach to the multi-step process of in-reach, assessment, personal care planning, and locating and moving to an apartment should be reconsidered, with several of these steps and tasks occurring while the assessment process is going on. Specifically:
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a) There is a need for a more robust in-reach process where, instead of a brief conversation that typically occurs at the adult home itself, the housing contractors arrange for groups of residents to visit a model apartment and/or meet with class members who have already transitioned, as part of the in-reach process that would help class members make an informed decision about supported housing.15 We believe such an approach is more likely to engage the class members in a way that a conversation alone does not and is also consistent with the presumption in the Settlement Agreement that most class members would be found eligible for supported housing when the assessment process is complete.
b) Priority should be given to immediately enrolling in Health Homes those class members who indicate an interest in supported housing, and assigning them care managers to begin the personal care planning process. Virtually all class members are likely to require behavioral health services in the community which the Health Homes are most suited to provide. Although the Department of Health has recommended the early assignment of care managers to class members, according to the weekly report for Week 52, of the 758 people who have said yes to moving, only 341 (45%) have a care manager listed on the spreadsheet. (207 have a Health Home care manager only; 113 have an MLTCP care manager only; and 21 have a care manager from both a Health Home and MLTCP).
c) We believe that involving class members immediately in the care planning process, perhaps using the Guide prepared by the Nathan Kline researchers, will keep them more engaged and informed about the process while the assessment tasks and collection of required documents for the HRA application proceeds. One of the most consistent complaints that we have heard over the course of the past year from class members is that weeks and months can elapse following in-reach or an interview with an assessor with nothing more happening to indicate that work is proceeding on their expressed interest in moving to supported housing. The early assignment of a care manager can also get a head start on preparation for the eventual transition by ensuring that the class members have the required IDs, obtain Access-a-Ride and Half-Fare Metro cards, are prepared to apply for SNAP benefits at the earliest opportunity, and that their financial benefits are transferred in a more timely fashion. Some of these tasks are current responsibilities of the adult homes, which the care manager could ensure are timely performed. Beyond these essential transitional steps, care managers could also begin the
15 As the Court noted in its opinion approving the Settlement Agreement:
With the goal of enabling residents to make an “informed choice’ about moving, the proposed settlement requires housing contractors to “discuss any concerns” about supported housing and requires the State to use its best efforts to locate persons living in supported housing to speak with adult home residents. (Settlement, Sec. E (2) (a)-(b).)” (ECF. No. 59, filed 3/17/14, p. 20)
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process of assisting class members develop connections with community organizations such as senior citizens centers, peer drop-in centers, churches and the like to enable them to create social networks to ease their transition to community living and counter the risk of loneliness that people experience when they leave institutional settings.
d) In addition to the training that has already been provided by the DOH, we believe it would be beneficial to provide more targeted training for care managers on the specific tasks and techniques involved in transitioning residents from adult homes to supported housing. (Obtaining IDs, assembling the documents required to apply for financial entitlements and SNAP benefits, obtaining recent psychiatric evaluations and psychosocial histories, etc.) These are skills that care managers typically have not had the opportunity to develop previously, and could probably best be taught by individuals who have successfully worked with adult home residents to transition them to community housing.
e) We also recommend developing a detailed how-to manual that addresses the key tasks involved in the transition process, as a resource for the care managers. We think this is especially necessary given the large number of individuals and organizations16 involved in performing this work, as well as the turnover that is occurring in care managers assigned to adult home residents whether due to disenrollments, reassignments or resignations.
f) As we have recommended previously, we believe that Health Homes and MLTCPs should be required to certify to DOH that the care managers assigned to class members have completed the required training prior to being deployed.
We believe that implementing these recommendations will help class members be better informed about the choice that is available to them, keep them informed and engaged throughout the process, speed up the assessment process and the HRA application, and provide for earlier collaboration on the development of a personal care plan and smoother implementation of the transition to supported housing.
As discussed in this report, the Independent Reviewer has shared a number of recommendations with the State toward improving the Settlement Agreement implementation process. Many of these have been acted on. For example, in response to the Independent Reviewer’s recommendations:
16 In addition to the six housing contractors, there are six Health Homes which directly and/or through 13 downstream providers provide care management. It should be noted that some of these downstream providers work for more than one Health Home and some are even part of Housing Contractor agencies, like FOO, FEGS and JBFCS. There are 25 MLTCPs and seven managed care plans also involved in providing care management to class members.
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 A fast track approach to in-reach efforts has been adopted to target class members who are known to desire transition as a priority in the initial stages of in-reach.
 In-reach materials have been developed to ensure that class members receive consistent information about the Agreement and transition process.
 Quality assurance reviews by DOH of information pertaining to the assessment process have been expanded.
 Additional training for Housing Contractors, care managers and assessors has been offered and includes the use of case studies as learning tools.
 Suggested revisions to data systems employed by the State in monitoring class members’ progress from in-reach through transition out of adult homes have been made. Additionally, weekly data reports are shared with Housing Contractors and Plaintiffs.
Other recommendations, however, have not been implemented or implemented only partially. The Independent Reviewer believes these warrant reiteration in order to improve the pace at which implementation is progressing and to achieve the goals of the Settlement Agreement.
2. It is recommended that the State facilitate the creation of a dedicated pool of nurse assessors with experience in psychiatric nursing and who have received training on the Settlement Agreement, mental health housing options and the array of community services available to individuals moving to Supported Housing. Performance standards should be developed for workload size and timeframes for completion of the various assessment related tasks (e.g., completion of the UAS-NY, securing and reviewing Comprehensive Psychiatric Evaluations, completing and submitting AHRARs, etc.). These should serve as benchmarks for monitoring performance; and actual completion of these various tasks should be included in weekly data reports.
3. Considering that many class members may not be good reporters of their medical and mental health care histories, it is again recommended that the assessment and care planning process could be aided greatly by conducting a review of Medicaid data to identify class members’ current medical and mental health providers and to develop a snapshot of the services provided in the past 6-12 months which would serve as a tool in identifying their needs.
4. It has been reported that the timely receipt of comprehensive and up-to-date (within six months) Psychiatric Evaluations has been a significant factor in delays in the assessment process. Despite requests, the Independent Reviewer has not received information on the scope of this problem and the psychiatric providers involved. Thus, it is recommended that the State identify the psychiatrists responsible. To the extent that they are private practitioners outside the jurisdiction of OMH’s licensed programs and working under contract with adult homes, the State should consider arranging for an independent Comprehensive Psychiatric Evaluation to be conducted by the individuals’ HH/MLTCP or a mental health clinic. If the psychiatrists involved are affiliated with OMH licensed
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programs, OMH should exercise its regulatory authority over the program to ensure compliance with the request.
5. Where assessments result in housing recommendations for something other than supported apartments, thus curtailing the individual’s access to supported housing under the Settlement Agreement, notice should be given to Plaintiff’s counsel for appropriate action.
6. Given the reportedly high caseloads of HH/MLTCP care managers, reports of care managers not arranging for needed services (e.g., Food Stamps) by the time of a person’s transition and the ongoing problems of care managers maintaining regular contact with class members, the Independent Reviewer recommends that the State should establish reasonable thresholds for care managers’ caseload size and performance expectations.
7. In response to an earlier recommendation, the State has developed a template for care/transition planning for use by care managers. This template identifies key items that need to be addressed to ensure a safe discharge from the adult home, such as the availability of food, utilities, financial support, ADL assistance, appointments with health and mental health providers, etc. But it does not address other major domains in an individual’s life that could ensure not just a safe, but a successful and fruitful transition and quality of life in the community – issues including the individual’s interests, desires and needs in such areas as continuing/adult education, employment/volunteer activities, inclusion in culturally relevant social opportunities and faith communities, civic/community activities, etc. The Independent Reviewer again recommends the creation of a care planning template that ensures the wide range of dimensions of an individual’s life are discussed and plans put in place to address his/her needs and preferences.
8. The Independent Reviewer is impressed with the State’s initiative of convening 21-day, pre-transition telephone calls involving Housing Contractors and HH/MLTCPs to ensure that elements of a safe transition are in place prior to an individual’s move. In January, the Independent Reviewer recommended that the State consider implementing post transition calls to determine if what had been planned in anticipation of the move actually worked out, arrange for remedial action if needed and learn from the experience. As noted in the report, the State has begun implementation of this recommendation.
9. The Independent Reviewer recommends that when a class member declines assessment/transition after having expressed an interest in moving at the time of in-reach, the Housing Contractor and care manager should be immediately informed of the declination and the reason so they can take timely and appropriate follow-up action.
10. The Independent Reviewer regards it as an urgent matter to resolve access issues to all records and documents that are needed to adequately monitor the implementation of the
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List of Acronyms/Abbreviations

AHRAR CHHA CIAD CTL CDTP CBC FTL FEGS FOO HHC HCS HH HC HRA ICL JBFCS LHCSA MLTCP MHC MFY PCS PER PROS TSI UTC UAS-NY

Adult Home Resident Assessment Report Certified Home Health Aide Coalition for the Institutionalized and Aged Community Transition List Continuing Day Treatment Program Coordinated Behavioral Care Fast Track List Federation Employment & Guidance Services Federation of Organizations Health & Hospitals Corporation Health Commerce System Health Home Housing Contractor Human Resources Administration Institute for Community Living Jewish Board of Family and Children's Services Licensed Home Care Service Agency Managed Long Term Care Plan Mental Health Clinic Mobilization for Youth Personal Care Services Personal Emergency Response Personalized Recover Oriented Services Transitional Services Inc. Unable to Complete Uniform Assessment System for New York

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Appendix A Discharge Planning Tool
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 Case 1:13-cv-04165-NGG-MDG Document 63 Filed 04/01/16 Page 1 of 113 PageID #: 732

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

__________________________________________

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NEW YORK,

) Civ. Action No. 13-CIV-4165 (NGG)

)

)

Defendant.

)

__________________________________________)

__________________________________________

RAYMOND O’TOOLE, ILONA SPIEGEL, and )

STEVEN FARRELL, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, in his official

)

capacity as Governor of the State of New

)

York, NIRAV R. SHAH, in his official

)

capacity as Commissioner of the New York

)

State Department of Health, KRISTIN M.

)

WOODLOCK, in her official capacity as

)

Acting 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.

)

________________________________________ )

Civ. Action No. 13-CIV-4166 (NGG)

SECOND ANNUAL REPORT SUBMITTED BY
CLARENCE J. SUNDRAM INDEPENDENT REVIEWER

 The members of the Independent Review team, Thomas Harmon and Stephen Hirschhorn, contributed substantially in the research and preparation of this report.
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Executive Summary ...................................................................................................................................................5 Introduction ................................................................................................................................................................9 Methodology ............................................................................................................................................................11 Findings ...................................................................................................................................................................14 I. Updating the Class List ..................................................................................................................................14 II. Visits to a sample of the class members—How are they doing?.........................................................................15
A. Class members are generally happy ...........................................................................................................18 B. Class members are generally well supported in the community. ...............................................................19 C. Attending Mental Health and Social Programs ..........................................................................................23 D. Medications................................................................................................................................................24 E. Seeking Employment or Volunteer opportunities ......................................................................................25 F. Housemate match .......................................................................................................................................25 III. Issue that have arisen following transition .......................................................................................................28 A. Delays in the delivery of services ..............................................................................................................28
1. SNAP benefits. ......................................................................................................................................28 2. Other Services .......................................................................................................................................30 B. Financial Issues ..........................................................................................................................................32 1. Getting money –SSI and money upon discharge ...................................................................................32 2. Budgeting and managing money ...........................................................................................................32 C. Loneliness ..................................................................................................................................................34 D. Limited PCPs and sharing ..........................................................................................................................35 E. Repairs & Maintenance..............................................................................................................................37 F. Post Transition Events including Hospitalizations and Emergency Room Visits ......................................37 IV. In-reach. ............................................................................................................................................................39 A. Reasons for lack of interest ........................................................................................................................42 B. Discouragement .........................................................................................................................................44
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C. Performance by Housing Contractors ........................................................................................................47 D. Robust In-reach ..........................................................................................................................................50 V. Assessment ..........................................................................................................................................................53 A. Delays in the Assessment Process..............................................................................................................54 B. Declinations of Assessment or Transition..................................................................................................59 C. Inappropriate for Supported Housing.........................................................................................................59 D. MLTCP Enrollments and Disenrollments ..................................................................................................62 VI. HRA Process and Activities ...............................................................................................................................64 VII. Person-Centered Care Planning Process ........................................................................................................68 A. Ongoing Problems in Person-Centered Care Planning...............................................................................70
1. Delays in the Delivery of Services.........................................................................................................70 2. Need for Improved Communication Among Class Members and those Providing Supports ................70 3. Need for More Robust Care Planning and Training in Person Centered Planning ................................71 B. Adult Home Plus ........................................................................................................................................73 VIII. Community Transitions...................................................................................................................................77 A. Choice of housing ..........................................................................................................................................79 B. Obstacles to transitions...................................................................................................................................82 1. Preference for a different borough or neighborhood..............................................................................83 2. Fear of losing existing services or providers..........................................................................................84 3. Concerns over safety, accessibility or changing medical condition.......................................................86 4. Waiting for a housemate to be ready to move .......................................................................................87 5. Influence of family members and therapists ..........................................................................................87 6. Specific preference for one-bedroom or accessible apartments .............................................................89 C. Level II Housing ........................................................................................................................................92 IX. Conclusion..........................................................................................................................................................93 X. Recommendations................................................................................................................................................95 A. In-Reach .........................................................................................................................................................95 B. Assessment ......................................................................................................................................................97
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C. Person Centered Planning...............................................................................................................................98 D. Transition........................................................................................................................................................99 Appendix A. List of Acronyms/Abbreviations ......................................................................................................102 Appendix B. Discharge Planning Tool ..................................................................................................................103 Appendix C. Post Transition Call Checklist ..........................................................................................................111
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Executive Summary
Figure. 1. Overview of the Status of Implementation as of March 11, 20161

3779 3961

Year One (7/23/14-3/15/15)

Year Two (3/16/15-3/11/16)

3540

1256

Class Total

Had In-Reach

1657 758

1094 401

682 276

634 248

Said Yes

Assess. Complete

Ref. to HRA HRA Approved

40 245
Moved

1 The data in this report are drawn from the Defendants’ weekly reports up to Week 104, the most recent available at the time of finalizing the report.
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Out of the 3,961 class members identified as of March 11, 2016, 3,540 (89.4%) have received in-reach by a Housing Contractor, and 1,657 (46.8%) of those class members have expressed an interest in moving to supported housing. As of March 11, 2016, 2452 had been moved over the first 11 quarters that the Settlement Agreement has been in effect.3
This Second Annual Report depicts the progress made by the Defendants in transitioning class members to supported housing or other alternatives in the community pursuant to the Settlement Agreement. It is clear that the Defendants have made significant strides in conducting in-reach to almost 90% of the class and in increasing the pace of community transitions, particularly as compared to the previous year. As importantly, as described in this report, the Independent Reviewer has found that class members who have made the transition are, with few exceptions, generally doing well in their new homes and are happy to have made the move. (Report, Section II, pp. 15-27) For them, the promise embodied in the Settlement Agreement of a meaningful choice to live a more independent, self-determined life is being fulfilled. The staff of Housing Contractors, Health Homes and MLTCPs and their care managers have provided support and linked them up to medical and mental health services to keep them healthy and safe. Yet, there is more work to be done in helping them with financial planning and budgeting, and to re-connect with life in the community to assure more than re-location, to actual integration into the civic and social life of the community. (Report, Section III, pp. 27-38) The Defendants have recognized this and are embarking on a promising course of additional training for care managers in Person Centered Planning in partnerships with the New York Association of Psychiatric Rehabilitation Services, Inc. (Report, Section VII, pp. 67-72)
2 Although 245 class members had transitioned from adult homes as of March 11, 2016, four returned to adult homes and will continue to receive in-reach as active class members. This is not reflected in the State’s weekly reports, the most current of which (Week 104, ending 3/11/16) indicates that 244 transitions have occurred. This is due to two limitations in the weekly reporting system: first, it does not reflect readmissions to adult homes; and second, sometimes data concerning an individual is overwritten when a new event occurs. For example, class member R.M., was transitioned to supported housing in 2015 and returned to an adult home. In early 2016, she again expressed interest in transitioning at which point data pertaining to her 2015 transition were overwritten/deleted. Consequently, she is not counted as a transition in subsequent weekly reports, although the other three transitioned individuals who returned to adult homes but have not expressed a renewed interest in transitioning continue to be among the 244 identified as having transitioned in the Week 104 report.
3 The State has noted that the Settlement Agreement did not come into effect until the Court’s final approval was ordered on March 17, 2014, and that in-reach efforts began on the same day, and assessments on April 3, 2014. The timelines in the Settlement Agreement, however, are measured from the date of its execution on July 23, 2013.
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As described in the body of this report, some concerns remain. First, although the pace of transitions has increased, it is still slower than what would be required to meet the Settlement Agreement goals for Year Four and Five. Perhaps because there are now more class members in the transition pipeline, it is taking longer cumulatively for the class as a whole to navigate the multiple steps leading to community placement in Year Two then it did in Year One. (Report, Section VIII, pp. 75-78)
Second, the problems with the assessment process described in the First Annual Report (pp. 20-28) have remained a stubborn obstacle, even past the September 30, 2015 deadline the Defendants established to eliminate the backlog, although progress has been made. (Report, Section V, pp. 53-58) The new initiatives implemented by the Defendants – Adult Home Plus, (Report, Section VII, B, pp. 72-75), changes to the requirement for a Comprehensive Psychiatric Evaluation and authorizing the use of psychosocials performed by a broader array of clinicians – are very positive developments, as are further actions under consideration. But until they are fully in place and the results can be measured, it is unclear whether they will eliminate the problems experienced to date.
Third, it is troubling that the proportion of class members saying Yes at in-reach has been falling to the extent it has, and that class members continue to drop out of the process even after they have said Yes. (Report, Section IV, pp. 38-52) This trend requires further investigation by the Defendants of the use of Motivational Interviewing during in-reach, of the training of in-reach workers and the strategies used for effective-in reach, as well as the adequacy of staffing of the inreach teams and the use of peer advocates in this role. Here again, the implementation of Adult Home Plus and the consistent, early engagement of the care manager with a small caseload of class members may help prevent dropouts by involving them early and often in the transition planning process. This new resource may also be a critical means of addressing some of the problems, described in this report, that class members who have transitioned have experienced with delays in accessing the services and supports they require.
Fourth, there are many delays in the final step to transition following HRA approval of their applications, some of which are inherent in the process of honoring choice for class members and in the significance of the decision for the individual. (Report, Section VIII, B, pp. 81-91) Nevertheless the adequacy of staffing of the Housing Contractor teams who assist class members locate suitable apartments needs to be examined to determine if there is sufficient capacity to process the growing number of class members who are completing the earlier stages of the process.
To address these and other issues discussed in the report, the Independent Reviewer offers several recommendations for consideration. (Report, Section X, pp. 95-100) A parties’ meeting has
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Introduction
Paragraph 13 of the Settlement Agreement requires the Independent Reviewer to provide five written annual reports to the parties and the Court regarding the State’s compliance. Paragraph 14 of Section L of the Settlement Agreement in this matter provides:
A draft of the Reviewer’s report shall be provided to the Parties for comment each year within 30 days after the anniversary date of the Court’s approval of this Agreement. The parties shall have 30 days after receipt of such draft report to provide comments to the Reviewer, on notice to each other, and the Reviewer shall issue to the Parties a final annual report within 15 days after receiving such comments; provided, however, that the parties may agree to extend such deadlines.
The Court’s final approval of the Settlement Agreement was filed on March 17, 2014. Based on that date, the Independent Reviewer prepared and submitted to the parties a schedule for the preparation of the required five annual reports. For the second year, the schedule requires that the Independent Reviewer’s draft be provided to the parties by February 16, 2016, with their comments due by March 17, 2016, and the final report submitted by April 1, 2016.
A draft of this report was provided to the parties on February 16, 2016, and comments were received on March 17, 2016. The Independent Reviewer has carefully considered all comments in preparing this final report.
The Independent Reviewer's Report for Year 1 focused heavily on the preparatory steps taken by the State to implement the obligations of the Settlement Agreement and on the early implementation actions and the development of policies, procedures and practices. Consistent with the directive in the Settlement Agreement that the Independent Reviewer pursue "a problemsolving approach" (¶ L.7), the Independent Reviewer provided regular progress memos to the parties with recommendations for more effective implementation of the Settlement Agreement (see Annual Report, pp. 67-71, Doc. # 36, filed 3/30/15, hereinafter "First Annual Report"). Subsequently, at the Court's direction, the Defendants filed a report on July 1, 2015 (Doc. # 46-1), identifying the recommendations they had accepted and begun implementing, recommendations they had modified and begun implementing, and recommendations that were not accepted. The results of the actions taken by the Defendants can be assessed by the data regarding the pace of change in the performance of critical tasks that are necessary for implementation of the Settlement Agreement and transitioning interested and eligible class members to supported housing or other
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less restrictive and integrated environments in the community. These data are discussed in Section VIII of this report and speak for themselves.
An important limitation regarding the data in this report ought to be noted at the outset. The Independent Reviewer and the Plaintiffs receive regular weekly reports from the Defendants on the progress being made in each of the many steps of the transition process. These reports in turn are drawn from data reported to the Defendants by the adult homes, Housing Contractors, Health Homes and MLTCPs, some of which also rely upon downstream providers to deliver services and report upon them. In addition to these weekly reports, the Independent Reviewer has requested and received from the Defendants various data reports in the course of preparation of this annual report. It has been our experience that both the weekly reports and the other data reports we have received contain missing information, anomalies and inconsistencies, and some obvious errors for a variety of reasons. These include incomplete data submission by vendors, inaccurate recording of data, and errors in compiling the reports from several different data sources. Assembling data on different dates can also result in inconsistencies, as the underlying data bases are "live" and are constantly changing due to admissions and discharges.4 In some cases, these have been called to the attention of the Defendants. We alert the reader that the statistical analyses contained in this report, to the extent that they rely on the data provided as described above, may not be precisely accurate although we do not believe that any errors are large.
The primary focus of this report is on the experiences of class members who have gone through the in-reach, assessment, HRA approval and care planning processes, and have been transitioned to supported housing in the community which is the ultimate objective of the Settlement Agreement. The purpose of doing so is to celebrate their success, recognize the efforts of those who have made it possible, and reinforce practices that are working well to achieve this objective. In a few instances, the initial transitions did not work out as expected and modifications were required – sometimes to a different level of care and support, and sometimes resulting in a return of the class member to the adult home. Such experiences in supported housing should not be regarded as failures. With the strong presumption in the Settlement Agreement that virtually all class members are qualified for supported housing, it is not unexpected that the presumption proves incorrect in some cases. It is also foreseeable that persons who have a serious mental illness, like other serious illnesses, will experience periods when their illness requires hospitalization or a
4 To address this issue, the Independent Reviewer has recommended that the Defendants preserve a "frozen" copy of the databases, as they exist as of the date when data is reported for the Defendants’ Quarterly Reports and the Independent Reviewer’s Annual Report. This practice would reduce the level of confusion and enable all parties to work with a single set of consistent data. Defendants were receptive to this recommendation.
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higher degree of support than can be provided in supported housing. These events are a source of further learning about how to best support class members with intensive needs in the community. To that end, in this report we will describe in some detail our review of a sample of 28 class members (11% of all class members who had been transitioned by March 11, 2016).
Methodology
Over the past year, the Independent Reviewer and his associates (Thomas Harmon and Stephen Hirschhorn) continued monitoring the implementation of the Settlement Agreement in accord with the provisions of the Agreement and a Monitoring Plan developed by the Independent Reviewer and approved by the parties as described in detail in the Independent Reviewer’s First Annual Report.
Generally, the Monitoring Plan called for reviewing training materials and tools developed for frontline staff responsible for transition-related activities; site visits; interviewing class members and reviewing their records on a sample basis; observing and participating in various transition-related activities (e.g., in-reach, assessment, care planning, etc.); and reviewing and analyzing reports by the State and its contractors concerning implementation activities.
The Monitoring Plan also called for the Independent Reviewer to provide the parties with regular reports of findings and observations as well as recommendations to facilitate the successful implementation of the Settlement Agreement. In addition to formal communications, such reports would be made in writing or at periodic meetings with the State and Plaintiffs with the goal of providing the parties with information as early as possible to enable them to act as warranted to achieve the shared objective: successful implementation of the Settlement Agreement.
Among the specific monitoring activities carried out by the Independent Reviewer and his associates during the past year which inform the content of this annual report were:
1. Participated in and observed eight training sessions sponsored by the State for Housing Contractors, Health Homes and MLTCPs. These educational sessions focused on the goals of the Settlement Agreement and the skills these frontline staff required in conducting inreach, assessment, care planning and care management. Also, we participated in Statesponsored training for mental health providers designed to acquaint them with the Agreement.
2. Reviewed the database structures developed by the State Department of Health (DOH) and the Office of Mental Health (OMH) to capture and record data, and made recommendations regarding the same. 11

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3. Reviewed tools and guidelines developed for use by frontline staff responsible for in-reach, assessment, person-centered planning/management and transition.
4. Participated in regularly scheduled State-sponsored meetings of all eight5 Housing Contractors responsible for in-reach, supported housing development, transition of residents and their housing/case management following transition.
5. Met with representatives of the Coalition of Institutionalized Aged and Disabled (CIAD) and the Office of the State Long Term Care Ombudsman which provide advocacy services on behalf of adult home residents and are active in homes covered by the Settlement Agreement.
6. Met with 134 class members during educational, in-reach, assessment and care planning sessions or after their transition to supported housing.
7. Also participated in care planning and transition related conference calls for 162 class members including:
 68 pre-transition conference calls in which Housing Contractors, HH/MLTCP staff and DOH and OMH representatives confer to ensure that all elements of a successful transition (housing, utilities, community supports, entitlements/benefits, etc.) are in place for an individual. Such calls usually happen about three weeks before the individual moves.
 44 post-transition conference calls in which Housing Contractors, HH/MLTCP staff and DOH and OMH representatives discuss how an individual’s transition went and any outstanding matters in need of attention following the transition. Such calls usually happen about three weeks after transition.
 17 “Level II” conference calls. These interdisciplinary calls involving Housing Contractors, HH/MLTCP staff and DOH and OMH representatives focus on individuals whose assessment resulted in a recommendation for transition to a level of care higher than that provided in supported housing. They are intended to revisit and probe the issues that prevented a recommendation for supported housing placement and ensure that appropriate services are put in place expeditiously to
5 There were originally nine Housing Contractors, but FEGS went out of business and its operations were absorbed by the Jewish Board of Family and Children’s Services (“JBFCS” or “JB”). In some places in the report, these are referred to as JBI and JBII.
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facilitate the individual’s ability to transition to supported housing and/or support his or her needs as they transition to Level II housing.
 33 miscellaneous calls concerning individuals whose care plans or situations required special attention by Housing Contractors, HH/MLTCP staff and/or DOH and OMH representatives.
8. Conducted an in-depth review of a non-random sample of 28 class members who had transitioned from adult homes to supported housing. This involved reviews of their Housing Contractor and HH/MLTCP records as well as reports from the Psychiatric Services and Clinical Knowledge Enhancement System (“PSYCKES”); interviews with key staff; and, with their permission, visits to their apartments to observe their new environs and to hear their perspectives on their transition, their new living arrangements, the adequacy of services and matters that might be improved.
9. Conducted a special review of a sample of the 74 class members from New Haven Manor who reportedly signed a letter indicating they did not want to be transitioned. The review entailed an analysis of their status/experience in the transition process, interviews with nine class members at off-site locations and interviews with Housing Contractor and MLTCP staff supporting the majority of the individuals.
10. Follow up on complaints registered with the New York State Justice Center concerning interference or discouragement by adult homes operators or other issues referred to DOH which were brought to the Independent Reviewer’s attention.
11. Through the above activities, had opportunities to observe and/or review the work of all Housing Contractors and most of the HH/MLTCPs and their downstream providers involved in the implementation process.
12. Reviewed case-specific data reported weekly by the State on implementation activities as individuals pass through the in-reach, assessment, care planning, HRA approval and transition phases of the Settlement Agreement, as well as quarterly reports and other reports prepared by the State on the status of the Settlement Agreement’s implementation.
13. Maintained almost weekly contact through telephone calls and emails with DOH and OMH staff responsible for Settlement Agreement implementation and had face-to-face meetings with such staff on nearly a monthly basis to share the Independent Reviewer’s observations and to discuss progress, developments and changes in the implementation process.
14. Secured a Court Order and memoranda to the field affirming the Independent Reviewer’s access to facilities and records germane to the Settlement Agreement.
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15. Issued several progress memos and other memos to the parties on the Independent Reviewer’s activities, findings and recommendations where warranted and participated in four parties meetings to discuss the status of implementation and the Reviewer’s observations. In addition, maintained regular contact with the attorneys for the Plaintiffs and the USDOJ through email and periodic telephone conferences.
16. Participated in four status conferences and hearings convened by the Court.
The Independent Reviewer and his team have relied upon the cooperation of the staff from the Department of Health and the Office of Mental Health in responding to innumerable requests for data and information. They have been generally responsive to requests for information that has been needed to perform our monitoring functions. We have also received assistance from the staff of the NYC Human Resources Administration. The staff of the Housing Contractors, Health Homes and MLTCPs, and their downstream providers, have also been cooperative with the Independent Reviewer and generous in their time and assistance. We have also had unimpeded access to the impacted adult homes to meet with class members and observe in-reach and assessment sessions. The Independent Reviewer would like to acknowledge the assistance of all of these parties, which has been of immense help.
Findings
I. Updating the Class List
The initial certified class list contained 3,867 names, to which seven additional class members were added, for a total of 3,874, which was reported to the parties and the Court on June 10, 2014 (Doc. # 30-1). The Department of Health has periodically updated the class list based on rosters that it receives quarterly from the adult homes reflecting admissions, discharges and deaths. As of June 30, 2015, 925 people were added to the list to reflect new admissions to impacted adult homes, as well as the identification as class members of persons previously admitted. Subsequently, similar adjustments have been made. 6
The most recent class list as of March 11, 2016 requested by the Independent Reviewer contained a total of 5,007 class members. However, since this list contains all persons who have ever been identified as a class member and does not remove names as people die, are discharged or
6 It should be noted that while the focus of the parties and the Independent Reviewer has been on transitional discharges of class members through the process established by the State pursuant to the Settlement Agreement, class members residing in the impacted adult homes are also discharged outside this process. (See, Fig. 8 in Section VIII)
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are subsequently determined not to qualify for class status as they do not have a serious mental illness, it overstates the number of people who are eligible to be transitioned to supported housing or other alternatives pursuant to the Settlement Agreement. As such, the Independent Reviewer also asked for additional or clarifying information in order to determine a more accurate "workload" for this transition process. The additional information resulted in identifying and removing 1,046 people from the total due to death or other reasons, reducing the list to 3,961. Of these, as of March 11, 2016, 245 had been transitioned to the community, leaving 241 who continue to live in the community. The four individuals who returned to adult homes were placed back on the current active class member list leaving 3,720 "active" class members eligible for assessment and transition pursuant to the Settlement Agreement.

Grand Total class members
Non-SA discharge
Deceased
Not a class member SA transition
SA transition but returned to adult home Current active class members
Table 1. Active Class members7

5007 -707 -302 -37
-245 +4
3720

II. Visits to a sample of the class members—How are they doing?

As explained earlier, an important part of the monitoring work of the Independent Reviewer team was visiting with and reviewing the services and supports provided to a sample of 28 class members who had left the adult home between December 1, 2014 and April 28, 2015. In selecting the sample, an effort was made to review transitions that occurred early enough that class members had been living in the community for several months. The sample included class members from 11 adult homes, who were served by six different housing contractors. They were also provided behavioral health services from five Health Homes and 15 of their care coordinators, and provided managed long term care services by three MLTCPs and 11 care coordinators.

7 There is a need to clarify the status of the 707 class members who were discharged outside the Settlement Agreement process to determine whether there is any continuing right to the benefits of the Settlement Agreement. This is an issue that should be addressed by the parties.
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The sample included 11 women and 17 men. The youngest was a 34 year old woman and the oldest a 75 year old man. There were seven class members in their 40s, 13 in their 50s and six in their sixties. Six had lived in an adult home for five years or less, six had been there for 10 years or more, and the rest in between. The members of the class are a diverse group with some physically healthy and able to function independently with relatively little support, while others have significant medical and mental health problems that require on-going treatment and who need support to attend their appointments, and follow their treatment plans. These class members also have variable degrees of support in the community from family, friends and peers. Given this diversity, the development and implementation of person centered plans needs to be highly individualized.
In conducting this review, we obtained and reviewed case notes from Housing Contractor case managers, Health Home and MLTCP care coordinators, and the nurses and PCWs/HHAs who provided them with direct services. We also obtained and reviewed a summary of medical and mental health services provided to them over the past two years as compiled from Medicaid claims data in the Psychiatric Services and Clinical Knowledge Enhancement System (PSYCKES) maintained by the NYS OMH. We met with the class members in their homes and, as available, interviewed their case managers, care coordinators and Home Health Aides, PCWs or RNs who provided them with direct support. In some cases, we also spoke to supervisory staff at the housing contractors, MLTCPs and Health Homes, and mental health programs they attended.
Perhaps because of the length of time since their transition from the adult home, the anxiety and frustrations of the multi-stage transition process on which we reported in the First Annual Report were no longer uppermost in the minds of class members we interviewed. In fact, looking back, virtually all of them expressed the view that the process did not take too long. While some were clearly more impatient than others to leave the adult home, others also said that the length of time provided them an opportunity to adjust to the responsibility of living independently after many years of relying on the adult home for meeting their basic needs of daily living. A few said that it was a difficult step to take and having time to make the final decision allowed them to work through their doubts.
PG, a 60-year-old woman, who had lived in an adult home since her husband died in 2008, finally moved out with her romantic partner on April 18, 2015. She was initially interested in moving to supported housing when she heard of the opportunity, but was not in any hurry to do so. In November 2014, she told her care manager that she was not thinking of moving out for another year. In December 2014, she disenrolled from her Health Home but reenrolled in January when she decided that she wanted to move out. She began visiting apartments in March, and chose the second one she saw.
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Most of the class members in the sample live in two bedroom apartments in the community, in residential neighborhoods with a diverse population, close to grocery stores, pharmacies, banks, laundromats and other shopping. The apartments are generally close to public transportation via bus or subways. Some are close to parks, public libraries and churches. While some class members took the first apartment they were shown, most had looked at more than one apartment before accepting the place they finally chose. They considered the neighborhoods, their familiarity with it, proximity to people they knew in the community and to their service providers, safety, and easy accessibility via limited steps or availability of elevators. In some cases, after selecting an apartment they liked, they asked to change their medical provider or Mental Health program due to the distance.
All the apartments provide class members with their own bedroom furnished with a bed, dresser, night tables, lamps, sheets and pillows. Housing Contractors vary in their approach to furnishing the apartments. Some allow the residents choice in how to furnish their apartments, while others seem to have made purchases of the same furniture for the all the apartments. Typically, the living rooms are furnished with couches and love seats, end tables and lamps, and some with coffee tables. There is a dining table with two to four chairs. The kitchen has a stove, refrigerator, microwave (except for one Housing Contractor, which also later decided to provide these), and a set of dishes, flatware and cooking utensils. Bathrooms have towels, shower curtains and shower mats. Mops, brooms, garbage cans, and cleaning supplies are also typically provided. Some Housing Contractors provide additional items like coffee makers, toasters, air conditioners/fans, alarm clocks, area rugs, wall and window decorations, fire extinguishers, carbon monoxide detectors, laundry bags, hangers, flashlights and batteries, and TVs.
At the time of the move, Housing Contractors make sure that all the basic food, cleaning, toiletries and other supplies needed are present in the apartment. Most apartments did not have pictures or decorations on the walls, unless the residents had elected to put up decorations themselves, and as a result many had an impersonal feel. A few stood out in this respect. The apartment of 55-year-old AK, who moved in on April 16, 2015 had art on the living room walls, religious symbols, a crucifix and a picture of the Pope. SL & CS had decorated their living room and hallway for the Christmas season, and displayed cards they had received from friends.
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Apartment of SK (Photograph by Stephen Hirschhorn)

Although many of the bedrooms were equally spartan in decoration, class members are

more likely to decorate their bedrooms to their taste. A woman in her 30s had put up large posters

of the singer Kurt Cobain on the walls of her bedroom. Another had numerous family photographs

displayed on her dresser. A few had collections of stuffed

“I love it! I have my own place. I am living in the real world. I’ve

animals in their rooms. A man in his 50s had hung up artistic paintings and drawings he had made, along with a handmade calendar detailing his scheduled activities. Another class member had a collection of erotica displayed on the walls of his

made it out. Before, I was just existing. Now I am living.”

bedroom. Many residents had added TVs, stereos or other audio equipment to their bedrooms. Several Housing Contractors now provide their residents with a flat screen TV as a standard part of the furnishings.

A. Class members are generally happy Virtually all class members, even those who had difficulties during the transition process, reported being happy to ecstatic to be out of the adult home and in their own apartment. The types of statements they made included:

“It took a while to adjust, but I wanted to leave so badly. . . . I wouldn’t go back!"

"It's a great experience. [I would advise others] do it before you get too old or sick to do it. Go for it now."

Common themes that emerged from conversations with class members who had moved were:

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 Enjoying the privacy and quiet rather than the noise that is inherent when large numbers of people live together.
 Having their own rooms.  Being able to keep to their own schedules and eat what they wanted when they wanted
(usually accompanied by loud criticisms of the food at the adult homes).  Being able to cook their own meals, especially for those who enjoyed ethnic food.  Not having to share a bathroom with four or more people.  Choosing the people to interact with and having a place to invite friends and family.  Having more spending money.  Feeling safe in their apartments and neighborhoods.  Not being around people who smoked all the time.  Appreciating the assistance of Home Health Aides in cooking and cleaning.  Meeting neighbors in their walks around the community and making new friends.  Taking more responsibility for themselves.  Feeling supported by case managers and care coordinators. "They believe in me," one class
member said.

B. Class members are generally well supported in the community.
Class members reported making use of the resources in the community such as shopping, using laundromats, going to the movies, libraries, walking or jogging around the neighborhood, fishing off the docks and piers, learning to cook, eating out at restaurants, taking computer classes and preparing for GEDs.
Class members in the sample are well supported in the community through the efforts of the staff of Housing Contractors, Health Homes and MLTCPs. With rare exceptions, the early difficulties with coordination between the staff of housing contractors, Health Homes and MLTCPs also seem to have improved very significantly, with better and more regular communication. It was common to see plans that called for close monitoring and support of the class members at the point of transition and for the first weeks thereafter, with the intensity and frequency of visits tapering off as people settled into their new lives in the community and appeared to be managing well.
19

Perhaps the most dramatic example of more spending money was a class member
who had been a private pay client for eight and a half years and paid $2000/mo. to the adult home. Now
he pays 1/3 of his social security income as rent, which works out to $238/mo. after the utility reduction.
As this happened, there was

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greater reliance on telephone contact, monthly face-to-face visits and regular RN monitoring of medication compliance and supervision of HHAs.
A review of progress notes from the agencies supporting class members showed a high level of communication and interaction, and a clarification of their respective roles and responsibilities. Our review of the progress notes revealed frequent face-to-face meetings with class members, phone calls, and contacts with collaterals to arrange services, and to follow up on medical, mental health and other support needs.
 RS, 46, and FM, her 58 year old companion, moved out of an adult home on January 12, 2015 after having lived there for 14 and 16 years respectively. Each is served by a different MLTCP. Although RS functions independently and manages her medications, nevertheless initially she was provided with regular nursing visits and aide services. These were weaned at her request as it became clear she did not need them and was compliant with medical and mental health appointments. Her companion, who is older and has greater medical needs, took longer to go through the transition process, slowing the discharge for both of them, as RS would not leave the adult home without him. Both are happy to be in their own apartment and FM is extremely satisfied with his current Personal Care Worker, after having asked to change the previous one whom he found difficult to work with. Following their transition to supported housing, both had their representative payee status changed from the Housing Contractor to themselves, in order to get access to their money more quickly.
 JC & CH, a couple in their 40s, moved out of Kings Adult Care Center on December 1, 2014 and into a two-bedroom apartment. The apartment seemed open, bright and airy, clean and odor free. Neither of them wanted to be involved in day programs. HC enjoys cooking, especially spicy Caribbean food, and JC shops at the local fish market and butcher shop. HC talked about his love of cooking, displaying a shelf full of spices in the kitchen and explaining: "I am Caribbean, I use them all!" They accompany each other on their visits to doctors and clinics, and spend their free time socializing with RS and FM, another couple who were discharged from the adult home and live in a nearby apartment.
Perhaps reflective of the difficulty of this work and the intensity of the needs of some class members, despite this generally high level of support, four of the people in the sample as well as four other class members moved from supported housing to other housing as they (or their family members) desired or as they required a higher level of supervision and support.
 PGD, a 64-year-old man, left the adult home on February 26, 2015 and moved to a supported housing apartment. He was provided support by the Housing Contractor,
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a Health Home care coordinator, visiting nurse services and mental health

programs. He received home delivered meals while SNAP benefits were being

applied for. He did not wish to participate in day/social programs and the Housing

Contractor became his rep payee. This transition was uneventful and progress notes

reveal frequent contacts by the care coordinator with PGD as well as collaterals

such as mental health providers, VNS, medical providers, etc.

However, a few months after his transition, he developed medical problems,

including a foot infection which required hospitalization, surgery and a course of IV

antibiotics. Due to his difficulty with walking, and pain, the Housing Contractor

secured a new first-floor apartment to which he was discharged in May 2015.

Visiting nurse services were arranged, as were aides to assist him with household

tasks. In June, it was determined that he needed insulin injections, in addition to his

oral medications. The VNS arranged for glucose monitoring supplies and instructed

him in self-administering his injectables.

Problems with recurrent infections/foot pain continued through July and August. He

claimed he was losing sensation in his legs/feet and would bump into things and

injure himself without knowing it. He was being followed by a podiatrist and

vascular surgeon, but on occasion required emergency room care. In August, he

was informed that he would require an angiogram and possibly inpatient admission

for surgery to address the arteries in his legs.

At this time, he reported to staff that he wanted to live in an assisted living

program…he wanted to live in a “controlled environment”

In most of these cases,

following the procedure. Also in July and continuing in August a new problem emerged. PGD believed he was

there were diligent efforts to maintain

addicted to his benzodiazepine and needed to go to rehab. He would visit hospital emergency rooms, sometimes calling staff to say he was at an ER but not mentioning which one.

their supported

By early September when visited, PGD was hunched over in

housing and OMH and

pain. The VNS reported that he was attributing it to his medication addiction, but that he appeared stable and not in

DOH provided close

danger. The nurse wasn’t clear if the pain is medical or

supervision and monitoring of over the

psychosomatic but, because of it, he was not keeping medical appointments and was running low on meds/scripts. It was arranged to have a doctor visit him at the apartment for an

issues class members were encountering in

evaluation and medication renewal on September 15, 2015. Following this, PGD’s psychiatrist arranged for him to be treated at Mercy Hospital. He was escorted there by his

supported housing.

Health Home care coordinator. PGD was admitted to a

medical service for treatment of his leg(s) but followed by

psychiatry daily. There was communication among OMH,

DOH, the Housing Contractor and the Health Home to make sure that the latter two

work with the hospital discharge planning team to ensure that everyone was aware

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of not only the wrap around services available, but also the different types of housing available so PGD could make an informed choice when ready for discharge. At Mercy, PGD was treated for his foot/leg infection, but it was anticipated that he would require six weeks of IV antibiotic therapy following discharge. On 9/24, PGD was discharged to a rehabilitation facility for six weeks of continued antibiotics. Shortly afterwards he told his case manager that he wanted to tour supervised housing. While in the rehabilitation facility, he claimed that he was “in pain all over and no one will listen to my wails.” He required admission back to Mercy at least once and returned to rehabilitation on 10/6 with a plan for three more weeks of antibiotic therapy. Following his rehabilitation stay, PGD was admitted to a CR-SRO program operated by the Housing Contractor.
 46-year-old ME moved to supported housing on December 8, 2014 after living in an adult home for eight years, but was transitioned on or about August 1, 2015 to a CR SRO in the Bronx. Although his mental health program, MLTCP and Housing Contractor all believed he would be an excellent candidate for supported housing, as he was intelligent, personable and independent in life skill areas, there were other factors that came into play and ultimately required a second move. He expressed a strong desire for more choices and independence. During care planning, he accepted the services of an aide and a nurse to monitor his medications but refused Meals on Wheels. While there were a number of issues that arose following his transition from the adult home that were common to other class members as well (delays in enrolling him in a Health Home due to issues with an Administrative Services Agreement (ASA), problems with utilities in the building, delays in delivering medical supplies like adult diapers, etc.), his tenure in supported housing was undone by many decisions that he himself made, despite the support he received from the staff of the Housing Contractor, MLTCP and Health Home care coordinating agency.
Although like other class members, his apartment was appropriately furnished and he was provided with adequate food, he seemed to be taken advantage of by "friends" who hung out in his apartment. Furniture was found to be missing from his apartment and he was often short of food. While awaiting full SNAP benefits, the Housing Contractor would buy him groceries to last two weeks at a time, but the food would be gone within days. He also ran up a bill at a local bodega by buying items on credit. He ran into problems with managing his money by buying expensive things like steaks to feed his "friends." About six weeks after his transition, he started missing therapy appointments, and refused an offer to use a pillbox or blister pack medications, which would have facilitated pill counts. His behaviors began to change as he was selling items, including his phone, to buy cigarettes. He began experiencing urinary incontinence, but refused to wear the adult diapers
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when they were made available. Although he was offered aide services seven days a week, he limited them to five days and would not change the schedule to the mornings so they could assist him get ready to go to appointments. While he continued to attend the mental health clinic for his monthly injections, he would not go to the therapy sessions. He was often soiled and malodorous, claimed he had no money to do laundry even though he was receiving $50 per week from the Housing Contractor in addition to his full SNAP benefit.
By March 2015, he was experiencing bowel incontinence and was found naked in his apartment with feces smeared around. His mental health program recommended a more supervised setting. In April, the Housing Contractor visited in response to complaints from neighbors that he was yelling, panhandling in the street, urinating/defecating in the building’s hallway. He was admitted to the hospital for hyperglycemia and disorganized speech. When he was discharged on April 8, the plan was for him to enroll in a day program but he refused. Progress notes for the following weeks described ME missing appointments with providers, canceling aide services or not being home when the aides arrived, giving his possessions away, chain smoking, eating and drinking unhealthily, and "friends" using the apartment as a hangout. The apartment itself was described as malodorous, with soiled diapers on the floor and flies. (All through this time from February 5 to April 14, the enrollment into a Health Home remained “in progress.”)
ME was offered more intense community services and peer support services but refused. Eventually, on June 3, he was admitted to a psychiatric unit for a stay of approximately two weeks. A plan was developed to transition him to level II housing, although he wanted to stay in his apartment. The developments in this case were closely monitored by the MLTCP, Housing Contractor, OMH and DOH, and as his care approached crisis levels, the Independent Reviewer and Plaintiff's counsel were notified as well. Eventually he was transitioned to a CR-SRO in the Bronx and since then has been doing well, attending a day program five days a week and living in his own studio apartment with a fully equipped kitchen and private bathroom.
C. Attending Mental Health and Social Programs
Class members have the opportunity to and are encouraged to attend mental health clinics, social day programs, clubhouses or PROS programs and most attend one of more such programs at least several times a week. Thirty-one class members who have transitioned to supported housing, including 11 of the 28 in our sample, had received PROS services in the past year. Some of them spoke positively of the opportunity to go to group programs where they could "let their hair down" and discuss their concerns with therapists and peers who could provide support. One who attended a PROS program liked that “you set goals for yourself,” and attended and found helpful groups on
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Understanding Depression and How to Deal with Anxiety.

However, eight of the 28 class members in our sample chose

Class members have

not to attend any day program but instead opted to spend their day as they wished. For most of them, this meant spending

the opportunity to and

long stretches of time in their apartments, watching TV, listening to music, reading, shopping and taking the occasional

are encouraged to

walks in the neighborhood. A few complained of loneliness but

attend mental health

also seemed disinclined to taking advantage of available community resources such as public libraries, senior citizen

clinics, social day

centers, or clubhouses that would provide them the opportunity for social interaction.
D. Medications Recognizing that an important element of successful

programs, clubhouses or PROS programs and
most attend one of

community living for many class members is keeping their symptoms under control and maintaining compliance with their

more such programs at

medication regimen, registered nurses provide medication

least several times a

education to class members and, for those who needed assistance with their medications, they arranged for mediation

week.

doses to be pre-pored or delivered in blister packs. They also

made regular visits to monitor medication compliance, do pill counts and also enlist the assistance

of HHAs to provide reminders to class members about taking their medication.

Despite these efforts, some class members (like ME, discussed above) ran into difficulty.

 SK, a 42-year-old class member who transitioned January 27, 2015, experienced problems with managing her medications following discharge from the adult home. Within a month of her discharge, she was also disenrolled from the MLTCP which had been providing her service during her stay in the adult home. Starting in March 2015, there were continual problems noted in the area of medication management. She took 14 medications but was constantly running out of Klonopin, which she apparently used more than prescribed when she was feeling anxious. Concerns about her running out of medication resulted in ER visits on March 16, 2015 and April 21, 2015. Three days later, she had run out of medication again and called 911. When EMS arrived, they found her barefoot in the street and she was taken to Coney Island Hospital and admitted to psychiatry, where she remained until May 5, 2015. The dosage of her Klonopin was reduced. A month later, she again called EMS and was once again admitted to Coney Island Hospital until June 17, 2015. Upon her discharge, as a

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Case 1:13-cv-04165-NGG-MDG Document 63 Filed 04/01/16 Page 25 of 113 PageID #: 756
strategy to deal with the medication management problems, it was arranged for her to receive a weekly supply of her medications from the pharmacy in blister packs.
 GG, 55, also had issues with self-medicating to aid sleep and ran out of his medications on several occasions, requiring emergency replenishment.
E. Seeking Employment or Volunteer opportunities In some cases, class members who expressed an interest in working were getting assistance from the PROS program in developing plans for necessary education or training (e.g. attending a program to become a peer advocate, learning to use a computer, etc.). Others who had expressed an interest in working were not yet ready to follow through on their plans, such as preparing to teach driver’s education.
 AF had secretarial training and wanted to freshen up her Microsoft Office skills and get employment. Through PROS, she was being referred to Access VR to pursue this. Her housemate, RG, who had never graduated high school, wanted to get her GED through PROS. AF had a laptop and an e-mail account and said she would teach RG how to use it.
 PC wanted to work on her GED but felt that her care manager was not being helpful and reported that to her care coordination agency. The agency contacted the care manager to offer assistance in helping him find a GED program, which he agreed to do, since it might be good for them all to work on this goal.
 JL, a 52-year-old man, wanted to work, and the AHRAR reflected his desire for supported employment. A review of the case notes of the care management agency showed no further references to his interest in employment. However, he was enrolled at a PROS program, and this was identified as a goal for him. He attends regularly and still wants to get a job doing office work. F. Housemate match Many class members are offered and accept two-bedroom apartments, and some three-
bedroom apartments, where each have their own bedroom, but share a common living room, kitchen, dining area and bathroom. The economics of the housing market are such that there is more two-bedroom and three-bedroom housing stock available within the price range for supported housing than one-bedrooms and studios which some class members prefer. Although most Housing Contractors responding to the OMH RFP envisioned offering a choice of studio/one bedroom
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apartments, the reality has unfolded differently.8 In many cases, class members select someone they know with whom to share an apartment. Many class members who are friends and romantic partners have taken advantage of the availability of a two-bedroom supported apartment to move in together. In other cases, the Housing Contractor arranges a pairing of class members who were both interested in leaving an adult home for a supported apartment, but may not have known one another previously. Some class members are more active in this selection process than others, and the results have been variable.9

 A pairing that has worked well is that of 48-year-old BS and 60-year-old HC who moved within days of each other in January 2015 from two different adult homes. They did not know one another prior to moving in together. Both are served by the same MLTCP and have the same home health aide during the week who helps maintain the apartment and occasionally cooks for them. On weekends, a second home health aide provides assistance to HC. The same nurse who supervises the home health aide visits the apartment once a month.

BS, who had lived in an adult home for 12 years, is the more independent of the two, happy to do things for himself including managing his own medications, shopping and preparing his own meals. He attends weekly therapy appointments on his own but otherwise spends his time in his room, watching TV or reading the Bible.

Some class members are more active in this selection process than

HC had lived in an adult home for three years and was others, and the results

at a Men's Shelter for two years before that. He is under

legal guardianship and is in need of much more

have been variable.

intensive support in areas of medication compliance,

and budgeting and managing his money. Due to his

failure to keep appointments with his therapist and

psychiatrist, he was discharged from his mental health program for noncompliance three

months after leaving the adult home and later had to reenroll. The HHA assists him with

shopping and taking his morning medications. She accompanies him to his medical and

psychiatric appointments when he agrees to go.

8 For example, CommuniLife’s proposal asserted: “All of our apartments are for single individuals; we do not match clients as roommates in shared apartments unless two or more clients request to share an apartment.” See the discussion in Section VIII (A), Choice of Housing, and Table 5 on p. 90.
9 One Housing Contractor responding to the RFP had envisioned a more thorough matching process than has been implemented. “Potential roommates meet in the apartment, dine with each other and have a sleepover to assess their compatibility. If after this process the consumers feel that the match is not a good one, the process will begin again.”
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The progress notes reflect intense and comprehensive follow-up by the MLTCP, a nurse who monitors his medications and supervises the aide, monthly social worker visits, the care management by multiple staff including periodic joint visits by the Nurse care manager and social worker, and the engagement of the director of the MLTC when HC appeared to be in crisis. With all this support, and despite the differing functioning abilities and level of needs of the two housemates, they get along well in their supported apartment.
 Another class member we visited, AF, was discussed in the First Annual Report (Doc. #36, pp. 23-24). She moved to a supported apartment with her friend RG on March 24, 2015. They are well settled and happy in the new apartment, where they share food, the cable bill and utilities. Unlike many other housemate situations where people lead separate lives under the same roof, they shop together and take turns cooking. They also socialize with another couple who were discharged from adult homes and live in a nearby supported apartment. AF gets a low amount of SNAP benefits ($30 a month) due to her high SSD income, while her housemate is still working on getting her SNAP benefits. They have a Nurse Practitioner visit them both once a month in their home to check them medically and fill their prescriptions.
 A match that did not work as well was that between VL and GGT. VL was a woman in her 60s who left Surf Manor on December 23, 2014, and moved to a two bedroom apartment. On January 6, 2015, a housemate, GGT, a woman in her 40s, moved into the apartment. It is not clear how this match was arranged. GGT was a much younger woman. The two women seemed incompatible in many respects. VL was clean and neat, while GGT kept the apartment in a state of disarray, with clothes strewn all over the common living areas, the kitchen filthy and piled with unwashed dishes, with burnt and crusted food. VL’s daughter reported that VL often stayed in her room due to the condition of the rest of the apartment. Her house mate reportedly smoked marijuana. According to VL’s daughter, a cousin once observed a male visitor walking about the apartment naked.
Both her daughter and VL complained that the apartment was dirty primarily because her housemate, GGT, was not clean. This had come up during the Housing Contractor staff’s visits to the apartment in February and March when clothing was left around or food was out. A staff person said she would talk to GGT and encouraged VL to do so as well but on a later visit in April, the same conditions were observed. When asked about it, VL said that GGT was still refusing to clean. Both women had aides who were in the apartment for 4 hours/day, but their presence did not address the state of the apartment. This arrangement came to an end when VL decompensated and was hospitalized and decided to return to the adult home on the day she was discharged from the hospital.
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III. Issues that have arisen following transition

A. Delays in the delivery of services

1. SNAP benefits. SNAP benefits can be applied for once the class member’s community address is known, which is typically around the time 30 day notice of discharge is given to the adult home. The application requires proof of identity, which is usually in the form of a government issued photo ID; a Social Security card; Medicaid benefits card, if available; proof of income (typically SSI); and expenses (rent, utilities, etc.). Assembling this information has proved challenging for some class members. In many cases, the application process is not commenced until well after the discharge from the adult home due to problems with one or the other elements of the application.

a) ID Issues

At least 10 of the 28

Class members require a government picture ID for

class members in our

many important services in the community, including banking,

sample experienced

applying for SNAP benefits, reduced fare MTA cards, etc. The lack of an ID has delayed processing applications for SNAP

difficulties and delays

benefits for several class members. At least 10 of 28 class members in our sample experienced this type of difficulty.
SL is a 34 year-old woman who moved from her adult home to supported housing with a 61 year old male

in receiving their full allotment of SNAP
benefits.

friend on March 12, 2015. Her care coordinator from

her Health Home noted seven months earlier that she

required a valid ID to obtain a birth certificate and a birth certificate to obtain a valid ID –

a Catch-22! This need was again discussed at a transitional case conference on February

19, 2015. On April 12, 2015 she went to the Housing Contractor office to discuss becoming

her own rep payee. She was given a form to be filled out by her psychiatrist, which had to

be taken to the SSI office. After several earlier attempts to schedule a visit, on May 28 her

care manager went to DMV with SL to obtain a government ID, armed with utility bills, a

letter from the Housing Contractor and a Social Security card, but was denied due to the

lack of a valid government photo ID and birth certificate. She could not get a birth

certificate without a government ID, which she does not have. The DMV supervisor

recommended going to HRA to apply for a free New York City ID, which apparently has

less strict requirements. She went there, but ran into the same problem of a lack of

adequate documents. HRA recommended that she obtained a gym membership ID from

Parks and Recreation, which would then allow HRA to issue a New York City ID. Since she

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has a fear of traveling by subway, she took a two hour bus trip to Parks and Recreation which also requested a government photo ID in order to finalize a gym membership!
On June 25, the care coordinator made a follow-up call to make arrangements to go to HRA to apply for SNAP benefits and obtained a benefit card with a photo ID. Although she made several attempts to schedule this meeting, SL canceled them for fear of her Medicaid being cut off due to being over resourced. Although she was offered the opportunity to take advantage of a Special Needs Trust to shelter some of her resources, she declined and was eventually terminated from the Medicaid program, losing her Health Home care coordination in the process and the assistance that she had been receiving to obtain her government ID. As this report is being drafted (in January 2016), she still does not have her ID and the Housing Contractor case manager has picked up this responsibility to assist her.
b) Proving income –issues with SSI benefits
After the ID issues are addressed, the next issue is proving income, which is typically done by producing an SSA award letter. While in the adult home, the SSA award is at the Congregate Care Level III (approx. $1427/mo.), which is substantially higher than the SSA award for community living (Approx. $756/mo.). If this letter is used, it generally results in a minimal award of SNAP benefits. It usually takes some period of time after the notification to SSA of a move to supported housing for the appropriate adjustment to the income level to be provided, which would support a higher SNAP benefit award. It also takes time to change the representative payee (where there was one) from the adult home to the Housing Contractor or another rep payee or to the individual. If a change from rep payee to the individual is requested, there is an additional step of producing a physician’s certification of ability to manage one's own finances.
c) Proving expenses
Typically the major expenses are rent and utilities. In some cases the utilities are paid for directly by the housing contractor. As a result, the class member does not have a utility bill with his or her name on it. The inability to prove this expense affects the amount of the SNAP benefit award which can be adjusted later when appropriate documentation of the expense is available.
As a result of these issues in the application process, class members experience significant delays in obtaining the full amount of their SNAP benefits. For people who live on a fixed and limited income, these delays have a substantial adverse effect on their lives.
 JL, a 52-year-old man was discharged from the adult home on December 30, 2014. The pre-transition call identified the need for SNAP benefits, which was also identified on 29

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the care plan, as was obtaining a New York State ID and Medicaid Card, which were not done prior to the move. The progress notes of the care manager document ongoing difficulties with getting the occupancy agreement from the Housing Contractor to help him apply for the SNAP benefits and an ID. The efforts to get him these benefits extended over many months and many visits with him, and involved his brother as well. He finally received his SNAP benefits in April 2015, but only $15 a month. It was not until June 26, 2015 that he was approved for full benefits of $194 a month, retroactive to May. Once he got his SNAP card, he was able to get a DMV ID, and his care manager helped him obtain a library card.
 VL’s daughter helped apply for food stamps and tried to obtain ID for her mother following her discharge from the adult home on December 23, 2014. She went to the Social Security office and to the Housing Contractor to get proof of rent and income, but continued to have difficulty getting her mother an ID, which had still not been obtained as of March 4, 2015. The last note regarding SNAP by her MLTCP on March 11, 2015 is that she got approved but still did not have an EBT benefits card she could use. She finally got her full amount of SNAP benefits after she had moved back to the adult home in June 2015 when it was finally raised to $194 in August.
 PG & EK moved out of the adult home on April 18, 2015 and SNAP benefits were apparently applied for on April 14, 2015, but as of a site visit in late December 2015 they still had not received their full SNAP benefits. There were apparent difficulties with processing her boyfriend’s application due to confusion created by alternate spellings of his name. In the meantime, they have been receiving assistance from the Health Home in purchasing food. PG would like to invite people over to her apartment, but her partner wants to wait until they have enough money to “entertain properly” and this awaits approval of their full SNAP benefits.
 BS gets SNAP benefits of $174, while his roommate HC receives $16 and is frequently running short of food, and having to rely upon food pantries, and emergency financial and food assistance from his Health Home and Housing Contractor.
 Despite going to the SNAP office many times himself, HC still did not have his full SNAP benefits more than six months after his discharge from the adult home.
 PC, a 40-year-old woman, moved out of the adult home on April 13, 2015 was denied SNAP benefits, but with the assistance of her Health Home, went to a fair hearing and received her award, but at a reduced level.
Recognizing that applying for and securing SNAP benefits is a complicated process, the State has partnered with Hunger Solutions to connect care managers with a Nutritional Outreach and Education Program Coordinator. A NOEP Coordinator is able to assist in identifying the
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necessary documentation, completing the application, calculating the maximum allowable benefits and coordinating with HRA on behalf of clients. As this report is being written, there is no information available to indicate how this resource has been used to assist class members or what effect it has had in improving their experience in applying for and receiving SNAP benefits.
2. Other Services
Part of the enrollment process for MLTCP services such as a Personal Care Worker (“PCW) or Certified Home Health Aide (“CHHA”) is conducting a UAS assessment in the apartment following the move as the class member’s housing status has changed. As a result, there are inevitable delays in arranging for the delivery of the services that are determined to be necessary. This structural problem with the timely delivery of services is compounded by the inclination of some class members to oversell their capabilities for independent functioning during the pre-transition assessment process, and their real abilities only become evident once they are in their own apartments.
 PG & EK -- during the initial transitional planning, enrollment in the MLTCP was not completed. In this case, the application for MLTCP and eventual enrollment did not occur until after the post-transition call three weeks following their move to the apartment on April 18, 2015. Following the move, both class members were upset that they were not receiving the personal care aide services they had thought they would receive. PG was having a particular problem with showering, fearing a fall. But cooking and cleaning were also problem areas. Their concerns grew more frantic as the days passed, and they called complaining about not having bathed in a week and having no food and wanting to return to the adult home. At this point, the Housing Contractor, Health Home and DOH intervened aggressively to expedite the enrollment into an MLTCP and the delivery of personal care services by making the application retroactive.
 GP experienced delays in getting CHHA services which she needed for help with medication management, cleaning and shopping following her transition on January 21, 2015. Three months after discharge, she still did not have the service because her care manager, in her words, had "dropped the ball." A new care manager was assigned and subsequently made the application for this service, which, as of September 22, 2015—nine months later-- had been approved but had not yet started.
 For a 55-year-old AK, an issue that has not been resolved is aide services. Although a M11Q (a form to be filled out by a physician) was supposed to have been completed prior to the move, it does not appear this happened. In June, the housing case manager arranged for AK’s PCP to complete the M11Q. A nurse, through CASA-Home Care Services, visited and assessed AK in mid-May. She was approved for 6-8 hours of aide
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services three-days per week. A vendor was identified and services were to start on July 23, 2015. However, the vendor reported that they could not find an aide who is willing to work with a heavy smoker. As of the December 15 site visit, this situation still was not resolved.
B. Financial Issues
1. Getting money –SSI and money upon discharge As noted earlier, when a class member leaves the adult home, SSA must be provided with a change of address. Since supported housing is a different level of care than the adult home, the move also affects the amount of SSI benefits that will be payable. Moreover, it takes time for SSA to process the change of address and level of care. It is sometimes the case that SSI checks continue to be sent to the adult home, which must then return them to SSA for reissuance to the correct address and at the correct benefit level, causing delays in the receipt of these funds by the class member.
Also, when a class member transitions to the community, he or she is entitled to a refund of any SSI funds that have been paid in advance to the adult home for the days following the transition. In order to be eligible for this refund, the class member must provide a 30 day notice of termination of the admission agreement with the adult home. Although state regulations require that such refund be made at the time of discharge or termination of the admission agreement, but in any case no later than three business days after the resident leaves the facility, (18 NYCRR §487.6 (f) (1)), some class members have encountered delays in receiving their refunds on a timely basis.
 GGT left the adult home on January 6, 2015 but did not receive the balance of her SSI payment from the adult home upon her discharge. Her SNAP benefits were not in place until February 25, 2015 ($53). The Housing Contractor case manager tried to get the money for her, but as of February 18 still had not received the refund from the adult home. In the meantime, the Housing Contractor was assisting with obtaining her SSI check for February. She continually complained about having no money.
 JL moved into his supported apartment on December 30, 2014 but case notes document that it took several months for him to get his money after his transition, as the process to make the Housing Contractor his representative payee were delayed. Fortunately, he had a very involved brother-in-law who was of great help.
2. Budgeting and managing money
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One of the more challenging responsibilities class members encounter upon transitioning to

the community is budgeting and managing their money. Unlike the adult home, where most of their

SSI income covers room and board, leaving a relatively small

portion for a Personal Needs Allowance ($193/mo.), class

members pay only a third of their income for rent, leaving the balance to cover all of their personal needs, including food,

One of the more

clothing, utilities, transportation, entertainment, etc. For class members who have not been used to budgeting and managing this larger sum of money, these new responsibilities can prove

challenging responsibilities class

difficult, and some have run into problems by overspending their funds early in the month, and having too little left over to

members encounter

meet their needs until their next benefit check arrives. In the

upon transitioning to

Person Centered Planning process, education and training in managing money and budgeting are often identified as needs,

the community is

and class members are referred to PROS and other programs for assistance. In cases where Housing Contractors serve as representative payees, some have helped the class members by

budgeting and managing their money.

giving them the money left over after deducting the cost of rent

in smaller periodic payments weekly or biweekly.

 SK, a 42 year-old woman, experienced problems with money management and budgeting, which were identified as needs by the Housing Contractor case manager in the functional assessment that was completed on March 2, 2015. She was constantly running out of food, no matter the amount purchased. She frequently went to the Housing Contractor office seeking emergency money to purchase food. To help her manage, the case manager resorted to giving her an allotment of money one week at a time. Both the Housing Contractor case manager and the Health Home care coordinator provided intensive support, with almost daily contact with SK, and many more visits than the required monthly contact. This level of support is impressive, especially considering that the Health Home care coordinator had a caseload of 60 clients at the time and welcomed the prospect of the implementation of Adult Home Plus, which would provide for a maximum caseload of 12. He observed that having a client like SK on his caseload was like having five clients.

 HC frequently runs out of food and has to rely on food pantries, emergency money and emergency food supplies until his next check from his Guardian arrives. He receives $16 a month from SNAP, despite an appeal and subsequent denial. He has problems with budgeting his money, spending on Chinese food, phone cards and cigarettes. This resulted in his inability to pay his share of the cable bill in July, and
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needing to borrow money from his housemate, which he later repaid.
 See also, ME, described above who overspent his funds entertaining "friends" who appeared to exploit his generosity.

C. Loneliness

Class members who leave an adult home where there are always other people around generally relish the peace and quiet of living in their own apartment, where they are no longer exposed to the noise that is inherent in large numbers of adults congregating in the same common space, sharing bedrooms and bathrooms. But, unless they make the effort to attend mental health clinics, PROS programs, social day programs, club houses, or otherwise build a social life for themselves in the community, some of them complain of loneliness.10

 Despite not having any of these social outlets and refusing suggestions to engage in them, 55-yearold AK relies on visits to her daughter and new grandchild, and the companionship of her pet cat. She also enjoys the people she meets on the street as she wheels herself to nearby stores to shop. People strike up conversations with her and help push her on her way.
 CL is a 66-year-old man who moved to supported housing in March 2015, along with a roommate, who later returned to the adult home and CL has been living by himself in this two-bedroom apartment. He appears to have a mild developmental disability, and said that he had been in special-education when he was a child, was bullied by other students, and had no friends. In fact, he said he has been a loner all his life, never knew how to make friends. CL has a close relationship with an aide who assists him five days a week and has alternating staff on Saturday and Sunday. Although the apartment

Unless they make the effort to attend mental
health clinics, PROS programs, social day programs, club houses or otherwise build a
social life for themselves in the community, some of them complain of
loneliness.

10 The Independent Reviewer has provided OMH/DOH with information and training materials to address the issues of loneliness, which they in turn have shared with Housing Contractors, Health Homes, and MLTCP staff.
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was neat and clean, it seems that the most important function that the aide performs is keeping CL company. In the afternoons, after the aide leaves, he goes to a Social Day program called Genesis, where he reports that he has no friends. Although he is lonely and bored being in his apartment, he does not seem motivated to explore other interests, other than a love of movies. He does not go out on his own, seems to have no interests that he wants to pursue, doesn't like the neighborhood and in general seems depressed. While he goes on occasional walks in the neighborhood with the aide, he does not explore it on his own. CL often cancels his aide service on weekends and goes into the city to see several movies each day with gift cards provided by a Community trust in his name. However, he always goes alone. Nevertheless, he prefers the apartment to living at the adult home where he had lots of problems with other people, and with bedbugs.(As of the writing of this report CL was in process of moving to a new 2 bedroom apartment in an area that, according to the Housing Contractor “he loves!”).
 GGT’s roommate returned to the adult home following a hospitalization, leaving GGT alone in this two-bedroom apartment. She expressed her loneliness, and desired another housemate, but ongoing issues with her maintaining the cleanliness of the apartment, which had been an issue with her prior housemate, resulted in deferring action on this request.
D. Limited PCPs and sharing There is still room for improvement in the development of PCPs, especially in commencing the process earlier, and engaging the class members and family members who are involved in their lives and on whom they rely for important decisions. Too many PCPs are developed solely by case managers, care coordinators and the class members, without any involvement from mental health program staff that may have been serving the person for many years, or from involved family members. In a number of cases, the plan is developed by the Health Home or MLTCP but the content of the plan and the plan itself is not shared until the move, or even later with the Housing Contractor staff, who are an important source of support for the class members,. In some of these cases, the reason given for not doing so was the failure to complete an Administrative Services Agreement (ASA) that would permit the sharing of protected health information or the failure to obtain consent to share information with an involved family member.
 VL- Mental Health Services were never finalized by the MLTCP during the almost six months in supported housing from 12/23/14-6/17/15 (when she returned to Surf Manor) for the following reasons. Her first mental health appointment following admission to supported housing on 12/23/14 was for 1/16/15 at JB, based on the client calling a central intake number. This appointment was not kept as the Aide and VL forgot the appointment.
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It took several weeks for her to make another appointment, as she had to call the intake number. An intake appointment was made for 3/12/15, which she kept as well as another intake appointment on 4/14/15. However, on this date she informed JB that she only wanted to see a psychiatrist monthly and refused to see a therapist weekly. It was then that she and her care manager were given a list of neighborhood psychiatrists by JB Clinic. Her CenterLight care manager, made an appointment for her to see a psychiatrist on 6/11/15, almost six months from the date of her discharge from the adult home. She never kept this appointment as she was hospitalized at the time, and returned to Surf Manor on 6/17/15. Because of the difficulty in linking her with mental health services, she was running out of her psychiatric medications. On 3/20/15, she went with the case manager of JB to Coney Island Hospital, but only got a one-week supply of medications. Thereafter, CenterLight arranged to have a Nurse Practitioner visit her and prescribe medications, first for a month and then for three months (on 3/26, and then on 4/24/15, respectively). There were on-going issues with VL’s willingness to comply with recommendations and the care manager enlisted the assistance of her daughter to encourage her to follow up.
 GGT was enrolled in both a Health Home and an MLTCP. However, the Health Home and its downstream care coordination provider were not involved in planning her transition to supported housing, despite being approached by the MLTCP to do so following in-reach by the Housing Contractor. The Health Home that had been "loyalty matched"11 to the class member refused to provide any information to the MLTCP, and would not accept the in reach package or direct them to the care coordination entity. The apparent reason was the lack of an ASA permitting the MLTCP and Health Home to share information with one another.
This concern about the lack of ASAs impeding the sharing of information was also raised in the First Annual Report (pp. 37-38). Although there has been progress in getting Health Homes and MLTCPs to execute ASAs, as of early February 2016, seven Health Homes still had not completed ASAs, including one with an MLTCP that serves 71 class members, 17 of whom have enrolled.
11 Loyalty Match is a DOH Health Home assignment process that matches the Health Home eligible members’ Medicaid claims and encounter data to providers that are in each Health Home’s network. A member is assigned or loyalty matched to a Health Home based on the member’s Medicaid utilization of providers within a Health Home network. The member’s Health Home assignment is generally the Health Home with the greatest number of “matched” claims.
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E. Repairs & Maintenance
Eight of the 28 class members in our sample reported minor repair and maintenance issues in their apartments such as beeping smoke alarms, broken intercoms and lights, malfunctioning door locks, elevators out of service, broken drawers and cabinet fronts, stopped up toilets, sinks and drains. In most cases these were repaired within a reasonable time after either notifying the landlord or the case manager from the housing contractor. Some problems persisted for a lengthier time, and some – like a persistent problem with lack of heat and hot water – resulted in the relocation of class members.
 VL- There were initial problems following the move – no heat in the apartment from date of move on 12/23/14 until 1/9/15, when the Housing Contractor staff called 311 and it was fixed. Reportedly, the Housing Contractor had called the landlord to no avail. It also offered respite due to the lack of heat, in presence of her daughter on 1/2/15 (Rockaway) and on 1/5/15 (Coney Island), but she refused both and they had her sign a statement to that effect. VL used a space heater for much of this time. There were also problems with the electrical system when the service went out. The daughter said she went out and got a fuse and turned it back on. The daughter said that there was no light in the entryway of the building and at night it was very dark, which her mother had said made her very fearful. Her daughter reported that she had complained to the Housing Contractor about it, but it was not fixed and the light was out for a long time. When a member of the Independent Reviewer team visited the apartment on 9/25/15 and 10/13/15, the lights in the entryway and in the first floor hallway were both still out. The Housing Contractor informed him on 10/21/15 that the landlord had repaired the fixtures and Housing Contractor staff verified that both lights were now working.
 JC and CH-- The problem had to do with utilities in the apartment, which periodically had no heat or hot water, and occasional problems with electricity, and front doorbells that didn't work, resulting in building residents leaving the front door propped open, compromising the safety of the building. When it became evident that the landlord could not resolve the utility issues dependably, the Housing Contractor relocated them to another apartment which they found to be much nicer. Similar problems with utilities were experienced by ME, who was also relocated but to a level II program in light of other issues indicating the need for a higher level of care.
F. Post Transition Events including Hospitalizations and Emergency Room Visits
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In addition to following up on 28 individuals in our sample, in December 2015, the Independent Reviewer asked Housing Contractors to complete a survey on all 170 individuals who had transitioned as of December 11, 2015.
The survey asked for:
 The number of times since transition the individual had been admitted to a hospital for inpatient psychiatric care.
 The number of times the individual had visited an emergency room for psychiatric reasons but was not admitted for inpatient care.
 The number of times the individual had been admitted to a hospital for inpatient care for medical reasons.
 The number of times the individual the individual had visited an emergency room for medical reasons but was not admitted for inpatient care.
 Whether the individual had returned to live in an adult home.  Whether the individual was discharged from supported housing and transferred/admitted to
other OMH Housing (e.g., CR-SRO, apartment treatment program, etc.).  Whether the individual was discharged from supported housing and transferred/admitted to
other non-OMH Housing (e.g., Senior Housing, a nursing home, etc.).  Whether the individual had been discharged from supported housing and their whereabouts
is unknown.
The Independent Reviewer received completed surveys on 169 of the 170 individuals who had transitioned as of December 11, 2015 including completed surveys on all 28 individuals included in our sample.12
Of the 169 people who had transitioned between September 9, 2014 and December 11, 2015:
 21 (12%) had 1 – 5+ reported psychiatric inpatient hospitalizations;  15 (9%) had visited emergency rooms 1 – 15 or more times for psychiatric/substance abuse
reasons, with three having more than 10 such emergency room visits;  19 (11%) had 1 – 6 inpatient hospitalizations for medical reasons;  14 (8%) had visited emergency rooms 1 – 3 times for medical reasons;  Three (2%) were readmitted to an adult home;  Three (2%) were admitted to other OMH housing;
12 In one case, the Housing Contractor identified in the Weekly Reports issued by the State was inaccurate and thus the survey was not completed.
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 Two had been discharged from supported housing: one to live with her son out-of-state and the second for long term psychiatric hospitalization;
 None had left or been discharged from supported housing and their whereabouts is unknown; and
 One died within three months of transition reportedly of natural causes; the State has informed the parties that the death is under investigation by State agencies.
One hundred twenty-two (72%) of the 169 individuals who had transitioned as of December 11, 2016 experienced none of the above post-transition occurrences.
Of the 28 people in the sample the Independent Reviewer followed up on who were transitioned between December 1, 2014 and April 28, 2015:
 Six (21%) had 1 – 5+ reported psychiatric inpatient hospitalizations;  Four (14%) had visited emergency rooms 1 – 15 or more times for psychiatric reasons, with
two having 10 or more such emergency room visits;  Six (21%) had 1 – 4 inpatient hospitalizations for medical reasons;  One had one emergency room visit for medical reasons not resulting in hospitalization;  Two were readmitted to an adult home;  Two were admitted to other OMH housing;  None were admitted to other non-OMH housing; and  None had left or been discharged from supported housing and their whereabouts is
unknown.
Sixteen (57%) of the 28 individuals whom the Independent Reviewer included in a sample for in-depth review had experienced none of the above post-transition occurrences.
IV. In-reach.
The Settlement Agreement requires the State to arrange for the entities that provide supported housing to conduct in-reach in the NYC Impacted Adult Homes on a regular and continuing basis to provide information about the benefits of supported housing and discuss any concerns that class members may have about moving to supported housing. (Settlement Agreement, ¶ E. 1) It also identifies some strategies for effective in-reach, including conversations with persons who already live in supported housing, visits to apartments, and the use of photographs and virtual tours. There are also provisions requiring adult homes to provide reasonable access of Housing Contractors to class members, and requiring that they not discourage class members from meeting with the Housing Contractors. (Id. ¶ E. (3) (4))
During March 2014, Phase I began with in-reach at three of the impacted adult homes, under one Housing Contractor. Phase II extended in-reach to 14 additional homes on July 1, 2014, served by five additional Housing Contractors. As of March 13, 2015, Week 52, 30% of the Class
39

Case 1:13-cv-04165-NGG-MDG Document 63 Filed 04/01/16 Page 40 of 113 PageID #: 771

had received in-reach, and 60% had expressed an interest in supported housing. The positive responses were aided by initiation of a “fast track” process within the three pilot homes for class members who had previously expressed an interest in supported housing, which was subsequently expanded to all homes included in the initiative. On April 27, 2015 Phase III began and in-reach was extended to the three homes in Staten Island and the two homes in the Bronx, served by three additional Housing Contractors.
Class members in-reached, by quarter (n=3540)
(Dates slightly modified to reflect weekly report data)
1000 500 0

Series1

Q3 1/1/143/31/14
57

Q4 4/1/146/30/14
336

Q5

Q6

7/1/14- 10/1/14-

9/30/14 1/2/15

591

162

Q7 1/3/154/3/15
202

Q8

Q9

4/4/15- 6/27/15-

6/26/15 10/2/15

444

731

Q10 10/3/51/1/16
574

Q11 1/1/63/11/16
947

Figure 2. Class members in-reached, by quarter13

As of March 11, 2016 in-reach had been offered to 3,540 of the 3,961 class members, or 89.4%, and 1,657, or 46.8% of the class had said Yes (See Fig. 3)

The numbers of class members receiving in-reach at the 22 impacted adult homes had increased significantly during this period (See Fig. 2), while the percentage of class members expressing an interest had decreased from 60% to 46.8%.

13 The quarterly totals exceed 3,540 as some class members received in-reach more than once. It should also be noted that of the 3,540 people in-reached, 173 class members died or were discharged from the adult home outside the transition process created pursuant to the Settlement Agreement and one was determined not to be a class member.
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4000

3961

3540

In-Reach of Class members

3000 2000

1657

1000

0 Total Class

In Reached Interested in SH

Figure 3. Class members expressing initial interest in supported housing

One obvious reason is the expected decline of interest as efforts moved away from the Fast

Track, those identified as eager to transition, some who had been waiting many years. During 2015,

the State added many new names to the Fast Track lists as a result of its LEAN Improvement

Process, reportedly based on “use of services.” Review of the Color Coded In-reach Tracking

Report (“CCITR”) and discussions with Housing Contractors reveal that most of those placed on

the Fast Track by LEAN were initially not interested. Under

the terms of the Settlement Agreement, all class members who are initially not interested, or who are initially interested and

The numbers of class

subsequently change their minds at any point in the process (including during assessment, after HRA approval, or even after seeing and accepting an apartment), will have at least an

members receiving in-reach at the 22 impacted adult

annual opportunity to receive additional in-reach to discuss their option to move to supported housing or another less restrictive community living arrangement. This is documented

homes had increased significantly during this

for each adult home on the CCITR that is updated bi-weekly, and monitored by OMH staff that have weekly calls with each Housing Contractor.

period (See Fig. 2), while the percentage of class

The Independent Reviewer anticipated that the rate of positive response at in-reach would have increased as adult

members expressing an interest had decreased from

home residents had greater opportunities to learn about the successful transitions to supported housing of people they

60% to 46.8%.

know, and as the recommendations made in our first report

regarding the method of in-reach and care planning were implemented. While progress in each of

these areas has been made, many factors have been in play that have resulted in more class

members reporting as not interested, undecided/uncertain, or just not wanting to talk about it.

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A. Reasons for lack of interest

In speaking with Housing Contractors and observing in-reach at several of the homes, many factors appear to be contributing to the lower response. Many of the residents who have been at the home for many years report being “comfortable” where they are, and fear the unknown of supported housing. Many recall what it was like when last they tried living independently, or in programs similar to supported housing, and had a bad experience. Some didn’t want to leave without a boyfriend/girlfriend, and their partner was “definitely not interested,” as discussed in Section VIII, 2 below.

During in-reach we have observed class members ask

about the ability to live in supported housing with their romantic partner currently in the adult home who is not a class

It is possible that an

member, or others who want to live with a family member, or another who is not affiliated with the adult home or the

expression of

Settlement Agreement at all. In these instances, the in-reach staff have not been able to clearly answer or address the questions about how such arrangements would work and the

ambivalence or uncertainty is

respective financial obligations of the parties.

sometimes treated as

Some class members no doubt have been influenced by what they hear in the home from staff or other residents about

disinterest or a refusal.

the few class members that “didn’t make it.” These class

members had reportedly returned to their or another adult

home. Others have heard stories of some of their peers who have struggled when they first moved

due to delays in setting up dependable arrangements to get them their money or SNAP benefits.

The length of time that it has taken some to move out may have affected others who decide not to

move. We continue to hear complaints that residents do not know where in the process their cases

are. Some report that when they say they are undecided, or reluctant to sign the papers needed to

begin the process, it sometimes takes months for someone to speak to them about it again. It is

possible that an expression of ambivalence or uncertainty is sometimes treated as disinterest or a

refusal. It is difficult to ascertain the extent to which each of these and many other factors impact a

class member to express an interest, declare they are not interested at this time, or

uncertain/undecided. Some class members have been unwilling to even discuss it when approached

or called down to the front desk of the adult home, and that also has been captured as “not

discussed during visit” on the weekly reports (See Fig. 4).

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Class members response to In-Reach as of 3/11/16

3540

1657 1639

186

57

1

Figure 4. Class members’ response to In-Reach as of 1/1/2016
Below are some excerpts from in-reach sessions observed by the Independent Reviewer’s Team, where some of the reasons for refusing or being uncertain are offered.
 PB, 61 year-old male has been at adult home for 6 years. PB had never lived on his own and came here “from living with my mother.” The in-reach provided a very comprehensive explanation of the Settlement Agreement and the wrap around support services that would be available to him. PB very thoughtfully explained that he had not been comfortable here the first few years and it had something to do with the medications he was taking. But now he “had reached a level of comfort here,” and that “I get along well with my roommate.” He said he had a small refrigerator in his room. PB is a vegetarian who reportedly gets $200 a month in food stamps because of his medical needs around diet/food. He said he had lost 50 pounds and now weighed a little under 200 lbs. He said he has “never been responsible for myself before” and had concerns about cooking his meals. He said “I have everything I could ever want and have the full support of everyone here.” He also said, “I can’t deal with getting shaken up again” and was afraid of “getting right back to ground zero.”
 CH is a 69 year-old African American woman who had lived at the adult home in Staten Island since Hurricane Sandy forced her to leave her adult home in Far Rockaway, after 11 years. The in-reach session included a trip to a nearby model apartment, a group presentation including the showing of Coco’s video of a successful transition, and then individual meeting. She said she had lived on her own, but got sick and was hospitalized. She talked of growing up in the Bronx and when asked where she wanted to live she said
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she wanted to live in a three-room apartment in the Bronx, where she had some cousins, but thought family and friends would visit. Although she would consider SI, she preferred the Bronx. In terms of her goals she wanted “to be doing better” when she moves, and mentioned taking her meds and shopping. She hoped she would move to a nice area “where I would say good morning to the people.” The in-reach worker spoke of the Care Coordination team that would link her to Transportation and other services. When asked if she was interested, CH said she “needed time to think about it.” Follow-up with the inreach worker found that C.H. said she was not interested in moving at this time, as she was adamant she wanted a three-bedroom apartment to move in with her children. He reported that he informed her of the apartment guidelines and later she stated she was only interested in a large house with her children.
 BR, 58 year-old male, has been at the adult home since 1999, more than 15 years. The inreach was comprehensive and he was shown a video on a tablet of an unfurnished apartment and the nearby neighborhood. BR said he was not interested in moving right now. He is interested in his girl friend moving with him, and she was not interested in moving now either. He said he liked it at the home and didn’t want to leave now. No matter what the in-reach worker said, BR repeated he did not want to move, so the presentation did not last very long. He was reminded that he could change his mind and they may speak to him again in the future.
 BB is a 76 year-old male who had been the adult home for “20-30 years.” During the presentation he reported that he lived on his own “15 years ago” and “didn’t like it.” During the presentation he asked, “Can I stay here?” Although in-reach worker tried to continue talking about SH, BB said it was “too much” and ended the discussion.
B. Discouragement The Settlement Agreement (¶ E. 4) notes “The State shall advise NYC Impacted Adult Homes that they may not interfere with the reasonable access of housing contractors to the NYC impacted adult homes and may not discourage NYC Adult Home residents from meeting with Housing Contractors.” Nevertheless, Housing Contractors talk of the subtle and not so subtle influences that they feel the adult home Administrators and staff have on the process. For many of those to be in-reached it is reportedly harder to get them to come to the session. In one adult home at which the Independent Reviewer’s Staff was present, the in-reach staff were only allowed to see class members that were on the list they provided in advance and could not speak with class members outside in front of the home or anywhere else in the home. (This was reported to the State by the Independent Reviewer’s staff, and the practice has reportedly since stopped).
In speaking with the in-reach teams many mentioned that the adult homes “had their good days and their bad days.” At one recent in-reach session where the in-reach staff were there before
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10 a.m., the staff at the front desk did not call anyone down until 11:10 a.m., leaving them time to only meet with one person. Many Housing Contractors are now sending letters and trying to arrange for dates and times to meet, while another is offering vouchers for a free lunch; getting the mail to the residents does seem to be a problem for some, when there has been absolutely no response to a planned event.

Although Housing Contractors have been encouraged to meet with class members at

programs, those efforts have often met with mixed results. While a few in-reach staff are allowed,

most are not permitted to go to class member’s rooms, and some have difficulties trying to call

residents themselves from the front desk, rather than having the adult home staff do so, or resorting

to calling on their cell phones from outside of the facility. We were informed that the

Administration at New Haven Manor had “closed the doors” to the in-reach team for several

weeks, and they were only able to regain access after scheduling a meeting with the MLTCP that

serves the home. In addition, during September 2015 New Haven Manor developed a form letter

for residents to sign expressing a desire not to be placed on any list for community housing and

professing their lack of readiness to leave the adult home. Seventy-four of the letters were

submitted to the Housing Contractor. While some of these letters accurately reflected the feelings

of the residents, in other cases the residents still wanted to

The conditions under which some of the

move, some of them believing that the letter they signed simply expressed their opinion about their unwillingness to move immediately, not their lack of interest in the option of

Housing Contractors

supported housing. The percentage of class members expressing an interest in moving from this home between July

conduct in-reach are

31, 2015 and March 11, 2016 dropped significantly from 79%

to 52%.
still less than desirable,

and do not provide an

The conditions under which some of the Housing Contractors conduct in-reach are also still less than desirable.

adequate private space.

The State DOH’s letter to Adult Home Administrators (DAL) of June 6, 2014 stressed the importance of providing the Housing Contractor with a “quiet, private, space, where either

group or individual in-reach sessions can take place,” and to

“make every effort to avoid rooms where frequent

interruptions may occur.” Many of the Housing Contractors were provided with conference rooms,

unused activity areas, and unused staff offices that clearly met the criteria noted in the DAL. Others

were satisfied conducting in-reach in the adult home’s dining room, with some staff present setting

up for the next meal or cleaning up after the last one. However, the conditions under which some of

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the Housing Contractor’s conduct in-reach are still less than desirable, and do not provide an adequate private space, described above.
At one adult home the in-reach team uses the laundry room, which they chose as preferable to the previous extremely small space that that they were provided, which reportedly contained a camera and the ability to hear what was being said in the room. While we were told that efforts are made by that home to not have laundry done during the in-reach sessions, it is not consistently adhered to, as the Independent Reviewer’s staff observed during a recent visit. At another home where we have observed in-reach, the room is a narrow small space that includes three tables, computers and filing cabinets; again this was better than the even smaller space they were given, that reportedly resulted in a call to the State.
In looking at the statistics by adult home and Housing Contractor it is not easy to point to one reason or factor. Is it the quality and nature of the in-reach being offered, or everything else that occurs in and out of the adult home that may impact a class member?
Instances of discouragement by family/guardians, as well as by therapists, are also commonly reported by Housing Contractors. Some family members believe that their loved one would be "safer" in the adult home and find support from their relative's therapist, who may also question the individual's readiness for independent living. (See section VIII, (B) (5)), Influence of family members and therapists)
 MB changed her mind and refused assessment because her daughter felt that she was new to the adult home and this was not the best time for her to move to the community, regardless of the wraparound services that may be available.
 SE was very interested in moving to the community. However, after his mental health program informed his brother of his intent to move, he influenced SE to withdraw his consent, and SE refused assessment.
However, discouragement, subtle or otherwise, undoubtedly plays a role. Some of these instances have been reported to the Justice Center and have been followed up by DOH.
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Housing Contractors vary substantially in

 SL who moved to supported housing in March 2015 said that the staff at her adult home told her they “felt sorry that you are moving, you’ll probably be homeless in two days, but you can always come back here.”

how they carry out their in-reach
functions, and the data indicate that they have
varying rates of reaching the class members in the adult homes to which they are assigned, and in

 EK, who was one of the 28 class members visited and discussed in Section II, above, changed his mind about moving from Mermaid Manor at one point. According to Care Coordination progress notes, he told her that his adult home administrator scared him about going out on his own telling him “no one will care about him and no one will take care of him.”

In the State’s Quarterly Report #7, five of the six allegations of discouragement, received between 9/17/15 and 11/18/15, investigated and completed by the Department of Health- Division of Surveillance were substantiated. Four of these were at Mermaid Manor.

C. Contractors

Performance by Housing

the percentage of class members who respond
positively to their efforts.

While, as discussed below, there are many factors that help explain these results, the high rate of turnover in the Housing Contractor staff assigned to this function, and other duties that are assigned to them, probably have a significant effect.

Because of staffing issues, in-reach and housing functions were not always kept separately, as intended in the original RFP of August 10, 2012 for this initiative which has been noted and reiterated at OMH Housing Contractor meetings. It is unclear to what extent the staffing levels, or need to share staff between in-reach and housing, impact the bottom line of the quantity and quality of in-reach and the number of community placements. As of 3/11/16, St. Joseph’s Medical Center has vacancies in supported housing staffing of 4 FTE; FOO, 3 FTE; CommuniLife, 2.25 FTE; and SI-BN, 2 FTE, while the other five Housing Contractors have between .5-1.5 FTE vacancies. The backlog of class members who have received HRA approval of their applications for community living but who remain in the adult home for a substantial period of time suggests that the lack of adequate housing staff to perform the myriad tasks associated with successful transitions probably contributes to this result. To the extent that Housing Contractors attempt to cope with vacancies and inadequate staff
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by relying upon the same staff to perform in-reach and housing tasks, both functions probably suffer while also contributing to the stress and burnout that leads to staff turnover.

In-reach numbers reflect the number of unique individuals who had an in-reach session, not the number of in-reach sessions conducted. An individual may have had multiple in-reach visits, but the Weekly Report only reflects one: the most recent session. In looking at Fig. 5 below, one is struck that ICL lags significantly behind other Housing Contractors that started in-reach during Phase II (July 1, 2014) in terms of percentage of class members that have received in-reach. Surprisingly, Pibly and SIBN, in Phase III, which started nine months after Phase II, have already in-reached 87% of their class members as of March 11, 2016 compared to ICL’s 77%.

HC Phase I (4/1/14)
JBFCS

Class IR’d %IR’d

Yes %Yes

525

550

100+%14 250 45%

Phase II (7/1/14)

CommuniLife JBFCS 2 (FEGS) FOO ICL TSI

602

530 88%

395

376 95%

528

522 99%

489

377 77%

438

402 92%

230 43% 161 43% 220 42% 241 64% 156 39%

Phase III (4/27/15)

Pibly

371

323 87%

177 55%

SIBN (6/16/15)

308

269 87%

127 47%

St. Josephs’

305

191 63%

95 50%

Figure 5. Variable Performance of Housing Contractors

Also of note, the four housing contractors with the highest percentage of class members inreached, JB1 (100+%), FOO (99%), JB2 (95%) and TSI (92%) had some of the lower rates of people saying Yes, 45%, 42% 43% and 39%, respectively.

14 The number of people in-reached is greater than the number of class members due to the fact that some of class members initially in-reached subsequently died or were non-transitional discharges.
48

Adult

Housing

In-Reached Said Yes Current % Transitions

Case 1H:o1m 3-ecv-0416C5-oNnGtrGac-MtoDrG Docausmoefnt 63 Filed 04/01/16 Page 49 of 113 PageID #: 780

3/11/16

Belle Harbor

CommuniLife

104

63

61%

3

New Gloria Manor CommuniLife

114

46

40%

2

Park Inn Home

CommuniLife

162

67

41%

8

Surfside Manor

CommuniLife

150

54

35%

6

Central Assisted

FOO

169

53

31%

0

New Haven Manor FOO

122

63

52%

11

Seaview Manor

FOO

115

50

43%

4

Wavecrest HFA

FOO

116

54

47%

7

Brooklyn ACC

ICL

174

105

60%

26

Queens ACC

ICL

203

136

67%

22

Mermaid Manor

JB 1

176

70

40%

15

Oceanview Manor JB 1

169

84

50%

14

Surf Manor

JB 1

205

96

47%

25

Garden of Eden

JB II

183

66

36%

10

Kings ACC

JB II

193

95

49%

17

Parkview HFA

Pibly

123

46

37%

2

Riverdale Manor HFA

Pibly

200

131

66%

16

Lakeside

SI-BN

176

77

44%

8

Mariner's

SI-BN

93

50

54%

3

Harbor Terrace

St. Joseph's MC

191

95

50%

24

Elm York

TSI

212

75

35%

14

Sanford Home

TSI

190

81

43%

8

TOTALS

3540

1657

46.8%

245

Table 2. In-Reach & Transitions by Housing Contractor as of 3/11/16

To date, 46.8% of the class members in-reached have said Yes. In looking at the adult homes where 40% or less of people said yes at in-reach, they were: New Gloria Manor and
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Surfside, two of four of CommuniLife’s adult homes; Garden of Eden, one of two homes handled by JBII; Central Assisted Living, one of the four homes handled by FOO; Mermaid Manor, one of the three homes handled by JB1; and Parkview, one of two homes covered by Pibly. Is it the Housing Contractor’s approach/ in-reach style? Or does the adult home influence the low rate of people saying they are not interested?
Looking at FOO, while 31% said Yes at Central and 44% said Yes at Seaview, 52% said Yes at New Haven (down from 79% as of 7/31/15) and 47% said Yes at Wavecrest (down from 66% as of 7/31/15), yet it is the same FOO team doing in-reach at all four homes. The recent drop in those saying Yes at New Haven may be the result of aggressive efforts by the adult home to have residents sign a form letter saying they were not interested in moving, as discussed above.
Ironically, despite questionable conditions for in-reach staff at Queens ACC, their percentage of class member’s saying Yes, at 67%, is among the best of the Housing Contractors. However, later in the process, Queens ACC had the second highest percent of the 164 withdrawn housing referrals following HRA approval at 15.8%, trailing only Surf Manor at 16.4%.
Mermaid Manor, at 39% of class members expressing interest, may accurately reflect problems of interference and discouragement by the Administrator. As noted in the State’s Quarterly Report #7, discussed above, four of the five allegations of discouragement which were received between 9/17/15 and 11/18/15 and which were investigated and substantiated by the Department of Health, Division of Surveillance, were made at Mermaid Manor.
D. Robust In-reach
The Independent Reviewer’s staff visited with the St. Joseph’s Medical Center in-reach team during August 2015 about three months after they began providing in-reach at the only adult home on Staten Island they serve. The St. Joseph’s team was incorporating many of the components mentioned in the Settlement Agreement and recommended previously by the Independent Reviewer, but not consistently practiced by most Housing Contractors at that time.
The in-reach began with a short trip in a van with the in-reach worker and a peer, and five class members, two of whom had previously received in-reach but had not seen the apartment. The model apartment was a two-bedroom unit on the ground floor of a two-storey building that was less than five minutes away from the adult home. Although the apartment was not furnished at the time, it allowed the class members to see what they might be able to have if they decided to move. There
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was a nice sized living room with a non-working fireplace with exposed brick, a kitchen, dining area and two bedrooms, as well as a full bathroom, and a large walk-in hall closet. When in the apartment, the St. Joseph’s peer, in a very animated and open manner, explained that she lives in one of their supported apartments on Staten Island and explained everything that comes with the apartment when you move in, including a flat screen TV that caught the attention of the five residents. Two of the men stated their intention to live together during the session. Most seemed to like the apartment and were interested in moving, and several wanted this apartment.
After about 20-30 minutes the group returned to the adult home. At the adult home three of the group met again in the conference room where they listened to a brief presentation. The others had previously received in-reach and agreed to move forward in the process. The presentation included a viewing of a successful community transition from an adult home produced by CIAD (Coco’s Story) on the in-reach worker’s tablet, and then an overview of the Settlement Agreement and supported housing, and personal experiences of the peer. They each received a folder of materials including the adult home Pamphlet and the Nathan Kline Institute’s Guide to Supported Housing, both also being used by all Housing Contractors. Two of the three expressed an interest in supported housing and one “needed more time to think about it,” as described above. Subsequently, two of the class members who visited and wanted the model apartment that day have subsequently moved into it. St. Joseph’s developed a new fully-furnished model apartment, also in close proximity to the home.
Currently, the in-reach team conducts in-reach at the model apartment, while, in addition, the peer meets at the adult home with those class members who have said “No” or are uncertain/undecided. In addition, another peer conducts groups every Friday at the model apartment for those preparing to move, to discuss budgeting, meal preparation and other aspects of the transition. St. Joseph’s has also hired several of those class members who have transitioned to work as peers in other of their programs, which was also presented as possible motivation during in-reach.
In response to guidance by OMH, “robust in-reach” as described above is reinforced in their regular meetings and conversations with the Housing Contractors. It was also discussed and encouraged during the most recent OMH Training for Housing Contractors on January 6, 2016. The various contractors shared what they were doing, as they did subsequently in speaking with the Independent Reviewer’s Office. There is increased evidence that Housing Contractors are exploring varied ways to enhance their in-reach efforts, particularly as they approach those that have been undecided or had said no in the past. There is more evidence that contractors are showing videos of the model apartments or those actually in use, with permission; holding special
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events to gather class members to meet with those who have already transitioned; developing picture books of the supported apartments; providing testimonials of class members who have moved out; extending invitations to those considering moving to parties and other events sponsored by the Housing Contractors; and visits to their model apartments, that some spoke of making more attractive and inviting.

However, for some Housing Contractors who do not

have an agency car or van, transporting class members to the model apartment, including using taxis, is challenging and is not done as frequently. In addition, many do not have their

Pibly is taking advantage of offers by

model apartments in proximity to the adult homes. Pibly reported that they are in process of developing a model

CIAD, which already

apartment close to Parkview HFA, which will permit more

conducts housing

frequent use of the unit. Most housing contractors do not show their model apartments during in-reach, and wait for receipt of

readiness groups at

the housing referral. One Housing Contractor said they don’t want to show it to someone during in reach, as they may later be

five transitional adult

approved for a more restrictive level of housing (Level II),

homes, to offer

which they felt would be misleading. However, the model apartments are being used in various ways to aid in the process.

training on budgeting

One contractor uses their model apartment for those that were already in-reached, to provide skill training groups and keep them engaged while they are going through the process, while

and money management at their

several reported using, or planning to use, the model apartment to hold socials. Another Housing Contractor is scheduling trips

two Bronx adult

to the model apartment with their peer, who also takes the class

homes.

members on a tour of the neighborhood, where many of their

apartments are. In addition, some are making efforts to use class

members who have moved out to speak to those that are considering it or are getting ready to

move, which has been proving to be very effective.

As will be discussed later in this report, according to Week 104 data, 181 (10.9%) of the 1,657 class members who expressed an interest in moving at in-reach changed their minds during the assessment phase, and additional individuals changed their minds afterwards.

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V. Assessment
The Settlement Agreement sets forth a schedule that within four years of its execution (July 23, 2013), at least 2,500 class members shall be assessed by Health Homes or MLTCPs and, if appropriate under a person-centered care plan developed pursuant to ¶ G, transitioned from NYC Impacted Adult Homes. Within five years of the execution, all class members shall be assessed by Health Homes or MLTCPs pursuant to ¶ F and, if appropriate under a person-centered care plan, transitioned from NYC Impacted Adult Homes. (Settlement Agreement, ¶ I)
The current practice is that each class member who expresses an interest in supported housing must undergo a comprehensive assessment conducted by a registered nurse from a Health Home or MLTCP to determine the person’s housing and service needs and preferences for the purpose of transitioning from an adult home. (Settlement Agreement, ¶ F (1) (2)) There is a presumption in the Settlement Agreement that class members can live in, and will be considered appropriate for supported housing if desired by the resident, unless the assessment discloses a disqualifying condition. (Id. (4) (5)) If the assessment concludes that a class member is not appropriate for supported housing, it must specify the reason and the class member must be provided the opportunity to live in the most integrated setting desired that is appropriate to his or her needs. (Id. (7))
Initially, the assessment phase of the transition process was designed to consist of three components: a face-to-face assessment of the individual by a registered nurse who completes the mandated report: UAS-NY; securing and reviewing a comprehensive psychiatric evaluation conducted by the individual’s psychiatrist within the past six months; and formulating recommendations for housing and community services, based on the UAS-NY assessment and the current comprehensive psychiatric evaluation, which are recorded on an Adult Home Resident Assessment Report (AHRAR). The State initially planned on conducting a quality assurance review of 10% of the assessments for six months, but due to the issues the DOH encountered in the course of their review of the Adult Home Resident Assessment Reports (AHRAR) which summarize the results of the assessment conducted by a registered nurse, in August 2014, this plan was altered to review 100% of the AHRARs, and later, at the recommendation of the Independent Reviewer, extended to review additional supporting documentation underlying the AHRAR.
Upon DOH’s approval, a final AHRAR is prepared by the assessing entity and distributed to DOH, the Housing Contractor, the care manager and other appropriate parties. The final AHRAR, UAS-NY and psychiatric evaluation are forwarded to the HRA along with an HRA application by the assessing entity, thus beginning the HRA review phase of the transition process.
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A. Delays in the Assessment Process

As documented in the Independent Reviewer’s First Annual Report (pp. 20-28,), many

factors contributed to the delays in completion of the assessment process, as such is indicated by

the distribution of a final AHRAR. These included difficulties in assembling all the documents

necessary to formulate housing and service recommendations, particularly a current comprehensive

psychiatric evaluation by the treating psychiatrist. In many cases, the psychiatrist was a private

practitioner working under contract with the Adult Home and not affiliated with OMH

certified/regulated programs; evaluations that were completed

were found to be incomplete requiring supplementation or

Delays in completing

revision; and incomplete UAS-NY or AHRAR reports submitted by assessors required repeated re-submissions. Some class

the assessment phase

members who had initially expressed interest in transitioning at the time of in-reach were ambivalent about such at the time of

of transition continued

assessment and declined either assessment or interest in moving through the first half of

at the time of assessment.

2015 creating a

Delays in completing the assessment phase of transition continued through the first half of 2015 creating a sizeable

sizeable backlog.

backlog. This was of concern to Plaintiffs’ counsel and the

Independent Reviewer who had previously recommended strategies to address the issue including

creating a pool of trained assessors, establishing reduced and manageable caseloads for care

managers and setting performance expectations.

As of July 1, 2015, 986 individuals had expressed interest in moving during in-reach, yet 449 of the individuals (46%) had not completed the assessment process with a Finalized AHRAR.15 While the median length of time from when an individual expresses an interest in transitioning to when the case is referred to an HH/MLTCP for assessment has consistently remained at one day, as indicated, below many of these 449 individuals (32.7%) had not completed the assessment process six month or more after in-reach, some more than one year.

15 It should be noted that in this and other analyses of the backlog issue, cases in which individuals who initially expressed an interest in moving but subsequently died or were discharged outside the SA process were not included.
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Cases Backlogged in Assessment Process as of 7/1/2015
Number of Cases Referred for Assessment Number of Referrals without a Finalized AHRAR as of 7/1/2015 Percentage of Referrals without a Finalized AHRAR Range of Days from In-reach to 7/1/15 Median Number of Days from In-reach to 7/1/15

986 449 45.5% 0 - 470 79

Number of Days

Number of Cases

Percent of Total Cases

From in-reach to 7/1/2015

0 – 60

174

38.8%

61 – 120

96

21.4%

121 – 180

32

7.1%

181 – 240

17

3.8%

241 – 300

15

3.3%

301 – 360

96

21.4%

More than 360

19

4.2%

Table 3. Referrals without a Final AHRAR as of 7/1/2015 (N=449)

In the Summer of 2015, the State announced initiatives designed to address the assessment issue, as well as the rate and pace of transitions overall.

 With the agreement of the HRA, a psychosocial history assessment (psychosocial) could be completed and submitted in lieu of a comprehensive psychiatric evaluation as a component of the assessment package submitted to HRA. Whereas a comprehensive psychiatric evaluation must be completed by the treating psychiatrist or a psychiatric nurse under the psychiatrist’s supervision, a psychosocial can be completed by a broader array of licensed clinicians including social workers and psychologists. The State also developed a format for the completion of psychosocials. The target for completion of the psychosocial was set at 30 days. (Defendants’ Report to the Court, July1, 2015, p. 3, fn. 2, Doc. #46-1)
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 The State established a new Health Home reimbursement rate to allow funding for additional staff to complete assessments (UAS-NY and psychosocials) as well as for reducing the caseloads of care managers to no more than 1:12. Care managers would be the single point of contact for each class member and would be responsible for coordinating the completion of the psychosocial. This initiative, referred to as Adult Home Plus, also set forth educational and experience criteria for care managers. It was expected to roll out and be ramped up beginning in July with training in psychosocial completions and on other topics, which would continue as more care managers were recruited and hired by Health Homes to incrementally reach the goal of 1:12 caseloads. It was anticipated to be fully implemented by February 29, 2016 (Id., p. 7), although at a status conference Judge Garaufis urged the State to make its best efforts to implement this change by the end of 2015.
 The State would hire supplemental staff (nurses, LCSWs, Psychiatric Nurse Practitioners) through an existing State temporary services contract to assist in addressing the backlog with the expectation that 22 staff being recruited would be in place by August 15, 2015.

In a July 1, 2015 report to the Court, the State indicated that it anticipated these actions would address the entire backlog by September 30, 2015. (Id. p. 5) However, the State experienced difficulty hiring the staff as planned. The Independent Reviewer was informed in early December that Nurse Practitioners and LCSWs did not apply for the positions and only two RNs had been hired, with two more pending.

Week 104 data, cumulative through 3/11/16, indicate that these efforts have had some positive impact. In the period 7/1/15 through 3/11/16, 626 AHRARs were finalized, an increase of 79% over the 349 AHRARs finalized in the preceding eight-and-a-half months (10/15/14-6/30/15). And the proportion of class members who have expressed an interest in transitioning but have not completed the assessment phase has declined slightly from 45.5% on 7/1/15 to 44.5% on 3/11/16, although the absolute number has increased from 449 to 683 individuals awaiting completion of the assessment phase as indicated in the Table below.

Cases Backlogged in Assessment Process as of 3/11/16

Number of Cases Referred for Assessment Number of Referrals without a Finalized AHRAR as of 3/11/16 Percentage of Referrals without a Finalized AHRAR Range of Days from In-reach to 3/11/16 Median Number of Days from In-reach to 3/11/16

1535 683 44.5% 0-695 87

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Assessment Backlogged More Than Six Months
32.70%
27.70%

7/1/15

3/11/16

Figure. 6. Change in Percentage of Assessments Backlogged More than Six Months

Although the percentage of people in the backlog waiting more than six months has decreased from 32.7% on 7/1/15 to 27.7% on 3/11/16 (Fig. 6), the median length of time in this “limbo” of awaiting completion of the assessment phase has grown slightly from 79 days in mid-2015 to 87 days on 3/11/16. The State anticipated addressing the backlog by September 30, 2015, but the data show it was not eliminated. On March 11, 2016, 16.2% of the 683 people awaiting completion of the assessment process had been waiting at least eight months and seven percent for nearly a year or more.

Change in Median Days for

Assessment

87

88

86

84

82

79

80

78

76

74

7/1/15

3/11/16

Figure. 7. Change in Median Number of Days for Class Members Awaiting Assessment

In the months prior to 3/11/16, the full effect of Adult Home Plus and other reforms, 57

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announced in the Summer of 2015, had not yet come to fruition as staff were still being recruited, trained and deployed. But the data suggests some progress. The number of assessments completed (626) in the eight-and-a-half months since 7/1/15 had nearly doubled compared to the preceding eight-and-a-half months. However, the backlog of class members awaiting completion of assessments has grown by 52%, from 449 to 683.

This appears to be due to the fact that assessment completion is still not keeping pace with the number of people saying Yes to transition and being referred for assessment. While the number of assessments completed in recent months has increased significantly, so has the number of people being referred for assessment, and the backlog grows.

In the eight-and-a-half month period prior to 7/1/15, 391 class members were referred for assessment, but only 349 completed the assessment phase. Although in the eight-and-a-half month period following 7/1/15, 626 class members completed the assessment phase, 837 were referred for assessment.

Number of Days

Number of Cases

Percent of Total Cases

From referral to 3/11/16

0 – 60

273

40.0%

61 – 120

124

18.2%

121 – 180

99

14.5%

181 – 240

76

11.1%

241 – 300

30

4.4%

301 – 360

33

4.8%

361-- 460 461—560 561—660

11 8 29

2.0% 1.2% 4.2%

Table 4. Referrals without a Final AHRAR as of 3/11/2016 (N=683)

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More needs to be done to address the assessment phase of transition.
The lengthy time it takes for individuals to complete the assessments and learn of what housing and service options are available to them after they have expressed an interest in transitioning undoubtedly contributes to their frustration with the process, and ambivalence and uncertainty about moving further.
B. Declinations of Assessment or Transition
As of March 11, 2016, 181 (10.9%) of the 1,657 class members who expressed interest in transitioning during their most recent in-reach session declined assessment or the opportunity to transition during the assessment phase of the transition process.
As reported in the Independent Reviewer’s First Annual Report, follow up on individuals who had changed their minds at this juncture revealed a variety of reasons. (First Annual Report, pp. 27-31) In some cases, there appeared to be a misunderstanding between the individual and assessor, due to language or other difficulties; in other cases, it appeared that an assessor’s comments may have swayed the individual’s choice at that time; and in other cases, there seemed to be well founded reasons on the individual’s part – a desire to reunite with a spouse at home or the need to attend for the time being to a serious medical issue that had recently emerged.
In cases where individuals change their mind about transitioning during the assessment phase, the Housing Contractor is informed and the individual is rescheduled for additional in-reach activities. Over the past year, Independent Reviewer staff have observed that additional in-reach is done with these individuals and some re-express interest in moving. This underscores both the weighty nature of major life decisions, such as moving, and the need for continual in-reach and support when people are ambivalent or unsure.
C. Inappropriate for Supported Housing
As of March 11, 2016, 61 (5.6%) of the 1,094 individuals who had completed the assessment process were found inappropriate for supported housing. The reasons cited in the weekly data reports were as follows:
 In 50 cases, it was the assessor’s opinion that the resident would be a danger to self or others in supported housing even if receiving services currently provided under the New York State Medicaid Program;
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 In nine cases, it was the assessor’s opinion that the individual needs a type and/or frequency and duration of service on an ongoing and sustained basis in order to live in supported housing that is not available under the New York State Medicaid Program; and
 In two cases, the assessor opined the individual had significant dementia.
Most of the individuals found inappropriate for supported housing - 47 of the 61 individuals (77%) – were recommended for OMH certified housing: Apartment Treatment (one case), Congregate Treatment (23 cases), Community Residence-Single Room Occupancy (22 cases), and Family Care (one case). It should be noted that in an additional case, the assessor found that the individual was appropriate for supported housing but recommended a Community ResidenceSingle Room Occupancy placement; the weekly reports indicate this class member desired Level II housing.
In the remaining 14 cases found inappropriate for supported housing, Senior Housing was recommended in one case and one case was recommended for “OASIS” (sic), presumably a program overseen by the State Office of Alcohol and Substance Abuse Services (OASAS). In the remaining 12 cases, an adult home placement was recommended. It is difficult to reconcile this last recommendation in light of the reasons given. In two of the cases, the reason was “significant dementia.” But in 10 of the cases, the reason was that “the resident would be a danger to self or others in supported housing even if receiving services currently provided under the New York State Medicaid Program.” Considering the individual’s desire to transition from an adult home and the types of certified and supported housing options and services available, one must question the basis for this recommendation and the assessors’ knowledge of housing options.
Of the 48 recommendations for OMH certified housing, HRA has approved 40 for Level II (i.e., certified) Housing only. In eight cases there has been no application or decision by HRA.
As detailed in the Independent Reviewer’s last Annual Report, class members’ referrals to OMH certified housing raises concerns. (Annual Report, pp. 32 - 33)
First, referrals to this type of housing are a bottle neck because there are not a lot of vacancies and a high demand for those that do exist.
When it is determined that class members require OMH housing other than supported housing, the care manager who submitted the HRA application would first send the completed referral package to the class member’s Housing Contractor if that agency has a Level II housing
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program. If not, the care manager is to first send the referral to other Housing Contractors in this initiative who have Level II housing, keeping in mind the class member’s preference for borough etc. If there are no beds available at those programs, or if the class member is requesting another borough, the OMH New York City field office provides assistance in identifying available Level II housing, as was the case for several class members who required a higher level of supervision than was being provided in supported housing. When no vacant Level II beds are available within this initiative, class members are referred by their care managers to the Center for Urban Community Services (“CUCS”), which is an OMH-funded referral program for various housing programs and provides administrative support for the NYC Single Point of Access housing program.16 CUCS receives referrals from various sources which are searching for housing, including the NY/NY program, the nursing home settlement, prison discharges, Assisted Outpatient Treatment, psychiatric center discharges, etc., including this Settlement Agreement. While the adult home referrals are supposed to get priority, so too do all the other referrals.
Unlike supported housing which is permanent and for which there is a specific commitment for bed development under this Settlement Agreement, most of the alternate housing is transitional (e.g., CR-SRO has an anticipated length of stay of two to five years, while Apartment Treatment is generally 18 months), and there is no specific requirement to develop additional beds to meet class members’ needs. The anticipated difficulty of transitioning adult home residents after a temporary stay may also play a role in the providers being reluctant to serve them. Such placements also raise the question of what will happen to these class members when their transitional period expires and they are still in need of housing. This is an issue that requires the attention of the parties, and is related to a similar issue that arises when there are non-transitional discharges of class members from adult homes to non-permanent placements (e.g., admissions to nursing rehabilitation, medical or psychiatric hospitalization).
Class members placed in Level II housing also receive a smaller PNA of $163/mo. compared to $193/mo. in an adult home which is funded at the higher Congregate Care Level III. For persons living on small and fixed incomes, this is a significant reduction in available spending money for personal necessities.
16 In its response to a draft of this report, the State offered some clarifying information about this process. According to the response, the care manager does not always submit the HRA application. Rather the care manager is responsible for ensuring the application is submitted. The care manager does not send the referral to other housing contractors in this initiative unless directed to do so by CUCS or the OMH New York City Field Office, or the class member desires a different borough.
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The Independent Reviewer is concerned about the class members who are referred to CUCS to find housing because there seems little likelihood that they will get housing anytime soon, as there is no dedicated allocation of beds other than for supported housing. The Independent Reviewer has recommended that notice be provided to class counsel prior to referring any class members for alternate housing. This recommendation recognizes that in the early phases of implementation there have been several such referrals for alternate housing that were poorly supported by the assessor, and later changed to supported housing.
D. MLTCP Enrollments and Disenrollments
Another factor impacting the assessment phase of transition, as well as care planning phase, is an individual’s disenrollment from his or her MLTCP. Individuals can disenroll voluntarily – e.g., they opt to join another organization/plan; or involuntarily – e.g., they no longer meet enrollment criteria. In late 2014, for example, approximately 90 class members were disenrolled from the CenterLight MLTCP, most involuntarily because they did not meet the enrollment criteria of need for 120 days of long-term care services.
Disenrollment, whether voluntary or involuntary, can result in delays in assessment. For example, if an individual is disenrolled after in-reach but before the HH/MLTCP begins the assessment process, the in-reach form and referral must be sent to a new care management entity, once identified. If the individual is disenrolled in the midst of the assessment process before the assessor has gathered all the information (e.g., comprehensive psychiatric evaluation or psychosocial history) necessary to reach conclusions and make recommendations in the AHRAR, the assessment process (including the completion of a UAS-NY assessment, even if one had been completed) must be re-initiated by the new assessment entity because the assessor's recommendations must be based on their own in-person assessment and review of documentation.
It is expected that when an individual is disenrolled, the MLTCP will refer the individual to the Health Home that he has been matched with through DOH’s loyalty match process. The MLTCP must also inform the Health Home where the individual stands in the assessment process and share any applicable documentation. Also, the MLTCP must notify the Housing Contractor of the change and the contact information of the Health Home. Sharing of information by the MLTCP is complicated when there is not an Administrative Services Agreement between the MLTCP and the Health Home, as was reportedly the case with CenterLight and some of the Health Homes involved in this initiative. (See, Section III (D) above) In addition, the consents signed by the individual do not routinely include the DOH or OMH. So in instances of disenrollment, while DOH
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may have all of the prior documents, including psychiatric evaluations that took months to acquire, they cannot share them with the new Health Home, which may have difficulty obtaining them from the MLTCP. Moreover, the delays caused by disenrollment may also render a prior psychiatric evaluation too dated to be used even if obtained.

On November 3, 2014, DOH directed all MLTCPs to report the disenrollment of any class members to DOH to allow the State to immediately intervene and facilitate the smooth transition to another care plan and reduce the negative impact resulting from a gap in care management services.

In preparing this Annual Report, the Independent Reviewer requested data on disenrollments from MLTCPs during the last six months of 2015. According to data provided by DOH in January 2016, twelve MLTCPs serve class members. Eight of these serve fewer than five members each, with most serving only one Class Member. Four MLTCPs, however, serve the majority of class members enrolled in MLTCPs with:

 Alpha Care serving 260;  CenterLight serving 124;  Elderserve serving 1044; and  VNS serving 24.
During the last six months of 2015, there were no disenrollments from VNS. But 90 class members were disenrolled from the other three MLTCPs: 15 were disenrolled due to death; five were involuntarily disenrolled; and 70 disenrolled on a voluntary basis; as indicated below.

Disenrollments from Three MLTCPs by Type

MLTCP Alpha Care CenterLight Elderserve

Total 7 11 72

Death 3 12

Involuntary 1 4

Voluntary 3 11 56

Of the five involuntary disenrollments, one person was or is incarcerated; two were enrolled in Health Homes prior to their disenrollment from the MLTCP; one was hospitalized and reenrolled in the MLTCP following the hospitalization; and one was hospitalized and placed on fee-for-service status following discharge from the hospital.

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Of the 70 voluntary disenrollments, 42 (60%) were enrolled in Health Homes prior to or following disenrollment from the MLTCP as follows:
 25 were enrolled in a HH prior to MLTCP disenrollment;  4 were enrolled in a HH the day after MLTCP disenrollment;  2 were enrolled in a HH a month after MLTCP disenrollment;  4 were enrolled in a HH two months after MLTCP disenrollment;  6 were enrolled in a HH three-six months after MLTCP disenrollment; and  1 was enrolled in a HH after MLTCP disenrollment, but date of enrollment was not
provided.
The remaining 28 (40%) of the 70 individuals who voluntarily disenrolled from MLTCPs in the last six months of 2015 were not enrolled in Health Homes. Their status as of January 2016 is as follows:
 8 were enrolled in other MLTCPs within one day (four cases) or one (three cases) to three (one case) months;
 2 were enrolled in Managed Care Plans;  6 resided in Assisted Living Program (“ALP”) beds in the adult Home;  10 were placed on a fee-for-service status; and  2 were residing in nursing homes.
Although more than half the class members disenrolled from an MLTCP in the last six months of 2015 were either enrolled in a Health Home prior to disenrollment or enrolled in a Health Home or MLTCP within a month following disenrollment, others took longer and onequarter were not enrolled. But eventually, all class members disenrolled from MLTCPs had their health care covered through a new Health Home, MLTCP, managed care, fee-for-service, or placement in an ALP bed. Nevertheless, as discussed in the case examples in Section III, class members would benefit from a smooth and timely transition to new health coverage when they are disenrolled from a MLTCP.
VI. HRA Process and Activities
Once a complete assessment package has been approved by the DOH, the assessing entity submits an application package to HRA for approval. Prior to the Settlement Agreement, HRA
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handled roughly 22,500 applications for housing arising out of mental health sectors and the NY/NY agreement. Major referral sources are psychiatric hospitals, shelters and correctional facilities. Many applicants are repeat HRA customers and their prior applications/histories are retained by HRA and reviewed as part of the process of reviewing a current application. According to HRA representatives with whom the Independent Reviewer met in 2014, applications are reviewed and generally turned around within 1-3 business days.
In anticipation of the Settlement Agreement, in mid-2013, HRA and DOH/OMH began discussions on the role of HRA in the Settlement Agreement process. Consistent with the State’s work plan, HRA developed a streamlined application process, specifically to be used when applying for housing for the adult home residents included in the Settlement Agreement. HRA participated in DOH/OMH training sessions for partners in the Settlement Agreement initiative and training was initiated and is ongoing for those responsible for completing the HRA application.
An application package to HRA includes an abbreviated HRA application, the finalized AHRAR, the UAS-NY nursing assessment and a comprehensive psychiatric evaluation or, beginning in the summer of 2015, a psychosocial history assessment (psychosocial) in lieu of a comprehensive psychiatric evaluation. Applications are approved for Community Care (i.e., supported housing) and/or Level II Housing. Level II Housing refers to other types of OMH Housing, including Community Residence-Single Room Occupancy (CR/SRO); Congregate Treatment; Apartment Treatment; Family Care; or Senior Housing.
At times, the HRA classifies applications as “Unable to Complete” (UTC) due to insufficient or inconsistent information or other reasons and the applying entity is informed of this so it can rectify the situation. As of March 11, 2016, 682 applications had been submitted to HRA of which 634 (93%) were approved and 48 (7%) were classified as UTC.
The median length of time from submission to HRA approval was two days. It should be noted that in the initial stages of implementation, the median length of time for HRA approval was seven days. However, as noted earlier, in August 2014, DOH expanded its quality assurance reviews of AHRARs (and supporting documents) prior to HRA submission by assessing entities from 10% to 100%. Subsequently, there was a reduction in the number of days it takes HRA to complete a review of an application.
At the time of the Independent Reviewer’s First Annual Report, the rate of UTCs was 10%. (Annual Report, p. 40) At present, with 48 UTCs, there appears to be a slight reduction with 7% of submissions falling into this category.
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In January 2016, the HRA provided the Independent Reviewer information explaining the reasons for the 48 cases falling into the UTC category. Below is a summary of the information provided including the determination reason (and a definition of terms), the number of cases and the length of time cases have been in this category at the time the HRA provided the information.

Determination Reason Missing/Incomplete Supporting Docs. Requested Additional Information Assessment Discrepancy Timeline of Assessments Axis I unsubstantiated Other Outdated Documents Grand Total

Applications Average # of Days

17

92

16

285

9

199

2

75

2

301

1

333

1

168

48

191

Determination Reasons Defined
Missing/Incomplete Supporting Documentation: Incomplete/missing sections of AHRAR, UAS and/or other clinical documents. Missing required forms such as AHRAR, Psychosocial and/or UAS.
Requested Additional Information: More information is needed in order to make a determination, such as fire setting/arson behavior, detailed description of violent behavior, or recent psychiatric hospitalization.
Assessment Discrepancy: The level of housing recommended in the clinical documentation (i.e. psychiatric evaluation, UAS, AHRAR or psychosocial) is inconsistent.
Timeline of Assessments: Date of completion for the AHRAR doesn't include the most recent significant clinical event to inform an appropriate recommendation for the level of supportive housing.
Axis I Unsubstantiated: More information needed to substantiate the psychiatric diagnosis in the clinical assessment.
Other: Application contained documentation for another client (non-HIPAA Compliant).
Outdated Documentation: Documentation exceeds required time frame.

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It should be noted that in six of the above cases it appears that the current application for housing will not be pursued. In these cases, according to the State’s weekly report, the individuals had either died or had been discharged from the adult home to live at home with family members or to an inpatient psychiatric or rehabilitation facility.
The Assistant Commissioner for HRA, who oversees the unit responsible for the review of these applications, provides regular training to staff from the Health Homes and MLTCPs on the proper completion of the application in order to reduce the need for repeated submissions. Since the Independent Reviewer’s First Annual Report issued in March 2015, as of January 14, 2016, it has conducted 10 training sessions for more than 150 staff. Nevertheless, the data suggests the need for the State to redouble its quality assurance review efforts to limit the number of cases referred to HRA with missing, inconsistent, outdated or otherwise flawed application packages and to remedy cases that have lingered in the UTC category for unacceptable periods of time.
The underlying presumption of the Settlement Agreement is that any adult home resident with a Serious Mental Illness would be eligible for supported housing. The four exceptions were detailed in the Settlement Agreement (Para. F(5)), with the stipulation that if an assessor determined that a resident was inappropriate for supported housing the reasons would be clearly documented, and the resident would be given an opportunity, if interested, to seek other appropriate community placement. Of the 634 applications approved by HRA as of March 11, 2016, 577 (91%) were approved for supported housing and 57 (9%) for Level II, or other than supported housing.
As reported in the Independent Reviewer’s First Annual Report, as of March 13, 2015, HRA had differed with the Assessor’s opinion in 21% of the cases and approved Level II when supported housing had been recommended. (Annual Report, p. 42) Since then, the rate of disagreements has dropped.
In five of the 57 cases that HRA approved for level II, the Assessor had recommended Supported Apartment, but HRA approved the resident for Level II only. HRA maintained that information that it had received during the application process, often in the psychiatric evaluation or UAS, led to a determination that the resident would not be safe in supported housing, and the class member was approved for Level II only. The following examples of reasons provided by HRA for more recent determinations which countered the Assessor’s recommendation are illustrative.
 Reason in the case of ED: Client hospitalized/ER visits 12 times in last 2 years for medication/treatment noncompliance and violent behavior/command AH (auditory hallucinations). 67

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 Reason in the case of RD: Psychiatric Evaluation (PE) and AHRAR recommends Level II.
 Reason in the case of FC: PE states client requires supervised setting.
 Reason in the case of RR: Psychosocial details ongoing daily drinking/intoxication and resulting disruptive/violent behavior with recommendation for further psychiatric evaluation; history of violence and suicide attempt.
Cases wherein the HRA disagrees with the Assessor’s recommendation for supported housing are reviewed in telephone conversations between the State and HRA representatives designed to reconcile the differences.
Additionally, in the Fall of 2015, the State initiated conference calls to discuss cases where the Assessor has recommended Level II housing before an application is submitted to the HRA. Referred to as “Level II Calls,” these conference calls include the Housing Contractor and Assessors and Care Coordinators/Managers from the HH/MLTCP involved as well as representatives from DOH and OMH. They are designed to ensure that the rationale for a Level II recommendation is sound, that all parties – including the class member – are in agreement with the recommendation and whether any services, such as enrollment in a PROS or other program, can be put in place now, while the individual still resides in an adult home, which would enable him or her to transition to supported housing.
VII. Person-Centered Care Planning Process
The Settlement Agreement requires that for each class member assessed, the Health Home or MLTCP shall develop a person-centered care plan with the informed and active involvement of the class member, and include consideration of the current and unique psychosocial and medical needs and history of the individual as well as the functional level and support systems developed by the Health Home or MLTCP care manager. (Settlement Agreement, ¶ F (1) (2))
Each person-centered plan must identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual’s needs and personal preferences. If supported housing is part of the person-centered plan, the care manager must make a referral to the appropriate Housing Contractor. (Id. F (3))
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According to the DOH, care planning begins upon the class member's enrollment in a Health Home or MLTCP. Person-centered care plans are based on individual needs and desires, and focus on attainable goals. When a class member expresses a desire to move to the community, transition care planning should begin. Upon approval of the HRA application, the HH/MLTCP care manager should notify the Housing Contractor and send him/her a copy of the referral package and, with the class member and Housing Contractor, work toward developing a transition care plan that identifies and arranges for the supports needed by the class member to successfully move to supported housing. Care planning for transition involves numerous service providers who provide and/or coordinate the services/benefits that the class member needs, as identified in the assessment process as well as by the individual. Services to be coordinated can include SNAP benefits (Food Stamps), furnishing an apartment, setting up utilities, transportation, mental health programs, psychiatric and medical visits, aide and visiting nurse services, etc. Care planning is not a one-time event that is "completed," but is a continuous and fluid process.
Once a supported apartment is secured, the care manager with the support of the care team, which includes the class member, works to coordinate all necessary services and benefits to meet the class member's needs in the community. Care managers must coordinate care before, during and after transition, serving as the class member's point-of-contact 24/7.
Care managers must also make the final care plan available to the Housing Contractor at least two weeks prior to scheduled transition.
In addition to care planning sessions involving the individual, HH/MLTCP care manager, Housing Contractors and others as appropriate, in November 2014, DOH initiated a Quality Assurance mechanism of “Transition Calls.” The purpose of these calls is to ensure that all components of a safe transition for a class member have been adequately addressed and secured. Transition calls are made approximately three weeks (21-days) prior the class member’s identified move-in date. Participants include care managers from the Health Homes and/or MLTCP, the Housing Contractor and representatives from DOH and OMH.
Among the items discussed are: securing required documents (e.g., picture ID), medication management and the need for assistance, scheduling of medical and mental health appointments, enrollment in mental health programs, emergency contacts, arrangements for meals, furnishing, utilities, etc. To guide these conversations, the State issued the Adult Home Class Member Discharge Planning Tool which has been revised over time. A copy of the tool is attached as Appendix B.
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Also, in response to the Independent Reviewer’s suggestion, in February 2015, the State implemented a system of post-transition calls to monitor whether the services called for in care plans were actually in place and being delivered now that the individual has transitioned. These calls occur within three weeks following transition and involve the Housing Contractor, care managers from the Health Homes and/or MLTCP and representatives from DOH and OMH. A copy of the template developed by the State to guide these calls, NYC Adult Home Class Member Post Transition Call Agenda, is attached as Appendix C.
In monitoring person-centered care planning activities, as mentioned earlier, the Independent Reviewer and associates followed up on a sample of 28 individuals who had transitioned, visiting with them in their homes, reviewing care plans and progress notes and interviewing staff. The Independent Review team also met with or followed up on several dozen other class members who had not yet transitioned; participated in 68 transition calls and 44 posttransition calls and 17 “Level II” calls; and met with all Housing Contractors and at least 75 HH/MLTCP care manager/coordinators in the course of meetings, trainings and other activities.
A. Ongoing Problems in Person-Centered Care Planning These review activities suggested ongoing problems with care planning and delivery of needed services, as were reported in the Independent Reviewer’s first annual report. (Annual Report, pp. 47-53)
1. Delays in the Delivery of Services As discussed earlier (Section III. Issues that have arisen following transition, above) more
than a third of the individuals who were included in the sample the Independent Reviewer followed up on experienced problems with the design and implementation of care plans and thus experienced delays in the receipt of benefits and services including SNAP benefits, government IDs necessary for a range of community services, and Health Home, MLTCP and/or CHHA services.
2. Need for Improved Communication Among Class Members and those Providing Supports Individuals in the sample of class members the Independent Reviewer followed up on
reported feeling supported by case managers and care coordinators. Also, the records of these individuals reflected frequent and regular communication among the individuals and those providing support by the Housing Contractor and HH/MLTCPs.
While this may be the case for individuals we followed, and hopefully for all who have transitioned, over the past year the Independent Reviewer’s experience suggests that such is not the case for class members who have not yet transitioned.
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The Independent Reviewer’s team continues to meet class members who don’t know who their care managers are, who don’t know where they stand in the transition process and are seeking information, guidance and advice. Housing Contractor staff also report having difficulty contacting HH/MLTCP care managers to schedule care planning meetings. As recently as a January 6, 2016 Housing Contractor meeting, several expressed concern about this and also indicated that they do not consistently receive care plans from HH/MLTCPs two weeks prior to transition as is required.
A recent pre-transition call in which Independent Reviewer staff participated is illustrative:
 In this 12/30/15 call for AH, the Health Home care manager was asked when the care planning meeting occurred. He responded, somewhat incredulously, that he thought this call was the care planning meeting. It was explained that the call was intended to ensure that all essential elements of a care plan, which should have been developed prior to the call, were in place now that the transition date was approaching. It was agreed that the care manager would convene a care planning meeting with the appropriate parties and a pre-transition call was rescheduled.
Throughout the year, the Independent Reviewer continued to receive reports of HH/MLTCPs care managers having caseloads in excess of 75 individuals, with some up to more than 100 individuals. Undoubtedly, this contributes to poor communication and care planning, and class members feeling left in the dark about their transition status, uncertain about their future and whether they want to move. The Independent Reviewer continued to stress with the State, as he had in the First Annual Report, that if a care manager is truly intended to be the lynchpin in ensuring a successful transition and life in the community, the State must examine and establish expectations for meaningful assignments and caseloads that enable the care manager to fulfill his or her role. As discussed in more detail below, the State has responded to this concern by implementing a new model of care management denominated as Adult Home Plus, with a caseload limit of 12 class members.
3. Need for More Robust Care Planning and Training in Person Centered Planning As reported in the Independent Reviewer’s first annual report, HH/MLTCPs have a variety
of templates for developing care plans. (Annual Report, p. 50). Most of these, however, focus on health and safety issues, much like the State’s discharge planning tool; issues such as food, shelter, medical/mental health services, emergency contacts, etc. These are all vitally important issues, to be sure. But they do not address the totality of a person’s life, their desires, life dreams, things they would like to accomplish upon transitioning from an adult home, or more fundamentally how they would like to spend their days once they leave an adult home. Few HH/MLTCP care plan templates address issues such as vocational, educational, spiritual, social, community/civic interests/needs which round out the total individual and complement his or her health and safety needs.
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This was confirmed in the Independent Reviewer’s follow up of a sample of individuals who had transitioned. Although a number of individuals were engaged in educational/vocational pursuits, in few of these cases were such life goals/interests expressed in their care plans. Two cases are illustrative:
 In the case of SC, his AHRAR recorded his interest in wanting to work. However, the care plan developed was silent on this issue. SC is currently pursuing vocational training which appears to have been facilitated by the PROS program which he attends. This became known to his HH/MLTCP sometime after transition via his Housing Contractor who learned of it from the PROS program. So, while this worked out well for SC, the result was largely a product of his own determined self advocacy, a skill which many other class members lack.
 In the case of PC, at the time of her assessment as recorded in her AHRAR, she wanted to “learn”…she had only completed 9th grade. It does not appear that her interests in “learning” or continuing education were addressed until three months after her transition when she expressed to her Housing Contractor that she wanted to attend GED classes but her Health Home care manager wasn’t helping her. At that point the Housing Contractor reached out to the Health Home care manager and they agreed to work on this together.
While it is fortuitous that these individuals’ life interests are being addressed due to their own advocacy or that of the programs with which they are affiliated, one could rightfully question whether other individuals’ life interests will not be pursued because care planning templates do not address the totality of a person, or life domains which are as important, but perhaps not as critically and immediately vital as health and safety issues.
Throughout the year, the Independent Reviewer has advocated for care planning templates which address these other domains of a person’s life and has also advocated for training for care managers in person-centered planning. Although, the State had expressed reservation about creating a care planning template that would address all life domains as this would require substantial effort on the part of HH/MLTCPs and would delay transitions, (Defendants’ Report, July 1, 2015, p. 2, Doc. #46-1) it also indicated it would amend the Discharge Planning Tool Guidance to address this concern. (Appendix B)
It should be noted that the State’s template for post transition calls contains an item for discussion focusing on an individual’s social needs including community involvement, life goals and how the individual is spending his or her days. In calls in which the Independent Reviewer’s team has participated, this item has been discussed, but the degree to which the issues are
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probed/reinforced is inconsistent. Independent Reviewer staff notes on the following cases are illustrative:
 RG’s 12/2/15 post-transition call: At this time, he has no interest in day program or other organized activities…reportedly he goes out daily on his own. DOH/OMH staff reminded all involved in the call to stay on top of this issue as right now he may be getting used to a new environment and various appointments he must keep on his own, but they would like to see that his possible interests in other life pursuits and goals are followed up on.
 JS’s 11/24/15 post-transition call: She was referred to West Brighton MHC and kept her initial appointments with her therapist and psychiatrist. She visits with family and is interested in classes at Snug Harbor in computer or art and plans to go to a gym. Note: As opposed to the RG case above, there is no reminder or indication that interests expressed by the individual should be followed up or supported by the care team.
As a result of further discussions between the Independent Reviewer and the State, the DOH entered into a partnership with the New York Association of Psychiatric Rehabilitation Services, Inc. to provide training for care managers in Person-Centered Planning. Training sessions will begin in February and run through July 2016 and cover such topics as: Integrating Person Centeredness in Day-to-Day Practices, Looking through the Recovery Lens, Employing Successful Engagement Practices, Trauma Informed Care, Employment and Self Sufficiency, Holistic Approaches to Managing Intense Emotions, and more.
B. Adult Home Plus
As indicated earlier (Section IV), in mid-2015 the State announced an initiative intended to improve the entire transition process including assessments and care planning and management. It established new, intensive care management requirements (and reimbursement rates) for class members who are transitioning to the community. The new model, referred to as Adult Home Plus (“AH Plus”) had a ramp up beginning in September 2015.
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The model is intended to address many of the concerns expressed by the Independent Reviewer and Plaintiffs and those learned by the State in the process of its implementation of the Settlement Agreement. All class members enrolled in a Health Home and desiring transition will automatically receive Adult Home Plus.

In mid-2015 the State announced an initiative
intended to improve the entire transition

Under the model, the Health Home care manager will be the single point of contact for every class member enrolled in a Health Home and desiring transition, and will coordinate their transition. All eligible and consenting class members will be enrolled in a Health Home on an expedited basis and MLTCPs and Health Homes will be required to enter into an Administrative Services Agreement (ASA) delegating primary responsibility for care management for transitioning class members to Health Homes.17 If a class member enrolled in a MLTCP chooses not to enroll in the Health Home, the MLTCP will be the care manager.
Among the highlights of the Adult Home Plus:
Early engagement. Early engagement, defined as outreach and engagement prior to in-reach by the Housing Contractor, will support the development of the relationship between the class member and care manager. It will:

process including assessments and care
planning and management. It established new, intensive care
management requirements (and reimbursement rates) for class members who are transitioning to the

 Make it possible for the class member to build a

community.

relationship of trust with the care manager and

recognize him/her as the single person to go to with

questions about transition;

 Allow the care manager to participate in the assessment process; and

 Provide for the development of the person-centered plan earlier.

Increased frequency of contacts. Care managers will be required to have contact with class members at a minimum on a weekly basis. This level will:

17 See, status of execution of ASAs discussed earlier at pp. 34-35.
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 Allow class members to get regular updates on their transition;  Strengthen the relationship and trust between the care managers and class members; and  Hold care managers accountable for continuously resolving barriers to transitions.
Smaller caseload sizes. The caseload ratios for Adult Home Plus will be no greater than 1:12. Care managers will not be permitted to have blended caseloads with non-class members. The lower caseload ratio will:
 Afford the care managers the time necessary to support transition;  Increase their accessibility to assessors and housing contractors; and  Allow care managers to develop expertise in transitions of people with serious mental
illness.
Minimum education and experience levels. The minimum education and experience requirements specified were: a bachelor’s degree in a specified field or a NYS teacher’s certificate for which a bachelor’s degree is required; or NYS licensure and registration as a Registered Nurse and a bachelor’s degree and four years’ experience in providing or coordinating services for people with serious mental illness. A master’s degree in one of the specified fields may be substituted for two years of experience.
A Health Home cannot bill for the enhanced Adult Home Plus funding if the above requirements are not met.
Time lines for implementation included:  Enrolling 100% of all consenting, eligible and assigned adult home residents and beginning
care planning by December 31, 2015;  Providing weekly contacts with 100% of adult home residents by December 31, 2015;  Ensuring that 100% of Adult Home Plus care managers have reduced caseloads of 1:12 by
February 29, 2016; and  Ensuring that 100% of Adult Home Plus care managers meet the education and experience
guidelines by February 29, 2016.
As reported earlier, at a status conference in Summer 2015, Judge Garaufis urged the State to make its best efforts to implement Adult Home Plus changes by the end of 2015.
As of the State’s 7th Quarterly Report for the period ending 12/11/15, over 50 Adult Home Plus care managers met the educational requirements, many of whom are “new hires” and are building their 1:12 caseloads. The number of Adult Home Plus care managers has since grown and,
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as of 3/11/16, 614 class members were enrolled in Adult Home Plus. These 614 individuals are in the following phases of the transition process:

In-reach: Assessment: Housing: Transitioned:

47 Individuals 250 Individuals 215 Individuals 102 Individuals

On January 13, 2016, an Independent Reviewer team member attended training for Adult Home Plus care managers at which approximately 75 care managers were present. The training touched on issues including early engagement, frequency of visits with class members and regular communication with class members, psychosocial histories/assessments, discharge and care planning, and expectations of and checklists for care manager duties (including applications for benefits, sharing care plans with housing contractors, etc.). On February 29, 2016, the New York Association of Psychiatric Rehabilitation Services, Inc. began training on person-centered planning and related issues for Adult Home Plus care managers; nearly 100 care managers were present as was a representative from the Independent Reviewer’s Office.

Most of the Housing Contractors have spoken positively about the early impact of the Adult Home Plus program, which was to be in place by December 31, 2015, and started several months earlier in some of the homes. Health Homes have been seeking to enroll all class members, and in some cases, even before in-reach has occurred. According to the above numbers, 42% of the 245 class members who have transitioned have been enrolled in Adult Home Plus thus far. Health Homes have also been seeking to enroll all class members, at each phase of the process. Thus far 8% of those enrolled are in the in-reach phase. This includes class members who have never received in-reach; those who have received inreach and have said No; and those who have said Yes, changed their mind at any point in the process, and will be offered the opportunity again, no less than annually. This has resulted in reports by housing contractors that they have been alerted that a particular class member is interested in supported housing, which prompts a visit by the in-reach team. Contractors are also seeing more rapid assessment and follow-up once the in-reach is completed and the Health Home is notified, if an Adult
76

Most of the Housing Contractors spoke positively about the early impact of the Adult Home Plus program, which was to
be in place by December 31, 2015, and started several months earlier in some
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Home Plus care manager is assigned. Housing contractors report that it is already evident that the Adult Home Plus care managers are more readily available to work with them in getting all of the necessary pieces in place prior to transition, whereas previously care managers’ case loads were so large, it is was difficult to reach them, let alone coordinate services with them.
VIII. Community Transitions
The Settlement Agreement requires the State to fund sufficient supported housing units to provide any class member for whom supported housing is found to be appropriate an opportunity to transition from an adult home. (Para. D). The State is required to make all reasonable efforts to coordinate the performance of assessments by Health Homes and MLTCPs with the development of supported housing units so that the assessments take into account supported housing units that are actually available or will soon become available. The agreement also provides that the assessment shall determine the housing and service needs and preferences of the NYC Adult Home Resident in order to transition from the NYC Impacted Adult Home. In addition, “the assessment shall identify the housing that is the most integrated setting appropriate for the individual and the community services needed to support the individual in such housing, based on the individual’s needs and personal preferences.” (Para. F) There is a presumption in the Settlement Agreement that most class members will be found appropriate for supported housing, with adequate services and supports to meet their needs, but some may require a higher level of care. These are generally denominated as Level II, which includes a range of housing alternatives including community residences, CR-SROs, apartment treatment, supportive apartments, etc. as discussed above in Section V.
Following approval of the complete package by HRA, the care manager for the Health Home or MLTCP sends it to the Housing Contractor, who schedules an interview with the class member.
As of March 11, 2016 there were 577 housing referrals sent to the Housing Contractors, with a median of five days to forward the package from the point of HRA approval. Of the referrals sent to the Housing Contractor, 513 of the class members had dates of interviews listed, with a median number of days from receipt of the referral to the interview of 12 days.
Although the Housing Contractors’ staff had previously met with the class members during in-reach to determine if they were interested in moving, the interview at this time is focused on learning more about the individuals and what their preferences are in terms of where they want to live, the type of apartment they want, and what, if any accommodations will they need for a
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successful transition (e.g., first floor, elevator, or walk-up apartment). After the housing interview the process of looking for the apartment begins. Many of the residents are shown model apartments before they are shown apartments that are under lease to the Housing Contractor and available for transition. Once they are shown apartments they can either accept the apartment or ask to see another. Of the residents that the Independent Reviewer’s staff met with who transitioned, most liked and accepted the first or second apartment they saw.
As noted above, as of March 11, 2016 HRA had approved 634 class members for transition: 577 (91%) for Community Care (supported housing) and/or Level II, and 57 (9%) for Level II only. As of that date, 245 class members had transitioned to the community, including eight who moved directly to Level II housing, as described in the Assessment section. Four of the 237 class members transitioned to supported housing, however, returned to an adult home and continue to be a part of the class eligible for transition. The 241 class members who have successfully transitioned to the community pursuant to the Settlement Agreement are a part of the total reduction of class members in the adult homes. In addition to these 241, 302 class members died and 707 were discharged outside the Settlement Agreement process, as depicted in the Figure below.18

Transitions of Class members, by quarter

90 80 70 60 50 40 30 20 10
0 7/1/14- 10/1/149/30/14 1/2/15

Q5

Q6

Comm. Transitions 3

11

Deaths

26

34

Non-SA Disch.

52

87

1/3/154/3/15
Q7 35
50
62

4/4/15- 6/27/156/26/15 10/2/15

Q8

Q9

30

46

28

38

66

90

10/3/51/1/16
Q10 66
25
84

1/1/63/11/6
Q11 54
6
5

Figure 8. Transitions of class members, by quarter

18 The data for Q. 11 for deaths and non-Settlement Agreement discharges is partial as the reports from adult homes of these data are typically not available for several weeks after the quarter ends. Also, 95 deaths and 260 non-Settlement Agreement transitions occurred prior to Q5, and one non-Settlement Agreement transition has no associated date.
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As of March 11, 2016, 245 class members have transitioned.19 It has taken a median of 277 days from in-reach to transition for these 245 class members. As noted in the First Annual Report (Doc. 36 p.53), as of March 13, 2015 it took the first 40 class members a median of 203.5 days from the point of in-reach to transition, a difference of 73.5 days. There are obviously different ways of analyzing data. From one perspective, it took 20 months from the execution of the Settlement Agreement for the first 40 class members to move. The next 205 moves were accomplished in about 12 months. The rate at which class members are currently transitioning and being prepared to move is clearly improving, but as the numbers increase, the amount of time it is taking to move through each stage of the transition process has been increasing as well, as shown in Fig. 9.

Time Frame from In-reach to Transition

First 40 (9/15/14-3/12/15)

Next 205 (3/17/15-3/9/16)

307

134 113

154 115

183 136

203.5

1 1

52 20

Ref to Assess

Complete UAS

Complete HRA Approval Housing

Assess

Interview

Transition

Figure 9. Change in the length of time for transition

In its response to a draft of this report, as well as in statements made to the Court, the State has noted that for 38 class members who were in-reached in Year 2 and who completed the transition process, the time to transition has been shorter than the overall median at 157.5 days, indicating a greater efficiency in the process. (See, Def.’s Exhibit # 3 at the Status Conference on
19 As noted previously, four of these individuals have returned to an adult home but will continue to receive in-reach.
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March 19, 2016) While that is true as far as it goes, what this analysis overlooks is that 702 class members who were also in-reached in Year 2 have not yet completed their transitions and that when they do, their transitions will inevitably have taken substantially longer. Moreover, beyond this cohort, there were 338 class members who were in-reached in Year 1 who have still not completed their transitions, and had been waiting a median of 519 days as of Week 94 which is the data used by the State in its analysis. Their experiences contribute to the growth of the cumulative median time for transitions of the class.
A. Choice of housing
An important provision of the Settlement Agreement was the element of individual choice; including that the class members’ preferences would be taken into consideration, and they would have a choice about where they wanted to live; if they wanted to live alone in a studio or onebedroom apartment, or with another class member in a two bedroom apartment, or maybe in another borough. During the in-reach process the Independent Reviewer’s staff observed these questions being asked by the in- reach staff, as well as whether they would be able to walk up a flight or more of stairs, would they need a ground floor or elevator apartment, etc. Consistent with this level of choice, and as documented in the Housing Contractor’s proposals in response to the original RFP, each of the nine Housing Contractors had agreed to provide apartments for class members to live alone or share an apartment with separate bedrooms.
As noted on Figures 10 and 11 below, as of March 11, 2016, 245 class members transitioned from 21 of the 22 NYC Impacted Adult Homes, with housing acquired by all of the nine Housing Contractors.
In examining the transitions by Housing Contractor and adult home, the outliers are apparent. Specifically, what is notable is the lack of any transitions at Central Assisted Living and the low numbers at New Gloria and Belle Harbor, which were part of Phase II, which began on July 1, 2014. On the other hand, St. Joseph’s Medical Center which serves Harbor Terrace, with 24 transitions, and Pibly, which serves Riverdale Manor, with 16, and were included in Phase III, have as many or more moves than most of the homes that started in Phase II, almost a year earlier. Some of the homes like Belle Harbor, where 61% of those in reached said Yes, had particular problems in having the in-house psychiatrist do the psychiatric evaluation, extending the assessment to more than a year for many residents. The Staten Island Housing Contractor agencies also are downstream providers for CBC Health Home and provide care coordination to many of the class members that they serve. The administration of both agencies has stated that this makes the assessment, care
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planning and transition phases much more efficient. While there are no easy answers, closer examination of the outliers, both high and low, is warranted by the State.

TSI

Transitions by Adult Home

SI-BN

St. Joe Pibly JBII

26

25

24

22

JB1

ICL

FOO

11

C'Life

8 6

7

3 2

4

0

15 14

17 16 10

2

14

8

8

3

Figure 10. Class Members Transitions as of March 11, 2016

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Transitions by Housing Contractor

n=245

Phase I

57

Phase II

48
Phase III

24

23

19

22

24

18

10

Figure 11. Transitions by Housing Contractor20
B. Obstacles to transitions
In Section II, the report describes the experiences of a sample of class members who had successfully moved to supported housing. Here we describe some of the challenges encountered both by class members and by the staff of Housing Contractors, Health Homes and MLTCs who work with them to achieve a transition to the community. As noted in the Assessment Section, 10.9% of those who said Yes at in-reach change their minds during the assessment process. In addition, some class members change their minds after they have been assessed and their
20 There are discrepancies among the data sources about the distribution of class members among the Housing Contractors, as some class members have been placed by Housing Contractors assigned to different adult homes due to their preference to live in neighborhoods where these Housing Contractors have apartments, and some have been moved to Level II housing .operated by a different Housing Contractor. These discrepancies affect a handful of class members and do not significantly affect the overall distribution reflected in this Figure.
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applications have been approved by HRA, but before their referral package has been sent to the Housing Contractor by the Health Home or MLTCP.
As of Week 104 (3/11/16), 62 class members had their HRA applications approved by HRA, but there is no date recorded in the field for receipt of complete housing referral. Of these, 37 were approved for Community Care & Level II; and 25 for Level II only. From the data presented we are unable to discern if the Level II referrals have been made, other than if the class member is subsequently placed in Level II Housing. Many more HRA approved applications are withdrawn after they have been referred for housing, have seen apartments, and some who have tendered their 30 day notice to the adult home. As the HRA approval is good for six months, many expire in the process, although three-month extensions are routinely granted by HRA if they are informed that the transition is in process.21
Many class members have seen several apartments following the approval of their HRA applications and have still not accepted an apartment, for a variety of reasons. For some, the neighborhood where the apartment is located is not where they had hoped to move; some want to live alone and will not consider a shared unit; for others, there had been a change in their condition, or they were having second thoughts, or they are waiting for a friend or significant other to also get approved so they could move together. Some have gone through cycles of changing their minds several times, even on the date of a planned move.
Examples of the varying circumstances surrounding the decision to withdraw the housing referral are included below. The Independent Reviewer’s staff met with some of the class members discussed below and information was also obtained from Housing Contractors as to the reasons many of the housing referrals were withdrawn after they had received them.
1. Preference for a different borough or neighborhood
Some class members state that they wish to live in a borough other than that served by the Housing Contractor. Although this is noted at the time of in-reach, it generally does not get addressed until the care manager obtains the HRA approval and forwards it to the Housing Contractor. Of the 245 transitions as of 3/11/16, six class members have been placed in supported housing with contractors in other boroughs. As previously reported by the Housing Contractors, the specific preferences of the class members, especially the locations, have posed significant
21 The Independent Reviewer has recently been informed that the State and HRA have reached an agreement and HRA approvals will be good for a period of 12 months.
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challenges with requests to live in neighborhoods where affordable housing is not readily available. While Housing Contractors try not to tell class members that it is impossible to fulfill the member’s specific requests, they inform them that it will most likely take longer to acquire, and continue to offer alternative areas for their consideration, including shared housing rather than a single unit. Those that insist on living alone or in a specific neighborhood, often wait indefinitely while their HRA approval expires.
 A Case Conference, which included MA, the care coordinator and the Housing Contractor, was held to determine if MA wished to proceed with supported housing. She stated that she did not want to live in Queens because she is more familiar with Manhattan. Client was assured that she would be aided to become acquainted with the new neighborhood in Queens and was shown a video of a typical apartment, and supportive services were discussed. Client reiterated her preference to live in Manhattan. Her care manager agreed to try to assist her in locating housing in Manhattan. Her referral for housing was withdrawn 11/23/15.
 MCP wanted to move to Brooklyn to be closer to his mother who resides there. She apparently influenced his decision not to accept an apartment in Queens, after several weeks of going back and forth visiting the available apartment and exploring the neighborhood, which MCP had viewed. He currently waits in the adult home.
 LB, a 58 year-old female who is legally blind, was in-reached at Harbor Terrace on Staten Island, in June 2015 and said that she wanted to live in her own apartment in Queens, NY. After her HRA application was approved for supported housing in September 2015 she made it clear to the Housing Contractor that she was very comfortable and familiar with Queens, including the subway system, and felt this would be the best choice. Her Health Home care manager contacted a Queens Housing Contractor to confirm availability and sent the referral package. They received her referral on 11/3/15 and met with her on 11/10/15. She viewed and accepted the apartment and transitioned on 12/17/15 to a two-bedroom apartment but does not yet have a housemate.
2. Fear of losing existing services or providers
An important consideration for many class members is continuity of care with their current providers of medical and psychiatric care. For many who received these services in the adult home, referral to new providers of care is necessary. But for others who can and want to
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continue to see their current mental health treatment providers or their PCP, this desire also affects the distance they are willing to travel after moving to the community, and circumscribes the area in which housing must be found.
 JCL, a 58 year-old woman, was approved for supported housing on 2/19/15, but the Health Home care manager did not send the referral to the Housing Contractor until 7/16/15. There is no date listed under “Date of Interview” on the weekly report, and the Housing Contractor withdrew the referral on 9/15/15, documenting she had “no interest in moving.” When JCL met with the Independent Reviewer’s staff at her adult home during January 2016 she said she didn’t remember the process but confirmed that she did not want to leave the adult home. She said she was in an ALP bed and “I don’t want to lose my Aide.” She said she felt secure and “I love everybody here.” In closing she said, “People on the outside don’t treat you right. Here I can do what I want to do.”
 DP, a 64 year-old female, has lived at the adult home since 2012. She expressed an interest in moving on September 2014 during in-reach, and her HRA application was approved in April 2015. The Housing Contractor met with her in May to discuss what she was looking for. She said she wanted to share an apartment in Far Rockaway with her former roommate in the adult home who had recently moved out. She visited the modern three-bedroom townhouse apartment in Far Rockaway, and submitted her 30 day notice with a planned moving date of 6/23/15. On 6/22/15 she reported she changed her mind saying she was unsure if her benefits would go with her. Subsequent notices to leave were submitted on 8/29/15 and 10/15/15 with a move out date of 11/12/15. On 11/9/15 there was another case conference, during which DP said she was not sure about moving and reportedly spoke of wanting to wait until after Thanksgiving. When it was mentioned she and her housemate could have Thanksgiving together in her new apartment, she spoke of waiting until after Christmas. She revoked her move out letter on 11/9/15. When the Independent Reviewer’s staff met with DP at her Social Day Program she said that she had originally wanted to move to “be independent and be on my own…to do cooking and cleaning for myself.” She said she had last lived on her own in 2010 with her son. She said the only apartment she saw was where her former roommate at the adult home lived, and was “beautiful.” She said she submitted “three or four move-out letters,” all for the same apartment. When asked why she didn’t move, she said, “I am adjusted to (New) Gloria, and described it as “comfortable.” She said she still works with her care manager from Brightpoint, and that “I still think about moving...I have to get accustomed to something new.” When asked what made her think she wouldn’t change her mind again, she smiled and said “maybe, maybe not.”
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 JH, a 62 year-old man, has lived at the adult home on Staten Island since 2006. He was in reached on 8/22/15 and was approved for supported housing on 10/19/15. He met with the Housing Contractor and saw two apartments on 10/22/15. He chose to accept a split-level 2 bedroom Townhome apartment, which was fully furnished at the time of the visit. He also met his roommate, who is a good friend from the adult home. He submitted notice to the adult home the same day he saw the apartment, and was to move on 11/18/15. However, on 11/12/15 he informed his care manager that he changed his mind and didn’t want to move, saying he didn’t want a lot of people coming to his house. When the Independent Reviewer’s staff met with JH, he said he liked the apartment he had chosen very much and was to live with his friend George, who was already in the apartment. When asked why he had changed his mind he said he decided not to move when transportation didn’t come to take him to his new mental health clinic (11/9/15), and he feared he wouldn’t have enough medication when he moved out; but acknowledged he did not tell his care manager about this.
3. Concerns over safety, accessibility or changing medical condition
Some chose to remain due to safety/medical concerns.
 MH saw several apartments "but I feel safer in the adult home."
 During his housing interview on July 23, 2015, AKN informed the Housing Contractor that he "has a heart condition, is in and out of the hospital, and wants to stay in the adult home."
 DY expressed many safety concerns about living independently, including: extreme anxiety after every care plan meeting and apartment viewing, which had resulted in an admission to the hospital. She was offered several opportunities to discuss these concerns and did not attend three planned meetings, after which her housing referral was withdrawn.
 CC is a 70 year-old female who had been living at the adult home for 18 years. She was originally on the Fast Track, and said she was interested in supported housing when inreached during July 2014. However, she fractured her hip in September 2014 and had multiple hospitalizations and extensive rehabilitation. She was reassessed in August 2015 and her HRA application was approved and referred to the Housing Contractor in October 2015. She viewed an apartment on 11/24/25 and submitted her notice to the adult home the same day. When she met with the Independent Reviewer’s staff at the adult home, she had with her a metal cane that she mostly used when outside the home. She said that she saw her first
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apartment in Flatbush, Brooklyn and it was “just beautiful,” after which she submitted her notice. She said there were six or seven marble steps in the building leading to the first floor, which concerned her, as she wanted to be independent in doing her shopping, laundry, etc. and thought it might be a problem. The building agreed to put in a rail for her, but in the end she was not confident, feared falling again, and withdrew the letter on 12/3/15. She visited another apartment on E. 96th street Brooklyn on 12/16/15, but saw seven steps going to the elevator, which she said were broken, with peeling paint, so she wasn’t interested. She said that she is in Physical Therapy now and is walking much better, and if she saw the first apartment again, she might accept it. She spoke positively about her Health Home care manager and said she helped her get her NYS ID, Social Security Card, transit pass and is working on Access a Ride, noting “she does a beautiful job.” CC was eager to begin looking again.
4. Waiting for a housemate to be ready to move
 HB is a 62 year-old male living at Mermaid Manor since May 2009. He was a Fast Track member who was in reached during March 2014 at the beginning of Phase I. He was assessed in July 2014 and his HRA application was originally approved during November 2014. The Housing Contractor interviewed him on 11/24/14. HB wanted to live with his girlfriend, (MH) who is also a class member. He and MH specified areas in proximity to the Adult Home where they wanted a two-bedroom apartment, and on several occasions refused to view apartments in the Flatbush Area, where the Housing Contractor had more available units. In November 2015 they both saw a ground floor apartment in an area they were interested in. As their HRA applications had expired, an expedited HRA was requested from the Health Home, which was submitted and approved on 12/15/15. On 11/19/15 HB submitted his notice to the adult home, with a move out date of 12/21/15. On 12/16/15 he informed the Housing Contractor that he was no longer moving as MH was hospitalized for severe leg pain, and was to be transferred to Rehab where she might be for several months, and that “he didn’t want to go without her.” He reportedly refused further efforts to discuss housing. The Supervisor of Housing did not withdraw his referral until 1/15/16, hoping to give him time to change his mind.
When the Independent Reviewer’s staff approached him at the adult home he was most concerned about changing his physicians that he had seen at the adult home, including his pain management doctor. In addition he said he didn’t want to move without his girlfriend.
5. Influence of family members and therapists
Sometimes family and the opinion of the treating psychiatrist/medical provider impact the decision:
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 PF was originally approved for supported housing on 4/17/15 and met with the Housing Contractor on 4/20/15. His sister was informed he was moving and she spoke with PF’s psychiatrist who subsequently submitted a revised psychiatric evaluation recommending a higher level of supervision than offered in supported housing. His referral was withdrawn on 8/19/15. At a subsequent care plan meeting PF was determined to be more appropriate for level II housing, was reassessed and approved for Level II by HRA on 10/2/15. At this time PF still resides in the adult home, and is reportedly still interested in supported housing.
 WR ‘s daughter “decided she no longer wanted her father to move,” and VS felt his” relationship with his step-mother would be ruined if he moved.”
 JH mentioned that his sister, who lives in Pennsylvania and is listed as his emergency contact, had come to see the apartment he had planned to move into, and had spoken with his Care Coordinator. She told JH she liked the apartment, and was happy about the services he was to receive, but “she was worried about me,” and was “relieved when I didn’t move.” His other sister and brother who live in New Jersey “thought I’d be better off here…when I changed my mind they said maybe it is for the better.”
The support of therapists and family members can also be an important factor in encouraging class members to move to supported housing.
 GS is a class member we had previously visited who was included in the First Annual Report (pp. 54-55). GS had changed her mind several times and canceled several move out dates, including once on the day of the move. Her reasons included the neighborhood, absence of a roommate at the time of the move, and overall uncertainty. After the last cancelation, her referral was withdrawn. However, she received additional in-reach and in October 2015 said she was interested in moving again, and was assessed and her HRA application approved on December 9, 2015. She subsequently accepted a two-bedroom apartment with a move-out date of January 29, 2016. Her care manager worked closely with the adult home nurse and social worker to ensure a smooth transition. When the Independent Reviewer staff spoke to her on January 20, she was excited about the move and the prospect of sharing an apartment with a friend from the day program who lives in another adult home. When asked what made her change her mind again she mentioned that her psychiatrist and therapist both felt positive about the move and that her sister in Florida told her "to get out of there!"
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6. Specific preference for one-bedroom or accessible apartments

While there are attempts to honor choice, the housing stock and availability in some areas

does play a role. The responses to the original OMH RFP of August 10, 2012 submitted by

Housing Contractors for this initiative included that they would offer the choice to live alone in a

studio or one bedroom apartment, or to live with others. However, to date, two of the housing

contractors have not offered this choice. (See Table 5.) Federation of Organizations, which serves

four adult homes, does not offer its class members studio or one-bedroom apartments. To date, they

have rented primarily three bedroom apartments, and mini-

houses they call “bungalows” in Far Rockaway, intended for

While there are

three persons. Currently, 17 of the 23 class members live in these units, but none currently houses more than two. Six other

attempts to honor

class members have moved to two-bedroom apartments. Similarly, all of the 25 class members transitioned by Jewish Board II, from the two adult homes they serve, live in two-

choice, the housing stock and availability in

bedroom units. While acknowledging that some class members do ask for their own apartment, Jewish Board II reports that

some areas does play a

class members usually come to accept the benefits of sharing an apartment with another class member.22 ICL, which serve

role.

22 The Request For Proposals issued by the NYS OMH for Supported Housing for Adult Home Residents with Serious Mental Illness (August 10, 2012) provides:
Funding for SH is a combination of resident rent payments and OMH funds. Residents of SH are required to pay a minimum of 30 percent of their net income for rent and reasonable utilities. However, residents can choose to pay more than 30% of their income based on a personal decision to have an apartment beyond what is affordable with the 30% applied to the agency contribution, for example, selecting a different neighborhood or a one bedroom in a neighborhood where only 2 bedrooms are affordable within the SH allocations. OMH Field Office approval is required prior to the recipient contributing more than 30% of their income for rent and utilities. (Sec. 5.4, p. 14, emphasis added)
However, in all of the meetings with Housing Contractors that the Independent Reviewer team has attended, and the in-reach sessions that we have observed, we have not heard any reference to this provision and are unaware of any applications being made to the NYC Field Office for prior approval of additional payments to make it possible for a class member to obtain a one bedroom apartment in a neighborhood where such is not affordable within the stipend otherwise available. An OMH representative informed the Independent Reviewer that this practice is not followed due to concerns about the class members’ ability to afford and sustain such arrangements. In a response to a draft of this report, the State stated that the supported housing guidelines were updated in 2015 to state, in part: “Recipients pay no more than 30% of their adjusted gross income towards reasonable rent and reasonable utility costs.” However, the State also noted that there are exceptions which would be looked at on a case by case basis.
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Brooklyn ACC and Queens ACC, have also transitioned very few class members to single bedroom or studio apartments. None of the 26 class members who transitioned from Brooklyn ACC reside in a studio or one bedroom apartment, while only three of the 22 class members who transitioned from Queens ACC live in single unit housing. It should be noted that of the 237 class members who transitioned to Supported Housing, only 58, or 24.5%, reside in a studio or one bedroom apartment. It is not clear that this is solely due to the choices of the class members, rather than the economics of the Housing Contractors and the current housing market.

Supported Housing Contractor
CommuniLife
Federation of Organizations Institute for Community Living, Inc. Jewish Board of Family & Children’s Services 1 Jewish Board of Family and Children’s Services 2 Pibly Residential Programs St. Joseph’s Medical Center Staten Island Behavioral Network, Inc. Transitional Services for NY

Studio/One Bedroom
6 0 3
15
0
11 9 3
11

Two Bedrooms
11 6 44
37
24
4 13 7
10

Three Bedrooms
2 17 0
0
1
0 0 0
3

TOTAL 237

58

156

23

Table 5. Class Members Transitioned to Supported Housing Units as of 3/11/16

Of the class members who have moved: 96 are on the first floor; 66 on the 2nd floor; and 16 on the 3rd floor of walk-up housing. There are 59class members who transitioned to elevator buildings and live on the 2nd floor or above. Class members’ preference for one-bedroom,
accessible or apartments in specific neighborhoods sometimes means a longer wait time.

o RP, a 58 year-old woman, received in-reach and was assessed in June 2014, and was approved for supported housing in February 2015. When interviewed in March 2015 she stated she wanted to live alone in the area close to the adult home where she attends
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a PROS program five days a week. She told the Independent Reviewer “I have been waiting forever” and “they keep showing me two bedroom apartments,” and mentioned a two bedroom apartment she saw in Flatbush, but it was too far. “I rather not share anything with someone I don’t know...they may be dangerous, violent or steal from me.” She did see a studio apartment in Boro Park but she said, “it took 25 minutes to open the door,” as there was a problem with the lock. She said she wanted it at first but “I got paranoid about being the only black person (she saw in the area).” Her HRA application expired in August 2015. The Housing Supervisor said she would keep the referral open, but added “there are a lot of people waiting for one bedrooms in this area who are ahead of her.”
o DV, a 63 year-old female, has resided at the adult home since 2009. She expressed an interest in supported housing as a Fast Track Member when in-reached during July 2014. Due to disenrollment by her MLTCP, the refusal of the psychiatrist in her adult home to do psychiatric evaluations when they were not “due,” and the need for the State to arrange for a psychosocial evaluation, her HRA application was not submitted and approved until July 2015. The Housing Contractor conducted an intake interview on 8/12/15 during which she said she wanted an accessible two-bedroom apartment for her and JR, her significant other, who uses a wheelchair and a walker. She wanted to live in Rockaway Park, a very desirable and expensive area close to the adult home, but said she was willing to look at other areas in Queens.
When the Independent Reviewer’s staff met with DV and JR, she said she “waited over a year to see two apartments.” She said she has a list of what she wants in an area where she moves, like buses, trees, flowers, supermarket within 10 blocks, Laundromat, restaurants, etc., as she plans to be there a long time, and doesn’t want to live in an area that would depress her. She said they saw an apartment in Jamaica that had many of the things that were on her list, but “the neighborhood was dirty with lots of garbage.” She said she also turned it down because the bathroom was too narrow, and not accessible for a wheelchair, and she feared JR getting stuck in the narrow hallway. She said she saw another beautiful apartment, but she really doesn’t want to live in Far Rockaway. When asked about neighborhoods she would live other than Rockaway Park, she mentioned Forest Hills and Flushing, where she “once had a rent stabilized apartment for $500.” The Housing Contractor said they had showed her four apartments, but said, “it is impossible to find affordable units in Rockaway Park.” DV has been given a three-month extension on her HRA application, and a meeting is planned with her housing contractor and her Adult Home Plus care manager. Complicating the matter, JR’s assessment from August 2014 has never been completed (including psychiatric assessment) and it has expired; a new assessment is to be scheduled.
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C. Level II Housing
Aside from class members who are initially placed in supported housing and later moved to Level II housing, there are others who are initially approved by the assessor and HRA for Level II only. As previously discussed in the assessment section (Section V), there are four accepted rationales for being inappropriate for placement in supported housing. For six of the eight class members transitioned to Level II housing as of 3/11/16, the documented rationale was: “Resident would be a danger to self or others in supported housing, even if receiving services currently provided under the New York State Medicaid Program.” In reviewing the AHRAR for these class members who were all assessed by Elder Serve, the following was documented:
 AFD’s Final AHRAR dated 7/2/15 recommending Congregate Treatment noted: “Client is forgetful-extremely- has history of violence- when delusional has persecutory ideations. Requires 24/7 supervision in a structured setting to be safe in the community.” He moved to TSI’s Phase I Congregate Treatment Community Residence on the grounds of Creedmoor PC on 9/15/15. He lives in one of three 10bed sections where he shares a room with another resident, and a bathroom with 34 others.
 SS’s Final AHRAR distributed to the CTP on 7/16/15 recommending CR-SRO noted: “According to Psych eval SS does not currently exhibit the skills to live on her own. She has not developed skills necessary for non-supervised function.” SS was transitioned to St. Joseph’s Chait House on 12/2/15, where she has her own room in a shared unit with two others, in a 15 bed CR-SRO. As noted on her post transition call on 1/5/16 she has a PCW for 4 hrs/day x 3 days/wk. to assist her with her personal hygiene, laundry, and cleaning of her room.
 MK’s Final AHRAR distributed to the CTP on 7/23/15 recommending CR-SRO noted:”Psych eval. states (he) requires supervised residence because of his tendency to act out. Has risk of losing control and hurting his girlfriend if not supervised”, later adding that he tried to choke her a few months ago “but did not have any plan to hurt her.” MK was transitioned to Pibly’s Apartment Treatment Program on 12/29/15. There he has his own room in a three bedroom scatter-site apartment that he shares with two others. Pibly staff will typically visit from four to seven times a week to assist with restorative services and help prepare him for supported housing within the next 1 ½ to 3 years.
When referred and interviewed for Level II by the residential program it is determined which of their programs would be most appropriate. Eight class members have transitioned to Level II housing as of 3/11/16, as follows:
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 three are in Pibly’s Apartment Treatment Program;  three are in CR-SROs, including two in TSI’s Hazel House, and one in St. Joseph’s
Chait House; and  two are in TSI’s Phase I Congregate Treatment program, which along with Hazel
House, is on the grounds of Creedmoor Psychiatric Center.
As noted above, some are changed from the original recommendation. In addition, some referrals for Level II are found to not be appropriate for their program, as documented below:
 JI from Riverdale Manor was approved for Level II housing and recommended for CR-SRO. He was interviewed by Pibly’s Level II housing staff on 11/9/15, and was rejected as “he demonstrated no insight into arson behavior and presented with cognitive impairment.” He was found to be a likely danger to himself in a Level II setting.
Although not readily discernible in the data presented to the Independent Reviewer and the parties, sometimes a class member who is approved for supported housing is transitioned to Level II housing, in response to the subsequent concerns of those involved in her treatment.
VH from Riverdale Manor was approved by HRA for supported housing (Community Care and Level II) on 8/23/15 and wanted to live in her own apartment. Pibly showed her a supported apartment in November 2015, which she accepted. However, at that point, her AOT ACT team, who Pibly had not previously been aware of, became involved. The AOT care manager and his supervisor were very concerned about VH’s long history of medication non-compliance and subsequent psychiatric decompensation, and did not believe that she was appropriate for supported housing. There were several conference calls arranged with all parties (e.g. housing contractor, AOT team, DOH & OMH). Ultimately, the team acceded to the concerns of the AOT care management team, who stressed that they knew her best, and it was agreed VH would require Level II housing. Although reportedly disappointed in the decision, VH accepted placement in Pibly’s Apartment Treatment Program on 12/23/15, with hopes of transferring to supported housing in the future.
IX. Conclusion
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This Second Annual Report depicts the progress made by the Defendants in transitioning class members to supported housing or other alternatives in the community pursuant to the Settlement Agreement. It is clear that the Defendants have made significant strides in conducting in-reach to almost 90% of the class and in increasing the pace of community transitions, particularly as compared to the previous year. As importantly, as described in this report, the Independent Reviewer has found that class members who have made the transition are, with few exceptions, generally doing well in their new homes and are happy to have made the move. For them, the promise embodied in the Settlement Agreement of a meaningful choice to live a more independent, self-determined life is being fulfilled. The staff of Housing Contractors, Health Homes and MLTCPs and their care managers have provided support and linked them up to medical and mental health services to keep them healthy and safe. Yet, there is more work to be done in helping them with financial planning and budgeting, and to re-connect with life in the community to assure more than re-location, to actual integration into the civic and social life of the community. The Defendants have recognized this and are embarking on a promising course of additional training for care managers in Person Centered Planning in partnerships with the New York Association of Psychiatric Rehabilitation Services, Inc.
As described in the body of this report, some concerns remain. First, although the pace of transitions has increased, it is still slower than what would be required to meet the Settlement Agreement goals for Year Four and Five. Perhaps because there are now more class members in the transition pipeline, it is taking longer to navigate the multiple steps leading to community placement in Year Two then it did in Year One.
Second, the problems with the assessment process described in the First Annual Report (pp. 19-31) have remained a stubborn obstacle, even past the September 30, 2015 deadline the Defendants established to eliminate the backlog, although substantial progress has been made. The new initiatives implemented by the Defendants – Adult Home Plus, changes to the Comprehensive Psychiatric Evaluation and authorizing the use of psychosocials performed by a broader array of clinicians– are very positive developments, as are further actions under consideration to implement a recommendation to establish a dedicated pool of assessors. But until they are fully in place and the results can be measured, it is unclear whether they will eliminate the problems experienced to date.
Third, it is troubling that the proportion of class members saying Yes at in-reach has been falling to the extent it has, and that class members continue to drop out of the process even after they have said Yes. This trend requires further investigation by the Defendants of the use of Motivational Interviewing during in-reach, of the training of in-reach workers and the strategies used for effective-in reach, as well as the adequacy of staffing of the in-reach teams and the use of
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peer advocates in this role. Here again, the implementation of Adult Home Plus and the consistent, early engagement of the care manager with a small caseload of class members may help prevent dropouts by involving them early and often in the transition planning process. This new resource may also be a critical means of addressing some of the problems, described in this report, that class members who have transitioned have experienced with delays in accessing the services and supports they require.
Fourth, there are many delays in the class members’ final step to transition following HRA approval of their applications, some of which are inherent in the process of honoring choice for class members and in the significance of the decision for the individual. Nevertheless the adequacy of staffing of the Housing Contractor teams who assist class members locate suitable apartments needs to be examined to determine if there is sufficient capacity to process the growing number of class members who are completing the earlier stages of the process. The first step is to ensure that all positions currently funded are filled with qualified and trained staff.
To address these and other issues discussed in the report, the Independent Reviewer offers the following recommendations for consideration. A meeting of the parties has been scheduled for April 21, 2016 to discuss these recommendations.
X. Recommendations
Consistent with the requirement in the Settlement Agreement that the Independent Reviewer take a "problem-solving approach" (¶ L [7]), during the past year, the Independent Reviewer has shared his observations and recommendations on the progress of implementation with the State, sometimes in writing and sometimes informally during meetings.
A. In-Reach  Housing Contractors continue to express concerns on limitations to the in-reach process
placed upon them by some adult homes, both in terms of the conditions in which in-reach can be conducted and the hours in which it may be performed. The State DOH’s has already been proactive in communicating with adult homes their obligation to provide access to inreach teams and has issued Dear Administrator Letters (“DAL”) of March 12, 2014 and June 6, 2014 which stressed the importance of providing the Housing Contractor with a “quiet, private, space, where either group or individual in-reach sessions can take place,” and to “make every effort to avoid rooms where frequent interruptions may occur.” The DOH has also conducted investigations when complaints have been made about interference with Housing Contractors’ performance of their in-reach functions and has
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substantiated some of these reports at individual homes. Beyond this formal and regulatory process, the Independent Reviewer recommends that DOH monitor a sample of the impacted adult homes to assess their compliance with the expectations contained in these DALs and to reinforce the importance of doing so.
 The uneven performance of Housing Contractors with respect to rates of in-reach and inreach outcomes (whether or not one is interested in transitioning), warrant closer scrutiny by the State. Some Phase III Housing Contractors, which started in-reach nine months after Phase II, have in-reached a greater percentage of class members than some Phase II Housing Contractors. Some Phase II Housing Contractors have had only two or three class members transition from some adult homes; none have transitioned from Central Assisted Living. It is also noted that while class members’ rates of interest in transitioning vary among Housing Contractors, overall the rate is declining. The rate of positive responses at in-reach seems to be declining as time goes on. At Week 24 (8/19/14), for example, when in-reach had been expanded to all of Brooklyn and Queens, the overall rate of positive responses was at 63.9%. The overall rate as of week 73 was 52.3%. If one considers only the most recent three month period, the rate of positive responses is 34%. This is a troubling trend, the reasons for which require further analysis, explanation and remediation. Among the issues requiring further investigation by the Defendants is the use of Motivational Interviewing during in-reach, the training of in-reach workers and the strategies used for effective-in reach, as well as the adequacy of staffing of the in-reach teams and the use of peer advocates in this role.
 The strong influence of family members upon class members and their decision to move to supported housing also suggests that consideration should be given to expanding in-reach efforts to educate guardians and family members about supported housing and the wrap around services available, and engage them in the personal planning process, especially as the roll out of the Adult Home Plus program would provide case loads that make such engagement feasible.
 Housing Contractors play a unique role in the transition process, serving almost like book ends. At the onset of the process, Housing Contractors are responsible for in-reach, which paves the way for assessments and reviews by other entities, after which, at the tail end of the process, they become responsible for finding housing and supporting individuals in their supported housing units. In the initial stages of the Settlement’s implementation, many people interested in transitioning to supported housing were “stuck” in the assessment
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phase. With the advent of Adult Home Plus, and the increasing numbers of individuals passing through the assessment phase of the process, Housing Contractors’ workloads at the backend have increased. A critical question that must be addressed in the State’s review of Housing Contractors’ staffing patterns is whether they have sufficient resources to expeditiously facilitate the transition of individuals, and support them, once they are approved for supported housing.
 A frequent question of class members, when offered the choice of supported housing during in-reach, is: “What will happen if it doesn’t work out? Where will I go?” This uncertainty probably contributes to the decreasing rate of Yes responses, as well as to the dropout rates later in the process and the changing decisions of class members right up to moving date. The message thus far has been that once you leave the adult home, you cannot return. Staff of the adult homes have sometimes amplified this message and raised the specter of homelessness which may have had the effect of discouraging individuals from moving. The reality is that class members can return to adult homes which have DOH waivers in effect and, as described in this report, have done so in a few cases. Simply helping them understand that reality may allay some of the fears and uncertainties class members confront when making the decision of this significance.
B. Assessment  As early as June 2014, the Independent Reviewer has been recommending that the state
arrange for the performance of assessments under the Settlement Agreement be assigned to a dedicated team of experienced assessors to promote consistency, quality and timeliness of this critical function. (Progress Memo #3, July 31, 2014, First Annual Report, p. 70). As the State has continued to struggle with eliminating the backlog of assessments and improving the timely performance of this function, that recommendation is renewed. The Independent Reviewer understand that the State is considering further actions to implement this recommendation and awaits further information regarding its progress in doing so..
 As noted in the report, the assessment process has resulted in six percent of class members being recommended for Level II Housing which, as opposed to supported housing, is temporary and at a premium, given the limited number of beds. The Independent Reviewer recommends that when a class member is recommended for level II housing, the Person Centered Plan developed needs to be reviewed to ensure that it addresses the need for services and supports that may better prepare the class member for eventual transition to supported housing. 97

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 As also described in the report, approximately seven percent of cases referred to HRA for review/approval following assessment were classified as “Unable to Complete” (UTC) due to incomplete or inconsistent information or other reasons. In some cases, this is because HRA has access to information in prior applications which may not have been available to the assessor. A small number of cases are in this category due to the death of the class member or the abandonment of the application. While the number of UTC cases is slightly lower than that in the first year of the Independent Reviewer’s monitoring activities, it nonetheless warrants attention. The Independent Reviewer recommends that the State DOH: 1) examine whether changes in the Quality Assurance reviews are necessary with an eye toward identifying and addressing issues that may lead to UTC determinations, their underlying causes and any patterns of less than adequate performance by assessing entities; and 2) take action to correct the deficiencies in information/documentation that has led to more than 40 cases lingering in the limbo of UTC, many for extended periods of time.
C. Person Centered Planning  The Independent Reviewer has expressed concern over the need for additional training in
person-centered planning and a template which ensures that the total needs and desires of class members - including vocational/educational, religious, leisure/social, civic interests and the like – are addressed in care plans in addition to the health and safety issues which are typically addressed in plans. The Independent Reviewer applauds the State’s initiative to arrange for person-centered planning training for the Adult Home Plus care mangers by the New York Association of Psychiatric Rehabilitation Services, Inc. and is optimistic that this training will address the concerns that have been expressed in this report about person centered planning. It is important that training reinforce the central principle that the class member is at the heart of the plan and can determine who is invited to participate in the development of the plan and whether to invite family members, friends, allies and others into the process.
 It was noted that in the Independent Reviewer’s follow up of sample class members who had transitioned, a number who were not involved in programs or structured social activities complained of loneliness following transition. In training sessions, the State should continue to stress the importance of exploring individuals’ interests in social activities during care planning sessions and means of addressing these interests through involvement in PROS programs, psycho-social clubs or drop-in centers.
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 Considering that individuals often experience budgeting and money management problems upon transition, more attention should be paid in the care planning process to identify means of assisting individuals to learn budgeting skills either through enrollment in programs like PROS or through direct hands-on teaching by Housing Contractors or others.
 Contributing to budgeting problems are delays in securing SNAP benefits or full SNAP benefits upon transitioning. Efforts to ensure timely pre-transition applications for SNAP benefits and setting up expenses so that individuals receive maximum benefits upon transition need to be stepped up in the care planning process. Related to this is the need to secure proper IDs which are needed to apply for SNAP and to use community resources upon transition, such as banks, etc. With the implementation of Adult Home Plus, more attention ought to be given to securing essential documents while class members are still in the adult home, and commencing applications for services and benefits at the earliest possible time.
 PSYCKES data can be a useful tool in care planning and monitoring as well as the assessment phases of transition. These summaries of Medicaid claims data maintained by OMH offer insights into health and behavioral health providers class members have utilized as well as utilization patterns. They also flag certain issues one should be aware of and attend to, such as polypharmacy, frequent hospitalizations and emergency room utilization, diabetes needs and monitoring, etc. At the Independent Reviewer’s suggestion, PSYCKES data has been made available to HH/MLTCPs. It is recommended that the State provide training to HH/MLTCP assessors and care managers and assessors to assist them in their use of the data in assessments and care planning/monitoring activities.
D. Transition  The Independent Reviewer understands and appreciates the balance between choice and
affordability that Housing Contractors are trying to strike in accommodating choice of housing for class members who express a strong preference for a studio or one-bedroom apartment. At present, two Housing Contractors have not placed any class member in single occupancy apartments. The Independent Reviewer recommends that, consistent with the Supported Housing RFP issued by the OMH in 2012, more attention to be given to developing the capacity to offer meaningful choice to those class members whose preference is to live alone, or with family members or friends who are not class members, or in another borough –as has already been done in a few cases.
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 In the review of sample class members who had transitioned, the Independent Reviewer encountered individuals who experienced difficulties with housemates or guests the housemate invited to stay in the shared apartment. It is recommended that OMH develop guidance for Housing Contractors and class members on how to best deal with and resolve such situations as they arise.
 As detailed in the report, individuals sometimes experience crises which jeopardize their continued stay in Supported Housing. As the Independent Reporter has pointed out, these occurrences present learning opportunities about how best to support individuals with intensive needs in the community. These opportunities need to be seized and capitalized on in a more formal way. Toward that end, the Independent Reviewer recommends that:
o When individuals begin experiencing difficulties which are likely to jeopardize their placement, the State convene a special review mechanism involving all current providers as well as objective, clinical outsiders with experience in supported housing to discuss and plan a course of intervention and services to support the individual where they are living.
A mechanism be put into place whereby when an untoward event – such as an elopement, a crisis hospitalization, etc. – occurs, the individual’s support team – including the Housing Contractor, HH/MLTCP, mental health provider and others as appropriate – should promptly conduct a thorough review of the circumstances of the event with an eye toward determining if anything in, or missing from, the care plan may have contributed to the event and what actions should be taken to reduce the likelihood of a recurrence. The findings, recommendations and actions taken stemming from this internal review should be reported to OMH, DOH, the Independent Reviewer and Plaintiff’s Counsel within 30 days of the event. The lessons learned from such reviews should be shared with all HCs, HH/MLTCPs involved in this initiative.
 In following a sample of class members, the Independent Reviewer also noted that a number had been disenrolled from their MLTCPs shortly after transitioning. It is recommended that class members not be disenrolled from an MLTCP until the individual is enrolled in another MLTCP or Health Home and a care plan put in place, unless the individual freely chooses otherwise. Understandably, the time of transition and the weeks that follow is one of change and possibly turmoil in the individual’s life; all efforts should
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be made to ensure a smooth transition of care management and continuity of services at such a time.  The parties should discuss and clarify the obligations under the Settlement Agreement to class members: a) who have been placed in non-permanent Level II housing or other timelimited housing following the assessment and HRA approval process; and b) who have been discharged from the adult home outside the transition process of the Settlement Agreement.  In addition, there are a number of class members who are not Medicaid eligible, most often due to excess resources. They are thus ineligible for Medicaid funded programs like Health Homes and MLTCPs, and the care management services they provide. The Settlement Agreement provides that if a class member “is not enrolled in a Health Home or MLTCP, then the State shall provide the person with a care coordinator who shall carry out the functions in this Agreement that would otherwise be assigned to a Health Home and MLTCP.” (Paragraph F (1)) There is a need to operationalize this provision of the Settlement Agreement so that class members who are no Medicaid eligible are not excluded from the benefits of the Settlement Agreement.
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Appendix A. List of Acronyms/Abbreviations

AHRAR

Adult Home Resident Assessment Report

CHHA

Certified Home Health Aide

CIAD

Coalition for the Institutionalized and Aged

CTL

Community Transition List

CDTP

Continuing Day Treatment Program

CBC

Coordinated Behavioral Care

FTL FEGS

Fast Track List Federation Employment & Guidance Services

FOO

Federation of Organizations

HHC

Health & Hospitals Corporation

HCS

Health Commerce System

HH

Health Home

HC

Housing Contractor

HRA

Human Resources Administration

ICL

Institute for Community Living

JBFCS

Jewish Board of Family and Children's Services

LHCSA

Licensed Home Care Service Agency

MLTCP

Managed Long Term Care Plan

MHC

Mental Health Clinic

MFY

Mobilization for Youth

PCS

Personal Care Services

PER

Personal Emergency Response

PROS

Personalized Recover Oriented Services

TSI

Transitional Services Inc.

UTC

Unable to Complete

UAS-NY

Uniform Assessment System for New York

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Appendix B. Discharge Planning Tool Adult Home Class Member Discharge Planning Tool
Guidance
The development of the care plan for transition must begin as soon as the resident is enrolled in the Health Home or MLTC Plan and express they wish to transition out of the Adult Home. The Adult Home Plus (AH+) Care Manager must collaborate with primary care, specialists, and behavioral health providers to schedule regular care plan meetings with all members of the multidisciplinary team. The AH+ Care Manager is responsible for updating and reviewing the person-centered care plan. Once the resident completes inreach and wishes to transition to the community, the Housing Contractor needs to be included as a member of the multidisciplinary team.
The person-centered care plan should reflect the UAS-NY assessment, the AHRAR, and HRA recommendations as well as additional needs identified through the progressive care management work with the resident. This person-centered care plan must be updated as needed and reflect the resident’s changing needs.
The person-centered care plan:
1. Identifies the programs that address the resident’s primary, specialty, behavioral health care and social service needs;
2. Reflects the resident’s, family’s and guardian’s (if applicable) input on identified services/programs;
3. Lists the goals and interventions for improving the resident’s health and health care status; 4. Demonstrates the periodic reassessment of the resident’s needs and progress based on changes in
the resident’s status; and 5. Reflects the resident’s psychosocial/spiritual needs and interests (e.g., continuing education,
culturally relevant social opportunities and faith communities, civil/civic community activities, etc.)
The Office of Community Transitions will schedule a call approximately three weeks prior to the resident’s transition to the community. The AH+ Care Manager is required to complete the Discharge Planning Tool and forward it to the assigned Community Transitions Coordinator at least two business days prior to the pre-transition call. The AH+ Care Manager should come prepared to discuss the person-centered care plan for transition. Housing Contractors need access to a copy of the care plan no later than two weeks prior to the scheduled move in date.
Please note that it may take the Housing Contractors upwards of 40 days from the day they conduct a housing intake interview with a resident, to find an apartment for the resident. During this waiting period, please be sure to continue to work with the resident to prepare the resident for transition.
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Adult Home Class Member Discharge Planning Tool AH+ Care Manager Checklist
The Adult Home Plus (AH+) Care Manager is the single point of contact and will be responsible to:
☐ Confirm that class member is enrolled in the Health Home ☐ Advise Adult Home + Care Manager (CM) Supervisor to record the date the class member was
enrolled in Adult Home Plus on OCT’s weekly tracker ☐ Begin completion of the Discharge Planning tool ☐ Check for guardianship ☐ Establish the multi-disciplinary team, which must include, but not be limited to, the Housing
Contractor, Mental Health Provider, the MLTCP Care Manger (if applicable), the class member, and guardian (if applicable). ☐ Complete and update the HH Consent Form (DOH-5055) to obtain all consents for release of Protected Health Information (PHI) including the class member’s psychiatric records and HRA application ☐ Contact and inform the Mental Health Provider that their client has expressed an interest in transitioning to the community ☐ Request a Comprehensive Psychiatric Evaluation (CPE) or a Psychosocial History from the Mental Health Provider and follow up as needed for timely completion; The AH+ Care Manager may arrange for alternative means to obtain a CPE or Psychosocial History if needed, through qualified clinicians ☐ Advise CM Supervisor to record on OCT’s weekly tracker the date the CPE or Psychosocial History was requested and the date the CPE or Psychosocial History was obtained ☐ Forward a copy of the completed CPE or Psychosocial History to the RN assessor and the Office of Community Transitions via the Health Commerce System (HCS) Community Transition Upload ☐ Coordinate completion of the UAS-NY assessment with appropriate RN Assessor based on class
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member’s enrollment (MLTCP or HH)

☐ Advise CM Supervisor to record the date the UAS-NY assessment was completed or refused on OCT’s weekly tracker

☐ Distribute the finalized AHRAR (per the distribution list) immediately upon receipt from the RN assessor

☐ Submit completed Impacted Adult Home Supported Housing Application (IAHSHA) to the Human Resources Administration (HRA) via the WinSCP program

The HRA IAHSHA includes:

☐Finalized Adult Home Resident Assessment Report (AHRAR) ☐UAS-NY comprehensive assessment
o Community Assessment o Mental Health Supplement o Functional Supplement ☐Comprehensive Psych Evaluation (CPE) or Psychosocial History

☐ Once HRA completes their review of the IAHSHA:

☐ A.

If the HRA housing recommendation aligns with the housing recommendation listed on the AHRAR, forward the HRA determination letter and the completed HRA IAHSHA packet (components listed above) to the assigned Housing Contractor and MLTCP Care Manager (if applicable)

☐ B. If the HRA housing recommendation does not align with the housing recommendation listed on the AHRAR contact OCT via email at CommTran@health.ny.gov

☐ Send completed Discharge Planning Tool to assigned Community Transition Coordinator (CTC) at least 2 business days prior to the scheduled three-week pre-transition call and forward a copy completed care plan to the Housing Contractor.

Early Health Home Enrollment:

☐ Within 24 hours of the class member consenting to Health Home and AH+ enrollment the AH + Care Manager must e-mail the Housing Contractor and copy CommTran@health.ny.gov to request that the class member is given in-reach

☐ Advise AH + Care Manager (CM) Supervisor to record the date the class member was enrolled

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in Adult Home Plus on OCT’s weekly tracker AH+ Care Manager Best Practice:
 Keep the class member informed throughout the assessment process and reinforce that the AH+ care manager is the single point of contact and leader of the transition process
 Utilize your supervisor on an on-going basis to discuss any questions or challenges that you have that need to be resolved
 Coordinate with the RN assessor to be present during any assessments, if possible  Introduce self and role as the AH+ Care Manager to the multi-disciplinary team and maintain
rapport and communication throughout the transition process
Adult Home Class Member Discharge Planning Tool
Date of Meeting: Click to enter date.
Completing this required form will assist you, the AH+ Care Manager, to prepare for the Office of Community Transitions’ (OCT) call held approximately three weeks prior to the resident’s discharge. Completing this form will also allow you to provide a summary of the services that have been arranged, the name of the service providers, and when services are scheduled to begin, to ensure that everything is ready for a safe transition. This form must be submitted to the assigned Community Transitions Coordinator (CTC) at least two business days prior to the pre-transition call.
Date Discharge Planning Tool Sent to CTC (2 business days prior to call): Click to enter date. 106

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Conference Call Participants (to be completed on date of meeting by participants): Click here to enter text.
1. Resident name: Click here to enter text. 2. Name of resident’s guardian (if applicable): Click here to enter text. 3. Roommate (if applicable). Include whether the roommate is currently residing in apartment: Click
here to enter text. 4. Address of apartment resident is moving to: Click here to enter text. 5. Apartment type (level, walk-up stairs/elevator and number of bedrooms): Click here to enter text. 6. Projected date and time of move: Click here to enter a date. Click here to enter time. 7. The care plan must be shared with the Housing Contractor by the 3-week pre-transition call: Click
here to enter a date. 8. Has the 30-Day notice to adult home been submitted by the Housing Contractor?
☐ Yes. Please provide date of submission: Click here to enter a date. ☐ No - Explain: Click here to enter text. 9. Is the resident currently in an Assisted Living Program (ALP) bed at the Adult Home? ☐ Yes. Please list the identified ALP services being provided: Click here to enter text.
☐ No
10. Has the local Department of Social Services been contacted by the Health Home (HH)/MLTC Plan Care Manager, on behalf of the resident, to verify eligibility for the Special Income Standard Program (Please refer to FAQs Document)? ☐ Yes ☐ No - Explain: Click here to enter text.
11. Date of discharge care planning meeting: Click here to enter a date. a. Participants in the care planning meeting: Click here to enter text.
12. Name of HH and/or MLTC Plan: Click here to enter text. 13. Name of HH and/or MLTC Plan Care Manager: Click here to enter text. 14. Housing Contractor Agency and Name of Housing Contractor: Click here to enter text.
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15. Resident’s emergency contact(s): Click here to enter text. 16. Representative Payee (if applicable, apply for representative payee status by the 13th of the month to
allow for the receipt of the SSI/SSD check by the next consecutive month): Click here to enter text. ☐ N/A 17. Discuss whether the resident will have sufficient cash after being discharged from the Adult
Home and whether the Adult Home Administrator will be refunding the remaining rent and personal needs allowance to the resident: Click here to enter text. 18. Required documents provided to the Housing Contractor: a. SSA Award Letter ☐ Yes ☐ No - Explain: Click here to enter text. b. Medicaid benefits card ☐ Yes ☐ No - Explain: Click here to enter text. c. State Picture ID ☐ Yes ☐ No - Explain: Click here to enter text. d. Most recent copy of Assisted Living Residence Medical Evaluation Form
(DOH 3122) ☐ Yes ☐ No - Explain: Click here to enter text. e. Other: Click here to enter text. 19. Secured essential benefits and entitlements: a. SNAP
☐ Yes. Submit application for SNAP benefits no more than 30 days prior to transition. Date application was (or will be) submitted: Click here to enter a date. ☐ No – Explain: Click here to enter text. b. Other: Click here to enter text. 20. Medical and psychosocial review: a. Summary of medical diagnoses: Click here to enter text. b. Summary of mental health diagnoses: Click here to enter text. c. List resident’s primary concerns relating to the move (e.g., fear of being alone, not getting along with roommate, emergency needs, afraid of making meals on their own, etc.): Click here to enter text. 21. List of service recommendations from AHRAR, HRA Decision, and care plan meetings: Click here to enter text. 22. Medical treatments: Click here to enter text.
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a. Medications: Click here to enter text. b. Special dietary needs: Click here to enter text. c. Name and phone number of PCP in the community: Click here to enter text. d. Name and phone number of pharmacy in the community: Click here to enter text. e. Name of any other medical specialists (if applicable) in the community: Click here to enter text. f. Next scheduled appointments in the Community:
i. Medical: Click here to enter a date. ii. Other: Click here to enter a date. 23. Behavioral health treatments: Click here to enter text. a. Enrollment in mental health programs: Click here to enter text. b. Name of mental health clinic/psychiatrist: Click here to enter text. c. Next scheduled appointment for behavioral health in the community: Click here to enter a date. 24. Activities of daily living: a. Medication management: Is the resident able to manage and self-administer his/her medication? ☐ Yes. Choosing this response indicates prior to transitioning the care manager arranged to have the resident’s self-medication abilities assessed by an RN for each objective identified in FAQs Document, and a plan of care was developed to address specific needs and the nurse determined the resident is able to manage and self-administer his/her medication. ☐ No. Please explain the plans for medication management of the individual, including any planned medication training: Click here to enter text.
For those residents who are insulin dependent diabetics, please make sure that prescriptions are obtained from the PCP/endocrinologist for insulin (pen or vial), pen tips with needle (if required) for the insulin pen; syringes (if needed) to draw insulin from the vial; glucometer, glucometer strips, lancets, alcohol pads.
b. Medications for transition: Will the resident have a 30 day supply of medications? ☐ Yes. 109

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☐ No. Please explain the plan for ensuring there is no lapse in medication: Click here to enter text. c. Meals: Plan for access to food at transition and following transition: Click here to enter text. 1. Is the resident capable of preparing his/her own meals?
☐ Yes. ☐ No. Please indicate which of the following services have been secured:
i. Meals on Wheels (if qualified) ☐ Yes ☐ No ii. Congregate Meals Program ☐ Yes ☐ No iii. Home Health Aide ☐ Yes ☐ No iv. Personal Care Worker ☐ Yes ☐ No v. Other: Click here to enter text. 25. Furniture and household items: Click here to enter text. 26. Telephone services: Click here to enter text. 27. Utility set-ups: Click here to enter text. 28. Transportation/Assistance with moving resident: Click here to enter text. 29. Transportation for medical appointments in the community: Click here to enter text. 30. First scheduled meeting with AH+ Care Manager following transition: Click here to enter a date. 31. First scheduled meeting with Housing Contractor following transition: Click here to enter a date. 32. Other comments: Click here to enter text. 33. Date of Post-Transition Call: Click here to enter a date.
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Appendix C. Post Transition Call Checklist

NYC Adult Home Class Member Post Transition Call Agenda

Date/Time: Click here to enter text. Class Member Name: Click here to enter text.
Attendees:
Housing Contractor Staff/Agency: Click here to enter text. HH Care Manager Staff/Agency: Click here to enter text. Name of Health Home (if CM is downstream provider): Click here to enter text. MLTC Care Manager Staff/Agency: Click here to enter text. OMH/DOH Oversight Staff: Click here to enter text.

1. Move/Apartment
(ex. condition of apt; utilities, phones, bed bugs)

☐ No Concerns

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):
Click here to enter text.

2. Financial
(ex. Has money, switched payee)

☐ No Concerns

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):

Click here to enter text.

3. Food
(ex. Has food stamps/date to start, able to prepare meals)

☐ No Concerns

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):
Click here to enter text.

4. Psychiatric/Medical
(ex. Follow up with providers, compliance)

☒ No Concerns

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):

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Case 1:13-cv-04165-NGG-MDG Document 63 Filed 04/01/16 Page 112 of 113 PageID #: 843

Click here to enter text.

5. Medications
(ex. Received 30 day supply/script, support services for med mgmt. if indicated)

☐ No Concerns

☒ Yes Concerns Notes (list concerns and how addressed or will be addressed):
Click here to enter text.

6. ADL services
(ex. CHHA, PCW, nurse services in place)

☐ No Concerns ☐ Not applicable

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):
Click here to enter text.

7. Social needs
(ex. Roommate relationship, community involvement, life goals; how is the class member spending his/her day)

☐ No Concerns ☐ Not applicable (no roommate)

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):
Click here to enter text.

8. Communication

☐ No Concerns

(ex. With Class Member, between HC and CM)

☐ Yes Concerns Notes (list concerns and how addressed or will be addressed):
Click here to enter text.

Additional concerns/positive aspects to share
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Case 1:13-cv-04165-NGG-MDG Document 63 Filed 04/01/16 Page 113 of 113 PageID #: 844 113

 
 Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 1 of 99 PageID #: 1164

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

__________________________________________

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NEW YORK,

) Civ. Action No. 13-CIV-4165 (NGG)

)

)

Defendant.

)

__________________________________________)

__________________________________________

RAYMOND O’TOOLE, ILONA SPIEGEL, and )

STEVEN FARRELL, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, in his official

)

capacity as Governor of the State of New

)

York, NIRAV R. SHAH, in his official

)

capacity as Commissioner of the New York

)

State Department of Health, KRISTIN M.

)

WOODLOCK, in her official capacity as

)

Acting 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.

)

________________________________________ )

Civ. Action No. 13-CIV-4166 (NGG)

THIRD ANNUAL REPORT SUBMITTED BY
CLARENCE J. SUNDRAM INDEPENDENT REVIEWER

 The members of the Independent Review team, Mindy Becker, Thomas Harmon and Stephen Hirschhorn, contributed substantially in the research and preparation of this report.
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Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 2 of 99 PageID #: 1165
Contents
Executive Summary....................................................................................................................................... 4 I. Introduction............................................................................................................................................... 8 II. Methodology............................................................................................................................................. 9 III. Updating the Class List ........................................................................................................................... 12 IV. Review of a Sample of Class Members in Transition ............................................................................. 13
A. Housing choice ................................................................................................................................ 15 B. Planned moves that did not happen............................................................................................... 18 C. Transitions that worked well .......................................................................................................... 21 D. Class members who experienced difficulty but remained in supported housing .......................... 24 E. Class members who left supported housing for another level of care........................................... 29 V. In-Reach .................................................................................................................................................. 34 A. In-reach data ................................................................................................................................... 35 B. Performance by Housing Contractors................................................................................................ 38 C. A review of in-reach related matters in 2016 .................................................................................... 40 VI. Assessments........................................................................................................................................... 41 A. Continuing delays in the assessment process................................................................................. 42 B. Changes in assessment recommendations/outcomes ................................................................... 44 C. TSI assessment observations .......................................................................................................... 47 D. Persons recommended for Level II housing.................................................................................... 48 E. HRA review of housing recommendations ..................................................................................... 54 F. Persons determined not to have a Serious Mental Illness ............................................................. 55 VII. HRA Review and Unable to Complete Cases ........................................................................................ 59 VIII. Person-Centered Care Planning Process ............................................................................................. 64 A. Ongoing problems in person-centered care planning .................................................................... 64
1. Delays in the delivery of services................................................................................................ 64 2. Need for improved communication among class members and those providing supports ...... 64 3. Need for more robust care planning and training in person centered planning........................ 65 IX. Need for Formal Quality Assurance Mechanisms.................................................................................. 68
2

Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 3 of 99 PageID #: 1166 X. Conclusion............................................................................................................................................... 70 XI. Recommendations ................................................................................................................................. 71 A. In-reach ........................................................................................................................................... 71 B. Assessment ..................................................................................................................................... 73 C. Person-Centered Planning .............................................................................................................. 74 D. Quality Assurance ........................................................................................................................... 74 Appendix A .................................................................................................................................................. 76 Appendix B .................................................................................................................................................. 78
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Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 4 of 99 PageID #: 1167

Executive Summary
Figure. 1. Overview of the Status of Implementation as of March 10, 20171

Year One (7/23/14-3/15/15)

37793961 3,906

4404 3540

Year Two (3/16/15-3/11/16)

Year Three (3/12-15 - 3/10/17)

Class Total

1256 Had In-Reach

2263 1657
758

1667 1094 401

955 682 276

900 634 248

Said Yes

Assess. Complete

Ref. to HRA HRA Approved

491 245 40 Moved

1 The data in this report are drawn from the Defendants’ weekly reports up to Week 156, ending on March 10, 2017.
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Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 5 of 99 PageID #: 1168

Out of the 3,906 class members identified as of March 10, 2017, 4,404 have received inreach by a Housing Contractor, and 2,263 of those class members have expressed an interest in moving to supported housing.2 As of March 10, 2017, 4913 had been moved over the first 15 quarters that the Settlement Agreement has been in effect.4
There continues to be progress towards the goals of the Settlement Agreement in year three. However, the flaws in the transition process described in previous reports continued to hobble the pace of progress. The bottleneck that is the assessment process continues to be a significant impediment to quicker movement through the process, and it may be having an effect on the interest of class members in taking advantage of the opportunity offered by the Settlement Agreement to transition to supported housing or other suitable alternatives in the community. It is taking longer cumulatively for the class as a whole to navigate the multiple steps leading to community placement in Year Three than it did in Year One and Two.
First 40 (9/15/14-3/12/15) Next 205 (3/17/15-3/9/16) Next 246 (3/14/16-3/10/17)
343 307

162 134 113

200 154 115

216.5 183
136

203.5

Complete Assess

HRA Approval

Housing Interview

Transition

Figure 2. Median Days from in-reach to transition as of March 10, 2017

2 As explained in more detail below, the 3,906 class members represent a snapshot at a point in time. Due to admissions and other additions to the class list, there are more people in a year who are eligible to receive in-reach.
3 Although 491 class members had transitioned from adult homes as of March 10, 2017, 10 had returned to adult
homes and will continue to receive in-reach as active class members. .
4 The State has noted that the Settlement Agreement did not come into effect until the Court’s final approval was ordered on March 17, 2014, and that in-reach efforts began on the same day, and assessments on April 3, 2014. The timelines in the Settlement Agreement, however, are measured from the date of its execution on July 23, 2013.
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Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 6 of 99 PageID #: 1169

The pace of transitions is still slower than what would be required to meet the Settlement Agreement goals for Year Four and Five.

90

80

82

74 70
66

60

61

56

50 46

40

35

30

29

28

20

10

11

3 0

Q5

Q6

Q7

Q8

Q9 Q10 Q11 Q12 Q13 Q14 Q15

Figure 3. Transitions of class members, by quarter as of March 10, 20175

The problems with the assessment process described in the First Annual Report (pp. 2028) have remained a stubborn obstacle. The new initiatives implemented by the Defendants – Adult Home Plus, changes to the requirement for a Comprehensive Psychiatric Evaluation and authorizing the use of psychosocials performed by a broader array of clinicians – and the decision to vest responsibility for assessment in a single entity – Transitional Services Inc. (TSI) - are all positive developments. But thus far, they have not eliminated the problems experienced to date and by several measures, the problem has become more severe. (Report, Section VI) By March 10, 2017, the number of cases in the assessment process had grown from 449 on July I, 2015 to 811. The median number of days in assessment increased from 79 to 269. The number of cases that remained in the assessment phase for more than six months rose from 32.7% to 58.5%.

Not only is the pace of assessments a matter of significant concern but so too is the changing outcome of the assessment process, especially since TSI took over responsibility for assessments. Since then:

5 The data for Q 15 is partial, as the Quarter does not end until March 31, 2017.
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Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 7 of 99 PageID #: 1170
 the percentage of class members recommended for Level II housing has increased significantly;
 the percentage of class members recommended for supported housing has declined significantly;
 there has been a sharp increase in the percentage of class members who are determined not to have a serious mental illness; and
 the percentage of assessments with an outcome of “declined assessment” has increased substantially. (Report, §V (B))
It is troubling that the proportion of class members saying Yes at in-reach has been falling to the extent it has, and that class members continue to drop out of the process even after they have said Yes. (Report, Section V) As the Independent Reviewer has previously recommended, this trend requires further investigation by the Defendants of the use of Motivational Interviewing during in-reach, of the training of in-reach workers and the strategies used for effective-in reach, as well as the adequacy of staffing of the in-reach teams and the use of peer advocates in this role.
It is apparent as the implementation of the Settlement Agreement has not proceeded as originally anticipated and that the pace of transitions of class members who are interested in moving to supported housing or other community residential alternative has been slower than envisioned. In each of the annual reports and periodic progress memos to the parties, the Independent Reviewer has offered recommendations to address the obstacles that have been encountered. While the state had disagreed with or not adopted several of these recommendations, it has eventually adopted others (e.g., smaller caseloads for care coordinators through the Adult Home Plus program, and more recently, relying on a single contractor to perform assessments), but the time lag in doing so has been too great to overcome the cumulative effects of the initial slow progress.
As this report is being drafted, the parties have agreed to review provisions of the Settlement Agreement to consider revisions that might be warranted to streamline the implementation process as well as to facilitate the achievement of the goals of the agreement.
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I. Introduction
Paragraph 13 of the Settlement Agreement requires the Independent Reviewer to provide five written annual reports to the parties and the Court regarding the State’s compliance. Paragraph 14 of Section L of the Settlement Agreement in this matter provides:
A draft of the Reviewer’s report shall be provided to the Parties for comment each year within 30 days after the anniversary date of the Court’s approval of this Agreement. The parties shall have 30 days after receipt of such draft report to provide comments to the Reviewer, on notice to each other, and the Reviewer shall issue to the Parties a final annual report within 15 days after receiving such comments; provided, however, that the parties may agree to extend such deadlines.
The Court’s final approval of the Settlement Agreement was filed on March 17, 2014. Based on that date, the Independent Reviewer prepared and submitted to the parties a schedule for the preparation of the required five annual reports. For the third year, the schedule requires that the Independent Reviewer’s draft be provided to the parties by February 15, 2017, with their comments due by March 17, 2017, and the final report submitted by April 1, 2017.6
A caveat noted in last year’s annual report regarding the data contained herein bears repeating. The Independent Reviewer and the Plaintiffs receive regular weekly reports from the Defendants on the progress being made in each of the many steps of the transition process. These reports in turn are drawn from data reported to the Defendants by the adult homes, Housing Contractors, Health Homes and Managed Long Term Care Programs (MLTCP), some of which also rely upon downstream providers to deliver services and report upon them. In addition to these weekly reports, the Independent Reviewer has requested and received from the Defendants various data reports in the course of preparation of this annual report. It has been our experience that both the weekly reports and the other data reports we have received contain missing information, anomalies and inconsistencies, and some obvious errors for a variety of reasons. These include incomplete data submission by vendors, inaccurate recording of data, and errors in compiling the reports from several different data sources. Assembling data on different dates can also result in inconsistencies, as the underlying data bases are "live" and are constantly changing due to admissions and discharges. In some cases, these have been called to the attention of the Defendants. We alert the reader that the statistical analyses contained in this report, to the extent that they rely on the data provided as described above, may not be precisely accurate, although we do not believe that any errors are large.
6 Annual reports have been filed previously as follows: Independent Reviewer's First Annual Report, Doc. # 36, filed March 30, 2015, hereinafter "First Annual Report"; Independent Reviewer's Second Annual Report, Doc. # 63, filed April 1, 2016, hereinafter “Second Annual Report."
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The primary focus of this report is on the experiences of class members who have gone through the in-reach, assessment, approval by the New York City Human Resources Administration (HRA) and care planning processes, and have been transitioned to supported housing in the community which is the ultimate objective of the Settlement Agreement. To that end, in this report we will describe in some detail our review of a sample of 28 class members who left or had been scheduled to leave the adult home between March 25, 2016 and July 2016. In addition, we will report on each of the stages of the transition process – in-reach; assessment; HRA approval; Housing Contractor placement process; services provided by Housing Contractor case managers, care coordinators from Health Homes (HH) and MLTCPs, and the Adult Home Plus Care Managers;7 person centered planning and quality assurance.
II. Methodology
Over the past year, the Independent Reviewer and his associates (Mindy Becker, Thomas Harmon and Stephen Hirschhorn) continued monitoring the implementation of the Settlement Agreement in accord with the provisions of the Agreement and a Monitoring Plan developed by the Independent Reviewer and approved by the parties as described in detail in the Independent Reviewer’s First Annual Report.
Generally, the Monitoring Plan called for reviewing training materials and tools developed for frontline staff responsible for transition-related activities; site visits; interviewing class members and reviewing their records on a sample basis; observing and participating in various transition-related activities (e.g., in-reach, assessment, care planning, etc.); and reviewing and analyzing reports by the State and its contractors concerning implementation activities.
The Monitoring Plan also called for the Independent Reviewer to provide the parties with regular reports of findings and observations as well as recommendations to facilitate the successful implementation of the Settlement Agreement. In addition to formal communications, such reports would be made in writing or at periodic meetings with the State and Plaintiffs with the goal of providing the parties with information as early as possible to enable them to act as warranted to achieve the shared objective: successful implementation of the Settlement Agreement.
Among the specific monitoring activities carried out by the Independent Reviewer and his associates during the past year which inform the content of this annual report were:
7 There are many different terms used to refer to these staff who assist class members during various phases of the transition process. For the sake of consistency and clarity, in this report we will refer to the Housing Contractor staff as case managers, to the staff of the Health Home and MLTCPs as care coordinators, and to the Health Home Adult Home Plus Care Managers by the shorthand AH+CM.
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1. Participated in and observed 17 training sessions sponsored by the State for Housing Contractors, Health Homes and MLTCPs. These educational sessions focused on the goals of the Settlement Agreement and the skills these frontline staff required in conducting inreach, assessment, care planning and care management.
2. Reviewed the database structures developed by the State Department of Health (DOH) and the Office of Mental Health (OMH) to capture and record data, and made recommendations regarding the same.
3. Reviewed tools and guidelines developed for use by frontline staff responsible for in-reach, assessment, person-centered planning/management and transition.
4. Participated in regularly scheduled State-sponsored meetings of all eight8 Housing Contractors responsible for in-reach, supported housing development, transition of residents and their housing/case management following transition, as well as in periodic meetings of the Housing Contractor supervisors.
5. Met with representatives of the Coalition of Institutionalized Aged and Disabled (CIAD), the Mental Health Association in New York State (MHANYS), the New York Association of Psychiatric and Rehabilitation Services (NYAPRS) and the Schuyler Center for Analysis and Advocacy (SCAA) which provide advocacy services on behalf of adult home residents and are active in homes covered by the Settlement Agreement.
6. Met with HRA and TSI about the new assessment process;
7. Attended a meeting with a Housing Group at an adult home coordinated by CIAD and a Housing contractor
8. Met with 171 class members during educational, in-reach, assessment and care planning sessions or after their transition to supported housing.
9. Also participated in care planning and transition related conference calls for 182 class members including:
 Seventy five pre-transition conference calls in which Housing Contractors, HH/MLTCP staff and DOH and OMH representatives confer to ensure that all elements of a successful transition (housing, utilities, community supports, entitlements/benefits, etc.) are in place for an individual. Such calls usually happen about three weeks before the individual moves.
8 There were originally nine Housing Contractors, but one, Federation, Employment and Guidance Services (FEGS), went out of business and its operations were absorbed by the Jewish Board of Family and Children’s Services. The FEGS services are referred to in this report as “Jewish Board II” or “JB II.”
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 Fifty six post-transition conference calls in which Housing Contractors, HH/MLTCP staff and DOH and OMH representatives discuss how an individual’s transition went and any outstanding matters in need of attention following the transition. Such calls usually happened about three to four weeks after transition.
 Fifteen “Level II” conference calls. These interdisciplinary calls involving Housing Contractors, HH/MLTCP staff and DOH and OMH representatives focus on individuals whose assessment resulted in a recommendation for transition to a level of care higher than that provided in supported housing.
 Five calls in which the assessment process resulted in a recommendation that the individual remain in an adult home.
 Thirty one miscellaneous calls concerning individuals whose care plans or situations required special attention by Housing Contractors, HH/MLTCP staff and/or DOH and OMH representatives.
10. Conducted an in-depth review of a sample of 28 class members who had transitioned from adult homes to supported housing. This involved reviews of their Housing Contractor and HH/MLTCP records as well as reports from the Psychiatric Services and Clinical Knowledge Enhancement System (“PSYCKES”); interviews with key staff; and, with their permission, visits to their apartments to observe their new environs and to hear their perspectives on their transition, their new living arrangements, the adequacy of services and matters that might be improved.
11. Conducted a special review of a sample of the 20 class members whose assessment resulted in a finding that they were not Seriously Mentally Ill (SMI) or that their needs warranted placement in Level II housing. This entailed a review of their assessment related documents and discussions with DOH and the assessing entity’s staff.
12. Followed up on complaints registered with the New York State Justice Center or DOH concerning interference or discouragement by adult homes operators.
13. Through the above activities, had opportunities to observe and/or review the work of all Housing Contractors and most of the HH/MLTCPs and their downstream providers involved in the implementation process.
14. Reviewed case-specific data reported weekly by the State on implementation activities as individuals pass through the in-reach, assessment, care planning, HRA approval and transition phases of the Settlement Agreement, as well as quarterly reports and other reports prepared by the State on the status of the Settlement Agreement’s implementation.
15. Maintained regular contact through telephone calls and emails with DOH and OMH staff responsible for Settlement Agreement implementation and had periodic face-to-face
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meetings with such staff to share the Independent Reviewer’s observations and to discuss progress, developments and changes in the implementation process.
16. Issued several progress memos and other memos to the parties on the Independent Reviewer’s activities, findings and recommendations where warranted and participated in three parties’ meetings to discuss the status of implementation and the Reviewer’s observations. In addition, maintained regular contact with the attorneys for the Plaintiffs and the United States Department of Justice through email and periodic telephone conferences.
17. Participated in four status conferences and hearings convened by the Court.
The Independent Reviewer and his team have relied upon the cooperation of the staff from the Department of Health and the Office of Mental Health in responding to innumerable requests for data and information. They have been generally responsive to requests for information that has been needed to perform our monitoring functions. We have also received assistance from the staff of the NYC Human Resources Administration. The staff of the Housing Contractors, Health Homes and MLTCPs, and their downstream providers have also been cooperative with the Independent Reviewer and generous in their time and assistance. We have also had unimpeded access to the impacted adult homes to meet with class members and observe in-reach and assessment sessions. The Independent Reviewer would like to acknowledge the assistance of all of these parties, which has been of immense help.
III. Updating the Class List
The initial certified class list contained 3,867 names, to which seven additional class members were added, for a total of 3,874, which was reported to the parties and the Court on June 10, 2014 (Doc. # 30-1). The Department of Health has periodically updated the class list based on rosters that it receives quarterly from the adult homes reflecting admissions, discharges and deaths. As of December 16, 2016, 1,494 people were added to the list to reflect new admissions to impacted adult homes, as well as the identification as class members of persons previously admitted. Subsequently, similar adjustments have been made. 9
The most recent class list as of March 10, 2017, requested by the Independent Reviewer contained a total of 5,533 class members. However, since this list contains all persons who have ever been identified as a class member and does not remove names as people die, are discharged or are subsequently determined not to qualify for class status as they do not have a serious mental
9 It should be noted that while the focus of the parties and the Independent Reviewer has been on transitional discharges of class members through the process established by the State pursuant to the Settlement Agreement, class members residing in the impacted adult homes are also discharged outside this process.
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illness, it overstates the number of people who are eligible to be transitioned to supported housing or other alternatives pursuant to the Settlement Agreement. As such, the Independent Reviewer also asked for additional or clarifying information in order to determine a more accurate "workload" for this transition process. The additional information resulted in identifying and removing 1,627 people from the total due to death or other reasons, reducing the list to 3,906. Of these, as of March 10, 2017, 491 had been transitioned to the community. The 10 individuals who returned to adult homes were placed back on the current active class member list leaving 3,425 "active" class members eligible for assessment and transition pursuant to the Settlement Agreement.

Grand Total class members
Non-SA discharge
Deceased
Not a class member SA transition
SA transition but returned to adult home Current active class members
Table 1. Active Class members10

5533 -1061
-432 -134
-491 +10 3425

IV. Review of a Sample of Class Members in Transition
As was done last year, the Independent Reviewer team conducted an in-depth review of a sample of 28 class members who had expressed an interest in transitioning from adult homes to supported housing, and who had left or had been scheduled to leave the adult home between March 25, 2016 and July 19, 2016. In selecting the sample, an effort was made to review class members who would have been in the community for several months to capture their experience through the transition and settling in to their new residences. The sample included class members from 18 of the 22 adult homes who were served by all eight Housing Contractors. They were also provided behavioral health services from eight Health Homes and managed long-term care services from seven MLTCs. Sixteen of the 28 were selected at random, two from each housing contractor. Nine were selected based on pre or post transition calls in which the Independent

10 As previously noted by the Independent Reviewer, there is a need to clarify the status of the 1061 class members who were discharged outside the Settlement Agreement process to determine whether there is any continuing right to the benefits of the Settlement Agreement for any of them. This is an issue that it is being discussed by the parties.
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Reviewer staff had participated, due to the issues they presented. Three were selected because they were discharged from supported housing after their transition.11

The sample included nine women and 19 men. The youngest was a 31 year old man and the oldest a 76 year old man. There were three class members in their 30s, one class member in her 40s, 12 in their 50s, five in their sixties and seven in their 70s. While 10 had lived in an adult home for five years or less, seven had been there for 10 years or more, and two had been there for more than 20 years. The members of the class are a diverse group with some physically healthy and able to function independently with relatively little support, while others have significant medical and mental health problems that require on-going treatment and who need support to attend their appointments, and follow their treatment plans. These class members also have variable degrees of support in the community from family, friends and peers.

In conducting this review, we obtained and reviewed The Independent Reviewer

case notes from Housing Contractor case managers, and Health Home and MLTCP care coordinators and nurses. We also obtained and reviewed a summary of medical and mental health services provided to them over the past two years as

team conducted an in-depth review of a non-random sample of 28 class

compiled from Medicaid claims data in the Psychiatric Services and Clinical Knowledge Enhancement System (PSYCKES) maintained by the NYS OMH.

members who had expressed an interest in transitioning from adult

In the end, two of the class members in the sample did not leave the adult home although transition plans had been developed for them and they came very close to their moving

homes to supported housing, and who had left

date. They are part of a larger cohort of class members who

or had been scheduled to

withdrew their consent to moving somewhere along the line in the transition process.

leave the adult home between March 25, 2016

With a few exceptions, we met with the class members in their homes to hear their perspectives on their transition,

and July 19, 2016.

their new living arrangements, and the adequacy of services

and matters that might be improved. Two home visits could not be scheduled due to infestation

with bedbugs. Five other class members were no longer in their supported apartments. As

available, we interviewed their case managers, care coordinators, AH+CMs, and Home Health

Aides, PCWs or RNs who provided them with direct support. In some cases, we also spoke to

11 In the body of this report, the randomly selected class members are identified by a single asterisk (*) placed next to their initials; the second group by a double asterisk (**); and the third by a triple asterisk (***). The same designation is made in the key provided separately to the parties identifying the class members whose cases are described in this report by initials.
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supervisory staff of the Housing Contractors, MLTCPs and Health Homes, and mental health programs they attended.

One can reasonably expect that the experiences of the
sample class members described below have been shared with other residents
in the adult homes they left, and perhaps more
widely. These communications can have a significant impact upon the
current residents of adult homes who are considering
a move of their own.
A. Housing choice

In reading this report, the reader should keep in mind that many class members who leave an adult home maintain some level of connection to the people they left behind, especially as they often do not have other social networks at the time of transition. Successful transitions where the class members are safe, happy in their new surroundings and enjoying greater freedoms, choices and new experiences can be a positive motivating force for those who are uncertain about the decision they have to make. But this is a two-edged sword. The challenges, frustrations and adverse experiences of the movers –delays in getting their money, SNAP benefits, or linkage to medical and mental health care, bad experiences with housemates, etc. --can also dissuade the stayers from taking the same step. It is an unfortunate truism that bad news tends to travel faster and wider than good news. Case managers, care coordinators and others supporting the class members would do well to keep in mind that their efforts are likely to have an impact well beyond the individuals they work with directly.

In general, the description in the Second Annual Report (pp. 15 et seq.) of the class members’ apartments, the neighborhoods in which they were located, their access to resources in the community and the process of apartment selection remains largely the same. However, more of the Housing Contractors are now providing access to a choice of studio and one bedroom apartments than previously, although they remain in short supply.
While there are attempts to honor choice, the housing stock and availability, particularly in Brooklyn and Queens, continue to play a role. The responses to the original OMH RFP of August 10, 2012 submitted by Housing Contractors for this initiative included that they would offer the choice to live alone in a studio or one bedroom apartment, or to live with others. Data presented in the Independent Reviewer’s Second Annual report indicated that two of the Housing Contractors had not offered this choice. (Annual Report p. 85, Table 5.) Specifically, Federation of Organizations, which serves four adult homes, did not offer its 23 class members who transitioned studio or one-bedroom apartments; and all of the 25 class members transitioned by Jewish Board II, from the two adult homes they serve, moved to multiple bedroom units.

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As of March 10, 2017, Federation of Organizations has transitioned nine class members to

a studio or one bedroom apartment, while Jewish Board II has transitioned four class members to

live in similar units. There appears to be a greater availability of studio and one bedroom

apartments to class members who choose to live in the Bronx or Staten Island. The highest

percentage of studio or one-bedroom apartments is currently provided by Pibly, which serves the

two adult homes in the Bronx. They have placed 56 of their 73 class members, or 77%, in studio or

one bedroom apartments. St. Joseph’s Medical Center, which serves one of the three Staten Island

adult homes, has transitioned 20 of their 41 class members, or 49%, to single occupancy units.

Presently 154 of the 471 class members, or 33% who have transitioned to supported housing, have

moved to a studio or one bedroom apartment (See Table 2).

Virtually all of the class members we interviewed expressed satisfaction with having moved out of the adult home. Although, as described below, several experienced bumps along the way in their transition to the community or soon thereafter, the problems
they encountered were usually resolved eventually through the efforts of case

This compares favorably to 58 of the 237 class members, or 24.5%, who transitioned to single supported housing units as of March 11, 2016. It is a positive sign that Housing Contractors appear to be making greater efforts to provide the opportunity to more class members, who choose to do so, to live alone. If in fact there is a greater availability of studio and one bedroom apartments in the Bronx with Pibly, and in Staten Island with St. Joseph’s, other Housing Contractors with class members insisting on living alone, might want to discuss with them their interest in living in one of these boroughs if it would mean a more timely transition to the community. If interested, the individual could be referred to that Housing Contractor.

managers and care coordinators

Another element of choice is the desire of some class members to live in a borough other than that served by the

Housing Contractor assigned to their adult home. Although

this is noted at the time of in-reach, it generally does not get addressed until the care manager

obtains the HRA approval and forwards it to the Housing Contractor. Of the 471 transitions to

supported housing, as of March 10, 2017, 16 class members have been placed in supported

housing with contractors able to offer housing in other boroughs. Seven of the eight housing

contactors have been successful in securing housing for these class members in Queens (5); Bronx

(6); Brooklyn (4); and Staten Island (1) As previously reported by the Housing Contractors, the

specific preferences of the class members, especially the locations, have posed significant

challenges with requests to live in neighborhoods where affordable housing is not readily

available. While Housing Contractors try not to tell class members that it is impossible to fulfill

the members’ specific request, they inform them that it will most likely take longer to acquire, and

continue to offer alternative areas for their consideration, including shared housing rather than a

single unit. Those that insist on living alone or in a specific neighborhood often wait indefinitely

and in some cases their HRA approval expires.

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Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 17 of 99 PageID #: 1180

Supported Housing Contractor
ComuniLife Federation of Organizations
Institute for Community Living, Inc. Jewish Board of Family & Children’s Services I Jewish Board of Family & Children’s Services II Pibly Residential Programs St. Joseph’s Medical Center Staten Island Behavioral Network, Inc. Transitional Services for NY, Inc.

Studio/One Bedroom
9 (6)12 9 (0) 6 (3)
24 (15)
4 (0)
56 (11) 20 (9) 10 (3)
18 (11)

Two Bedrooms
22 (11) 13 (6) 54 (44)
50 (37)
48 (24)
14 (4) 21 (13) 30 (7)
28 (10)

Three Bedrooms
2 (2) 23 (17)
0 (0)
0 (0)
1(1)
3 (0) 0 (0) 0 (3)
6 (3)

TOTAL 471 (237)

156 (58)

280 (156)

35 (23)

Table 2. Class Members Transitioned to Supported Housing Units as of March 10,

2017

In 19 of the cases that had their referrals withdrawn after they were approved by HRA and referred to the Housing Contractor between March 11, 2016 and March 10, 2017, the reason given was the preference of the class member to live in a borough other than the one served by the agency that had received the housing referral package. In nine of these cases the class member was subsequently referred to a Housing Contractor serving the borough of their choice, and three of those class members have since transitioned. In another two cases, the class members changed their minds after the referral was withdrawn and transitioned in the borough of their adult home, served by their original Housing Contractor. However, there was no indication that in the other eight cases, that a subsequent referral to a contractor serving the borough of their choice had been made yet.

Yet another aspect of choice arises when a class member moves from the initial apartment to which he or she was transitioned. Such a move may occur either because the lease has expired and the landlord refuses to renew it, or because a situation with a housemate has become so

12 ( ) = Class members Transitioned to supported housing as of March 11, 2016 (Independent Reviewer’s Second Annual Report; p.85)

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dysfunctional that a move is necessary. When a secondary move is contemplated it is sometimes the case that a class member who has had an unsatisfactory experience with a housemate expresses a desire for a one bedroom or studio apartment. There have been instances where a Housing Contractor attempts to hold the class member to adhere to the initial choice to accept a twobedroom apartment. It would be a better practice to respect the principle of choice in housing when a secondary move is being considered, especially since it is likely that such a choice is a more informed one than the initial choice expressed when the person was living in an adult home.
Virtually all of the class members we interviewed expressed satisfaction with having moved out of the adult home. Although, as described below, several experienced bumps along the way in their transition to the community or soon thereafter, the problems they encountered were usually resolved eventually through the efforts of case managers and care coordinators. In most of the cases, case managers and care coordinators made regular and frequent contact with class members to monitor their services and intervene to provide assistance when it was needed. Although there were a few exceptions, from a review of the documentation, there seemed to be a good level of communication between Housing Contractors, Health Homes and MLTCs, and as needed with providers of medical and mental health services as reflected in the progress notes we reviewed.
B. Planned moves that did not happen
Two of the class members in the sample who had indicated an interest in transitioning to supported housing changed their minds somewhere along the process and, at the time this report was being drafted, they remained in an adult home. These cases illustrate the various influences upon decision-making of class members, as well as the ambivalence some of them express during the sometimes lengthy period between their initial expression of interest, and the various stages of reviews and approvals required to get to the point of transition.
RB** is a 58-year-old man who has lived in the adult home since August 2013. Before that he lived in an unnamed supervised facility for 15 years and with his grandmother. He has never lived alone. RB expressed an interest in supported housing at in-reach on October 21, 2015. He made it all the way through the process up to a pre-transition call on April 11, 2016, the assignment of an adult home plus care manager and a scheduled move date of May 4, 2016. However, the private psychiatrist treating him at the adult home and his father were opposed to the move and he backed out. His family was withholding ID information and objecting to the adult home nurse instructing him in self-administering his insulin injections. When visited by a member of the Independent Reviewer team on October 28, 2016, he once again expressed an interest in moving to a one-bedroom apartment, complaining of the noise and the number of people in the adult home. He said he had told a “lady” (whose name/agency he could not recall) of his interest within the past two weeks or so. Housing contractor records indicate that RB expressed his renewed interest in moving on October 10 and by
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October 28th a meeting was held with the family. Following the meeting, RB informed the in-reach worker that he did not want to move and upset his family. He said living in the adult home was the best choice for him. His application for supported housing was withdrawn on November 4th.
 IH**, a 72-year-old woman, said Yes to transition during in-reach on July 16, 2015. She was approved by HRA for transition, had a housing interview, selected an apartment, and gave her 30 day notice on February 26, 2016. However, at the time of her March 14, 2016 pre-transition call, a number of key arrangements had not yet been put in place. Although her adult home plus care manager diligently attempted to engage and support IH in securing services and benefits she would need for a safe transition, IH was not cooperative in the completion of the tasks/steps needed to get services like SNAP, an appointment for mental health services, an ID, change in SSI and representative payee status, and CHHA. Due to her failure to complete these necessary tasks and her resistance to the repeated efforts of her care coordinator to assist her, she was eventually terminated from both her health home and MLTC and remains in the adult home. For several months, she has been refusing to meet with her care coordinator or the social worker from the MLTC. She also refused to speak with a member of the Independent Reviewer team who attempted to understand her concerns.
These two class members were part of a larger cohort of class members who changed their minds after having received HRA approval, as reported by the State, since March 11, 2016. For eleven such class members who had received HRA approval for housing and had their applications withdrawn, no reason was offered. For another fifteen, some of the reasons given included: they preferred to live in the adult home; were no longer interested or not ready; were moving out of state with a significant other or family; or were waiting for their significant other to return from rehab.
 MV, a 53 year-old man, has lived at the adult home for 3 ½ years, moving there from another home after Hurricane Sandy, where he had been since 2008. When a post transition call of June 2, 2016 was cancelled for MV and his girlfriend MM, staff of the Independent Reviewer’s team followed up with OMH to learn that they both cancelled their moves the day prior to the move out date. The reason given was that he had been vacillating about the move and then on May 11, 2016 in meeting with his care manager and Housing Contractor he decided not to move, and MM said that she would not move without him. The documented reason for withdrawing the referral was that they did not feel ready to move and wanted to work on personal and relationship issues.
On July 8, 2016 MV agreed to meet with a representative of the Independent Reviewer, who asked if he could tell him what made him change his mind about moving. He said “I wanted it to be done right.” When asked if he still though about moving out, MV said that “maybe in six months to a year I will reconsider it…there are things I have to work out…..” MV and MM subsequently moved to an apartment together on November 29, 2016, a little more than six months after they had changed their minds.
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 During a pre-transition call for MK. on April 11, 2016 it was announced that his planned roommate, BW, had changed his mind, and was not moving. The call proceeded and everything was in place for MK to move on April 25, 2016, and they would seek a new roommate to live with him. The following day it was reported to the Housing Contractor that each had informed their therapist at NYPCC that they had changed their mind about moving to supported housing. Neither class member reportedly gave specific reasons to their care coordinator for the change in their decision. On April 15, 2016, the Housing Contractor’s Peer Specialist met with MK. She reported that all he said to her was that he did not want to move. When in reach staff spoke with him again during May 2016, he was still not interested and his referral was withdrawn during September 2016. Although housing staff were unable to get in touch and speak with BW, as most often he is out of the adult home, during October 2016 he again said he was ready to move, as long as it was close to transportation so he could visit family, and he is now in the Assessment process.
On September 13, 2016 staff of the Independent Reviewer’s team visited the adult home and tried to meet with both class members, but were only able to interview MK. When asked why he had changed his mind about moving to supported housing, he said “I had wanted to move- but I changed my mind… I want to stay here. I’ve been here 20 years (actually 23) ...I told my family after I changed my mind and they were OK with that.” He said “nobody influenced me” and ended by saying “I may change my mind in the future.”
As reported by the State, since March 13, 2016, nine class members declined to proceed with seeking housing after they were approved by HRA for housing. Two of the cases are included below:
 RP is a 49 year-old woman who has lived at the adult home for nine years. She had said Yes to in-reach in January 2016, but subsequently refused assessment in March. She later changed her mind and said Yes to in-reach and was assessed by TSI in July. She then reported to housing staff that although she did not want to move at that time, she agreed to have the assessment package submitted to HRA just in case she changed her mind. Although recommended for Apartment Treatment, which the assessor reported was her choice, she was approved by HRA for community care (supported housing) and level II in October 2016. The approval is good for one year. She hasn't changed her mind since.
 MA is a 53 year-old woman who has been at the adult home for 13 years. She was originally on the Fast Track, as someone who was identified as interested in supported housing at the outset of this initiative. However, she said No in July 2014 but then said Yes in August 2014. However, she declined assessment. She continued to say No during regular in-reach visits until, July 2016 when she presented as Uncertain/Considering it, and agreed to be assessed. After assessment, the care coordinator decided to submit the HRA application just in case she changed her mind. She was approved for supported housing on September 27, 2016. To date she has not
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changed her mind, and as of October 12, 2016, when she received in-reach again, she was not interested in moving.
C. Transitions that worked well

As noted earlier, virtually all class members reported being happy to be out of the adult home and in their own apartment.

 ML*, a 56 year-old man, who had been in an adult home for six years, reported that it

is “wonderful” to be living where he is. “I can cook what I want…The stores are

nearby….It is a very nice and clean neighborhood…I feel safe…I can do what I want.”

He indicated that the transition did take “some time” but that it was worth the wait. He

is satisfied with all the services he receives.

This was one of the few apartments visited over the past two years where there were

personalizing touches. There were knick-knacks on

the kitchen shelves; pictures hung on the walls; and even a model airplane suspended on one wall in the living room area. Also in the living room was a large fish tank with fish in it swimming around. ML indicated that the fish are something he really enjoys,

During interviews with class members, recurring themes that were voiced included an appreciation of

it is something to look forward to every day: coming

the privacy of their new

home to feed them. ML reported that he is satisfied with his health and MH providers. He reported that he loves the NYPCC program in Springfield Gardens which he attends 4 days a week/full time. He has attended it for eight years and a key feature of the program he really enjoys is doing volunteer work through the program,

housing; freedom from crowds, noise and
smoking; feeling safe in their neighborhoods; being able to maintain their own
schedules and choice of

which he has been doing for the past eight years. This volunteer work involves sorting and stocking clothing, serving refreshments at the program, etc. The program also offers groups in current events, reading/writing (which he particularly enjoys), and recreational activities which he attends. Records also indicate he is involved in budgeting and cooking classes at the NYPCC.

foods; and having more spending money. Several
mentioned their appreciation of their home
health aides and the assistance they received with cooking, cleaning and

 GP*, a 73-year-old woman who had been in an

other chores.

adult home for 18 years, moved to supported housing

with her friend, CL. She said she never wanted to live alone, has medical issues and

wanted someone to talk to. She and CL are reportedly very close, and said it is “like

having my sister with me” and she described doing many things together, including

making appointments to see their providers of service.

They both maintain a clean attractively decorated apartment, and have advocated for

changes in furniture and a paint job to accommodate their wishes to improve their

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living situation. She is independent in all of her

Another class member,

ADLs, and was assessed by an MLTC and

CP**, stated “this is the

determined not to require their support services.

safest I’ve felt in years.” She said that she would tell other adult home residents who are thinking of moving to “take a

She and CL take turns cooking and order food on line from Pea Pod. They also spend a lot of their time together. She said that “it was great to have a place of my own” and “coming and going as I want”...”do my own cooking,” as she described making a pot

chance and give yourself a roast. She said for her “it is coming back home”

chance.” Also, “make sure and “was just like riding a bike…something you

you click with your roommate; look for someone you are compatible with.”

don’t forget how to do, no matter how long.” GP spoke of liking to use a computer, and explained that in the adult home she had her own laptop. However, her roommate has just gotten a new computer for both of them to use with her grant

money.

She has never been married and has no children but has close family ties and

frequently spends time with her nieces and nephews. In speaking of the support that

she gets to live in supported housing, she mentioned her family, specifically her sister

and her nieces, who were “ecstatic about my move.” She said she missed some of her

friends from the adult home, but continues to visit with them. She also mentioned her

care coordinator, who she said “is great.” She said that she comes to see her, and

helps her with anything she needs. She says she took her to apply for Access-A-Ride.

She said she likes having a laundry room downstairs in her building, so she doesn't

have to go out to do it.

 JSP* , a 31 year-old man, who spent 10 years in an adult home, moved to supported housing with a roommate who was his friend. He said that having his own apartment is fantastic. One can do what one wants, like eat when you want and eat what you want, rather than what is being served. “I can go to stores to buy what I want.” “I can associate with the people I want to.” He spoke of it as being an escape from the “rules” of the adult home where there were certain times to wake up, certain times to go to bed, etc. He said you’d get in trouble if you didn’t follow those rules. Paradoxically, while he disliked the rules of the adult home, he said he and his housemate have come up with rules for their place and have divided responsibilities: who will clean and which rooms; who will cook (and when) and who will clean the dishes; who will pick up the day’s mail; who will take out the garbage; when will laundry be done; etc. Not easy work, he said, but needed in order to keep living independently.

 RM*, 67 years old, has made a very successful transition to the community despite initial anxiety and mention of wanting to return to the adult home, medical problems and persistent psychiatric symptoms. He has received well-coordinated services from both his housing case manager and his AH+CM. Although he continues to hear
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voices, sometimes directing him to hurt himself, he says “I do not listen to them” and has learned to manage his symptoms. He realizes the value of his psychotropic medications in helping him to do this. His treatment was complicated by having a colostomy procedure during September 2016, which he managed well. If not for his housing case manager showing up when he told her not to visit because he “did not feel well,” and then getting him to the hospital, he would not have received timely care. He is adjusting well and has received nursing and HHA assistance since his procedure. He has made friends with his neighbors (non-class members) and has had BBQ and other social activities with them, but says he would like to be more social and attend more of St. Joseph’s events.
He has no interest in therapy or a day program (PROS is not offered on SI), but keeps all of his mental health and medical appointments. He proudly refers to “his team” and it appeared that they all work closely together. It is also of note that each housing case manager’s notes for both clients (RM* and JSM*) were most often comprehensive and closely linked to a detailed support plan with realistic goals and objectives. In both cases, case managers visited three or more times a month, more frequently than the minimum requirement of a monthly visit.
RM said that when he first moved the adjustment was difficult. While he did not like the adult home, the staff there took care of his cooking, cleaning and medication, which he now had to do for himself. After the first 4-6 weeks he said “I want to go back to Harbor Terrace.” However, his team said that they could give him whatever help he needed to assist him in learning to do the all these things for himself, like the cooking, shopping, laundry, cleaning the house, and taking his medication. RM said he was very happy with the move.
 CA*, a 46 year-old woman who had been in an adult home for five years, needed the intensive support from her AH+CM and her treatment team at New Horizons to maintain her in supported housing. When she spoke of not wanting to take medications anymore or to attend her day program, the care coordinator arranged for her to be seen by a nurse practitioner, who changed her medication to a long acting injectable. This resulted in a marked improvement in her involvement in her treatment. Her person centered care plan also targeted significant areas that she had struggled with, such as understanding her mental health diagnosis; treatment and medication compliance; and managing her independent living skills, including shopping, cooking, budgeting and managing her money.
 AG*, a 58-year-old man who had spent 26 years in an adult home, transitioned to supported housing and appears to be doing very well. He keeps his apartment very clean and neat. He was well-groomed and neatly dressed. He can independently use public transportation, which he uses to get to his PROS program in Harlem. He attends five days a week and fully participates in his groups and programs. He is working towards his goal of getting a job and he is getting the assistance he needs to achieve this. He stated that he needed proof that he graduated high school, so his case
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manager helped him get a referral letter from his high school. He mentioned that he is looking to get a license to do security work, but he needs to take classes for it and he has to wait for a new semester to start. He earned a grant which will pay for his certification (a 16-hour class) to get a security license.

 QY*, a 35-year-old man, liked moving out very much. For him it meant Freedom! He is independent and can do what he wants now that he is on his own, like making Asian food for meals. He said many people don’t want to leave the adult home because they “do everything for you there.” However, he didn’t like it there. There was a lot of violence and people yelling and screaming. When asked how he spends his free time, he indicated that he attends the American Adult Day Care Center five days a week. This is located in his old neighborhood of Flushing which has a large Asian population. He reported that he enjoys it: he gets a free meal, he can play ping-pong and pool and he also has access to computers. He also returns to that neighborhood, via public transportation, to visit his mother and to use the Public Library which he says is one of the largest in Queens.

D. Class members who experienced difficulty but remained in supported housing

Some class members encountered various problems after their transition to the community.

Nevertheless, with the assistance of Housing Contractor case managers, AH+CMs, and others, the

problems they encountered were addressed, permitting them to continue living in supported

housing. However, in some cases, there was a lack of diligence by the Housing Contractor case

managers or the AH+CMs, who failed to carry out their

Ten of the 28 of the class members in the sample

responsibilities in a timely manner, as described below. (E.g., CMc* below, and RD* in the following section)

experienced significant difficulties during the transition or after they had moved to their supported
apartment.

Some of the problems the class members in the sample experienced were compatibility with housemates whom they had not known previously. The Independent Review Team has observed that when class members move into an apartment with another person with whom they have a solid

pre-existing relationship that contributes to the likelihood of

success in the community due to the additional source of support they have. (E.g. GP*, JSP*,

above) Five of the class members in our sample moved with a person they had selected with whom

they had a strong relationship, and which they cited as one of the positive aspects of having moved

from the adult home. It is also the case that a poor housemate match can add conflict, stress and

anxiety at a time when the class member is dealing with a significant change in life circumstances,

and can undermine the chance of success of the transition. Unfortunately, nine of the class

members cited problems with their housemates. While some of these were relatively minor

disputes which could be resolved, others affected the viability of the arrangement.

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Perhaps the most common problem, experienced by 17 of the 28 class members in the

sample, was qualifying for and receiving SNAP benefits, an issue that was discussed extensively in

the Second Annual Report (pp. 28-31), and does not seem to

have improved. It should be kept in mind that class members live on limited budgets, with little margin to deal with unexpected expenses or loss of benefits. 45

When class members move into an apartment with another person with whom

Among the issues that have arisen are securing they have a solid pre-

appropriate photo identification, and proving income and existing relationship that

expenses to justify the level of benefits. In some cases, the contributes to the

problem of delay can be traced to difficulty with getting the likelihood of success in the

Housing Contractor agency to provide documentation of the community due to the

lease and utility expenses which is necessary to qualify for more additional source of

than the minimum SNAP benefit of $16 a month. In others, the support they have. . . .. It

problem seemed to be the availability of the class members is also the case that a poor

when they were contacted to confirm information provided to housemate match can add

the SNAP office. In a few cases, there was inconsistent or conflict, stress and anxiety

delayed follow-up by care managers who were to assist the class at a time when the class

member obtain the benefits. However, despite this problem, no member is dealing with a

class member was without food due to a lack of SNAP benefits.

significant change in life

Thirteen of the 28 class members in the sample experienced financial problems either due to delays in receiving their SSI payments following their change of address from the

circumstances, and can undermine the chance of success of the transition.

adult home, or due to the difficulty in budgeting and managing

their money. While none of these problems jeopardized their

housing, and Health Homes and Housing Contractors were quick to step in and assist in

overcoming potential problems, this is an area that requires proactive attention in the planning

process for transitions.

Eight of the class members in the sample experienced occasional problems with running out of their medications, not taking them as prescribed or issues with pharmacies/insurance coverage, but most of these were resolved reasonably promptly. Eight also had problems with keeping their appointments for mental health services. Most of these were remedied with the efforts of their care managers. Similarly, a few had problems with keeping medical appointments, sometimes due to issues with transportation to the appointments.

 BM**, a 74-year-old woman, had lived in an adult home for 11 years before moving to supported housing. She was generally happy in her apartment before a housemate, whom she had never met, moved in. From the time her apartment mate moved in around August 2016, all notes indicated constant issues between BM and her apartment mate. When she

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still had an HHA, the HHA complained that she couldn’t keep up with the mess that the apartment mate made (she refused her own HHA). The Housing Contractor case manager noted the problem and indicated that they were looking for another apartment for the house mate. But as of the date of a visit in mid-December, she was still there. Most notes by her therapist and her care coordinator are focused around her displeasure with her housemate who has caused her stress and anxiety. BM complained of her housemate being messy and dirty, making noise and using her belongings, including food and personal items. She had to clean up after her and cook for her. BM also told her therapist and care coordinator that she uses her household and personal items, eats her food and doesn’t chip in for them. There was also a mention that she hadn’t paid her portion of the utility bill. She stays up late and plays loud music. An August 24, 2016 care coordinator note indicated that the HHA and care coordinator had informed the Housing Contractor of these complaints on several occasions. There were very scant notes by the Housing Contractor case manager, not even meeting the minimum once a month requirement. However, because her care coordinator and her therapist were on top things, she has been able to manage the conflict.
 Another case illustrating issues with housemates is that of AA*, a 62-year-old man who had lived in an adult home for two years. Significant problems in area of housemates and housing have resulted in three apartments since transition, and then a return to the 2nd apartment a few days after the move to the 3rd, when according to his case manager, he saw a mouse.
Although he got along with his first roommate initially, and really loved the apartment, it soon developed into a conflictual relationship. On May 11, less than a month after they moved in together, it is reported that AA threatened his roommate with a 7inch knife and prevented him from using the stove. On June 20, AA reportedly struck him with a cane, which he said was in self-defense. During that conflict, the police were reportedly called twice and his roommate was taken to the psychiatric emergency room and released. Following this altercation AA moved to another apartment on the same day.
 BC**, a 51 year-old man, who moved out of the adult home where he had lived for 10 years, with his 67 year-old friend and roommate, had done fairly well, in large part due to the support of his roommate. However, the transition has had several challenges, including a recent psychiatric hospitalization due to non-compliance issues with his medication. In addition, he and his housemate have “chosen” to eat all of their meals out, do not shop, and had no food in the house at the time of the visit to their apartment. Neither of them have SNAP.BC was apparently denied SNAP soon after transition due to the lack of a utility bill, despite an SSI income of $773/month, and the application was apparently not pursued.
There were some problems noted with him managing his medication, which was addressed initially by visits from the SIBN agency nurse until she left the agency. He sometimes has run out of his psychotropic medications, which most likely contributed to him being put on injectable Haldol in September. Of note, he refused the injection in December. Despite his issues with medication compliance, BC always told both his housing case manager and his
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AH+ CM that he had sufficient medication and was taking it as prescribed. There were no contacts with his mental health provider to verify his reports. Also, as of December, BC was changed to regular case coordination, after the six month review found he no longer required the weekly visits of the AH+CM.
BC was hospitalized in January 2017, after reportedly running out of his Haldol, and then losing his rent check and his SS Benefits Debit Card. This caused him to go into an outburst during which he broke he broke most of the glassware in the apartment, and cut himself with shards of broken glass. His housemate called 911 and BC was taken for an evaluation which resulted in his admission to RUMC Medical to treat the cuts, and then to the Psychiatric Unit; he was discharged on 1/10/17. HH notes reveal that the Social Worker at RUMC relayed that EMS said that in addition to cutting himself, BC had attempted suicide by overdosing on Advil. In addition, he reportedly had seizures while in the Emergency Room.
Notes following his hospitalization reflect that his case manager and care coordinator have (finally) spoken to him and his housemate about shopping and preparing some of their own meals, rather than eating all of their meals out, which they reportedly agreed would save them money. In addition, BC was restored to AH+CM and the care coordinator said he applied for SNAP for BC on January 12, 2017 and that BC would be receiving a call.
 CMc*, a 54-year-old man who had lived at the adult home for five years, transitioned to supported housing on April 22, 2016. He experienced significant problems with his finances and access to mental health services for the first six months after transition. As of June, CMc was not receiving SSI funds. On occasions in June, CMc looked disheveled/dirty, in need of a shower/shave, and new clothes. He informed the AH+CM that he had no body wash or shampoo as he had no funds. The AH+CM took him shopping for needed items and gave him cash. ICL, the Housing Contractor, informed the care coordinator that the SSI funds should come in July. Wrap around funds continued to be used for needed items. A July 14th care coordinator note indicates the funds were received.
CMc never successfully followed through on appointments with mental health providers (to renew medications). Upon transition on April 22, 2016, he was to attend an NYPCC mental health program. He was seen on April 25, 2016 to begin the intake/screening process, but failed to keep most other appointments. He was sent a number of outreach letters advising him to call the clinic. NYPCC called the care coordinator on June 15, 2016 to advise him they were closing the case and left a message. A June 16, 2016 note indicates the care coordinator never called back. Also, he was deemed incapable of selfadministering medications and there were problems with securing/maintaining CHHA services. In the interim, according to a September 20, 2016 note by the care coordinator Supervisor, he stopped taking his medications. In a December 23, 2016 conference call, when the Independent Reviewer team member asked the Health Home and case management agency “didn’t anyone notice that he was out of medications or none had been renewed,” the Supervisor indicated that he never ran out, as he was not taking
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them! She also indicated that the agency had concerns about CM’s AH+CM in this case as well as others, and so they replaced him in September.
Overall, the fact that the plans for mental health, medication monitoring and aide services fell apart and remained unresolved for so long reflects a lack of coordinated efforts by all of the team members.
 RA* is a 59-year-old man who was born and raised in Puerto Rico. Spanish is his primary language. RA lived at an adult home for 13 years with his wife. RA has not had an easy transition. However, he remains in supported housing with a lot of support from his MLTC care coordinator, HHA, AH+CM, and case manager.
At the beginning of his transition there were serious problems with RA’s compliance with taking care of his diabetic needs. He needed assistance and on numerous occasions he would not be home at the scheduled time to receive his insulin shot, despite all parties involved discussing with him the importance of this. The services were also arranged around his schedule to come before he went to his program or out for the day, and in the evening when he got home from his program. Compounding the issue was that he would eat excessively (a whole chocolate cake, a gallon of milk), and on five occasions he started vomiting and feeling bad due to increased blood glucose levels, requiring him to go to the hospital. A July 13, 2016 note indicated that Elderserve and the AH+CM were so concerned about him being able to be stable in the apartment, there was a discussion about looking into a 24- hour supervised setting.
RA also often did not have a lot of food in the house because he would eat whatever was there quickly. Throughout most of the notes provided RA’s blood glucose level ran high even when he was compliant with taking his insulin, due to his eating habits. Later notes indicated that he was more compliant in assuring he was home when he needed to take his medication. It was mentioned that he still needed verbal prompting to be able to take his insulin and check his blood glucose levels. Follow up information provided his by case manager indicated that his blood glucose levels have been more under control and that he is more compliant with making sure he is available during the times he is assisted with taking his insulin injections and other medications.
RA was scheduled to attend a PROS program twice a week. Early in the transition he did not always attend regularly, and/or did not always participate. However, by July 2016, there were notes that he was regularly going to the program and attending groups (mostly Spanish speaking groups). He also attends a senior day care program three days a week.
Based on notes, it appears as though all the entities were communicating and ensuring proper follow up and care. There was a meeting with the housing contractor, MLTC, and AH+CM to discuss the issues of RA’s non-compliance with treatment and how they could continue to support him.
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E. Class members who left supported housing for another level of care
In addition to the two class members in our sample who did not leave the adult home, six others were discharged to supported housing, but later moved to a different level of care. 13
 TL*, a 76-year-old man who had spent 32 years in the adult home, moved to a supported apartment on June 23, 2016. On July 28, 2016, he suffered a fall in the bathroom of his apartment and injured his forehead. He was taken to Jamaica Hospital. After a short stay in rehab, he was discharged back to his apartment. While there, he informed his care coordinator that he no longer wanted to live in the community, and that he is a sick man. He said he wanted to go to a nursing home as he could not cook or take care of himself. He asked to see a doctor, as he was not feeling well, shaking a lot and drooling. He was taken to Queens General Hospital and admitted. He was later transferred to the Highland Care Center, a nursing home. He told his care coordinator on September 1, 2016, while he was at the Highland Care Center, that he did not wish to live in the community. He had thought he could handle it there on his own, but he cannot. He had called the adult home asking to go back, and they were willing to accept him. On the State’s Week 149 report, he is shown as having returned to the adult home after transition.
 LB***, a 62-year-old man who had been in an adult home for a year and a half, moved to a supported apartment on February 16, 2016. At the time of the pre-transition call, LB was noted to be independent and able to do for himself with no concerns about the move. While in the adult home, he received mental health treatment from the on-site contractor providing that service. He was reportedly not receiving any psychotropic medications and there appeared to be nothing in his history predictive of the subsequent events (while also noting that he was consistently found to be a poor historian and there were many missing details in his mental health history). Because he was receiving mental health treatment at the adult home with a private contractor, the mental health records were never reviewed and a psychiatric evaluation was never obtained from his treatment providers.14
On the day following his move, when his care coordinator accompanied him to Social Security, she noticed that LB was confused and disoriented and wearing the same clothing he had on the day of the move. She discussed this with him and he said “So, I did move,” and said he was “tired.” Despite this she did not arrange to accompany him to the mental health intake appointment he had the following day at 8:45 am., deciding instead to send a taxi for him. However, he did not go downstairs when the taxi called, and he failed the appointment. Later that day the care coordinator, housing case manager and agency nurse visited him at his apartment. The nurse did a MS assessment and found him to be confused and disoriented, not knowing the correct date or where he lived, or when he last ate. He still thought he was living at the adult home.
13 Two of them, TL* and RD*, returned to an adult home while this review was in process.
14 The difficulties of obtaining records from the psychiatric service providers at this adult home have previously been called to the attention of the Department of Health.
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He was taken to Staten Island University Hospital but not admitted and they were to send him home in an ambulette (which is not reflected in PSYCKES for that date). The next morning LB was found wandering in the streets, after spending the night in Brooklyn, by a couple of good Samaritans who contacted the care coordinator. One of them drove him back to his apartment, where his care coordinator and housing case manager were waiting. He was still wearing the same clothing as the day of his move, which he had soiled, and he appeared even more disoriented and confused than the previous day. He was taken to Richmond University Medical Center (RUMC) Comprehensive Psychiatric Emergency Program (CPEP) where he was admitted on February 19, and discharged on February 22, to ICL’s Stepping Stone Residence for respite. Upon discharge, he was noted to have neuro-cognitive deficits and was a risk to self or others, and needing a supervised program where he would not administer his own medications. He was eventually admitted to the ICL Stepping Stone Treatment Residence which is a community residence program with 24/7 staffing, providing long-term transitional housing and on-site services to 150 adults on five floors of 30 residents each. When visited at the residence and asked how he felt to be out of the adult home LB said, “I see no difference…I still don't cook for myself; and although I had a refrigerator and a hot plate in my room in the adult home, I do not have either of those here.” He did say he liked it better in the community residence than in the adult home, and felt he had more freedom.
Most notably, despite his rapid decompensation, and CPEP admission, LB was not connected with a mental health treatment provider by Stepping Stone or his AH+CM until June 2016.While the Residence notes stress that he needs to improve his ADL, it is unclear what actual training he is receiving. Review of the residence record and talking to his case manager reveals that LB is not currently making sufficient progress towards independent living. He remains there.
 EE*, a 34-year-old woman who had spent four years in an adult home, moved to supported housing on May 25, 2016. Prior to EE’s May 25, 2016 move it was planned that she would attend a Catholic Charities PROS program, that she and her AH+CM would visit SSA to change her SSI level/status (she was to be her own rep payee) and that CHHA services would be arranged by the care coordinator. She had been deemed capable of selfadministering medications and SNAP had been applied for in April.
What followed in the weeks and months after her move was a pattern of her refusing repeatedly to keep appointments that were necessary to arrange services and supports for her. She did not attend her PROS program and would not accompany the AH+CM to SSA to change her SSI status/level. The AH+CM would intervene with PROS to arrange new start dates which EE didn’t keep and began looking for other mental health programs. She also arranged follow up dates to take EE to SSA, which EE agreed to, but when the time came to go EE backed down. EE did accompany the AH+CM to a hospital to receive a monthly Haldol injection on 6/3. But she did not attend a 6/30 appointment with her primary care physician.
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More troubling, the Housing Contractor and care coordinator heard that neighbors and others were complaining about her behavior of begging for food or money, flagging down cars and soliciting sex. She reportedly had minors/neighborhood children in her apartment and was giving them alcohol in exchange for drugs. Although she was counseled about her inappropriate behaviors and safety issues, they continued. Her apartment was frequently described as being cluttered/dirty with garbage strewn about. Shortly after a hospitalization in July 2016 precipitated by an alleged break-in to her apartment, and her admission that she had stopped taking her medications and was abusing illegal drugs, her treatment team concluded that she needed a higher level of care because she could not make “cognitive decisions on what is right or wrong.” But there was no clarity about who would initiate an application to HRA for a higher level of care.
Following her discharge from the hospital, her pattern of noncompliance with recommendations of her care providers continued. In August 2016, a referral was made to Adult Protective Services regarding behaviors that endangered herself as well as the minors who were using her apartment. However, APS like her case managers and a Mobile Crisis Team, was unable to meet with her despite multiple attempts. EE had taken to spending nights in various hospital emergency rooms and shelters, and avoiding a return to her apartment, as she owed too much money to people who lived around the area. She would use borrowed cell phones to call her case managers and agreed to meet them in public places rather than her apartment.
In September 2016, the Housing Contractor agreed to move her to a different apartment, while counseling her against her resumption of the behaviors that made her first apartment uninhabitable. Despite her agreement, within the first week, her new apartment was described as being a mess, with urine and cigarette ashes on furniture, and clothing on floors throughout. She was also found engaging in sex outside the building, and the landlord was asking for her to be evicted. In a meeting with the Housing Contractor on September 13, 2016, she was given the choice of returning to her old apartment and she said she would rather live in a shelter. Despite being informed of the consequences of her choice, she voluntarily discharged herself and was taken by the Housing Contractor staff to the Woman’s Drop-in shelter in Brooklyn.
In this case, her Housing Contractor case manager, and the AH+CM made frequent visits and contacts with EE (far more than what was expected), maintained contact with each other and offered her much needed assistance (escorts to appointments, etc.). But she posed significant challenges (refusing assistance) and when the issue of an alternative level of care was raised in July, it is not clear why it was not acted on, or if all the parties agreed on who would act on it and when. In the end, she became homeless.
 JSC*** is a 70-year-old woman who had lived in an adult home for eight years. Her case appears to be a good example of “whatever could go wrong, did go wrong.” Despite the consistent involvement of her care coordinator with New Horizons and her housing case manager at TSI, many of the planned services were not delivered in a timely manner or were not delivered at all, including obtaining ID; SNAP benefits; Money; HHA and CHHAA services; mental health services; Day Program services; and transportation. 31

Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 32 of 99 PageID #: 1195
Also, complicating her transition was that she was to move in with DG, a good friend of hers from the adult home, which was viewed as a positive in increasing the likelihood of her making a successful transition to the community. However, at the time of her move on March 25, 2015, DG was hospitalized, where he remained until May 12, 2015. In effect, JSC lived alone for most of her first two months in the apartment, which was extremely difficult for her, especially without support services in place, given her inability to manage many of her ADLs independently (e.g., she did not shower for several days until she asked for help from her Housing Contractor to turn on the shower; unable to turn on the stove and trouble with the phone, etc.). Although not always documented in the record, in speaking with housing and care management staff, they attributed many of the delays and problems facilitating the delivery of support services to JSC’s refusal to accept them, or to keep appointments.
On June 25, 2015, three months after her transition, when the Housing Contractor case manager visited she was not wearing pants, and was emitting a strong body odor. When asked to get dressed she refused and became agitated. This resulted in the NYPD coming and taking her for psychiatric evaluation. She was subsequently admitted to Northshore LIJ Hospital, and later transferred to Highland Care Center Rehabilitation Center on July 1, 2015 for kidney problems; then to Kingsbrook Jewish Medical Center (KJMC) for psychiatric reasons on July 7, 2015, during which she was taken to court and was ordered to be treated over her objection to take medications and receive food. During August an NG tube was inserted to force nutrition. She was transferred back to Highland Care on September 10, 2015 and was discharged back to her apartment on October 1, 2015.
Following her discharge, she was assigned an AH+CM who arranged for HHA services for her, which started on October 7. Efforts were also made to get her ID and to refer her to a mental health provider, which were not successful. On December 7, 2015, her roommate reported to her care coordinator that she was taken to Northshore LIJ as she was “acting different than usual.” She was admitted on December 9th, with Abilify added to her regimen. Although scheduled for discharge on January 19, 2016, it was canceled and she was again taken to court for treatment over objection. On February 9, 2016 application was made for long term treatment at Creedmoor PC and she was transferred on March 18, 2016. She was discharged from TSI’s Supported Housing program on March 25, 2016.
When a member of the Independent Reviewer team met with JSC at Creedmoor PC during December 2016, she presented as a very thin and psychiatrically challenged individual, with poor personal hygiene and ADL. It was very difficult for her to answer questions, but she stayed focused on help to her get out of Creedmoor and move to her “own place.” She summarized the difficulties she had in supported housing saying, “I would have been alright if they would have left me alone.”
It should be stated that this was a very challenging and labor intensive case for both the Housing Contractor and the care coordination entities and included ongoing, consistent contact and attempts to address problem areas by those involved. Her housing case
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manager saw her at least weekly when she was not hospitalized, far more than the once a month required visit. Although she did not receive AH+CM until October 2015, she was visited regularly by her care coordinator or a peer, far more than the monthly visits required prior to the Adult Home Plus program being implemented. There were also a lot of collateral contacts between all involved entities.
 HR***, a 74-year-old man who had lived in an adult home for six years, moved back to the adult home within four days of transitioning. The notes from the Housing Contractor case manager indicated that during a home visit on July 22, 2016 (three days after the move) HR expressed concerns regarding missing his former roommate that he has known for 15 years. The original plan had been for his adult home roommate to move as well, but he changed his mind and did not move. Later that same day, the Nurse Care Manager witnessed HR at Parkview while she was there meeting with another class member. HR was meeting with the administrator and asking to return to the adult home. He told her that he does not feel good living in the community. He feels lonely and “doesn’t feel he can cope with managing himself.” The Elderserve note stated that “move lasted 4 days. He moved back in with his roommate. He stated he feels safe with peers and staff whom he feels comfortable with in the ACF.”
 RD*, a 64-year-old man who had lived in an adult home for four years, moved to supported housing with a roommate he had met once prior to moving in. Shortly after he moved from the adult home, he was admitted to a NYC hospital on April 27, 2016 and discharged on May 6, 2016 with acute renal failure, anemia with blood loss, atherosclerosis of the coronary artery, chronic kidney disease stage 3, renal failure syndrome, GERD and Gout. He was transferred to Promenade Nursing Home for rehabilitation apparently due to poor ambulation because of gout. He was discharged from Promenade Nursing Home on May 16, 2016 and returned to his supported apartment. Notes indicated that his care coordinator assisted him with making follow up appointments with various doctors. There was a therapist note on July 18, 2016 indicating that RD had expressed a desire to move back to the adult home because there were too many stressors at the apartment. He cited that the ceiling in the bathroom caved in, that he still had no landline (only a cell phone which he doesn’t like using), no television, no dentist or speech therapy appointments and his housemate had bedbugs which brought them into his room. He cited the bathroom ceiling as the last straw, and by his July 25, 2016 therapy appointment, he told his therapist he moved back to the adult home and that he feels safer there.
But, once at the adult home, he started having issues with his roommate and wanted to go back to the apartment. His therapist arranged a meeting with the Housing Contractor supervisor who reassured him he could return. He returned to the apartment on or about July 30, 2016. Therapy notes after that indicated that he was happy to be back at the apartment; however, he still had no landline or dentist appointment.
When visited by the Independent Reviewer team, he seemed to be doing relatively well. He enjoys living in his apartment, spends time with his mother and aunt, and is able to cook,
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shop and uses public transportation independently. He also is attending a social club, which he sought out on his own. He receives care coordination through Village Care and care management and mental health services through the Jewish Board. He sees a psychiatrist monthly and a therapist weekly. The last few notes from his Village Care care coordinator and therapist indicated that he is doing much better and has adjusted to living in his apartment.
However, there are a couple of lingering issues, including bed bugs and his inability to keep his bedroom clean and neat. The visit could not take place in his apartment due to bedbugs. A previous attempt to exterminate them was unsuccessful because his bedroom was “unlivable, dirty and unprepared for the exterminator.” It should be noted that the Housing Contractor case manager notes were very sparse. Unlike the housing records of other class members reviewed, this case manager did not meet the once a month face to face requirement.
Subsequently, Independent Reviewer staff learned that RD had moved out of his supported apartment and into an adult home on January 23, 2017, despite efforts by his AH+CM and case manager to offer him whatever supports he needed. His rationale for moving was that he did not feel he could take care of himself anymore and felt he needed to be in a more supervised setting.

V. In-Reach

The Settlement Agreement requires the State to arrange for the entities that provide

supported housing to conduct in-reach in the NYC Impacted adult homes on a regular and

continuing basis to provide information about the benefits of supported housing and discuss any

concerns that class members may have about moving to

supported housing. (Settlement Agreement, ¶ E. 1) It also requires that residents who decline an offer to move to supported hosing be offered the opportunity of additional in-

During the past year the numbers of class members

reach periodically but on no less than an annual basis. (Id. ¶ I. receiving in-reach at the 22

(2)) The Settlement Agreement identifies some strategies for effective in-reach, including conversations with persons who already live in supported housing, visits to apartments, and the

impacted adult homes has increased significantly.

use of photographs and virtual tours. There are also provisions

requiring adult homes to provide reasonable access of Housing Contractors to class members, and

requiring that they not discourage class members from meeting with the Housing Contractors. (Id.

¶ E. (3) (4))

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A. In-reach data

Class

Members

% of Total

Total IR

% of Total IR

IR'd

IR'd

Sessions

Sessions

Total Class members in-

reached

4,404

100%

9,901

100%

Class members with 1 IR

session

1,723

39.1%

1,723

17.4%

Class members with 2 IR

sessions

1,026

23.3%

2,052

20.7%

Class members with 3 IR

Sessions

878

19.9%

2,634

26.6%

Class members with 4 IR

sessions

515

11.7%

2,060

20.8%

Class members with 5 IR

sessions

181

4.1%

905

9.1%

Class members with 6 IR

sessions

53

1.2%

318

3.2%

Class members with 7 IR

sessions

19

0.4%

133

1.3%

Class members with 8 IR

sessions

6

0.1%

48

0.5%

Class members with 9 IR

sessions

2

0.05%

18

0.2%

Class members with 10 IR

sessions

1

0.02%

10

0.1%

Table 3. Distribution of 4,404 Class Members having in-reach, by number of in-reach

sessions and percent of totals

As of March 10, 2017, in-reach had been offered to 4,404 of the 3,906 class members,15 and 2,263, or 51% of individuals in-reached had said Yes. (See Fig. 3) Although the current rate of individuals saying Yes to in-reach (51%) is lower than that of the first year (60%), it is slightly higher than the rate of 46.8% reported in the Independent Reviewer’s Second Annual Report.

During the past year the numbers of class members receiving in-reach at the 22 impacted adult homes has increased significantly. (See Fig. 2) By March 10, 2017, most if not all of the class members had received in-reach at least once, most more than once. The 4,404 members inreached had received a total of 9,901 in-reach contacts; 61% had received in-reach at least twice and 38% had received three or more in-reach contacts. Nevertheless, the rate of class members

15 Due to admissions and discharges, the 3,906 is a snapshot in time and there are actually more class members in adult homes during the course of a year. See Table 1.
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expressing interest in transitioning remains at 51%. (See Fig 4.)

In Reach of Class Members

3,906

4,404

2,263

Total Class

In-reached Interested in SH

Figure 4. Class members expressing initial interest in supported housing

As reflected in our Second Annual Report (pp. 39-50), there appear to be a number of factors contributing to the low rate of interest in transitioning at the point of in-reach.

 First, the list of people placed on the “Fast Track” early on in the process (i.e., people expressing interest in moving even before or during the course of the Settlement Agreement) has essentially been exhausted; they have received in-reach.
 According to in-reach staff, many people who have lived in adult homes for many years report being “comfortable” there and fear the unknown of “supported housing.” Some residents also report confusion about what the transition will entail which fuels uncertainty about moving.

 Reportedly, some residents have been influenced by what they hear from adult home staff or other residents about individuals who have transitioned and have experienced problems, such as delays in SNAP or other benefits or needed services, or have returned to adult homes.

 Discouragement or other influence, subtle or otherwise, by adult home administrators or staff, was also cited by Housing Contractors who reported their access to individuals has been limited or has been confined to settings that are not conducive to private, uninterrupted conversations about transitioning. (It should be noted that the Settlement Agreement (¶ E. 4) notes “The State shall advise NYC Impacted adult homes that they may not interfere with the reasonable access of Housing Contractors to the NYC impacted adult homes and may not discourage NYC adult home residents from meeting with Housing Contractors.”
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 Instances of discouragement by family/guardians, as well as by therapists, were also reported by Housing Contractors. Some family members believe that their loved one would be "safer" in the adult home and find support from their relative's therapist, who may also question the individual's readiness for independent living.
In response to a request from the Court, during the past year the Independent Reviewer conducted a more focused review of issues relating to in-reach. Among other things this included observations of all Housing Contractors’ in-reach activities at 15 of the 22 homes, an attempt to examine in-reach staffing data related to vacancies and functions, and a review of actions taken on 18 complaints of discouragement filed with DOH.
The Independent Reviewer’s report was filed with the Court on September 27, 2016. However, due to the report’s inclusion of potentially personal identifying information of class members and other sensitive matters, it was filed under seal. A redacted summary of the report’s major findings and recommendations is presented in Appendix B. A summary of its major findings is presented in Section IV. C.
Class members' response to in-reach
4,404

2,263

1,987

120

30

4

In-reached

Interested Not Interested

Uncertain

Not Discussed Incomp. -language prob.

Figure 5. Class members’ response to In-Reach as of March 10, 2017

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B. Performance by Housing Contractors

Housing Contractor Phase I (4/1/14)
JBFCS I

Class per Total IR Members % of

Yes

%

3/22/17 CTL Contacts

IR'd Class

Yes

IR'd

461

1,619

630 137% 339

why

53.81%

Phase II (7/1/14) CommuniLife JBFCS II FOO ICL TSI

589

1,431

664 113% 317 47.74%

362

875

447 123% 213 47.65%

463

1,359

588 127% 318 54.08%

440

1,065

548 125% 294 53.65%

401

1,106

481 120% 210 43.66%

Phase III (4/27/15)

Pibly

282

835

399 141% 239 59.90%

SIBN

283

843

344 122% 195 56.69%

St. Joseph's

239

768

303 127% 138 45.54%

Table 4. Variable Performance of Housing Contractors as of March 10, 2017

The Independent Reviewer’s Second Annual Report discussed the uneven performance of Housing Contractors. At that time, weekly reports issued by the State presented data on individuals who had at least one in-reach contact; the data did not indicate the total number of in-reach contacts a class member had over time. However, using the percentage of individuals a Housing Contractor had in-reached in its assigned homes, one could make rough comparisons. As reported in the Second Annual Report, for example, ICL which had in-reached 77% of the class members in its assigned homes lagged behind the other four Housing Contractors which, with ICL, started inreach activities on July 1, 2014 as part of Phase II. Their in-reach rates ranged from 88% to 99%.

The State’s data reports now reflect the total number of in-reach contacts class members have had over time which allows for better comparisons of Housing Contractors’ performance. As indicated in Table 5, that performance varies.

As of March 10, 2017, JBFCS I has had the most in-reach contacts with 1,619 in-reach sessions, which is understandable as it started in-reach several months before other Housing Contractors. However, of the five Housing Contractors which commenced in-reach activities in
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Phase II, two (ComuniLife and FOO) outpaced the others. ComuniLife, for example, had 1,431 inreach contacts and FOO made 1,359 in-reach contacts, while ICL made 1,065.
Variability among Housing Contractors was also noted in the response to their in-reach efforts. As of March 10, 2017, 51% of class members said Yes to transitioning upon in-reach. Five Housing contractors – JBFCS I, FOO, ICL, Pibly and SIBN – had positive (i.e., Yes) response rates greater than 51% on average for the homes for which they are responsible, but three – ComuniLife, JBFCS II and St. Joseph’s had overall positive response rates of below 51%.
The variability is even more pronounced on an adult home level as indicated in Table 5. Some Housing Contractors with overall positive response rates of 51% or better have had positive response rates of below 51% at some of their homes. JBFCS I, for example, had a 61% positive response rate at Oceanview Manor, but only 47% of class members at Mermaid Manor said Yes upon in-reach. FOO had a 65% positive response rate at New Haven Manor but a 44% rate at Central Assisted Living.
On the other hand, Housing Contractors with overall positive response rates below 51% had better than 51% rates at some of their homes. ComuniLife, for example, with an overall Yes rate of 48% had a 57% positive response rate at Belle Harbor, but a 43% rate at New Gloria’s Manor. Neither St. Joseph’s nor TSI had positive response rates greater than 51% at homes they were responsible for.
It is unclear the extent to which either the Housing Contractors’ in-reach approaches/styles or adult home factors influence the variable rates to in-reach.
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Housing

Adult Home

Class per Total IR In-

Said

Contractor

3.22.17CTL Contacts reached Yes

as of

3/10/17

Yes %

CommuniLife Belle Harbor

112

262

137

78 57%

CommuniLife New Gloria Manor

126

330

141

60 43%

CommuniLife Park Inn Home

170

398

183

88 48%

CommuniLife Surfside Manor

181

441

203

91 45%

Central Assisted

147

401

186

81

FOO

Living

44%

FOO

New Haven Manor

108

303

143

93 65%

FOO

Seaview Manor

111

333

131

68 52%

FOO

Wavecrest HFA

97

322

128

76 59%

ICL

Brooklyn ACC

160

499

222

135 61%

ICL

Queens ACC

280

566

326

159 49%

JBFCS I

Mermaid Manor

170

499

212

100 47%

JBFCS I

Oceanview Manor

118

471

182

111 61%

JBFCS I

Surf Manor

173

649

236

128 54%

JBFCS II

Garden of Eden

176

432

206

68 33%

JBFCS II

Kings ACC

186

443

241

145 60%

Pibly

Parkview HFA

124

411

142

72 51%

Riverdale Manor

158

424

257

167

Pibly

HFA

65%

SIBN

Lakeside

176

549

214

113 53%

Mariner's

107

294

130

82

SIBN

Residence

63%

St. Joseph's Harbor Terrace

239

768

303

138 46%

Elm York Assisted

213

546

261

107

TSI

Living

41%

TSI

Sanford Home

188

560

220

103 47%

Table 5. In-reach & Transitions by Housing Contractor as of March 10, 2017

Transitions 8 5 12 8
5 18 11 14 33 27 18 27 34 26 29 14
62 28
11 44
27 25

C. A review of in-reach related matters in 2016
As previously mentioned, in response to a request from the Court, during 2016 the Independent Reviewer conducted a more focused review of issues relating to in-reach. Due to confidentiality of class members’ personal information, the Independent Reviewer’s September 2016 report to the Court was filed under seal. A redacted summary of the report’s major findings and recommendations is presented in Appendix B. Generally, however, among other things the
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review revealed:
 Less than conducive conditions provided by adult homes for in-reach staff to meet with residents and discuss transition opportunities, as well as adult homes limiting in-reach staff’s access to class members;
 Inability on the part of in-reach staff to provide meaningful information to class members concerning reasonable questions they have about transition;
 Language obstacles which impeded effective in-reach;
 Problems with in-reach staffing and the effective use of peers; and
 Ongoing problems of subtle and blatant discouragement of class members by adult home staff.

VI. Assessments

The Settlement Agreement sets forth a schedule that within four years of its execution (July

23, 2013), at least 2,500 class members shall be assessed by Health Homes or MLTCPs and, if

appropriate under a person-centered care plan developed pursuant to ¶ G, transitioned from NYC

Impacted adult homes. Within five years of the execution, all

class members shall be assessed by Health Homes or MLTCPs pursuant to ¶ F and, if appropriate under a person-centered care

Problems persist in the

plan, transitioned from NYC Impacted adult homes. (Settlement

assessment process. There

Agreement, ¶ I)

remain significant and

The purpose of a comprehensive assessment is to determine the person’s housing and service needs and preferences for the purpose of transitioning from an adult home.

growing delays in completing assessments. There are
noteworthy changes in the

(Settlement Agreement, ¶ F (1) (2)) There is a presumption in

outcomes/recommendations

the Settlement Agreement that class members can live in, and

of the assessment process

will be considered appropriate for supported housing if desired by the resident, unless the assessment discloses a disqualifying condition. (Id. (4) (5)) If the assessment concludes that a class

which warrant further scrutiny and explanation.

member is not appropriate for supported housing, it must

specify the reason and the class member must be provided the opportunity to live in the most

integrated setting desired that is appropriate to his or her needs. (Id. (7))

As discussed in the Independent Review’s first two annual reports, the assessment phase of the transition process has been plagued by problems resulting in delays of individuals desiring to move from their adult homes to actually transitioning out. Over time, the State has taken a number
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of steps to address this issue, including augmenting the types of required psychiatric records that could be included/considered in the assessment process, expanding the types (and thus the number) of licensed clinicians who could conduct components of the assessment process and, most recently on July 1, 2016, vesting assessment responsibilities, which previously had been spread across a multitude of Health Homes and MLTCPs, in one entity: Transitional Services of New York, Inc. (TSI). Also in 2016, the State instituted a practice of offering the opportunity for assessment to class members who said No or were Uncertain about transitioning so that they would have an understanding of the housing and service options available to them if they decided to transition.
While Independent Reviewer staff’s observations of TSI assessments have been positive overall, based on data reported in the State’s Weekly Report 156 ending March 10, 2017, there appears to be room for improvement which may prove necessary to meet the Settlement Agreement goal of achieving 2,500 assessments by July 23, 2017.
A. Continuing delays in the assessment process
As indicated in Table 6 (below), the number of class members willing to move who are in the assessment phase of transition has grown from 449 in July 2015 to 811 as of March 10, 2017.16 The median number of days in the assessment phase from the point of saying Yes at in-reach to the point of completion of assessment (as indicated by the distribution of a final Adult Home Resident Assessment Report – AHRAR) has grown from 79 to 269. Nearly 59% percent of the people in the assessment phase as of March 10, 2017 have been there for more than six months compared to 32.7% in July 2015.
16 Notes about cases in assessment process: On July 1, 2015 and March 11, 2016, this number was calculated by taking the number of people who said Yes at in-reach and were referred for assessment but who did not have a final AHRAR distributed and who had not died or were not discharged outside the transition process. By December 30, 2016, certain changes had been made to the State’s weekly reports. The column indicating date of referral for assessment was eliminated, replaced by a column for date of referral to TSI, which did not include all referrals for assessment. TSI was also conducting assessments of people who did not express an interest in moving but were willing to be assessed. However, the revised weekly data reports did indicate whether the individual was in the assessment phase (eliminating those who had died or were discharged in some other fashion). The number of cases in the assessment process on March 10, 2017 was calculated by taking the number of people who said Yes at in-reach and were listed as being in the assessment phase in Weekly Report 156 ending March 10, 2017. It does not include the 59 individuals who said No or were Undecided about moving at in-reach and were referred to TSI for assessment after July 1, 2016. Nor does it include 92 cases which, according to the Weekly Report, were in the assessment phase but also had final AHRARs distributed, indicating that assessments had been completed. It is unclear what the status of these individuals was as of March 10, 2017, so they were excluded from the analysis.
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7/1/2015

Cases in Assessment Process

449

Range of Days in Assessment

0-470

from In-reach

Median # of Days in Assessment

79

% of Cases in Assessment more

32.70%

than Six months

Table 6. Delays in Completing Assessments

3/11/2016 683 0-695
87 27.70%

3/10/2017 811 1-969
269 58.5%

It is not clear the extent to which the transition of assessment responsibilities to TSI contributed to the increasing delays in the assessment process. On and following July 1, 2016, when TSI assumed responsibility for assessments, it inherited a sizable assessment backlog of 771 class members who had said Yes at in-reach prior to July 1, 2016, some having said Yes at inreach as early as 2014. There was also an understandable lull in completing assessments (as indicated by a finalized AHRAR) following July 1, 2016 as TSI began and started to ramp up its operations. (Figure 6.)

Completed Assessments 1/16-2/17

150 123
93

78

76

65

3

96 82
54 24

108
86 76

Figure 6. Rate of Completed Assessments by Month: January 2106 – February 2017
The contract with TSI creates a two-pronged approach to the work of completing assessments. For new referrals for assessments, the expectation is that the assessment will be completed within 45 days of the referral. At the same time, the assessors will work on clearing up the accumulated backlog within six months of commencement of work under the contract. With a limited number of assessors and a deadline for completing new referrals, the effect has been that class members in the backlog witness newer referrals progressing through the assessment process,
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while they continue with their prolonged wait for the same service. Many report feeling disheartened by the continued delays.
B. Changes in assessment recommendations/outcomes
As of March 10, 2017, 1,667 class members had final AHRARs which listed housing and service recommendations/outcomes.
It should be noted that cumulative data as of March 10, 2017 provided by the State, indicate that 1,891 class members have had at least one assessment. However, for a variety of reasons (e.g., a change in clinical situation, such as a hospitalization; delays in, hesitation, or a change in mind about moving coupled with expired HRA approvals for transition; etc.), a number of these individuals require re-assessment, and recommendations/outcomes about their initial assessments are not presented in the State’s weekly data reports. The 1,667 figure referenced above represents those individuals who have been assessed and have not been referred back for further assessment. The recommendations/outcomes of their final AHRARs are the basis for this discussion.
As illustrated in Table 7, there have been some noteworthy changes in the outcomes or recommendations of assessments over the years – changes which warrant scrutiny and explanation. Some of these changes appear to be particularly acute since TSI commenced operations in July 2016.
 The recommendation that an individual remain in an adult home constitutes 1.5% of all recommendations overall. However, in 2016 it constituted 2.8% of recommendations. It should be noted that following TSI’s assumption of assessment responsibilities, the percentage of recommendations to remain in an adult home dropped to 1.3%.
 At the same time, however, recommendations for Level II OMH Housing (Apartment Treatment, Congregate Treatment and CR-SRO) have grown from 0.5% in 2014, to 4.4% in 2015, to 8.8% in 2016, and to 11.2% in 2017. They constituted 13.6% of the recommendations made during the first eight months of TSI’s operations (July 1, 2016 through February 28, 2017). It should be noted that the Settlement Agreement does not specifically require the State to create additional capacity in these types of housing options to accommodate class members, and a relatively small number of those who have been recommended for Level II have actually been placed in such housing. Of the 102 individuals who as of March 10, 2017 had been approved by HRA for OMH Level II Housing, 18 (18%) have transitioned to such. Three (3%) died and six (6%) were discharged from the adult home in a manner outside the transition process.
 Recommendations for supported housing as a percentage of all recommendations have steadily decreased from a high of 72.2% in 2014 to 44.4% in 2017. Since TSI has assumed assessment responsibility, recommendations for supported housing constituted only 37.5% of the assessment outcomes. Given the strong presumption in the Settlement Agreement about the qualification of class members for supported housing, and the potential to provide a wide variety of Medicaid funded support services to the class, this is a matter of significant concern. 44

Case 1:13-cv-04165-NGG-ST Document 102 Filed 04/03/17 Page 45 of 99 PageID #: 1208

AHRAR Recs/Outcomes
Adult Home Apartment Treatment Congregate Treatment
CR-SRO Declined Assessment Declined Transition Discharged prior to Assessment Housing other than SH17
No SMI
OASAS
OPWDD
Senior Housing
Supported Housing Undecided

20142016 # 1667
25 13 25 77 398 64 7 2 127 12 2 5 909 1

20142016 % 100%
1.5% 0.8% 1.5% 4.6% 23.9% 3.8% 0.4% 0.1% 7.6% 0.7% 0.1% 0.3% 54.5% 0.1%

2014# 187
1 34 7 4 6
135

2014% 100%
0.5% 18.2% 3.7% 2.1% 3.2%
72.2%

2015# 479
2
9 12 74 23 1 1 23
334

2015% 2016#

100% 794

0.4%

22

12

1.9%

7

2.5%

51

15.4% 226

4.8%

34

0.2%

2

0.2%

1

4.8%

80

8

1

1

69.7% 348

1

2016% 2017#

100% 207

2.8%

1

1.5%

1

0.9%

8

6.4% 14

28.5% 64

4.3%

0.3%

0.1%

10.1% 18

1.0%

4

0.1%

1

0.1%

4

43.8% 92

0.1%

Table 7. Number and Percentage Distribution of Final AHRAR Recommendations/Outcomes

by Years

2017% 100% 0.5% 0.5% 3.9% 6.8% 30.9%
8.7% 1.9% 0.5% 1.9% 44.4%

 The percentage of cases in which it is determined that the individual does not have a SMI has increased from 3.2% in 2014 to 8.7% in 2017; 12.9% of assessments finalized after TSI’s takeover of the assessment process indicated the individual was not SMI.

 There has also been an increase in final AHRAR’s with the outcome of “declined assessment” from 18.2% in 2014 to 30.9% in 2017. Since TSI assumed operations, 31.3% of final AHRARs were “declined assessment.” It does not appear that this is due to TSI attempting to assess individuals who said No or were Uncertain about moving at in-reach, a process which began in 2016. Of the 172 cases after July 1, 2016 where the individual “declined assessment,” the majority, 130 (76%), had expressed interest in moving at inreach; only 42 (24%) had said No or were Uncertain about moving at the time of in-reach.

17 Notes in the Week 156 report indicate that one of these individuals wanted to live in something “other than supported housing.” In the second case, the recommendation was “Fountain House” an agency which offers a variety of OMH and other housing options.
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11/1/15 - 11/1/15 - Pre TSI Pre TSI

Post Post TSI

2/28/17# 2/28/17% 11/1/15- 11/1/15-

TSI

7/1/16-

6/30/16# 6/30/16% 7/1/16- 2/28/17%

2/28/17#

AHRAR

1,120

100%

600

100%

520

100%

Recs/Outcomes

Adult Home

23

2.1%

16

2.7%

7

1.3%

Apartment Treatment

13

1.2%

4

0.7%

9

1.7%

Congregate Treatment

16

1.4%

5

0.8%

11

2.1%

CR-SRO

67

6.0%

16

2.7%

51

9.8%

Declined Assessment

311

27.8%

148

24.7%

163

31.3%

Declined Transition

41

3.7%

41

6.8%

Discharged prior to

2

0.2%

2

0.3%

Assessment

Housing other than SH18

1

0.1%

1

0.2%

No SMI

104

9.3%

37

6.2%

67

12.9%

OASAS

12

1.1%

1

0.2%

11

2.1%

OPWDD

2

0.2%

2

0.4%

Senior Housing

4

0.4%

4

0.8%

Supported Housing

523

46.7%

328

54.7%

195

37.5%

Undecided

1

0.1%

1

0.2%

Table 8. Number and Percentage Distribution of Final AHRAR Recommendations/Outcomes in the

Eight Months Pre and Post TSI

In weekly data reports submitted by the State, people who have declined assessments have been reported as having completed assessments. There has not been much discussion about this practice, especially as they were relatively few in number in the early stages of implementation, and there seemed to be plenty of time to get to the 2,500 assessments required by year four. Now, as these declined assessments account for nearly one-quarter of all assessments, and 31.3% of the completed assessments since TSI took over, a more critical analysis is needed about how to account for them. One of the purposes of the clinical assessment was to identify whether the class member met one of the disqualifying conditions laid out in the Settlement Agreement. (§F (5)) If the assessment cannot be performed, that purpose is not being achieved and the “completed" assessment has no substantive content at all. At the same time, however, if the person does not participate in the assessment process, it would not be possible for the assessment to determine “the

18 Notes in the Week 156 report indicate that one of these individuals wanted to live in something “other than supported housing.” In the second case, the recommendation was “Fountain House” an agency which offers a variety of OMH and other housing options.
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housing and service needs and preferences of the NYC Adult Home Resident for purposes of transitioning from the NYC Impacted Adult Home.” (§F (2)) As of March 10, 2107, of the 1,667 individuals with completed AHRARs, the outcome/recommendation for 398 (23.9%) was declined assessment.
C. TSI assessment observations

Independent Reviewer staff had the opportunity to observe 10 assessments conducted by

the three full-time and two part-time TSI assessors. (As of November 28, 2016 according to DOH,

TSI had four full-time assessors, two part-time assessors and

Overall, Independent

two per-diem assessors.) – although in slightly different fashions: some went through the tool question-by-question,

Reviewer staff were

A-to-Z, while others asked very open ended questions which

impressed with what they observed: the assessors

opened the door for conversations about issues covered by the tool and then returned to certain items with specific follow-up questions; and in a number of cases, the assessor was also

were courteous and kind

joined by the individual’s HH/MLTCP care

toward the individuals they met with; they spent

coordinator/manager – someone with whom the individual was familiar - which aided in the assessment process.

anywhere from one to two or more hours with the individual, allowing the
individual to ask questions or take a break if they so

During the assessment observations, some issues arose which have been shared with TSI. Assessors reported difficulty in obtaining information from the mental health contractor for Mariners and Lakeside adult homes on Staten Island, which are owned by the same operators. This issue has previously been called to the attention of DOH.

desired; it appeared they

Some assessors worked part-time, in the evenings or

covered all the items in the Community Mental Health

on weekends. While this is very convenient for the individual being assessed given his/her schedule, it often precludes care coordinator/managers who work a more typical 9-5 day from

Assessment tool

participating in the assessment. TSI and the assessors,

however, reported that in such situations they usually confer

with the care coordinator/manager prior to or after the

assessment. At a Housing Contractors’ Supervisors meeting on January 9, 2017, TSI announced

that they had revised their assessor staffing pattern, eliminating part-time assessors in favor of full-

time assessors. At that time, it was reported they had four full time assessors, one per-diem and

were in the process of hiring an additional full time assessor.

Although all assessors indicated that the training they received prior to beginning their work was very good, a couple expressed the need for additional, refresher or more “hands-on…in-

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the-field” training. As one person put it, “Once one finishes the training, you think you know it, understand it, but then you start actually doing the assessments and all these other questions come up which one didn’t anticipate.” The assessors, however, did indicate that TSI supervisory staff have an open door policy and they are free to consult with them on any problems or issues. Supervisory staff also reported accompanying people in the field to observe and offer assistance in the assessment process.
If, as reported by the State in cumulative data, 1,891 class members have had at least one assessment as of March 10, 2017 an additional 609 individuals need to be assessed in order to meet the benchmark of 2,500 assessments by July 23, 2017, approximately four and a half months from March 10, 2017. This equates to about 135 assessments per month. In the previous four and a half months (October 24, 2016- March 10, 2017), TSI completed 396 assessments, about 88 per month on average. Undoubtedly, TSI will have to continue to monitor and revise if necessary its staffing patterns and pay close attention to the training needs of assessors if more are hired. This does not address the other requirement of the Settlement Agreement that as of July 23, 2017, all class members assessed and found appropriate under a person-centered care plan developed pursuant to ¶ G, be transitioned from NYC Impacted Adult Homes.
D. Persons recommended for Level II housing
As noted earlier, the percentage of assessments resulting in recommendations for Level II OMH Housing (Apartment Treatment, Congregate Treatment and CR-SRO) has been growing, particularly since July 2016 when TSI assumed responsibility for the assessment function. To better understand the reasons for such recommendations, in November the Independent Reviewer’s team requested records for a sample of 10 of the 27 assessments completed between July 1, 2016 and November 28, 2016 which resulted in Level II OMH housing recommendations. The records requested and reviewed included the final AHRARs, the CMHAs, comprehensive psychiatric evaluations or psychosocial histories and notes from Level II calls, which are calls made before AHRARs with such recommendations are finalized. The calls involve OMH and DOH representatives, the assessor and staff from the housing and HH/MLTCP agencies.
The Settlement Agreement (¶F.5) requires that the assessment process begin with the presumption that residents can live in supported housing and that a resident will be considered appropriate for supported housing, if desired by the resident, unless the assessment discloses that the resident:
 Has significant dementia;  Would be a danger to self or others in supported housing even if receiving the
services currently available and provided under the New York State Medicaid program;  Needs skilled nursing care that cannot be provided outside of a nursing home or hospital; or
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 Needs a type and/or frequency and duration of service on an ongoing and sustained basis in order to live in supported housing that is not available under the New York State Medicaid program, unless another public (e.g., Medicare) or private (e.g., Meals on Wheels) program will pay for or provide the needed service, the individual is eligible for the program, and the program is available to the individual.
If upon assessment an individual is found ineligible for supported housing, the assessor indicates which of the four exclusionary criteria apply by checking a box on the AHRAR; the assessor also provides a narrative explanation of the evidence supporting ineligibility for supported housing.
In two of the 10 cases recommended for Level II OMH housing examined by the Independent Reviewer, the reason why that recommendation was made was not because they met one of the four exclusionary criteria, but rather because the individuals requested to live in OMH Level II housing.19 The case of GR is an example.
 GR is a 61-year-old man diagnosed with Schizophrenia, paranoid type. He had lived in the adult home for about a year and prior to that for six months in a State Psychiatric Center. The AHRAR and the CMHA indicated that GR requested to live in an Apartment Treatment program and that during the assessment he was provided with education about the wrap around services available to him in supported housing so that he could make an informed decision. However, he indicated that he believed he would be more comfortable residing with roommates, being visited by staff more often and work on independent living skills before moving into supported housing. Specifically, he cited his need for assistance with cooking – he was not confident he could cook for himself - and cleaning. He also requested assistance with money management and medications. He had never lived on his own. According to the AHRAR, prior to living in the adult home, preceded by a six month stay in a psychiatric hospital, he lived with his family his whole life and they took care of him.20
It would appear that the needs identified by GR could have been met in supported housing. And while respecting his preference for Level II housing, one could well question if his choice might have been different had he received additional education by in-reach workers and peers about supported housing and the services available such as home health aides, PCWs, etc...
19 As discussed above, when a recommendation for something other than supported housing is made based on the exclusionary criteria, the AHRAR requires the assessor to identify the exclusionary criteria met. However, if the reason behind the recommendation is the person’s preference for something other than supported housing (and not ineligibility based on the exclusionary criteria), such must also be noted and explained on the AHRAR.
20 When GR’s case was reviewed by HRA, it approved him for both Level II and supported housing, thus opening the door to options beyond the assessor’s recommendation. In fact, the broader options created by the HRA approval resulted in his moving to supported housing, notwithstanding the assessment recommendation for a Level II placement.
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Dangerousness is the most frequently cited criteria in
determining a person’s ineligibility for supported housing. . . . However, in
our review of the eight sample cases, it was not
always clear if the dangerousness criterion
was met.

A closer look at the State’s weekly data indicates that in 18 of the 96 cases recommended for Level II OMH housing as of December 30, 2016 (19%), exclusionary criteria were not cited as the reason; the person was not found ineligible for supported housing. It appears the recommendations were based on the individuals’ preference, like in the case of GR.
In the eight other cases examined by the Independent Reviewer, the recommendation for Level II OMH housing was based on exclusionary criteria making the person ineligible for supported housing. In all eight cases, the dangerousness criteria was cited, i.e., the person would be a danger to self or others in supported housing even if receiving the services currently available provided under the New York State Medicaid program.

Dangerousness is the most frequently cited criteria in determining a person’s ineligibility for supported housing. As of December 30, 2016, of the 96 cases recommended for Level II OMH housing, exclusionary criteria were cited in 87. In 67 cases (77%), the dangerousness criteria was cited; in 11 cases (13%), the need for a type and/or frequency and duration of service to live in supported housing that is not available under the Medicaid program was cited as the reason. In no cases were the criteria pertaining to dementia or the need for skilled nursing care cited. Dangerousness was cited as the reason in all 36 cases found to be ineligible for supported housing since TSI commenced operations in July 2016.

However, in our review of the eight sample cases, it was not always clear if the dangerousness criterion was met. None of the individuals was homicidal or suicidal at the time of the assessment.21 Additionally, in most cases, the CMHAs completed by the assessor noted no recent (within the past year) episodes of harm to self or others. Several case examples are illustrative.
21 In a response to a draft of this report, the State writes:
This is an overstatement of the criteria. . . . We have found situations and behaviors which are dangerous to self and others (e.g. fire setting). Homicidal and suicidal situations require a call to 911 and evaluation for hospitalization there are also instances in which class member is unable to advocate for themselves which can lead to harm to that class member.
The point of these case examples is to highlight the challenge of specifying the basis for a determination of dangerousness. Using an inability to advocate for oneself as a standard for dangerousness would be an extraordinarily broad interpretation of this criterion, especially since it can be addressed by the provision of adequate supports in supported housing.
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 DB is a 52-year old woman diagnosed with Paranoid Schizophrenia and for the past eight years has resided in shelters and an adult home. According to the AHRAR, DB is actively psychotic at baseline and has very limited to no insight into her mental illness. She is delusional and paranoid: she feels like she is being persecuted by the government and has been wrongly diagnosed as having schizophrenia. She reported she feels staff are trying to kill her by giving her medications - especially insulin (she believes it is poison). DB stated she feels she does not need to take medications; she has a history of non-adherence and has been on Assisted Outpatient Treatment in the past, but is now adherent with medications, as they are supervised by adult home staff.
According to the AHRAR, DB has had unprovoked incidents regarding staff and other residents, most recently in July 2016 when she threw her walker at an aide. This event was also noted in her CMHA which added that police had to be called and she was examined at a local hospital and released. The CMHA, one of the few of the eight to note any recent events of harm to self or others, also noted that she screams and yells at adult home nursing staff on nearly a daily basis when they attempt to administer her insulin.

Some individuals were actively psychotic at the time of assessment or had not lived independently for
many years and consequently needed a high level of staff assistance on a daily basis. But does this constitute dangerousness,
or does it constitute the need for services which
may or may not be available through supported housing? The AHRARs and supporting documents did not directly

The AHRAR concludes that given her history of non-

address the question.

adherence with medication and need for ongoing

supervision for medication adherence, DB would benefit

from placement in a CR/SRO. Such placement is also recommended as she has no informal

supports, is unable to appropriately advocate for herself, and needs to learn basic living

skills and psychoeducation.

 TB is a 72-year-old man diagnosed with Schizophrenia who has lived in adult homes since 1993.

According to the AHRAR: “Class member presents as actively psychotic at baseline. Class member presents with disorganized thought process which interferes with his concentration, organization, and overall ability to manage his illness and take his medications. Class member relies on the support of the adult home staff to remain adherent. He also requires reminders for mealtime. He has been residing in adult homes for over 20 years. Class member would benefit from an environment where his medications are supervised, where he receives ongoing psychoeducation about his mental illness and symptoms to improve insight, and ongoing aide service to assist with ADLs. He is unable to advocate for himself and requires trained MH staff to assist in training on
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appropriate behaviors, socialization skills, and basic living skills to transition to more independent living.”
According to TB’s CMHA, there have been no recent events of harm to self or others; the CMHA does note an arrest for Robbery in 1963.
 SM is a 48-year-old man diagnosed with Schizophrenia. He lived in an adult home for approximately ten years.
According to the AHRAR: “Class member is recommended for Apartment Treatment Program. Class member has resided at Lakeside Manor for ten years and reported living with his mother for seven. Class member has not lived independently for almost twenty years. Resident has a long history of substance use and one suicide attempt. Class member reported consuming alcohol and smoking marijuana in the last thirty days. Class member is diagnosed with the following medical conditions: NIDDM, HTN, obesity, BPH, AFIB, GERD, constipation, joint pain, history of foot cellulitis, COPD and anxiety. Class member does not have any social supports and minimal time spent living independently.
According to the CMHA completed on SM, there have been no recent events of harm to self or others. The one suicide attempt referenced above occurred approximately 20 years ago. The CMHA also notes that he is independent or requires minimal assistance in most functional areas.
Notes from a September 1, 2016 Level II call for SM indicate that an OMH representative stated that it was “a stretch to say that he was a danger to self or others” based on available information. However, a DOH representative on the call stated that “during care planning meetings if team believes he is progressing and appropriate for supported housing they can request a reassessment at that time.” The AHRAR recommending Apartment Treatment placement was finalized within several days.
 HT is a 66-year-old man diagnosed with Schizophrenia. He has resided in his current adult home for about 10 years and before that in another adult home for 10 years. During his assessment he was noted to be appropriately dressed and groomed, oriented in all four spheres and forthcoming and compliant. His CMHA indicates no episodes of harm to self or others and that he is independent or requires minimal assistance in ADLs.
The AHRAR, however, states: “Class member is recommended for a community residence due to his lack of independent living skills. Resident has been domiciled at (the adult home) since July 13, 2006 and reported living in another adult home for approximately ten years. Class member also reported a history of homelessness since the age of 21. Class member reported a long history of substance use beginning in his early 20’s and stated he is actively using. Class member reported the use of crack cocaine, marijuana and consuming alcohol. HT stated he consumes alcohol on a weekly basis. He enjoys drinking a beer while riding the Staten Island Ferry. Class member stated the last time he smoked crack was approximately four months ago. Class member stated he does not know what causes his
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usage and denied being under any stress. Class member stated his longest period of abstinence is his current four months.”
As noted previously, the Settlement Agreement does not specifically provide for the creation of Level II OMH beds, which are already at a premium, for class members and relatively few class members recommended for Level II have been transitioned to the community. Of the 102 class members approved by HRA for Level II-Only as of March 10, 2017, 18 have transitioned directly to Level II housing, 10 since March 11, 2016. As such, care must be taken to ensure that this is the most appropriate recommendation to make at the time of assessment.
For cases where such a recommendation is being considered based on the individuals’ preference rather than one of the exclusionary criteria, efforts should be redoubled to ensure that the individual receives all the necessary information about supported housing and available supports therein so as to make an informed decision.22

For those cases where recommendations for Level II OMH housing are being
made because the individual is assessed to be
ineligible for supported housing, closer scrutiny
needs to be paid by assessors and those involved in Level II calls
concerning the exclusionary criteria upon which the determination is
being made.

For those cases where recommendations for Level II OMH housing are being made because the individual is assessed to be ineligible for supported housing, closer scrutiny needs to be paid by assessors and those involved in Level II calls concerning the exclusionary criteria upon which the determination is being made. Is there evidence to support the dangerousness criteria and if so, what is it? Or, as opposed to dangerousness, does the evidence suggest the need for many or intense supports and services? If so, which of these cannot be provided in supported housing, thus warranting a recommendation for Level II OMH housing? What assurance is there that such services will be provided in the Level II program? And, recognizing that Level II housing is temporary and time-limited, what is the plan to prepare the class member for supported housing? These questions should be directly addressed in final AHRARs.

22 In its response to a draft of this report, the State commented:
The State takes its guidance from the Olmstead case and Title II of the Americans with Disabilities Act which state that there is no requirement that community-based treatment be imposed on patients who do not desire it: "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." (Citation omitted)
The Independent Reviewer did not suggest or recommend imposition of a decision upon a class member; rather the provision of sufficient information, including the availability of Level II placements to accommodate an expressed preference, to make an informed choice.
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E. HRA review of housing recommendations
Of the 900 applications approved by HRA as of March 10, 2017, 798 (89%) were approved for Community Care (supported housing) and Level II and 102 (11%) for Level II-Only, or other than supported housing. To date, 18 class members have been transitioned directly to Level II housing, 10 since March 11, 2016.
As reported in the Independent Reviewer’s Second Annual Report, as of March 11, 2016, HRA had differed with the Assessor’s opinion in five of the 57 cases (9%) approved for Level II, when supported housing had been recommended. (Second Annual Report, p. 67) This marked a decrease from 21%, as noted in the Independent Reviewer’s First Annual Report. (First Annual Report p.42) The number and percentage of cases in which HRA differed with the recommendation of supported housing has decreased even further during the current reporting period.
In two of the 72 cases (3%) that HRA approved for Level II from March 11, 2016 to March 10, 2017, the Assessor had recommended Supported Apartment, but HRA approved the resident for Level II-Only. HRA maintained that information that it had received during the application process, often in the psychiatric evaluation or UAS/CMHA, led to a determination that the resident would not be safe in supported housing. The following examples of reasons provided by HRA in these two instances which countered the Assessor’s recommendation are illustrative.
 Reason in the case of WA: Client has at least 10 psychiatric hospitalizations in the last 3 years. 27 ER visits for mental health reasons in five years. History of fire setting. UAS states client requires supervision.
 Reason in the case of JST: Two psychiatric hospitalizations within the last three years. Psychiatric evaluation was from recent hospital admission, which was prompted by client punching roommate in the face. Client believes that she is 22 weeks pregnant with multiple visits despite no medical evidence to support statement. Delusional about cancer diagnosis.
Cases wherein the HRA disagrees with the Assessor’s recommendation for supported housing are reviewed in telephone conversations between the State and HRA representatives designed to reconcile the differences, as was the case in each of the above examples.
In three examples provided by HRA where the Assessor has recommended Level II placement, all between October and December 2016, HRA determined that the individual was qualified for Community Care and Level II, as indicated below:
 Reason in the case of RP, which was discussed in Section IV B, above: Clinical information didn't support the exclusion of community care. History of 20
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hospitalizations and none within last eight years. Maintained on medications. (AHRAR noted: “Client is apprehensive about living on her own. Client indicated that they would like to be in a structured environment.”)
 Reason in the case of HP: Client may prefer and be more successful with more support, but there are no reasons provided to indicate she would be dangerous to herself/others if placed in supportive mental health housing with supports that do not include on-site care. Able to maintain appointments and fair control with current medications. (AHRAR noted: “Per client's request, level II 24 hr. residence is recommended. Client reports being unable to cook and manage medication. Will not move unless in a level II facility.”
 Reason in the case of GR: There is no documentation of any behavioral issues to preclude considering Community Care housing. Client currently engaged in treatment. Per Psychiatric evaluation client appears confused regarding housing and request appears to be similar to that of an adult home. (AHRAR noted: “Client requested level II. Client has never lived on their own, and resided with family that assisted with cooking, etc. Client would like apartment treatment and then consider moving to more independent setting, and would like more staff contact.)23
It was clear in each of these cases from the comments in the AHRARs, that although there was no indication that the individual met the criteria for exclusion from supported housing, the recommendation was made because of the class member’s preference. HRA noted “clients who are approved for Community Care and Level II housing can be referred to Level II only housing programs at the discretion of the provider. In each of these cases Community Care was granted due to no clinical indication for a Level II only determination.”
F. Persons determined not to have a Serious Mental Illness
As noted in the foregoing, there has been an increase in the percentage of cases in which assessments of class member resulted in the determination that they do not have a serious mental illness. The determination of whether or not an individual has a serious mental illness is a clinical judgment which, when made by a qualified professional, is entitled to a level of deference. However, to better understand how such determinations are being made in these cases, the Independent Reviewer and team engaged in conversations with DOH and TSI. We also reviewed the final AHRARs and supporting documents (e.g., Community Mental Health Assessments – CMHAs, PSYKES Clinical Summaries, etc.) used by assessors in making their determinations in 10 of the 30 assessments conducted by TSI between July 1, 2016 and November 18, 2016 that resulted in the determination of non-SMI.
The Settlement Agreement (¶ C. 5) defines a person with serious mental illness as an
23 GR moved to supported housing.
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“individual who meets criteria established by the Commissioner of Mental Health, which shall be persons who have a designated diagnosis of mental illness under the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (but not a primary diagnosis of alcohol or drug disorders, organic brain syndromes, developmental disabilities or social conditions) and whose severity and duration of mental illness results in substantial functional disability.”
Further, it indicates that an individual is presumed to have a substantial functional disability as a result of mental illness if the individual received treatment from a mental health services provider operated, licensed or funded by OMH within the 24 months preceding the date on which this Agreement was “so ordered” by the Court, unless the assessing entity determines, based on information which the assessing entity shall document, that the individual’s mental illness has not resulted in a substantial functional disability.24
In determining members of the class, the State casts a wide net. On a quarterly basis, adult homes submit a roster of residents to DOH. On it they must indicate whether or not the individual has a serious mental illness. Additionally, the State runs the roster of residents against Medicaid billing data to determine if any individual, regardless of what the adult home indicated on the roster, had Medicaid claims for behavioral health services. If the individual was either 1) identified by the adult home as having SMI or 2) had a Medicaid claim for even one behavioral health service, the individual is considered a class member and placed on the Community Transition List (CTL) for in-reach, assessment, etc. The CTL identifies the source(s) of the SMI related information: the adult home roster, Medicaid claims data or both.25
According to TSI staff, assessors avail themselves of all relevant information to arrive at the determination as to whether or not an individual is SMI. In addition to meeting and interviewing the individual, assessors review PSYCKES data; interview adult home and/or care management staff; and secure and review adult home records (e.g. medication records, transfer sheets or medical evaluations which list diagnoses, etc.) as well as records from current mental health providers.
They also complete a Community Mental Health Assessment (CMHA) which, among other things, probes an individual’s functional abilities and limitations. As reported by TSI, a sustained (12 month) disruption in any one of the array of living/self-care skills would amount to a
24 The Settlement Agreement also indicates that a substantial functional disability can be presumed in certain cases based on information concerning the individual’s SSI/SSDI status shared between the Social Security Administration and the State, pursuant to an agreement to share data, unless the assessing entity determines, based on information which the assessing entity shall document, that the individual’s mental illness has not resulted in a substantial functional disability.
25 The CTL indicated that in nine of the 10 cases reviewed by the Independent Reviewer it was Medicaid claims data, not information provided by the adult home, which resulted in the individual being placed on the CTL. In one case, both the adult home and Medicaid claim indicated the person received behavioral health services.
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substantial functional disability. If this were the result of a DSM-V diagnosis not excluded by the Settlement Agreement, the individual would be considered SMI.
TSI staff, however, indicated that there are occasions when a CMHA may not be completed, such as when an individual claims they have never been treated for mental illness and the claim is supported by staff, other records, etc.
If TSI determines that an individual is not SMI, it records the determination and provides a narrative explanation for the determination on an AHRAR which is submitted to DOH for review. Documents secured and reviewed by TSI in formulating the determination are not submitted to DOH.26
Review of 10 Sample Cases
In a majority of the cases reviewed, the assessor’s AHRAR determination of non-SMI appeared to be well considered and supported by documents TSI secured. For example, in four cases the primary problem/diagnosis was substance abuse-related which is excluded from the definition of SMI. In other cases, individuals had behavioral health diagnoses, such as major depression, but such was not the cause of substantial functional disability. For example:
 RH became depressed following a stroke in 2000 which left him confined to a wheelchair. Prior to the stroke he was employed and lived independently. Currently, he requires assistance in daily living but this is due to the stroke, post-stroke right hemiparesis and resulting mobility and self-care difficulties.
 JT’s record of psychiatric treatment began upon admission to the adult home. Billing data indicated he was treated for major depression and has been prescribed an anti-depressant in the past. Currently he is not on any psychoactive medications. The completed CMHA indicated no substantial functional disability.
In two cases, however, it was not clear whether or not the individual is SMI based on the documents reviewed.
 The AHRAR for JA indicates that he denied having a psychiatric diagnosis or ever being prescribed psychotropic medications. It notes that he had a brain aneurysm, was diagnosed with Presenile Dementia in 2011, has memory difficulties and has gotten lost in the
26 According to DOH, supporting documents are not required for non-SMI cases as such cases are not submitted for HRA review/approval. The purpose of reviewing supporting documents in other cases is to ensure that the entire package which will go to HRA is comprehensive and cohesive. If a case is not going to HRA, the AHRAR is reviewed to check for completeness and comprehensiveness. The reviewer will also check that the documentation on the AHRAR reflects a thorough assessment and may reach out to TSI with any questions and may request more information if necessary.
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community. It concludes: “Based on (JA’s) diagnosis of brain aneurysm (Subarachnoid hemorrhage) approx. thirty years ago, his self-reports of not have a SMI and his Dementia diagnosis, as well as assessment supporting symptoms of these disorders, he does not meet the criteria as a class member. He does not have a substantial functional disability as a result of serious mental illness.” However, supporting documents in the case indicate that JA attends an OMH certified continuing day treatment program almost daily; has an Axis I diagnosis of Depression due to another medical condition and Bipolar disorder; and that he is prescribed Lithium and Seroquel. The CMHA completed in this case indicates he requires assistance and/or supervision in several areas of daily living, e.g., shopping, transportation, medications, etc.
In this case, it is not clear if the Dementia and the brain aneurysm of years ago are considered an Organic Brain Syndrome (excluded as an SMI by the Settlement Agreement) or what weight was given to his diagnoses of Depression and Bipolar disorder, medications for such and regular attendance at a day program. Nor is it clear whether the limitations in functional abilities documented on the CMHA rise to the level of substantial.27
 The AHRAR for TBA reports his diagnoses of Unspecified Depressive Disorder and Antisocial Personality Disorder (in 2014) and Adjustment Disorder (in 2015). It reports he is not currently enrolled in mental health services and is not on psychotropic medications. The assessor recorded: “During encounter resident appeared alert, cooperative, and oriented x3. He denied any history of psychiatric hospitalization or perceptual disturbances and did not appear to be in acute distress during encounter. He has been residing in the adult home following medical treatment. He does not present with any symptoms that would impair his day to day functioning. Resident does not have a substantial functional disability as a result of a serious mental illness. He does not meet the criteria as a class member.”
27 In its response to a draft of this report, the State asserts:
there are several instances in the Draft Report in which the assessors’ judgments are challenged despite their training and the data gathered and reviewed in order to make such a judgment. Again, the Olmstead decision supports the "reasonable assessments" of professionals in the determination of whether an individual meets the eligibility requirements.
As this report makes clear, the Independent Reviewer recognizes the deference owed to the considered clinical judgment of a qualified professional. These case histories are presented for two reasons: 1) to illustrate the need for greater clarification about what constitutes a serious mental illness under the Settlement Agreement, particularly when there is both a mental health diagnosis and a non-mental health diagnosis which may affect functional limitations; and 2) to support the need for review of the underlying documents in cases where the individual was determined not to have a serious mental illness within the meaning of the Settlement Agreement to evaluate the reasonableness of the conclusion.
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These cases suggest the need for more clarity about the diagnosis of dementia:
is it an Organic Brain Syndrome, and how should
it be considered in the presence of other
psychiatric diagnoses, such as Depression? Clarity as
to what constitutes a substantial functional disability also seems to be warranted, as does better guidance for assessors about when to complete a CMHA, and in its entirety

However, adult home records secured by TSI indicate he carries diagnoses of Depression NOS and Dementia, and is being treated with Celexa. Although the assessor reported that the resident did not present with any symptoms that would impair his day-to-day functioning, many of the sections pertaining to daily living skills in the CMHA completed in this case were left blank, as were many of the other CMHA sections.
These cases suggest the need for more clarity about the diagnosis of dementia: is it an Organic Brain Syndrome, and how should it be considered in the presence of other psychiatric diagnoses, such as Depression? Clarity as to what constitutes a substantial functional disability also seems to be warranted, as does better guidance for assessors about when to complete a CMHA, and in its entirety, as a tool for documenting individuals’ functional abilities and disabilities. Finally, given the gravity of the determination that an individual is not a class member, DOH should consider whether assessors should submit supporting documents for review at the time they submit AHRARs for non-SMI cases.
VII. HRA Review and Unable to Complete Cases

Prior to the Settlement Agreement, HRA handled roughly 22,500 applications for housing arising out of mental health sectors and the NY/NY agreement. Major referral sources are psychiatric hospitals, shelters and correctional facilities. Many applicants are repeat HRA customers and their prior applications/histories are retained by HRA and reviewed as part of the process of reviewing a current application. According to HRA representatives, applications are reviewed and generally turned around within 1-3 business days.
In anticipation of the Settlement Agreement, in mid-2013, HRA and DOH/OMH began discussions on the role of HRA in the Settlement Agreement process. Consistent with the State’s work plan, HRA developed a streamlined application process, specifically to be used when applying for housing for the adult home residents included in the Settlement Agreement. HRA participated in DOH/OMH training sessions for partners in the Settlement Agreement initiative and training was initiated and is ongoing for those responsible for completing the HRA application.

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As discussed in the Assessment section, above,

effective July 1, 2016, DOH contracted with TSI-NY to be the sole assessment entity in the adult home initiative. In place of the UAS-NY nursing assessment, TSI-NY assessors would use the Community Mental Health Assessment (CMHA), which

The need for case reviews and discussions with DOH had been greatly reduced

was found to be more applicable to the adult home class due to the vastly improved

members being assessed. In anticipation of the change, HRA Administrative and Supervisory staff met with TSI-NY representatives on the use of the CMHA. The instrument was

consistency, quantity and quality of the information

reviewed with particular attention to those areas that would

being provided in the

require the assessors to provide comments and further details on hospitalizations, harm to self or others, alcohol & substance

assessments.

abuse, etc. In speaking with the Assistant Deputy

Commissioner and the Director of Supportive Housing for HRA in January 2017, they were very

positive about the changes and said that the new assessment process was running very smoothly.

They said the need for case reviews and discussions with DOH had been greatly reduced due to the

vastly improved consistency, quantity and quality of the information being provided in the

assessments. They did caution that although the new assessment process started July 1, 2016, it

took several months for the impact of the new process to be felt, as many of the old assessments

were still coming in.

Once a complete assessment package has been approved by DOH, the Health Home’s Care Coordinating agency submits an application to HRA for approval, whereas previously this was done by the assessing entity. An application package to HRA currently includes an abbreviated HRA application, the finalized AHRAR, the CMHA and a comprehensive psychiatric evaluation or a psychosocial history assessment (psychosocial) in lieu of a comprehensive psychiatric evaluation, which was initiated in the summer of 2015. Applications are approved for Community Care (i.e., supported housing) and Level II, or Level II housing only. Level II Housing refers to other types of OMH Housing, including Community Residence-Single Room Occupancy (CR/SRO); Congregate Treatment; and Apartment Treatment.

In view of the delays that had been experienced in transitioning many of the class members, OMH approached HRA about increasing the duration of the HRA approval from six months, which is standard for the HRA application, to one year, in order to allow additional time for the transition process to be completed. According to a DOH FAQ, effective February 24, 2016, all new HRA approvals in the Impacted Adult Home Initiative are for a one year period, and all HRA approvals in effect at that time were extended to one year. The increase in the approval period was granted because HRA was informed that as a result of close monitoring of the class member’s clinical status, they could be assured that an individual at high risk would not be

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transitioned to independent living. While extensions are generally not granted, HRA representatives stated that if there is a move date or a placement in mind, exceptions can be made.
The median length of time from submission to HRA to approval is two days. It should be noted that in the initial stages of implementation, the median length of time for HRA approval was seven days. However, as previously reported, in August 2014, DOH expanded its quality assurance reviews of AHRARs (and supporting documents) from 10% to 100% prior to submission by assessing entities to HRA, which has continued and affected the improved results
At times, the HRA classifies applications as “Unable to Complete” (UTC) due to insufficient or inconsistent information or other reasons, and the applying entity is informed of this so it can rectify the situation. As of March 10, 2016, 955 applications had been submitted to HRA of which 900 (94%) were approved and 55 (6%) were classified as UTC, a slight decrease from the 7% noted in the Independent Reviewer’s Second Annual Report (p. 65). Thirteen of these 55 will forever remain on the UTC list because the class members have died (4) or are non-transitional discharges (9) of people who left the adult home to live on their own or with family, went to an inpatient psychiatric or rehabilitation facility, or other disposition. Removing these class members from the count reduces the UTC cases to 42 or 4%.28
In addition, updated information we received from DOH during March 2017 indicated that six of the class members designated UTC, had refused to be reassessed or otherwise indicated that they were no longer interested in transitioning at this time (including one Guardian on a class member’s behalf). For these six, it was a median of 86 days, or roughly three months, from the date their HRA application was submitted and found UTC to the date they declined transition or refused re-assessment. This is in addition to the many months that they had been waiting since they said yes to in-reach. it is unclear what role, if any, the delay in the application process played in their eventual decision.
This left 36 cases of class members who were still interested in transitioning but were UTC as of March 10, 2017. The median number of days that the 36 cases had been UTC was 198 days.
Below is a summary of the reason for the HRA determination of UTC (and a definition of terms), the number of cases and the median length of time cases have been in each category as of March 10, 2017.
28 Of the non-transitional discharges, two had subsequently been approved by HRA for Level II placements with agencies not involved in this initiative.
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Determination Reason Missing/Incomplete Supporting Docs. Requested Additional Information Assessment Discrepancy Axis I Unsubstantiated Timeline of Assessments Totals
Table 9. Reasons for UTC status

Applications 9 11 3 8 5 36

Median # of Days 60 83 358 321 91 198

Determination Reasons Defined

Missing/Incomplete Supporting Documentation: Incomplete/missing sections of AHRAR, UAS and/or other clinical documents. Missing required forms such as AHRAR, Psychosocial and/or UAS, or CMHA, for some assessments completed after July 1, 2016.
Requested Additional Information: More information is needed in order to make a determination, such as fire setting/arson behavior, detailed description of violent behavior, or recent psychiatric hospitalization.
Assessment Discrepancy: The level of housing recommended in the clinical documentation (i.e. psychiatric evaluation, UAS, AHRAR or psychosocial) is inconsistent.
Axis I Unsubstantiated: More information needed to substantiate the psychiatric diagnosis in the clinical assessment.
Timeline of Assessments: Date of completion for the AHRAR doesn't include the most recent significant clinical event to inform an appropriate recommendation for the level of supportive housing.
During March 2017 DOH provided the Independent Reviewer with the current status of those cases that were UTC as March 10, 2017. Of the 36 cases under review:
 19 Awaiting TSI assessment;  17 HRA applications to be re-submitted due to needing additional information or to
resolve discrepancies and other concerns.
Of the 19 class members who are waiting for TSI assessment, as of March 10, 2017, they have been UTC for a Median of 343 days. This includes 17 who were UTC prior to the TSI Assessment process started on July 1st. The other 17 class members have HRA applications that are currently being prepared to be resubmitted after they address HRA’s concerns. The median length of time they have been UTC is 44 days as of March 10, 2017; in most instances the applications were missing information related to psychiatric history. This data is reflective of the long wait to be assessed for those that have been in the backlog, as discussed in the Assessment section, Given the much shorter length of time that cases that do not currently require reassessment
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are UTC, it is possible that once the backlog is addressed, the length of time that it takes to address these issues will be reduced.
HRA often requested additional information related to their psychiatric history, which was not provided. Some have been waiting more than a year since their application was submitted.
 LO - HRA application was submitted on October 30, 2015. It was found to be UTC on November 4, 2015 as the Axis I Diagnosis was unsubstantiated, apparently due to an incomplete CPE. HRA was requesting more details on prior psychiatric history, including suicidal/homicidal ideation or intent. No further submissions to HRA occurred since that date.
 SR – HRA application was submitted on November 18, 2015 and was UTC due to Missing/Incomplete Supporting documentation. In several contacts, HRA, requested missing pages and information from the CPE; and then found the UAS to be incomplete. This case was removed from the UTC list as the class member is back in the assessment queue.
 ALH- This class member said yes to in-reach during November 2014. She was assessed during December and her HRA application was submitted on April 27, 2015. It was found UTC due to an assessment discrepancy, as more information was needed on the supervised level of housing from the psychiatrist. This information was never provided and the class member refused transition on August 28, 2015, four months after the HRA application was submitted.
 EG – This class member said yes to in-reach during June 2015 and was assessed during July. Her HRA application was submitted in August 2015, and she was recommended for Level II. Her application was UTC for Missing/Incomplete Supporting Documentation for 507 days. HRA stated: “Please review AHRAR Community Housing recommendation and resubmit.” EG was reassessed by TSI on December 12, 2016 with a recommendation for Supported Housing and the AHRAR was distributed on January 6, 2017. The HRA finally approved her transition in February.
HRA provides monthly half-day training to those completing the HRA application, including those new to the Adult Home Plus initiative. During the training the Director of Supportive Housing for HRA speaks specifically about the Impacted Adult Home applications and provides context to the process, which differs from the information provided to other referral sources. Since the Independent Reviewer’s Second Annual Report issued in March 2016, through December 2016, HRA has conducted eight training sessions for 78 staff. The data suggests that after the agency completing the application submits it to HRA and receives the determination of UTC, along with the rationale, there are still significant delays in addressing these concerns. The need still exists for the State to redouble its quality assurance review efforts to remedy cases that
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have lingered in the UTC category for unacceptable periods of time, especially when reassessments are required, and to limit the number of cases referred to HRA with missing, inconsistent, outdated or otherwise flawed application packages.
VIII. Person-Centered Care Planning Process
The person-centered planning process and the expectations of Housing Contractor, MLTC and Health Home staff have been described in detail in the Second Annual Report (pp. 86-88) and do not require repetition.
In monitoring person-centered care planning activities, as mentioned earlier the Independent Reviewer and associates followed up on a sample of 28 individuals who had transitioned or were scheduled to transition, visiting with them in their homes; reviewing care plans, support plans and progress notes; and interviewing staff. The Independent Review team also participated in 75 transition calls and 56 post-transition calls and 15 “Level II” calls; and met with all Housing Contractors and at least scores of HH/MLTCP care manager/coordinators in the course of meetings, trainings and other activities.
A. Ongoing problems in person-centered care planning
These review activities suggested ongoing problems with care planning and delivery of needed services, as were reported in the Independent Reviewer’s prior annual reports. (First Annual Report, pp. 47-53; Second Annual Report, pp. 70-73)
1. Delays in the delivery of services
As discussed earlier, a majority of the individuals who were included in the sample the Independent Reviewer followed up on experienced problems with the design and implementation of care plans and thus experienced delays in the receipt of benefits and services including SNAP benefits, government IDs necessary for a range of community services, and Health Home, MLTCP and/or CHHA services. Seventeen experienced problems with the timeliness and adequacy of SNAP benefits, sometime for several months after their transitions. Thirteen had problems with the finances, in obtaining their SSI funds, dealing with changes in representative payee status and in managing their money. Fourteen experienced problems with timely provision of HHA, CHHA or PCW service.
2. Need for improved communication among class members and those providing supports
Individuals in the sample of class members the Independent Reviewer followed up on reported feeling supported by case managers and care coordinators. Also, the records of these
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individuals reflected frequent and regular communication among the individuals and those providing support by the Housing Contractor and HH/MLTCPs.
While this may be the case for most of the individuals we followed, it wasn’t always the case.
 GP*, a 73-year-old class member who was discussed above in Section IV C, was generally well supported by her Housing Contractor case manager and health home care coordinator. But neither of them ever made contact with her mental health provider. Their records indicate that she was generally compliant with her medical and psychiatric treatment as they were unaware that she had canceled five of her nine appointments with her therapist.
The Independent Reviewer’s team also continues to meet class members who don’t know who their care managers are, who don’t know where they stand in the transition process and are seeking information, guidance and advice. In-reach workers who are in adult homes weekly if not more frequently are often beset by individuals who’ve said Yes to moving and are now inquiring about their status in the process. However, as opposed to a year ago when Housing Contractor staff reported difficulty in contacting HH/MLTCP care managers to even schedule a care planning meeting, they voiced less of a problem in that regard now. In fact, often when class members approach them with questions, they are able to link the individual with their care coordinator or call the care coordinator directly about the individual’s status, which we observed happening during our in-reach visits. In part this may be the result of the growth of the Adult Home Plus Care Management (AH+CM) initiative, which increased the number of care managers and significantly reduced their caseloads. Whereas in the past care coordinators had caseloads of 75 or more class members, under AH+ the care coordinator to class member ratio is 1:12. And AH+ CMs are expected to maintain weekly contact with class members. Undoubtedly this helps facilitate communication among the key parties. However, only 867 of the 2,263 class members who have said Yes at in-reach have AH+CM care managers and reportedly there is a high turn-over rate among AH+CMs. There has also been difficulty recruiting AH+CMs on Staten Island leading to the reassignment of some class members to different care management agencies.
3. Need for more robust care planning and training in person centered planning
As reported in the Independent Reviewer’s prior annual reports, HH/MLTCPs have a variety of templates for developing care plans. Most of these, however, focus on health and safety issues, much like the State’s discharge planning tool; issues such as food, shelter, medical/mental health services, emergency contacts, etc. These are all vitally important issues, to be sure. But they do not address the totality of a person’s life, their desires, life dreams, things they would like to accomplish upon transitioning from an adult home, or more fundamentally how they would like to spend their days once they leave an adult home. Few HH/MLTCP care plan templates address issues such as vocational, educational, spiritual, social, community/civic interests/needs which
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round out the total individual and complement his or her health and safety needs. Robust care planning that enables individuals to envision a satisfying and fulfilling life in the community and that offers the prospect of fulfilling life goals and ambitions is also an important part of maintaining the motivation for change from the status quo.
As a result of discussions last year between the Independent Reviewer and the State, the DOH entered into a partnership with the New York Association of Psychiatric Rehabilitation Services, Inc. to provide training in 2016 for AH+ care managers on recovery and person-centered care. Five sessions were offered for front line care managers and supervisors. Topics included among other things: developing recovery-based relationships, person-centered care and recovery language, cultural competency, successful engagement practices, wellness recovery action planning, trauma informed care, and employment and economic self-sufficiency. A sixth session was offered just for supervisors dealing with supervisory issues.
At least 20 care management agencies participated in the first five sessions and attendance at each ranged from 55 to 82 care managers/supervisors. Twenty-four supervisors from 15 agencies attended the sixth session.
Independent Reviewer staff attended most of the sessions, and were impressed by the quality of the presentations. Unfortunately, not all care managers were required to attend and it appears the training will not be offered again, although slides and materials presented at the sessions are available on the DOH website. The ongoing turnover in care coordinators also reduced the impact of the training provided, and despite this considerable effort by the State and its contractor, the Independent Reviewer staff continue to encounter skimpy and superficial plans all too often. During our site visits and conversations with class members, several told members of the Independent Reviewer team of their desire to work, pursue education, volunteer or work on a hobby. Almost invariably, they had not told their case managers or care coordinators of these interests, although they see them much more frequently. This suggests to us that the PCP process is not probing sufficiently to elicit information about such interests.
Several cases are illustrative.
 The care plan developed by RM* ’s Health Home care management agency identified only one goal relating to his maintenance of health which was to be accomplished by his keeping appointments with health providers, which was to be monitored by his care coordinator, and by his care coordinator assisting him with scheduling transportation for medical appointments.
 JSP* informed Independent Reviewer staff at the time of his interview, five months after his transition, that he would like to be engaged in volunteer work “to give back to the community.” However, neither his care plan developed by his Health Home nor the support plan developed by his Housing Contractor addressed the issue.
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 TD’s Health Home care plan addressed less than a handful of issues: maintaining her health, keeping mental health appointments, maintaining housing by paying her rent and securing necessary transition-related documents (e.g., birth certificate and IDs).
 When ML* was interviewed six months after his transition, he informed Independent Reviewer staff that he would like to learn to read and write better. His Housing Contractor worker who was present during the interview was unaware of this, and the care plan developed by his Health Home care manager addressed only health and housing needs.
 AA*’s Health Home care plan addressed his clinical and ADL needs, but it did not address his socialization needs. He reported to Independent Reviewer staff that he felt lonely. In his tenure in supported housing he had roommates who wanted to keep to themselves, he reported, and did not want to do anything. He indicated that he would like to watch sports with others.
It should be noted that while the care plans developed for these individuals did not address issues such as socialization, educational and employment/volunteer needs and interests, in two cases care management notes indicated that some of these needs and interests were being addressed to some degree. In JSP*’s case, notes indicate that the topic of doing volunteer work had been discussed with him on occasions and that he reported he is “not ready yet.” In AA’s case, progress notes indicated that staff have suggested that he become involved in a clubhouse program to address his socialization needs, but he declined. That such occurred seemed to be due more to happenstance as it wasn’t part of the person-center care plan designed for the individual.
Although they too are to be person-centered, support plans developed by Housing Contracts within 30 days of the class member moving into supported housing also tend not to address the total person. For example, in JSP’s case, discussed above, the goals of his support plan are essentially that he pay his rent on time, keep his apartment clean and keep his scheduled mental health appointments. Support plans developed for TD** and ML* were also rather anemic. In TD’s case, the one goal of her support plan was to improve her health by keeping all appointments, with housing staff monitoring to ensure health related needs are being addressed and providing services to alleviate any fears or anxieties should they arise, which could cause her health to fail. In ML’s case, the single goal of the support plan pertained to helping him deal with stress and learning coping skills for such.
There also appeared to be variability among support plans developed by Housing Contractors. In contrast to the support plans cited above, there is RM*’s. The support plan developed by his Housing Contractor appeared to be even more comprehensive than the care plan developed by his Health Home, which had only one goal pertaining to health maintenance. RM’s support plan included items such as assisting him in learning how to use the U.S Mail and addressing envelopes; banking and the use of ATMs; preparing grocery shopping lists and going shopping; refilling medications seven days before they ran out; engaging in community
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recreational events, with staff providing him listings of free events on a regular basis and also helping him choose and budget for events that are not free, such as movies.

As in prior annual reports, the Independent Reviewer

In JSM*’s case, between the care plan developed by his Health Home and the Housing Contractor’s support plan, an array of needs and interests were identified beyond basic health and safety matters. Among other things, the plans addressed his becoming familiar with businesses in his new community which he could use; budgeting, not just to pay rent and utilities, but to have sufficient funds for leisure time pursuits; engaging in peer support groups and community activities; exploring tobacco cessation options; and obtaining his driver’s license so he can drive, which he used to do in the past.

again repeats his call for a uniform care planning
template which addresses the major life domains of an individual, both critical life and safety matters and,
equally as important, matters that make one’s
life whole, such as

Addressing the totality of the individual should not be left to chance. It is also suggested that this uniform template, completed jointly by both the HH/MLTCP and the Housing Contractor, could serve as the care plan and support plan that

vocational, educational, spiritual, social and
community/civic interests

currently each is required to maintain separately. As important

and needs.

as, and even more important than having a template is the

scrutiny of the adequacy of care planning in addressing these

essential dimensions of life during the pre-transition and post-transition calls that are convened by

DOH & OMH staff.

IX. Need for Formal Quality Assurance Mechanisms
The Independent Reviewer’s Second Annual Report discussed the fact that individuals who transitioned from adult homes sometimes experience crises which jeopardize their continued stay in supported housing. As we noted there, such experiences in supported housing should not be regarded as failures. With the strong presumption in the Settlement Agreement that virtually all class members are qualified for supported housing, it is not unexpected that the presumption proves incorrect in some cases. It is also foreseeable that persons who have a serious mental illness, like other serious illnesses, will experience periods when their illness requires hospitalization or a higher degree of support than can be provided in supported housing. These events are a source of further learning about how to best support class members with intensive needs in the community. For this reason, the Independent Reviewer has repeatedly recommended that such occurrences be seized and capitalized on as learning opportunities about how to support individuals with intensive needs.
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Our most recent review of sample cases, exemplified by the following three, reinforces our continued belief in the need for clearly articulated Quality Assurance Review expectations and mechanisms. The three cases were previously discussed in more detail in Section IV. E (Class members who left supported housing for another level of care.)
 LB was the individual discussed at pp.29-30 who decompensated within 24-48 hours upon transition, was examined and released from an emergency room, then found wandering around and in need of assistance by passersby the next day, subsequently psychiatrically hospitalized and then transferred to Level II housing. This incident was reported to DOH by the Health Home which, with its downstream care management agency, conducted a review resulting in a plan of correction. The review did not probe nor speculate about the sudden and severe onset of mental status changes within 24-48 hours following transition. However, it did identify issues of concern including the fact that care management agency staff, although available 24/7, did not follow up to ensure LB ’s safe return to his residence the evening of his first ER visit and only learned about his need for assistance through the intervention of a passerby who found him wandering the next morning. It also identified concerns about whether or not LB was properly cleared/approved to self-administer his own medications and whether or not he needed services from a Certified Health Home Agency (CHHA). Although not directly related to this incident, the review also raised concerns about AH+ care managers carrying mixed caseloads (which included non-class members) and the manner in which care management services were transferred from one agency to another when LB was moved into a CR/SRO in a different borough.
Quality Assurance reviews, however, were not conducted in the following two cases.
 EE was the woman discussed at pp. 30-31who upon transition resisted attempts by her care coordinator and others to engage her in needed services and soon became involved in inappropriate and dangerous behaviors, was hospitalized where a recommendation for a higher level of care was made, which no one acted upon, was released from the hospital, continued engaging in inappropriate and dangerous behaviors and subsequently became homeless.
 JSC, discussed at pp. 31-32, was the 70-year-old woman whose services planned at the time of transition never came to fruition. She spent most of her tenure in supported housing hospitalized in psychiatric and rehabilitation facilities until she was discharged from supported housing about one year after she was transitioned to it from her adult home.
It is generally understood that Quality Assurance reviews are intended to identify the root or underlying causes of an untoward event for the two-fold purpose of remedying such in the instant case and preventing them in the future. They also present teaching moments, opportunities from which other agencies or the system as a whole can learn in order to better provide supports and services.
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It is not clear why an incident report was filed and a review conducted in LB’s case and not the others. And while in LB’s case the review identified areas in need of corrective action, it did not probe the more fundamental reason of why his transition ended so unsuccessfully, so quickly. In the other cases, where no Quality Assurance reviews were conducted, neither the agencies directly involved nor the system as a whole, benefited from understanding and addressing issues such as: how best to support an individual who is resisting attempts at engagement in mental health services or other needed services (e.g., securing ID, aide services, etc.); how best to address significantly inappropriate behaviors which jeopardize residency in one’s supported apartment; how to facilitate transition to a higher level of care when such a need is being expressed; or how to revise care plans in light of changing support need and ensure that all parties are on board and the supports are delivered.
X. Conclusion
First, it is noteworthy that virtually the entire class has had the opportunity to receive inreach at least once and to be made aware of the opportunity they have to transition out of an adult home to supported housing or another community residential alternative. Many have had this information provided to them more than once.
Second, although the pace of assessments has been a continual obstacle to the implementation of the Settlement Agreement, 1,891 class members have been assessed at least once for their eligibility for supported housing and the majority has been found eligible. When completed application packages recommending supported housing have been submitted to HRA for approval, 99.6% are approved for supported housing. Most importantly, 491 class members have been transitioned to the community and this review of a sample of the movers has determined that the vast majority have been happy that they made the move.
As could be expected with a group of people dealing with serious mental illness as well as an assortment of medical diagnoses, a subset of the class members moving to the community have experienced periods of turbulence but except for a small handful, with the support of the case managers, care coordinators and AH+CMs and other providers of service, they have maintained their tenure in the community.
It is apparent as the implementation of the Settlement Agreement has not proceeded as originally anticipated and that the pace of transitions of class members who are interested in moving to supported housing or other community residential alternative has been slower than envisioned. In each of the annual reports and periodic progress memos to the parties, the Independent Reviewer has offered recommendations to address the obstacles that have been encountered. While the State had disagreed with or not adopted several of these recommendations, it has eventually adopted others (e.g., smaller caseloads for care coordinators through the Adult
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Home Plus program, and more recently, relying on a single contractor to perform assessments), but the time lag in doing so has been too great to overcome the cumulative effects of the initial slow progress.
As this report is being drafted, the parties have agreed to review provisions of the Settlement Agreement to consider revisions that might be warranted to streamline the implementation process as well as to facilitate the achievement of the goals of the agreement.
XI. Recommendations
A. In-reach
It is clear that this initiative is now in a different phase than the first rounds of in-reach when there were a significant number of fast-track and motivated residents anxious to leave the adult home when offered the opportunity during a brief in-reach session. In-reach staff are now interacting with residents who have declined the opportunity to transition to supported housing, many more than once, or who said Yes at one time but dropped out somewhere along the lengthy process of assessment, HRA application, housing interviews and visits to prospective apartments which were described in the Second Annual Report. Significant subsets are difficult to engage in a conversation about moving and, even when engaged, express considerable ambivalence. Presently, 51% of individual in-reached have said Yes to moving.
 There is a need to rethink the current approach to in-reach whereby a professional in-reach worker and a peer visit homes, most with more than 125 residents, once or twice a week for several hours. Such may have worked earlier, but it is not the best way to engage the class members now living in the homes, to help them envision a life outside the home and the opportunities it presents, or to assure them that someone will be present to assist them on their transition journey and its many steps should they decide to embark on it.
The current in-reach model should be augmented by the creation of a Peer Ambassador program whereby a full-time equivalent peer – someone in recovery from mental illness who has walked the walk to community living – is present at each home. The peers would be tasked with three functions:
 Engaging individuals in discussions and providing information about the Settlement Agreement and the services and opportunities available through supported housing and, most importantly, addressing questions and fears they may have about transitioning;
 Identifying individuals who are interested in transitioning; and  For individuals who are interested, serving as a “hand-holder” and a conduit of
information through the transition process until they move out.
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 There continues to be uneven performance among Housing Contractors with regard to the number of in-reach sessions they are conducting. OMH should continue to monitor Housing Contractors’ staffing levels and performance.
 Likewise, DOH should continue to monitor adult homes’ compliance with its June 6, 2014 directive to Adult Home Administrators (DAL) which stressed the importance of providing the Housing Contractor with a “quiet, private, space, where either group or individual inreach sessions can take place,” and to “make every effort to avoid rooms where frequent interruptions may occur.” As was stated in the Independent Reviewer’s report to the Court on in-reach, it is also
recommended:
 The current practice of requiring training in Motivational Interviewing largely through the use of online videos does not seem to be effective. At the least, this training ought to be supplemented by requiring in-field modeling of these skills by supervisors who have been trained in MI, and requiring observations and assessment of competence of the trainees.
 Continuing the use of a variety of in-reach strategies other than interviews in the adult home. Given the changing nature of the in-reach function, it is increasingly important that the in-reach staff become a familiar presence with adult home residents and have opportunities to develop relationships with them that permit meaningful communication about potentially life-changing decisions. The State should also consider additional inreach strategies, such as: 1) involving AH+CMs with in-reach conversations for people who have changed their minds after having been assigned a care manager; and 2) involving clinical staff at mental health clinics and PROS programs in the in-reach effort to motivate adult home residents in exploring the possibility of transition to community living.
 Use of a Quality of Life survey instrument in interviews to enable adult home residents to focus more concretely on different dimensions of life and satisfaction with their current circumstance. (This would also create the possibility of doing subsequent surveys with the same instrument post-transition to determine whether and how quality of life has improved.)
 Language Issues/LEP Services- Based on observations of two Housing Contractors utilizing Language Line Services, it is apparent that it is not realistic that an interpreter who knows nothing about the Settlement Agreement and supported housing will be able to effectively communicate this to a class member over the phone. It is recommended that each Housing Contractor examine how language services are being presented and seek an alternative to phone translation, particularly while calling from the adult home. (In response to report citing the St. Joseph situation with LEP, OMH required a corrective action plan. A new Cantonese speaking Supervisor was hired in Housing and assists with translation as needed.)
 We recommend that OMH/DOH, as a supplement to the FAQs that are periodically updated, create some case scenarios, drawn from experience, to make the responses to
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common questions (about supported housing, budgeting, money management, roommates, sharing housing with family members, etc.) more concrete and understandable, and disseminate them to the case managers and the AH+CMs.
 Housing Contractors have made progress in their ability to offer a choice of studio and one bedroom apartments, although such are not available in all boroughs due to market conditions. Housing Contractors in Brooklyn and Queens should consider offering class members who have a strong preference for studio or one bedroom apartments referrals to Housing Contractors in the Bronx or Staten Island where such apartments are more readily available. We note that in seven of the 15 cases where class members’ referrals were withdrawn because they preferred to live in another borough, it was not indicated that a referral had been made to a Housing Contractor in the borough of their choice. This should be done in all instances in a timely manner.
 The state should encourage Housing Contractors to periodically convene a housing fair to promote their services and offerings to class members, using pictures and videos of their apartments, and opportunities to speak to willing residents of their housing units.
B. Assessment
 The sizable and growing backlog of individuals in the assessment phase of transition must be addressed. It is recommended that additional assessors be hired to address this issue until the backlog has been eliminated and the assessors are able to keep up with the timely completion of new assessments.
 To assist in determining whether or not an individual has SMI and his status as a class member, the Independent Reviewer recommends that further guidance be offered concerning about the diagnosis of dementia, is it an Organic Brain Syndrome – which is excluded from the definition of SMI, and how should it be addressed in the presence of other psychiatric diagnoses. Clarity as to what constitutes a substantial functional disability is also warranted as is better guidance for assessors as to when to complete a CMHA in its entirety as a tool for documenting an individual’s functional abilities and limitations. Further, it is recommended that when AHRARs indicating a person is not SMI, and thus not a class member, are submitted to DOH for review, supporting documents (e.g., CMHAs) also be submitted for consideration during the DOH review.
 If a person is determined not to have Serious Mental Illness, the individual should be informed of his right to seek a review of this determination, and provided with information about the availability of legal assistance in the review process.
 In view of the fact that the Settlement Agreement does not provide for the creation of additional Level II OMH housing opportunities for class members, greater attention must be paid by assessors, Housing Contractors, HH/MLTCPs and State representatives to cases in which recommendations for such housing are being considered. The Independent Reviewer recommends that: 73

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o In cases where such a recommendation is contemplated based on the individual’s preference, additional information and education about supported housing and the services and opportunities this housing option offers so the individual can make an informed decision.
o For those cases where recommendations for Level II OMH housing are being made because the individual is assessed to be ineligible for supported housing, closer scrutiny be paid to the exclusionary criteria upon which the determination is being made. Is there evidence to support the dangerousness criteria and if so, what is it? Or, as opposed to dangerousness, does the evidence suggest the need for many or intense supports and services? (E.g., ACT or Home and Community Based Services, etc.) If so, which of these cannot be provided in supported housing, thus warranting a recommendation for Level II OMH housing? What assurance is there that such services will be provided in the Level II program? And, recognizing that Level II housing is temporary and time-limited, what is the plan to prepare the class member for supported housing? These questions should be directly addressed in final AHRARs.
C. Person-Centered Planning
 As in prior annual reports, the Independent Reviewer again repeats his call for a uniform care planning template which addresses the major life domains of an individual - both critical life and safety matters and, equally as important, matters that make one’s life whole, such as vocational, educational, spiritual, social and community/civic interests and needs – be developed and used by HH/MLTCPs. Ensuring that the totality of the individual’s needs are addressed should be by design, and not left to chance as is often the case. It is also suggested that this uniform template be completed jointly by both the HH/MLTCP and the Housing Contractor and could serve as the care plan and support plan that currently each is required to maintain separately. As important and even more important as having a template is the scrutiny of the adequacy of care planning in addressing these essential dimensions of life during the pre-transition and post-transition calls that are convened by DOH & OMH staff.
D. Quality Assurance
As indicated in this and the Independent Reviewer’s previous annual report, individuals who transition from adult homes sometimes experience crises within the first several months which jeopardize their continued stay in supported housing. Such unanticipated events present opportunities to learn how to better support the individual in the instant case, and all individuals who are in the transition process, if they are seized and reviewed to identify and remedy the underlying or root causes of the crisis. It does not appear that such Quality Assurance reviews are routinely conducted. The Independent Reviewer recommends that the State establish criteria (e.g., delayed or interrupted delivery
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Appendix A

Acronym or Abbreviation
ADL AH+ CM AHRAR APS CBC CC CDTP CHHA CIAD CM CMHA CPEP CR-SRO CTL DAL DOH
DSM-V FEGS FOO FTL GERD HC HCS HH HHA HHC HRA ICL JBFCS LHCSA MFY MH MHANYS MHC

Meaning
Activity of Daily Living Adult Home Plus Care Manager Adult Home Resident Assessment Report Adult Protective Services Coordinated Behavioral Care Care Coordinator Continuing Day Treatment Program Certified Home Health Aide Coalition of Institutionalized Aged and Disabled Care Manager Community Mental Health Assessment Comprehensive Psychiatric Emergency Program Community Residence - Single Room Occupancy Community Transition List Dear Administrator Letter New York State Department of Health Diagnostic and Statistical Manual of Mental Disorders - 5th Edition Federation Employment & Guidance Services Federation of Organizations Fast Track List Gastroesophageal Reflux Disease Housing Contractor Health Commerce System Health Home Home Health Aide Health & Hospitals Corporation Human Resources Administration Institute for Community Living Jewish Board of Family and Children's Services Licensed Home Care Service Agency Mobilization for Youth Mental Health Mental Health Association in New York State Mental Health Clinic
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MI MLTCP NYAPRS NYPCC OMH PCS PCW
PERS
PROS
PSYCKES QA RUMC SA SCAA SIBN SMI SNAP SSA SSI TSI UAS-NY UTC

Motivational Interviewing Managed Long Term Care Plan New York Association of Psychiatric and Rehabilitation Services New York Psychotherapy and Counseling Center New York State Office of Mental Health Personal Care Services Personal Care Worker
Personal Emergency Response System
Personalized Recovery Oriented Services Psychiatric Services and Clinical Knowledge Enhancement System Quality Assurance Richmond University Medical Center Settlement Agreement Schuyler Center for Analysis and Advocacy Staten Island Behavioral Network Serious Mental Illness Supplemental Nutrition Assistance Program (Food Stamps) Social Security Administration Supplemental Security Income Transitional Services for New York, Inc. Uniform Assessment System for New York Unable to Complete

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Appendix B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

__________________________________________

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NEW YORK,

) Civ. Action No. 13-CIV-4165 (NGG)

)

)

Defendants

)

_________________________________________ )

__________________________________________

RAYMOND O’TOOLE, ILONA SPIEGEL, and )

STEVEN FARRELL, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, in his official

) Civ. Action No. 13-CIV-4166 (NGG)

capacity as Governor of the State of New

)

York, NIRAV R. SHAH, in his official

)

capacity as Commissioner of the New York

)

State Department of Health, KRISTIN M.

)

WOODLOCK, in her official capacity as

)

Acting 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.

)

_______________________________________ )

SPECIAL REPORT ON IN-REACH AND HOUSING CONTRACTOR STAFFING SUBMITTED BY
CLARENCE J. SUNDRAM INDEPENDENT REVIEWER
 The members of the Independent Review team, Thomas Harmon and Stephen Hirschhorn, contributed substantially in the research and preparation of this report.
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I. Introduction At the status conference on February 19, 2016, in response to the Plaintiffs expressed concern about the declining rates of positive responses to the in-reach efforts of Housing Contractors, the Court requested that the Independent Reviewer report back to the Court after consulting with the Defendants. (Tr. pp. 41-42) Later, the Court also asked the Independent Reviewer to report on staffing levels at Housing Contractors to perform the functions assigned to them. (Tr. p. 55) In response to these concerns, the Independent Reviewer and his staff have met on several occasions with representatives of the Office of Mental Health and the Department of Health to discuss these issues. The Independent Reviewer’s Second Annual Report provided an initial response to the Court’s request. (Dkt. No. 63, filed 4/1/16, pp. 39-52) Much of the information needed for a more thorough examination of these issues, however, was not readily available in time for the annual report. The Independent Reviewer requested and received from the Office of Mental Health case specific information maintained in its CAIRS database regarding the in-reach activity of the Housing Contractors. We also sought and received the assistance of OMH in obtaining staffing data from the Housing Contractors. In addition, the Independent Reviewer team conducted a new round of observations of in-reach sessions by Housing Contractor staff in an attempt to determine whether the manner of conducting in-reach might have an effect on the responses received.
II. In-Reach Observations The Independent Reviewer team conducted site visits and observations at 15 adult homes served by the eight Housing Contractors during the period from April to July 2016 as displayed in the Table below.
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HOUSING CONTRACTOR COMMUNILIFE
FED OF ORG (FOO)
ICL
JBFCS PIBLY SIBN
ST. JOSEPH’S MEDICAL CENTER TSI NY

ADULT HOME

ACTIVITY

New Gloria Belle Harbor Park Inn
Wavecrest

Observed In-reach Observed In-reach Observed In-reachOpen House/Model Apartment Observed In-reach

Central Assisted Living Brooklyn Adult Care Center Queens Adult Care Center Surf Garden Of Eden Parkview Lakeside
Mariners
Harbor Terrace

Observed In-reach
Observed In-reach
Observed In-reach
Observed In-reach Observed In-reach Observed In-reach Housing Group W/SIBN And CIAD Model Apartment/Open House Observed In-reach

Sanford Elm York

Observed In-reach Observed In-reach

IN-REACH DATE 5/26/16 8/17/16 4/18/16
6/8/16 6/9/16 6/16/16 6/28/16 6/15/16 6/28/16 5/25/16 7/7/16 7/19/16
7/8/16
6/7/16 6/8/16

A. The physical environment
The physical environment in which in-reach is conducted varied considerably among the adult homes visited. Although the DAL issued by the DOH requires adult homes to provide a suitable and private space29 this is not always the case. Frequently, in-reach is performed in dining rooms when they are not in use. (BACC, Cent. Asst. Living, New Gloria, Park Inn, Surfside) Although adult home staff may go in and out of these areas, in some cases a section has been partitioned to provide a modicum of privacy. Another common location is a multi-purpose recreation room (Kings ACC, Wavecrest, Elm York, Oceanview) or an office (QACC, Mermaid, Sanford). At Lakeside, most of the in-reach sessions are conducted in class members’ rooms. At Belle Harbor, ComuniLife conducts in-reach in a laundry room. SIBN also conducts sessions at its model apartment, which provides a private space for the conversation, away from the adult home, while
29 The State DOH’s letter to Adult Home Administrators (DAL) of June 6, 2014 stressed the importance of providing the Housing Contractor with a “quiet, private, space, where either group or individual in-reach sessions can take place,” and to “make every effort to avoid rooms where frequent interruptions may occur.”
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also allowing the class members to envision what their supported housing might look like and to continue to ask questions throughout the transition process. While some of these locations were less than ideal, the in-reach teams were able to perform their functions adequately. In a few cases, the space was a serious impediment to conducting in-reach conversations. (Garden of Eden, Oceanview, Elm York, Surf)
 At Elm York, in-reach was being conducted in the recreation room which is located at the back end of the adult home, off a large day room and with glass windows that look out on the street on one side and into the dining room on the other. The room is about 40 feet by 15, with a long conference table and chairs at one end, and a TV with four rows of chairs at the other. The TV was blaring although no one was watching. A group of Spanish-speaking nurses was sitting in the TV chairs, apparently being recruited by a provider. Other small groups of people were seated at the conference table, some staff, some family visits. The room was noisy, with the multiple sources of stimuli. At about 10:45, the in-reach staff was asked to leave the recreation room as there was a staff meeting planned. They moved to the equally noisy day room where about 50 residents were watching two TVs. A line of residents snaked into the day room from the adjacent nursing station which was doing a pill call. The PA blared in the background. It was difficult to engage any residents in conversation for the duration of the observation.
 At Surf Manor, the in-reach team worked for three hours at an unstaffed counter at the entrance, meeting with class members on the list and not on the list, and where one of them conducted a phone conversation using a Language Line with a French speaking class member, originally from Haiti. Most of these interactions occurred within feet of the entrance to the adult home, which had a lot of traffic, while other class members gathered in the lobby, and some arguments and other loud resident interactions occurred. The setting was chaotic and not conducive to in-reach and even farther removed from a place where one would want to practice motivational interviewing or engagement of any kind. The atmosphere and history of engagement at Surf Manor has reportedly not been smooth, and space has always been an issue. Although the dining room was used during visits made in the past, the in-reach staff reported that it is generally not made available to them (although, at the insistence of the Assistant Administrator, it was used for one class member who was yelling in the lobby). (Subsequent to this observation in June 2016, and reporting of the Independent Reviewer team’s concerns to a Supervisor, they meet with residents in the dining room).
B. Access to class members
In-reach staff report that some adult homes have been very cooperative and helpful in facilitating their visits and contacts with residents for in-reach and other conversations. (Kings ACC, Oceanview, Surfside, Harbor Terrace) Some allow in-reach staff to make direct contact with residents rather than having to go through the adult home staff to have them paged (Harbor Terrace, Lakeside, Wavecrest, Belle Harbor) and permit access to residents’ rooms. (BACC, Belle Harbor, Park Inn, Lakeside, Sanford, Harbor Terrace) But these are exceptions, as most of the
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others are much more restrictive and do not permit access to residents’ rooms. (Queens ACC, Garden of Eden, Surf, Mermaid, Oceanview, Surfside, New Gloria, Mariners, Elm York) Worse, some of these homes place strict limitations on the presence of in-reach staff, requiring them to vacate the premises by 5 p.m. (Garden of Eden) or leave the in-reach space by 3 p.m. (New Gloria) Aside from limiting the time in-reach staff spend at the adult home, staff also use dilatory tactics to further limit the opportunity that the in-reach staff have to speak to residents.
 Garden of Eden (GOE) has reportedly always been a difficult adult home to conduct in-reach because the management has reportedly been less than helpful and staff discouraging to class members. The list of residents to be interviewed is given to the receptionist who sits behind a plexi-glass window who makes an announcement, when she “gets around to it,” which is often garbled, and most people reportedly do not respond to it. In-reach staff are not allowed to go to the rooms, nor can they call the resident’s rooms, unless they know their cell phone numbers. The in-reach worker said it was a struggle to find many of the residents at GOE, which has resulted in them developing alternative strategies, detailed below. The in-reach worker described a recent interaction where he approached two residents who were standing with staff. They both vehemently rejected the idea of supported housing and told him to “leave me alone.” However, a few minutes later, one resident came back to the in-reach room and said he wanted to move, and signed the consents, saying he could not say this in front of staff.
 ComuniLife staff described New Gloria’s as the least cooperative of their four homes. They provide a list with names of residents to be seen and the staff calls them down. However, one front desk staff in particular will offer an opinion on who will say Yes or No, and will often skip over the names of those who they believe should not be seen. In one instance the staff person mentioned that the resident had signed a letter (not presented) saying the in-reach staff is causing him anxiety. Inreach staff say they have to be vigilant and insist that they call the residents on the list.
Another resident, HS, who said Yes to in-reach in November 2015, informed ComuniLife that a staff person told her that “if it does not work out for you in supported housing you will be placed in a homeless shelter,” which concerned her. To date, she is still interested in moving and is currently waiting to be assessed by TSI-NY.
C. Efficiency/effectiveness of in-reach
From the recent round of observational visits, it is clear that this initiative is in a different phase than the first rounds of in-reach when there were a significant number of fast-track and motivated residents anxious to leave the adult home when offered the opportunity during a brief in-reach session. In-reach staff are now interacting with residents who have declined the opportunity to transition to supported housing, many more than once, or who said Yes at one time but dropped out somewhere along the lengthy process of assessment, HRA application,
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housing interviews and visits to prospective apartments which were described in the Second Annual Report. Significant subsets are difficult to engage in a conversation about moving and, even when engaged, express considerable ambivalence as illustrated by the following example.
 SS is a 73 year-old woman who has been at Surf Manor 38 years. According to the CCITR she was originally Fast Track and was seen as follows: 3/17/14 uncertain; 8/20/14, yes; 7/1/15, no; 7/22/2015, no; 2/17/16, no. She reportedly declined assessment as per AHRAR of 3/4/15 and per final AHRAR of 5/4/16. When asked by the in-reach worker if she had thought about moving to Supported Housing, SS said she had been here over 30 years and it “would be hard to uproot myself.” She said, “if I lived outside the home I would have one roommate; but here I have a lot of friends.” When asked about declining the assessment in the past, SS said that the assessor told her “it would not be easy for me” that “I would have bills to pay” and she felt that “she discouraged me.” She said the nurse told her she thought, “I have too many health issues,” and told her to “stay with your nurse here;” and SS told her “she was willing to wait.” SS said that she thought she could do it despite her problems, and that she was tough physically, but not emotionally. After about five minutes, in-reach worker asked if she wanted in-reach today, to which she replied: “not today, I have too many things on my mind.” The weekly report had her as saying No to in-reach on that date, 6/15/16. However, the following week’s report reflected additional in-reach on 6/22/16, and a change to Yes.
Many of these residents are older, have lived in an adult home for decades, making them more resistant to change even as they are well aware of the shortcomings of their current residence.
 G.S., a 63 year-old man, has been at BACC for 28 years. The in-reach worker approached him after she had made a presentation about the Settlement Agreement, and asked him what he thought. He said he wanted to stay in the adult home. At the same time he complained that he wanted “the conditions to change” but he didn’t want to move, and was noted as No.
Dealing with this changed environment requires a fuller set of skills to engage these residents, and develop relationships with them that enable meaningful discussions about a potentially lifechanging decision. Unlike the first round of in-reach where a brief conversation often resulted in a decision to transition, it is likely that it will require many conversations and much more information and support to assist class members in making an informed decision. However, at the same time that the demand for such skills has increased, Housing Contractors have faced a high level of turnover in the in-reach staff positions. With on-going recruitment for case managers for supported housing, and by health homes, MLTCs and other providers, trained and experienced inreach staff have access to many other professional opportunities and are taking advantage of them. In turn, this results in recruiting new staff who lack the experience of their predecessors, and who require training before they are assigned to what has become a more challenging and difficult job. They also seem to need more in-field modeling of engagement skills and supervision while using them. In this environment, as we have reported previously, it is unusual to see motivational interviewing being used, although in fairness to the staff, they are often not given the opportunity
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to engage in an extended conversation where motivational interviewing is possible.
Nonetheless, we have witnessed some of the experienced in-reach workers develop effective strategies to build relationships with adult home residents by becoming a familiar and regular presence in the homes, engaging them in open ended conversations and giving them the time and space to determine when and if they want to engage in discussion of the opportunity to transition to supported housing.
 We observed in-reach sessions with class members who had said “no” to transitioning previously: SJ who said “no” in 11/15; SW who said “no” in April and early May 2016; and SC who said “no” in 2015 and again in early May 2016. During the 5/25/16 sessions, all three gentlemen again stated they were not interested in transitioning. In the cases of SJ and SW, men in their 60’s and 70s, both of whom had lived in Parkview for over 30 years, the in-reach worker had the opportunity to engage them in conversation. Both appeared to be higher functioning than many of the other residents and seemed to have carved out a life outside the AH, and its day room and programs. The in-reach worker (whom both knew from prior visits) used motivational interviewing to engage them, even after they said they weren't interested. When each man entered the in-reach space, they greeted her warmly but then quickly said, “I’m not interested in moving.” She would say “that’s OK…may I ask you a question?" With their OK, she asked an opening question (with some follow ups), "before you lived here, did you ever live on your own and what was it like?" Both gentlemen opened up about this. This was followed up with open ended questions about how they came to live at Parkview, why they like it, what other things they would like to do…and the possibility of pursuing such outside Parkview. SJ talked about having a job and being successful in the past..."but that was years ago when I was young." He went on to explain that now he can relax. Life is convenient. Meals are served, he's two blocks from the subway station and he can go into Manhattan whenever he likes…which he does frequently he said. The inreach worker attempted to open the topic to the fact that one could still have these same opportunities living outside Parkview. But he said he was not interested, and when she offered him a brochure on the initiative and the Adult Home Guide book on the matter, he refused to take them.
The second gentleman, SW, started off the conversation by saying something along the lines of: I know you want to talk to me about moving, but I've already told you, I don't want to move. She asked the same open question about his prior life and he recounted that he always lived with his family until they decided he needed to live with others which prompted his placement here. In talking about things he would like to do, in response to the in-reach worker’s question, he indicated that he would like to learn Spanish. She indicated that enrollment in Spanish classes could be arranged as part of a bundle of transition services, but he still said he didn't want to leave the place with all its hotel services. As he left the room, he took the literature about the transition (which he had never taken before) and said to the in-reach
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worker "I suppose you'll want to see me and talk again in a couple of months. That will be a pleasure." Following these in-reach sessions, the in-reach worker indicated that this was the longest either man had stayed and talked...and it was the first time the second man had accepted the literature to read. She indicated that her goal is to keep engaging people, again and again, and over time the amount of time they are willing to spend to explore the possibilities of transition will increase from one minute, to five minutes, to ten minutes until they are motivated and equipped with enough information to say yes, if they so choose. D. Identifying and focusing on class members who are uncertain
The Independent Reviewer team has noted the infrequent documentation of Uncertain/Considering it as opposed to Yes or No at in-reach. Many of the in-reach workers see their goal to move class members from a "No" to an "uncertain/considering it" and then putting more energy into converting those to a Yes. However, it does not appear that in-reach workers are fully capturing those that are uncertain/considering it, based on the low numbers in the latest weekly report. Some of the in-reach workers believed that they were not to use this “uncertain” category in their report. Although OMH clarified this issue at a Housing Contractor meeting, at the original three pilot JB homes there is still a total of three in this category on the last Weekly Report. At Elm York and Oceanview there are none. However, as noted on the table below, there are only 78 in all 22 homes, or an average of four Uncertain/considering at all adult homes. As described above, at this stage of the process it often takes many conversations with a class member to develop a relationship with the hope of piquing their interest in supported housing. It is a step forward for someone who says No and walks away, to then say No and accept a pamphlet or the Guide on Supported Housing, in the hope that next time they may be Uncertain and considering it. It seems like a reasonable approach to focus more energy on moving the Uncertain group to Yes, and we have observed some of the more experienced workers starting a session by making reference to their previous conversation with the resident and picking up from there to discuss their current state of mind. For this strategy to be fully successful it will be important to correctly identify the class members who should be in the Uncertain category.
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Uncertain at In Reach as of Week 128 (thru 8/26/16)

HC/AH ComuniLife Belle Harbor New Gloria Park Inn Surfside FOO Central Assisted New Haven Manor Seaview Wavecrest ICL BACC QACC JBFCS Oceanview Mermaid Manor Surf Garden of Eden Kings Pibly Parkview Riverdale SI-BN Lakeside Mariner’s St. Joseph’s Harbor Terrace TSI-NY Elm York Sanford

Uncertain
4 5 1 4
8 4 5 8
1 2
0 2 1 5 4
1 2
9 6
5
0 1

TOTAL

Total by HC 14
25
3 12
3 15 5 1 78

E. Providing clearer answers to residents’ questions
Related to the previous issue, it is the Independent Reviewer team’s sense that a significant number of people who are uncertain or ambivalent about moving to supported housing after having expressed an interest are in this state because they have had difficulty getting a clear answer to their questions about the implications of moving. Responses are often vague and uncertain to questions on issues such as: How much money will I have? Who is my roommate going to be? Can
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I share the apartment with my sister (who is not a class member)? Will I get a home health aide to help with cooking and cleaning? Will I be able to enroll in a computer class? The inability to get a clear answer feeds into the uncertainties caused by the long delays in the process and creates unnecessary doubt.
We understand that precise answers can depend on individual circumstances but there is nevertheless room for better handling of these reasonable questions. With almost 400 people having moved, there is now a body of experience about how these issues have been dealt with and different case scenarios could be created about what a budget would look like for someone on SSI/SSDI, or with a pension of $x. Examples could be given about class members who have moved in with a relative or non-class member, and how that has worked out financially. This is where turnover adds to the problem --the in-reach workers class members are now dealing with probably weren't around when these issue were last dealt with by their agencies and probably do not know what was done or what is possible.
We recommend that OMH/DOH, as a supplement to the FAQs that are periodically updated, create some case scenarios, drawn from experience, to make the responses to common questions like these more concrete and understandable, and disseminate them to the case managers and the Adult Home Plus care coordinators. CIAD has prepared excellent materials it uses in budget presentations to housing groups at adult homes, which are an example of the type of information that ought to be readily available to Housing Contractor in-reach workers and Adult Home Plus care coordinators.
F. Use of peers.
As with other aspects of in-reach work, there was a lot of variability in the use of peers. As discussed in the section on staffing below, some Housing Contractor had vacancies in the peer positions. The best of the peers brought energy, passion and a spirit of helpfulness to their jobs and were able to engage with adult home residents through their shared experiences in the mental health system. Some lived in supported housing and could directly address the challenges and fears, as well as the joys of living independently, and with a variety of supports available. Others did not share their backgrounds, or identify themselves as peers, and appeared to bring very little to the table, going through the actions to try to “sign up” residents for supported housing.
In-reach teams also took different approaches to their work. Some worked as teams, with the peer and the professional in-reach worker meeting jointly with residents, while others essentially performed the same function separately. The duration of the in-reach interactions were highly variable. Some lasted less than five minutes as the class members were not interested in having the conversation, while more substantive conversations went on for 20-30 minutes.
G. Use of pamphlet/script.
As these in-reach sessions were often the second or third conversation with a resident about supported housing, there was more inconsistency in whether in-reach staff used the OMH pamphlet or a script to ensure all elements of the Settlement Agreement were covered.
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Conversations were often more organic and sometimes very brief, if the residents were disinterested. It was also evident during the observations that several class members do not retain information that has been given to them, do not remember previous in-reach sessions, even those that occurred relatively recently, and don’t recall having declined an assessment. The more skillful in-reach workers made a point of beginning a conversation by referring to their last interaction with the class member, and picking up the thread from there.
Some of the Housing Contractors (Pibly, SIBN, ICL, St. Joseph’s) made a practice of assembling a folder of materials including the OMH pamphlet, the Resident’s Guide, and a business card with contact information to hand out to the residents they met. Others, like FOO, JBFCS and ComuniLife also distributed the materials. Pibly created a short video about its supported housing program and explaining the steps in the transition process. Many of the staff used the Adult Home Resident Guide and its chart displaying an overview of the transition process as an aid in their conversations.
H. Use of multiple strategies/Robust in-reach.
There has been an overall increase in the numbers of Housing Contractors using different strategies to reach residents. Housing Contractors have held open houses at their model apartments, hosted pizza parties, invited former adult home residents who had transitioned to come and speak to those considering a similar move, held a meeting on the sidewalk outside an adult home, and hosted groups at their model apartments to assist class members prepare for transitioning to supported housing.
 We observed the first Open House breakfast that was conducted by ICL at Brooklyn ACC. A table was attractively set up with bagels and Dunkin Donut minis along with coffee and juice. Another table was filled with in-reach materials including individual folders that are given to class members that contain the Adult Home pamphlet and the Guide. There were also picture books of furnished apartments that ICL has provided to class members. The in-reach worker had made an initial presentation about the Settlement Agreement to start the event, and used the User Guide to walk class members through the process when meeting individually with them. In all, ten class members attended, including, E.O. and E.C., who are living in supported housing, and came to present on their experiences since moving out of BACC. Six class members who had most recently said No attended. In addition, in attendance were one man who has been approved by HRA and referred for housing, but is waiting for his girlfriend, also present, who said Yes 5/5/16 and is waiting to be assessed. E.O. and then E.C. spoke. E.O. moved 3/3/16 into a two-bedroom apartment with a man he knew from Brooklyn ACC. He stressed how happy he was in supported housing and how important it was to get a good roommate, if you are to live with someone. He spoke of all of the help and supports available. He also mentioned the $5,000 enhancement that will allow him to get other things that he needs, which he is now waiting to receive. E.C. who moved 11/23/15, spoke briefly how she had presented in court in favor of the settlement and how ICL helped her to get the
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apartment, and fully furnished it. She said it is “great.” She said ICL will help and guide you and mentioned that she got along with her roommate
 At Garden of Eden, the in-reach staff have attempted to deal with the limitations on access imposed by the adult home by arriving at 7:30 a.m. while residents are getting their medications and before they leave for program, and meeting with interested residents in the lobby area.
 ComuniLife held a “Sandwich Truck” meeting on the sidewalk outside Belle Harbor to meet with residents and present on the Settlement Agreement.
I. Outreach To Families/Guardians.
As noted in the Second Annual Report (pp. 87-88), families can play an important role in the decision of a class member to move to supported housing, even when they do not have formal decision-making authority. Nevertheless, it is not common to see proactive outreach to involved family members to inform and educate them about the opportunities offered by the Settlement Agreement. Typically, in-reach staff say that they would involve families if the class members wanted this and consented.
 At Parkview, while on-site, the in-reach worker from Pibly was approached by a class member who had said Yes previously but backed out during the assessment phase. He stopped by to see the in-reach worker. He indicated that both his uncle and psychiatrist (who is off-site) believe he shouldn’t move. The in-reach worker asked, and the class member gave permission to speak with these individuals on his behalf to explain the process, supports in the community, etc. and to also relay this information to his care manager (the Care Manager is changing). Her plan was to contact the care manager and develop a strategy for educating the uncle and psychiatrist. She also wanted to make sure that the class member had an ally with him (either her or the care manager) during the assessment so that he would not be alone with a stranger and felt empowered to express his desire.
 Similarly, family contact was demonstrated in the case of MP who said yes to moving previously, but stopped by to see the FOO in-reach worker. His biggest concern was that his mother doesn’t want him to move. He explained that his mother who is not his legal guardian but lives nearby, visits and calls. She wants him to “follow the rules/regulations” of the adult home so that he can be in “good condition” and move home with her. “What if I fail and can’t come back (to the Adult Home)? he asked.” The in-reach worker asked an open ended question along the lines of what are the rules/regulations you need to follow or things that would indicate you’re in good condition? MP explained being compliant with medications, taking showers, taking care of himself, etc. She went on to explain that becoming independent in these activities can also be done while one lives in supported housing and she asked if she could talk with his mother. He said, “it won’t work…my mother is afraid I’ll fail.” The in-reach worker was affirming, explaining that parents are like that, they care, and they don’t want their children to fail. She
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then again asked if she could talk with his mother or all three of them talk together. It would give her (mom) the chance to explain her concerns which they could discuss and the worker could explain the program and other things. MP consented, but indicated he didn’t have his mother’s telephone number. He agreed to give mom her number the next time mom calls and the worker gave him her card.
J. Time spent on non-in-reach functions
It is also becoming clear that the job of the in-reach worker has been changing to encompass a wider set of duties. While the initial focus was simply on explaining the Settlement Agreement and the choices available to class members, now as most have already received at least one in-reach, and many of those who said Yes have been waiting for several months for other steps in the process to occur, the regular presence of the in-reach worker at the adult home is serving a different function –one of keeping them connected to the process, answering their questions, keeping them motivated and countering the discouragement they feel from the endless waiting and from the efforts of others to discourage them. (Second Annual Report, pp. 44-47)30 During our observations we noticed that the in-reach workers were spending a substantial amount of their time at the adult home answering questions of class members who were already in the process, and relaying messages from the supported housing staff to class members.
 AM sought out the FOO in-reach worker out with questions. He had been inreached three times before, declining transition on 8/16/15 and 4/6/16, but saying yes on 5/25/16 – the week before. He had obviously read the Adult Home Guide as he had underlined sections of it, and some of these seemed to have prompted questions about programming, supports and finances. He explained that he had once before lived independently and it didn’t work out. The in-reach worker demonstrated some motivational interviewing techniques in response to his statement, beginning first with the open ended question of “what happened?” He explained that he found some of the tasks/aspects of keeping up an apartment (cleaning, laundry, etc.) difficult. He was also bored by his day program at the time; it focused on “did you take a shower or how to take a shower” and he wanted to learn things that would be “enriching” (his word) like computer skills. He described that he once attended a TSI program that taught such things and that he was interested in that or vocational training. He also said that he heard rumors of people failing in supported housing and having to return to the adult home and that administration says things like “why do you want to move, you have everything here, but if you want to, go ahead.” After expressing these concerns, AM added that he was reluctant to move until he saw a woman who was obviously “mental” move out and do well (in that she hasn’t returned). The in-reach worker, in response, demonstrated reflective listening and also affirmation. She said something along the lines of “you will face some challenges
30 A class member who illustrates these dynamics dynamic is SS discussed earlier in this report.
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upon moving, I’m not saying you won’t, but…” She then went on to explain the inapartment supports that would be available and the range and types of day-time programs including PROS and vocational services. She explained that during the assessment step, he should mention his concerns and desires to the assessor so that they are worked into the care plan.
AM’s financial question dealt with whether he’d have money to buy some new clothes. The answer to which was yes and the in-reach worker re-explained the rent/payment system and what he’d have available for himself. What was interesting, though, was AM’s reason. He wanted to go to church on Sundays, which he could not do at present, as he would miss lunch which is served at the adult home before he could return. He wanted nicer clothes to go to church. In addition to the financial issue, this led to a conversation about the ability to set one’s own schedule (meals, etc.) when living in supported housing. AM left the session still wanting to move to supported housing and some of his fears allayed.
K. Language issues.
The state has made substantial efforts to attempt to accommodate the different languages that are used by class members. The OMH pamphlet explaining the provisions of the Settlement Agreement have been translated into nine languages and distributed to all of the Housing Contractors. There remain languages and circumstances where in-reach workers have to rely upon language translation services to communicate with class members, with unsatisfactory results. For example:
 There appears to be a fairly large Asian population at Harbor Terrace, that comprises the majority of those who have not yet been seen for in- reach. According to the CCITR of 7/8/16 there are 279 class members on the current CCITR and 61 of those have not yet been seen for in-reach. Of those 61, 45 or 74% had Asian surnames. Of those 28 were listed as speaking primarily Chinese and three Korean. The fact that two of the class members on the list for the day of the observation were said to be Vietnamese and did not speak English, raises the question of the accuracy of the primary languages listed on the CCITR. TN was the only one of the six who did not come down when paged, and who was in his room when we knocked on the door. This 63 year-old man of Vietnamese extraction has been at Harbor Terrace for five years. He does not speak English and appeared to not understand English. The in-reach worker called the language line that they use and asked for a Vietnamese interpreter. TN stood in his room, fully dressed, while his roommate slept in the next bed with the covers over his head. The in-reach worker used his cell phone on speaker mode. The interaction was substantially as follows:
In-reach worker to Interpreter: I want to talk to him about the Adult Home Plus Initiative. It is an initiative to see if people are interested in transitioning from living in the community to living in their own apartment, and I am with a gentleman
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right now to see if he is interested in doing so. And many services can be provided for him.
Interpreter: When you say living in the community, but moving to his own apartment……
In-reach worker: He is living in an Adult Home right now but try to see if he wants to live in his own apartment.
Interpreter: OK (he then speaks to TN in Vietnamese for less than a minute)
Interpreter: No, No, I don’t want to move.
In-reach worker: Can you ask him why he does not want to move or why he wants to stay here?
Interpreter: (speaks with TN and TN responded.) He said he does not want to move out.
In-reach worker: Can you tell him he can get help through case management services, (and we would) provide the services he needs throughout the process; he can continue to see his doctor, continue to see his mental health provider, to get the services he needs throughout the process; his counselor; he will get case management services four times a month, so he can get the skills he needs to transition to the community, and all the services that he is getting in the Adult Home he can get in the community as well.
Interpreter: translated for 45 seconds… (brief response) ”I don’t want to go.”
In-reach worker: Is there anything positive that he might like about having his own place?
Interpreter: (translated- reply) “He doesn’t want to go.”
In-reach worker: Tell him if he has any questions he can come see me, my name is Richard.
Interpreter: He says No.
Based on this observation, the ability to present the options available in the Settlement Agreement to some of the Asian population in this home is severely compromised. Working with a translator is a skill that needs to be learned. Sentences need to be short, so that the communication that is attempted is what is being heard and understood. The in-reach worker’s sentences were so long and would be confusing to someone who really had no idea what he was talking about.
 Another Housing Contractor, JBFCS uses the services of Transperfect Remote Interpretive Services for all other languages, which was observed being used, with questionable effect.
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While at Surf Manor the in-reach worker approached AV, an 82 year-old Haitian male who has lived at Surf for three years, in the lobby at the counter near to the entrance of the Adult Home. He said he speaks primarily French. Although the Adult Home Pamphlet is printed in both French and Creole, the in-reach worker did not offer him a copy in his native language. When she realized that he was French, she elected to use the language line that JBFCS has access to. She called the service from the lobby, which was very noisy and chaotic, as the dining room was being used for dinner. When she got the interpreter on the line using her cell phone on speaker mode, the following conversation transpired:
In-reach worker: Can you ask him if he is interested in moving out of the Adult Home to the community because I am providing supported housing to him.”
Interpreter: He said he used to work and was not responding to the question.
In-reach worker: Can you ask him if he is interested in moving out to an apartment that we would provide to him. We would provide him with everything…so he has everything….
Interpreter: He’s talking about the job he has.
In-reach worker: Ask him if that means he is not interested in moving out of the Adult home.
Interpreter: Is he mentally challenged?…he is speaking very fast.
In-reach worker: I cannot discuss that with you as it is confidential….Is he saying he is not interested?
Interpreter: He says the same things over and over…I am not sure that he understands the questions in French.
The in-reach worker thanked the interpreter for his time and ended the call after a few minutes. This interaction was entered on the Weekly Report as “Not interested in moving at this time.” It was particularly disconcerting that the LEP service was used with a Haitian class member, on a cell phone in a crowded noisy lobby, where the interpreter did not think the class member understood what was being discussed, and he was not offered a pamphlet on the initiative in his native language. During a follow-up call with the in-reach worker’s Supervisor, it was suggested that when it is difficult to do it on the phone, as in this case, they hire an interpreter to speak with individuals face to face. Doing it via the phone in the lobby, given what is required at this stage of in-reach, would be very difficult to engage the class member in the process.
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III. Staffing data

We attempted to see if there was any correlation between the performance of Housing Contractors and their level of staffing of the in-reach function, an issue which was discussed in the Second Annual Report (pp. 47-50). Although that report provided a snapshot of the vacancies existing on March 11, 2016, we attempted to obtain a more comprehensive set of data about the duration of vacancies and their possible impact on the performance of the Housing Contractors. We requested that the OMH obtain information from the Housing Contractors as of the date of the first in-reach by each agency, to adjust for the different start times and contract status, and to measure by when each started work in the field. Specifically, we requested information based on the authorized budget approved by OMH for the in-reach clinical and peer staff:

1. the number and percent of work days authorized positions were not filled;

2. the utilization of authorized and unauthorized leave by in-reach staff;

3. the percent of time that persons in filled positions spent on non in-reach functions.

Unfortunately, this effort did not produce any useful information, although the inquiry and the questioning from OMH may have prompted the Housing Contractors to fill vacancies, as they reported a substantial decline in vacancies from March to June 2016. There are several reasons why this effort was unproductive.

V. Some agencies did not fully answer the questions. One agency (ComuniLife) seemed to evade most of them altogether even after we brought the matter to OMH’s attention in late June.

VI. Agencies answered the questions differently, perhaps due to their interpretation of the question. For example, some agencies reported specific days/percentages of vacancies while others slipped by with a comment such as “a brief period” or difficult/challenging to calculate. Likewise, one gave a specific breakdown of leave usage (personal, vacation days, etc.) while others said simply what staff are entitled to or that nobody took any authorized or unauthorized leave.

VII.

Although some data were provided on the use of in-reach staff for non-in-reach

functions, it was not particularly illuminating as it again appears that agencies may have

interpreted the question differently. Two of the responding eight agencies gave clear cut

examples of in-reach staff doing housing staff duties. But a third agency, while providing

time percentages, cited examples of staff engaged in supervision and going to mandated

meetings/training that could be part of their in-reach responsibilities although not

technically in-reach. A fourth agency gave us a percentage figure but only for one worker

this past fall/winter. And a fifth agency reported that 100% of in-reach worker time has

been spent on in-reach, but only since May 2016.

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It is evident that until recently the State was not closely monitoring how the Housing Contractors were staffing their functions, although the OMH regularly exhorted them to fill the authorized positions. The State has not tried to understand the reasons for the variable performance or the role that staffing might play.
IV. Recommendations
The Independent Reviewer recommends:
a. The current practice of requiring training in Motivational Interviewing largely through the use of online videos does not seem to be effective. At the least, this training ought to be supplemented by requiring in-field modeling of these skills by supervisors who have been trained in MI, and requiring observations and assessment of competence of the trainees.
b. Continuing the use of a variety of in-reach strategies other than interviews in the adult home. Given the changing nature of the in-reach function, it is increasingly important that the in-reach staff become a familiar presence with adult home residents and have opportunities to develop relationships with them that permit meaningful communication about potentially life-changing decisions. The State should also consider additional in-reach strategies, such as:
1) Involving Adult Home Plus care managers with in-reach conversations for people who have changed their minds after having been assigned a care manager.
2) Involving clinical staff at mental health clinics and PROS programs in the in-reach effort to motivate adult home residents in exploring the possibility of transition to community living.
3) Implementing a Peer Ambassador program, perhaps under the auspices of CIAD, as a supplement to current in-reach efforts. Peer Ambassadors, preferably former adult home residents who live in supported housing, would undergo peer advocacy training and be assigned to specific adult homes, to speak to residents about the Settlement Agreement and serve as "case finders" who would refer interested residents to the housing contractor for formal in-reach and consent.
c. Use of a Quality of Life survey instrument in interviews to enable adult home residents to focus more concretely on different dimensions of life and satisfaction with their current circumstance. (This would also create the possibility of doing subsequent surveys with the same instrument post-transition to determine whether and how quality of life has improved.)
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d. Language Issues/LEP Services- Based on the observations of two HCs utilizing Language Line Services, described above, it is apparent that it is not realistic that an interpreter who knows nothing about the Settlement Agreement and supported housing will be able to effectively communicate this to a class member over the phone. It is recommended that each Housing Contractor examine how language services are being presented and seek an alternative to phone translation, particularly while calling from the adult home. It is recommended that St. Joseph examine their need for Chinese, Korean and Vietnamese translation services and seek an effective means to communicate with the Asian class members still waiting to be in reached.
e. We recommend that OMH/DOH, as a supplement to the FAQs that are periodically updated, create some case scenarios, drawn from experience, to make the responses to common questions posed by class members (about supported housing, budgeting, medication management, roommates, sharing housing with family members, etc.) more concrete and understandable, and disseminate them to the case managers and the Adult Home Plus care coordinators.
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Appendix A.
Synopsis of Individual Agency’s Responses to Each Question
Question 1: Since the start of In-Reach work, # and % of workdays authorized in-reach positions were not filled?
ComuniLife Did not answer this question. Upon receipt of this response in June (one of the few we received directly from the agency) we wrote to OMH on 6/23/16 saying, “…they do not provide the data OMH requested concerning vacancies and the leave utilization. Other documents suggest some gaps in their staffing patterns.” It appears that OMH did not address these observations with ComuniLife when its response was first received in June and we raised concerns. As a point of reference, this agency, per OMH started in-reach work in July 2014.
FOO Did not directly or fully answer this question. It reported that it had a staff member completing in-reach since inception (7/14) via professional staff (ST who left and was replaced by MA); it didn’t address any gap in service during this transition. It also did not report that a full time peer in-reach specialist position was vacant (or for how long); this was reported in an OMH snapshot of HC staffing patterns sent to us in about 3/16. As a point of reference, this agency, per OMH started in-reach work in July 2014.
JB Agency reported specific data on its two units: Coney Island (CI) the original JB since March 2014 when JB began in-reach and the former FEGS (Duryea) since JB took over operations in June 2015. It also reported data on professional and peer in-reach staff. CI had a vacant professional item for 30 days (5.24%) and a part-time vacant peer item for 70 days (20.1%). Duryea had a vacant professional item for 19 days (18.2%) and a vacant part-time peer item for 46 days (44.2%).
ICL Reported that the professional in-reach worker item has never been vacant. Its peer in-reach position was vacant for a “short period” in spring 2016; no specific data given. It also noted that the professional in-reach worker went on maternity leave, but while out her item was filed by another social worker. As a point of reference, this agency, per OMH started in-reach work in July 2014.
ICL-SIBN Reported its in-reach team is 1 FTE clinician, 1 FTE peer item equivalent (consisting of three positions) and a 0.60 RN. One 0.25 peer position has never been filled. No #/% of days given. Agency began in-reach work probably in May 2015 when St. Joe’s and Pibly did.
St. Joe’s reported that the professional in-reach staff item was vacant for 9 days and that the position was 71% filled. (Not clear how 9 vacant days would equate to 29% vacancy rate.) They reported no vacant days (100% fill) for in-reach peer staff. Per OMH agency began in-reach work in May 2015.
TSI Did not distinguish between peer and professional in-reach positions. They reported inreach positions were vacant for 93 days: a vacancy rate of 9.7% for the period 7/1/14-5/31/16. Per OMH, began in-reach in July 2014.
Question 2: Utilization of authorized and unauthorized leave by in-reach staff.
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ComuniLife Did not answer this question. Upon receipt of this response in June (one of the few we received directly from the agency) we wrote to OMH on 6/23/16 saying, “…they do not provide the data OMH requested concerning vacancies and the leave utilization. Other documents suggest some gaps in their staffing patterns.” It appears that OMH did not address these observations with ComuniLife when its response was first received in June and we raised concerns.
FOO Did not completely answer this question. They reported that the only extended leave they had was for a peer worker from 1/14/15 – 7/31/15 when she left the agency. (Per the OMH 3/16 snapshot, this position was vacant at the time.) FOO did not report any authorized time off (vacations etc.) for any staff.
JB Reported unauthorized leave at 0% and that staff are entitled to three weeks of authorized leave annually. Did not provide usage data.
ICL Reported in-reach social worker went on maternity leave 2/16-3/16 when she left agency, but during that time her role was covered by another social worker.
ICL-SIBN No unauthorized leave has been used. One 0.25 FTE peer has been on medical leave since 4/1/16.
St. Joe’s Reported 0 use of authorized and unauthorized leave.
TSI Reported that in-reach staff used 49% of accrued leave between 7/14 and 5/16: a total of 40 vacation days and 21 personal days.

Question 3: % of time that persons in filled positions spent on non-in-reach functions.

ComuniLife 15%. Per ComuniLife this includes showing clients apartments, completing intake assessments; this # will decrease once the program is fully staffed by 7/5/16. Per OMH 3/16 staffing snapshot, agency was short two of three authorized housing staff.

FOO

8%. Per FOO, these functions include supervision and attending agency mandated trainings/meetings.

JB

10%. Per JB these activities are kept to a minimum to help transition (e.g., visiting

apartments, crisis intervention.) Per OMH 3/16 staffing snapshot, JB’s CI & Duryea

were short two of 5.5 housing staff.

ICL

Agency claims this is challenging to calculate; has varied with census, transition

challenges posed by individuals and the number of housing staff. They report that

this past fall and winter it is estimated that 40% of an in-reach peer’s time was

devoted to housing support and not IR. Per OMH 3/16 staffing snapshot, agency

was short one of four housing staff.

ICL-SIBN 0% 98

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St. Joe’s 0%

TSI

0%

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 Case 1:03-cv-03209-NGG-MDG Document 349 Filed 10/16/09 Page 1 of 2 U.S. Department of Justice Civil Rights Division

Disability Rights Section - NYA 950 Pennsylvania Avenue, N.W. Washington, DC 20530
For hand delivery/ overnight mail: Disability Rights Section 1425 New York Avenue, N.W. Washington, DC 20005

VIA ECF

October 16, 2009

Honorable Nicholas G. Garaufis United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: DAI v. Patterson, et al. Civil Action No. CV-03-3209 (NGG)(MDD)

Dear Judge Garaufis:

This letter is respectfully submitted to confirm that Your Honor has scheduled a premotion conference on the United States’ proposed motion to intervene in this action for Thursday, October 22 at 2:30 p.m., and, as the Court has requested, to briefly set forth the basis for the United States’ motion.

The United States seeks to intervene pursuant to Fed. R. Civ. Proc. 24 at the remedy stage of this case, and for any appeal that might arise, in order to ensure that the broader public interest is represented in this litigation. The United States has primary regulatory and enforcement authority under Title II of the ADA, and therefore has a strong interest in ensuring the proper and consistent application of its ADA regulations. Moreover, the United States seeks to intervene because of the significance and scope of the proposed remedy, which will help transform the lives of individuals with mental illness whom the Court found to be living in segregated communities, a great concern for the United States. Indeed, in June of this year, the President proclaimed the Administration’s commitment to enforcing the Olmstead decision and its goals of community integration, coining it the “Year of Community Living.” Further, the remedy in this case may serve as a model for other courts in similar cases, and the United States, representing the broad national interest, has a substantial interest in helping to craft this remedy. The United States seeks no extensions of the briefing schedule for remedies and will rely on the record developed at trial and the Court’s orders.

Case 1:03-cv-03209-NGG-MDG Document 349 Filed 10/16/09 Page 2 of 2
Plaintiff supports our intervention. We have requested the Defendant’s consent and Defendant is considering our request.
Respectfully Submitted,
___________/s/___________ Amanda Maisels Trial Attorney 202-305-8454 (phone) 202-305-9775 (fax) amanda.maisels@usdoj.gov BENTON J. CAMPBELL United States Attorney By: ___________/s/________ Michael J. Goldberger Chief of Civil Rights, Civil Division United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 718- 254-6052 (phone) 718-254-6081 (fax) Michael.Goldberger@usdoj.gov cc: All counsel (By ECF)
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 Case 1:03-cv-03209-NGG-MDG Document 390-1 Filed 11/24/09 Page 1 of 9

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 DAINES, in his capacity as Commissioner of the New York State Department of Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, MICHAEL HOGAN, in his capacity as Commissioner of the New York State Office of Mental Health, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH
Defendants.

03 Civ. 3209 (NGG) (MDG)
[PROPOSED] ORDER
AND JUDGMENT

WHEREAS, plaintiff Disability Advocates, Inc. ("DAI") filed a complaint on behalf of its constituents, who are 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 (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");
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;

Case 1:03-cv-03209-NGG-MDG Document 390-1 Filed 11/24/09 Page 2 of 9
WHEREAS, the parties 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;
WHEREAS, the Court presided over an eighteen-day bench trial during which twenty-nine witnesses testified, more than 300 exhibits were admitted into evidence, and the excerpts from the deposition transcripts of twenty-three additional witnesses were entered into the record, along with a 3,500-page trial transcript;
WHEREAS, the parties 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 the defendants have discriminated against DAI's constituents in violation of the integration mandate of the ADA and the RA, that virtually all ofDAI's constituents are qualified to receive services in supported housing, and that defendants failed to establish that the relief sought by DAI would constitute a fundamental alteration of the State's mental health service system;
WHEREAS, the Court found that DAI 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) DAI to respond to the State's proposed remedial plan;
WHEREAS, the Court has considered the State's proposed remedial plan and DAI's response thereto;
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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 a placement if qualified, (b) all future Adult Home residents who desire placement in supported housing are promptly afforded such a placement if qualified, and (c) no individual 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.1
2. At the conclusion of the four-year period, defendants must ensure, on a permanent and ongoing basis, that: (a) no individual 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) Adult Home residents who desire placement in supported housing are promptly afforded such placement if qualified.
3. 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
"Current Adult Home resident," for purposes of this Order, means a resident of an Adult Home on the date of this Order. "Future Adult Home residents" 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. "Supported housing" means scattered site supported housing funded by OMH. 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.
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years following entry of this Order, defendants will develop a minimum of 1,500 supported housing beds for DAI constituents. Defendants will continue to develop supported housing beds for DAI constituents at a rate of 1,500 per year until such time as there are sufficient supported housing beds for all DAI constituents who desire such housing.
4. 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 3 above. Defendants' contracts with these providers will require providers to (a) develop and provide supported housing to DAI constituents, (b) secure necessary support services for residents of such housing, and (c) conduct in-reach to DAI constituents, as described in paragraph 5 below. Defendants will ensure that their current in-reach efforts at state-operated Psychiatric Centers include in-reach to DAI 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. The contracts awarded pursuant to paragraph 4 will require providers to conduct frequent and effective in-reach to build trust and actively support DAI constituents 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 constituents on, visits to supported housing apartments;
(c) Assess DAI constituents' interest in supported housing;
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(d) Determine eligibility for supported housing pursuant to paragraph 9 below;
(e) Explore and address the concerns of any DAI constituent who declines the opportunity to move to supported housing or is ambivalent about moving to supported housing, despite being qualified for such housing;
(f) Review DAI constituents' housing preferences on a regular and recurring basis;
(g) Identify the services each DAI constituent needs to successfully transition to and live in supported housing and arrange for the constituent to timely receive those services; and
(h) Employ Peer Bridgers as appropriate to assist in the above activities.
6. In advance of issuing the RFPs described in paragraph 4 above, and no later than 60 days from the date of this Order, defendants shall provide to DAI and its counsel a copy of the RFPs it proposes to issue. Within 20 days of receipt of such documents, DAI 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 90 days ofthis Order, such dispute shall be submitted to the Court.
7. Defendants will ensure that DAI 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 constituents who
5

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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 constituents to successfully transition to and live in supported housing.
8. DAI constituents' eligibility for ACT will be determined by OMH's current statewide ACT guidelines.
9. Defendants shall deem DAI constituents qualified for supported housing unless they have one of the following specific characteristics: (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 self 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 4 above. If such a condition is found to exist, the individual will be deemed qualified for supported housing if the provider determines, after further assessment, that the individual could be served successfully in supported housing.
10. 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 SSI, rental subsidy, and other income they will receive while in supported housing.
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11. Defendants will carefully monitor whether DAI 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 DAI.
12. The Court will appoint a Monitor who is experienced in the development, management, and oversight of community programs serving people with mental illness, including supported housing. The duties and powers of the Monitor will be detailed in an order accompanying the Monitor's appointment. The duties shall include monitoring defendants' compliance with this Order, identifying potential areas of non-compliance, 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.
13. The Court has afforded defendants the opportunity to respond to DAI's proposal that a Monitor be appointed. Based on defendants' response and DAI's submissions, the Court fmds the appointment of a Monitor appropriate under both its inherent equitable powers and Rule 53 of the Federal Rules of Civil Procedure. A 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.
14. Within one week of the entry of this Order, the parties shall meet and confer in an effort to agree on the selection of a Monitor and the specific duties and powers of the Monitor for joint proposal to the Court. If the parties are unable to agree
7

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on a Monitor, or his or her specific duties and powers, each of the parties shall, within two weeks of entry of this Order, propose to the Court one or two persons qualified to serve as a Monitor. Additionally, the parties shall each submit to the Court a proposed order and 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 other necessary expenses. Defendants will be responsible for payment of the proposed budget items approved by the Court.
16. No less than every 60 days, defendants shall provide DAI, its counsel, and the Monitor 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) the number of DAI constituents determined by providers not to be qualified for supported housing pursuant to paragraph 9 and the reasons for such determinations, (e) reasons why DAI constituents, if any, declined supported housing, (f) in-reach efforts, (g) the number of new admissions to each Adult Home and source of payment, and (h) the current census of each Adult Home.
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17. As the prevailing party, DAI is entitled to reasonable attorneys' fees and costs. 42 U.S.C. § 12205 (2006); 29 U.S.C. § 794a(b) (2006). Pursuant to Fed. R. Civ. P. 54(d)(2)(B), the Court extends the deadline for submission of DAI's fee application. The parties are directed to confer and submit to the Court within 14 days of this Order a briefing schedule for DAI's fee application.
18. DAI is entitled to reasonable fees and expenses for post-judgment monitoring and enforcement of this Order.

SO ORDERED. Dated: Brooklyn, New York

NICHOLAS G. GARAUFIS United States District Judge

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 Case 1:13-cv-04165-NGG-MDG Document 16 Filed 12/10/13 Page 1 of 1 PageID #: 135

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

ERIC T. SCHNEIDERMAN ATTORNEY GENERAL
Hon. Nicholas G. Garaufis United States District Court 225 Cadman Plaza East Brooklyn, NY 11201

(212) 416-8560 December 10, 2013

KENT T. STAUFFER EXECUTIVE DEPUTY ATTORNEY GENERAL
DIVISION OF STATE COUNSEL
LISA R. DELL ASSISTANT ATTORNEY GENERAL IN CHARGE
LITIGATION BUREAU

Re: United States v. New York, No. 13-cv-4165-NGG-MDG (E.D.N.Y.) O’Toole et al. v. Cuomo et al., No. 13-cv-4166-NGG-MDG (E.D.N.Y.)
Dear Judge Garaufis:
This office represents the defendants in the above actions. I write on behalf of all parties with reference to the Court’s request that the parties consider modification of the proposed Stipulation and Order of Settlement (“Settlement Agreement”) filed on July 23, 2013. After conferring further, the parties jointly propose to modify Section L of the Settlement Agreement as follows:
The Independent Reviewer defined in Section L of the Settlement Agreement may communicate with the court on an ex parte basis, provided that the Independent Reviewer shall thereafter provide the parties a summary of the substance of the communication orally or in writing.
The parties believe that the modification will address the Court’s concerns regarding its ability to remain informed of the status of the implementation of the settlement, while allowing the parties the opportunity to remain informed of and take steps to address any issues or concerns that arise during implementation. Accordingly, the plaintiffs and the defendants in the above matters respectfully request that the Court so-order the Settlement Agreement in its entirety, with this modification and the modifications accepted in the Court’s Order dated October 4, 2013 (ECF No. 12), after the conclusion of the fairness hearing scheduled for January 9, 2013.
Respectfully submitted,
/s/ Barbara K. Hathaway
Barbara K. Hathaway Assistant Attorney General

120 BROADWAY, NEW YORK N.Y. 10271-0332 • PHONE (212) 416-8610 • FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS HTTP://WWW.AG.NY.GOV

 
 Case 1:13-cv-04165-NGG-ST Document 23 Filed 01/30/14 Page 1 of 32 PageID #: 184

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

__________________________________________

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NEW YORK,

)

)

Defendant.

)

__________________________________________)

Civil Action No. 13-CV-4165 (NGG)

__________________________________________

RAYMOND O’TOOLE, ILONA SPIEGEL, and )

STEVEN FARRELL, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, in his official

)

capacity as Governor of the State of New

)

York, NIRAV R. SHAH, in his official

)

capacity as Commissioner of the New York

)

State Department of Health, KRISTIN M.

)

WOODLOCK, in her official capacity as

)

Acting 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.

)

__________________________________________)

Civil Action No. 13-CV-4166 (NGG)

AMENDED STIPULATION AND ORDER OF SETTLEMENT
WHEREAS, the United States of America asserts as against the State of New York, and the Plaintiff Class asserts as against certain State agencies and officials, that they are prepared to commence litigation seeking declaratory and injunctive relief, alleging violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

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§ 12131 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, with respect to individuals with serious mental illness who reside in, or who may in the future reside in, NYC Impacted Adult Homes, meaning Adult Homes in New York City with certified capacities of 120 or more in which 25 percent or more of the residents or 25 residents, whichever is less, have serious mental illness; and
WHEREAS, the United States of America and the Plaintiff Class (collectively, the “Plaintiffs”) allege that the State of New York and certain State agencies and officials (collectively, the “State”) violate the ADA and the Rehabilitation Act by designing, funding, and administering the State’s mental health service system in a manner that discriminates against Persons with Serious Mental Illness who reside in NYC Impacted Adult Homes; that there are more than 4,000 individuals with serious mental illness who currently reside in NYC Impacted Adult Homes; and that NYC Impacted Adult Homes are segregated facilities that are not the most integrated setting appropriate for individuals with serious mental illness, virtually all of whom can be served in more integrated settings, specifically, supported housing; and
WHEREAS, the State of New York and State agencies and officials, namely the Commissioner of the New York State Office of Mental Health, the Commissioner of the New York State Department of Health, and the Governor of the State of New York, all in their official capacities, and the New York State Office of Mental Health (“OMH”) and the New York State Department of Health (“DOH”) (collectively “the Defendants” or “the State”), deny that they have violated the ADA or the Rehabilitation Act; and
WHEREAS, OMH has issued a Clinical Advisory stating that Adult Homes with a significant proportion of residents with serious mental illness are not conducive to the recovery and rehabilitation of these individuals and thus are not clinically appropriate settings for such individuals; and
WHEREAS, on January 16, 2013, DOH adopted regulations providing that no operator of an Adult Home located anywhere in New York State with a certified capacity of 80 or more shall admit any person with serious mental illness whose admission will cause such Adult Home to become or remain a “Transitional Adult Home” – meaning that the mental health census of such particular adult home is 25 percent or more of the resident population – and that the operator of any Transitional Adult Home must submit a compliance plan to DOH demonstrating how it will reduce such mental health census below 25 percent; and
WHEREAS, on January 16, 2013, OMH adopted regulations prohibiting OMHlicensed psychiatric inpatient units of general hospitals and private psychiatric hospitals from discharging individuals with Serious Mental Illness to Transitional Adult Homes, and has issued similar guidance to its state-operated psychiatric centers through amendments to its Official Policy Manual; and
WHEREAS, the Medicaid Redesign Team (“MRT”), established by the Governor in Executive Order No. 5 on January 5, 2011, recommended a series of reforms
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in the Medicaid Program, most of which were incorporated into the budget for State Fiscal Years 2011-12 and 2012-13, including the creation of Health Homes and the institution of an accelerated shift to Managed Long Term Care Plans (“MLTCPs”) for eligible Medicaid recipients; and
WHEREAS, as part of the implementation of the aforementioned MRT initiatives, Persons with Serious Mental Illness who reside in Transitional Adult Homes throughout the State will be enrolled in either Health Homes or MLTCPs, which will perform comprehensive assessments of the residents’ physical and behavioral health needs and arrange for needed services; and
WHEREAS, the State will require that Health Homes and MLTCPs, as part of the comprehensive assessment of a Person with Serious Mental Illness residing in a Transitional Adult Home, affirmatively work with the individual and his or her family as appropriate to recommend housing and coordinate other social, medical and behavioral health services that would be necessary to support such individual and facilitate his or her ability to live in the community; and
WHEREAS, pursuant to a Request for Proposals issued on August 10, 2012, OMH entered into contracts to fund the development of 1,050 Supported Housing units in Kings and Queens Counties over a three year period for the purpose of helping Persons with Serious Mental Illness residing in Transitional Adult Homes in such counties transition to the community as appropriate and will enter into additional similar arrangements as necessary; and
WHEREAS, the State has developed a Community Transition Unit within DOH, which includes several Community Transition Coordinators who will help facilitate efforts to transition individuals with Serious Mental Illness residing in Transitional Adult Homes to the community; and
WHEREAS, by Executive Order No. 84 issued on November 30, 2012, the Governor established a body of State officials to provide guidance in the creation of a formal Olmstead Plan; and
WHEREAS, in addition to these efforts, the State and Plaintiffs intend that the measures required pursuant to this Agreement will provide residents of Impacted Adult Homes in New York City who have serious mental illness with the opportunity to live in the most integrated setting and will ensure that they are provided with the information necessary to allow them to make informed choices about those opportunities;
IT IS HEREBY STIPULATED AND AGREED by and among the undersigned that Plaintiffs’ claims are settled on the following terms and conditions:
A. INTRODUCTION
The Parties agree that it is in their mutual interest to avoid the time, expense, and
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risk of litigation and hereby resolve the allegations by entering into this Agreement.
B. JURISDICTION
The Parties acknowledge that the Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 42 U.S.C. §§ 12131-12132 and authority to enter this Agreement and to enforce its terms as set forth herein. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
C. DEFINITIONS
1. “Adult Home” means an adult care facility licensed as an adult home by the Department of Health pursuant to Social Services Law Article 7.
2. “Transitional Adult Home” means an Adult Home with a certified capacity of 80 or more beds and a Mental Health Census of 25 percent or more of the resident population. Transitional Adult Homes include NYC Impacted Adult Homes.
3. “NYC Impacted Adult Home” means an Adult Home located in New York City with a certified capacity of 120 or more beds and a Mental Health Census of 25 percent or more of the resident population or 25 persons, whichever is less, consisting of the facilities listed in Appendix A.
4. “NYC Adult Home Resident” means a Person with Serious Mental Illness residing in a NYC Impacted Adult Home.
5. A “Person with Serious Mental Illness” means an individual who meets criteria established by the Commissioner of Mental Health, which shall be persons who have a designated diagnosis of mental illness under the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (but not a primary diagnosis of alcohol or drug disorders, organic brain syndromes, developmental disabilities or social conditions) and whose severity and duration of mental illness results in substantial functional disability.
An individual is presumed to have a substantial functional disability as a result of mental illness if the individual:
a. received treatment from a mental health services provider operated, licensed or funded by OMH within the 24 months preceding the date on which this Agreement is “so ordered” by the Court, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document,
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that the individual’s mental illness has not resulted in a substantial functional disability; or
b. is under the age of 65 and receives Supplemental Security Income (“SSI”) or Social Security Disability Insurance (“SSDI”) due to mental illness (but not a primary diagnosis of alcohol or drug disorders, organic brain syndromes, developmental disabilities or social conditions):
i. according to reliable information received from the Social Security Administration, pursuant to a reasonable agreement to share data, that the individual’s receipt of SSI or SSDI is due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document, that the individual’s mental illness has not resulted in a substantial functional disability; provided, however, that: (1) this subparagraph (b)(i) shall not apply to individuals who receive in-reach or are assessed by Health Homes or MLTCPs prior to the date on which such agreement to share data is in place; and (2) this subparagraph (b)(i) shall not apply if the State determines that it cannot reach a reasonable agreement to share data with the Social Security Administration within four months of the date on which this Agreement is “so ordered” by the Court; or
ii. according to a written final administrative determination from the Social Security Administration specifying that the individual was awarded SSI or SSDI due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document, that the individual’s mental illness has not resulted in a substantial functional disability.
6. “Mental Health Census” means the number of residents in an Adult Home who are Persons with Serious Mental Illness.
7. “Supported Housing” means scattered-site apartments for which OMH funding provides rental assistance and a minimum level of housing-related support services from the housing provider for individuals with Serious Mental Illness. These housing-related support services include assisting the resident in managing tenant/landlord relations and with transitioning to the new housing unit. In situations where a resident needs ongoing additional support to manage his or her symptoms, or assistance with living skills such as shopping, maintaining his or her living environment, medication management, and/or personal care services, the supported housing provider may assist in linking the resident with the entities that
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directly provide these additional services in coordination with the resident’s care manager (Health Home or MLTCP). These additional support services may include the Community Services listed in paragraph 8 below.
8. “Community Services” means services and supports provided in New York State that assist persons with Serious Mental Illness to live in the community. Such services and supports include, but are not limited to, Assertive Community Treatment (“ACT”), care coordination, employment services, outpatient services, Intensive Psychiatric Rehabilitation Treatment, medical services, Personalized Recovery Oriented Services (“PROS”), crisis services, assistance with taking medication (including through prompting), Medicaid benefits for which the Adult Home Resident is eligible, including but not limited to home and community based services (“HCBS”) waivers, clinic services, certified home health care, personal care assistance, nursing and rehabilitative services.
9. “Community Transition List” means one or more lists maintained for the purpose of facilitating efforts to transition NYC Adult Home Residents into the community.
10. “Health Home” means a State-approved entity that provides or arranges for care management from care management partner agencies that provide health home services including comprehensive assessment, comprehensive care management, health promotion, transitional care including appropriate follow-up from inpatient to other settings, patient and family support, referral to community and social support services, and use of health information technology to link services.
11. “Managed Long Term Care Plan” or “MLTCP” means an entity that provides or arranges for the provision of health and long-term care services to adults with chronic illness or disabilities. MLTCP services include – but are not limited to – nursing, physical therapy, occupational therapy, speech pathology, medical equipment and supplies, podiatry, dentistry, optometry, respiration therapy, transportation and social day care. These services are provided under contract with the State and Federal governments.
D. SUPPORTED HOUSING
1. The State shall fund Supported Housing units in a quantity sufficient such that every NYC Adult Home Resident for whom Supported Housing is appropriate in accordance with sections F and G of this Agreement is afforded the opportunity to transition to a unit during the time when this Agreement is in effect. The State shall have the discretion to allocate Supported Housing units within New York City as necessary for the
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implementation and oversight of the Transitional Adult Home compliance plans approved pursuant to regulations adopted by DOH; provided however, that the State shall make all reasonable efforts to coordinate the performance of assessments by Health Homes and MLTCPs with the development of Supported Housing units so that the assessments take into account Supported Housing units that are actually available or will soon become available.
2. The State shall dedicate a minimum of 2,000 Supported Housing units to help transition NYC Adult Home Residents for whom Supported Housing is appropriate out of NYC Impacted Adult Homes. The Supported Housing units referenced under this paragraph shall include:
a. The 1,050 units that are being funded and operated in Kings and Queens Counties pursuant to the RFP issued by OMH on August 10, 2012;
b. Additional units that the State will fund for development and operation of Supported Housing units in Staten Island and the Bronx pursuant to one or more RFPs that will be issued by OMH within two years of the execution of this Agreement; and
c. Additional units that the State will fund for development and operation in New York City pursuant to one or more additional RFPs to be issued by OMH, as necessary pursuant to Section D(1).
3. The use of Supported Housing units for other populations shall not reduce the State’s obligation under Section D(1) during the time when this Agreement is in effect.
E. IN-REACH
1. The State shall arrange for the entities that provide Supported Housing, as set forth in Section D, pursuant to contracts with OMH (“Housing Contractors”), to conduct in-reach in the NYC Impacted Adult Homes. In-reach shall not be provided by operators of NYC Impacted Adult Homes. For any housing contracts procured after the date of this agreement, OMH shall consider whether prospective bidders have provided onsite case management to any of the NYC Impacted Adult Homes listed in Appendix A and whether that experience, in addition to other relevant experience, would impact their ability to conduct effective in-reach.
2. The goal of in-reach is to actively support NYC Adult Home Residents in considering and making an informed choice about moving to Supported
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Housing or other housing that is the most integrated setting appropriate to the individual.
a. The State shall require Housing Contractors, in providing in-reach, to provide information about the benefits of Supported Housing and discuss any concerns that a NYC Adult Home Resident may have about moving to Supported Housing.
b. The State shall use best efforts to locate persons who live in Supported Housing and are willing to speak with NYC Adult Home Residents, so that Housing Contractors can offer NYC Adult Home Residents opportunities to speak with such persons.
c. The State shall require Housing Contractors, in providing in-reach, to provide information such as photographs and/or virtual tours of sample Supported Housing apartments that will help residents visualize Supported Housing settings.
d. The State shall require Housing Contractors to facilitate visits for those NYC Adult Home Residents who have been identified by the Health Home or MLTCP as Residents who appear to be appropriate candidates for Supported Housing pursuant to Section F but are undecided about their desire to move to Supported Housing and could benefit from such visit.
3. Housing Contractors shall provide in-reach to their designated NYC Adult Home Residents on a regular and continuing basis during the time period of their contracts with OMH.
4. The State shall advise NYC Impacted Adult Homes that they may not interfere with the reasonable access of Housing Contractors to the NYC Impacted Adult Homes and may not discourage NYC Adult Home residents from meeting with Housing Contractors. The State shall require Housing Contractors to report to the State any instances of such interference or discouragement. The State shall take appropriate corrective action to address interference or discouragement, which may include action available under Social Services Law §§ 460-d, 461 and 461-a and 18 NYCRR Parts 485 and 487 to the extent deemed appropriate by DOH.
F. ASSESSMENT
1. The State shall arrange for Health Homes and MLTCPs that have completed the State’s training, as defined in Section H, to conduct a comprehensive assessment of each NYC Adult Home Resident. If a NYC Adult Home Resident is not enrolled in a Health Home or MLTCP, then
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the State shall provide the person with a care coordinator who shall carry out the functions in this Agreement that would otherwise be assigned to a Health Home and MLTCP.
2. The assessment shall determine the housing and service needs and preferences of the NYC Adult Home Resident for purposes of transitioning from the NYC Impacted Adult Home. Each assessment shall identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual’s needs and personal preferences.
3. Community integration and self-determination shall be key considerations in the assessment process.
4. Health Homes and MLTCPs shall have the linguistic and cultural competence in the aggregate to serve competently all NYC Adult Home Residents.
5. Assessments shall begin with the presumption that NYC Adult Home Residents can live in Supported Housing. A resident will be considered appropriate for Supported Housing if desired by the resident, unless the assessment discloses that the resident:
a. Has significant dementia;
b. Would be a danger to self or others in Supported Housing even if receiving the services referenced in subparagraph d below;
c. Needs skilled nursing care that cannot be provided outside of a nursing home or hospital; or
d. Needs a type and/or frequency and duration of service on an ongoing and sustained basis in order to live in Supported Housing that is not available under the New York State Medicaid program, unless another public (e.g., Medicare) or private (e.g., Meals on Wheels) program will pay for or provide the needed service, the individual is eligible for such program, and such program is available to such individual.
Services available through the New York State Medicaid program include, but are not limited to, Medicaid-billable Community Services, such as assertive community treatment (“ACT”), care coordination, crisis services, home health services, assistance with taking medication (including through prompting), personal care services, licensed mental health clinic services and successor programs that serve the same functions as these services; provided,
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however, that (i) Medicaid services shall be available to NYC Adult Home Residents pursuant to the same criteria applicable to other similarly situated individuals enrolled in the Medicaid program; and (ii) nothing in this Agreement shall prevent the State from discontinuing or revising these or any other services offered in the Medicaid program, subject to Section J(2) below.
6. A NYC Adult Home Resident shall not be determined to be inappropriate for Supported Housing solely based on lack of desire unless he or she has been provided with the opportunity to receive In-Reach, pursuant to Section E above.
7. If a NYC Adult Home Resident is assessed as not appropriate for Supported Housing:
a. the assessment must identify the specific reasons why such Supported Housing is not appropriate; and
b. the Resident will be afforded the opportunity to live in the most integrated setting desired by the Resident that is appropriate to the Resident’s needs.
G. PERSON-CENTERED CARE PLANNING
1. The State shall require that for each NYC Adult Home Resident assessed pursuant to Section F, the Health Home or MLTCP shall develop the individual’s person-centered care plan. The person-centered care planning shall include consideration of the current and unique psychosocial and medical needs and history of the individual as well as the functional level and support systems developed by the Health Home or MLTCP care manager.
2. The State shall require that each NYC Adult Home Resident be provided with a primary role in developing the plan and with information reasonably sufficient to assist him or her in making informed choices about housing and services.
3. The State shall require that each person-centered plan identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual’s needs and personal preferences and subject to the provisions of Section F(5). In cases where OMH Supported Housing is part of the person-centered plan developed by the Health Home or MLTCP, the assigned Health Home or MLTCP care manager will make a referral to the appropriate Housing Contractor.
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H. TRAINING
1. Within 180 days of the execution of this Agreement or within 30 days of the commencement of operations of a Health Home or MLTCP, whichever is later, the State shall provide guidance and training to the Health Homes and MLTCPs pertaining to the assessment of NYC Adult Home Residents and the development of person-centered care plans. Such guidance and training shall include the requirement that each assessment identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual’s needs and personal preferences and subject to the provisions of Section F (5), and the presumption that all NYC Adult Home Residents can live in Supported Housing, subject to the provisions of Section F (5).
2. Within 180 days of the execution of this Agreement or within 30 days of the commencement of activity on a contract awarded to a Housing Contractor, whichever is later, the State shall provide guidance and training to the Housing Contractors pertaining to their obligations to provide in-reach, including techniques of motivational interviewing, and the presumption that all NYC Adult Home Residents can live in Supported Housing, subject to the provisions of Section F (5).
I. TRANSITIONING
1. The State shall require the Housing Contractors, Health Homes and MLTCPs to carry out their responsibilities so that the following schedule is achieved:
a. Within four years of execution of this Agreement, at least 2,500 NYC Adult Home Residents shall be assessed by Health Homes or MLTCPs pursuant to Section F and, if appropriate under a personcentered care plan developed pursuant to Section G, transitioned from NYC Impacted Adult Homes.
b. Within five years of the execution of this Agreement, all NYC Adult Home Residents shall be assessed by Health Homes or MLTCPs pursuant to Section F and, if appropriate under a personcentered care plan developed pursuant to Section G, transitioned from NYC Impacted Adult Homes.
2. The State shall provide any NYC Adult Home Resident who is otherwise eligible for Supported Housing pursuant to Section F, but who declines an offer for Supported Housing, with the opportunity for additional in-reach and, if the Resident so desires, the opportunity to move to Supported Housing, during the period in which this Agreement is in effect. Such
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additional in-reach shall be provided periodically, but on no less than an annual basis, by a Housing Contractor. If no Housing Contractor is available, in the discretion of OMH, to provide such in-reach, the State shall provide or arrange for an equivalent in-reach function.
J. COMMUNITY SERVICES
1. For the duration of this Agreement, the State shall ensure that Health Homes and MLTCPs arrange for the provision of Community Services identified in NYC Adult Home Residents’ person-centered plans, consistent with Section G, and ensure that such Services are available.
2. For the duration of this Agreement, the Community Services available to NYC Adult Home Residents (whether through the Medicaid program or another program), if the Resident is eligible for the service, shall include the following services or, if the State replaces or changes the services, services that perform substantially the same function: licensed mental health clinic services, assertive community treatment (“ACT”), home health services, mobile crisis services, care coordination, assistance with taking medication (including through prompting), and personal care services; provided, however, that eligibility for such services must be determined on an individual basis based on eligibility criteria that are comparable to criteria in place on the date this Agreement is executed.
3. For purposes of determining an individual’s eligibility for ACT, eligibility shall be determined by the OMH Statewide ACT Guidelines.
K. REPORTING
1. Until the Court terminates jurisdiction over this matter, Defendants shall provide to the Plaintiffs, the Independent Reviewer (defined in Section L below), and the Court a quarterly report that indicates:
a. The number of Supported Housing units for which the State has provided funding and the Housing Contractors that received funding.
b. The number of Supported Housing units created pursuant to this Agreement that are occupied by NYC Adult Home Residents.
c. The name of each NYC Adult Home resident who has been identified as a Person with Serious Mental Illness at each of the NYC Impacted Adult Homes listed in Appendix A.
d. The name of each NYC Adult Home Resident who has been assessed under Section F, the date of assessment, the NYC
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Impacted Adult Home at which he or she resided when assessed, and the housing recommendation made as a result of each assessment.
e. The name of each NYC Adult Home Resident who has transitioned, the Adult Home in which he or she lived, the date on which he or she moved, and the type of housing to which he or she moved.
f. The name of each NYC Adult Home Resident assessed as not appropriate for Supported Housing, and the specific reasons why such Supported Housing is not appropriate.
2. The quarterly report required in Section K(1) shall be provided in an electronic format that may be imported into standard spreadsheet software.
3. Until the Court terminates jurisdiction over this matter, Defendants shall provide to Plaintiffs and the Reviewer:
a. A copy of any training materials used in connection with the State’s training pursuant to Section H.
b. A copy of the Community Transition List, updated quarterly.
4. Until the Court terminates jurisdiction over this matter, Defendants shall notify Plaintiffs and the Reviewer about any instances in which the State has received a report that a NYC Adult Home Resident is being discouraged by an Adult Home from exploring alternatives to or transitioning from Adult Homes.
5. A request by Plaintiffs or the Independent Reviewer for relevant information shall not be unreasonably denied. The Parties shall negotiate in good faith any areas of disagreement as to whether and when such information shall be made available.
6. Any personally identifying information shared with the Plaintiffs or the Reviewer under this Agreement shall be treated and maintained as confidential.
7. The Parties and the Reviewer shall meet quarterly to discuss implementation progress and obstacles and how to overcome obstacles to achieving the goals of this Agreement.
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L. INDEPENDENT REVIEWER
1. The Parties agree that Clarence Sundram shall be the Independent Reviewer (“Reviewer”) to monitor the State’s implementation of this Agreement (the “Reviewer”). The State shall retain the Independent Reviewer within 60 days of executing this Agreement.
2. In the event the Reviewer resigns or the Parties agree to replace the Reviewer, the Parties shall meet and confer within 30 days of the resignation or their agreement and select a replacement. If they are unable to agree on the replacement Reviewer at the “meet and confer,” the Plaintiffs and the State shall each, within 21 days of the “meet and confer,” nominate up to two individuals with expertise in the provision of community services to persons with mental illness. The Court shall select the Reviewer from among those nominated by the Parties.
3. The annual budget for the Reviewer shall be $350,000.00. All reasonable fees, costs and expenses of the Reviewer, including the cost of any consultants or staff hired by the Reviewer, shall be borne by the State up to the amount of this annual budget. The Reviewer shall provide a monthly accounting justifying the fees, costs and expenses. In no event will the State reimburse the Reviewer for any fees, costs or expenses that exceed the amount of this annual budget. Provided, however, in the event of significant changes in circumstances that result in the Independent Reviewer having to spend substantially more time or incur substantial and unforeseen expenses, the Independent Reviewer may seek approval by the State for an amendment to the budget and submit a justification for such amendment. Within 30 days, the State may question the need for, or the amount of, such additional unforeseen expenses, may suggest other alternatives to avoid some or all of such expenditures, and may withhold approval of such expenses; provided that approval of the proposed amendment shall not be unreasonably withheld. The State shall be the final arbiter of what costs and expenses are considered reasonable; provided, however, that any costs incurred consistent with the methodology approved pursuant to Section L (11) shall be considered reasonable.
4. Within the budget described in Section L (3) above, the Reviewer may hire staff and consultants, in consultation with and subject to reasonable objections by the State, to assist in his or her evaluation of the State’s compliance with this Agreement. The Reviewer and any hired staff or consultants are neither agents nor business associates of the State, the United States, the Plaintiff Class, or the Court.
5. The Reviewer shall confer regularly and informally with the Parties on matters related to implementation efforts and compliance.
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6. The Reviewer, and any hired staff or consultants, may:
a. Have ex parte communications at any time with the Parties, including counsel for the Parties, and employees, agents, contractors and all others working for or on behalf of the State, the Plaintiff Class or the United States to implement the terms of this Agreement.
b. Request meetings with either or both Parties. The purpose of these meetings shall include, among other things, prioritizing areas for the Reviewer to review, scheduling visits, discussing areas of concern, and discussing areas in which technical assistance may be appropriate.
c. Speak with stakeholders with such stakeholders’ consent, on a confidential basis or otherwise, at the Reviewer’s discretion.
d. Speak with anyone else the Reviewer and any staff/consultants deem necessary for completing the compliance evaluations and reports required by this Agreement. However, the State has no obligation to require any individual who is not a State employee or contractor to speak with the Reviewer.
e. Provide technical assistance to the State regarding any issue related to compliance with this Agreement.
f. Attempt to resolve any dispute arising out of a Party’s position with regard to the construction or implementation of this Agreement.
g. Testify in this case regarding any matter relating to the implementation, enforcement, or dissolution of the Agreement, including the Reviewer’s observations, findings and recommendations in this matter. The Reviewer may not voluntarily testify as an expert witness against the State in any other administrative or civil proceeding of whatever nature brought before any federal or state court or other administrative or judicial tribunal. This limitation shall be a required term in the State’s Contract with the Reviewer, which is subject to the approval of the New York State Comptroller.
7. Throughout the pendency of this Agreement, the Reviewer will pursue a problem-solving approach so that disagreements can be minimized and resolved amicably and the energies of the Parties can be focused on the State’s compliance with the provisions of the Agreement.
15

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8. The Reviewer shall comply with all federal and State patient rights and confidentiality laws and regulations, including, but not limited to, those set forth in the New York State Public Health Law and Mental Hygiene Law, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standard for Privacy of Individually Identifiable Health Information and Health Insurance Reform: Security Standards, 45 C.F.R. Part 164, alcohol and drug abuse patient records laws codified at 42 U.S.C. § 290dd-2 and 42 C.F.R. Part 2, the Health Information Technology for Economics and Clinical Health Act (“HITECH Act”) adopted as part of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). For the purposes of Mental Hygiene Law § 33.13 (c) 1, the need for the Reviewer to access all relevant, otherwise confidential information shall be deemed to significantly outweigh the need for confidentiality.
9. The duties of the Reviewer shall be to observe, review, report findings, and make recommendations to the parties solely with respect to the implementation of and compliance with the Agreement. The State shall direct all agencies, employees and contractors to cooperate fully with the Reviewer. Neither Party shall interfere with the independent functions of the Reviewer. The Reviewer shall devote such time as is necessary to fulfill the purposes of the duties and responsibilities of the Reviewer pursuant to this Agreement, but within the annual budget set forth in Section L (3).
10. The Reviewer and any staff/consultants will have full access to the people, places, and documents that are necessary to assess the State’s compliance with and/or implementation of this Agreement, as permitted by law and in accordance with the limitations set forth in Section L (8).
11. The Reviewer shall consult with the Parties and shall submit a written plan with regard to the methodologies to be used by the Reviewer to assess compliance with and implementation of the Agreement. The Parties shall approve the plan prior to implementation. The Reviewer’s evaluations may include regular onsite inspection of individuals’ residences, with the consent of such individuals, and interviews with individuals receiving services under this Agreement who consent to be interviewed.
12. In consultation with the Independent Reviewer, the State shall develop a work plan to guide its implementation of this Agreement within 120 days after the Reviewer is engaged by the State. The State shall share the work plan with the Parties.
13. The Reviewer shall conduct evaluations of and issue five annual written reports regarding the State’s compliance. The Reviewer shall produce five annual reports regarding the State’s compliance with particular provisions
16

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of the Agreement to the Parties and the Court pursuant to the time frame in Section L (14).
14. The written report shall detail with as much specificity as possible how the State is or is not in compliance with particular provisions of the Agreement. A draft of the Reviewer’s report shall be provided to the Parties for comment each year within 30 days after the anniversary date of the Court’s approval of this Agreement. The parties shall have 30 days after receipt of such draft report to provide comments to the Reviewer, on notice to each other, and the Reviewer shall issue to the Parties a final annual report within 15 days after receiving such comments; provided, however, that the parties may agree to extend such deadlines.
15. The Reviewer, including any hired staff or consultants, shall not enter into any new contract with the State, the Plaintiff Class, or the United States while serving as the Reviewer without the written consent of the other Party.
16. The Reviewer, including any hired staff or consultants, shall not be:
a. Liable for any claim, lawsuit, or demand arising out of the reviewing functions set forth in this Settlement Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for reviewing functions under this Settlement Agreement.
b. Subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Independent Reviewer’s records or communications, although the Independent Reviewer may provide copies of records or communications at the Reviewer’s discretion. The Court may review relevant records of the Reviewer in an enforcement proceeding pursuant to Court order under Section M of this Agreement.
17. The Independent Reviewer defined in Section L of the Settlement Agreement may communicate with the court on an ex parte basis, provided that the Independent Reviewer shall thereafter provide the parties a summary of the substance of the communication orally or in writing.
M. ENFORCEMENT
1. The Parties agree jointly to file this Agreement with the United States District Court for the Eastern District of New York.
17

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2. The Court shall retain jurisdiction to assure compliance with this Agreement but not for more than 60 days after the Reviewer has provided the Parties with its fifth and final report, at which time this Agreement shall expire, provided, however:
a. The Parties may agree to jointly ask the Court to terminate the Agreement earlier. Upon 30 days’ notice to the Parties and the Independent Reviewer, the State may also move to terminate the Agreement, which motion shall be granted if the State demonstrates that it has substantially complied with all its obligations as set out in this Stipulation. Before the Court considers the motion, the Independent Reviewer shall evaluate the State’s compliance since the last annual report and the Parties shall have an additional 30 days to review the evaluation.
b. Plaintiffs may move to extend the Court’s jurisdiction, which motion shall be granted if the Plaintiffs advise the Court, on notice to the State, no later than 60 days after receiving the Independent Reviewer’s fifth and final report, that the State is not in substantial compliance with the Agreement. In such case, Plaintiffs shall describe with as much specificity as possible how the State is not in substantial compliance with particular provisions of the Agreement. If the State contends that it is in substantial compliance, the Court shall schedule further proceedings, and in such proceedings the burden shall be on the State to demonstrate substantial compliance as to the provisions identified by Plaintiffs. If the State demonstrates such substantial compliance, the motion to extend the Court’s jurisdiction shall not be granted.
3. In the event Plaintiffs allege non-compliance by Defendants with a material provision of this Agreement, counsel to the Parties shall meet and confer in an effort to resolve the reported non-compliance within 30 days after Defendants’ counsel receives written notice.
a. If such efforts fail to achieve a resolution of the issue within 60 days of such “meet and confer,” Plaintiffs may bring a motion for enforcement of this Agreement and the Court shall determine a reasonable schedule for the hearing and determination of such motion.
b. In the event of such a motion, Defendants will be considered to be in “compliance” unless Plaintiffs establish that Defendants’ failures or omissions to meet the terms of this Agreement were not minimal or isolated but were substantial and sufficiently frequent or widespread to be systemic.
18

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N. ATTORNEYS’ FEES; POST-SETTLEMENT ACTIVITIES
1. Defendants shall pay to Plaintiff Class the sum of $200,000 in full satisfaction of any and all claims in this lawsuit and in Disability Advocates, Inc. v. Paterson, 03 CV 3209 (NGG), for attorneys’ fees, costs and disbursements up to and including the date of execution of this Agreement, which fees, costs and disbursements shall be substantiated by back-up documentation including contemporaneous time sheets. In the event that payment of this amount is not made within one hundred twenty (120) days after the receipt by defendants’ counsel of a copy of this fully executed Agreement, approved by the Court, interest shall accrue on the outstanding balance at the rate set forth in 28 U.S.C. § 1961, beginning on the one hundred and twenty-first day after receipt by defendants’ counsel of a copy of this fully executed and so-ordered Agreement. The foregoing payment shall be made payable to Disability Advocates, Inc. and sent to Disability Advocates, Inc. DBA Disability Rights New York, 5 Clinton Square, Albany, NY 12207, or in the event its offices shall relocate to its then current address.
2. During the term of this Agreement it is anticipated that Plaintiff Class will incur certain legal fees, and other costs and disbursements. Plaintiffs, Plaintiff Class and counsel for the Plaintiff Class agree to limit all such attorneys’ fees, costs and disbursements to what is directly and reasonably necessary, up to a combined total, which shall not exceed $75,000 per year, calculated on the basis of a 365 day year, beginning on the date of execution of this Agreement and ending on the date this Agreement expires under Section M.2. During the term of this Agreement, Counsel for the Plaintiff Class agree to submit vouchers and contemporaneous time records to defendants’ counsel on a semi-annual basis for any such attorneys’ fees, costs and disbursements and defendants agree to reimburse counsel for the Plaintiff Class within one hundred twenty (120) days of receipt of such vouchers. If payment is delayed beyond one hundred twenty (120) days, defendants will also pay interest at the rate set forth in 28 U.S.C. § 1961, which shall accrue beginning on the one hundred twenty-first day. The foregoing payment(s) shall be made payable to Disability Advocates, Inc. and sent to Disability Advocates, Inc. DBA Disability Rights New York, 5 Clinton Square, Albany, NY 12207, or in the event its offices shall relocate to its then current address.
3. For and in consideration of the payments referred to in paragraph N.1 and N.2 above, the sufficiency of which is hereby acknowledged, Plaintiffs, Plaintiff Class, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Disability Advocates, Inc., New York Lawyers for the Public Interest, Bazelon Center for Mental Health Law, Urban Justice Center and MFY Legal
19

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Services, Inc., hereby release and forever discharge the State of New York, OMH, DOH, and all of their present and former principals, officers, directors, members, employees, agents, attorneys, insurers, subdivisions, subsidiaries, heirs, administrators, and assigns, individually and in their official capacities, from any and all claims for attorneys’ fees, costs, and/or disbursements incurred in connection with this action, including but not limited to all pre-litigation activities including negotiations, and all claims for attorneys’ fees, costs, fees, and/or disbursements incurred in connection with Disability Advocates, Inc. v. Paterson, 03 CV 3209 (NGG) in the United States District Court for the Eastern District of New York, and in this Action.
4. The payment(s) referenced in paragraph N.1 and N.2 of this Agreement are subject to the approval of all appropriate state officials in accordance with N.Y. Public Officers Law § 17.
O. MISCELLANEOUS
1. In the event that, subsequent to the date of execution of this Agreement, a court of competent jurisdiction issues a temporary restraining order, a preliminary or permanent injunction, or judgment staying the enforcement of, or invalidating, whether in whole or in material part, the Adult Home Regulations (as defined herein), the Parties shall meet and confer in good faith to determine appropriate modifications to this Agreement that would give effect to the original intent of the Parties as expressed herein. The Parties commit to meeting and conferring in good faith at least three times during a period of 120 days after such a court order. If, after the 120-day period, the Parties fail to reach an agreement on appropriate modifications to this Agreement, then this Agreement will become null and void, and the Parties retain all rights to revive any claims or defenses otherwise barred by operation of this Agreement. For purposes of this subsection, the term “Adult Home Regulations” shall refer to any of 18 NYCRR § 487.4(c) or 14 NYCRR §§ 580.6(c)(2) or 582.6(c)(2) as adopted January 16, 2013 (I.D. No. HLT-32-12-00020-A, and I.D. No. OMH-32-12-00019-A). or as thereafter amended. Notwithstanding any of the foregoing, the parties may mutually agree to a stay of enforcement of this Agreement, during which it will not be rendered null and void.
2. The Defendants shall use best efforts to seek and secure funding necessary to implement the terms of this Agreement. This Agreement is subject to legislative appropriation of such funding and if such appropriations are not made, the Parties shall retain all rights to revive any claims or defenses otherwise barred by operation of this Agreement.
3. Solely for purposes of this agreement, the Parties agree to entry of an Order certifying the class, defined as NYC Adult Home Residents, as
20

Case 1:13-cv-04165-NGG-ST Document 23 Filed 01/30/14 Page 21 of 32 PageID #: 204
defined in Section C (4). Any costs associated with certification of or notification to such class shall be borne by Plaintiffs. In the event that the class is not certified, this Agreement shall remain unaffected as between the Named Plaintiffs, the United States and the State.
4. Nothing contained herein shall be deemed to be an admission by the Defendants that they have in any manner or way violated the Plaintiffs’ or any individual Adult Home Resident’s rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules or regulations of the United States, the State of New York, or the City of New York or any other rules, regulations or by-laws of any department or subdivision of the State of New York.
5. This Agreement shall not be admissible in, nor is it related to, any other litigation or settlement negotiations, except in an action or proceeding by the Plaintiff to enforce the terms of this Agreement, or in a civil action involving the State and another party in which the validity of the regulations adopted on January 16, 2013 (I.D. No. HLT-32-12-00020-A, and I.D. No. OMH-32-12-00019-A), or as thereafter amended, is at issue.
6. Nothing in this Agreement shall be enforced in a manner that would require a fundamental alteration of the State’s programs, activities, or services for Persons with Serious Mental Illnesses. Nothing in this paragraph is intended to amend or change in any way the obligations set forth in this Agreement, or prevent appropriate enforcement of this Agreement.
7. This Agreement contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Agreement regarding the subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein.
8. All Parties to this Agreement have participated in its drafting; consequently, any ambiguity shall not be construed for or against any party.
9. If any of the dates or periods of time described in this Agreement fall or end on a public holiday or on a weekend, the date or period of time shall be extended to the next business day.
10. All correspondence concerning this Agreement should be sent to the following (or to such other address as the recipient named below shall specify by notice in writing hereunder):
To Defendants:
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Case 1:13-cv-04165-NGG-ST Document 23 Filed 01/30/14 Page 22 of 32 PageID #: 205
Barbara K. Hathaway, Assistant Attorney General Office of the Attorney General 120 Broadway 24th floor New York, New York 10271 Tel: 212-416-8560 e-mail: barbara.hathaway@ag.ny.gov
To Plaintiff United States:
Chief of the Disability Rights Section U.S. Department of Justice 950 Pennsylvania Ave., NW – NYA Washington, DC 20530 Tel: 202-307-0663
To the Plaintiff Class:
Andrew G. Gordon PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel: 212-373-3543
-and-
Cliff Zucker DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207 Tel: 518-432-7861
11. This Agreement may not be modified without the express written agreement of counsel for the Parties. Absent such agreement, the Parties may seek a modification of this Agreement only for good cause shown, with the Court’s approval, upon thirty (30) days’ written notice to counsel for the other Parties.
12. This Agreement may be executed in counterparts, and each counterpart, when executed shall have the full efficacy of a signed original. Photocopies of such signed counterparts may be used in lieu of the originals for any purpose.
13. Signatories
22

Case 1:13-cv-04165-NGG-ST Document 23 Filed 01/30/14 Page 23 of 32 PageID #: 206 a. The undersigned representative of the Defendants and the Attorney General of the State of New York certifies that he or she is authorized to enter into the terms and conditions of this Agreement and to execute and bind legally such Defendants to this document. b. Each undersigned representative of Plaintiffs certifies that he or she is authorized to enter into the terms and conditions of the Agreement and to bind legally the Plaintiff to this document.
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Case 1:13-cv-04165-NGG-ST Document 23 Filed 01/30/14 Page 25 of 32 PageID #: 208

For the Plaintiff Class:
Dated: 1/2-8/iM
Andi' Julie E.I(Fink Geoffrey Chepiga PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064

Cliff Zucker Timothy A. Clune DISABILITY ADVOCATES, INC. 5 Clinton Square, 3rd floor Albany, NY 12207

Veronica S. Jung Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street, 11th floor New York, NY 10001-4007

Ira A. Bumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street, N.W., Suite 1212 Washington, DC 20005

Mara Kuns URBAN JUSTICE CENTER 123 William Street, 16th floor New York, NY 10038

Jeanette Zelhof Kevin Cremin Jota Borgmann MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

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Case 1:13-cv-04165-NGG-ST Document 23 Filed 01/30/14 Page 32 of 32 PageID #: 215
Appendix A: NYC Impacted Adult Homes1
1. Belle Harbor Manor 2. Brooklyn Adult Care Center 3. Central Assisted Living, LLC 4. Elm York LLC 5. Garden of Eden Home 6. Harbor Terrace Adult Home and Assisted Living 7. Kings Adult Care Center 8. Lakeside Manor Home for Adults, Inc. 9. Mermaid Manor Home for Adults 10. New Gloria's Manor Home for Adults 11. New Haven Manor 12. Oceanview Manor Home for Adults 13. Park Inn Home 14. Parkview Home for Adults 15. Queens Adult Care Center 16. Riverdale Manor Home for Adults 17. Rockaway Manor HFA 18. S.S. Cosmas and Damian Adult Home 19. Sanford Home 20. Seaview Manor, LLC 21. Surf Manor Home for Adults 22. Surfside Manor Home for Adults, LLC 23. Wavecrest Home for Adults
1 This list is based on the New York State Department of Health’s Adult Care Facility Annual Census Report.
27

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------){
THE UNITED STATES OF AMERICA,

-against-

Plaintiff,

STATE OF NEW YORK,

Defendant.
---------------------------------------------------------------------)(
RAYMOND O'TOOLE, ILONA SPIEGEL, and STEVEN FARRELL, individually and on behalf ofall others similarly situated,
Plaintiffs,
-against-
ANDREW M. CUOMO, in his official capacity as Governor of the State ofNew York, NIRAV R. SHAH, in his official capacity as Commissioner of the New York State Department ofHealth, KRISTIN M. WOODLOCK, in her official capacity as Acting Commissioner ofthe New York State Office ofMental Health, THE NEW YORK STATE DEPARTMENT OF HEALTH, and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.
---------------------------------------------------------------------)(
NICHOLAS G. GARAUFIS, United States District Judge.

13-CV-4165 (NGG) (MDG) 13-CV-4166 (NGG) (MDG)
MEMORANDUM & ORDER

Before the court is Plaintiffs' Motion for Final Approval ofthe Proposed Settlement Agreement and Attorney's Fees. (Class Dkt. 30.)1 Plaintiffs Raymond O'Toole, Ilona Spiegel, and Steven Farrell ("Plaintiffs") brought this class action on behalfofthemselves and a class of New York City adult home residents (the "Class"). On November 20, 2013, the court certified the class, preliminarily approved the Proposed Settlement Agreement, and approved the notice of the proposed settlement to be sent to class members. (Order (Class Dkt. 23).) The court held a fairness hearing on January 9, 2014. (See Jan. 10, 2014, Min. Entry.)
Having considered the statements at the fairness hearing and all written submissions, the court finds that the Class was afforded adequate notice, and the terms ofthe Proposed Settlement Agreement as revised (Dkt. 23; Class Dkt. 53) are fair, reasonable, and adequate. The proposed attorney's fee amount contained in the agreement is also reasonable. Accordingly, the court GRANTS Plaintiffs' Motion for Final Approval ofthe Proposed Settlement Agreement and Attorney's Fees in case No. 13-CV-4166. For purposes of the associated case No. 13-CV-4165, brought by the United States against the State ofNew York, the Proposed Settlement Agreement serves as a Consent Judgment and is also APPROVED.
I. BACKGROUND
Although the present cases were filed just eight months ago, they have a lengthy history. In 2002, the New York Times featured a series ofarticles on the deplorable conditions in many New York City adult homes. The articles documented the dangerously poor care afforded residents, the vermin and squalor present in the facilities, and the mismanagement ofresidents' funds entrusted to administrators. S_eJ: Clifford J. Levy, For Mentally Ill. Death and Misery, N.Y.
For ease ofreference, the court cites the docket corresponding to United States v. New York, No. 13-CV4165 (NGG) as " Dkt." and cites the docket corresponding to O'Toole. et al.. v. Cuomo. et at, No. 13-CV-4166 (NGG) as "Class Dkt."
2

Times, Apr. 28, 2002; Levy, Here, Life is Squalor and Chaos, N.Y. Times, Apr. 29, 2002; Levy, Voiceless, Defenseless and Source of Cash, N.Y. Times, Apr. 30, 2002.2
In 2003, Disability Advocates, Inc. brought suit to vindicate the rights of individuals with mental illness residing in, or a~ risk of entry into, New York City adult homes. See Disability Advocates. Inc. v. Paterson. et al., No. 03-CV-3209 (NGG) ("DAI").3 Following years of litigation including extensive discovery, multiple expert reports, and a five-week bench trial, the court foWld that the State had violated the Americans with Disabilities Act of 1990 and the Rehabilitation Act by failing to serve adult home residents in the most integrated setting appropriate to their needs. Mem. & Order re Findings of Fact & Cones. of Law, DAI, 653 F. Supp. 2d 184, 314 (E.D.N.Y. Sept. 8, 2009). The court gave the State an opportunity to submit a proposed remedy to address these civil rights violations. Finding the State' s proposal to be "egregiously deficient," the court subsequently adopted the plaintiffs remedial proposal with minor modifications and, over the State's objections, appointed a court monitor to oversee implementation ofthe remedy. Mem. & Order re Remedial Order & J., DAI, No. 03-CV-3209 (NGG), 2010 WL 786657, *1 , 7 (E.D.N.Y. Mar. 1, 2010). The State appealed, and the Second Circuit vacated the court's decision on the grounds of standing but did not question the factual or legal findings on the merits. See Disability Advocates. Inc. v. N.Y. Coalition for Quality

2

Some of the articles' findings had been previously highlighted in a 1979 investigation by the Brooklyn

Deputy Attorney General. See Charles J. Hynes, Private Proprietary Homes for Adults: A Second Investigative

Report (1979). Multiple studies and reports s ince that time further documented the ongoing problems with adult

homes and concluded that they are not conducive to rehabilitation or care ofpersons with mental illness. See Lloyd

I. Sederer, ChiefMed. Officer, Office of Mental Health, Clinical Advisory (2012); N.Y. State Adult Care Facilities

Workgroup, Report Submitted to the Commissioner, Department of Health (2002); N.Y. State Comm' n on Quality

ofCare for the Mentally Disabled, Exploiting Not-For-Profit Care in an Adult Home: The Story Behind Ocean

House Center, Inc. (2001); N.Y. State Comm'n on Quality ofCare for the Mentally Disabled & Mental Hygiene

Rev. Bd., Adult Homes Serving Residents with Mental Illness: A Study of Conditions, Services, and Regulations

(1990) .

3

The subject matter ofDAI was essentially the same as the present cases, and in that action, plaintiff

Disability Advocates, Inc. was represented by the five legal organizations who here, collectively with Disability

Rights New York, serve as Class Counsel.

3

Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012). The parties negotiated the proposed settlement in the aftermath of the Second Circuit's ruling.
The court recounts this history to provide context for this Memorandum and Order concerning settlement. While the court applauds the settlement reached by the parties, it notes that it has required decades of investigations, litigation, and settlement negotiations to compel the State to provide adult home residents what is due under the law. Relief for these residents is long overdue, and the court considers this delay to be unconscionable.4
A. The Present Cases On July 23,2013, the United States filed an enforcement action against the State ofNew York for failing to provide individuals with mental illness residential opportunities in the "most integrated setting" suited to their needs, as required by Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12134 ("ADA"), section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and their implementing regulations (as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999)). (Compl. (Dkt. 1).) Plaintiffs simultaneously filed, on behalfofthemselves and a class of individuals with serious mental illness who reside in 23 "impacted" adult homes5 in New York City, an action for injunctive and declaratory relief on the same grounds. (Class Compl. (Class Dkt. 1).) The two cases were consolidated and assigned to this court. (Aug. 20,2013,

4

Nonetheless, the court commends the State ofNew York, Governor Andrew M. Cuomo, and the coalition

ofplaintiffs, their counsel, and the Justice Department for their diligent efforts to resolve this controversy.

s

An "impacted" home is one in which at least 25% ofthe residents or twenty-five residents

(whichever is fewer) have a mental illness. See N.Y. Exec.§ 553.10 (McKinney 2013). The 23 impacted adult

homes are Belle Harbor Manor, Brooklyn Adult Care Center, Central Assisted Living, LLC, Elm York LLC, Garden

ofEden Home, Harbor Terrace Adult Home and Assisted Living, Kings Adult Care Center, Lakeside Manor Home

for Adults, Mennaid 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 Home for Adults, S.S. Cosmas and Damian Adult Home,

Sanford Home, Seaview Manor LLC, Surf Manor Home for Adults, Surfside Manor Home for Adults, and

Wavecrest Home for Adults.

4

Min. Entry.) The parties immediately filed a joint proposed Stipulation and Order ofSettlement. (Dkt. 5; Class Dkt. 5.) On November 20, 2013, the court certified the class as:
All individuals with serious mental illness who reside in impacted adult homes in New York City with a certified capacity of 120 or more beds and a mental health census of 25 percent or more of the resident population or 25 persons, whichever is less. (See Nov. 20, 2013, Order at 3-4; Memo. in Supp. ofPls.' Mot. for Class Cert. (Class Dkt. 14) at 1.) The court also granted preliminary approval of the proposed settlement, approved the class notice, and appointed as Class Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP; Disability Advocates, Inc. (now doing business as Disability Rights New York); The Bazelon Center for Mental Health Law; New York Lawyers for the Public Interest, Inc.; MFY Legal Services; and the Urban Justice Center. (Nov. 20, 2013, Order at 3-4.)
B. Proposed Settlement Agreement
The Proposed Settlement Agreement requires substantially the same reliefas contained in the court's remedial order in the DAI litigation. Under the terms of the settlement, within five years, the State must provide class members the opportunity to move into supported housing. (Amend. Stip. & Order of Settlement ("Settlement") (Dkt. 23; Class Dkt. 53)§ 1(1).) The State will provide a minimwn of2,000 supported housing units for current adult home residents, and any additional units that are necessary. (Id. § D(1)-(2).) . Adult home residents will have the opportunity to undergo individual assessments to evaluate their eligibility for supported housing, identify housing in the most integrated setting appropriate for their needs, and detennine what mental health services they would need in this setting. QQ..§ F.) To help adult home residents make an informed decision about whether to move, supported housing providers will conduct "in-reach" to explain the benefits ofsupported housing, detail the options available, and address any concerns. (Id. §E.) Eligible residents who choose to transition into supported housing or
5

other housing that is appropriate to their needs will receive services to aid with their move and transition into the community. (ld. § J.) The proposed settlement does not require any individual to move or undergo assessment against his or her will. (Pis.' Pre-Hr'g Mem. ofLaw in Supp. of Mot. for Final Approval of the Proposed Settlement and Atty's Fees ("Pls.' Mem.") (Class Dkt. 31) at 7; Pis.' Feb. 4, 2014, Ltr. (Class Dkt. 54) at 3-4.)
Implementation of the settlement will be monitored by the court and an Independent Reviewer. (Settlement§ L(1).) Clarence Sundram, an experienced disability rights advocate who has served in a similar role in other cases, will serve as the Independent Reviewer. (ld.; Pis.' Feb. 4, 2014, Ltr. at 4-5.) He and any staffor consultants will work with the parties to resolve disputes that arise during implementation and may communicate with the court about progress, provided he submit a written summary ofsuch communications to the parties after the fact. (Settlement§§ L(6), L(l7).) The parties will submit quarterly progress reports to the court
about implementation of the settlement. ilil § K(1).) Mr. Sundram will submit five annual
reports to the court about the State's compliance with the settlement. (ld. § L(13).) The court will retain jurisdiction to enforce the settlement until 60 days after the final annual report by the Independent Reviewer. (Id. § M(2).)
C. Notice of Proposed Settlement and Fairness Hearing Following the court's certification of the class and preliminary approval of the settlement agreement, Class Counsel mailed the revised notice (Class Dkt. 22) to the 3,867 class members who were identified by Defendants. Class Counsel informed the court ofa delay in transmitting the notice to some class members due to bulk mailing practices adopted by the retained mailing service. (Pis.' Dec. 20, 2013, Ltr. (Class Dkt. 28).) However, the parties swiftly addressed this problem by delivering notices to class members who reported that they had not received them,
6

issuing "Dear Administrator Letters" to adult home administrators to remind them oftheir duty to distribute the notice to residents, sending investigators to confirm compliance, and delivering additional copies ofthe notice by hand. ~at 1.) Class Counsel confirmed with the court that all notices were delivered by December 20, 2013.6 (ld. at 2; Pis.' Mem. at 10.) Class Counsel also extended the deadline for class members to register to speak at the fairness hearing by nine days to compensate for the delayed notice. (Pis.' Dec. 20, 2013, Ltr. at 2.) In addition, the notice was posted in a public place in each adult home. (ld.) A cover sheet to the English notice contained instructions in four languages about how to obtain a copy of the notice in Spanish, Chinese, or Russian.
On January 9, 2014, the court held a fairness hearing to give class members the opportunity to express their views on the Proposed Settlement Agreement. Prior to the hearing, 125 class members registered to speak or attend, and 61 class members gave statements at the hearing, including six individuals who had not registered beforehand. In addition, the court invited "anyone who has not yet spoken at this hearing who wishes to be heard" to give a statement. (Jan. 9, 2014, Fairness Hr'g Tr. at 85.) The court also received nine written submissions from class members. (Class Dkts. 35-40,45, 46, 58.) Class Counsel transmitted to the court additional comment letters received from 18 class members and declarations collected from 117 class members about their views on the settlement. (Decl. of Geoffrey Chepiga in Supp. of Pis' Mot. For Final Approval of the Proposed Settlement Agreement and Att'ys Fees ("Chepiga Decl.") (Class Dkt. 32) at~~ 18-19). The court has received at least one submission or statement from a class member in each of the 23 impacted homes.

6

Ofthe 3,867 notices that were mailed, as of January 8, 2014, only 19 had been returned as undeliverable.

(Pis.' Mem. at 9 n. l .)

7

It is clear to the court that adult home staffexert a high degree ofcontrol over the residents' lives. (See Chepiga Decl. Ex. 4 at 7, 224.) Some class members were distrustful ofor intimidated by the staffand feared retaliation for expressing their views about the proposed settlement. (See Pls.' Feb. 4, 2014, Ltr. at 7.) For this reason, residents who spoke at the fairness hearing were identified by number only (see Dec. 20, 2013, Order), their names have been withheld or redacted from the transcript, and written submissions from adult home residents have been kept under seal.
In the many oral and written statements submitted to the court, class members overwhelmingly expressed support for the proposed settlement. Class members described their feelings of confinement, mental deterioration, and unhappiness in adult homes. (See, e.g., Fairness Hr'g Tr. at 15 {Speaker No.8); Chepiga Decl. Ex. 4 at 29, 134, 261.) Some class members also reported dangerous or unsanitary living conditions in their adult homes, recounting incidents in which they were administered the wrong medication by staff, (Chepiga Decl. Ex. 4
at 154-55), were denied toilet paper by maintenance persons ful at 245), coped with bedbug
infestations (Fairness Hr'g Tr. at 66, 68 (Speakers No. 33, 41)), or were attacked by other
residents fuL. at 65 (Speaker No. 31)). Many residents complained ofa lack of privacy and the
quality of the food in their adult homes and stated that they longed for a home in which they could spend time alone or with friends and family. (See, e.g., id. at 27 (Speaker No. 107); Chepiga Decl. Ex. 4 at 36, 200.) They supported the settlement because it offered an opportunity to be more independent and enjoy the simple joys many people take for granted: living without an assigned roommate, cooking their own meals, or buying cut flowers. (Fairness Hr' g Tr. at 23, 63 (Speakers No. 47, 117); Chepiga Decl. Ex. 4 at 226.)
8

The court received objections to the settlement from three class members (see Fairness Hr'g Tr. at 30-32, 38-40 (Speakers No. 71, 115); Chepiga Decl. Ex. 5 at 28-171) as well as a law firm representing "19 impacted adult homes, a Resident Association comprised ofalmost 3,000 residents ofthose homes .. . and a statewide trade association that represents the interests of adult care facilities and skilled nursing facilities in New York State" (collectively "Adult Home Operators"). (Adult Home Operators Jan. 14, 2014, Ltr. (Class Dkt. 47); see also Adult Home Operators Nov. 13,2013, Ltr. (Class Dkt. 24); Adult Home Operators Aug. 21,2013, Ltr. (Class Dkt. 10).) These are discussed more fully below.
II. DISCUSSION A. Adequacy of Notice
The standard for whether notice in a class action is adequate under Federal Rule of Civil Procedure 23(e) is reasonableness. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 113-14 (2d Cir. 2005). A notice is reasonable if it "fairly apprise[s] the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceeding." Id. at 114 (citing Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1982)). "Notice need not be perfect, but need be only the best notice practicable under the circumstances, and every class member need not receive actual notice so long as class counsel acted reasonably in choosing the means likely to inform potential class members." In re Merrill Lynch Tyco Research Sec. Litig., 249 F.R.D. 124, 133 (S.D.N.Y. 2008) (citing Weigner v. City ofNew York, 852 F.2d 646,649 (2d Cir. 1988)).
The court finds that notice was adequate, both in its content and its dissemination. The revised notice communicated the terms ofthe settlement in clear, simple language and provided points ofcontact for class members' questions or requests for transportation assistance. It
9

provided easy-to-understand instructions about how to submit written comments about the proposed settlement or arrange to speak at the fairness hearing. Given the large number ofclass members and varying levels ofcomprehension and ability among the class, the simple and direct notice was "the best notice practicable under the circumstances." In re Merrill Lynch, 249 F.R.D. at 133.
Despite initial glitches that arose during the mailing of the notice, the court finds that the ultimate methods ofdelivery were adequate. The parties' troubleshooting efforts to ensure delivery to class members in each adult home were "likely to inform potential class members." Id. Indeed, only 19 of the 3,867 notices mailed were returned as undeliverable. (Pis.· Mem. at 9 n.l .) Therefore the court finds that the parties have complied with Rule 23(e)'s notice requirements.
B. Approval of the Settlement Federal Rule ofCivil Procedure 23(e) provides that "the court may approve [a proposed settlement] only after a hearing and on finding that it is fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). "When a settlement is negotiated prior to class certification ... it is subject to a higher degree of scrutiny in assessing its fairness." D'Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001 ). In these circumstances, a court must examine both the negotiation process and the settlement's substantive terms to determine its fairness. ld.
1. Procedural Fairness: The Negotiation Process In assessing the procedural fairness ofthe settlement, the court looks to whether the agreement was the product of"arm's-length negotiations and that plaintiffs' counsel have possessed the experience and ability, and have engaged in the discovery, necessary to effective representation of the class's interests." ld. (quoting Weinberger, 698 F.2d at 74).
10

Although the fact that the proposed settlement was filed the same day as the complaint in each case may give the appearance of hasty agreement, there is evidence that settlement negotiations were serious and deliberate. The settlement was reached after more than sixteen months of negotiations, in addition to prior rounds ofsettlement discussions that took place during the predecessor DAI litigation. (Pis.' Mem. at 3-4.) Throughout, Plaintiffs have been represented by a team of capable attorneys from six legal organizations who collectively serve as Class CoWlsel. They are experienced in class actions generally and had specific experience in this matter from litigating the DAI case. (ld. at 12.) The United States, represented by attorneys from the Department ofJustice and the U.S. Attorney's Office for the Eastern District ofNew York, also participated in negotiations, bringing with it additional experience with Olmstead settlements. (Id. at 4.) Although the parties did not engage in discovery in this action, the proposed settlement benefitted from information they gleaned during discovery and trial in DAI, including expert reports, witness testimony, and the court's prior opinions. (ld. at 4.) Finally, Plaintiffs report that negotiations involved "significant wrangling." (ld. at 12.) Based on the foregoing, the court is satisfied that the settlement is the product ofserious and deliberate negotiations between experienced and informed coWlsel who zealously represented their clients' interests.
2. Substantive Fairness: Fairness, Reasonableness, and Adequacy To grant final approval ofa proposed settlement, the court must find that its terms are "fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). In City of Detroit v. Grinnell Corp., the Second Circuit developed nine factors to consider in making this determination:
(1) the complexity, expense and likely duration ofthe litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amoWlt ofdiscovery completed;
11

(4) the risks ofestablishing liability; (5) the risks ofestablishing damages; (6) the risks ofmaintaining the class action through the trial; (7) the ability ofthe defendants to withstand a greater judgment; (8) the range ofreasonableness ofthe settlement fund in light of the best possible recovery; (9) the range ofreasonableness of the settlement fund to a possible recovery in light ofall the attendant risks of litigation.
495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). "A court need not find that every factor militates in favor of a finding of fairness; rather, a court considers the totality ofthese factors in light ofthe particular
circumstances." See In re Merrill Lynch, 249 F.R.D. at 143. a. Complexity, Expense, and Likely Duration ofthe Litigation
The court need not speculate on the potential complexity, expense, and duration of
litigation here because this matter was previously litigated and went to trial in DAI. Although
the predecessor case was not a class action, it still involved intricate factual and legal issues, required substantial time and expense by the parties, and consumed significant judicial resources.
The posture ofthe present cases-a class action and parallel government enforcement actionwould only add another layer of complexity. See In re Austrian and German Bank Holocaust
Litig., 80 F. Supp. 2d 164, 174 (2000) ("Most class actions are inherently complex and
settlement avoids the costs, delays and multitude ofother problems associated with them."). Because litigation would impose significant expense on the parties and further delay reliefto
class members, the court finds this factor militates in favor of approving the settlement. b. Reaction ofthe Class to the Settlement
"Ifonly a small number ofobjections are received, that fact can be viewed as indicative of the adequacy of the settlement." Wal-Mart Stores, Inc., 396 F.3d at 118 (citations omitted). Here, the reaction ofthe class to the proposed settlement has been overwhelmingly positive. In
12

the statements and submissions submitted to the court, only three class members objected to the settlement. Furthermore, although the court has taken steps to protect the identities ofclass members who expressed their views about the settlement, other class members may have declined to speak at the fairness hearing or submit a letter out of fear ofretaliation by adult home operators. (See Dec. 20, 2013, Order; Pis.' Mem. at 14.) Therefore it is possible that support for the settlement is even greater than the number of oral or written submissions to the court suggests. Due to the small number ofobjectors among class members, the court concludes that this factor weighs in favor of settlement. D'Amato, 236 F.3d at 86-87.
c. Stage ofProceedings and Amount ofDiscovery Completed
This factor concerns whether there is "some evidentiary foundation in support ofthe
proposed settlement." Plummer v. Chern. Bank, 668 F.2d 654, 659 (2d Cir. 1982). "If all
discovery has been completed and the case is ready to go to trial, the court obviously has sufficient evidence to determine the adequacy of settlement." Wal-Mart Stores. Inc., 396 F.3d at 118. However, "the absence of formal discovery has not always prevented consideration ofthe settlement." Chatelain v. Prudential-Bache Sec.• Inc., 805 F. Supp. 209,213 (S.D.N.Y. 1992).
As discussed above, although there has been no discovery in these cases, the parties participated in extensive discovery and trial during the predecessor litigation, with which the court is intimately familiar. DAI, 653 F. Supp. 2d at 189 ("Twenty-nine witnesses testified, more than three hundred exhibits were admitted into evidence, and excerpts from the deposition transcripts oftwenty-three additional witnesses were entered into the record, along with the 3,500 page trial transcript."). After trial, Class Counsel also followed up with visits to all impacted adult homes, and Elizabeth Jones, an expert who testified in DAI, conducted follow-up
interviews of residents in some of the homes. (Pis.' Mem. at 15; Chepiga DecI., Ex. 6 (Decl. of
13

Elizabeth Jones).) Based on this record, the court finds that, "counsel had sufficient infonnation to act intelligently on behalfofthe class." Chatelain, 805 F. Supp. at 213.
d. Risks ofContinuing Litigation The court considers together the fourth, fifth, and sixth factors-risks ofestablishing liability, risks ofestablishing damages, and risks of maintaining the class action through trial-as they all relate to the risks ofcontinuing litigation. See Wal-Mart Stores, Inc., 396 F.3d at 118 (considering these factors collectively); Padro v. Astrue, No. 11-CV-1788 (CBA), 2013 WL 5719076, at *6 (E.D.N.Y. Oct. 18, 2013) (same). On these issues, a court should "assess the risks of litigation against the certainty of recovery under the proposed settlement." In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 459 (S.D.N.Y. 2004). Although in DAI, the court found that plaintiff Disability Advocates, Inc. had established liability, there is no guarantee that the outcome ofa retrial would be the same, and Plaintiffs would likely again have to defend any favorable judgment on appeal. Even if Plaintiffs ultimately prevailed, the remedy would likely resemble the original remedial order in DAI. In the proposed settlement, Plaintiffs can secure substantially similar relief while avoiding the uncertainty and delay of continuing litigation. Proceeding with litigation presents no risk related to establishing damages, which Plaintiffs do not seek in this case, and only a "limited risk" of decertification. (Pis.' Mem. at 17.) However, Class Counsel avers that "Plaintiffs have negotiated a settlement that gives Class Members the relief they seek-and sooner rather than later. Plaintiffs thus have little additional to gain from proceeding to trial." (Pis.' Mem. at 16.) The court agrees and finds that although the risks ofcontinuing litigation may be low, they are outweighed by the "certainty of recovery" and immediacy presented by the proposed settlement. In re Global Crossing, 225 F.R.D. at 436.
14

e. Range ofReasonableness ofthe Settlement in Light ofthe Best Possible Recovery and Attendant Risks ofLitigation
The seventh factor, the ability of Defendants to withstand a greater judgment, does not apply here because Plaintiffs seek only declaratory and injunctive relief. Although there is no "settlement fund" in this case, the court considers the eighth and ninth factors together as a detennination ofthe reasonableness ofthe proposed settlement in light ofthe best possible recovery and risks of litigation. In this inquiry a court may compare the proposed settlement to the relief sought by the plaintiffs. See Padro, No. 11-CV-1788 (CBA), 2013 WL 5719076, at *7.
The proposed settlement offers class members robust reliefand refonns sought by Plaintiffs and disability rights organizations throughout the present cases, DAI, and decades of prior advocacy: the opportunity to transition into the most integrated setting suitable to their needs. The State will provide enough supported housing units to meet demand, with a minimum
of 2,000 units. Class members may undergo assessment to detennine their eligibility to move
into supported housing, and will be offered services to aid in their decision to move, transition, and daily life while in supported housing. When, as here, "[t]he settlement offers the class members the most important, most tangible fonn of reliefsought by plaintiffs," these factors weigh in favor ofapproval of the settlement. Id.
C. Attorney's Fees Under the ADA and the Rehabilitation Act, a court may award "the prevailing party, other than the United States, a reasonable attorney's fee." 42 U.S.C. § 12205; 29 U.S.C. § 794a. "Ideally .. . litigants will settle the amount ofa fee." Hensley v. Eckerhart, 461 U.S. 424,437 (1983). A court assesses the reasonableness of a fee in light of the time and effort expended, the complexity of the cases, the high quality of representation, and public policy considerations. See Wal-Mart Stores, Inc., 396 F.3d at 121.
15

Under the proposed settlement, Defendants have agreed to pay $200,000 in satisfaction of any claims for Plaintiffs' attorney's fees in case No. 13-CV-4166 and the DAI litigation. Defendants have also agreed to pay up to $75,000 annually for Plaintiffs' fees and expenses from the date of this Memorandum and Order through the term of the Agreement. (Pis.' Mem. at 22.) Class Counsel avers that they have expended a combined 1,158.5 hours drafting the Complaint and negotiating the settlement in this case.7 (ld. Mem. at 22.) This makes for an effective billing rate of $173, below rates typically approved in this District for experienced attorneys. See Konits v. Karahalis, 409 F. App'x 418,422 (2d Cir. 2011) (summary order) ("[T]he prevailing rates for experienced attorneys in the Eastern District ofNew York cases range from approximately $300-400 per hour.") {citations omitted); Trs. of the Local 813 I.B.T. Ins. Trust Fund v. Sprint Recycling, Inc., No. 09-CV-04435 (FB), 2010 WL 3613839, at *4 (E.D.N.Y. Aug. 6, 2010) ("In the Eastern District ofNew York, reasonable hourly rates for attorneys have ranged from $200 to $350 an hour for partners [and] $200 to $250 an hour for senior associates."). The court is also aware that these hours represent only a portion ofthe work Class Counsel performed on this case, and the fee amount is exceedingly modest in consideration of the hours dedicated to the complex DAI litigation. Therefore the court finds the negotiated fee amount for past and prospective work to be reasonable.
D. Objections Objections to the proposed settlement fall into two categories, (1) those from class members, and (2) those from the Adult Home Operators.

7

As Paul, Weiss, Rifkind, Wharton & Garrison litigated this case on a pro bono basis and is not seeking

attorney's fees to which it might otherwise be entitled, the many hours its attorneys devoted to this case are not

included in this figure. (Pis.' Mem. at 22 n.7.) The court makes special note ofthat firm's outstanding and

comprehensive advocacy in the DAI case.

16

I. Class Members' Objections The court received three objections from class members. At the Fairness Hearing, two class members spoke in opposition to the settlement. (See Fairness Hr'g Tr. at 30-32, 38-40 (Speakers No. 71, 115).) Speaker No. 71 "like[d] the home" where the speaker lived and described it as "very neat" and "very clean." {M,. at 31.) The speaker appreciated having medical professionals and staffclose by and enjoyed being around residents who "care[d] about each other." (Id. at 31 .) Speaker No. 115 expressed concerns about whether residents who moved into supported housing would be able to maintain their medication regimens without supervision. The speaker had previously lived in supported housing and cautioned that "it's not like an apartment apartment.8 You would have to live with other people and everything." (ld. at 39.) A third class member submitted a series of largely repetitive letters opposing the settlement but did not state the reasons for this opinion. (See Chepiga DecI. Ex. 5 at 28-171.) The court takes class members objections seriously but finds they do not present grounds that preclude approval of the proposed settlement. The proposed settlement requires that class members be given the choice to move into supported housing ifthey are found eligible. It does not force anyone to move or even to undergo an assessment to determine eligibility. The court believes this flexibility will allow the proposed settlement to respect the choices ofall class members. As for concerns about whether class members can manage their medication, this will likely be incorporated into the assessment for suitability to move into supported housing. See Proposed Settlement Agreement § F(d). In addition, community services such as "assistance with taking medication (including through prompting)" will be available for residents who transition into supported housing. ld. § J(2). Finally, while the court hopes that class members
Although the speaker referred to " assisted living," from context it appears the speaker meant supported housing.
17

do not have inflated expectations ofthe comfort or luxury ofsupported housing, this concern presents no basis to deny them the opportunity to choose to live there.
2. Adult Home Operators' Objections As a general rule, "[n]onparties to a settlement generally do not have standing to object to a settlement ofa class action." Cent. States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, L.L.C., 504 FJd 229,244 (2d Cir. 2007); see also In re Drexel Burnham Lambert Gro.. Inc.. 130 B.R. 910,923 (S.D.N.Y. 1991). As the Fourth Circuit observed in Gould v. Alleco, a rule that "routinely allow[ed] non-class members to inject their concerns via objection at the settlement stage" would result in "eleventh hour expansion of class actions." 883 F.2d 281, 284 (4th Cir. 1989). The Fourth Circuit concluded that any " [i]nterjection ofthe opposing views of non-class members should proceed via intervention under Rule 24." ld. As a preliminary matter, the court remains skeptical ofthe Adult Home Operators' role and motives in this case. It does not escape the court that adult homes and their representative trade association have a financial interest in preventing residents from leaving their facilities, which may face funding or staffreductions should residents transfer to alternative housing. The Adult Home Operators have sought neither intervention under Federal Rule of Civil Procedure 24 nor leave to file an amicus curiae brief under Federal Rule ofCivil Procedure 29, instead attempting to influence the settlement from the sidelines as non-parties. Even when the court welcomed comments from anyone present at the Fairness Hearing, no representative from the Adult Home Operators spoke out against the settlement. While the Adult Home Operators claim to speak for adult home residents, citing 382 surveys collected from residents. they failed to
18

submit these surveys to the court.9 This conduct does not strike the court as that ofstakeholders committed to productive engagement in this action.
However, the court will nevertheless address the Adult Home Operators' objections, particularly in Jight of the fact that the group claims to include adult home residents. The Adult Home Operators have submitted three letters to the court presenting four main objections to the proposed settlement: (1) problems with the notice procedure, (2) flaws in the "in-reach'; process, (3) the limited role for residents' treating healthcare professionals and the lack ofstandards in the assessment process, and (4) the lack ofoversight and accountability. (See Nov. 13,2013, Ltr.; Jan. 14, 2014, Ltr.; Feb. 6, 2014, Ltr.)
a. Problems With the Notice Procedure The Home Adult Operators contend that there has been "no accountability for the problems associated with the Class Notification." (Jan. 14, 2014, Ltr. at 2.) As discussed above, the court finds that the problems that arose during the notice process were swiftly remedied by the parties and promptly reported to the court, and that the parties' ultimate methods of delivering the notice were "likely to inform potential class members." In re Merrill Lynch. 249 F.R.D. at 133.
b. Flaws in the "In-Reach" Process The Home Adult Operators object to the "in-reach" process as "narrowly designed to persuade residents of the attractiveness and benefits of supported housing." (Jan. 14,2014, Ltr. at 2.) They claim that representatives conducting in-reach did not address the potential

9

The Adult Home Operators claim to have collected 382 surveys from residents ofseveral adult homes that

"indicate that residents do not wish to participate in the assessment process" (Jan 14,2014, Ltr. at 3), but did not

submit these surveys to the court. Because class counsel made copies ofthe surveys and submitted them, the court

was able to review them, and finds that while some residents do not want to move or be assessed, none directly

express a view on whether the proposed settlement should be approved.

19

challenges ofsupported housing, have misrepresented the services available to residents in supported housing, and have excluded adult home staff from the sessions. (ld. at 2-4.)
As a preliminary matter, in-reach by supported housing contractors, as outlined by the proposed settlement, has not yet begun (Pis.' Feb. 4, 2014, Ltr. at 8), so the court presumes that the Adult Home Operators' objections pertain to meetings between Class Counsel and residents. The court has reviewed the proposed settlement and does not find that it requires a one-sided presentation ofonly positive aspects ofsupported housing. With the goal ofenabling residents to make an "infonned choice" about moving, the proposed settlement requires housing contractors to "discuss any concerns" about supported housing and requires the State to use its best efforts to locate persons living in supported housing to speak with adult home residents.10 {Settlement § E{2)(a)-(b).) To the extent that in-reach representatives do not abide by the precepts ofthe proposed settlement, make misrepresentations, or improperly pressure residents to move, the agreement creates an oversight mechanism to address such concerns-the Independent Reviewer. Finally, in light of the fears of retaliation by adult home staffagainst residents who pursue transition to supported housing, the court finds it sensible that Class Counsel has excluded adult home staff from their meetings with Class Members.
c. The Assessment Process: Role ofResidents' Treating Healthcare Professionals & Standards
The Adult Home Operators also claim that the proposed settlement does not require "consult[ation] with the residents' treating physicians, mental health professionals, or other healthcare providers." (Jan. 14, 2014, Ltr. at 4.) This is plainly false. Under the proposed settlement, Health Homes and Managed Long Tenn Care Plans will conduct the assessments of

10

The video that Class Counsel has shown to residents, " Coco's Story," also discusses potential challenges of

living in an adult home such as budgeting, following a medication regimen, and dealing with loneliness. See ClAD

Media Team, Choice in Housing: Coco 's Story, YouTube (Sept. 29, 2009),

https://www.youtube.com/watch?v=T9oOsKUkiOA.

20

residents to determine eligibility to transition into supported housing. (Settlement§ F(l).) These entities are staffed by healthcare professionals who coordinate each resident's various caregivers and medical providers. (See DOJ Feb. 4, 2014 Ltr. (Dkt. 24) at 6 n.6.) To gather information as part of the assessment, Health Homes and Managed Long Term Care Plans will consult with and collect records from residents' medical providers as needed. (See ld. at 6; Pis.' Feb. 4, 2014, Ltr. at 4.)
The Adult Homes Operators further object to the assessment process as lacking standards to determine whether a resident is suitable for supported housing. This is incorrect, as section F(S) of the proposed settlement sets forth standards to guide the assessment, including considerations of whether the resident has dementia, "would be a danger to selfor others," or requires nursing care. (See Settlement§ F(S).)
d. Oversight andAccountability Finally the Adult Home Operators claim the proposed settlement "lacks any meaningful mechanism for oversight and accountability." (Jan. 14, 2014, Ltr. at 6.) The issue of oversight has been a focus for the court, which previously raised concerns about provisions governing monitoring of the settlement. (See Oct. 4, 2013, Order (Class Dkt. 12).) In response, the parties modified the proposed settlement to require that the State's quarterly reports and the Independent Reviewer's five annual reports be submitted to the court, and to enable the court and Independent Reviewer to communicate freely, provided that a summary ofthese communications subsequently be provided to the parties. (See Sept. 16, 2013 Ltr. (Class Dkt. 11); Dec. 10, 2013, Ltr. (Class Dkt. 26).) In addition, the court will retain jurisdiction to enforce the settlement throughout its implementation. To the extent that any ofthe issues raised by the Adult Home Operators present problems during the implementation ofthe settlement, the Independent
21

Reviewer should be able to address them and make recommendations accordingly. Because the proposed settlement permits the Independent Reviewer to consult with stakeholders (Settlement § L(6)(c)), the Adult Home Operators will be able to communicate with Mr. Sundram should their concerns persist. The court is satisfied that these mechanisms will allow for sufficient oversight and accountability.
In sum, the court finds that the proposed settlement agreement adequately addresses the concerns presented by the Adult Home Operators. In addition, the Adult Home Operators have presented no evidence that class members oppose the settlement. As for residents who may not want to move, Wlder the proposed settlement, their wishes will be respected. The settlement need not be perfect in order to be fair, reasonable, and adequate, and in the court's view, the proposed settlement indeed goes beyond these legal requirements. This view is bolstered by Amici Curiae Mental Health Organizations, a coalition of ten mental health organizations that supports the proposed settlement, applauding it for "secur[ing] the most important relief that Adult Homes residents have been seeking since at least 2003." (See Memorandum of Law of Amici Curiae Mental Health Organizations in Support of Proposed Settlement Agreement (Dkt. 19; Class Dkt. 43).)
22

Ill. CONCLUSION

For the foregoing reasons, the court finds the proposed settlement to be fa ir, reasonable,

and adequate. The court also finds the attorney's fees to be reasonable. Plaintiffs' Motion for

Final Approval ofthe Proposed Settlement Agreement and Anomey' s Fees in case No. 13-CV-

4166 is GRANTED. For purposes of the associated case No. 13-CV-4165, the Proposed

Settlement Agreement serves as a Consent Judgment and is also APPROVED.

SO ORDERED. Dated: Brooklyn, New York
March .£1,2014

.I s/Nicholas G. Garaufis

)

NICHOLAS ·G.-GARAUFIS j
United States District Judge

23

 
 Case 1:13-cv-04165-NGG-ST Document 79 Filed 02/28/17 Page 1 of 2 PageID #: 965

Case 1:13-cv-04165-NGG-ST Document 79 Filed 02/28/17 Page 2 of 2 PageID #: 966

Case 1:13-cv-04165-NGG-ST Document 79-1 Filed 02/28/17 Page 1 of 8 PageID #: 967

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK THE UNITED STATES OF AMERICA,
Plaintiff, -againstSTATE OF NEW YORK,
Defendant.

13-CV-4165 (NGG) (RML)

RAYMOND O'TOOLE, et al., Plaintiffs,
-againstANDREW M. CUOMO, et al.,
Defendants.

13-CV-4166 (NGG) (RML)

RESIDENTS AND FAMILIES UNITED TO SAVE OUR ADULT HOMES, et al.,
Plaintiffs, -againstHOWARD ZUCKER, et al.,
Defendants.

16-CV-1683 (NGG) (RER)

DECLARATION OF KENT T. STAUFFER IN SUPPORT OF THE NEW YORK STATE OFFICE OF ATTORNEY GENERAL'S REQUEST TO WITHDRAW AS COUNSEL

Case 1:13-cv-04165-NGG-ST Document 79-1 Filed 02/28/17 Page 2 of 8 PageID #: 968

KENT T. STAUFFER, pursuant to 28 U.S.C. § 1746, declares under penalty of

perjury that the following is true and correct.

I.

I am Executive Deputy Attorney General for State Counsel with the New

York State Office of the Attorney General ("OAG"). As part of my duties at the OAG, I

supervise all attorneys who work for the OAG's Litigation Bureaus. Thus, my supervisory

role includes oversight of the OAG attorneys in New York City who represent the defendants

in the three above-captioned cases. I also supervise the OAG attorneys in Albany who are

assigned to represent the respondents in certain related cases pending in New York state court,

including Doe v. Zucker, Index No. 07079/2016, an Article 78 proceeding that is currently

pending in Supreme Court, Albany County (the "Doe Case"). I submit this declaration in

support ofthe OAG's request to withdraw as counsel for the defendants in the above-captioned

cases pursuant to Local Civil Rule 1.4 ofthis Court. The OAG will also be moving to withdraw

as counsel for the respondents in all related cases, including the Doe Case.

2.

I make this declaration based on personal knowledge and upon information

and belief, the basis of which is my discussions and review of other communications with and

among (i) Assistant Attorneys General located in Albany and New York City who report to

me; (ii) client representatives for the defendants in the above-captioned cases; and (iii) the

other parties.

The TRO in the Doe Case

3.

In November 2016, the O'Connell & Aronowitz law firm filed the Doe Case,

·naming Howard A. Zucker, M.D., Commissioner of the New York State Department of Health

("DOH"), and Ann Marie T. Sullivan, M.D., Commissioner of the New York State Office of

2

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Mental Health ("OMH"), as respondents. The O'Connell & Aronowitz firm also represents

certain plaintiffs in the Residents and Families case pending before this Court.

4.

The petitioner in Doe alleges that certain adult home regulations

promulgated by DOH and OMH have prevented him from returning to Oceanview Home for

Adults, where he formerly resided until he moved out approximately two years earlier. Mr.

Doe alleges that he cannot take care ofhimself in supported housing, which lacks some services

which were available in the adult home. He requests, among other things, that the Court

declare the challenged regulations to be arbitrary and capricious, discriminatory, and

unenforceable. The adult home regulations challenged in Doe have also been challenged in

the Residents and Families action, and those regulations are referenced in the Settlement

Agreement in United States v. New York and O'Toole v. Cuomo. The respondents have not

yet answered the Article 78 petition in Doe.

5.

On February 8, 2017, Assistant Attorney General Keith Starlin, counsel of

record for the respondents in Doe, had a telephone conversation with the petitioner's counsel,

Jeffrey J. Sherrin of O'Connell & Aronowitz. During this conversation, Mr. Sherrin informed

Mr. Starlin for the first time that the petitioner might seek short-term injunctive relief, and in

particular, a preliminary injunction to permit Mr. Doe to return to the Oceanview home. Mr.

Sherrin did not suggest during this call that he wouJd seek to enjoin the adult home regulations

themselves in his motion. Moreover, while Mr. Starlin had further communications with Mr.

Sherrin about the injunctive relief the petitioner planned to seek, Mr. Sherrin again did not

state - or even imply - that he intended to seek an immediate suspension of the adult home

regulations.

6.

The OAG was therefore surprised when, on February 15, 2017, it received a

proposed order to show cause and temporary restraining order ("TRO"), along with supporting

3

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papers, prepared by Mr. Sherrin in the Doe case. The proposed TRO broadly sought to restrain

and enjoin DOH and OMH from enforcing or implementing the adult homes regulations.

Moreover, the TRO application was set to be heard at 10:30 a.m. the following morning - less

than 24 hours later.

7.

After reviewing the TRO papers, the OAG made plans to articulate its

opposition to the TRO before the Honorable Denise Hartman at the hearing the next day.

8.

At approximately 9:03 a.m. on February 16 - less than an hour and a half

before the TRO hearing - Michael G. Bass, an in-house attorney who is the Director of the

Bureau of Litigation at DOH, sent an email directly to the petitioner's lawyer, Mr. Sherrin,

stating that:

DOH cannot consent to enjoin all of the regulations you list in your proposed TRO. We can consent to the following language for the contested regulations to be enjoined "The regulation of NYSDOH now codified at 18 NYCRR section 487.4(c) that reads "No operator of an adult home with a certified capacity of 80 or more and a mental health census, as defined in Section 487.l 3(b)(4) of this part, of 25 percent or more of the resident population shall admit any person whose admission will increase the mental health census of the facility.; 18 NYCRR sections 487.13(c), 487.13(d), 487.13(e), 487.13(f) and 487.13(g)" ·

I'm fine with whatever grammatical edits you want to make, as long as the right regulations are listed.

9.

A few minutes later, at approximately 9:23 a.m., Mark Noordsy, Deputy

Counsel for Litigation at OMH, replied on the same thread, stating, "Also, both OMH reg cites

need (2) added at the end. Thanks."

10.

I learned ofthis email thread because Assistant Attorney General Starlin was

copied on it and forwarded it to me for review. Mr. Starlin did not respond or otherwise

participate in the email thread, in which the representatives of the agency clients directly

4

Case 1:13-cv-04165-NGG-ST Document 79-1 Filed 02/28/17 Page 5 of 8 PageID #: 971

communicated their consent to an injunction against their own regulations. Neither Mr. Starlin

nor anyone else in the OAG was aware ofthis development prior to receiving this email.

11.

Immediately prior to the TRO hearing that same morning (February 16), I

and several other OAG lawyers participated in various communications regarding these issues

and the upcoming hearing with, among others, various attorney representatives of the client

agencies.

12.

The OAG concluded that it could not consent to the issuance of the TRO.

However, because the TRO hearing was only minutes away, the OAG determined that, as

counsel of record, it was obligated to appear, since withdrawing as counsel at that time-when

there was no opportunity to arrange for substitute counsel - would not have been possible.

13.

Assistant Attorney General Starlin attended the 10:30 a.m. hearing before

Judge Hartman. Mr. Bass of DOH and Mr. Noordsy of OMH also attended the hearing. Mr.

Sherrin appeared on behalf of the petitioner.

14.

After Mr. Sherrin presented his arguments in favor of the TRO, Mr. Bass

told Judge Hartman that DOH and OMH consented to the TRO.

15.

Assistant Attorney General Starlin did not offer any argument in favor of or

in opposition to the TRO request. Moreover, Mr. Starlin did not himself consent to the TRO,

and when Judge Hartman asked for Mr. Starlin's opinion on the matter, he stated only that he

deferred to his agency clients.

16.

With the agreement of Mr. Bass and Mr. Noordsy, Mr. Sherrin thereafter

handed Judge Hartman a revised copy of the TRO that had not previously been provided to the

OAG - and that the OAG had not even seen.

17.

Judge Hartman signed this revised version of the TRO. There was no

transcript of the conference before Judge Hartman.

5

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18.

At approximately 3:22 p.m. that same day, Mr. Bass emailed a copy of the

TRO to plaintiffs' counsel in the United States v. New York and O'Toole v. Cuomo cases. Mr.

Bass did not copy anyone from the OAG on this email, and the OAG did not learn that the

email had been sent until the following day.

19.

The following week, on the afternoon of February 22, 2017, the OAG

appeared before the Honorable Nicholas G. Garaufis for a status conference in United States

v. New York and O'Toole v. Cuomo. I appeared at this conference, as did Assistant Attorney

General Matthew Lawson, who is counsel of record in United States v. New York and O'Toole

v. Cuomo. Also appearing for the defendants at this conference were Mr. Bass and Joshua

Pepper, Deputy Commissioner and General Counsel at OMH.

20.

At Judge Garaufis's request, Mr. Lawson explained his understanding of the

TRO hearing in Albany to the Court. Mr. Bass, who had attended that hearing, provided

additional details.

21.

The Court was greatly troubled to learn about what had happened at the TRO

hearing. The Court ordered, among other things, that Eric T. Schneiderman, the Attorney

General of the State of New York, appear personally to explain why the OAG took a position

in Albany that appeared to conflict with positions it took in the Eastern District of New York,

where it is currently defending the regulations.

22.

While the Attorney General is fully prepared to follow the directions of the

Court, neither he nor anyone else at the OAG is in a position to explain a decision that it did

not make, or in a position to explain its clients' actions at the Albany hearing. The Attorney

General himself only learned of these events after the fact, when I communicated what had

transpired at the conference before this Court.

6

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The Necessity of Withdrawal

23.

The Office of Attorney General seeks to withdraw as counsel in the above-

captioned cases because the OAG and defendants have a fundamental disagreement about how

this matter should be handled. See N. Y. Rules of Professional Conduct 1.16(c)(4).

24.

The OAG successfully accomplished (and defended) the removal of the

Residents and Families case to this Court, and it recently filed a pre-motion letter in support

of its planned motion to dismiss in that case.

25.

Additionally, the OAG recently prepared and filed lengthy motions to

dismiss in two related lawsuits in New York state court that also challenge the adult home

regulations. See Oceanview Home for Adults, Inc. v. Zucker, Index No. 6012/2016 (Sup. Ct.

Albany Co.); Hedgewood Home for Adults, LLC v. Zucker, Index No. 2016-52782 (Sup. Ct.

Dutchess Co.). These motions remain pending in state court.

26.

The OAG also seeks to withdraw because its clients have failed to cooperate

m the representation and have made the representation unreasonably difficult, if not

impossible, for the OAG to carry out effectively. See N. Y. Rules of Professional Conduct

l.16(c)(7). The OAG has been excluded from important communications with opposing

counsel that were conducted directly by its clients.

27.

On behalf of the OAG, I submit that permitting withdrawal of the OAG and

the substitution of counsel in United States v. New York and 0 'Toole v. Cuomo will not delay

the trial scheduled for July 10, 2017, or otherwise prejudice the defendants. First, as is apparent

from the events I have recited, agency counsel for the defendants have been actively involved

in the defense of these cases and, in addition, have borne the primary responsibility for

conducting the implementation of the Consent Decree in these cases. Second, as the Court

noted during the conference before it on February 22, the parties would have available the

7

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record, or at least portions of it, from the last trial for use as appropriate. Finally, the OAG

would of course comply with its obligation under N.Y. Rules of Professional Conduct 1.16(e)

to assist in the transition to substitute counsel.

28.

The OAG has contacted the defendants, our clients, to seek their permission

to withdraw; no clients have as yet consented to withdrawal.

Dated: New York, New York February 28, 2017

/~l$/.~ KENT T. STAUFFER

8

 
 Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 1 of 14 PageID #: 979

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

THE UNITED STATES OF AMERICA,

-against-

Plaintiff,

STATE OF NEW YORK,

Defendant.

13-CV-4165 (NGG) (RML)

RAYMOND O’TOOLE, et al.,

-against-

Plaintiffs,

ANDREW M. CUOMO, et al., Defendants.

13-CV-4166 (NGG) (RML)

RESIDENTS AND FAMILIES UNITED TO SAVE OUR ADULT HOMES, et al.,

-against-

Plaintiffs,

16-CV-1683 (NGG) (RER)

HOWARD ZUCKER, et al.,

Defendants.

THE NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL’S MEMORANDUM OF LAW IN SUPPORT OF ITS REQUEST TO WITHDRAW AS COUNSEL

MATTHEW J. LAWSON Assistant Attorney General
Of Counsel
Served: March 6, 2017

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants 120 Broadway, 24th Floor New York, NY 10271 Tel: (212) 416-8733

Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 2 of 14 PageID #: 980
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................................................................................................... ii PRELIMINARY STATEMENT .............................................................................................. 1 STATEMENT OF FACTS ....................................................................................................... 2 ARGUMENT ............................................................................................................................ 5
I. THERE ARE SATISFACTORY REASONS FOR WITHDRAWAL ............. 6 A. There Are Irreconcilable Differences Between the OAG and Its Clients .................................................................. 6 B. The Representation Has Been Beset By Damaging Communications Breakdowns ............................................... 8
II. THE PROCEDURAL POSTURE OF THESE CASES DOES NOT DEFEAT WITHDRAWAL.......................... 9
CONCLUSION....................................................................................................................... 10
i

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TABLE OF AUTHORITIES

CASES

Page(s)

Batres v. Valente Landscaping Inc., No. 14 CV 1434, 2016 WL 4991595 (E.D.N.Y. Sept. 15, 2016) ........................................8

Battino v. Cornelia Fifth Ave., LLC, No. 09 CV 4113, 2013 WL 4779635 (S.D.N.Y. June 26, 2013) .........................................9

Karimian v. Time Equities, Inc., No. 10 CV 3773, 2011 WL 1900092 (S.D.N.Y. May 11, 2011) ...........................6, 7, 9, 10

Moolick v. Natwest Bank, N.A., No. 95 CV 2226, 1996 WL 411691 (S.D.N.Y. July 23, 1996)............................................6

Nielsen v. New York City Dep’t of Educ., No. 04 CV 2182, 2007 WL 1987792 (E.D.N.Y. July 5, 2007) ...........................................6

Stair v. Calhoun, 722 F. Supp. 2d 258 (E.D.N.Y. 2010) .............................................................................6, 9

United States v. Brooks, No. 06 CR 0550, 2013 WL 5522856 (E.D.N.Y. Oct. 3, 2013)............................................5

United States v. Lawrence Aviation Indus., No. 06 CV 4818, 2011 WL 601415 (E.D.N.Y. Feb. 11, 2011) ...........................................6

Winkfield v. Kirschenbaum & Phillips, P.C., No. 12 CV 7424, 2013 WL 371673 (S.D.N.Y. Jan. 29, 2013) ........................................6, 8

STATE REGULATIONS N.Y. Rule of Prof’l Conduct 1.16(c)(4) .................................................................................7, 8

N.Y. Rule of Prof’l Conduct 1.16(c)(7) .....................................................................................8

N.Y. Rule of Prof’l Conduct 1.16(e)........................................................................................10

LOCAL RULES

U.S. Dist. Cts., S.D.N.Y. & E.D.N.Y., Local Civil Rule 1.4.............................................1, 5, 6

ii

Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 4 of 14 PageID #: 982
The New York State Office of the Attorney General (“OAG”) respectfully submits this memorandum of law in support of its request to withdraw as counsel pursuant to Local Civil Rule 1.4 of the U.S. District Courts for the Southern and Eastern Districts of New York (“Rule 1.4”)
PRELIMINARY STATEMENT The Court should grant the OAG’s request to withdraw as counsel. A motion to withdraw under Rule 1.4 is appropriately granted if (i) the movant presents “satisfactory reasons” for withdrawal and (ii) withdrawal would not disrupt the prosecution of the proceeding or prejudice the client given the current procedural posture of the case. The requisite “satisfactory reasons” for withdrawal are present here. As set forth below, the facts surrounding the issuance of a TRO in Doe v. Zucker, Index No. 07079/2016 (Sup. Ct. Albany Cty.), demonstrate that there are irreconcilable differences between the OAG and its clients regarding fundamental questions of strategy in the three above-captioned cases. The representation here has also been beset by significant communications breakdowns between the OAG and its clients—a fact that also justifies withdrawal here. Finally, the procedural posture of the three above cases does not defeat withdrawal. The trial scheduled in United States v. New York and O’Toole v. Cuomo is still several months away, and the merits of the Residents and Families action have barely been litigated. The active involvement of Department of Health and Office of Mental Health agency counsel in the United States v. New York and O’Toole v. Cuomo matters, and the availability of the previous trial record from the predecessor DAI case, also serve to dispel any concerns about potential prejudice.

Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 5 of 14 PageID #: 983
STATEMENT OF FACTS The facts giving rise to this motion arose in connection with Doe v. Zucker, Index No. 07079/2016 (Sup. Ct. Albany Cty.), a related Article 78 proceeding now pending in New York Supreme Court in Albany County (Declaration of Kent T. Stauffer in Support of OAG’s Request to Withdraw as Counsel, dated February 28, 2017 (“Stauffer Decl.”) ¶¶ 1, 3, 4). The OAG represents the two named respondents in Doe: Howard A. Zucker, M.D., Commissioner of the New York State Department of Health (“DOH”), and Ann Marie T. Sullivan, M.D., Commissioner of the New York State Office of Mental Health (“OMH”) (id. ¶¶ 1, 3). The petitioner in Doe alleges that certain adult home regulations promulgated by DOH and OMH have prevented him from returning to Oceanview Home for Adults, where he formerly resided until he moved out approximately two years earlier (id. ¶ 4). Mr. Doe alleges that he cannot take care of himself in supported housing, which lacks some services which were available in the adult home (id.). He requests, among other things, that the Court declare the challenged regulations to be arbitrary and capricious, discriminatory, and unenforceable (id.). The adult home regulations challenged in Doe have also been challenged in the Residents and Families action, and those regulations are referenced in the Settlement Agreement in United States v. New York and O’Toole v. Cuomo (id.). The respondents have not yet answered the Article 78 petition in Doe (id.). On February 8, 2017, Assistant Attorney General Keith Starlin, counsel of record for the respondents in Doe, spoke with the petitioner’s counsel, Jeffrey J. Sherrin of O’Connell & Aronowitz (id. ¶ 5). During this telephone conversation, Mr. Sherrin informed Mr. Starlin for the first time that the petitioner might seek short-term injunctive relief, and in particular, a
2

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preliminary injunction to permit Mr. Doe to return to the Oceanview home (id.). Mr. Sherrin did not suggest during this call that he would seek to enjoin the adult home regulations themselves in his motion (id.). Moreover, while Mr. Starlin had further communications with Mr. Sherrin about the injunctive relief the petitioner planned to seek, Mr. Sherrin again did not state—or even imply—that he intended to seek an immediate suspension of the adult home regulations (id.).
On February 15, 2017, the OAG received a proposed order to show cause and temporary restraining order (“TRO”), along with supporting papers, prepared by Mr. Sherrin in the Doe case (id. ¶ 6). The proposed TRO broadly sought to restrain and enjoin DOH and OMH from enforcing or implementing the adult homes regulations (id.). Moreover, the TRO application was set to be heard at 10:30 a.m. the following morning—less than 24 hours later (id.). After reviewing the TRO papers, the OAG made plans to articulate its opposition to the TRO before the Honorable Denise Hartman at the hearing the next day (id. ¶ 7).
At approximately 9:03 a.m. on February 16 (less than an hour and a half before the TRO hearing), Michael G. Bass, an in-house attorney who is the Director of the Bureau of Litigation at DOH, sent an email directly to the petitioner’s lawyer, Mr. Sherrin, stating that:
DOH cannot consent to enjoin all of the regulations you list in your proposed TRO. We can consent to the following language for the contested regulations to be enjoined “The regulation of NYSDOH now codified at 18 NYCRR section 487.4(c) that reads “No operator of an adult home with a certified capacity of 80 or more and a mental health census, as defined in Section 487.13(b)(4) of this part, of 25 percent or more of the resident population shall admit any person whose admission will increase the mental health census of the facility.; 18 NYCRR sections 487.13(c), 487.13(d), 487.13(e), 487.13(f) and 487.13(g)” I’m fine with whatever grammatical edits you want to make, as long as the right regulations are listed.
3

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Id. ¶ 8. A few minutes later, at approximately 9:23 a.m., Mark Noordsy, Deputy Counsel for
Litigation at OMH, replied on the same thread, stating, “Also, both OMH reg cites need (2) added at the end. Thanks” (id. ¶ 9). Mr. Starlin did not respond or otherwise participate in the email thread, in which the representatives of the agency clients directly communicated their consent to an injunction against their own regulations (id. ¶ 10).
Immediately prior to the TRO hearing that same morning (February 16), OAG lawyers participated in various communications regarding these issues and the upcoming hearing with, among others, various attorney representatives of the client agencies (id. ¶ 11).1
The OAG concluded that it could not consent to the issuance of the TRO (id. ¶ 12). However, because the TRO hearing was only minutes away, the OAG determined that, as counsel of record, it was obligated to appear, since withdrawing as counsel at that time— when there was no opportunity to arrange for substitute counsel—would not have been possible (id.).
Assistant Attorney General Starlin attended the 10:30 a.m. hearing before Judge Hartman (id. ¶ 13). Mr. Bass of DOH and Mr. Noordsy of OMH also attended the hearing (id.). Mr. Sherrin appeared on behalf of the petitioner (id.). After Mr. Sherrin presented his arguments in favor of the TRO, Mr. Bass told Judge Hartman that DOH and OMH consented to the TRO (id. ¶ 14). Assistant Attorney General Starlin did not offer any argument in favor of or in opposition to the TRO request (id. ¶ 15). Moreover, Mr. Starlin did not himself

1

Because of its obligation to protect the attorney-client privilege, the OAG cannot

disclose the substance of these or other relevant attorney-client communications—a fact that

limits the amount of evidence the OAG is able to present on this motion.

4

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consent to the TRO, and when Judge Hartman asked for Mr. Starlin’s opinion on the matter, he stated only that he deferred to his agency clients (id.).
With the agreement of Mr. Bass and Mr. Noordsy, Mr. Sherrin thereafter handed Judge Hartman a revised copy of the TRO that had not previously been provided to the OAG—and that the OAG had not seen (id. ¶ 16). Judge Hartman signed this revised version of the TRO (id. ¶ 17). There was no transcript of the conference before Judge Hartman (id.).
At approximately 3:22 p.m. that same day, Mr. Bass emailed a copy of the TRO to plaintiffs’ counsel in the United States v. New York and O’Toole v. Cuomo cases (id. ¶ 18). Mr. Bass did not copy anyone from the OAG on this email, and the OAG did not learn that the email had been sent until the following day (id.).
ARGUMENT Under Local Civil Rule 1.4 of the U.S. District Courts for the Southern and Eastern Districts of New York, the Court may grant a motion to withdraw as counsel “upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien.”2 A court considering whether to grant a motion to withdraw under Rule 1.4 “must analyze two factors: the reasons for withdrawal and the impact of the withdrawal on the timing of the proceeding.” Winkfield v. Kirschenbaum & Phillips, P.C., No. 12 CV

2

The OAG is not asserting a retaining lien over the clients’ files nor a charging lien. A

charging lien would be inappropriate here in any event as the OAG does not bill its clients

and because it represents the defendants in these actions. See United States v. Brooks, No. 06

CR 0550, 2013 WL 5522856, at *1 (E.D.N.Y. Oct. 3, 2013) (“[a]n attorney who represents a

defendant cannot have a charging lien in the absence of a counterclaim”) (internal quotes

omitted).

5

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7424, 2013 WL 371673, at *1 (S.D.N.Y. Jan. 29, 2013); accord Karimian v. Time Equities, Inc., No. 10 CV 3773, 2011 WL 1900092, at *2 (S.D.N.Y. May 11, 2011).
While the decision to grant or deny a motion to withdraw as counsel is within the discretion of the Court, see Stair v. Calhoun, 722 F. Supp. 2d 258, 264 (E.D.N.Y. 2010), “where an attorney desires to withdraw from a case, he will in most cases be allowed to do so.” Karimian, 2011 WL 1900092, at *3; see also id. (“[W]hat amounts to specific performance by an attorney has been required, but such cases are extremely rare”) (quoting Moolick v. Natwest Bank, N.A., No. 95 CV 2226, 1996 WL 411691, at *2 (S.D.N.Y. July 23, 1996)). I. THERE ARE SATISFACTORY REASONS FOR WITHDRAWAL
The first part of the Rule 1.4 inquiry requires an assessment of whether there are “satisfactory reasons” for the withdrawal. As detailed below, such reasons clearly exist here.
A. There Are Irreconcilable Differences Between the OAG and Its Clients The existence of irreconcilable differences between attorney and client is a proper basis for withdrawal under Rule 1.4. See United States v. Lawrence Aviation Indus., No. 06 CV 4818, 2011 WL 601415, at *1 (E.D.N.Y. Feb. 11, 2011); Nielsen v. New York City Dep't of Educ., No. 04 CV 2182, 2007 WL 1987792, at *1 (E.D.N.Y. July 5, 2007) (“Hostility or irreconcilable differences between the attorney and the client are sufficient to warrant a withdrawal”) (Garaufis, J.); Karimian, 2011 WL 1900092, at *2 (“an irreconcilable conflict between attorney and client is a proper basis for the attorney to cease representing his client”);3 see also N.Y. Rule of Prof’l Conduct 1.16(c)(4) (22 NYCRR § 1200).

3

While some decisions use the phrase “irreconcilable conflict” rather than

“irreconcilable differences,” see, e.g., Karimian, 2011 WL 1900092, at *2, these two phrases

appear to be interchangeable in their application. The standard does not require the existence

of a formal conflict of interest.

6

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Here, there are irreconcilable differences between the OAG and its clients regarding the proper course to pursue in the related adult homes cases. Ever since the Residents and Families proceeding was filed in state court in 2013, the OAG has made significant efforts to defend DOH’s and OMH’s adult home regulations against legal challenges. Among other things, the OAG prepared, filed, and argued motions to dismiss in Residents and Families and in the previously separate Empire proceeding. See, e.g., Case No. 16 CV 01683, ECF 21 at p. 5 n.6 (discussing the motion to dismiss in the Residents and Families case). More recently, the OAG removed the Residents and Families proceeding to this Court, and it thereafter successfully opposed motions to remand that proceeding back to state court (Stauffer Decl. ¶ 24). The OAG also filed a pre-motion letter in support of an anticipated motion to dismiss in that case (id.). And in the past few months, the OAG prepared and filed lengthy motions to dismiss in two related lawsuits in New York state court that also challenge the adult home regulations (id. ¶ 25). See Oceanview Home for Adults, Inc. v. Zucker, Index No. 6012/2016 (Sup. Ct. Albany Cty.); Hedgewood Home for Adults, LLC v. Zucker, Index No. 52782/2016 (Sup. Ct. Dutchess Cty.).
In Doe, however, the OAG’s agency clients consented to a temporary restraining order against those very same regulations. This decision had wide-ranging consequences that extend not only to the Residents and Families case but to United States v. New York and O’Toole v. Cuomo as well. During the February 22, 2017 status conference in those cases, the Court found that the entry of the TRO in Doe triggered a 120-day “period of review” under the Settlement Agreement. Pursuant to the Court’s ruling, if the parties are unable to agree to appropriate modifications during this time, they will be required to proceed to trial in July 2017.
7

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In sum, there are irreconcilable differences between the OAG and its clients. This fact alone provides a satisfactory reason for withdrawal. See Winkfield, 2013 WL 371673, at *1 (permitting withdrawal where counsel demonstrated that there were “irreconcilable differences between his firm and Plaintiff, and that they have different views of the merits of the case and the potential recovery.”); see also N.Y. Rule of Prof’l Conduct 1.16(c)(4) (permitting withdrawal where “the client insists upon taking action with which the lawyer has a fundamental disagreement.”).
B. The Representation Has Been Beset by Damaging Communications Breakdowns
“[A] client’s lack of cooperation—including lack of communication with counsel constitutes a satisfactory reason to withdraw.” Batres v. Valente Landscaping Inc., No. 14 CV 1434, 2016 WL 4991595, at *2 (E.D.N.Y. Sept. 15, 2016) (internal quotes omitted). Here, the OAG’s clients bypassed the OAG and directly communicated their consent to the TRO to opposing counsel (Stauffer Decl. ¶ 26). Agency counsel also notified opposing counsel in United States v. New York and O’Toole v. Cuomo about that TRO without copying the OAG on the email (id. ¶ 18). These and other communications breakdowns have made it unreasonably difficult for the OAG to carry out the representation effectively. See also Rule of Prof’l Conduct 1.16(c)(7) (permitting withdrawal where the client “fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively”). Withdrawal would be warranted for this independent reason. II. THE PROCEDURAL POSTURE OF THESE
CASES DOES NOT DEFEAT WITHDRAWAL A court entertaining a motion to withdraw must also consider “the posture of the case,” and whether “the prosecution of the suit is [likely to be] disrupted by the withdrawal
8

Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 12 of 14 PageID #: 990
of counsel.” Karimian, 2011 WL 1900092, at *3; accord Battino v. Cornelia Fifth Ave., LLC, No. 09 CV 4113, 2013 WL 4779635, at *1 (S.D.N.Y. June 26, 2013). “The Court may also examine likely prejudice to the client, whether the motion is opposed, and whether the unpaid representation has become a severe financial hardship to the firm.” Karimian, 2011 WL 1900092, at *3 (quoting Stair, 722 F. Supp. 2d at 265)).
Here, the procedural posture of the three-above captioned cases does not demonstrate undue prejudice or otherwise defeat withdrawal. “Where discovery in a case has not yet closed and the case is not on the verge of trial readiness, prejudice is unlikely to be found.” Karimian, 2011 WL 1900092, at *3 (internal quotes omitted). Discovery has not closed in any of the three above-captioned cases. In fact, the Plaintiffs in United States v. New York and O’Toole v. Cuomo served new discovery requests as recently as February 28, 2017. And while the Court has set a trial date of July 10, 2017 in those cases, that date is still several months away. Karimian, 2011 WL 1900092, at *3 (permitting withdrawal where “trial [was] still several months away”).
Any potential for prejudice is also mitigated by the fact that agency counsel for the defendants have been actively involved in the defense of the United States v. New York and O’Toole v. Cuomo cases and, in addition, have borne the primary responsibility for conducting the implementation of the consent decree in those cases (Stauffer Decl. ¶ 27). And as the Court noted during the conference before it on February 22, the parties would have available the record, or at least portions of it, from the last trial for use as appropriate (id.). Moreover, the OAG would of course comply with its obligation under N.Y. Rule of Professional Conduct 1.16(e) to assist in the transition to substitute counsel in all three cases (id.). Finally, as this Court previously pointed out, the merits “have barely been litigated” in
9

Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 13 of 14 PageID #: 991
Residents and Families. See, e.g., Case No. 16 CV 01683, ECF 21 at p. 17. The procedural posture of the Residents and Families case thus raises no concerns at all.
As to the question of “whether the motion is opposed,” Karimian, 2011 WL 1900092, at *3, the OAG understands that its clients consent to the withdrawal, and it expects it will soon be in a position to submit written confirmation of that consent to the Court.4
CONCLUSION For the foregoing reasons, the OAG’s request to withdraw as counsel should be granted.

4

Assuming the OAG’s clients decide to retain substitute counsel and to consent to the

withdrawal, such facts would lessen the importance of the OAG’s showing with respect to

“satisfactory reasons” and the procedural posture of the case. In contrast to contested

withdrawals, agreed substitutions of counsel are often accomplished without any detailed

fact-finding upon the submission and so-ordering of a single-page form order.

10

Case 1:13-cv-04165-NGG-ST Document 82 Filed 03/06/17 Page 14 of 14 PageID #: 992

Dated: New York, New York March 6, 2017
MATTHEW J. LAWSON TODD A. SPIEGELMAN Assistant Attorneys General
Of Counsel

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants By:
/s/ Matthew J. Lawson MATTHEW J. LAWSON Assistant Attorney General 120 Broadway, 24th Floor New York, NY 10271 Tel: (212) 416-8733 matthew.lawson@ag.ny.gov

11

 
 Case 1:13-cv-04165-NGG-ST Document 85 FilUe.dS.0D3/e1p3a/r1t7menPtaogfeJ1usotifc2e PageID #: 1004 Civil Rights Division
Disability Rights Section - NYA 950 Pennsylvania Ave, NW Washington, DC 20530
March 13, 2017
VIA ECF
Honorable Nicholas G. Garaufis United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: United States v. State of New York (Civil Action No. 13-cv-4165); O’Toole et al. v. Cuomo et al. (Civil Action No. 13-cv-4166)
Dear Judge Garaufis:
We write on behalf of the United States in the above-referenced cases pursuant to the Court’s Order dated March 1, 2017 (Dkt. 80 in 13-cv-4165), directing Plaintiffs to advise the Court of their position on the New York State Office of the Attorney General’s (“OAG”) Motion to Withdraw as Counsel for defendants (Dkt. 79 in 13-cv-4165). The United States takes no position on OAG’s motion, except to object to any undue delay in obtaining relief for the thousands of adult home residents whose lives stand to be profoundly and positively affected by the relief sought in these cases. See SEC v. Great Am. Techs., No. 07 Civ. 10694 (DC), 2009 WL 4885153, at *5 (S.D.N.Y. Dec. 15, 2009) (noting that courts may consider “the protracted history of the litigation” and denying motion to withdraw as counsel).
The United States also notes that attorneys from the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP (“Abrams & Fensterman”) attended a meeting between the parties held on March 6, 2017 as counsel for the State, suggesting that the firm may be substituted as counsel in this case should the motion be granted. Abrams & Fensterman represents adult homes1 and publicly expressed concern about the impact of the adult home regulations in January 2013.2 Additionally, the description of the “Nursing Homes” practice area on the Abrams & Fensterman website states that the firm’s “representation of long term care facilities is wide ranging and includes . . . criminal, civil, and administrative investigations, audits and actions by the New York State Office of the Medicaid Inspector
1 See http://www.abramslaw.com/greg_stoller_attorney_profile_id_1056 (accessed March 13, 2017). A number of other Abrams & Fensterman attorneys are listed as representing assisted living facilities, a category that includes adult homes. See, e.g., http://www.abramslaw.com/jordan_fensterman_attorney_profile_id_1019 (accessed March 13, 2017). 2 See http://www.abramslaw.com/governor_cuomo_authorizes_regulations_that_drastically_limit_an_acute_ psychiatric_care_center%E2%80%99s_ability_to_discharge_publication_media_id_1027.
1

Case 1:13-cv-04165-NGG-ST Document 85 Filed 03/13/17 Page 2 of 2 PageID #: 1005

General, New York State Attorney General’s Office Medicaid Fraud Control Unit, [and] New York State Department of Health, . . . as well as other federal and State health care oversight agencies.”3
Given that the settlement agreement requires the State to, among other things, take appropriate corrective action to address interference or discouragement by adult homes, this potential substitution of counsel raises concerns relating to the State’s obligation to provide relief to adult home residents consistent with the terms of the settlement agreement. The United States respectfully requests the opportunity to explore these concerns at the March 22, 2017 hearing.

CC: All counsel (By ECF)

Respectfully submitted,
_________/s/_________ Eliza Dermody Jennifer Bronson Trial Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice (202) 305-0463 Eliza.Dermody@usdoj.gov Jennifer.Bronson2@usdoj.gov
BRIDGET M. ROHDE Acting United States Attorney
By: ___________/s/___________ Michael J. Goldberger Chief of Civil Rights, Civil Division United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052 Michael.Goldberger@usdoj.gov

3 See http://www.abramslaw.com/nursing_homes_document_id_1049 (accessed March 13, 2017).
2

 
 Case 1:13-cv-04165-NGG-ST Document 101 Filed 03/30/17 Page 1 of 3 PageID #: 1161

Case 1:13-cv-04165-NGG-ST Document 101 Filed 03/30/17 Page 2 of 3 PageID #: 1162
'ii:O
MAH 3 l'' 2017
ATTORNEYS AT LAW

March 27, 2017

EDWARDJ. O'CONNELL 1925-1939
SAMUELE. ARONOWITZ 1925-1973 LEWIS A ARONOWITZ 1951-1979

Hon. Kimberly A. O'Connor Acting Supreme Court Justice Albany County Court House 16 Eagle Street - Room 411 Albany, NY 12207
Re: Doe v. Zucker, et al. Index No. 07079/2016 (Supreme Court, Albany County)
Dear Justice O'Connor:

CORNELIUS D. MURRAY FRED B. WANDER STEPHEN R. COFFEY JEFFREY J. SHERRIN THOMAS J. D1NOVO NANCY SC!OCCHETII PAMELA A NICHOLS JEFFREY A. SIEGEL JAMI DURANTE ROGOWSKI DAVID R. ROSS KURT E. BRATTEN MICHAELP. MCDERMOIT KELLY J. MIKULLITZ WILLIAM F. BERGLUND ROBERT J. KOSHGARIAN MATTHEW J. DORSEY GEORGE R. SLINGERLAND

I received today a copy of the letter written to Your Honor, dated March 23, 2017, from Kent T. Stauffer, Executive Deputy Attorney General. Our office represents the Plaintiff, John Doe, in this Article 78 proceeding.
While Mr. Stauffer did comply with Judge Garaufis' direction, it is Plaintiffs position that this proceeding is before Your Honor in state court, and it is not appropriate for Judge Garaufis, who is presiding over another action in federal court, to intercede in this action and purport to direct this Court what to do with its own Orders. It is further Plaintiffs position that this Article 78 proceeding is by no means moot when Mr. Doe returns to an adult home, and that the issuance of the injunctive relief was entirely appropriate and remains so.
If a motion is filed to vacate the TRO, Plaintiff intends to vigorously oppose it. The challenge to the regulations at issue is not just about Mr. Doe's right to return to an adult home, but also all the other discriminatory limitations on his rights imposed by these regulations.
Thus, it is not moot both as to Mr. Doe, or to the many others in similar positions who would bring similar actions due to the continuing discriminatory effect of the regulations upon them if the TRO were vacated.

OF COUNSEL
PETER DANZIGER RICHARDS. HARROW MEREDITH H. SAVITT F. MATTHEW JACKSON PAULA. FEIGENBAUM GEORGE R. SLINGERLAND KE!THJ.ROLAND ARTHUR A PASQUARIELLO CRISTINA D. COMMISSO
ELIZABETH A CONNOLLY SCOTTW. ISEMAN BR!TTNAY M. McMAHON DANIELLE E. HOLLEY KATHLEEN EVERS BROWN AMBER L. WRIGHT MARYT. CONNOLLY COURTNEY L. ALPERT KELLAN B. POTIS
CARLA R. WILLIAMS'
(DIRECTOR, HEALTHCARE CONSUi.TiNG GROUP)
*NOT A MEMBER OF THE LEGAL PRACTICE

54 STATE STREET• ALBANY, NY 12207 • (p) 518-462-5601 • (f) 518-462-2670
SERVICE BY FAX NOT ACCEPTED.
www.oalaw.com

Case 1:13-cv-04165-NGG-ST Document 101 Filed 03/30/17 Page 3 of 3 PageID #: 1163

Page 2

March 27, 2017

Thank you for your consideration.

Respectfully submitted,

DS~~
cc: Kent T. Stauffer, Esq. Matthew F. Didora, Esq.

O'CON.· N/ELL'r;A' ND ARO.N,_OW-·- ITZ

By: .· , ·1J:Vv7 .,/ _}'17f!rey J._ Sherr,iii(____ .·

,

/

,I

I

 
 Case 1:13-cv-04165-NGG-ST Document 103 Filed 04/03/17 Page 1 of 2 PageID #: 1263
U.S. Department of Justice
United States Attorney's Office Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201
April 3, 2017
VIA ECF
Honorable Nicholas G. Garaufis United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: United States v. State of New York, 13-cv-4165 (NGG) O’Toole et al. v. Cuomo et al., 13-cv-4166 (NGG)
The United States respectfully submits this letter pursuant to the Court’s Order dated March 30, 2017, directing Plaintiffs to respond to the submission of the New York State Office of the Attorney General (OAG) dated March 29, 2017, and to advise the Court whether the United States intends to seek sanctions against the State Defendants.
OAG’s March 29, 2017 submission supplements OAG’s February 28, 2017 motion to withdraw as counsel. The actions of the State Defendants surrounding the entry of the Temporary Restraining Order in Doe v. Zucker are clearly troubling, and we appreciate OAG’s efforts to clarify the record. However, the United States and private plaintiffs are in the process of negotiating an agreement with the State that would prevent nullification of the Amended Stipulation and Order of Settlement (the Settlement Agreement) and allow the parties to return to dedicating their full attention and resources to the critically important task of pursuing the relief to which adult home residents are entitled under the Settlement Agreement. If the parties are able to reach such an agreement, we respectfully submit that the additional discovery granted at the March 22 hearing and the scheduled May 17 hearing will not be necessary.

Case 1:13-cv-04165-NGG-ST Document 103 Filed 04/03/17 Page 2 of 2 PageID #: 1264
Accordingly, the United States does not intend to seek sanctions at this time. However, if we are unable to reach agreement with the State to resolve the current issues, we intend to proceed with the scheduled discovery and the May 17 hearing. In that event, we may seek leave to supplement this submission and request that the Court strike section O.1 from the Settlement Agreement.
Respectfully Submitted,
BRIDGET M. ROHDE Acting United States Attorney By: ___________/s/___________ Michael J. Goldberger Chief of Civil Rights, Civil Division United States Attorney’s Office Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201 (718) 254-6052 Michael.Goldberger@usdoj.gov
___________/s/___________ Eliza Dermody Jennifer Bronson Trial Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice (202) 305-0463 Eliza.Dermody@usdoj.gov Jennifer.Bronson2@usdoj.gov cc: All counsel (By ECF)
2

 
 Case 1:13-cv-04165-NGG-ST Document 105 Filed 05/04/17 Page 1 of 1 PageID #: 1322 U.S. Department of Justice

United States Attorney's Ofice Eastern District of New York

271 Cadman Plaza East
Broodyn, Nen York I l20l
May 4,2017

VIA ECF

Honorable Nicholas G. Gmaufis United States District Judge Eastem District of New York 225 Cadmat Plaza East
Brooklyn, New York I l20l

Re United States v. State of New York. 13-cv-4165 fNGG) O'Toole et al. v. Cuomo et al.. 13-cv-4166 (NGG)

Dear Judge Garaufis:
On behalf of all parties to the above referenced actions, the United States respectfully submits the attached proposed Stipulation and Order addressing the issues raised during the Court's March 22,2017 hearing. Among other things, the parties ask the Court to so order a Second Amended Stipulation and Order of Settlement (attached) which omits section O.1 of the January 30, 2014 Amended Stipulation and Order of Settlement, and cancel the scheduled May 17,2017 hearing and July 10, 2017 trial date.
The parties are available, as always, to answer any questions the Court may have.
Respectfu lly Submitted,

BRIDGET M. ROHDE Acting United States Attomey

By'

ls/

Michael J. Goldberger Chief of Civil Rights, Civil Division

United States Attomey's Office Eastem District of New York

271 Cadman Plaz-a East
Brooklyn, New York I l20l
(718)2s4-60s2

Michae[.Goldberser@usdoi.sov

/sl Eliza Dermody Jennifer Bronson Trial Attomeys Disability Rights Section Civil Rights Division U.S. Department of Justice (202) 30s-0463 Eliza.Dermody@usdoj.eov Jennifer.Bronson2@usdoi. gov

Cc: All parties (via ECF)

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 1 of 13 PageID #: 1323
I

LINITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
X

T]NITED STATES OF AMERICA.

-agarnst-

Plaintill.

STATE OF NEW YORK,

Civil Action No. cv-13-4165
(Garaufis, J.) (Tiscione, M.J.)

Defendant

X

RAYMOND O'TOOLE, et al.,

-against-

Plaintiffs,

ANDREW CUOMO, in his official capacity

Civil Action No. cy-13-4166
(Garaufis, J.) (Tiscione, M.J.)

as Govemor of the State of New York, et al.,

Defendants.

X

STIPULATION AND ORDER

I. INTRODUCTION

I .

On lruJy 23 , 2013 , the parties to the above-referenced actions entered into a

Stipulation and Order of Settlement providing for assessment and transition to community

housing, as appropriate, of individuals with serious mental illness (SMI) who reside in New york

city Impacted Adult Homes (the Adult Homes). The pades subsequently signed and filed with

the Court an Amended Stipulation and Order of Settlement (the Agreement) on January 30, 2014, which the Court so ordered on March 17,2014.

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 2 of 13 PageID #: 1324
2. On January 16,2013, before the execution of the Stipulation and Order of
Settlement, the State ofNew York (the State) issued regulations rcstricting new admissions of
individuals with SMI into the Adult Homes. l8 NYCRR $ 487.4(c) and 487.13, 14 NYCRR gg 580.6(cX2) and 582.6(c)(2) as adopted January 16,2013 (I.D. No. HLT-32-12-00020-4 and I.D. No. OMH-32-12-00019-A).
3. Under Section O.1. ofthe Agreement, ifa court of competent jurisdiction issues
an order staying the enforcement ofor invalidating any ofthe regulations, the parties to the
Agreement "shall meet and confer in good faith to determine appropriate modifications to th[e] Agreement that would give effect to the original intent ofthe Parties." Section O.l ' Iirrther
provides that if the parties cannot agree to appropriate modifications within 120 days, the entire Agreement is null and void.
4. On February 16, 2017, without objection fiom the Department of Health and
Office of Mental Health, a Justice of the New York State Supreme Court in Albany, New York issued a Temporary Restraining Order (TRO) retumable on July 28, 2017 enjoining enforcement ofone of the regulatiots. John Doe v. Howard Zucker, et al.,Index No. 0707912016. This
triggered the parties' obligations under section O.l ofthe Agreement.
5. On February 28,2017, the New York State Attomey General (OAG) moved to
withdraw as counsel for the defendants in the instant actiors, United States v. State of New York, and O'Toole et al. v. Cuomo et al., cilingto events surrounding the issuance of the TRO. At a conference before the Court on March22,20l7,rhe Court held the OAG motion "in abeyance" and granted the o'Toote plaintiffs' motion for discovery regarding the oAG motion to withdraw and the circumstances surrounding the issuance of the TRO. The Court scheduled a hearing for May 17,2017 to hear evidence regarding these two issues.

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 3 of 13 PageID #: 1325
6. OAG hereby withdraws its motion to withdraw as counsel for the State in these two
actions (United States v. State of New York ard O'Toole v. Cuomo\ and in Residents and Families United To Save Our Adult Homes, et al. v. Howard Zucker et al., Civil Action No. CV16-1683 (NGG). Constantine Cannon will serve as lead counsel, with OAG as co-counsel, in United States v. State of New York and O'Toole v. Cuomo.
7. The parties have subsequently met and conferred and intend to continue to discuss
modificafions to the Agreement. However, to avoid nullification of the Agreement and the delays in transitioning adult home residents who wish to reside in the community, they agree to the following: II. AGREEMENT BETWEEN THE PARTIES
8. The parties hereby amend the Agreement to delete section O.l, and request that
the Court so order a Second Amended Stipulation and Order of Settlement, attached as Exhibit
A, which reflects this amendment. The entry of the Second Amended Stipulation and Order of
Settlement does not modifu or extend the time for the parties to accomplish the obligations set forth in the Agreement.
9. The parties agree to withdraw with prejudice all pending discovery requests
conceming the OAG motion to withdraw and issuance ofthe state court TRO and hereby request that the Court cancel the May 17,2017 hearing. Notwithstanding the foregoing, such discovery may be renewed upon good cause and substantial need and events that plaintiffs discover or that occur after the date this stipulation is entered into.
10. The parties agree to continue to negotiate in good faith regarding implementation
of the Second Amended Stipulation and Order of Settlement and possible additional revisions lo
the Second Amended Stipulation and Order of Settlement, including, but not limited to, (l)

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 4 of 13 PageID #: 1326
defining the scope of the class ofindividuals eligible for reliefunder the Agreement and of the defendants' obligations regarding in-reach, assessment, and transition ofeligible individuals; (2) goals, benchmarks and timing for the assessment of adult home residents with SMI and the transition of those residents to supported and other community housing; and (3) improvements in the processes for in-reach, assessment and provision of services and supports to class members who have transitioned and will transition.
11. The State will, in good faith, take all appropriate legal action to defend against
any direct or indirect challenges to the Second Amended Stipulation and Order of Settlement.
12. Nothing in this Stipulation or in the Second Amended Stipulation and Order of
Settlement impairs the right of any party to enforce, seek relief ftom enforcement of, or seek or oppose modification ofthe Second Amended Stipulation and Order of Settlement.
13. The parties request that the Court cancel the trial scheduled in these cases for July
10,2017.

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 5 of 13 PageID #: 1327

For PlaintiffUNITED STATES OF AMERICA: Dated: May 2, 2017

BRIDGETM. ROHDE

Acting United States Attomey

East

o ew York

By: Ml

BERGER

Assistant United

Attomey

Eastem District of New York

T.E. WHEELER, II Acting Assistant Attomey General Civil Rights Division
REBECCAB. BOND Acting Deputy Assistant Attomey General Civil fughts Division
ANNE S. RAISH, Acting Chief AMANDA MAISELS, Deputy Chief Disability Rights Section Civil fughts Division

ODY JENNIFER BRONSO VICTORIATHOMAS Trial Attomeys Civil fughts Division U.S. Department of Justice

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 6 of 13 PageID #: 1328

For the Plaintiff Class:
Dated l4^, L, ?-ov T
Andrew G. Gordon Geoffrey Chepiga
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP I285 Avenue ofthe Americas
NewYork,NY 10019-6064

Cliff Zucker Nina Loewenstein DISABILITY RIGHTS NEW YORK 725 Broadway, Suite 450 Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR TI{E PUBLIC INTEREST, INC. l5 I West 30th Street, I lth floor
New York, NY 100014007
Jeftey Senter URBAN ruSTICE CENTER 123 William Street, l6th floor
New York, NY 10038

Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTHLAW 1 105 15th Steet, N.W., Suite 1212
Washington, DC 20005
Jeanette Zelhof Kevin Cremin
Jota Borgmarur
MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor NewYork,NY 10007

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 7 of 13 PageID #: 1329

For thc Plaintiff Class:
Dated: J_ Z Eot
Andrew G. Gordon GeolIrey Chepiga
PAUL, WEISS, RIFKIND, W}IARTON &
GARRISON LLP 1285 Avenue of the Americas
New York, NY 10019-6064

C
Nina DISABILITY RIGHTS NEW YORK 725 Broadway, Suite 450
Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FORTHE PUBLIC INTEREST, INC.
I 5l West 30th Street, 1 l th floor New York, NY 10001 -4007
Jeftey Senter URBAN JUSTICE CENTER 123 Witliam Street, l6th floor
Nerv York, NY 10038

Ira A. Bumim Jennifer Mathis BAZELON CENTERFOR MENTAL HEALTH LAW 1105 15th Street, N.W.. Suite 1212 Washington, DC 20005
Jeanette Zelhof Kevin Cremin
Jota Borgmann
MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 8 of 13 PageID #: 1330

l-or thc I,laintiff Clais:

5 our"a,

t+

Ardtew G- Oordon
CeolEe), ChepiSa
PAUL, WEISS, RIIJKIND. WTIARTON & CARRISON LLP
l2ti Averue ofrhe Americas Nen York.l{Y lml9{i06t

CliffZuckcr Nina Loewcnstcia DIS.ADILITY RICHTS NEW YORK
725 Broadway. Suitc 450
Albany, NY I 2207

Robena l\,lueller NF,W YORJ( LAWYERS FOR THE PUBLIC INTEREST, INC,
I 5 I West 30th Sreel I I th flmr Nelv Yor|i NY 10001-4007
lct'fiey Sentcr URBAN JUSTICE CDr-TER 123 William Streer, l6rh floor
Ne\r York, NY 10038

lrdA. Burnim Jennifc. Nla$is BAZELON CENTER FOR II,IENTAIHEALTH LAW I I05 I 5lh Strcrt N. W., Suile I 2 I 2 Washineron, DC 20m5
Jeanette Zclhot Kevin Crernin Joh Bortlnann MFY LEGAL SERVICES, INC. 299 B.ood*!y, 4dr floor New Yo.k NY l0O0?

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 9 of 13 PageID #: 1331

For the Plaintiff Class:
Dated: 5 L
Andrew G. Gordon Geoffrey Chepiga
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP 1285 Avenue ofthe Americas
New York, NY 10019-6064

Cliff Zucker
Nina Loewenstein DISABILITY RIGHTS NEW YORK 725 Broadrvay. Suite 4-s0
Albanv. NY 12207

Roberta Mueller
NEW YORK LAWYERS FOR THE PUBLIC
INTEREST, INC.
I 5 I West 30th Street, I I th floor NewYork,NY 10001-4007

(
Ira
J
BAZELON CENTER FOR MENTAL HEATTH LAW
I 105 l5th StreeL N.w.. Suite l2l2
Washington, DC 20005

Jeftey Senter
URBAN ruSTICE CENTER 123 William Street, 16th floor
New York, NY 10038

Jeanette Zelhof Kevin Cremin
Jota Borgmann Samantha Rauer
MFY LEGAL SERVICES, IhJC. 299 Broadway, 4th floor New York, NY 10007

24

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 10 of 13 PageID #: 1332

For the Plaintiff Class:

Dated:

7

Andrew G. Gordon
Geoffrey Chepiga
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP 1285 Avenue of the Americas
NewYork,NY 10019-6064

Cliff Zucker
Nina Loewenstein
DISABILIry RIGHTS NEW YORK
?25 Broadway, Suite 450
Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC
INTEREST, INC. 151 West 30th Street, 1 l th floor
New York, NY 10001-4007
,,k
Jeftey Senter URBAN ruSTICE CENTER 123 William Street, l6th floor
New York, NY 10038

Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW I 105 l5th Street, N.W., Suite 1212
Washington, DC 20005
Jeanette Zelhof Kevin Cremin
Jota Borgmann
MFY LEGAL SERVICES, INC 299 Broadway, 4th floor New York, NY 10007

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 11 of 13 PageID #: 1333

For the Plaintif'f Class:

5 Dated

ol

Andrew G. Gordon Geoftey Chepiga
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue ofthe Americas
New York, NY 10019-6064

CliffZucker Nina Loewenstein DISABILITY RICHTS NEW YORK
725 Broadway, Suite 450 Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC ]NTEREST, INC.
l5l West 30th Street, I I th floor New York, NY 10001-4007
Jefftey Senter URBAN JUSTICE CENTER 123 William Street. l6th floor
New York, NY 1003 8

Ira A. Bumim

Jennifer Mathis

BAZELON CENTER FOR MENTAL

HEALTH LAW

I105 l5th Street, N.W., Suite l2l2

Washington, DC 20005

/

J

hof

Jota Borgnann MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor
New York, NY 10007

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 12 of 13 PageID #: 1334

ForDefeodana STATE OF NEWYORK ACTING COMMISISIONER KRISTIN M. WOODI,OCIq THE NEW YORK STATE OFFICE OF MENTAL HEALTTI, COMMISSIONER NIRAV R. SHAH, THE NEW YORK STATE DEPARTMENT OF HEAL;TH, md GOVERNOR ANDREW M. CUOMO:
D'.d, r /\/t?

ERICT. SCHNEIDERMAN
Aruney General of thc Statc of Ncw Yort
Attom€,y for DefcodeB
120 Broadway Ncry Yodq l.[Y 10271
Qtz) 4168560
By
Brown

Robert L, Begleito Attomcy for Dcftndarts Constantinc Cannoq LLP 335 Madison Avauc
NewYodql.IY lmlT

SO ORDERED Datod: Brmtlyn, Ncw Yont
.2017
Nicbolas G. Garaufis United States District Judge

25

Case 1:13-cv-04165-NGG-ST Document 105-1 Filed 05/04/17 Page 13 of 13 PageID #: 1335

For Defendants STATE OF NEW YORK, ACTING COMMISSIONER KRISTIN M. WOODLOCK, THE NEW YORK STATE OFFICE OF MENTAL HEALTH, COMMISSIONER NIRAV R. SHAH, THE NEW YORK STATE DEPARTMENT OF HEALTH, and GOVERNOR ANDREW M. CUOMO:
Dated:'h^- 4, 2o t7

ERIC T. SCHNEIDERMAN Attomey General of the State of New York Attomey for Defendants 120 Broadway
New York, NY 10271
(212) 416-8560

By

Robert

eiter

Gary J. Malone

Attomeys for Defendants

Constantine Cannon, LLP

335 Madison Avenue
New York, IIY 10017

SO OR-DERED Dated: Brooklyn, New York
20t7
Nicholas G. Garaufis United States District Judge

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 1 of 32 PageID #: 1336

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

THE UNITED STATES OF AMERICA, Plaintift'-
STATE OF NEW YORK, Defendant.

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Civil Action No. 13-CV-4165

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(NGG)

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RAYMOND O'TOOLE, ILONA SPIEGEL, ANd )

STEVEN FARRELL, individually and on behalf )

ofall others similarly situated,

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Plaintiffs,

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ANDREW M. CUOMO, in his official

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capacity as Govemor of the State of New

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York, NIRAV R. SHAH, in his official

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capacity as Commissioner of the New York

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State Department of Health, KRISTIN M.

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WOODLOCK, in her official capacity as

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Acting Commissioner of the New York

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State Office of Mental Health, THE NEW

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YORK STATE DEPARTMENT OF

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HEALTH, ANd THE NEW YORK STATE

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OFFICE OF MENTAL HEALTH,

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Defendants.

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Civil Action No. 13-CV-4166 (NGG)

SECOND AMENDED STIPULATION AND ORDER OF SETTLEMENT
WHEREAS, the United States of America asserts as against the State of New York, and the PlaintiffClass asserts as against certain State agencies and officials, that they ale prepared to commence litigation seeking declaratory and injunctive relief, alleging violations of Title II of the Americans with Disabilities Act ("ADA"),42 U.S.C. $ 12131 e/

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 2 of 32 PageID #: 1337
seq., arrd Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. $ 794, with respect to individuals with serious mental illness who reside in, or who may in the future reside in, NYC Impacted Adult Homes, meaning Adult Homes in New York City with certified capacities of 120 or more in which 25 percent or more ofthe residents or 25 residents,
whichever is less, have serious mental illness; and
WHEREAS, the United States of America and the PlaintiffClass (collectively, the "Plaintiffs") allege that the State ofNew York and certain State agencies and officials (collectively, the "State") violate the ADA and the Rehabilitation Act by designing, funding, and administering the State's mental health service system in a manner that discriminates against Persons with Serious Mental lllness who reside in NYC Impacted Adult Homes; that there are more than 4,000 individuals with serious mental ill-ness who currently reside in NYC Impacted Adult Homes; and that NYC Impacted Adult Homes are segregated facilities that are not the most integrated setting appropriate for individuals with serious mental illness, virtually all ofwhom can be served in more integrated settings, specifically, supported housing; and
WHEREAS, the State of New York and State agencies and officials, namely the Commissioner of the New York State Office of Mental Health, the Commissioner of the New York State Department of Health, and the Govemor of the State of New York, all in their official capacities, and the New York State Office of Mental Health ("OMH") and the New York State Department of Health ("DOH") (collectively "the Defendants" or "the State"), deny that they have violated the ADA or the Rehabilitation Act; and
WHEREAS, OMH has issued a Clinical Advisory stating that Adult Homes with a significant proportion of residents with serious mental illness are not conducive to the recovery and rehabilitation ofthese individuals and thus are not clinically appropriate settings for such individuals; and
WHEREAS, on January 16,2013, DOH adopted regulations providing that no
operator of an Adult Home located anywhere in New York state with a certified capacity of 80 or more shall admit any person with serious mental illness whose admission will cause such Adult Home to become or remain a "Transitional Adult Home" - meaning that the
mental health census ofsuch particular adult home is 25 percent or more of the resident
population - and that the operator of any Transitional Adult Home must submit a
compliance ptan to DoH demonstmting how it will reduce such mental health census below
25 percent; and
WHEREAS, on January 16, 2013, OMH adopted regulations prohibiting OMHlicensed psychiatric inpatient units ofgeneral hospitals and private psychiatric hospitals from discharging individuals with Serious Mental Illness to Transitional Adult Homes, and has issued similar guidance to its state-operated psychiatric centers through amendments to its Official Policy Manual; and
WIIEREAS, the Medicaid Redesign Team C'MRT'), established by the Govemor in Executive Order No. 5 on January 5, 201l, recommended a series of reforms in the
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Medicaid Program, most of which were incorporated into the budget for State Fiscal Years
2}ll-12 ard 2012-13, including the creation of Health Homes and the institution ofan
accelerated shift to Managed Long Term Care Plans ("MLTCPs") for eligible Medicaid recipients; and
WHEREAS, as part of the implementation of the aforementioned MRT initiatives, Persons with Serious Mental Illness who reside in Transitional Adult Homes throughout the State will be enrolled in either Health Homes or MLTCPs, which will perform comprehensive assessments ofthe residents' physical and behavioral health needs and arrange for needed services; and
WHEREAS, the State will require that Health Homes and MLTCPs, as part of the comprehensive assessment ofa Person with Serious Mental Illness residing in a Transitional Aduit Home, affirmatively work with the individual and his or her family as appropriate to
recommend housing and coordinate other social, medical and behavioral health services that would be necessary to support such individual and facilitate his or her ability to live in the community; and
WHEREAS, pursuant to a Request for Proposals issued on August 10, 2012, OMH entered into contracts to fund the development of 1,050 Suppo(ed Housing units in Kings and Queens Counties over a three year period for the purpose of helping Persons with Serious Mental Illness residing in Transitional Adult Homes in such counties transition to the community as appropriate and will enter into additional similar arrangements as
necessary; and
WIIEREAS, the State has developed a Community Transition Unit within DOH, which includes several Community Transition Coordinators who will help facilitate efforts to transition individuals with Serious Mental Illness residing in Transitional Adult Homes to the community; and
WHEREAS, by Executive Order No' 84 issued on November 30, 2012, the Govemor established a body of State officials to provide guidance in the creation of a formal Olmstead Plan; and
WHEREAS, in addition to these efforts, the State and Plaintiffs intend that the measures required pursuant to this Agreement will provide residents of Impacted Adult
Homes in Niw York City who have serious mental illness with the opportunity to live in the most integrated setting and will ensure that they are provided with the information necessary
to allow them to make informed choices about those opportunities; and
WHEREAS, the parties entered into a Stipulation and Order of Settlement on July 23,2013 and an Amended Stipulation and Order of Settlement on January 30, 2014; and
WHEREAS, the parties have entered into a Stipulation and Order dated May 2,
2017 which provides, inter alia, for revision ofthe Amended Stipulation and Order of
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Settlement and for this Second Amended Stipulation and Order, incorporating the changes agreed to therein;

IT IS IIEREBY STIPULATED AND AGREED by and among the undersigned
that Plaintiffs' claims are settled on the following terms and conditions:
A. INTRODUCTION

The Parties agree that it is in their mutual interest to avoid the time, expense, and risk of litigation and hereby resolve the allegations by entering into this Agreement.
B. JURISDICTION

The Parties acknowledge that the Court has jurisdiction over this case pursuant to 28 U.S.C. $ 1331, 28 U.S.C. $ 1345, and 42 U.S.C. $$ 12131-12132 and authoritv to enter this Agreement and to enforce its terms as set forth herein. Venue is proper in this district pursuant to 28 U.S.C. $ 1391(b).
C. DEFINITIONS

I

"Adult Home" means an adult care facility licensed as an adult home by the

Department of Health pursuant to Social Services Law Article 7.

2.

"Transitional Adult Home" means an Adult Home with a certified capacity of

80 or more beds and a Mental Health Census of25 percent or more ofthe

resident population. Transitional Adult Homes include NYC Impacted Adult

Homes.

J

'NYC Impacted Adult Home" means an Adult Home located in New York

City with a certified capacity of 120 or more beds and a Mental Health

Census of25 percent or more of the resident population or 25 persons,

whichever is less, consisting of the facilities listed in Appendix A.

4

'NYC Adult Home Resident" means a Person with Serious Mental Illness

residing in a NYC Impacted Adult Home.

5

A "Person with Serious Mental Illness" means an individual who meets

criteria established by the Commissioner of Mental Health, which shall be

persons who have a designated diagrrosis of mental illness under the most

iecent edition of the Diagnostic and Statistical Manual of Mental Disorders

(but not a primary diagnosis ofalcohol or drug disorders, organic brain

syndromes, developmental disabilities or social conditions) and whose

severity and duration of mental illness results in substantial functional

disability.

An individual is presumed to have a substantial functional disability as a

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result of mental illness if the individual:

a.

received treatment from a mental health services provider operated,

licensed or funded by OMH within the 24 months preceding the date

on which this Agreement is "so ordered" by the Court, unless the

Health Home or MLTCP determines, based on information which the

Health Home or MLTCP shall document, that the individual's mental

illness has not resulted in a substantial functional disability; or

b

is under the age of65 and receives Supplemental Security Income

("SSI') or Social Security Disability Insurance ("SSDI") due to

mental illness (but not a primary diagnosis of alcohol or drug

disorders, organic brain syndromes, developmental disabilities or

social conditions):

i. according to reliable information received from the Social Security Administration, pursuant to a reasonable agreement to
share data, that the individual's receipt ofSSI or SSDI is due to
mental illness, unless the Health Home or MLTCP determines,
based on information which the Health Home or MLTCP shall document, that the individual's mental illness has not resulted in a substantial functional disability; provided, however, that: ( I ) this subparagraph (b)(i) shall not apply to individuals who receive inreach or are assessed by Health Homes or MLTCPs prior to the date on which such agreement to share data is in place; and (2) this subparagraph (b)(i) shall not apply if the State determines that it cannot reach a reasonable agreement to share data with the Social Security Administration within four months of the date on
which this Agreement is "so ordered" by the Court; or

ii. according to a written final administrative determination from the Social Security Administration speciSing that the individual was awarded SSI or SSDI due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document, that the individual's mental illness has not resulted in a substantial functional
disability.

6

"Mental Health Census" means the number of residents in an Adult Home

who are Persons with Serious Mental Illness.

7

"supported Housing" means scattered-site apartments for which OMH

funding provides rental assistance and a minimum level of housing-related

support services from the housing provider for individuals with Serious

Mlntal Illness. These housing-related support services include assisting the

resident in managing tenanUlandlord relations and with transitioning to the

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Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 6 of 32 PageID #: 1341

new housing unit. In situations where a resident needs ongoing additional support to manage his or her symptoms, or assistance with living skills such as shopping, maintaining his or her living environment, medication
management, and/or personal care services, the supported housing provider may assist in linking the resident with the entities that directly provide these additional services in coordination with the resident's care manager (Health Home or MLTCP). These additional support services may include the Community Services listed in paragraph 8 below.

8.

"Community Services" means services and supports provided in New York

State that assist persons with Serious Mental Illness to live in the community.

Such services and supports include, but are not limited to, Assertive

Community Treatment ("ACT"), care coordination, employment services,

outpatient services, Intensive Psychiatric Rehabilitation Treatment, medical
services, Personalized Recovery Oriented Services ('PROS), crisis services,
assistance with taking medication (including through prompting), Medicaid

benefits for which the Adult Home Resident is eligible, including but not
limited to home and community based services ('HCBS) waivers, clinic

services, certified home health care, personal care assistance, nursing and

rehabilitative services.

9. "Community Transition List" means one or more lists maintained for the purpose of facilitating efforts to transition NYC Adult Home Residents into the community.

10.

"Health Home" means a State-approved entity that provides or arranges for c.re management from care management partner agencies that provide health
home services including comprehensive assessment, comprehensive care management, health promotion, transitional care including appropriate follow-up ftom inpatient to other settings, patient and family support, referral to community and social support services, and use of health information
technology to linl< services.

1 l

"Managed Long Term Care Plan" or "MLTCP" means an entity that provides

or arranges for the provision of health and long-term care services to adults

with chronic illness or disabilities. MLTCP services include - but are not

limited to - nursing, physical therapy, occupational therapy, speech
pathology, medical equipment and supplies, podiatry, dentistry, optometry,

respiration therapy, transportation and social day care. These services are

provided under contract with the State and Federal govemments.

D. SUPPORTEDHOUSING

I

The State shatl fund Supported Housing units in a quantity sufficient such

that every NYC Adult Home Resident for whom Supported Housing is

appropriate in accordance with sections F and G ofthis Agreement is

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afforded the oppornlnity to transition to a unit during the time when this
Agreement is in effect. The State shall have the discretion to allocate
Supported Housing units within New York City as necessary for the implementation and oversight of the Transitional Adult Home compliance
plans approved pursuant to regulations adopted by DOH; provided however, that the State shall make all reasonable efforts to coordinate the performance
of assessments by Health Homes and MLTCPs with the development of
Supported Housing units so that the assessments take into account Supported
Housing units that fie actually available or will soon become available.

2

The State shall dedicate a minimum of 2,000 Supported Housing units to help

transition NYC Adult Home Residents for whom Supported Housing is

appropriate out of NYC Impacted Adult Homes' The Supported Housing

units referenced under this paragraph shall include:

a. The 1,050 units that are being funded and operated in Kings and Queens Counties pursuant to the RFP issued by OMH on August 10, 2012:'

b. Additional units that the State will fund for development and operation of Supported Housing units in Staten Island and the Bronx pursuant to one or more RFPs that will be issued by OMH within two
years ofthe execution ofthis Agreement; and

c. Additional units that the State will fund for development and operation in New York City pursuant to one or more additional RFPs to be issued by OMH, as necessary pursuant to Section D(l).

3

The use of Supported Housing units for other populations shall not reduce the

State's obligation under Section D(1) during the time when this Agreement is

in effect.

E. IN-REACH

I

The State shall arrange for the entities that provide Supported Housing, as set

forth in Section D, pwsuant to contracts with OMH ("Housing Contractors"),

to conduct in-reach in the NYC Impacted Adult Homes. In-reach shall not be

provided by operators ofNYC Impacted Adult Homes. For any housing

iontracts procured after the date of this agreement, OMH shall consider
whether piospective bidders have provided onsite case management to any of the NYC Impacted Adult Homes listed in Appendix A and whether that
experience, in addition to other relevant experience, would impact their

ability to conduct effective in-reach.

2

The goal of in-reach is to actively support NYC Adult Home Residents in

considering and making an informed choice about moving to Suppo(ed

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Housing or other housing that is the most integrated setting appropriate to the individual.

a.

The State shall require Housing Contractors, in providing in-reach, to

provide information about the benefits of Supported Housing and

discuss any concems that a NYC Adult Home Resident may have

about moving to Supported Housing.

b

The State shall use best efforts to locate persons who live in

Supported Housing and are willing to speak with NYC Adult Home

Residents, so that Housing Contractors can offer NYC Adult Home

Residents opportunities to speak with such persons.

c

The State shall require Housing Contractors, in providing in-reach, to

provide information such as photographs and/or virtual tours of

sample Supported Housing apartments that will help residents

visualize Supported Housing settings.

d

The State shall require Housing Contractors to facilitate visits for

those NYC Adult Home Residents who have been identified by the

Health Home or MLTCP as Residents who appear to be appropriate

candidates for Supported Housing pursuant to Section F but are

undecided about their desire to move to Supported Housing and could

benefit from such visit.

3

Housing Contractors shall provide in-reach to their designated NYC Adult

Home Residents on a regular and continuing basis during the time period of

their contracts with OMH.

4

The State shall advise NYC Impacted Adult Homes that they may not

interfere with the reasonable access of Housing Contractors to the NYC

Impacted Adult Homes and may not discourage NYC Adult Home residents

from meeting with Housing Contractors. The State shall require Housing

Contractors to report to the State any instances of such interference or

discouragement. The State shall take appropriate corrective action to address

interference or discouragement, which may include action available under

Social Services Law $$ 460-d, 461 and 461'a and 18 NYCRR Parts 485 and

487 to the extent deemed appropriate by DOH.

F. ASSESSMENT

I

The State shall arrange for Health Homes and MLTCPs that have completed

the State's training, as defined in Section H, to conduct a comprehensive

assessment of each NYC Adult Home Resident. If a NYC Adult Home

Resident is not enrolled in a Health Home or MLTCP, then the State shall

provide the person rvith a care coordinator who shall carry out the functions

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in this Agreement that would otherwise be assigned to a Health Home and MLTCP.

2

The assessment shall determine the housing and service needs and

preferences of the NYC Adult Home Resident for purposes of transitioning

from the NYC Impacted Adult Home. Each assessment shall identifr the

housing that is the most integrated setting appropriate for the individual and

the Community Services needed to support the individual in such housing,

based on the individual's needs and personal preferences.

J

Community inte$ation and self-determination shall be key considerations in

the assessment process.

4

Health Homes and MLTCPs shall have the linguistic and cultural

competence in the aggregate to serve competently all NYC Adult Home

Residents.

)

Assessments shall begin with the presumption that NYC Adult Home

Residents can live in Supported Housing. A resident will be considered

appropriate for Supported Housing ifdesired by the resident, unless the

assessment discloses that the resident:

a.

Has significant dementia;

b.

if Would be a danger to selfor others in Supported Housing even

receiving the services referenced in subparagraph d below;

c

Needs skilled nursing care that cannot be provided outside ofa

nursing home or hospital; or

d

Needs a type and/or frequency and duration ofservice on an ongoing

and sustained basis in order to live in Supported Housing that is not

available under the New York State Medicaid program, unless

another public (e.g., Medicare) or private (e.g., Meals on Wheels)

program will pay for or provide the needed service, the individual is

eligible for such program, and such program is available to such

individual.

Services available through the New York State Medicaid program
include, but are not limited to, Medicaid-billable Community Services, such as assertive community treatrnent ("ACT"), care coordination, crisis services, home health services, assistance with taking medication (including through prompting), personal care
services, licensed mental health clinic services and successor programs that serve the same functions as these services; provided, however, that (i) Medicaid services shall be available to NYC Adult

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Home Residents pursuant to the same criteria applicable to other similarly situated individuals enrolled in the Medicaid program; and (ii) nothing in this Agreement shall prevent the State from discontinuing or revising these or any other services offered in the
Medicaid program, subject to Section J(2) below.

6.

A NYC Adult Home Resident shall not be determined to be inappropriate for

Supported Housing solely based on lack ofdesire unless he or she has been

provided with the opportunity to receive In-Reach, pursuant to Section E

above.

7

If aNYC Adult Home Resident is assessed as not appropriate for Supported

Housing:

a.

the assessment must identiff the specific reasons why such Supported

Housing is not appropriate; and

b

the Resident will be afforded the opportunity to live in the most

integrated setting desired by the Resident that is appropriate to the

Resident's needs.

G. PERSON.CENTEREDCAREPLANNING

I

The State shall require that for each NYC Adult Home Resident assessed

pursuant to Section F, the Health Home or MLTCP shall develop the

individual's person-centered care plan. The person-centered care planning

shall include consideration of the current and unique psychosocial and

medical needs and history of the individual as well as the functional level and

support systems developed by the Health Home or MLTCP care manager.

2

The State shall require that each NYC Adult Home Resident be provided

with a primary role in developing the plan and with information reasonably

sufficient to assist him or her in making informed choices about housing and

services.

J

The State shall require that each person-centered plan identiry the housing

that is the most integrated setting appropriate for the individual and the

Community Services needed to support the individual in such housing, based

on the individual's needs and personal preferences and subject to the

provisions of Section F(5). In cases where OMH Supported Housing is part

of the person-centered plan developed by the Health Home or MLTCP, the
assigned Health Home or MLTCP care manager will make a referral to the

appropriate Housing Contractor.

H. TRAINING

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1

Within 180 days of the execution of the Stipulation and Order of Settlement

dated July 23, 2013 or within 30 days ofthe commencement of operations of

a Health Home or MLTCP, whichever is later, the State shall provide

guidance and training to the Health Homes and MLTCPs pertaining to the

assessment ofNYC Adult Home Residents and the development of person-

centered care plans. Such guidance and training shall include the

requirement that each assessment identifi the housing that is the most

integrated setting appropriate for the individual and the Community Services

needed to support the individual in such housing, based on the individual's

needs and personal preferences and subject to the provisions ofSection F (5),

and the presumption that all NYC Adult Home Residents can live in

Supported Housing, subject to the provisions of Section F (5).

2

Within 180 days of the execution of the Stipulation and Order of Settlement

dated July 23, 2013 or within 30 days ofthe commencement ofactivity on a

contract awarded to a Housing Contractor, whichever is later, the State shall

provide guidance and training to the Housing Contractors pertaining to their

obligations to provide in-reach, including techniques of motivational

interviewing, and the presumption that all NYC Adult Home Residents can

live in Supported Housing, subject to the provisions of Section F (5).

I. TRANSITIONING

I

The State shall require the Housing Contractors, Health Homes and MLTCPs

to carry out their responsibilities so that the following schedule is achieved:

a.

Within four years of execution of the Stipulation and Order of

Settlement dated July 23,2013, at least 2,500 NYC Adult Home

Residents shall be assessed by Health Homes or MLTCPs pursuant to

Section F and, if appropriate under a person-centered care plan

developed pursuant to Section G, transitioned from NYC Impacted

Adult Homes.

b.

Within five years of the execution of the Stipulation and Order of

Settlement dated luly 23,2013, all NYC Adult Home Residents shall

be assessed by Health Homes or MLTCPs pursuant to Section F and,

if appropriate under a person-centered care plan developed pursuant

to Section G, transitioned from NYC Impacted Adult Homes.

2

The State shall provide any NYC Adult Home Resident who is otherwise

eligible for Supported Housing pursuant to Section F, but who declines an

offer for Supported Housing, with the opportunity for additional in-reach

and, ifthe Resident so desires, the opportunity to move to Supported

Housing, during the period in which this Agreement is in effect. Such

additional in-reach shall be provided periodically, but on no less than an

annual basis, by a Housing Contractor. If no Housing Contractor is available,

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in the discretion of OMH, to provide such in-reach, the State shall provide or arrange for an equivalent in-reach function.
J. COMMUNITY SERVICES

1

For the duration of this Agreement, the State shall ensure that Health Homes

and MLTCPs arrange for the provision of Community Services identified in

NYC Adult Home Residents' person-centered plans, consistent with Section

G, and ensure that such Services are available.

2

For the duration of this Agreement, the Community Services available to

NYC Adult Home Residents (whether through the Medicaid program or

another program), if the Resident is eligible for the service, shall include the

following services or, if the State replaces or changes the services, services

that perform substantiatly the same function: licensed mental health clinic

services, assertive community treatment ("ACT"), home health services,

mobile crisis services, care coordination, assistance with taking medication

(including through prompting), and personal care services; provided,

however, that eligibility for such services must be determined on an

individual basis based on eligibility criteria that are comparable to criteria in

place on the date this Agreement is executed.

-)

For purposes of determining an individual's eligibility for ACT, eligibility

shall be determined by the OMH Statewide ACT Guidelines.

K. REPORTING

I

Until the Court terminates jurisdiction over this matter, Defendants shall

provide to the Plaintiffs, the Independent Reviewer (defined in Section L

below), and the Court a quarterly report that indicates:

a

The number of Supported Housing units for which the State has

provided funding and the Housing Contractors that received funding.

b

The number of Supported Housing units created pursuant to this

Agreement that are occupied by NYC Adult Home Residents.

c

The name of each NYC Adult Home resident who has been identified

as a Person with Serious Mental Illness at each of the NYC Impacted

Adult Homes listed in Appendix A.

d

The name of each NYC Adult Home Resident who has been assessed

under Section F, the date of assessment, the NYC Impacted Adult

Home at which he or she resided when assessed, and the housing

recommendation made as a result of each assessment.

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The name of each NYC Adult Home Resident who has transitioned, the Adult Home in which he or she lived, the date on which he or she moved, and the tlpe ofhousing to which he or she moved.

1.

The name of each NYC Adult Home Resident assessed as not

appropriate for Supported Housing, and the specific reasons why such

Supported Housing is not appropriate.

2

The quarterly report required in Section K(1) shall be provided in an

electronic format that may be imported into standard spreadsheet software.

3

Until the Court terminates jurisdiction over this matter, Defendants shall

provide to Plaintilfs and the Reviewer:

a

A copy ofany training materials used in connection with the State's

training pursuant to Section H.

b

A copy of the Community Transition List, updated quarterly.

4

Until the Court terminates jurisdiction over this matter, Defendants shall

notifr Plaintiffs and the Reviewer about any instances in which the State has

received a report that a NYC Adult Home Resident is being discouraged by an Adult Home from exploring alternatives to or transitioning from Adult

Homes.

5

A request by Plaintiffs or the Independent Reviewer for relevant information

shall not be unreasonably denied. The Parties shall negotiate in good faith

any areas of disagreement as to whether and when such information shall be

made available.

6

Any personally identifying information shared with the Plaintiffs or the

Reviewer under this Agreement shall be treated and maintained as

confidential.

7

The Parties and the Reviewer shall meet quarterly to discuss implementation

progress and obstacles and how to overcome obstacles to achieving the goals

olthis Agreement.

L, INDEPENDENTREVIEWER

I

The Parties agree that Clarence Sundram shall be the Independent Reviewer

("Reviewer") to monitor the State's implementation of this Ageement (the

"Reviewer"). The State shall retain the Independent Reviewer within 60

days ofexecuting this Agreement.

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2

In the event the Reviewer resigns or the Parties agree to replace the

Reviewer, the Parties shall meet and confer within 30 days ofthe resignation or their agreement and select a replacement. If they are unable to agree on

the replacement Reviewer at the "meet and confer," the Plaintiffs and the
State shall each, within 2l days of the "meet and confer," nominate up to two

individuals with expertise in the provision of community services to persons

with mental illness. The Court shall select the Reviewer from among those

nominated by the Parties.

J

The annual budget for the Reviewer shall be $350,000.00. All reasonable

fees, costs and expenses of the Reviewer, including the cost of any

consultants or staffhired by the Reviewer, shall be bome by the State up to

the amount ofthis annual budget. The Reviewer shall provide a monthly accounting justifring the fees, costs and expenses. In no event will the State

reimburse the Reviewer for any fees, costs or expenses that exceed the

amount of this annual budget. Provided, however, in the event of significant changes in circumstances that result in the Independent Reviewer having to

spend substantially more time or incur substantial and unforeseen expenses,

the Independent Reviewer may seek approval by the State for an amendment to the budget and submit a justification for such amendment. Within 30 days,

the State may question the need for, or the amount of, such additional
unforeseen expenses, may suggest other altematives to avoid some or all of
such expenditures, and may withhold approval of such expenses; provided

that approval of the proposed amendment shall not be unreasonably

withheld. The State shall be the final arbiter of what costs and expenses are

considered reasonable; provided, however, that any costs incuned consistent with the methodology approved pursuant to Section L (11) shall be

considered reasonable.

4

Within the budget described in Section L (3) above, the Reviewer may hire

staff and consultants, in consultation with and subject to reasonable

objections by the State, to assist in his or her evaluation of the State's

compliance with this Agreement. The Reviewer and any hired staff or

consultants are neither agents nor business associates of the State, the United

States, the Plaintiff Class, or the Court.

)

The Reviewer shall confer regularly and informally with the Pa(ies on

matters related to implementation elforts and compliance.

6. The Reviewer, and any hired staff or consultants, may

a.

Have ex parte communications at any time with the Parties, including

counsel for the Parties, and employees, agents, contractors and all

others working for or on behalfofthe State, the PlaintifTClass or the

United States to implement the terms of this Agreement.

l-l

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 15 of 32 PageID #: 1350

b.

Request meetings with either or both Parties. The purpose ofthese

meetings shall include, among other things, prioritizing areas for the

Reviewer to review, scheduling visits, discussing areas ofconcem,

and discussing areas in which technical assistance may be

appropriate.

c

Speak with stakeholders with such stakeholders' consent, on a

confidential basis or otherwise. at the Reviewer's discretion.

d

Speak with anyone else the Reviewer and any stafflconsultants deem

necessary for completing the compliance evaluations and reports

required by this Agreement. However, the State has no obligation to

require any individual who is not a State employee or contractot to

speak with the Reviewer.

e.

Provide technical assistance to the State regarding any issue related to

compliance with this Agreement.

fl

Attempt to resolve any dispute arising out of a Party's position with

regard to the construction or implementation of this Agreement.

Testiff in this case regarding any matter relating to the implementation, enforcement, or dissolution of the Agreement, including the Reviewer's observations, findings and recommendations in this matter. The Reviewer may not voluntarily
testifu as an expert witness against the State in any other administrative or civil proceeding of whatever nature brought before any federal or state court or other administrative orjudicial tribunal. This limitation shall be a required term in the State's Contract with the Reviewer, which is subject to the approval of the New York State
Comptroller.

7

Throughout the pendency of this Agteement, the Reviewer will pursue a

problem-solving approach so that disagreements can be minimized and

resolved amicably and the energies of the Parties can be focused on the

State's compliance with the provisions of the Agreement.

8

The Reviewer shall comply with all federal and Stale patient rights and

confidentiality laws and regulations, including, but not limited to, those set

forth in the New York State Public Health Law and Mental Hygiene Law, the

Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the

Standard for Privacy of Individually Identifiable Health Information and

Health Insurance Reform: Security Standards,45 C.F.R. Part 164, alcohol

and drug abuse patient records laws codified at 42 U.S.C. $ 290dd-2 and 42

C.F.R. Part 2, the Health Information Technology fbr Economics and

Clinical Health Act ("HITECH Act") adopted as part of the American
Recovery and Reinvestment Act of2009 (Public Larv l1l-5). For the

l5

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 16 of 32 PageID #: 1351

purposes of Mental Hygiene Law $ 33.13 (c) 1, the need fbr the Reviewer to access all relevant, otherwise confidential information shall be deemed to
significantly outweigh the need for confidentiality.

9

The duties ofthe Reviewer shall be to observe, review, report findings, and

make recommendations to the parties solely with respect to the

implementation of and compliance with the Agreement. The State shall

direct all agencies, employees and contractors to cooperate fully with the

Reviewer. Neither Party shall interfere with the independent functions of the

Reviewer. The Reviewer shall devote such time as is necessary to fulfill the

purposes ofthe duties and responsibilities of the Reviewer pursuant to this

Agreement, but within the annual budget set forth in Section L (3).

10. The Reviewer and any staff/consultants will have full access to the people,
places, and documents that are necessary to assess the State's compliance with and/or implementation of this Agreement, as permitted by law and in accordance with the limitations set forth in Section L (8).

I l. The Reviewer shall consult with the Parties and shall submit a written plan
with regard to the methodologies to be used by &e Reviewer to assess compliance with and implementation of the Agreement. The Parties shall approve the plan prior to implementation. The Reviewer's evaluations may include regular onsite inspection ofindividuals' residences, with the consent of such individuals, and interviews with individuals receiving services under
this Agreement who consent to be interviewed.

t2. In consultation with the Independent Reviewer, the State shall develop a work plan to guide its implementation of this Agreement within 120 days after the Reviewer is engaged by the State. The State shall share the work
plan with the Parties.

13. The Reviewer shall conduct evaluations of and issue five annual written reports regarding the State's compliance. The Reviewer shall produce five
annual reports regarding the State's compliance with particular provisions of the Ageement to the Parties and the Court pursuant to the time frame in
Section L (14).

t4. The written report shall detail with as much specificity as possible how the State is or is not in compliance with particular provisions ofthe Agreement' A draft of the Reviewer's report shall be provided to the Parties for comment each year within 30 days after the anniversary date ofthe Court's approval of
this Agreement. The parties shall have 30 days after receipt of such draft report to provide comments to the Reviewer, on notice to each other, and the Reviewer shall issue to the Parties a final annual report within 15 days after receiving such comments; provided, however, that the parties may agree to
ertend such deadlines.

l6

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 17 of 32 PageID #: 1352

15. The Reviewer, including any hired staffor consultants, shall not enter into any new contract with the State, the Plaintiff Class, or the United States while serving as the Reviewer without the written consent of the other Party.
16. The Reviewer, including any hired staff or consultants, shall not be:

a.

Liable for any claim, lawsuit, or demand arising out of the reviewing

functions set forth in this Settlement Agreement. This paragraph does
not apply to any proceeding before this Court for enforcement of

payment of contracts or subcontracts for reviewing functions under

this Settlement Agreement.

b

Subject to formal discovery, including, but not limited to,

deposition(s), request(s) for documents, request(s) for admissions,

interrogatories, or other disclosures. The Parties are not entitled to

access the Independent Reviewer's records or communications,

although the Independent Reviewer may provide copies of records or

communications at the Reviewer's discretion. The Court may review

relevant records of the Reviewer in an enforcement proceeding

pursuant to Court order under Section M ofthis Agreement.

17. The Independent Reviewer defined in Section L of the Settlement Agreement may communicate with the court on an ex parte basis, provided that the Independent Reviewer shall thereafter provide the parties a summary ofthe substance of the communication orally or in writing.
M. ENFORCEMENT

I

The Parties agree jointly to file this Agreement with the United States

District Court for the Eastem District olNerv York.

2

The Court shall retain jurisdiction to assure compliance with this Agreement

but not for more than 60 days after the Reviewer has provided the Parties

with its fifth and final report, at which time this Agreement shall expire,

provided, however:

a

The Parties may agree to jointly ask the Court to terminate the

Agreement earlier. Upon 30 days' notice to the Parties and the

Independent Reviewer, the State may also move to terminate the

Agreement, which motion shall be granted if the State demonstrates

that it has substantially complied with all its obligations as set out in

this Stipulation. Before the Court considers the motion, the

Independent Reviewer shall evaluate the State's compliance since the

last annual report and lhe Parties shall have an additional 30 days to

review the evaluation.

l7

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 18 of 32 PageID #: 1353

b

Plaintiffs may move to extend the Court's jurisdiction, which motion

shall be granted if the Plaintiffs advise the Court, on notice to the

State, no later than 60 days after receiving the Independent

Reviewer's fifth and final report, that the State is not in substantial

compliance with the Agreement. In such case, Plaintiffs shall

describe with as much specificity as possible how the State is not in

substantial compliance with particular provisions ofthe

Agreement. If the State contends that it is in substantial compliance,

the Court shall schedule further proceedings, and in such proceedings

the burden shall be on the State to demonstrate substantial compliance

as to the provisions identified by Plaintiffs. If the State demonstrates

such substantial compliance, the motion to extend the Court's

jurisdiction shall not be granted.

3

In the event Plaintiffs allege non-compliance by Defendants with a material

provision ofthis Agreement, counsel to the Parties shall meet and confer in

an effort to resolve the reported non-compliance within 30 days after

Defendants' counsel receives written notice.

a.

Ifsuch efforts fail to achieve a resolution ofthe issue within 60 days

of such "meet and confer," Plaintiffs may bring a motion for

enforcement of this Agreement and the Court shall determine a

reasonable schedule for the hearing and determination of such

motion.

b

In the event ofsuch a motion, Defendants will be considered to be in

"compliance" unless Plaintiffs establish that Defendants' failures or omissions to meet the terms of this Agreement were not minimal or

isolated but were substantial and sufficiently frequent or widespread

to be systemic.

N. ATTORNEYS'FEES;POST-SETTLEMENTACTIVITIES

I

Defendants shall pay to Plaintiff Class the sum of $200,000 in full

satisfaction olany and all claims in this lawsuit and in Disability Advocates,

Inc. v. Paterson,03 CV 3209 (NGG), for attomeys' fees, costs and

disbursements up to and including the date of execution ofthis Agreement,

which fees, costs and disbursements shall be substantiated by back-up

documentation including contemporaneous time sheets. In the event that

payment of this amount is not made within one hundred twenty (120) days

after lhe receipt by defendants' counsel of a copy of this fully executed

Agreement, approved by the Court, interest shall accrue on the outstanding

balance at the rate set forth in 28 U.S.C. $ 1961, beginning on the one hundred and trventy-first day after receipt by defendants' counsel ofa copy

of this fully executed and so-ordered Agreement. The foregoing payment

18

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 19 of 32 PageID #: 1354

shall be made payable to Disability Advocates, Inc. and sent to Disability Advocates, Inc. DBA Disability Rights New York, 5 Clinton Square, Albany, NY 12207, or in the event its offices shall relocate to its then current address.

2.

During the term of this Agreement it is anticipated that Plaintiff Class will

incur certain legal fees, and other costs and disbursements. Plaintiffs,

PlaintiffClass and counsel for the Plaintiff Class agree to limit all such

attomeys' fees, costs and disbursements to what is directly and reasonably

necessary, up to a combined total, which shall not exceed $75,000 per year,

calculated on the basis ofa 365 day year, beginning on the date ofexecution

ofthis Agreement and ending on the date this Agreement expires under

Section M.2. During the term of this Agreement, Counsel for the Plaintiff

Class agree to submit vouchers and contemporaneous time records to

defendants' counsel on a semi-annual basis for any such attomeys' fees, costs

and disbursements and defendants agtee to reimburse counsel for the Plaintiff
If Class within one hundred twenty ( 120) days of receipt of such vouchers.
payment is delayed beyond one hundred twenty (120) days, defendants will

also pay interest at the rate set forth in 28 U.S.C. $ 1961, which shall accrue

beginning on the one hundred twenty-first day. The foregoing payment(s)

shall be made payable to Disability Advocates, Inc. and sent to Disability

Advocates, Inc. DBA Disability Rights New York, 5 Clinton Square, Albany,

NY 12207, or in the event its offices shall relocate to its then current address.

J

For and in consideration of the payments referred to in paragraph N.l and

N.2 above, the sufficiency of which is hereby acknowledged, Plaintiffs,

PlaintiffClass, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Disability

Advocates, Inc., New York Lawyers for the Public Interest, Bazelon Center

for Mental Health Law, Urban Justice Center and MFY Legal Services, Inc.,

hereby release and forever discharge the State of New York, OMH, DOH,

and all of their present and former principals, officers, directors, members,

employees, agents, attomeys, insurers, subdivisions, subsidiaries, heirs,

administrators, and assigns, individually and in their official capacities, from

any and all claims for attorneys' fees, costs, and/or disbursements incurred in connection with this action, including but not limited to all preJitigation

activities including negotiations, and all claims for attomeys' fees, costs,

fees, and/or disbursements incurred in connection with Disability Advocates, Inc. v. Paterson,03 CV 3209 (NGG) in the United States District Court for

the Eastem District of New York, and in this Action.

4

The payment(s) retbrenced in paragraph N.l and N.2 of this Agreement are

subject to the approval of all appropriate state officials in accordance with

N.Y. Public Officers Law $ 17.

t9

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 20 of 32 PageID #: 1355

O. MISCELLANEOUS

I

The Defendants shall use best efforts to seek and secure funding necessary to

implement the terms of this Agreement. This Agreement is subject to

legislative appropriation of such funding and if such appropriations are not

made, the Parties shall retain all rights to revive any claims or defenses

otherwise barred by operation of this Agreement.

2

Solely for purposes ofthis agreement, the Parties agree to entry ofan Order

certifoing the class, defined as NYC Adult Home Residents, as defined in
Section C (4). Any costs associated with certification of or notification to

such class shall be bome by Plaintiffs. In the event that the class is not

certified, this Agreement shall remain unaffected as between the Named

Plaintiffs, the United States and the State.

)

Nothing contained herein shall be deemed to be an admission by the

Defendants that they have in any manner or way violated the Plaintiffs' or

any individual Adult Home Resident's rights, or the rights ofany other

person or entity, as defined in the constitutions, statutes, ordinances, rules or

regulations of the United States, the State of New York, or the City of New

York or any other rules, regulations or by-laws of any department or

subdivision ofthe State ofNew York.

4

This Agreement shall not be admissible in, nor is it related to, any other

litigation or settlement negotiations, except in an action or proceeding by the

Plaintiffto enforce the terms of this Agreement, or in a civil action involving

the State and another party in which the validity ofthe regulations adopted on

January 16,2013 (1.D. No. HLT-32-12-00020-A, and LD. No. OMH-32-12-

00019-A), or as thereafter amended, is at issue.

5

Nothing in this Agreement shall be enforced in a manner that would require a

fundamental alteration of the State's programs, activities, or services for

Persons with Serious Mental Illnesses. Nolhing in this paragraph is intended

to amend or change in any way the obligations set forth in this Agreement, or

prevent appropriate enforcement of this Agreement.

6.

This Agreement contains all the terms and conditions agreed upon by the

parties hereto, and no oral agreement entered into at any time nor any written

agreement entered into prior to the execution ofthis Agreement regarding the

subject matter of the instant proceeding shall be deemed to exist, or to bind

the parties hereto, or to vary the terms and conditions contained herein.

7

All Parties to this Agreement have participated in ia drafting; consequently, any

ambiguity shall not be construed for or against any party.

20

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 21 of 32 PageID #: 1356

8

Ifany ofthe dates or periods of time described in this Agreement fall or end

on a public holiday or on a weekend, the date or period of time shall be

extended to the next business day.

9

All correspondence conceming this Agreement should be sent to the

following (or to such other address as the recipient named below shall

specifu by notice in writing hereunder):

To Defendants

William A. Scott

Assistant Attorney General

Oflice of the New York State

Attomey General

and

The Capitol

Albany, New York 12224

Tel.: (518) 776-2255

E-mail: William.S

.nv.sov

Robert L. Begleiter, Esq.

Constantine Cannon LLP

335 Madison Avenue, 9th Floor

New York, NY 10017

Tel: (212) 350-2707

E-mail-rbesleit

slantlnec annon-com

To Plaintiff United States:

Chief of the Disability Rights Section
U.S. Department of Justice
950 Pennsylvania Ave., NW - NYA
Washinglon, DC 20530
Tel:202-307-0663

To the Plaintiff Class:
Andrew G. Gordon
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
NewYork,NY 10019-6064
Tel:212-373-3543
-and-
CliffZucker DISABILITY RIGHTS NEW YORK 725 Broadway, Suite 450 Albany, NY 12207 Tel: 518-432-7861
10. This Agreement may not be modified without the express written agreement of counsel for the Parties. Absent such agreement, the Parties may seek a
2I

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 22 of 32 PageID #: 1357

modification of this Agreement only for good cause shown, with the Court's approval, upon thirty (30) days' wdtten notice to counsel for the other
Parties.
il. This Agreement may be executed in counterparts, and each counterpart,
when executed shall have the full eflicacy ofa signed original. Photocopies ofsuch signed counterparts may be used in lieu ofthe originals for any
purpose.
12. Signatories

a.

The undersigned representative ofthe Defendants and the Attomey

General of the State of New York certifies that he or she is authorized

to enter into the terms and conditions ofthis Agreement and to

execute and bind legally such Defendants to this document.

b

Each undersigned representative of Plaintiffs certifies that he or she is

authorized to enter into the terms and conditions ofthe Agreement

and to bind legally the Plaintiffto this document.

22

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 23 of 32 PageID #: 1358

For PlaintiffLINITED STATES OF AMERICA:
Dated: 5 +

BRIDGET M. ROHDE

Acting Uni States Attomey

Di

f New York

By: MI

LDBERGER

Assistant United States Attomey

Eastern District of New York

T.E. WHEELER, II Acting Assistant Attomey General Civil Rights Division
REBECCA B. BOND Acting Deputy Assistant Attomey General Civil Rights Division
ANNE S. RAISH, Acting Chiet AMANDA MAISELS, Deputy Chief Disability Rights Section Civil fughts Division

ELIZA

ODY

JENNIFER BRONSON

VICTORIA THOMAS

Trial Attorneys

Civil fughts Division

U.S. Deparknent of Justice

73

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 24 of 32 PageID #: 1359

For the Plaintiff Class:
Z Dated: 4
7r^.,
Andrew G. Geoftey Chepiga
PAUL, WEISS, RIFKIND, V/IIARTON & CARRISON LLP
1285 Avenue of the Americas
New York, I'ry 10019-6064

Cliff Zucker Nina Loewenstein DISABILITY RIGHTS NEW YORK 725 Broadway, Suite 450 Atbany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC
INTEREST, INC. 151 West 30th Street, 1 lth floor
New York, NY 10001-4007

Ira A. Bumim
Jennifer Mathis BAZELON CENTER FOR MENTAL
HEAITHLAW
1105 15th Street, N.W., Suite 1212 Washington, DC 20005

Jeffiey Senter
URBAN ruSTICE CENTER 123 William Street, 16th floor
New York, NY 10038

Jeanette Zelhof Kevin Cremin Jota Borgmann
Samantha Rauer
MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York NY 10007

24

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 25 of 32 PageID #: 1360

For thc PlaintiffC

Dated:

1

%rT

Andrew C. Gordon
Geoflrey Chepiga
PAUL, WEISS, zuFKIND, WHARTON &
GARRISON LLP 1285 Avenue ofthe Americas
NewYork,NY 10019-6064

C

N lna

DISABILITY RI

NEW YORK

725 Broadway. Suite 450

Albany, NY 12207

Roberta Mueller
NEW YORK LAWYERS FORTHE PTJBLIC
INTEREST, INC.
l5l West 30th Street, I lth floor
NewYork,NY 10001-4007

lra A. Bumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW I105 l5thStreet N.W.,Suite 1212 Washington, DC 20005

Jeffrey Senter
URBANJUSTICE CENTER 123 William Street, l6th floor
New York, NY 10038

Jeanette Zelhof Kevin Cremin Jota Borgmann Samantha Rauer MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 26 of 32 PageID #: 1361

For the PlainliffClass: Datcd:

Andrew c. Oo.don Ceoffrey Ch.piga PAUL, WEISS, RtFKIND, WTIARTON & GARRISON LLP l2Ei Alenue ofth€ Amcricas New York, NY 10019-6064
e*e#- tt:,*e
Robcna Mucller NEW YORK LA\ITYERS FOR THE PUBLTC NITEREST, INC.
l5l WGn 30th StrEoq I lth floor Ncw YorL NY lfi$l-4007

CliftZucke. Nina Locwenstein DISABILNY RIGHTS NElV YORK 7?5 Broadway, Suite 450 Alban]'. NY 12207
lraA. Bumim Jcnnifcr Malhis BAZELON CENTER FOR MENTAL HEALTH LAW I105 l5rh SEter. N.W.. Suire | 212 Wf,shinglon, DC 20005

.lcftey Scnt€r
URBAN JUSTICE CENTER 123 william St e€r, l6rh floor
Ncw Yorlq NY 10038

,eancte Zc lhof
Kevin Cr€min Jola BoBnann Sarn nthe Raucr i!ITY LECAL SERVICES, INC, 299 Bro.dtray. 4th noot
Ne\ York. NY 10007

2.1

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 27 of 32 PageID #: 1362

For the PlaintiffClass:
Dared: 5lrlt-l
Andrew G. Gordon Geoffrey Chepiga
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP 1285 Avenue of &e Americas
NewYork.NY 10019-6064

CliffZucker
Nina Loewenstein DISABILITY RICHTS NEW YORK 725 Broadrvay. Suite 450
Albany. NY 12207

Roberta Mueller NEW YORK LAWYERS FOR TFTE PUBLIC INTEREST, INC. 151 West 30th Street. l lth floor
NewYork,NY 10001-4007

(

lra B

J

S

BAZELON CENTER FOR MENTAL

HEALTH LAW

I105 15th Streel N.W.. Suite 1212 Washington, DC 20005

Jeftey Senter
URSAN ruSTICE CENTER
123 William Street, l6th floor
New York, NY 10038

Jeanette Zelhof Kevin Cremin
Jota Borgmann
Samantha Rauer
MFY LEGAL SERVICES, II\iC. 299 Broadway,4th floor New York, NY 10007

24

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 28 of 32 PageID #: 1363

For the Plaintiff Class:

Andrew G. Cordon
Geoffrey Chepiga
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
NewYork,NY 10019-6064

CliffZucker Nina Loewenstein . DISABILITY RIGHTS NEW YORK 725 Broadway, Suite 450 Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC INTEREST, INC.
1 5l West 30th Street, I I th floor New York, NY 10001 -4007
(
Jeflrey Scnt URBAN JUSTICE CENI'F]R 123 William Strcet, 16th floor
New York, NY 10038

Ira A. Bumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW I105 l5th Street, N.W., Suile 1212 Washington, DC 20005
Jeanette Zelhof Kevin Cremin Jota Borgmann Samantha Rauer MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York, NY 10007

?.4

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 29 of 32 PageID #: 1364

For the Plaintiff Class:
Dated: 5 1 4
Andrew G. Gordon Geoftey Chepiga
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP 1285 Avenue of the Americas
New York, NY 10019-6064

CliffZucker Nina Loewenstein DISABIL]TY RIGHTS NEW YORK 725 Broadway'. Suite 450
Albar1., *-\' 12207

Roberta Mueller NEW YORK LAWYERS FOR TTIE PUBLIC INTEREST, INC.
I 5l West 30th Street, I I th floor NewYork,NY 10001-4007
Jeffiey Senter URBAN JUSTICE CENTER 123 William Street. l6th floor
New York, NY 10038

Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW
I 105 l5th Stree! N.W., Suite l2l2
Washington, DC 20005
G;r,rkEzd"tLh"\rL.-,-Lt/,
Kevin Crernin
Jota Borgnann /
Samantha Rauer
MFY LEGAL SERVICES, INC. 299 Broadway, 4th floor New York. NY 10007

24

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 30 of 32 PageID #: 1365

For Dcfcndants STATE OF NEW YORI! ACTING COMMISSIONER KRISTIN M.
wooDlocrq TIIENEW YORK STATEOFFICEOF MENTAL HEALTII,
COMMSSIONERNIRAVR SIIAIT TI{ENEW YORK STATE DEPARTMENT OF TIEALTH, and GOVERNOR ANDREW M. CUOMO:
D*,a, f/J/ lT

ERICT. SCHNEIDERMAN Attomey Ceneral of the State of New York Attorney for Defendants 120 Broadway New Yorlq |.IY l(D71 (212)4t6-ts6o
sy Vibb--q^x--
UasonBlown

Robert L. Begleita Attomey for Dcfendans Constantine Cannon, LLP 335 Madison Avenue New Yorlq l.IY 10017

SOORDERED Dated: Brooklyq New York
2017
Nicholas G. Graulis United Statcs Disrict Judge

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 31 of 32 PageID #: 1366

For Defendants STATE OF NEW YORK, ACTING COMMISSIONER KRISTIN M. WOODLOCK, THE NEW YORK STATE OFFICE OF MENTAL HEALTH, COMMISSIONER NIRAV R. SHAH, THE NEW YORK STATE DEPARTMENT OF HEALTH, and GOVERNOR ANDREW M. CUOMO:

Dated:

O

ERIC T. SCHNEIDERMAN Attomey General of the State of New York Attomey for Defendants 120 Broadway New York, NY 10271 (212) 416-8560
By:

,1

Robert L.

ter

Gary J. Malone

Attomeys for Defendants

Constantine Cannon, LLP

335 Madison Avenue

New York, NY 10017

SO ORDERED Dated: Brooklyn, New York
,20t7
Nicholas G. Caraufis United States District Judge

25
t90706.1

Case 1:13-cv-04165-NGG-ST Document 105-2 Filed 05/04/17 Page 32 of 32 PageID #: 1367
Appendix A: NYC Impacted Adult Homesl
l. Belle Harbor Manor
2. Brooklyn Adult Care Center 3. Central Assisted Living, LLC 4. Elm York LLC 5. Garden of Eden Home 6. Harbor Terrace Adult Home and Assisted Living 7. Kings Adult Care Center 8. Lakeside Manor Home for Adults, Inc. 9. Mermaid Manor Home for Adults
10. New Gloria's Manor Home for Adults I l. New Haven Manor 12. Oceanview Manor Home for Adults 13. Park Inn Home 14. Parkview Home for Adults 15. Queens Adult Care Center 16. Riverdale Manor Home for Adults 17. Rockaway Manor HFA 18. S.S. Cosmas and Damian Adult Home 19. Sanford Home 20. Seaview Manor, LLC 21. Surf Manor Home for Adults 22. Surfside Manor Home for Adults, LLC 23. Wavecrest Home for Adults
I This list is based on the New York State Department of Health's Adult Care Facility Annual Census Report.
26

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

THE UNITED STATES OF AMERICA, PJaintifF,
V.
STATE OF NEW YORK Defendant.

Civil Action No. 13-CV-4165
(NGG)

RAYMOND OTOOLE,ILONA SPIEGEL,and STEVEN FARRELL,individually and on behalf ofall others similarly situated.
Plaintiffs,
V.
ANDREW M.CUOMO,in his ofiBcial capacity as Governor ofthe State ofNew York,NIRAV R.SHAH,in his official
capacity as Commissioner ofthe New York State Department ofHealth,KRISTIN M.
WOODLOCK,in her official capacity as Acting Commissioner ofthe New York State Office ofMental Health,THE NEW
YORK STATE DEPARTMENT OF
HEALTH,and THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
Defendants.

Civil Action No. 13-CV-4166
(NGG)

SECOND AMENDED STIPULATION AND ORDER OF SETTLEMENT
WHEREAS,the United StatesofAmerica asserts as againstthe State ofNew York, and the PlaintiffClass asserts as against certain State agencies and officials,that they are prepared to commence litigation seeking declaratory and injunctive relief, alleging
violations ofTitle 11 ofthe Americans with Disabilities Act("ADA"),42 U.S.C.§ 12131 er

seq.,and Section 504 ofthe Rehabilitation Actof1973,29 U.S.C.§794,with respectto
individuals with serious mental illness who reside in, or who may in the future reside in,
NYC Impacted AdultHomes,meaning Adult Homesin New York City with certified capacities of120 or more in which 25 percent or more ofthe residents or 25 residents,
whichever is less, have serious mental illness; and
WHEREAS,the United States ofAmerica and the PlaintiffClass(collectively,the "Plaintiffs")allege thatthe State ofNew York and certain State agencies and ofiQcials
(collectively,the"State")violatethe ADA and the Rehabilitation Act by designing,funding, and administering the State's mental health service system in a manner that discriminates againstPersons with Serious Mental Illness who reside in NYC Impacted Adult Homes;that
there are more than 4,000 individuals with serious mental illness who currently reside in
NYCImpacted Adult Homes;and thatNYCImpacted Adult Homes are segregated facilities
that are notthe mostintegrated setting appropriate for individuals with serious mental illness,virtually all ofwhom can beserved in more integrated settings,specifically, supported housing; and
WHEREAS,the State ofNew York and State agencies and officials,namely the
Commissioner ofthe New York State Office ofMental Health,the Commissioner ofthe
New York State DepartmentofHealth,and the Govemor ofthe State ofNew York,all in tlieir official capacities,and the New York State Office ofMental Health("OMH")and the New York State DepartmentofHealth("DOH")(collectively"the Defendants"or"the State"),deny thatthey have violated the ADA or the Rehabilitation Act;and
WHEREAS,OMH hasissued a Clinical Advisory statingthat Adult Homes with a significant proportion6fresidents with serious mentalillness are notconducive to the recovery and rehabilitation ofthese individuals and thus are hotclinically appropriate
settings for such individuals; and
WHEREAS,on January 16,2013,DOH adopted regulations providing thatno
operator ofan AdultHomelocated anywhere inNew York State with acertified capacity of
80 or more shall admit any person with serious mental illness whose admission will cause such Adult Home to become or remain a"Transitional AdultHome"— meaning thatthe mental health census ofsuch particular adult home is25 percent or more ofthe resident
population-and thatthe operator ofany Transitional Adult Home mustsubmita compliance plan to DOH demonstrating how it will reduce such mental health census below
25 percent; and
WHEREAS,on January 16,2013,OMH adopted regulations prohibiting OMH-
licensed psychiatric inpatient units ofgeneral hospitals and private psychiatric hospitals fiom discharging individuals vrith Serious MentalIllness to Transitional AdultHomes,and has issued similar guidance to its state-operated psycliiatric centers through amendments to
its OjSicial Policy Manual;and
WHEREAS,the Medicaid Redesign Team("MRT'),established by the Govemor in Executive Order No.5 on January 5,2011,recommended aseries ofrefomis in the

Medicaid Program,mostofwhich were incorporated into the budgetfor State Fiscal Years 2011-12and 2012-13,including the creation ofHealth Homes and the institution ofan accelerated shift to Managed Long Term Care Plans("MLTCPs")for eligible Medicaid recipients; and
WHEREAS,as partoftheimplementation ofthe aforementioned MRT initiatives.
Persons with Serious Mental Illness who reside in Transitional Adult Homes throughout the State will be enrolled in either Health Homes or MLTCPs,which will perform
comprehensive assessments ofthe residents' physical and behavioral health needs and
arrange for needed services; and
WHEREAS,the State will require that HealthHomesand MLTCPs,as partof
comprehensive assessmentofa Person with Serious MentalIllnessresiding in aTransitional
Adult Home,affirmatively work with the individual and his or her family as appropriate to recommend housing and coordinate other social, medical and behavioral health services that would be necessary to support such individual and facilitate his or her ability to live in the
community; and
WHEREAS,pursuant to a Requestfor Proposals issued on August 10,2012,OMH entered into contracts to fund the development of1,050 Supported Housing unitsin Kings and Queens Counties over athree year period for the purpose ofhelping Persons with Serious Mental Illness residing in Transitional Adult Homes in such counties transition to the community as appropriate and will enter into additional similar arrangements as
necessary; and
WHEREAS,the State has developed a Community Transition Unit within DOH, which includes several Commumty Transition Coordinators who will help facilitate efforts to transition individuals with Serious Mental Illness residing in Transitional Adult Homes to
the community;and
WHEREAS,by Executive Order No.84issued on November 30,2012,tlie Governor established abodyofState officials to provide guidancein the creation ofa
formal Olmstead Plan;and
WHEREAS,in addition to these efforts,the State and Plaintiffsintend thatthe
measuresrequired pursuantto this Agreement wnll provide residents ofImpacted Adult Homes in New York City who have serious mental illness with the opportunity to live in the most integrated setting and will ensure that they are provided with the information necessary
to allow them to makeinformed choices about those opportunities;and
WHEREAS,the parties entered into a Stipulation and OrderofSettlement on July 23,2013and an Amended Stipulation and Order ofSettlement on January 30,2014;and
WHEREAS,the parties have entered into a Stipulation and Order dated May2,
2017 which provides,inter alia,for revision ofthe Amended Stipulation and Order of

Settlement and for this Second Amended Stipulation and Order,incorporating the changes agreed to therein;
IT IS HEREBY STIPULATED AND AGREED by and among the undersigned that Plaintiffe' claims are settled on the following terms and conditions:
A. INTRODUCTION
The Parties agree that it is in their mutualinterestto avoid thetime,expense,and risk oflitigation and hereby resolve the allegations by entering into this Agreement.
B. JURISDICTION
The Parties acknowledge thatthe Court hasjurisdiction over this case pursuantto 28 U.S.C.§ 1331,28 U.S.C.§ 1345,and42U.S.C.§§ 12131-12132and authority to enter this Agreement and to enforce its terms as set forth herein. Venue is proper in
this district pursuant to 28 U.S.C.§ 1391(b).
C. DEFINITIONS
1. "AdultHome"means an adultcare facility licensed as an adult home bythe Department ofHealth pursuant to Social Services Law Article 7.
2. "Transitional Adult Home" means an Adult Home with a certified capacity of 80 or more beds and a Mental Health Census of25 percentor more ofthe
resident population. Transitional AdultHomesinclude NYCImpacted Adult
Homes.
3. ""NYC Impacted AdultHome"rneans an AdultHome located in New York City with a certified capacity of 120 or more beds and a Mental Health Census of25 percent or more ofthe resident population or 25 persons,
whichever is less,consisting ofthe facilities listed in Appendix A.
4. '^YC AdultHome Resident"means a Person with Serious MentalIllness residing in a NYC Impacted Adult Home,
5. A "Person with Serious Mental Illness" means an individual who meets
criteria established by tlie Commissioner ofMental Health,which shall be persons who have a designated diagnosis ofmental illness under the most recent edition ofthe Diagnostic and Statistical Manual ofMental Disorders (butnota primary diagnosis ofalcohol or drug disorders,organic brain syndromes,developmental disabilities or social conditions)and whose severity and duration ofmental illness resultsin substantialfunctional
disability.
An individual is presumed to have a substantial functional disability as a

result ofmental illness ifthe individual:
a. received treatmentfrom a mental health services provider operated, licensed or funded by OMH within the 24 months preceding the date on which this Agreementis"so ordered" by the Court,unless the Healtli Home or MLTCP detemunes,based on information which the Health Home or MLTCP shall document,that the individual's mental illness has not resulted in a substantial functional disability; or
b. is under the age of65 and receives Supplemental Security Income ("SSI")or Social Security Disability Insurance("SSDF')due to mental illness(butnota primary diagnosis ofalcohol or drug disorders,organic brain syndromes,developmental disabilities or
social conditions):
i. according to reliable information received from the Social
Security Administration,pursuant to a reasonable agreementto share data,thatthe individual's receipt ofSSI or SSDIis due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document,that the individual's mental illness has not resulted in a substantial functional disability; provided,however,that: (I)this
subparagraph(b)(i)shall not applyto individuals who receiveinreach or are assessed by Health Homes or MLTCPs prior to the date on which such agreementto share data is in place;and(2) this subparagraph(b)(i)shall notapply ifthe State determinesthat it cannot reach a reasonable agreementto share data with the Social Security Administration within four months ofthe date on
which this Agreementis"so ordered" by the Court;or
ii. according to a written final administrative determination from the Social Security Administration specifying thatthe individual was
awarded SSI or SSDI due to mental illness, unless the Health Home or MLTCP determines, based on information which the Health Home or MLTCP shall document,thatthe individual's mental illness has not resulted in a substantial functional disability.
6. "Mental Health Census" means the number ofresidents in an Adult Home
who are Persons with Serious Mental Illness.
7. "Supported Housing" means scattered-site apartments for wiiich OMH funding provides rental assistance and a minimum level ofhousing-related support services from the housing provider for individuals with Serious
Mental Illness, These housing-related support services include assisting the resident in managing tenant/landlord relations and with transitioning to the

new housing unit. In situations where a resident needs ongoing additional supportto manage his or her symptoms,or assistance with living skills such asshopping,maintaining his or her living environment,medication management,and/or personal care services,the supported housing provider may assist in linking the resident with the entities that directly provide these additional servicesin coordination v\ith the resident's care manager(Health Home or MLTCP). These additional support services may include the Community Services listed in paragraph 8 below.
8. '-Commumty Services" means services and supports provided in New York State that assist persons with Serious Mental Illness to live in the community. Such services and supportsinclude,but are notlimited to.Assertive Community Treatment("ACP'),care coordination,employmentservices, outpatientservices.Intensive PsychiatricRehabilitation Treatment,medical services.Personalized Recovery Oriented Services("PROS"),crisis ser\'ices, assistance with taking medication(including through prompting),Medicaid
benefits for which the Adult Home Resident is eligible,including but not
limited to home and community based services("HCBS")waivers,clinic services,certified home health care,personal care assistance,nursing and
rehabilitative services.
9. "Community Transition List" means one or more lists maintained for the purpose offacilitating efforts to transitionNYC Adult Home Residents into
the community.
10. "Health Home"means a State-approved entity that provides or arranges for
care managementfrom care managementpartner agencies tliat provide health
home services including comprehensive assessment,comprehensive care management,health promotion,transitional care including appropriate
follow-up from inpatientto other settings,patientand family support,referral to community and social supportservices,and use ofhealth information
technology to link services.
11. "Tvfanaged Long Term CarePlan"or"MLTCP"means an entitythat provides or arrangesfor the provision ofhealth and long-term care services to adults
with chronic illness or disabilities. MLTCP services include ~ but are not limited to-nursing,physical therapy,occupational therapy,speech
pathology,medical equipmentand supplies,podiatry,dentistry,optometry, respiration therapy,transportation and social day care.These services are provided under contract with the State and Federd governments.
D. SUPPORTED HOUSING
1. The State shall fund Supported Housing units in a quantity sufficientsuch that every NYC AdultHome Residentfor whom Supported Housing is appropriate in accordance with sections F and G ofthis Agreementis

afforded the opportunity to transition to a unit during the time when this Agreement is in effect. The State shall have the discretion to allocate Supported Housing units within New York City as necessary for the implementation and oversightofthe Transitional Adult Home compliance plans approved pursuantto regulations adopted by DOH;provided however,
that the State shall make all reasonable efforts to coordinate the performance
ofassessments by Health Homesand MLTCPs with the development of Supported Housing units so that the assessments take into account Supported Housing units that are actually available or will soon become available.
2. The State shall dedicate a minimum of2,000 Supported Housing units to help transition NYC Adult Home Residents for whom Supported Housing is
appropriate outofNYCImpacted AdultHomes. The Supported Housing
units referenced under this paragraph shall include:
a. The 1,050 units that are being funded and operated in Kings and Queens Counties pursuant to the RFP issued by OMH on August 10,
2012;
b. Additional units thatthe State willfund for development and
operation ofSupported Housing unitsin Staten Island and the Bronx pursuant to one or more RFPs that will be issued by OMH within two years ofthe execution ofthis Agreement;and
c. Additional unitsthatthe State willfund for developmentand
operation in New York City pursuantto one or more additionalRFPs to be issued by OMH,as necessary pursuantto Section D(l).
3. The use ofSupported.Housing units for other populationsshall notreduce the State's obligation under SectionD(l)duringthetime when this Agreementis
in effect.
E. IN-REACH
1. The State shall arrangefor the entities that provide Supported Housing,as set forthin Section D,pursuantto contracts with OMH("Housing Contractors"), to conduct in-reach in the NYC Impacted Adult Homes. In-reach shall not be
provided by operatorsofNYCImpacted AdultHomes. For any hoiking contracts procured after the date ofthis agreement,OMHshall consider whether prospective bidders have provided onsite case management to any of the NYCImpacted AdultHomeslisted in Appendix A and whetherthat experience,in addition to other relevantexperience,would impacttheir
ability to conduct effective in-reach.
2. The goal ofin-reach is to actively supportNYC Adult HomeResidentsin considering and making an informed choice about moving to Supported

Housing or other housing that is the most integrated setting appropriate to the
individual.
a. The State shall require Housing Contractors,in providing in-reach,to provide information aboutthe benefits ofSupported Housing and discuss any concerns that a NYC Adult Home Resident may have about moving to Supported Housing.
b. The State shall use best efforts to locate persons who live in Supported Housing and are willing to speak with NYC Adult Home Residents,so that Housing Contractors can offer NYC Adult Home Residents opportunities to speak with such persons.
c. The State shall require Housing Contractors,in providing in-reach,to provide information such as photographs and/or virtual tours of sample Supported Housing apartments that will help residents visualize Supported Housing settings.
d. The State shall require Housing Contractors to facilitate visits for
those NYC Adult Home Residents who have been identified by the Health Home or MLTCP as Residents who appear to be appropriate
candidates for Supported Housing pursuant to Section F but are
undecided about^eir desireto moveto Supported Housing and could
benefitfrom such visit
3. Housing Contractors shall provide in-reach to their designated NYC Adult Home Residents on a regular and continuing basis during the time period of
their contracts with OMH.
4. The State shall advise NYC Impacted Adult Homes that they may not interfere with the reasonable access ofHousing Contractors to the NYC
Impacted Adult Homes and may not discourage NYC Adult Home residents from meeting with Housing Contractors. The State shall require Housing Contractors to reportto the State any instances ofsuchinterference or discouragement The State shalltake appropriate corrective action to address interference or discouragement,which may include action available under Social Services Law §§460-d,461 and 461-a and 18 NYCRR Parts485 and
487 to the extent deemed appropriate by DOH.
F, ASSESSMENT
1. The State shall arrange for Health Homes and MLTCPs that have completed the State's training,as defined in Section H,to conductacomprehensive
assessment ofeach NYC AdultHome Resident. Ifa NYC Adult Home Resident is not enrolled in a Health Home or MLTCP,then the State shall
provide the person with a care coordinator who shall carry out the functions
8

in this Agreement that would otherwise be assigned to a Health Home and
MLTCP.
2. The assessment shall determine the housing and service needs and
preferences ofthe NYC Adult Home Residentfor purposes oftransitioning from the NYC Iinpacted Adult Home. Each assessment shall identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing, based on the individual's needs and personal preferences.
3. Communityintegration and self-determination shall be key considerationsin
the assessment process.
4. Health Homes and MLTCPs shall have the linguistic and cultural
competenceinthe aggregate to serve competently allNYC AdultHome
Residents.
5. Assessments shall begin with the presumption that NYC Adult Home Residents can live in Supported Housing. A resident will be considered appropriate for Supported Housing ifdesired by the resident,unlessthe
assessment discloses that the resident:
a. Has significant dementia;
b. Would be a dangerto selfor others in Supported Housing even if receiving the services referenced in subparagraph d below;
c. Needs skilled nursing care that cannot be provided outside ofa nursing home or hospital; or
d. Needs atype and/orfrequency and duration ofservice on an ongoing
and sustained basis in order to live in Supported Housing that is not available under the New York State Medicaid program, unless
another public(e.g..Medicare)or private(e.g..Meals on Wheels) program will pay for or provide the needed service,the individualis eligiblefor such program,and such program is availableto such
individual.
Services available through the New York State Medicaid program include, but are not limited to, Medicaid-bUlable Community Services,such as assertive community treatment("'ACT'),care coordination,crisis services,homehealth services,assistance with taking medication(including through prompting),personal care services,licensed mental health clinic ser\dces and successor
programs that serve the same functions as these services; provided, however,that(i)Medicaid services shall be available to NYC Adult

Home Residents pursuant to the same criteria applicable to other similarly situated individuals enrolled in tlie Medicaid program;and (ii)notWng in this Agreement shall preventthe State from discontinuing or revising these or any other services offered in the Medicaid program,subjectto Section J(2)below.
6. A NYC Adult Home Resident shall not be determined to be inappropriate for
Supported Housing solely based on lack ofdesire unless he orshe has been provided with the opportunityto receiveIn-Reach,pursuantto Section E
above.
7. Ifa NYC Adult Home Residentis assessed as not appropriate for Supported
Housing:
a. the assessment mustidentify the specific reasons why such Supported Housing is notappropriate;and
b. the Resident will be afforded the opportunity to live in the most
integrated setting desired by the Resident that is appropriate to the
Resident's needs.
G. PERSON-CENTERED CARE PLANNING
1. The State shall require that for each NYC Adult Home Resident assessed pursuantto Section F,the Health Home or MLTCP shall develop the individual's person-centered care plan.The person-centered care planning
shall include consideration ofthe current and unique psychosocial and
medical needs and history ofthe individual as wellas the functional level and support systems developed by the Health Home or MLTCP care manager.
2. The State shall require that each NYC Adult Home Resident be provided with a primary role in developing the plan and with information reasonably sufficientto assist him or her in making informed choices abouthousing and
services.
3. The State shall require that each person-centered plan identify the housing that is the most integrated setting appropriate for the individual and the Community Services needed to support the individual in such housing,based
on the individual's needs and personal preferences and subject to the
provisions ofSection F(5). In cases where OMH Supported Housing is part ofthe person-centered plan developed by the Health Home or MLTCP,the assigned Health Home or MLTCP care manager will make a referral to the
appropriate Housing Contractor.
H. TRAINING
10

1. Within 180days ofthe execution ofthe Stipulation and OrderofSettlement dated July 23,2013 or within 30 days ofthe commencementofoperations of
a Health Home or MLTCP,whichever is later,the State shall provide
guidance and training to the Health Homes and MLTCPs pertaining to the
assessmentofNYC Adult Home Residents and the developmentofperson-
centered care plans. Such guidance and training shall incltide the requirementthateach assessment identify the housing thatis the most integrated setting appropriate for the individual and the Community Services needed to supportthe individual in such housing,based on the individual's needs and personal preferences and subjectto the provisions ofSection F(5), and the presumption that all NYC Adult Home Residents can live in Supported Housing,subjectto the provisions ofSectionF(5).

2. Within 180 days ofthe execution ofthe Stipulation and OrderofSettlement dated July 23,2013 or within 30 days ofthe commencementofactivity on a contractawarded to a Housing Contractor,whicheveris later,the State shall provide guidance and training to the Housing Contractors pertaining to their obligationsto provide in-reach,including techniques ofmotivational interviewing,and the presumption that all NYC AdultHome Residents can live in Supported Housing,subjectto the provisions ofSection F(5).

L

TRANSmONING

1. The State shallrequire the Housing Contractors,Health Homes and MLTCPs to carry out their responsibilities so that the following schedule is achieved:

a. Within four years ofexecution ofthe Stipulation and Order of Settlement dated July 23,2013,at least 2,500 NYC Adult Home
Residents shall be assessed by Health Homes or MLTCPs pursuant to Section F and,ifappropriate under a person-centered care plan
developed pursuantto Section G,transitioned from NYCImpacted
Adult Homes.

b. Within five years ofthe execution ofthe Stipulation and Orderof Settlementdated July 23,2013,all NYC Adult Home Residentsshall be assessed by Health Homes or MLTCPspursuantto Section F and, ifappropriate under a person-centered care plan developed pursuant
to Section G,transitioned from NYC Impacted AdultHomes.

2. The State shall provide any NYC Adult Home Resident who is othenvise eligible for Supported Housing pursuantto Section F,but who declines an offer for Supported Housing, with the opportunity for additional in-reach and,ifthe Resident so desires,the opportunity to move to Supported Housing,during the period in which diis Agreementisin effect. Such additional in-reach shall be provided periodically, but on no less than an annual basis,by a Housing Contractor. Ifno Housing Contractor is available,

11

in the discretion ofOMH,to provide such in-reach,the State shall provide or arrange for an equivalent in-reach function.
J. COMMUNITY SERVICES
1. For the duration ofthis Agreement,the State shall ensure that Health Homes and MLTCPs arrange for the provision ofCommunity Services identified in NYC Adult Home Residents' person-centered plans,consistent wWiSection G,and ensure that such Services are available,
2. Forthe duration ofthis Agreement,the Community Services available to NYC Adult Home Residents(whether through the Medicaid program or another program),ifthe Residentis eligible for the service,shallinclude the following services or,ifthe State replaces or changes the services,services that perform substantially the same function: licensed mental health clinic services,assertive community treatment("ACT"),home health services, mobile crisis services,care coordination,assistance with taking medication (including throughprompting),and personal care services;provided, however,that eligibility for such services must be determined on an individual basis based on eligibility criteria that are comparable to criteria in place on the date this Agreement is executed.
3. For purposes ofdetermining an individual's eligibility for ACT,eligibility
shall be determined by the OMH Statewide ACT Guidelines.
K. REPORTING
1. Until the Courtterminatesjurisdiction over this matter.Defendants shall
provideto the Plaintiffs,the Independent Reviewer(defined in Section L
below),and tlie Court a quarterly reportthatindicates:
a. The number ofSupported Housing unitsfor which the State has provided funding and the Housing Contractors that received funding.
b. The number ofSupported Housing units created pursuantto this Agreement that are occupied by NYC Adult Home Residents.
c. The name ofeach NYC Adult Home resident who has been identified as aPerson with Serious Mental Illness at each ofthe NYC Impacted Adult Homes listed in Appendix A.
d. The name ofeach NYC Adult Home Resident who has been assessed under Section F,the date ofassessment,the NYC Impacted Adult Home at which he or she resided when assessed,and the housing
recommendation made as a result ofeach assessment.
12

e. The name ofeach NYC Adult Home Resident who has transitioned, the Adult Home in which he orshe lived,the date on which he or she moved,and the type ofhousing to which he orshe moved.
f. The name ofeach NYC Adult Home Resident assessed as not
appropriate for Supported Housing,and the specific reasons why such Supported Housing is not appropriate.
2. The quarterly report required in Section K(l)shall be provided in an electronic format that may be imported into standard spreadsheet software,
3. Until the Court terminatesjurisdiction over this matter.Defendants shall provide to Plaintiffs and the Reviewer:
a. A copy ofany training materials used inconnection withthe State's training pursuant to Section H.
b. A copy ofthe Community Transition List,updated quarterly.
4. Until the Courtterminatesjurisdiction overthis matter.Defendants shall notify Plaintiffs and the Reviewer about any instances in which the State has received a reportthata NYC AdultHome Residentis being discouraged by an AdultHome from exploring alternativesto or transitioning from Adult
Homes.
5. A request by Plaintiffs or the Independent Reviewer for relevant information shall notbe unreasonably denied- TheParties shall negotiate in good faith any areas ofdisagreement asto whetlier and when such information shall be
made available.
6. Any personally identifying information shared wnth the Plaintiffs or the Reviewer under this Agreement shall be treated and maintained as
confidential.
7. The Parties and the Reviewer shall meet quarterly to discuss implementation
progress and obstacles and how to overcome obstacles to achieving the goals
ofthis Agreement.
L. INDEPENDENT REVIEWER
1. The Parties agree that Clarence Sundram shall be the Independent Reviewer ("Reviewer")to monitor the State's implementation ofthis Agreement(the "Reviewer"). The State shall retain the Independent Reviewer within 60
days ofexecuting this Agreement
13

2. In the event the Reviewer resigns or the Parties agree to replace the Reviewer,the Parties shall meet and confer within 30 days ofthe resignation or their agreementand select a replacement. Ifthey are unable to agree on the replacement Reviewer at the"meet and confer,"the Plaintiffe and the State shall each, within 21 days ofthe"meetand confer," nominate up to two individuals with expertise in the provision ofcommunity services to persons with mental illness. The Courtshall selectthe Reviewerfrom among those nominated by the Parties.
3. The annual budgetforthe Reviewer shall be $350,000.00. All reasonable fees,costs and expenses ofthe Reviewer,including the cost ofany consultants or staffhired by the Reviewer,shall be bome by the State up to the amountofthis annual budget. The Reviewer shall provide a monthly accountingjustifying the fees,costs and expenses. In no event will the State reimburse the Reviewer for any fees,costs or expenses that exceed the amountofthis annual budget. Provided,however,in the event ofsignificant changesin circumstances that resultin theIndependentReviewer having to spend substantially more time or incur substantial and unforeseen expenses, the Independent Reviewer may seek approval by the State for an amendment to the budgetand submitajustification for such amendment.Within 30 days, the State may question the need for,or the amotmtof,such additional unforeseen expenses, may suggest other altematives to avoid some or all of such expenditures,and may withhold approvalofsuch expenses;provided that approval ofthe proposed amendmentshall notbe unreasonably
witliheld. The Stateshil be the final arbiter ofwhatcosts and expenses are
considered reasonable;provided,however,that any costs incurred consistent with the methodology approved pursuantto Section L(11)shall be
considered reasonable.
4. Within the budget described in Section L(3)above,the Reviewer may hire
staffand consultants,in consultation with and subjectto reasonable
objections by the State,to assistin his or her evaluation ofthe State's compliance with this Agreement. The Reviewerand any hired staffor consultants are neither agents nor business associates ofthe State,the United
States,the PlaintiffClass,orthe Court
5. The Reviewer shall confer regularly and informally with the Parties on matters related to implementation efforts and compliance.
6. The Reviewer,and any hired staffor consultants,may:
a. Have ex parte communications atany time withthe Parties,including
counselfor the Parties,and employees,agents,contractors and all others working for or on behalfofthe State,the PlaintiffClass orthe United States to implementthe terms ofthis Agreement.
14

b. Request meetings with either or both Parties.The purpose ofthese meetings shall include,among other things,prioritizing areasfor the Reviewer to review,scheduling visits,discussing areas ofconcern, and discussing areas in which technical assistance may be appropriate.
c. Speak with stakeholders with such stakeholders' consent,on a
confidential basis or otherwise,at the Reviewer's discretion.
d. Speak with anyone else the Reviewer and any stafB^consultants deem necessary for completing the compliance evaluations and reports required by this Agreement However,the State has no obligation to require any individual who is not a State employee or contractor to
speak with the Reviewer.
e. Provide technical assistance to the State regarding any issue related to compliance with this Agreement.
f. Attemptto resolve any dispute arising out ofaParly's position with regard to the construction orimplementation ofthis Agreement,
g. Testify in this case regarding any matter relating to the implementation,enforcement,or dissolution ofthe Agreement, includingthe Reviewer's observations,findings and
recommendations in this matter.The Reviewer may not voluntarily
testify as an expert witness against the State in any other administrative or civil proceeding ofwhatever nature brought before any federal or state court or other administrative orjudicialtribunal. This limitation shall be a required term in the State's Contract with the Reviewer,which is subjectto the approval ofthe New York State
Comptroller.
Throughoutthe pendency ofthis Agreement,the Reviewer will pursue a problem-solving approach so that disagreements can be minimized and resolved amicably and the energies ofthe Parties can be focused onthe State's compliance with the provisions ofthe Agreement.
The Reviewer shall comply with aU federal and State patient rights and confidentiality laws and regulations,including,butnotlimited to,those set forthinthe New York State Public Health Law and Mental Hygiene Law,the Health Insurance Portability and Accountability Actof1996("HIPAA"),the Standard forPrivacy ofIndividually Identifiable HealthInformation and Health Insurance Reform:Security Standards,45 C.F.R.Part 164,alcohol and drug abuse patientrecords laws codified at42 U.S.C.§290dd-2and 42 C.F.R.Part2,the Health Information Technology for Economics and Clinical Health Act("HITECH Act")adopted as part ofthe American Recovery and Reinvestment Actof2009(Public Law 111-5). For the
15

purposes ofMental Hygiene Law§33.13(c)1,the need forthe Reviewer to
access all relevant,otherwise confidential information shall be deemed to significantly outweigh the need for confidentiality.
9. The duties ofthe Reviewer shall be to observe,review,reportfindings,and make recommendations to the parties solely with respect to the
implementationofand compliance with the Agreement. The State shall
direct all agencies,employees and contractors to cooperate fully with the Reviewer. NeitherParty shall interfere with the independentfimctions ofthe Reviewer. The Reviewer shall devote such time as is necessary to fulfill the purposesofthe duties and responsibilities ofthe Reviewer pursuanttothis Agreement,but within the annual budgetsetforth in Section L(3).
10. The Reviewer and any stajBB^consultants will have full access to the people, places,and documentsthat are necessaryto assessthe State's compliance with and/orimplementation ofthis Agreement,as permitted bylaw and in
accordance with the limitations setforth in Section L(8),
11. The Reviewer shall consult with the Parties and shall submit a written plan
with regard to the methodologies to be used by the Reviewer to assess compliance with and implementation ofthe Agreement. ThePartiesshall approve the plan prior to implementation. The Reviewer's evaluations may include regular onsite infection ofindividuals'residences,with the consent ofsuch individuals,and interviews with individuals receiving services under this Agreement who consent to be interviewed,
12. In consultation with the Independent Review^er,the State shall develop a
work plan to guide its implementation ofthis Agreement within 120 days after the Reviewer is engaged by the State. The State shall share the work
plan with the Parties.
13. The Reviewer shall conductevaluations ofand issue five annual written
reports regarding the State's compliance. The Reviewer shall produce five anniinl reports regarding the State's compliance with particular provisions of the Agreementto the Parties and the Court pursuantto the time frame in
Section L(14).
14. The written report shall detail with as much specificity as possible how the
State is oris notin compliance with particular provisions ofthe Agreement. A draftofthe Reviewer's report shall be provided to the Partiesforcomment
each yeai* within 30 days afterthe anniversary date ofthe Court's approval of this Agreement. The parties shall have 30days afterreceiptofsuch draft reportto provide comments to the Reviewer,on notice to each other,and the Reviewer shall issue to the Parties a final annual report wifiiin 15 days after receiving such comments;provided,however,that the parties may agree to
extend such deadlines.
16

15. The Reviewer,including any hired staffor consultants,shall notenterinto any new contract with the State,the PlaintiffClass,orthe United States while serving asthe Reviewer withoutthe written consent ofthe other Party.
16. The Reviewer,including any hired staffor consultants,shall not be:
a. Liable for any claim,lawsuit,or demand arising out ofthe reviewing functions set forth in this Settlement Agreement This paragraph does not apply to any proceeding before this Court for enforcement of paymentofcontracts or subcontractsfor reviewing functions under
this Settlement Agreement.
b. Subjectto formal discovery,including,but notlimited to, deposition(s),request(s)for documents,request(s)for admissions, interrogatories,or other disclosures. The Parties are notentitled to access the Independent Reviewer's records or communications, althoughtheIndependentReviewer mayprovide copies ofrecords or
communications at the Reviewer's discretion. The Court may review relevant records ofthe Reviewer in an enforcement proceeding
pursuant to Courtorder under Section M ofthis Agreement
17. The Independent Reviewer definedin Section L ofthe Settlement Agreement may communicate withthe courton an ex parte basis,provided thatthe IndependentReviewer shall thereafter providethe parties a summary ofthe
substance ofthe communication orally or in writing.
M. ENFORCEMENT
1. The Parties agreejointly to file this Agreement with the United States
District Courtfor the Eastern District ofNew York.
2. The Court shall retainjurisdiction to assure compliance with this Agreement but notfor more than 60 days after the Reviewer has provided the Parties with its fifth and final report,at which time this Agreement shall expire, provided, however:
a. The Parties may agree tojointly ask the Couitto terminate the Agreement earlier. Upon 30 days' notice to the Parties and the Independent Reviewer,the State may also move to terminate the Agreement,which motion shall be granted ifthe State demonstrates that it has substantially complied with all its obligations as set out in this Stipulation.Before the Court considersthe motion,the Independent Reviewer shall evaluate the State's compliance since the last annual report and the Parties shall have an additional 30 days to
review tlie evaluation.
17

b. Plaintiffs may move to extend the Court'sjurisdiction,which motion shall be granted ifthe Plaintiffs advise the Court,on notice to the State,no later than 60 days after receiving the Independent Reviewer'sfifth and final report,thatthe State is notin substantial compliance with the Agreement. In such case.Plaintiffs shall describe with as much specificity as possible how the State is notin substantial compliance with particular provisions ofthe Agreement. Ifthe State contends that it is in substantial compliance, the Court shall schedule further proceedings,and in such proceedings the burden shall be on the State to demonstrate substantial compliance astothe provisions identified by Plaintiffe. Ifthe State demonstrates such substantial compliance,the motion to extend the Court's jurisdiction shall not be granted.
3. In the eventPlaintiffs allege non-compliance by Defendants with a material provisionofthis Agreement,counsel to the Parties shall meetand confer in an effort to resolve the reported non-compliance within 30 days after
Defendants' counsel receives written notice.
a. Ifsuch efforts fail to achieve a resolution ofthe issue within 60 days ofsuch"meet and confer,"Plaintiffs may bring a motion for enforcement ofthis Agreement and the Courtshall determine a reasonable schedule for the hearing and determination ofsuch
motion.
b. In die event ofsuch a motion.Defendants will be considered to be in "compliance"unless Plaintiffs establish that Defendants'failures or omissions to meetthetenns ofthis Agreement were not minimal or isolated but were substantial and sufficiently frequent or widespread to be systenuc.
N. ATTORNEYS'FEES;POST-SETTLEMENT ACTtVlTIES
1. Defendants shall pay to PlaintiffClass the sum of$200,000in full satisfaction ofany and all claims in this lawsuitand in Disability Advocates, Inc. V. Paterson^03 CV 3209(NGG),for attorneys'fees,costs and disbursements up to and including the date ofexecution ofthis Agreement, which fees,costs and disbursements shall be substantiated by back-up documentation including contemporaneous time sheets. In die event that paymentofdiis amountis not made within one hundred twenty(120)days after the receipt by defendants'counsel ofacopy ofthis fully executed Agreement,approved bythe Court,interest shall accrue onthe outstanding
balance at the rate setforth in 28 U.S.C.§ 1961,beginning on the one hundred and twenty-first day after receipt by defendants'counsel ofa copy ofthisfully executed and so-ordered Agreement. Theforegoing payment
18

shall be made payable to Disability Advocates,Inc.and sentto Disability Advocates,Inc. DBA Disability Rights New York,5 Clinton Square,Albany, NY 12207,or in the event its offices shall relocate to its then current address.
During the term ofthis Agreementit is anticipated thatPlaintiffClass will incur certain legal fees,and other costs and disbursements. Plaintiffs, PlaintiffClass and counsel for the PlaintiffClass agree to limit all such attorneys' fees, costs and disbursements to what is directly and reasonably necessary, up to a combined total, which shall not exceed $75,000 per year, calculated on the basis ofa 365 day year,beginning on the date ofexecution ofthis Agreement and ending on the date this Agreementexpires under Section M.2. During the term ofthis Agreement,Counselfor the Plaintiff Class agree to submit vouchers and contemporaneous time records to defendants' counsel on a semi-annual basis for any such attorneys'fees,costs and disbursements and defendants agree to reimburse counsel for the Plaintiff Class within one hundred twenty(120)days ofreceipt ofsuch vouchers. If
paymentis delayed beyond one hundred twenty(120)days,defendants wiU also pay interest atthe rate setforth in 28 U.S.C.§ 1961,which shall accrue beginning on the one hundred twenty-first day. The foregoing payment(s) shall be made payable to Disability Advocates,Inc.and sentto Disability Advocates,Inc.DBA Disability Rights New York,5 Clinton Square,Albany, NY 12207,or in the eventits offices shallrelocate to its then currentaddress.
For and in consideration ofthe payments referred to in paragraph N.l and N.2above,the sufficiency ofwhich is hereby acknowledged.Plaintiffs, PlaintiffClass,Paul,Weiss,Rifkind,Wharton& Garrison LLP,Disability Advocates,Inc.,New York Lawyers for the Public Interest,Bazelon Center for Mental Health Law,Urban Justice Center and MFY Legal Services,Inc., hereby release and forever discharge the State ofNew York,OMH,DOH, and alloftheir presentand former principals,officers,directors,members,
employees, agents,attorneys, insurers, subdivisions, subsidiaries, heirs, administrators,and assigns,individually and in their official capacities,firom any and all claimsfor attorneys'fees,costs,and/or disbursements incurred in
connection with this action,including but notlimited to aU pre-litigation activities including negotiations,and all claimsfor attorneys'fees,costs, fees,and/or disbursements incurred in connection with Disability Advocates, Inc. V. Paterson,03 CV 3209(NOG)in the United States District Courtfor
the Eastern District ofNew York,and in this Action.
The payment(s)referenced in paragraph N.l and N.2ofthis Agreementare subjectto the approvalofall appropriate state officials in accordance with
N.Y.Public Officers Law § 17.
19

O. MISCELLANEOUS
1. The Defendants shall use best efforts to seek and secure funding necessary to implementthe terms ofthis Agreement. This Agreementis subjectto legislative appropriation ofsuch funding and ifsuch appropriations are not made,the Parties shall retain all rights to revive any claims or defenses otherwise barred by operation ofthis Agreement,
2. Solely for purposes ofthis agreement,the Parties agree to entry ofan Order certifying the class,defined as NYC AdultHome Residents,as defined in Section C(4). Any costs associated with certification ofor notification to such class shall be borne by Plaintiffs. In the event that the class is not certified, this Agreement shall remain unaffected as between the Named Plaintiffs,the United States and the State.
3. Nothing contained herein sliall be deemed to be an admission by the Defendants that they have in any manner or way violated the Plaintiffs' or any individual AdultHome Resident's rights,or the rights ofany other person or entity,as defined in the constitutions,statutes,ordinances,rules or regulations ofthe United States,the State ofNew York,or the City ofNew York or any other rules,regulationsor by-laws ofany department or
subdivision ofthe State ofNew York.
4. This Agreementshall not be admissible in,nor is it related to,any other litigation orsettlement negotiations,exceptin an action or proceeding by the Plaintiffto enforce the terms ofthis Agreement,or in a civil action involving the State and another party in which the validity ofthe regulations adopted on January 16,2013(I.D. No.HLT-32.12-00020-A,and I.D.No.OMH-32-1200019-A),or as thereafter amended,is at issue.
5. Nothing in this Agreement shall be enforced in a manner that would require a fundamentalalteration ofthe State's programs,activities,or services for
Persons with Serious Mental Illnesses. Nothing in this paragraph is intended to amend orchange in any way the obligations setforth in this Agreement,or prevent appropriate enforcement ofthis Agreement
6. This Agreement contains all the terms and conditions agreed upon by the parties hereto,and no oral agreement entered into at any time nor any written agreement entered into prior to the execution ofthis Agreementregarding the subject matter ofthe instant proceeding shall be deemedto exist,or to bind the parties hereto,or to vary the terms and conditions contained herein.
7. AllParties to this Agreementhave participated in its drafting;consequently,any ambiguity shall not be construed for or against any party.
20

Ifany ofthe dates or periods oftime described in this Agreementfall or end on a public holiday or on a weekend,the date or period oftime shall he extended to the next business day.

All correspondence concerning this Agreement should be sent to the following(or to such other address asthe recipient named below shall specify by notice in writing hereunder):

To Defendants:

William A.Scott

Assistant Attorney General

Office ofthe New York State

Attorney General

and

The Capitol

Albany,New York 12224

Tel.:(518)776-2255

E-mail: William.Scott@ag.nY.gov

Robert L.Begleiter,Esq.
Constantine Cannon LLP
335 Madison Avenue,9^Floor
New York,NY 10017 Teh(212)350-2707
E-m^-rbegleiter@constantinecannon.com

To PlaintiffUnited States:

Chiefofthe Disability Rights Section U.S. Department of Justice 950Pennsylvania Ave.,NW-NYA Washington,DC 20530
Tel: 202-307-0663

To the Plaintiff Class:
Andrew G.Gordon
PAUL.WEISS,RIFKIND,WHARTON & GARRISON LLP
1285 Avenue ofthe Americas
New York,NY 10019-6064
Tel: 212-373-3543
-and-
CliffZucker DISABILITY RIGHTS NEW YORK
725 Broadway,Suite 450 Albany,NY 12207
Tel: 518-432-7861
10. This Agreement may not be modified without the express written agreement ofcounselfor the Parties. Absentsuch agreement,the Parties may seek a
21

modification ofthis Agreementonly for good cause shown,with the Court's approval,upon thirty(30)days'written notice to counsel forthe other
Parties.
11. This Agreementmay be executed in counterparts,and each counterpart, when executed shall have the fiill efficacy ofa signed original.Photocopies ofsuch signed counterparts may he used in lieu ofthe originals for any
purpose.
12. Signatories a. The undersigned representative ofthe Defendants and the Attomey General ofthe State ofNew York certifies that he or she is authorized to enter into the terms and conditions ofthis Agreement and to execute and bind legally such Defendants to this document.
b. Each undersigned representative ofPlaintiffs certifies that he orshe is
authorized to enter into the terms and conditions ofthe Agreement
and to bind legally the Plaintiffto this document.
22

ForPlaintiffUNITED STATES OF AMERICA:
Dated:

BRIDGET M.RGHDE
Acting United States Attorney
Eastern DistllctofNew York
By: MICHAELj^OLDBERGER Assistant United States Attorney
Eastern District ofNew York

T.E. WHEELER.II
Acting Assistant Attorney General Civil Rights Division
REBECCA B.BOND
Acting Deputy Assistant Attorney General Civil Ri^ts Division
ANNE S.RAISH,Acting Chief AMANDA MAISELS,Deputy Chief Disability Rights Section
Civil Ri^ts Division

ELIZA1Q5RM0DY
JENNIFER BRONSON VICTORIA THOMAS
Trial Attorneys Civil Ri^ts Division U.S. DepartmentofJustice

23

For the Plaintiff Class:
Dated:
051
Andrew G. Gordon
Geoffrey Chepiga PAUL,WEISS,RIFKIND,WHARTON &
GARRISON LLP 1285 Avenue ofthe Americas
New York,NY 10019-6064

CliffZucker Nina Loewenstein DISABILITY RIGHTS NEW YORK
725 Broadway,Suite 450 Albany,NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC
INTEREST,INC. 151 West30th Street, 11th floor New York,NY 10001-4007

Ira A.Bumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW
1105 15th Street,N.W.,Suite 1212 Washington,DC 20005

Jeffrey Senter
URBAN JUSTICE CENTER
123 WUliam Street, 16th floor New York,NY 10038

Jeanette Zelhof Kevin Cremin
Jota Borgmann
SamanthaRauer
MFY LEGAL SERVICES,INC. 299 Broadway,4th floor New York,NY 10007

24

For thee PlaintiffClassss: Dated

Andrew 0.Gordon
Geoffrey Chepiga
PAUL,WEISS,RIFKIND, WHARTON &
GARRISON LLP 1285 Avenue ofthe Americas
New York,NY 10019-6064

CliffZu^ Nina Loewensteii DISABILITY RIGHTS NEW YORK 725 Broadway,Suite 450
Albany,NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THEPUBLIC
INTEREST,INC. 151 West 30th Street, 11th floor New York,NY 10001-4007

Ira A.Bumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW
1105 15th Street,N.W.,Suite 1212 Washington,DC 20005

Jef&ey Senter
URBAN JUSTICE CENTER
123 William Street, 16th floor New York,NY 10038

Jeanette Zelhof Kevin Cremin
Iota Borgmann
Samantha Rauer
MFY LEGAL SERVICES,INC. 299Broadway,4th floor New York,NY 10007

24

For the Plaintiff Qass: Dated:

/\ndjrew G.Gordon
Geoffrey Cbepij»a PAUL,WEISS,RIFKIND,WHARTON &
GARRISON LLP 1285 Avenue ofthe Americas
New York,NV 10019-6064

CliffZuckcr Nina Loewcnstcin DISABILrrV RIGHTS NEW YORK
725 Broadway.Suite 450 Albany. NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC
INTEREST,INC. 151 West 30th Stieei, I Ith Duor New York, NY 10001-4007

Ira A.Uumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15lh Street,N.W.,Suite 1212
Washington.DC 20005

JelThq' Sentcr URBAN JUSTICE CENTER 123 William Street, I6di floor New York,NY 10038

Jcanctic Zclhof Kevin Crcmin JotaBorgtnann Samantha Rauer MFY LEGAL SERVICES.INC
299 Broadway,4th floor New York,NY 10007

24

For the Plaintiff Class:
ibh. Dated:
Andrew G.Gordon
Geof&ey Chepiga PAUL,WEISS,RIFKIND,WHARTON &
GARRISONLLP 1285 Avenue ofthe Americas New York.NY 10019-6064

Cliff Zucker Nina Loewenstein DISABILITY RIGHTS NEW YORK
725 Broadway,Suite 450 Albany,NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC
INTEREST,INC. 151 West30th Street, 11th floor New York,NY 10001-4007

Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW
1105 15th Street,N.W.,Suite 1212 Washington,DC 20005

Jeffrey Senter
URBAN JUSTICE CENTER
123 William Street, 16th floor New York,NY 10038

Jeanette Zelhof Kevin Crcmin
Jota Borgmann
Samantha Rauer
MFY LEGAL SERVICES,INC. 299 Broadway,4th floor New York,NY 10007

24

For the Plaintiff Class: Dated:

Andrew G. Gordon
Geoffrey Chepiga PAUL,WEISS,RIFKIND,WHARTON &
GARRISON LLP 1285 Avenue ofthe Americas
New York,NY 10019-6064

CliffZucker Nina Loewenstein . DISABILITY RIGHTS NEW YORK
725 Broadway,Suite 450 Albany,NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THEPUBLIC INTEREST,INC.
151 West 30th Street, 11th floor New York,NY 10001-4007

Ira A. Bumim Jennifer Mathis
BAZELON CENTER FOR MENTAL HEALTH LAW 1105 15th Street,N.W.,Suite 1212
Washington,DC 20005

Jeffrey Sent^f
URBAN JUSTICE CENTER
123 William Street, 16th floor New York,NY 10038

Jeanette Zelhdf Kevin Cremin
Jota Borgmann
Samantha Rauer
MFY LEGAL SERVICES,INC. 299 Broadway,4th floor New York,NY 10007

24

For thePlaintiffClass:
Dated: 5hl

Andrew G.Gordon
Geoffrey Chepiga PAUL,WEISS,RIFKIND,WHARTON &
GARRISON LLP 1285 Avenue oftlie Americas
New York,NY 10019-6064

CliffZucker Nina Loewenstein DISABILITY RIGHTS NEW YORK
725 Broadway,Suite 450 Albany, NY 12207

Roberta Mueller NEW YORK LAWYERS FOR THE PUBLIC
INTEREST,INC. 151 West30th Street, 11th floor New York,NY 10001-4007

Ira A.Bumim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW
1105 15th Street, N.W.,Suite 1212 Washington,DC 20005

Jeffrey Senter
URBAN JUSTICE CENTER
123 William Street, 16th floor New York,NY 10038

Jeaiiettb Zelhof

Kevin Cremin

Jota Borgmann

/

Samantha Rauer

MFY LEGAL SERVICES,INC.

299 Broadway,4th floor

New York,NY 10007

24

ForDefendantsSTATE OF NEW YORK,ACTING COMMISSIONER KRISTIN M. WOODLOCK,THE NEW YORK STATE OFFICEOF MENTAL HEALTH, COMMISSIONER NIRAV R.SHAH,THE NEW YORK STATE DEPARTMENT OF HEALTH,and GOVERNOR ANDREW M.CUOMO:

Dated:

j

ERIC T.SCHNEIDERMAN
Attorney General ofthe State ofNew Yoric Attorney forDefendants 120 Broadway New York,NY 10271 {212)416-8560

By:

ason Brown

—-

Robert L.Begleiter Attomo^ for Defradants
Constantine Cannon,LLP
335 Madison Avenue
New York,NY 10017

SO ORDERED
Dated:Brooklyn,New York ,2017
Nicholas 0.Garaufis
Umted States District Judge

For Defendants STATE OF NEW YORK,ACTING COMMISSIONER KRISTIN M.
WOODLOCK,THE NEW YORK STATE OFFICE OF MENTAL HEALTH,
COMMISSIONER NIRAV R SHAH,THE NEW YORK STATE DEPARTMENT OF HEALTH,and GOVERNOR ANDREW M.CUOMO:

Dated:

1 O!"/

ERIC T.SCHNEIDERMAN
Attorney General ofthe State ofNew York Attorney for Defendants 120 Broadway
New York,NY 10271 (212)416-8560
By:^

Robert L.^^eiter
Gary J. Malone Attorneysfor Defendants Constantine Cannon,LLP
335 Madison Avenue
New York,NY 10017

SO ORDERED

Dated:Brooklyn,New York

h

n.

2017

s/Nicholas G. Garaufis
Ni&olas G.Garaufis
United States District Judge

25

390706.1

Appendix A:
NYCImpacted Adult Homes'
1. Belle Harbor Manor
2. Brooklyn Adult Care Center 3. Central Assisted Living,LLC
4. Elm York LLC 5. Garden ofEden Home
6. Harbor Terrace Adult Home and Assisted Living 7. Kings Adult Care Center 8. Lakeside Manor Home for Adults,Inc.
9. Mermaid Manor Home for Adults 10.New Gloria's Manor Home for Adults 11. New Haven Manor 12. Oceanview Manor Home for Adults 13. Park Inn Home 14. Parkview Home for Adults
15. Queens Adult Care Center
16. ELiverdale Manor Home for Adults
17. Rockaway Manor HFA
18. S.S. Cosmas and Damian Adult Home 19. Sanford Home 20.Seaview Manor,LLC 21.SurfManor Home for Adults
22.Surfside Manor Home for Adults,LLC
23. Wavecrest Home for Adults
'This list is based on the New York State DepartmentofHealth's AdultCare Facility Annual
Census Report.
26

 
 Case 1:13-cv-04165-NGG-ST Document 116 Filed 06/15/17 Page 1 of 5 PageID #: 1517

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------------X
UNITED STATES OF AMERICA,

Plaintiff, STATE OF NEW YO-aRgKai,nst-

ORDER 13-CV-4165 (NGG) (RML)

Defendant. ---------------------------------------------------------------------X
RAYMOND O’TOOLE et al.,

Plaintiffs, ANDREW M. CUOM-aOgaeint satl-.,

13-CV-4166 (NGG) (RML)

Defendants. ---------------------------------------------------------------------X
RESIDENTS AND FAMILIES UNITED TO SAVE OUR ADULT HOMES et al.,
Plaintiffs,
HOWARD ZUCKER-a, gMai.nDs.t-et al.,
Defendants. ---------------------------------------------------------------------X NICHOLAS G. GARAUFIS, United States District Judge.

16-CV-1683 (NGG) (RER)

On January 16, 2013, the New York State Department of Health (“DOH”) and the New

York State Office of Mental Health (“OMH”) promulgated regulations (the “Regulations”)

which, among others things: (1) prohibit “transitional adult homes”1 from admitting any person

whose admission will increase the mental health census (i.e. the percentage of residents with

1 A “transitional adult home” is defined as an “adult home with a certified capacity of 80 beds or more in which 25 percent or more of the resident population are persons with serious mental illness.” 11 N.Y.C.R.R. § 487.13(a)(1).
1

Case 1:13-cv-04165-NGG-ST Document 116 Filed 06/15/17 Page 2 of 5 PageID #: 1518
“serious mental illness”2) of a facility; and (2) prohibit psychiatric inpatient units of hospitals and freestanding psychiatric facilities licensed by OMH from discharging individuals with serious mental illness to transitional adult homes. See 14 N.Y.C.R.R. §§ 580.6, 582.6; 18 N.Y.C.R.R. §§ 487.4, 487.13. The Regulations are critical to achieving the goals of the Settlement Agreement entered into by the parties in United States v. New York, No. 13-CV-4165 (NGG) (RML), and O’Toole et al. v. Cuomo et al., No. 13-CV-4166 (NGG) (RML) (collectively the “DAI” action).3
Four separate lawsuits have been brought by various plaintiffs—including operators of New York state-licensed adult homes as well as adult home residents—challenging the validity of the Regulations: Residents and Families United to Save Our Homes v. Zucker (“Residents and Families”), No. 16-CV-1683 (NGG) (RER); Doe v. Zucker, Index No. 007079/2016 (N.Y. Sup. Ct. Albany Cty.); Oceanview Home for Adults, Inc. v. Zucker (“Oceanview v. Zucker”), Index No. 006012/2016 (N.Y. Sup. Ct. Albany Cty.); and Hedgewood Home for Adults, LLC v. Zucker, Index No. 052782/2016 (N.Y. Sup. Ct. Dutchess Cty.) (collectively, the “Regulations Actions”).
2 “Individuals with serious mental illness” are “individuals who meet criteria established by the commissioner of mental health, which shall be persons who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR, American Psychiatric Association, July 2000), and whose severity and duration of mental illness results in substantial functional disability.” 11 N.Y.C.R.R. § 487.2(c). 3 Notwithstanding the removal of Section O from the Settlement Agreement, the court has stated its view and reiterates now that enforcement of the Regulations is critical to achieving the goals of the Settlement Agreement. The Regulations limit the admission of individuals with serious mental illness into adult homes whose mental health census is 25 percent or more. If the Regulations are eliminated, it will open the front doors of the adult homes to individuals with serious mental illness. Without some mechanism for limiting admissions or quickly transitioning individuals who are willing and able to move into supported housing, the adult homes could easily revert to being warehouses for individuals with serious mental illness. The State has a continuing obligation—which extends beyond the instant cases—to provide services to individuals with disabilities “in the most integrated setting appropriate to the[ir] needs,” 28 C.F.R. § 35.130(d), and to avoid “unjustified isolation” of individuals with disabilities, Olmstead v. L.C., 527 U.S. 581, 597 (1999).
2

Case 1:13-cv-04165-NGG-ST Document 116 Filed 06/15/17 Page 3 of 5 PageID #: 1519
Several current or former DAI class members—individuals with serious mental illness who reside in “impacted adult homes”4—are named plaintiffs in at least one of the Regulations Actions. The court refers to those individuals as the “Class Member Plaintiffs.” Three of the Class Member Plaintiffs have been identified by name: Walter Roberts, Joseph Simon, and Lawrence Wong are class members in DAI and plaintiffs in Residents and Families. A fourth individual, Kenneth Przyjemski, is a plaintiff in Residents and Families and has been identified as a resident of a transitional adult home that is subject to the Regulations; however, it is unclear whether Przyjemski is a class member because the court does not know whether he resides in an impacted adult home. Four other anonymous plaintiffs in the Regulations Actions are also current or former class members: John Doe in Doe v. Zucker; and Resident AA, Resident BB, and Resident CC in Oceanview v. Zucker.
The court first notes that the interests of the Class Member Plaintiffs and the interests of the adult homes who are also plaintiffs in the Regulations Actions may not be synonymous. If their interests are in fact incongruent, this begs the question of whether these groups of plaintiffs can be jointly represented as an ethical matter. Moreover, the State has expressed concern that the Class Member Plaintiffs participating in Residents and Families are not voluntary and knowing participants in the litigation. (See Defs. Opp’n to Mot. to Remand (Dkt. 19-25 in No. 16-CV-1683) at 6 (noting that “it is far from clear that all—or even most—of these resident plaintiffs actually hold the views that the adult homes’ paid representatives purport to ascribe to them”).) In a deposition taken in December 2015, class member Walter Roberts testified that: (i) he did not recognize an affidavit with his signature that was submitted in the litigation; (ii) he did
4 “Impacted adult homes” are adult homes “in New York City with certified capacities of 120 or more in which 25 percent or more of the residents or 25 residents, whichever is less, have serious mental illness.” (2d Am. Stip. & Order of Settlement (Dkt. 112 in No. 13-CV-4165).)
3

Case 1:13-cv-04165-NGG-ST Document 116 Filed 06/15/17 Page 4 of 5 PageID #: 1520
not oppose the Regulations; and (iii) he did not believe that New York State had ever threatened to violate his rights. (See Ex. D to Defs. Opp’n (Dkt. 19-30 in No. 16-CV-1683).)5
In view of the fact that (1) there is a potential conflict of interest as among the plaintiffs in the Regulations Actions and (2) there appears to be a disconnect between at least one of the Class Member Plaintiffs and the claims in the Regulations Actions, the court determines that it is appropriate to appoint an guardian ad litem to protect the rights of the Class Member Plaintiffs.6 In making this appointment, the court exercises its “inherent authority to manage [its] docket[] and courtroom[].” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016); cf. James v. New York, 415 F. App’x 295, 297 (2d Cir. 2011) (summary order) (“Federal courts have inherent, discretionary power to appoint a guardian ad litem when it appears that an incompetent person’s general representative has interests which may conflict with those of the person he is supposed to represent.” (citing Ad Hoc Comm. of Concerned Teachers v. Greenburgh #11 Union Free Sch. Dist., 873 F.2d 25, 30 (2d Cir. 1989)).
The court therefore APPOINTS Katya Jestin of Jenner & Block LLP to serve as a guardian ad litem for the Class Member Plaintiffs. Jestin and her staff, who are donating their time and services pro bono, are INSTRUCTED to interview the Class Member Plaintiffs and, by no later than October 16, 2017, provide the court with a report under seal detailing: (1) the circumstances of the Class Member Plaintiffs’ participation in the Regulations Actions; and (2) whether each of the Class Member Plaintiffs understands the purpose of and their role in the litigation. The guardian ad litem and her staff may take steps including, but not limited to,
5 That exhibit is attached as Exhibit 1 to this order. 6 At least one Court of Appeals has upheld a district court’s appointment of a guardian ad litem to protect the interests of a person who was already represented by counsel. See Fonner v. Fairfax Cty., Va., 415 F.3d 325, 330-31 (4th Cir. 2005) (affirming district court’s appointment of a guardian ad litem to determine whether a mentally retarded resident of a group home (who was represented by counsel) was a willing participant in the litigation).
4

Case 1:13-cv-04165-NGG-ST Document 116 Filed 06/15/17 Page 5 of 5 PageID #: 1521

(1) employing the services of a psychiatric professional if deemed necessary by the guardian ad litem; (2) interviewing relevant third parties in addition to Class Member Plaintiffs; and (3) reporting to the court as is required to carry out her duties under this order. The court DIRECTS the Independent Reviewer to make himself available to the guardian ad litem in order to provide historical information related to the status of these cases.
The court further DIRECTS Jeffrey Sherrin, counsel for the plaintiffs in the Regulations Actions, to provide the court with (1) the names of the anonymous Class Member Plaintiffs; and (2) contact information for each of the Class Member Plaintiffs. Sherrin shall provide this information to the court ex parte and under seal by no later than June 23, 2017. The court will then supply the Class Member Plaintiffs’ information only to the guardian ad litem.
SO ORDERED.

Dated: Brooklyn, New York June 15, 2017

NICHOLAS G. GARAUFIS United States District Judge

5

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee11oof f1111PPaaggeeIDID##: :11542923

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee22oof f1111PPaaggeeIDID##: :11542934

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee33oof f1111PPaaggeeIDID##: :11542945

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee44oof f1111PPaaggeeIDID##: :11542956

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee55oof f1111PPaaggeeIDID##: :11542967

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee66oof f1111PPaaggeeIDID##: :11542978

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee77oof f1111PPaaggeeIDID##: :11542989

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee88oof f1111PPaaggeeIDID##: :11552090

CCaassee11:1:163-c-cvv-0-014618635-N-NGGGG-R-SETR DDooccuummeennt t11196--310 FFilieledd0066/1/350/1/176 PPaaggee99oof f1111PPaaggeeIDID##: :11553001

CaCsaes1e:13:1-6cv-c-0v-40116658-3N-GNG-GS-TREDRocDumoceunmt 1e1n6t 1-19-3F0iledFi0le6d/1056/1/370/1P6agPea1g0eo1f011ofP1a1gPeaIDge#I:D15#3: 1 1502

CaCsaes1e:13:1-6cv-c-0v-40116658-3N-GNG-GS-TREDRocDumoceunmt 1e1n6t 1-19-3F0iledFi0le6d/1056/1/370/1P6agPea1g1eo1f111ofP1a1gPeaIDge#I:D15#3: 2 1503

 
 Case 1:13-cv-04165-NGG-ST Document 118 Filed 06/22/17 Page 1 of 3 PageID #: 1534

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------------X
UNITED STATES OF AMERICA,

Plaintiff, STATE OF NEW YO-aRgKai,nst-

ORDER 13-CV-4165 (NGG) (ST)

Defendant. ---------------------------------------------------------------------X
RAYMOND O’TOOLE et al.,

Plaintiffs, ANDREW M. CUOM-aOgaeint satl-.,

13-CV-4166 (NGG) (ST)

Defendants. ---------------------------------------------------------------------X
RESIDENTS AND FAMILIES UNITED TO SAVE OUR ADULT HOMES et al.,
Plaintiffs,
HOWARD ZUCKER-a, gMai.nDs.t,-et al.,
Defendants. ---------------------------------------------------------------------X NICHOLAS G. GARAUFIS, United States District Judge.

16-CV-1683 (NGG) (RER)

On June 15, 2017, the court appointed Katya Jestin of Jenner & Block LLP to serve as a

guardian ad litem for the Class Member Plaintiffs.1 (Order (Dkt. 116)2.) As set forth in the

court’s June 15, 2017, Order (the “June Order”), the guardian ad litem is responsible for

1 The “Class Member Plaintiffs” refer to class members in O’Toole v. Cuomo, No. 13-CV-4166 (NGG) (RML), who are also named plaintiffs in at least one of the Regulations Actions, listed as follows: Residents & Families United to Save Our Homes v. Zucker (“Residents and Families”), No. 16-CV-1683 (NGG) (RER); Doe v. Zucker, Index No. 007079/2016 (N.Y. Sup. Ct. Albany Cty.); Oceanview Home for Adults, Inc. v. Zucker (“Oceanview v. Zucker”), Index No. 006012/2016 (N.Y. Sup. Ct. Albany Cty.); and Hedgewood Home for Adults, LLC v. Zucker, Index No. 052782/2016 (N.Y. Sup. Ct. Dutchess Cty.).
2 Unless indicated otherwise, citations to the record refer to documents filed in Case No. 13-CV-4165 (NGG) (ST).
1

Case 1:13-cv-04165-NGG-ST Document 118 Filed 06/22/17 Page 2 of 3 PageID #: 1535
providing the court with a report under seal detailing: (1) the circumstances of the Class Member Plaintiffs’ participation in the Regulations Actions; and (2) whether each of the Class Member Plaintiffs understands the purpose of and their role in the litigation. (Id. at 4.)
The court finds that, for the purposes of Mental Hygiene Law § 33.13(c)(1), the need for the guardian ad litem to access otherwise confidential information (including protected health information as defined in 45 C.F.R. § 160.103) in order to carry out her duties as set forth in the June Order significantly outweighs the need for confidentiality. Pursuant to 45 C.F.R. § 164.512(e)(1)(i) and the inherent authority of the court, it is hereby ORDERED that the guardian ad litem shall have access to the Class Member Plaintiffs’ protected health information and other confidential information that is necessary for the guardian ad litem to conduct her duties. The guardian ad litem may request such information from the New York State Department of Health, the New York State Office of Mental Health, Health Homes, Managed Long Term Care Plans, Housing Contractors, the New York City Human Resources Administration (“HRA”), adult homes (including, but not limited to, Oceanview Manor Home for Adults, Harbor Terrace Adult Care and Assisted Living, and Wavecrest Home for Adults), medical and mental health providers of services to Class Member Plaintiffs, the Center for Urban Community Services, the Independent Reviewer, and any other entity or individual in possession, custody, or control of such information. Those entities and individuals are authorized to disclose information, including confidential and/or protected health information, to the guardian ad litem and shall make such information available as soon as practicable after the guardian ad litem’s request. The guardian ad litem may make requests for information including, but not limited to, interviews with adult home staff, health providers, or mental health providers; assessments; psychiatric evaluations; Uniform Assessment System (“UAS”) forms; and HRA determination letters for each Class Member Plaintiff.
2

Case 1:13-cv-04165-NGG-ST Document 118 Filed 06/22/17 Page 3 of 3 PageID #: 1536

The guardian ad litem shall maintain the information obtained pursuant to this order in accordance with all applicable state and federal confidentiality regulations and may only use and disclose such information for the purposes of carrying out her duties under the June Order. Upon the conclusion of her assignment, the guardian ad litem and her staff shall destroy the information obtained pursuant to this order in a manner consistent with state and federal laws governing record destruction.
SO ORDERED.

Dated: Brooklyn, New York June 22, 2017

NICHOLAS G. GARAUFIS United States District Judge

3

 
 Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 1 of 46
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:03−cv−03209−NGG−MDG

CLOSED

Disability Advocates, Inc. v. Pataki et al Assigned to: Judge Nicholas G. Garaufis Referred to: Magistrate Judge Marilyn D. Go Cause: 42:1201 Civil Rights (Disability)
Plaintiff
Disability Advocates, Inc.

Date Filed: 07/01/2003 Date Terminated: 05/31/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Andrew Garry Gordon Paul Weiss, Rifkind, Wharton & Garrison LLP 1285 Avneue of the Americas New York, NY 10023 (212)373−3000 Fax: (212)492−0543 Email: agordon@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charlyne M. Brumskine Peay Urban Justice Center 123 William Street 16th Floor New York, NY 10038 646−602−5673 Fax: 212−533−4598 Email: cpeay@urbanjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ira Abraham Burnim Judge David L. Bazelon Center for Mental Health Law 1101 15th Street Washington, DC 20005−8002 202−467−4730 x129 Fax: 202−223−0409 Email: irab@bazelon.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeanette M. Zelhof MFY Legal Services, Inc. 299 Broadway 4th Floor New York, NY 10007 212−417−3727 Fax: 212−417−3891 Email: jzelhof@mfy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ellen Mathis Bazelon Center for Mental Health Law 1101 15th st. , N.W. Suite 1212 Washington, DC 20005 202−467−5730 x122 Fax: 202−223−0409 Email: jenniferm@bazelon.org

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 2 of 46
LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Gresham New York Lawyers for the Public Interest, Inc. 151 West 30th Street, 11th Floor New York, NY 10001−4007 212−244−4664 ext. 308 Fax: 212−244−4570 Email: jgresham@nylpi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aditi Kothekar Shah New York Lawyers for the Public Interest 151 West 30th Street 11th Floor New York, NY 10001 212−244−4664 ext. 308 Fax: 212−244−4570 Email: ashah@nylpi.org ATTORNEY TO BE NOTICED
Alissa Belkin Bauer Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Sixth Avenue New York, NY 10019 212−373−3755 Fax: 212−492−0755 Email: abauer@paulweiss.com TERMINATED: 04/03/2009
Amelia Anne Cottrell U.S. Securities and Exchange Commission New York Regional Office 3 World Financial Center Suite 400 New York, NY 10281 212−336−1056 Fax: 212−336−1322 TERMINATED: 01/17/2008
Ankush Khardori Paul Weiss Rifkind Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212−373−3421 Fax: 212−492−0421 Email: akhardori@paulweiss.com TERMINATED: 06/30/2009
Anne Skeels Raish Paul Weiss Rifkind Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019 212−373−3554 Fax: 212−492−0554 Email: araish@paulweiss.com TERMINATED: 05/26/2010
Beth Susan Frank New York State Attorney General's Office

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 3 of 46
Civil Rights Bureau 120 Broadway New York, NY 10271−0332 212−416−8974 Fax: 212−416−8074 Email: Beth.Frank@oag.state.ny.us TERMINATED: 04/03/2009
Dawn Elizabeth Barker Paul Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019−6064 212−373−3729 Fax: 212−492−0729 Email: dawnbarker@hotmail.com TERMINATED: 01/17/2008
Francine Nicole Murray Paul Weiss Rifkind Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019−6064 212−373−3719 Fax: 212−492−0719 Email: fmurray@paulweiss.com ATTORNEY TO BE NOTICED
Gayle Sharon Gerson Paul Weiss Rifkind Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 212−373−3510 Email: ggerson@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jeh Charles Johnson Paul Weiss Rifkind Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019−6064 212−373−3000 Fax: 212−757−3990 Email: jjohnson@paulweiss.com TERMINATED: 04/03/2009
Jonathan R. Bolton Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue Of The Americas New York, NY 10019 212−373−3000 Fax: 212−492−0015 Email: jbolton@paulweiss.com TERMINATED: 04/10/2010
Joshua Paul Groban Paul Weiss, Rifkind Wharton & Garrison 1285 Ave. of the Americas New York, NY 10019−6064 212−373−3000 Fax: 212−492−0372 TERMINATED: 04/03/2009

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 4 of 46
Jota Lee Borgmann MFY Legal Services, Inc. 299 Broadway, 4th Floor New York, NY 10007 212−417−3717 Fax: 212−417−3890 Email: jborgmann@mfy.org ATTORNEY TO BE NOTICED
Kevin M Cremin MFY Legal Services, Inc. 299 Broadway, 4th Floor New York, NY 10007 (212) 417−3759 Fax: (212) 417−3890/3891 Email: kcremin@mfy.org ATTORNEY TO BE NOTICED
Liad Levinson Paul, Weiss, Rifkind, Wharton & Garrison LLP. 1285 Avenue Of The Americas New York, NY 10019 212−373−3765 Fax: 212−492−0765 ATTORNEY TO BE NOTICED
Lycette Nelson MFY Legal Services, Inc. 299 Broadway, 4th New York, NY 10007 212−417−3700 Fax: 212−417−3891 TERMINATED: 03/12/2009
Roberta L. Mueller New York Lawyers for the Public Interest, Inc. 151 W 30th Street New York, NY 10001 (212)244−4664 Fax: (212)244−4570 Email: rmueller@nylpi.org ATTORNEY TO BE NOTICED
Roger A. Bearden New York Lawyers for the Public Interest 151 West 30th Street 11th Floor New York, NY 10001 212−244−4664 Fax: 212−244−4570 Email: rbearden@nylpi.org ATTORNEY TO BE NOTICED
Sandra Lynn Sheldon Paul Weiss Rifkind Wharton & Garrison LLP 1285 Avenue Of The Americas New York, NY 10019 212−373−3559 Fax: 212−492−0559 ATTORNEY TO BE NOTICED
Tania Claudine Brief

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 5 of 46
Paul Weiss Rifkind Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019−6064 212−373−3120 Fax: 212−492−0120 Email: tbrief@paulweiss.com TERMINATED: 03/23/2007
Timothy A. Clune Disability Advocates, Inc. 5 Clinton Square Third Floor Albany, NY 12207 518−432−7861 Fax: 518−427−6561 Email: tac@disabilityadvocates.info ATTORNEY TO BE NOTICED
William G. Lienhard Urban Justice Center 666 Broadway, 10th Floor New York, NY 10012 646−602−5667 Fax: 212−533−4598 Email: wlienhard@urbanjustice.org TERMINATED: 04/03/2009
Clifford H. Zucker Disability Advocates, Inc. 5 Clinton Square Albany, NY 12207 518−432−7861 Fax: 518−427−6561 Email: cz@disabilityadvocates.info ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
United States of America United States of America

represented by Amanda Maisels U.S. Department of Justice 950 Pennsylvania Ave, Nw − Nya Washington, DC 20530 202−305−8454 Fax: 202−307−1197 Email: amanda.maisels@usdoj.gov ATTORNEY TO BE NOTICED
Michael J. Goldberger United States Attorneys Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201−1820 (718)254−6052 Fax: (718)254−6083 Email: Michael.Goldberger@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 6 of 46

George Pataki in his official capacity as Governor of the State of New York

Barbara K. Hathaway Attorney General's Office State of New York 120 Broadway 24th Floor New York, NY 10271 (212)416−8572 Fax: 212−416−6009 Email: barbara.hathaway@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Silverman NYS Office of the Attorney General Litigation Bureau, 24th Floor 120 Broadway New York, NY 10271 212−416−8534 Fax: 212−416−6075 TERMINATED: 12/21/2010 LEAD ATTORNEY

Amy Marie Held N.Y. State Attorney General Medicaid Fraud Control Unit 13th Floor New York, NY 10271 212−417−5380 Fax: 212−417−5335 Email: amy.held@ag.ny.gov ATTORNEY TO BE NOTICED

Scott J. Spiegelman State of New York Office of the Attorney General 120 Broadway New York, NY 10271 212−416−8558 Fax: 212−416−6077 Email: cowless@gmail.com ATTORNEY TO BE NOTICED

Defendant
Antonia C. Novello in her official capacity as Commissioner of the New York State Department of Health

represented by Barbara K. Hathaway (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Silverman (See above for address) TERMINATED: 12/21/2010 LEAD ATTORNEY

Amy Marie Held (See above for address) ATTORNEY TO BE NOTICED

Scott J. Spiegelman (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Stone in his official capacity as Commissioner

represented by Barbara K. Hathaway (See above for address)

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 7 of 46

of the New York State Department of Mental Health

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Silverman (See above for address) TERMINATED: 12/21/2010 LEAD ATTORNEY

Amy Marie Held (See above for address) ATTORNEY TO BE NOTICED

Scott J. Spiegelman (See above for address) ATTORNEY TO BE NOTICED

Defendant New York State Department of Health

represented by Barbara K. Hathaway (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Silverman (See above for address) TERMINATED: 12/21/2010 LEAD ATTORNEY

Amy Marie Held (See above for address) ATTORNEY TO BE NOTICED

Scott J. Spiegelman (See above for address) ATTORNEY TO BE NOTICED

Defendant
New York State Office of Mental Health

represented by Barbara K. Hathaway (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Silverman (See above for address) TERMINATED: 12/21/2010 LEAD ATTORNEY

Amy Marie Held (See above for address) ATTORNEY TO BE NOTICED

Scott J. Spiegelman (See above for address) ATTORNEY TO BE NOTICED

Amicus City of New York

represented by Lisa Fleming Grumet Corporation Counsel of the City of NY 100 Church Street New York, NY 10007 212−788−1165 Email: lgrumet@law.nyc.gov ATTORNEY TO BE NOTICED

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 8 of 46

V. Intervenor New York Coalition for Quality Assisted Living TERMINATED: 12/23/2009
Intervenor Empire State Association of Assisted Living TERMINATED: 12/23/2009

represented by Steven Marc Pesner Akin, Gump, Strauss, Hauer & Feld, L.L.P. 590 Madison Avenue New York, NY 10022 (212) 872−1070 Fax: (212) 407−3270 Email: spesner@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Sherrin O'Connell and Aronowitz, P.C. 54 State Street Albany, NY 12207 518−462−5601 Fax: 518−462−2670 Email: jsherrin@oalaw.com ATTORNEY TO BE NOTICED
represented by David T. Luntz Hinman Straub, P.C. 121 State Street Albany, NY 12207 518−436−0751 Fax: 518−436−4751 Email: dluntz@hinmanstraub.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/01/2003
07/01/2003 07/02/2003
07/07/2003 07/07/2003 07/16/2003 07/22/2003

# Docket Text
1 COMPLAINT against New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone filing fee $ 150, receipt number 279696 Summons Issued, filed by Disability Advocates, Inc.. (Attachments: # 1 Civil Cover Sheet)(Villanueva, William) (Entered: 07/01/2003)
2 DISCLOSURE of Interested Parties by Disability Advocates, Inc..(Villanueva, William) (Entered: 07/01/2003)
4 SUMMONS Returned Executed by Disability Advocates, Inc. The New York State Office of Mental Health; the Executive Chamber of New York State; and New York State Department of Health, served on 7/1/2003.(Latka−Mucha, Wieslawa) (Entered: 07/21/2003)
6 MOTION for Leave to Appear Pro Hac Vice for Ira Abraham Burnim by Disability Advocates, Inc.. (Dobkin, David) (Entered: 07/24/2003)
8 MOTION for Leave to Appear Pro Hac Vice for Jennifer Ellen Mathis by Disability Advocates, Inc.. (Dobkin, David) (Entered: 07/24/2003)
3 SCHEDULING ORDER: Initial Conference set for 11/14/2003 04:15 PM in Courtroom 619 before Magistrate−Judge Robert M. Levy.. Signed by Judge Robert M. Levy on July 15, 2003. (Marino, Janine) (Entered: 07/16/2003)
5 ORDER granting dfts' application for an extension of time, to 10/1/2003, to respond to the complaint. Signed by Judge Nicholas G. Garaufis on 7/17/2003. (see letter dated 7/17/2003 from AAG Hathaway to NGG) c/m(Lee, Tiffeny) (Entered: 07/22/2003)

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 9 of 46

07/24/2003 07/24/2003 07/24/2003 07/25/2003 08/01/2003 08/01/2003 08/11/2003 08/11/2003 08/11/2003 08/18/2003 08/19/2003 08/19/2003 10/01/2003 10/14/2003 10/16/2003 11/14/2003
11/18/2003

7 ORDER granting 6 Motion for Leave to Appear Pro Hac Vice by Ira Abraham Burnim. Signed by JudgeNicholas G. Garaufis on 7/15/2003. (Dobkin, David) (Entered: 07/24/2003)
9 ORDER granting 8 Motion for Leave to Appear Pro hac vice for Jennifer Ellen Mathis. Signed by JudgeNicholas G. Garaufis on 7/15/2003. (Dobkin, David) (Entered: 07/24/2003)
Filing fee: $ 50.00, receipt number 280416 for Pro Hac Vice. (Dobkin, David) (Entered: 07/24/2003)
10 Consent to Electronic Case Filing filed by Barbara Hathaway, Esq., Amy Held, Esq. and Amy Abramowitz, Esq. (Lee, Tiffeny) (Entered: 07/30/2003)
14 CERTIFICATE OF SERVICE of admission to practice pro hac vice of Ira Burnim and Jennifer Mathis served to all parties on 7/31/2003. (Lee, Tiffeny) (Entered: 08/21/2003)
15 Consent to Electronic Case Filing by William G. Lienhard, counsel to plaintiff. (Lee, Tiffeny) (Entered: 08/22/2003)
11 Consent to Electronic Case Filing filed by Amelia A. Cottrell, counsel for pltf. Disability Advocates, Inc. (Vaughn, Terry) Modified on 8/11/2003 to include that Ms. Cottrell's ECF Registration form was included. (Vaughn, Terry). (Entered: 08/11/2003)
12 Consent to Electronic Case Filing filed by Mr. Johnson counsel for Pltf. Enclosed was Mr. Johnson's ECF Registration form. (Vaughn, Terry) (Entered: 08/11/2003)
13 Consent to Electronic Case Filing filed by Joshua Paul Groban, counsel for Pltf. Enclosed was Mr. Groban's ECF Registration form. (Vaughn, Terry) (Entered: 08/11/2003)
18 Consent to Electronic Case Filing by Cliff Zucker and Timothy Clune, counsel for plaintiff. (Lee, Tiffeny) (Entered: 08/27/2003)
16 Consent to Electronic Case Filing filed by Jennifer Mathis, counsel for pltf. (DiLorenzo, Krista) (Entered: 08/26/2003)
17 Consent to Electronic Case Filing filed by Ira A. Burnim, counsel for pltf. (DiLorenzo, Krista) (Entered: 08/26/2003)
19 ANSWER to Complaint by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone.(Hathaway, Barbara) (Entered: 10/01/2003)
20 NOTICE of Appearance by Cliff Zucker on behalf of Disability Advocates, Inc. (Zucker, Cliff) (Entered: 10/14/2003)
21 NOTICE of Appearance by Lycette Nelson on behalf of Disability Advocates, Inc. (Lee, Tiffeny) (Entered: 10/27/2003)
Minute Entry for proceedings held before Robert M. Levy :Cliff Zucker for plaintiff Disability Advocates, Inc.(tel) by Amelia Cottrell, (Paul Weiss), John Gresham (NYLPI), Jennifer Mathis (Bazelon Center), Bill Lienhard, Heather Barr (Urban Justice Center), Jeanette Zelhot (MFY Legal Services); Barbara K. Hathaway, (AAG),Amy Held (AAG), Pam Tindall−O'Brien (OMH Counsel), Joe Reilly (OMH adult home project director) for defendants. Confidential settlement explorations held. The parties shall provide a settlement status report within 4 weeks. Scheduling order entered: Service of document requests by 12/12/03; service of interrogatories by 1/30/04; rolling responses to document requests; responses to interrogatories by 3/15/04, with extension for good cause where appropriate; fact discovery deadline 12/31/04, with leave to extend for good cause. Next conference: 2/24/04 at 1:00 pm. In preparation for the conference, the parties shall submit a status report to chambers by 2/17/04. At the 2/24 conference, the court will consider when depositions should begin. Any requests for recusal shall be made by 11/21/04. Initial Conference Hearing held on 11/14/2003. (Levy, Robert) (Entered: 11/14/2003)
22 Letter dated 10/2/03 from Barbara Hathaway to Judge Garaufis, advising that this office represents dfts Pataki, Novello, Stone, the NYS Dept of Health, and the NYS State Office of Mental Health. (Piper, Francine) (Entered: 11/18/2003)

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 10 of 46

11/25/2003
12/01/2003
12/03/2003
12/05/2003
12/12/2003 12/17/2003 12/17/2003
12/18/2003 01/07/2004 02/02/2004 02/02/2004 02/19/2004 02/24/2004 02/24/2004 02/24/2004 02/24/2004 02/25/2004

44 Letter dated 11/24/03 from Joshua Groban Esq, to USMJ Levy submitted on behalf of the plaintiff, in response to defendants' letter dated 11/21/03. Plaintiff opposes defendants' request for recusal and is unaware of any legitimate basis for such recusal. (Williams−Jackson, Sandy) (Entered: 06/24/2004)
Minute Entry AMENDED ORDER: The Court's Order of November 14, 2003 is amended as follows: The deadline for requests for recusal is November 21, 2003. The next conference is scheduled for March 2, 2004 at 1:00 pm. Any party wishing to appear by telephone may do so. Status reports due February 24, 2004. Entered: December 1, 2003. (Levy, Robert) (Entered: 12/01/2003)
28 ORDER: The parties are correct. The requests for recusal were to be made by 11/21/2003. The next conference will be held on 3/2/2004 @ 1:00 pm. Status reports due 2/24/2004. Signed by Judge Robert M. Levy on 11/26/2003. Endorsed on 11/18 letter from Amelia Cottrell, Esq. to MJ Levy.(Lee, Tiffeny) (Entered: 01/12/2004)
29 ORDER : Application granted. Defendant may move by letter motion, supported by authority. The deadline to submit the motion, in view of counsel's schedule, is 1/7/2004. So Ordered. Signed by Judge Robert M. Levy on 12/5/2003. Endorsed on 12/5/2003 letter from AAG Hathaway to MJ Levy requesting extension of time to submit papers re: recusal.(Lee, Tiffeny) (Entered: 01/12/2004)
25 SETTLEMENT STATUS REPORT by Disability Advocates, Inc. (Lee, Tiffeny) (Entered: 12/18/2003)
23 Letter dated 11/25/2003 from AAG Hathaway to MJ Levy requesting until December 8, 2003 to file a formal motion of recusal, should the Court require one. (Lee, Tiffeny) (Entered: 12/17/2003)
24 ORDER granting plaintiff's request to have until 1/28/2004 to respond to defendants' motion on the issue of recusal. Signed by Judge Robert M. Levy on 12/10/2003. Endorsed on 12/9/2003 letter from Joshua Groban, Esq. to MJ Levy.(Lee, Tiffeny) (Entered: 12/17/2003)
26 SETTLEMENT STATUS REPORT by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Lee, Tiffeny) (Entered: 12/18/2003)
27 Letter from Barbara K. Hathaway to M.J. Levy Regarding Recusal of M.J. Levy. (Attachments: # 1 Exhibit A to C)(Hathaway, Barbara) (Entered: 01/07/2004)
30 Letter from Barbara K. Hathaway, AAG to Hon. Robert M. Levy Regarding Hon. Robert M. Levy's Recusal. (Hathaway, Barbara) (Entered: 02/02/2004)
31 Letter from Barbara K. Hathaway, AAG to Hon. Robert M. Levy, US Magistrate Judge Regarding Hon. Robert M. Levy's Recusal (With OAG Letterhead and Signed by AAG Barbara K. Hathaway). (Hathaway, Barbara) (Entered: 02/02/2004)
32 Letter from Barbara K. Hathaway, Assistant Attorney General to Hon. Robert M. Levy, US Magistrate Judge Regarding Defendants' Response to Plaintiff's Letter, dated February 17, 2004, re A Proposed Protective Order. (Hathaway, Barbara) (Entered: 02/19/2004)
33 Letter from John A. Gresham to The Honorable Robert M. Levy Regarding Attached Proposed Protective Order. (Groban, Joshua) (Entered: 02/24/2004)
34 Letter from Joshua Groban to The Honorable Robert M. Levy Regarding Case Status. (Groban, Joshua) (Entered: 02/24/2004)
35 Letter from Barbara K. Hathaway, Assistant Attorney General to Hon. Robert M. Levy, US Magistrate Judge Regarding Defendants' Status Report re Discovery and Settlement, pursuant to the Court's Scheduling Order. (Hathaway, Barbara) (Entered: 02/24/2004)
45 Letter dated 2/24/04 from Joshua Groban Esq, to USMJ Levy reporting on the status of the above captioned matter. (Williams−Jackson, Sandy) (Entered: 06/28/2004)
36 AFFIDAVIT OF CLIFF ZUCKER by Disability Advocates, Inc.. (Zucker, Cliff) (Entered: 02/25/2004)

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02/27/2004 03/02/2004 03/03/2004 03/18/2004 04/29/2004
04/30/2004 05/11/2004 05/19/2004 05/19/2004 05/25/2004
08/04/2004 08/04/2004 08/04/2004 09/01/2004 09/07/2004 09/15/2004

37 Letter from Barbara K. Hathaway, Assistant Attorney General to Hon. Robert M. Levy, US Magistrate Judge Regarding Defendants' Response to John Gresham's Letter and Cliff Zucker's Affidavit re Plaintiff's Proposed Protective Order. (Hathaway, Barbara) (Entered: 02/27/2004)
39 Minute Entry for proceedings held before Robert M. Levy: Status Conference held on 3/2/2004. Argument heard on request for protective order. Decision reserved pending receipt of advisory opinion of Committee on Codes of Conduct regarding recusal issues.Tape #: 04/11: 1041−4964 (Lee, Tiffeny) (Entered: 03/08/2004)
38 Letter from John A. Gresham to The Honorable Robert M. Levy Regarding Proposed Protective Order. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Groban, Joshua) (Entered: 03/03/2004)
40 TRANSCRIPT of Pre−Trial Conference held on Mar. 2, 2004 before Judge Robert M. Levy; Joseph C. Williams, (917) 435−3737. (Lee, Tiffeny) (Entered: 03/19/2004)
41 MEMORANDUM AND OPINIONPending before the court is defendants' motion for recusal pursuant to 28 U.S.C. 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." Accordingly, under the unique circumstances of this case, defendants' motion is granted. SEE M&O Signed by Judge Robert M. Levy on 4/29/04. (Marino, Janine) (Entered: 04/29/2004)
Pursuant to the recusal e'mail from M.J. Levy's chambers: Mag. Judge Marilyn D. Go added. Mag. Judge Robert M. Levy no longer assigned to case. Chambers advised by e'mail. (Vaughn, Terry) (Entered: 04/30/2004)
42 TRANSCRIPT of Civil Cause for Pre−Trial Proceedings conference held on 3/2/04 before Judge Magistrate Robert M. Levy. (Drayton, Lorraine) (Entered: 05/11/2004)
43 ORDER granting 33 Letter application for protective order and release of unredacted confidential information. A status conference will be held on May 25, 2004 at 10:30 a.m. Signed by Judge Marilyn D. Go on 5/19/04. (Go, Marilyn) (Entered: 05/19/2004)
46 PROTECTIVE ORDER; Signed by Judge Marilyn D. Go on 5/19/2004. (Lee, Tiffeny) (Entered: 06/28/2004)
Minute Entry for proceedings held before Marilyn D. Go on 5/25/2004. Appearances by Cliff Zucker, Joshua Groban, Heather Barr, Jeanette Zelhof, John Gresham, Lycette Nelson, Barbara Hathaway, Amy Abramowitz, Lorelei Boylan. Defendants must respond to plaintiff's document requests as follows: complete initial production of 40 boxes documents on a rolling basis by 7/26/04, with an indication of what categories of documents and/or remaining agencies to be produced; produce recent assessments by Columbia Presbyterian by 6/8/04; and complete production by 10/25/04. Fact discovery is extended to 1/31/05. Next conference scheduled for Sept. 14, 2004 at 11:30 a.m. (DeVeaux, Yvonne) (Entered: 05/25/2004)
47 Letter dtd 1/28/2004 to Magistrate Judge Robert M. Levy from Joshua Groban, counsel for the plaintiff, requesting that Your Honor deny defendant's request for recusal. (Schillat, Louise) (Entered: 08/04/2004)
48 Letter dtd Feb. 2, 2004 to Magistrate Judge Robert M. Levy from Barbara K. Hathaway, requesting that Your Honor recuse himself. (Schillat, Louise) (Entered: 08/04/2004)
49 Letter dtd Feb. 25, 2004 to Magistrate Judge Robert M. Levy from John A. Gresham,in support of plaintiff's proposed protective order. (Affirmation of Cliff Zucker attached.) (Schillat, Louise) (Entered: 08/04/2004)
50 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (Eastern District of New York) Regarding Discovery Dispute. (Hathaway, Barbara) (Entered: 09/01/2004)
51 Letter from Counsel for Plaintiff to Hon. Marilyn D. Go Regarding Defendants' letter dated September 1, 2004. (Groban, Joshua) (Entered: 09/07/2004)
Minute Entry for proceedings held before Marilyn D. Go : Interim Pretrial Conference held on 9/15/2004. Appearances by Joshua Groban, Amelia Cotrell, Bill Lienhard, Lycette Nelson, Barbara Hathaway, Amy Held. Unless otherwise directed by the court, plaintiff

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09/30/2004 09/30/2004 10/20/2004 10/20/2004 10/20/2004 11/01/2004 11/05/2004 11/09/2004 11/12/2004
11/19/2004
12/06/2004 12/09/2004 12/27/2004 12/29/2004 12/29/2004

must supplement interrogatory responses by 10/15/04, as discussed. No depositions of residents shall be conducted until authorized by the Court. Next conference scheduled for Nov. 10, 2004 at 10:00 a.m. (ESR 04/87 0−3315) (Go, Marilyn) (Entered: 09/15/2004)
52 Letter from Amelia A. Cottrell of Paul, Weiss, Rifkind, Wharton & Garrison LLP to Magistrate Judge Marilyn D. Go Regarding response to request for the parties' positions concerning the confidentiality regulations of 42 C.F.R. Sec. 51.45(a)(3). (Attachments: # 1 Text of Proposed Order)(Groban, Joshua) (Entered: 09/30/2004)
53 Letter from Amy Held, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (Eastern District Court of New York) Regarding 42 C.F.R. Sec. 51.45, Submitted in Accordance with the Court's Oral Directive of 09/14/04. (Hathaway, Barbara) (Entered: 09/30/2004)
54 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (Eastern District of New York) Regarding Extension of Document Production Deadline. (Hathaway, Barbara) (Entered: 10/20/2004)
ORDER granting 54 Letter request. Signed by Judge Marilyn D. Go on 10/20/04. (Go, Marilyn) (Entered: 10/20/2004)
55 Letter from Joshua Groban to Judge Go Regarding request for adjournment of deadline.. (Groban, Joshua) (Entered: 10/20/2004)
56 Letter from Cliff Zucker to The Honorable Marilyn Dolan Go Regarding Discovery Issue.. (Groban, Joshua) (Entered: 11/01/2004)
57 Letter from Amy Held, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (Eastern District of New York) Regarding Response of Non−Party OTDA and of Defendants to Plaintiff's November 1, 2004 Letter re: Discovery, Exhibits 1 to 6. (Hathaway, Barbara) (Entered: 11/05/2004)
58 Letter from Cliff Zucker, Esq. to The Honorable Marilyn Dolan Go Regarding defendants' and OTDA's joint letter dated November 5, 2004. (Groban, Joshua) (Entered: 11/09/2004)
Minute Entry for Status Conference held before Marilyn D. Go on 11/10/2004: Appearances by Cliff Zucker, Joshua Groban, John Gresham, Bill Lienhard, Lycette Nelson, Claudia Wilner, Barbara Hathaway, Amy Held. Plaintiff must provide the names of residents in response to discovery requests, subject to terms of protective order. Prior to the next conference, counsel must confer w/ knowledgeable employees of def. regarding accessibility of data. Next conference scheduled for Nov. 18, 2004 at 9:30 a.m.(Tape #ESR 04/108 0−2891.) (DeVeaux, Yvonne) (Entered: 11/12/2004)
Minute Entry for proceedings held before Marilyn D. Go on 11/18/2004. Appearances by Joshua Groban, John Gresham, Cliff Zucker, Barbara Hathaway, Amy Held, Lorelei Boylan. Fact discovery must be completed by 7/1/05. Defendant DOH must produce resident information from a latitude database search by 12/15/4 and from other search by 1/10/05. Next conference scheduled for Feb. 4, 2005 at 10:30 a.m. (Tape # 04/111 0−2278.) (DeVeaux, Yvonne) (Entered: 11/19/2004)
59 NOTICE of Appearance by Beth Susan Frank on behalf of Disability Advocates, Inc. (Frank, Beth) (Entered: 12/06/2004)
64 TRANSCRIPT of Civil Cause for Conference held on 11/18/04 before Judge Marilyn D. Go. Court Reporter: Elizabeth Barron. (Drayton, Lorraine) (Entered: 01/13/2005)
60 Letter from Joshua Paul Groban to Magistrate Judge Marilyn D. Go Regarding Court's assistance in resolving another outstanding discovery dispute about access to a database. (Groban, Joshua) (Entered: 12/27/2004)
61 Letter from Amy L. Abramowitz, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding a request for an extension to respond to Plaintiff's letter dated December 27, 2004, concerning a discovery matter. (Hathaway, Barbara) (Entered: 12/29/2004)
ORDER granting 61 Letter request extending to 1/10/05 the defendants' time to respond to plaintiff's application to compel. There will be no further extension. Signed by Judge Marilyn D. Go on 12/29/04. (Go, Marilyn) (Entered: 12/29/2004)

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12/30/2004 62 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Document Production. (Hathaway, Barbara) (Entered: 12/30/2004)

01/10/2005

63 Letter from Amy L. Abramowitz, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding resolution of dicovery dispute raised in Plaintiff's letter dated December 27, 2004. (Hathaway, Barbara) (Entered: 01/10/2005)

01/13/2005 180 TRANSCRIPT of Conference held on November 10, 2004 before Judge Marilyn D. Go. Transcription Plus II, 9516) 358−7352. (Lee, Tiffeny) (Entered: 08/24/2007)

02/07/2005

Minute Entry for status conference held before Marilyn D. Go on 2/4/2005. Appearances by J. Groban, L. Nelson, B. Frank, B. Hathaway and A. Held. Fact discovery must be completed by 7/29/05. The parties should work to see if information regarding the organizational and administrative structure, etc. can be exchanged informally and embodied in an affidavit, stipulation, or "interrogatory response,' rather than obtained through depositions. Any responses will not be included in the 40 interrogatory limit. The parties should work on a system to identity of residents and institutions other than by their names to protect against premature disclosure of the identities of residents who may provide information in this case. PLEASE NOTE THE TIME FORTHE NEXT CONFERENCE IS July 29, 2005 at 10:30 a.m. (DeVeaux, Yvonne) (Entered: 02/07/2005)

05/09/2005 65 TRANSCRIPT of Civil Cause for Status held on 9/15/04 before Judge Marilyn D. Go. Official Transcriber: Rosalie Lombardi. L.F. (Drayton, Lorraine) (Entered: 05/10/2005)

05/20/2005 66 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Request to Lift the Stay of Discovery. (Hathaway, Barbara) (Entered: 05/20/2005)

05/23/2005

ORDER granting 66 Letter Request to Lift the Stay of deposition of residents at the adult homes at issue. Ordered by Judge Marilyn D. Go on 5/23/05. (Go, Marilyn) (Entered: 05/23/2005)

05/25/2005 67 Letter MOTION to Compel Response to Interrogatory No. 1 by a date certain by all defendants. (Attachments: # 1 Exhibit ExhsA−IandK−MtoDefendants'5.25.ltr)(Held, Amy) (Entered: 05/25/2005)

06/07/2005 68 RESPONSE in Opposition re 67 Letter MOTION to Compel Response to Interrogatory No. 1 by a date certain filed by Disability Advocates, Inc.. (Groban, Joshua) (Entered: 06/07/2005)

06/08/2005 69 Letter from Joshua Paul Groban to Judge Marilyn D. Go Regarding inspection of Brooklyn Manor. (Groban, Joshua) (Entered: 06/08/2005)

06/09/2005 70 REPLY to Response to Motion re 67 Letter MOTION to Compel Response to Interrogatory No. 1 by a date certain filed by all defendants. (Held, Amy) (Entered: 06/09/2005)

07/08/2005 71 Letter from Barbara K. Hathaway to Hon. Marilyn D. Go Regarding Request, Upon Consent, for Extension of Discovery Deadline. (Hathaway, Barbara) (Entered: 07/08/2005)

08/01/2005

Minute Entry for status conference held before Marilyn D. Go on 7//29/2005. Appearances by Andrew Gordon, Cliff Zucker, Amy held, Barbara Hathaway. Plaintiff must identify the residents it intends to call as witnesses at trial by 9/30/05 and defendants must make such disclosures by 11/29/05. Failure to identify any resident may result in preclusion. Fact discovery is extended to 10/31/05, except the deadline for discovery regarding residents is 12/19/05. Any party intending to call an expert, other than in rebuttal, must give notice by 10/17/05 of the type of expert to be retained, areas of expertise and general subject matter to be addressed by the expert. Plaintiff's expert reports and disclosures are due 11/18/05; expert disclosures and reports of defendants' experts and any rebuttal experts of plaintiffs must be served by 12/10/05; reply expert reports are due 1/19/06. Next conference scheduled for Nov. 2, 2005 at 10:00 a.m.(Tape #ESR 05/80 0−3536.) (DeVeaux, Yvonne) (Entered: 08/01/2005)

08/01/2005

Motions terminated: 67 Letter MOTION to Compel Response to Interrogatory No. 1 by a date certain filed by George Pataki,, James Stone,, New York State Department of Health,, Antonia C. Novello,, New York State Office of Mental Health,. Ordered by Judge Marilyn

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08/08/2005 08/08/2005 08/09/2005 10/05/2005 10/07/2005 10/12/2005 10/12/2005
10/18/2005 10/21/2005 10/24/2005
10/24/2005 10/31/2005 11/01/2005 11/01/2005 11/03/2005 11/04/2005

D. Go on 8/1/5. (Lee, Tiffeny) (Entered: 01/24/2006)
72 Letter from Barbara K. Hathaway, Assistant Attorney General to Hon. Marilyn D. Go, US Magistrate Judge, EDNY Regarding Request for the Clarification of the Scheduling Order. (Hathaway, Barbara) (Entered: 08/08/2005)
ORDER re 72 Letter. The deadline for defendants' expert report and disclosures is 12/19/05. Ordered by Judge Marilyn D. Go on 8/8/05. (Go, Marilyn) (Entered: 08/08/2005)
73 TRANSCRIPT of Proceedings held on 07/29/2005 before Judge MDG. Court Reporter: Elizabeth Barron. (Clark, Shawn) (Entered: 08/09/2005)
74 Letter from Assistant Attorney General Amy H. Held to Hon. Marilyn D. Go, Magistrate Judge, EDNY Regarding Confidentiality Concerns with Respect to Document Production in Response to a Subpoena. (Hathaway, Barbara) (Entered: 10/05/2005)
75 Letter from Assistant Attorney General Barbara K. Hathaway to Hon. Marilyn D. Go, Magistrate Judge (EDNY) Regarding Request for Extension of the Fact Discovery Deadline. (Hathaway, Barbara) (Entered: 10/07/2005)
76 Letter from Defendants to Hon. Marilyn D. Go, U.S.M.J. Regarding Defendants' Request, With Plaintiff's Consent, to Extension of Fact Discovery Period, and to Adjournment of Dates Regarding Expert Disclosures. (Held, Amy) (Entered: 10/12/2005)
ORDER re 76 Letter. The scheduling order is extended as follows: discovery requests directed to another party must be served by 10/13/05 and to non−parties by 10/31/05; fact discovery must be completed by 12/30/05; notice of expert to be retained must be given by 12/9/05; plaintiff's expert reports and disclosures must be served by 1/31/06; defendants' expert disclosures and reports must be served by 2/3/06; reply expert reports are due 3/20/06. The next conference is adjourned to Jan. 6, 2006 at 10:00 a.m. The parties must be prepared to discuss settlement at the next conference and should call for an earlier conference if they feel one would be productive. Ordered by Judge Marilyn D. Go on 10/12/05. (Go, Marilyn) (Entered: 10/12/2005)
77 NOTICE of Appearance by Anne Skeels Raish on behalf of Disability Advocates, Inc. (Raish, Anne) (Entered: 10/18/2005)
78 Letter from Anne S. Raish to Magistrate Judge Go Regarding Discovery. (Raish, Anne) (Entered: 10/21/2005)
79 Letter from Amy M. Held, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Plaintiff's consent to extension of Defendants' time to respond to Plaintiff's 10/21/05 letter to 10/31/05. (Hathaway, Barbara) (Entered: 10/24/2005)
ORDER re 79 Letter. The time for defendants to respond to Plaintiff's 10/21/05 letter discovery application is extended to 10/31/05. Ordered by Judge Marilyn D. Go on 10/24/05. (Go, Marilyn) (Entered: 10/24/2005)
80 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Opposition to Motion to Compel. (Hathaway, Barbara) (Entered: 10/31/2005)
81 MOTION for Extension of Time to Complete Discovery by Disability Advocates, Inc.. (Raish, Anne) (Entered: 11/01/2005)
ORDER granting 81 Motion for a Two−Day Extension of Time to serve non−party deposition subpoenas. Ordered by JudgeMarilyn D. Go on 11/1/05. (Go, Marilyn) (Entered: 11/01/2005)
82 Letter from Anne S. Raish to Honorable Marilyn D. Go Regarding Further Support of Motion to Compel. (Raish, Anne) (Entered: 11/03/2005)
83 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Request for Extension of Time to Serve Subpoena. (Hathaway, Barbara) (Entered: 11/04/2005)

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11/04/2005 11/09/2005 11/10/2005 11/14/2005 11/23/2005 12/15/2005 12/28/2005 12/28/2005 01/05/2006 01/05/2006 01/09/2006
01/09/2006 01/09/2006

ORDER re 83 Letter. Defendants are granted an extension of time to 11/21/05 to serve a subpoena on Walter Saurack. Ordered by Judge Marilyn D. Go on 11/4/05. (Go, Marilyn) (Entered: 11/04/2005)
84 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of Attorney General to Honorable Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Letter requesting conference regarding discovery dispute. (Hathaway, Barbara) (Entered: 11/09/2005)
85 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Opposition to Motion to Compel. (Hathaway, Barbara) (Entered: 11/10/2005)
86 Letter from Beth S. Frank to Hon. Marilyn D. Go Regarding Defendants' November 10, 2005 letter. (Frank, Beth) (Entered: 11/14/2005)
87 Letter from Scott J. Spiegelman to Hon. Marilyn D. Go, US Magistrate Judge (EDNY) Regarding Qualified Protective Order. (Spiegelman, Scott) (Entered: 11/23/2005)
88 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Non−party Discovery Issue. (Hathaway, Barbara) (Entered: 12/15/2005)
89 Letter from Barbara K. Hathaway, Assistant Attorney General, NYS Office of the Attorney General to Hon. Marilyn D. Go, Magistrate Judge, US District Court (EDNY) Regarding Discovery Issues. (Hathaway, Barbara) (Entered: 12/28/2005)
ORDER endorsed on 89 Letter. The discovery dispute concerning HRA raised in 84 Letter will be discussed at the next scheduled conference on Jan. 6, 2006. Counsel for defendatns is directed to notify counsel for HRA. An extension of the discovery deadline and remaining discovery disputes will also be discussed. Ordered by Judge Marilyn D. Go on 12/28/05. (Go, Marilyn) (Entered: 12/28/2005)
90 Letter to The Honorable Marilyn D. Go in reponse to defendants' January 4,2006 letter by Disability Advocates, Inc.. (Raish, Anne) (Entered: 01/05/2006)
91 Letter re Request for Subpoenas by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 01/05/2006)
Minute Entry for status conference held before Marilyn D. Go on 1/6/2006. Appearances by Anne Raish, Beth Frank, Barbara Hathaway, Scott Spiegelman, David Locke. HRA must respond to plaintiff's subpoena on a rolling basis every two weeks until 2/16/06. By 1/20/06, defendants must (1) describe New York State's "Olmstead plan" or "Olmstead planning," or the activities, programs, practices and/or all components of the existing system or procedures that provide the community−based services for persons with mental disabilities residing in adult homes, that defendants contend would constitute an "Olmstead plan" should defendants be subject to requirements for such a plan; (2) the persons having knowledge of each aspect of the "Olmstead plan" or "Olmstead planning" described whom defendants designate under Fed. R. Civ. P. 30(b)(6); (3) application for a protective order as to re−examination of any person identified in (2). Any application for a protective order must indicate whether defendants agree that any pertinent prior deposition testimony of a witness would constitute testimony under Rule 30(b)(6). Plaintiff's opposition must be filed by 1/24/06. Fact discovery is extended to 2/9/06. Next conference scheduled for Feb. 10, 2006 at 11:00 a.m.NOTICE: Effective Jan. 20, 2006, Judge Go's chambers will be in Room 1214 in the new wing of the Courthouse, her courtroom will be 11C, the telephone number for chambers will be 718−613−2550 and the fax number will be 718−613−2555. (DeVeaux, Yvonne) (Entered: 01/09/2006)
92 ORDER re 84 Letter application. As discussed at a conference on 1/6/09, the New York City Human Resources Administration must comply with two subpoenas by February 16, 2006. The ruling is without prejudice to the right of HRA to object to disclosure of specific records. Ordered by Judge Marilyn D. Go on 1/9/06. (Go, Marilyn) (Entered: 01/09/2006)
93 ORDER attached per docket entry 92. Ordered by Judge Marilyn D. Go on 1/9/06. (Go, Marilyn) (Entered: 01/09/2006)

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01/20/2006

94 Letter MOTION for Protective Order Precluding 30(b)(6) Deposition by all defendants. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Exhibit Exhibit K# 12 Exhibit Exhibit L# 13 Exhibit Exhibit M# 14 Exhibit Exhibit N)(Hathaway, Barbara) (Entered: 01/20/2006)

01/24/2006 95 RESPONSE in Opposition re 94 Letter MOTION for Protective Order Precluding 30(b)(6) Deposition filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 01/24/2006)

01/25/2006 96 Letter Reply in Support of Application for Protective Order by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 01/25/2006)

02/07/2006

Minute Entry for proceedings held before Marilyn D. Go : Discovery Hearing held on 2/6/2006. Appearances by telephone by Anne Raisch, Cliff Zucker, Barbara Hathaway. Defendants' motion for a protective order is denied. Plaintiff may depose Mr. Myers for an additional 4 hours and the other two OMH employees who have not yet been deposed. Parties should confer before the next conference re the scope of the Rule 30(b)(6) deposition. (Tape #ESR 06/05 2270−6000.) (Go, Marilyn) (Entered: 02/07/2006)

02/08/2006 97 Letter Re Discovery Request to HRA by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 02/08/2006)

02/09/2006 98 Letter To Judge Go in Advance of February 10, 2006 Court Conference by Disability Advocates, Inc.. (Raish, Anne) (Entered: 02/09/2006)

02/13/2006 104 TRANSCRIPT of Civil Cause for Conference held on February 6, 2006 before Judge Marilyn D Go. Aria Transcriptions, (718) 522−2335. (Lee, Tiffeny) (Entered: 03/21/2006)

02/14/2006

Minute Entry for status conference held before Marilyn D. Go on 2/10/2006. Appearances by counsel of record and for HRA. Defendants' motion to compel HRA to disclose records granted. Separate order to issue. Fact discovery is extended to 4/28/06 to conduct Rule 30(b)(6) depositions and complete discovery discussed on the record. Defendants must provide supplemental affidavit regarding certain issues listed in the deposition notice of Myers. Expert discovery is extended to 6/30/06 and disclosures and reports must be served as follows: plaintiff's expert reports −− 3/24/06; defendants' expert reports re affirmative defense −− 4/7/06; rebuttal expert reports 4/21/06; replies report by plaintiff's expert and defendants' expert re affirmative defense −− 5/5/06; expert depositions −− 6/30/06. Next conference scheduled for July 6, 2006 at 10:00 a.m. (by tel) (Tape #FTR 11:16 − 12:24..) (DeVeaux, Yvonne) (Entered: 02/14/2006)

02/22/2006 99 TRANSCRIPT of Proceedings for date of February 10, 2006 before Judge Marilyn D. Go. Transcript produced by transcription service. (Williams−Jackson, Sandy) (Entered: 02/23/2006)

02/28/2006 100 ORDER granting motion to compel re 97 Letter filed by George Pataki,, James Stone,, New York State Department of Health,, Antonia C. Novello,, New York State Office of Mental Health. The HRA must promptly produce the HRA 2000 applications. Ordered by Judge Marilyn D. Go on 02/28/06. (Proujansky, Josh) (Entered: 02/28/2006)

03/14/2006 101 Letter To The Honorable Marilyn D. Go From Anne Raish Regarding Discovery by Disability Advocates, Inc.. (Attachments: # 1 Exhibit A−F)(Raish, Anne) (Entered: 03/14/2006)

03/17/2006 102 Letter Dated March 17, 2006 To the Honorable Marilyn D. Go For A Two−Week Extension Of Time by Disability Advocates, Inc.. (Raish, Anne) (Entered: 03/17/2006)

03/17/2006 103 Letter Regarding Defendants' Response to Plaintiff's Letter Regarding Discovery by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 03/17/2006)

03/22/2006 105 Letter To The Honorable Marilyn D. Go Dated March 22, 2006 In Further Support Of Plaintiff's Application For An Order Requiring Defendants To Designate A Witness by Disability Advocates, Inc.. (Raish, Anne) (Entered: 03/22/2006)

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03/23/2006 106 Letter Regarding Discovery Dispute by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 03/23/2006)

03/23/2006

ORDER endorsed on 102 Letter filed by Disability Advocates, Inc. Expert discovery is extended to 6/30/06 and disclosures and reports must be served as follows: plaintiff's expert reports −− 4/7/06; defendants' initial expert reports −− 4/21/06; rebuttal expert reports −− 5/5/06; reply expert reports by −− 5/19/06; expert depositions −− 7/14/06. The next conference is adjourned to July 19, 2006 at 9:45 a.m. (by tel) Ordered by Judge Marilyn D. Go on 3/23/06. (Go, Marilyn) (Entered: 03/23/2006)

03/28/2006 107 Letter to the Honorable Marilyn D. Go from Anne Raish re: Defendants' Letter Dated March 23, 2006 by Disability Advocates, Inc.. (Raish, Anne) (Entered: 03/28/2006)

03/31/2006 108 Letter in Reply re Discovery Dispute by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 03/31/2006)

04/26/2006 109 Letter to the Hon. Marilyn D. Go regarding the Deposition of Robert Myers by Disability Advocates, Inc.. (Raish, Anne) (Entered: 04/26/2006)

04/26/2006

ORDER: a telephone conference will be held on April 28, 2006 at 12:00 p.m. to discuss outstanding discovery issues. Ordered by Judge Marilyn D. Go on 4/26/06. (Go, Marilyn) (Entered: 04/26/2006)

04/27/2006 110 NOTICE of Appearance by Alissa Belkin Bauer on behalf of Disability Advocates, Inc. (Bauer, Alissa) (Entered: 04/27/2006)

04/27/2006 111 Letter Concerning Discovery Dispute by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 04/27/2006)

04/27/2006 112 NOTICE of Appearance by Tania Claudine Brief on behalf of Disability Advocates, Inc. (Brief, Tania) (Entered: 04/27/2006)

04/27/2006 113 Letter ADDRESSED TO THE HONORABLE MARILYN D. GO, DATED APRIL 27, 2006, informing the Court of an outstanding discovery request to which the defendants have failed to respond by Disability Advocates, Inc.. (Attachments: # 1 Exhibit A−B# 2 Exhibit C−E)(Brief, Tania) (Entered: 04/27/2006)

04/27/2006 114 Letter ADDRESSED TO THE HONORABLE MARILYN D. GO, DATED APRIL 27, 2006, in response to defendants' letter concerning the list of residents contained in the "Groves Report" by Disability Advocates, Inc.. (Attachments: # 1 Exhibit A−E)(Brief, Tania) (Entered: 04/27/2006)

04/28/2006 115 Minute Entry: Tel. Discovery Hearing held on 4/28/2006 before MJ Marilyn D. Go.Appearances by Tanya Brief, Cliff Zucker, Barbara Hathaway and Amy Held. Rulings made on the record regarding various letter applications of both sides. By 5/5/06, plaintiff must serve supplemental interrogatory responses to defendants' fourth set of interrogatories and defendants' counsel must serve a letter identifying the evidence describing all the components that the State contends constitutes its Olmstead plan. Defendants will provided amended interrogatory response by 5/12/06. Fact discovery is extended to 6/28/06 solely to permit discovery by defendants on the adult home residents newly identified by plaintiff's expert. Expert discovery is extended as follows: rebuttal expert reports −− 5/19/06; reply expert reports −− 6/2/06; defendants' supplemental expert report concerning the newly identified adult home residents; expert depositions −− 7/28/06. Next conference will be held on July 31, 2006 at 2:00 p.m. (by tel). (Capobianco, Jean) (Entered: 04/28/2006)

05/01/2006 116 Letter Requesting Amendment of Minute Entry by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 05/01/2006)

05/01/2006

Email Notification Test − DO NOT REPLY (Lee, Tiffeny) (Entered: 05/01/2006)

05/01/2006

Email Notification Test − DO NOT REPLY (Lee, Tiffeny) (Entered: 05/01/2006)

05/01/2006

ORDER endorsed on 116 Letter filed by defendants. The minute entry for the 4/28/06 conference is amended to reflect that the deadline for defendants to submit supplemental expert report concerning the newly identified adult home residents is July 17, 2006.

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Ordered by Judge Marilyn D. Go on 5/1/06. (Go, Marilyn) (Entered: 05/01/2006)

05/03/2006 117 NOTICE of Appearance by Roger A. Bearden on behalf of Disability Advocates, Inc. (Bearden, Roger) (Entered: 05/03/2006)

05/03/2006 119 TRANSCRIPT of Conference held on April 28, 2006 before Judge Marilyn D. Go; Aria Transcriptions, (718) 522−2335. (Lee, Tiffeny) (Entered: 05/09/2006)

05/05/2006 118 Letter Regarding Courtesy Copy of Letter re: Omlstead Plan by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 05/05/2006)

05/09/2006 120 Letter Requesting Extension of Time for Defendants to Submit Rebuttal Expert Reports by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 05/09/2006)

05/11/2006 121 NOTICE of Appearance by Dawn Elizabeth Barker on behalf of Disability Advocates, Inc. (Barker, Dawn) (Entered: 05/11/2006)

05/11/2006 122 Letter Addressed to The HONORABLE MARILYN D. GO, dated May 11, 2006, REQUESTING THREE−DAY EXTENSION TO SUBMIT OPPOSITION TO DEFENDANTS' MAY 9, 2006 LETTER by Disability Advocates, Inc.. (Brief, Tania) (Entered: 05/11/2006)

05/11/2006

ORDER endorsed on 122 Letter filed by Disability Advocates, Inc. The three day extension to 5/17/06 to file opposition is granted. Ordered by Judge Marilyn D. Go on 5/11/06. (Go, Marilyn) (Entered: 05/11/2006)

05/15/2006 123 Letter Addressed to Barbara K. Hathaway, Esq., dated May 15, 2006, in response to defendants' May 5, 2006 letter by Disability Advocates, Inc.. (Brief, Tania) (Entered: 05/15/2006)

05/16/2006 124 Letter to the Honorable Marilyn D. Go Requesting an Additional One−day Extension to Submit Opposition to Defendants' May 9, 2006 Letter by Disability Advocates, Inc.. (Brief, Tania) (Entered: 05/16/2006)

05/16/2006 125 Letter in Reply to Plaintiff's Letter of May 15, 2006 by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 05/16/2006)

05/16/2006

ORDER endorsed on 124 Letter filed by Disability Advocates, Inc. The request for an Additional One−day Extension to Submit Opposition to Defendants' May 9, 2006 Letter is granted. Ordered by Judge Marilyn D. Go on 5/16/06. (Go, Marilyn) (Entered: 05/16/2006)

05/18/2006 126 Letter ADDRESSED TO THE HONORABLE MARILYN D. GO, dated May 18, 2006, in opposition to defendants' request for further extension of expert discovery by Disability Advocates, Inc.. (Attachments: # 1 Exhibit A−D)(Raish, Anne) (Entered: 05/18/2006)

05/19/2006 127 Letter in Reply to Plaintiff's May 18, 2006 Letter by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 05/19/2006)

05/22/2006 128 Letter in Response to Defendants' May 19, 2006 Letter by Disability Advocates, Inc.. (Brief, Tania) (Entered: 05/22/2006)

06/05/2006

Minute Entry for status conference held before Marilyn D. Go on 6/5/2006. Appearances by counsel of record. Defendants' application for an extension of time to submit expert reports is granted as follows: rebuttal expert reports of Dr. Geller and Dr. Kipper are due 9/15/06 and plaintiff's expert replies are due 10/6/06. Expert depositions must be completed by 10/31/06. Next conference scheduled for November 1, 2006 at 10:00 a.m. (Tape #FTR: 10:02:01 −− 10:45:22.) (DeVeaux, Yvonne) (Entered: 06/05/2006)

06/07/2006 129 TRANSCRIPT of Civil Conference held on June 5, 2006 before Judge Marilyn D. Go; Transcription Plus II, (516) 358−7352. (Lee, Tiffeny) (Entered: 06/08/2006)

06/15/2006 130 TRANSCRIPT of Status Conference held on June 5, 2006 before Judge Marilyn D. Go; Court Reporter: Holly Driscoll. (Lee, Tiffeny) (Entered: 06/15/2006)

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07/18/2006 131 MOTION for Extension of Time to Complete Discovery [LETTER Addressed to Judge Go, dated July 18, 2006, Requesting a brief Extension of Expert Discovery] by Disability Advocates, Inc.. (Brief, Tania) (Entered: 07/18/2006)

07/18/2006

ORDER granting 131 Motion for Extension of Time to Complete Discovery. The schedule for expert reports is extended as follows: rebuttal expert reports of Dr. Geller and Dr. Kipper are due 9/22/06 and plaintiff's expert replies are due 10/13/06. Expert depositions must be completed by 11/10/06. The next conference is adjourned to November 14, 2006 at 10:00 a.m. Ordered by JudgeMarilyn D. Go on 7/18/06. (Go, Marilyn) (Entered: 07/18/2006)

08/14/2006

ORDER terminating 94 Motion for Protective Order pursuant to rulings made at 2/6/06 and 2/10/06 conferences. Ordered by JudgeMarilyn D. Go on 08/14/06. (Proujansky, Josh) (Entered: 08/14/2006)

09/22/2006 132 Letter Requesting Extension of Time for Final Expert Reports by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 09/22/2006)

09/22/2006

ORDER endorsed on 132 Letter filed by defendants granting request for an extension. Defendants' rebuttal expert reports are due 9/26/06 and plaintiff's expert replies are due 10/17/06. Ordered by Judge Marilyn D. Go on 9/22/06. (Go, Marilyn) (Entered: 09/22/2006)

11/14/2006

Minute Entry: Stat. conf. before MJ Marilyn D. Go held on 11/14/2006. Appearances by counsel of record. Discovery is completed. Preliminary settlement discussions held. The parties should further exchange settlement positions prior to the next conference. A schedule for pre−motion submissions will be set at the next conference scheduled for Dec. 19, 2006 at 11:30 a.m.(Capobianco, Jean) (Entered: 11/14/2006)

12/13/2006 133 Letter to Judge Go Regarding Rescheduling Conference For December 19, 2006 by Disability Advocates, Inc.. (Brief, Tania) (Entered: 12/13/2006)

12/13/2006

ORDER endorsed on 133 Letter filed by Disability Advocates, Inc. The time of the conference on 12/19/06 is changed to 3:00 p.m. Ordered by Judge Marilyn D. Go on 12/13/06. (Go, Marilyn) (Entered: 12/13/2006)

12/19/2006

Minute Entry: Settlement Conference held on 12/19/2006 before MJ Marilyn D. Go. Appearances by counsel of record. Preliminary settlement discussions held. Pre−motion letters must be filed by 1/10/07. (Capobianco, Jean) (Entered: 12/19/2006)

01/10/2007 134 Letter Requesting a Pre−Motion Conference on Defendants' Proposed Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 01/10/2007)

01/10/2007 135 Letter TO JUDGE GARAUFIS REQUESTING A PRE−MOTION CONFERENCE IN WHICH WE ANTICIPATE SEEKING PERMISSION TO FILE A MOTION FOR SUMMARY JUDGEMENT by Disability Advocates, Inc. (Raish, Anne) (Entered: 01/10/2007)

02/21/2007

SCHEDULING ORDER:Pre Motion Hearing set for 3/6/2007 12:00 PM in 4D South before Judge Nicholas G. Garaufis. Parties are directed to contact Courtroom Deputy Joseph Reccoppa at 718.613.2545 to address any scheduling concerns. So Ordered by Judge Nicholas G. Garaufis on 2/21/07. (Garaufis, Nicholas) (Entered: 02/21/2007)

02/27/2007 136 Letter Requesting Adjournment by Disability Advocates, Inc. (Brief, Tania) (Entered: 02/27/2007)

03/22/2007 137 Letter withdrawing appearance and requesting to be removed from the ECF notification list by Disability Advocates, Inc. (Brief, Tania) (Entered: 03/22/2007)

03/22/2007 138 Minute Entry for proceedings held before Nicholas G. Garaufis: Pre Motion Conference held on 3/22/2007. Motion schedule set. (DiLorenzo, Krista) (Entered: 04/02/2007)

04/13/2007 139 Letter requesting an extension of the Court's page limits for memoranda of law by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 04/13/2007)

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04/19/2007 140 ORDER re 139 Letter requesting an extension of the Court's page limits for memoranda of law. Application Granted. Ordered by Judge Nicholas G. Garaufis on 4/16/2007. (c/m−ecf) (Lee, Tiffeny) (Entered: 04/19/2007)
05/30/2007 141 Letter re withdrawal of appearance of Timothy A. Clune, formerly an attorney at DAI, as co−counsel for the plaintiff by Disability Advocates, Inc. (Raish, Anne) (Entered: 05/30/2007)
08/01/2007 142 Letter Requesting an Extension of Time to File the Original Exhibits to Defendants' Motion for Summary Judgment to Redact Certain Confidential Information Therefrom by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/01/2007)
08/06/2007 143 Letter to Judge Garaufis regarding modification of the schedule for summary judgment briefing by Disability Advocates, Inc. (Attachments: # 1 [Proposed] Revised Scheduling Order) (Raish, Anne) (Entered: 08/06/2007)
08/06/2007 144 ORDER re 142 Letter Requesting an Extension of Time to File the Original Exhibits to Defendants' Motion for Summary Judgment to Redact Certain Confidential Information Therefrom. Application Granted. Ordered by Judge Nicholas G. Garaufis on 8/2/2007. (c/m−ecf) (Lee, Tiffeny) (Entered: 08/07/2007)
08/10/2007 145 Notice of MOTION for Summary Judgment by all defendants. (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 146 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Flora Bienstock in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 147 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Lewis Campbell in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 148 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Jeffrey L. Geller in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 149 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Mary Hart in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 150 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Barbara Hathaway in support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 151 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Leon Hofman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 152 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Alan Kaufman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 153 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of R. Gregory Kipper in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 154 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Christine Madan in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)

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08/10/2007 155 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of James McQuide in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 156 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Robert Myers in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 157 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Michael Newman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 158 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Joseph Reilly in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 159 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Martha Schaefer Hayes in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 160 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Keith Simons in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 161 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 162 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Jan Tacoronti in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 163 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of Jonas Waizer in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 164 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Affidavit of David Wollner in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 165 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 166 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 167 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)
08/10/2007 168 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New

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York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 169 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 170 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 171 RULE 56.1 STATEMENT re 145 Notice of MOTION for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 172 MEMORANDUM in Support re 145 Notice of MOTION for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 173 Notice of MOTION in Limine to Exclude Testimony, Reports and Opinions of Plaintiff's Expert Witnesses by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 174 MEMORANDUM in Support re 173 Notice of MOTION in Limine to Exclude Testimony, Reports and Opinions of Plaintiff's Expert Witnesses by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 175 AFFIDAVIT/AFFIRMATION re 145 Notice of MOTION for Summary Judgment Declaration of Scott Spiegelman in Support of Motion for Summary Judgment by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/10/2007)

08/10/2007 176 MOTION for Partial Summary Judgment by Disability Advocates, Inc.. (Attachments: # 1 Memorandum of Law in Support of Disability Advocates, Inc.'s Motion for Partial Summary Judgment# 2 Declaration of Anne S. Raish# 3 Affidavit of Service) (Raish, Anne) Additional attachment(s) added on 8/15/2007 (Lee, Tiffeny). Additional attachment(s) added on 8/15/2007 (Lee, Tiffeny). (Entered: 08/10/2007)

08/10/2007 177 RULE 56.1 STATEMENT by Disability Advocates, Inc.. (Raish, Anne) (Entered: 08/10/2007)

08/13/2007 178 Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc. (Attachments: # 1 REDACTED DECLARATION OF ANNE S. RAISH IN SUPPORT OF DISABILITY ADVOCATES, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT) (Raish, Anne) (Entered: 08/13/2007)

08/14/2007

ORDER re 178 Letter filed by Disability Advocates, Inc. Exhibit 2 to Docket Entry #176, the Declaration of Anne S. Raish in Support of Disability Advocates, Inc.'s Motion for Partial Summary Judgment, was inadvertently filed in unredacted form in violation of Judge Go's protective order. The Clerk of Court is directed to remove the Declaration of Anne S. Raish filed as Exhibit 2 to Docket Entry #176 and replace it with the redacted version attached to Docket Entry #178. So Ordered by Judge Nicholas G. Garaufis on 8/14/07. (Garaufis, Nicholas) (Entered: 08/14/2007)

08/21/2007 179 REVISED SCHEDULING ORDER: Motions for summary judgment due by 8/10/2007; Opposition due 10/26/2007; Reply due 11/09/2007. Oral argument is scheduled for 11/16/2007. Ordered by Judge Nicholas G. Garaufis on 8/7/2007. (Lee, Tiffeny) (Entered: 08/21/2007)

08/30/2007 181 Letter requesting an extension of the schedule for submitting reply papers by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 08/30/2007)

08/31/2007 182 AFFIDAVIT in Support re 176 MOTION for Partial Summary Judgment /Declaration of Anne S. Raish in Support of Disability Advocates, Inc.'s Motion For Partial Judgment

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VOL. I filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibits 1−3# 2 Exhibits 4−6# 3 Exhibit 7# 4 Exhibits 8−12# 5 Exhibits 13−17# 6 Exhibits 18−21# 7 Exhibits 22−26# 8 Exhibits 27−30# 9 Exhibit 31# 10 Exhibits 32−36# 11 Exhibits 37−40# 12 Exhibits 41−49) (Raish, Anne) (Entered: 08/31/2007)

08/31/2007 183 AFFIDAVIT in Support re 176 MOTION for Partial Summary Judgment Declaration of Anne S. Raish in Support of Disability Advocates, Inc.'s Motion For Partial Judgment VOL. II filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibits 50−51# 2 Exhibits 52−55# 3 Exhibit 56−A# 4 Exhibit 56−B# 5 Exhibit 56−C# 6 Exhibit 56−D# 7 Exhibit 56−E# 8 Exhibit 57−A# 9 Exhibit 57−B# 10 Exhibits 58−59# 11 Exhibits 60−61# 12 Exhibit 62−A# 13 Exhibit 62−B# 14 Exhibit 62−C) (Raish, Anne) (Entered: 08/31/2007)

09/11/2007 184 Letter to The Honorable Nicholas G. Garaufis by Disability Advocates, Inc. (Raish, Anne) (Entered: 09/11/2007)

09/13/2007 185 ENDORSED ORDER re 184 Letter requesting to file a memorandum of law of up to 85 pages in support of DAI's opposition to the defendants' motion for summary judgment by Disability Advocates, Inc.: Application GRANTED. Ordered by Judge Nicholas G. Garaufis on 9/12/2007. (Abdallah, Fida) (Entered: 09/13/2007)

09/18/2007 186 REVISED SCHEDULING ORDER: Motions for summary judgment no later than 8/10/2007; Opposition to motion no later than 10/26/2007; Reply no later than 12/10/2007; Oral argument shall be on 12/17/2007. Ordered by Judge Nicholas G. Garaufis on 9/14/2007. (Lee, Tiffeny) (Entered: 09/18/2007)

09/24/2007 187 Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc. (Raish, Anne) (Entered: 09/24/2007)

09/26/2007 188 ORDER re 187 Letter request that the Court order that the briefing schedule for Defendants' Daubert motion be governed by the Court's 9/14/2007 Revised Scheduling Order. Application Granted. So Ordered by Judge Nicholas G. Garaufis on 9/25/2007. (Lee, Tiffeny) (Entered: 09/26/2007)

10/11/2007 189 Letter MOTION for Extension of Time to File Response/Reply to Defendants' pending motions by Disability Advocates, Inc.. (Attachments: # 1 Text of Proposed Order [PROPOSED] REVISED SCHEDULING ORDER) (Zucker, Cliff) (Entered: 10/11/2007)

10/15/2007 190 Letter withdrawing defendants' motion for summary judgment filed on August 10, 2007 by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 10/15/2007)

10/15/2007 191 Letter withdrawing DAI's motion for partial summary judgment by Disability Advocates, Inc. (Raish, Anne) (Entered: 10/15/2007)

10/15/2007 192 Letter withdrawing defendants' motion to exclude testimony, reports and opinions of plaintiffs' expert witnesses filed on August 10, 2007 by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 10/15/2007)

10/15/2007 193 ORDER withdrawing 145 Motion for Summary Judgment.Ordered by JudgeNicholas G. Garaufis on 10/15/2007. (Brucella, Michelle) (Entered: 10/15/2007)

10/16/2007

Motions terminated: 176 MOTION for Partial Summary Judgment filed by Disability Advocates, Inc., and 173 Notice of MOTION in Limine to Exclude Testimony, Reports and Opinions of Plaintiff's Expert Witnesses filed by James Stone, New York State Department of Health, George Pataki, Antonia C. Novello, New York State Office of Mental Health have been withdrawn as requested, as per documents 191 and 192 . 189 Letter MOTION for Extension of Time to File Response/Reply to Defendants' pending motions filed by Disability Advocates, Inc., terminated as motions are no longer pending. Ordered by Clerk of Court on 10/16/7. (Lee, Tiffeny) (Entered: 10/16/2007)

11/08/2007 194 Letter requesting resubmission of Motion for Summary Judgment and Motion to Exclude Testimony, Reports and Opinions of Plaintiffs' Expert Witnesses, filed August 10, 2007 by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 11/08/2007)

11/08/2007 195 Letter to Robert C. Heinemann, Clerk of the Court by Disability Advocates, Inc. (Raish, Anne) (Entered: 11/08/2007)

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11/08/2007 196 Letter to Judge Garaufis by Disability Advocates, Inc. (Attachments: # 1 Exhibits) (Raish, Anne) (Entered: 11/08/2007)
11/14/2007 197 ORDER re 194 Letter requesting resubmission of Motion for Summary Judgment and Motion to Exclude Testimony, Reports and Opinions of Plaintiffs' Expert Witnesses, filed by James Stone, New York State Department of Health, George Pataki, Antonia C. Novello, New York State Office of Mental Health. Application Granted. Ordered by Judge Nicholas G. Garaufis on 11/12/2007. (Lee, Tiffeny) (Entered: 11/14/2007)
11/16/2007 198 REVISED SCHEDULING ORDER regarding motions for summary judgment. Oral argument set for 2/7/2008 @ 10:00 a.m. Ordered by Judge Nicholas G. Garaufis on 11/12/2007. (Lee, Tiffeny) (Entered: 11/16/2007)
12/03/2007 199 AFFIDAVIT in Opposition re 176 MOTION for Partial Summary Judgment (Declaration of Barbara K. Hathaway) filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 12/03/2007)
12/03/2007 200 RESPONSE in Opposition re 176 MOTION for Partial Summary Judgment (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment) filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 12/03/2007)
12/03/2007 201 RESPONSE in Opposition re 176 MOTION for Partial Summary Judgment (Defendants' Response to Plaintiff's Statement Pursuant to Local Civil Rule 56.1) filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 12/03/2007)
12/03/2007 202 RESPONSE in Opposition re 145 Notice of MOTION for Summary Judgment filed by Disability Advocates, Inc.. (Attachments: # 1 Memorandum of Law in Opposition to the Defendants' Motion for Summary Judgment pt 2) (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 203 RESPONSE in Opposition re 173 Notice of MOTION in Limine to Exclude Testimony, Reports and Opinions of Plaintiff's Expert Witnesses filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 204 RULE 56.1 STATEMENT by Disability Advocates, Inc.. (Attachments: # 1 RESPONSES TO DEFENDANT'S STATMENT PURSUANT TO LOCAL CIVIL RULE 56.1) (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 205 AFFIDAVIT/AFFIRMATION CLIFF ZUCKER by Disability Advocates, Inc. (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 206 AFFIDAVIT/AFFIRMATION LINDA ROSENBERG by Disability Advocates, Inc. (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 207 AFFIDAVIT/AFFIRMATION OF DENNIS JONES by Disability Advocates, Inc. (Attachments: # 1 Affidavit DENNIS JONES, # 2 Affidavit DENNIS JONES) (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 208 AFFIDAVIT/AFFIRMATION ELIZABETH JONES by Disability Advocates, Inc. (Attachments: # 1 Affidavit ELIZABETH JONES) (Raish, Anne) (Entered: 12/03/2007)
12/03/2007 209 AFFIDAVIT/AFFIRMATION KENNETH DUCKWORTH by Disability Advocates, Inc. (Attachments: # 1 Affidavit KENNETH DUCKWORTH PT 1−2, # 2 Affidavit KENNETH DUCKWORTH PT 3) (Raish, Anne) (Entered: 12/03/2007)
12/04/2007 210 AFFIDAVIT/AFFIRMATION OF IVOR GROVES by Disability Advocates, Inc. (Attachments: # 1 Affidavit IVOR GROVES 1−2, # 2 Affidavit IVOR GROVES 3, # 3 Affidavit IVOR GROVES 3.1) (Raish, Anne) (Entered: 12/04/2007)
12/04/2007 211 AFFIDAVIT/AFFIRMATION OF CLARENCE SUNDRAM by Disability Advocates, Inc. (Raish, Anne) (Entered: 12/04/2007)
12/04/2007 212 AFFIDAVIT/AFFIRMATION OF GEOFFREY LIEBERMAN by Disability Advocates, Inc. (Raish, Anne) (Entered: 12/04/2007)

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12/04/2007 213 AFFIDAVIT/AFFIRMATION OF JOHN GRESHAM by Disability Advocates, Inc. (Raish, Anne) (Entered: 12/04/2007)
12/04/2007 214 AFFIDAVIT in Opposition re 145 Notice of MOTION for Summary Judgment filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit 1−18, # 2 Exhibit 19−20, # 3 Exhibit 21a, # 4 Exhibit 21b, # 5 Exhibit 22, # 6 Exhibit 23a, # 7 Exhibit 23b, # 8 Exhibit 24, # 9 Exhibit 25, # 10 Exhibit 26−27, # 11 Exhibit 27b, # 12 Exhibit 28a, # 13 Exhibit 28b, # 14 Exhibit 29−37, # 15 Exhibit 32−34a, # 16 Exhibit 34b−35a, # 17 Exhibit 35b−36, # 18 Exhibit 37−38, # 19 Exhibit 39−41, # 20 Exhibit 42a, # 21 Exhibit 42b, # 22 Exhibit 43−44a, # 23 Exhibit 44b, # 24 Exhibit 45−46a, # 25 Exhibit 46b−49, # 26 Exhibit 50−51, # 27 Exhibit 52−53, # 28 Exhibit 54a, # 29 Exhibit 54b, # 30 Exhibit 54c, # 31 Exhibit 54d, # 32 Exhibit 55, # 33 Exhibit 56a, # 34 Exhibit 56b, # 35 Exhibit 57a, # 36 Exhibit 57b, # 37 Exhibit 57c, # 38 Exhibit 58−60, # 39 Exhibit 61−63, # 40 Exhibit 64−66, # 41 Exhibit 67−68, # 42 Exhibit 69a, # 43 Exhibit 69b, # 44 Exhibit 69c, # 45 Exhibit 69d, # 46 Exhibit 69e, # 47 Exhibit 70, # 48 Exhibit 71−73, # 49 Exhibit 74, # 50 Exhibit 75a, # 51 Exhibit 75b, # 52 Exhibit 76−77, # 53 Exhibit 78, # 54 Exhibit 79, # 55 Exhibit 80, # 56 Exhibit 81−83, # 57 Exhibit 84, # 58 Exhibit 85, # 59 Exhibit 86a, # 60 Exhibit 86b, # 61 Exhibit 87, # 62 Exhibit 88, # 63 Exhibit 89−90a, # 64 Exhibit 90b, # 65 Exhibit 91, # 66 Exhibit 92a, # 67 Exhibit 92b, # 68 Exhibit 92c, # 69 Exhibit 92d, # 70 Exhibit 92e, # 71 Exhibit 92f, # 72 Exhibit 93−94, # 73 Exhibit 95, # 74 Exhibit 96, # 75 Exhibit 97−102, # 76 Exhibit 103a, # 77 Exhibit 103b, # 78 Exhibit 104, # 79 Exhibit 105, # 80 Exhibit 106, # 81 Exhibit 110−119, # 82 Exhibit 120−123, # 83 Exhibit 124−125a, # 84 Exhibit 125b−127, # 85 Exhibit 128−131, # 86 Exhibit 132−137a, # 87 Exhibit 137b−139, # 88 Exhibit 140) (Raish, Anne) (Entered: 12/04/2007)
01/16/2008 215 MOTION for Leave to File Excess Pages by New York State Department of Health. (Hathaway, Barbara) (Entered: 01/16/2008)
01/22/2008 216 ORDER granting 215 Motion for Leave to File Excess Pages. So Ordered by Judge Nicholas G. Garaufis on 1/17/2008. (Lee, Tiffeny) (Entered: 01/22/2008)
01/31/2008 217 AFFIDAVIT/DECLARATION in Support re 145 Notice of MOTION for Summary Judgment of Barbara K. Hathaway filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 01/31/2008)
01/31/2008 218 MEMORANDUM in Support of Motion for Summary Judgment and to Exclude Testimony, Reports and Opinions of Plaintiff's Expert Witnesses filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 01/31/2008)
01/31/2008 219 MOTION to Strike Evidence by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 01/31/2008)
01/31/2008 220 MEMORANDUM in Support Of Motion To Strike Evidence filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 01/31/2008)
01/31/2008 221 REPLY in Support of DISABILITY ADVOCATES, INC'S MOTION FOR PARTIAL SUMMARY JUDGMENT filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 01/31/2008)
01/31/2008 222 AFFIDAVIT/DECLARATION in Support re 176 MOTION for Partial Summary Judgment by ANNE S. RAISH filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit 63, # 2 Exhibit 64−66, # 3 Exhibit 67−68) (Raish, Anne) (Entered: 01/31/2008)
01/31/2008 223 NOTICE by Disability Advocates, Inc. (DAI'S REPLY TO DEFENDANTS' RESPONSE TO DAI'S LOCAL RULE 56.1 STATEMENT) (Raish, Anne) (Entered: 01/31/2008)
02/11/2008 224 Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc. (Raish, Anne) (Entered: 02/11/2008)
02/13/2008 225 ORDER re 224 Letter re: Proposed Briefing Schedule filed by Disability Advocates, Inc. Application Granted. So Ordered by Judge Nicholas G. Garaufis on 2/12/2008. (Lee, Tiffeny) (Entered: 02/13/2008)

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02/20/2008 226 AFFIDAVIT/DECLARATION in Opposition re 219 MOTION to Strike Evidence Declaration of Anne S. Raish filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit 69a, # 2 Exhibit 69b, # 3 Exhibit 70 −74) (Raish, Anne) (Entered: 02/20/2008)

02/20/2008 227 MEMORANDUM in Opposition re 219 MOTION to Strike Evidence by Disability Advocates, Inc. (Raish, Anne) Modified description on 2/21/2008 (Lee, Tiffeny). (Entered: 02/20/2008)

02/29/2008 228 MEMORANDUM in Support Of Motion To Strike Evidence filed by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 02/29/2008)

06/13/2008 229 Letter by Disability Advocates, Inc. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2) (Raish, Anne) (Entered: 06/13/2008)

06/19/2008 230 Letter responding to Plaintiff's letter of June 13, 2008 re Joseph S. v. Hogan by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 06/19/2008)

09/25/2008

ORDER: The State Defendants' 173 Motion in Limine, 219 Motion to Strike and 145 Notice of MOTION for Summary Judgment are considered consolidated and will be ruled upon as such. Ordered by Judge Nicholas G. Garaufis on 9/25/2008. (Lee, Tiffeny) (Entered: 09/25/2008)

12/22/2008 231 MEMORANDUM AND OPINION re (173) Defendants' Motion in Limine to Exclude Experts, Testimony, Reports, and Opinions of DAI's Experts and (219) Defendants' Motion to Strike Evidence. Defendants' Motion in Limine to Exclude Experts is DENIED. Defendants' Motion to Strike Evidence is GRANTED in part and DENIED in part. The pending Motions for Summary Judgment will be addressed in a subsequent memorandum and order. So Ordered by Judge Nicholas G. Garaufis on 12/22/08. (Garaufis, Nicholas) (Entered: 12/22/2008)

02/19/2009 232 MEMORANDUM & ORDER denying Defendants' Motion for Summary Judgment 145 and Plaintiff's Motion for Partial Summary Judgment 176 . So ordered by Judge Nicholas G. Garaufis on 2/19/2009. (Garaufis, Nicholas) (Entered: 02/19/2009)

03/06/2009 233 NOTICE by Disability Advocates, Inc. of Withdrawal of Appearance (Bearden, Roger) (Entered: 03/06/2009)

03/12/2009 234 NOTICE of Appearance by Kevin M Cremin on behalf of Disability Advocates, Inc. (aty to be noticed) (Cremin, Kevin) (Entered: 03/12/2009)

03/12/2009 235 Letter re withdrawal of appearance of Lycette Nelson, formerly an attorney at MFY, as co−counsel for the plaintiff by Disability Advocates, Inc. (Cremin, Kevin) (Entered: 03/12/2009)

03/17/2009

SCHEDULING ORDER: Status Conference set for 3/25/2009 02:30 PM before Magistrate Judge Marilyn D. Go to discuss settlement and a schedule for joint pretrial order submissions. Ordered by Magistrate Judge Marilyn D. Go on 3/17/2009. (Go, Marilyn) (Entered: 03/17/2009)

03/19/2009

Minute Entry for status conference held before Judge Nicholas G. Garaufis on 3/19/2009. The final pre−trial conference will be on May 1, 2009 at 12:15 p.m. The trial will begin on May 11, 2009, at 9:30 a.m. So Ordered by Judge Nicholas G. Garaufis on March 19, 2009. (Wilensky, Julie) (Entered: 03/19/2009)

03/20/2009

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Telephone Status Conference held on 3/20/2009. Appearances by tel. by Anne Raish for plaintiff; Barbara Hathaway for defendants. The parties must submit a proposed schedule for joint PTO submissions, as well as explore settlement, prior to the next conference, which is adjourned to April 7, 2009 at 3:00 p.m. (DeVeaux, Yvonne) (Entered: 03/20/2009)

03/30/2009 236 Letter MOTION for Extension of Time to File Joint Pretrial Order Submissions by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health, Disability Advocates, Inc.. (Raish, Anne) (Entered: 03/30/2009)

03/30/2009

ORDER granting 236 Motion for Extension of Time to File. The proposed joint PTO shall be submitted by 4/27/09. Ordered by Magistrate Judge Marilyn D. Go on 3/30/2009. (Go,

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Marilyn) (Entered: 03/30/2009)

04/03/2009 237 NOTICE of Consent to Change Attorney by Charlyne M. Brumskine Peay (Brumskine Peay, Charlyne) (Entered: 04/03/2009)

04/03/2009 238 Letter to the Clerk of Court Regarding Withdrawal of Certain Attorneys by Disability Advocates, Inc. (Raish, Anne) Modified on 4/6/2009 (Abdallah, Fida). (Entered: 04/03/2009)

04/08/2009 239 Letter re Minute Order by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 04/08/2009)

04/08/2009 240 Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Scheduling and Settlement Conference held on 4/7/2009. Appearances by Cliff Zucker, Anne Raish, Sandra Shelton, Kevin Cremin, Jota Borgmann for plaintiff; Barbar Hathaway, Scott Spiegelman, Pamela O'Brien (by tel) for defendant. Settlement discussions held, but the parties are far apart. Schedule set for further pretrial disclosures and exchange of proposed joint pretrial order submissions. See attached minute order. The proposed joint PTO must be submitted by 4/29/09. Next conference scheduled for April 22, 2009 at 9:30 a.m. (by tel) (DeVeaux, Yvonne) (Entered: 04/08/2009)

04/13/2009 241 NOTICE of Appearance by Matthew Silverman on behalf of all defendants (aty to be noticed) (Silverman, Matthew) (Entered: 04/13/2009)

04/16/2009 242 NOTICE of Appearance by Sandra Lynn Sheldon on behalf of Disability Advocates, Inc. (aty to be noticed) (Sheldon, Sandra) (Entered: 04/16/2009)

04/16/2009 243 NOTICE of Appearance by Jonathan R. Bolton on behalf of Disability Advocates, Inc. (aty to be noticed) (Bolton, Jonathan) (Entered: 04/16/2009)

04/16/2009 244 NOTICE of Appearance by Francine Nicole Murray on behalf of Disability Advocates, Inc. (aty to be noticed) (Murray, Francine) (Entered: 04/16/2009)

04/21/2009 245 MOTION for Leave to Appear Pro Hac Vice for Gayle Gerson by Disability Advocates, Inc.. (Attachments: # 1 Affidavit of Gayle Gerson in Support, # 2 Certificate of Good Standing) (Sheldon, Sandra) (Entered: 04/21/2009)

04/22/2009

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go:Telephone status conference held on 4/22/2009. Appearances by Anne Raish, Cliff Zucker for plaintiff; Barbara Hathaway for defendants. Since the deposition of Mitchell Dorfman will not be held until 4/30/09, plaintiffs' time to file a motion in limine to exclude the substance of his testimony is extended to 5/4/09. However, if plaintiffs seek to have him excluded as a witness, they must file an in limine motion by the original 4/27/09 deadline set. Defendants must promptly identify the witnesses on their witness list who are not likely to testify and those who are likely to testify. (DeVeaux, Yvonne) (Entered: 04/22/2009)

04/22/2009 246 FILING FEE: $ 25.00, receipt number 365827 regarding 245 Motion for Pro Hac Vice Appearance as to Gayle S. Gershon. (Lee, Tiffeny) (Entered: 04/23/2009)

04/23/2009 247 Motion for Extension of Time to File Request for Extension of Time re Motion in limine by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) Modified on 4/24/2009 to correct event, use the appropriate motion event for similar filings in the future(Lee, Tiffeny). (Entered: 04/23/2009)

04/23/2009 248 Letter to the Honorable Nicholas G. Garaufis in Response to Defendants' April 23, 2009 Letter Request for Extension of Time re Motion in Limine by Disability Advocates, Inc. (Raish, Anne) (Entered: 04/23/2009)

04/24/2009 249 ORDER granting 247 Motion for Extension of Time to File motions in limine and other materials. Ordered by Judge Nicholas G. Garaufis on 4/24/2009. (Lee, Tiffeny) (Entered: 04/24/2009)

04/24/2009

ORDER granting 245 Motion for Leave to Appear pro hac vice. Gayle Gerson, the admitted attorney is permitted to argue or try this action in whole or in part as counsel or advocate for plaintiff, subject to payment of a $25.00 admission fee within 10 business days after receipt of this order. When paying the fee by mail or in person, the attorney must present a copy of this electronic Order to the Clerk's Office with the required fee.

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Appearance of counsel in this case will then be entered on the Court's docket and a notation of the attorney's admission pro hac vice will be made on this Court's roll of attorneys. If the attorney admitted pro hac vice is not registered for Electronic Case Filing ("ECF") with this Court, she must register for ECF or submit an application for exemption within two weeks of the date of this order. Ordered by Magistrate Judge Marilyn D. Go on 4/24/2009. (Go, Marilyn) (Entered: 04/24/2009)

04/29/2009 250 TRIAL BRIEF Statement of Elements and Summary of Facts by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 04/29/2009)

04/29/2009 251 NOTICE by Disability Advocates, Inc. / Disability Advocates, Inc.'s Statement of Requested Relief (Bolton, Jonathan) (Entered: 04/29/2009)

04/29/2009 252 MOTION in Limine to Preclude the Trial Testimony of Previously Undisclosed Witnesses by Disability Advocates, Inc.. (Sheldon, Sandra) (Entered: 04/29/2009)

04/29/2009 253 MEMORANDUM in Support re 252 MOTION in Limine to Preclude the Trial Testimony of Previously Undisclosed Witnesses filed by Disability Advocates, Inc.. (Sheldon, Sandra) (Entered: 04/29/2009)

04/29/2009 254 AFFIDAVIT/DECLARATION in Support re 252 MOTION in Limine to Preclude the Trial Testimony of Previously Undisclosed Witnesses of Francine N. Murray filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit 1−7) (Sheldon, Sandra) (Entered: 04/29/2009)

04/29/2009 255 MOTION in Limine by New York State Department of Health. (Hathaway, Barbara) (Entered: 04/29/2009)

04/29/2009 256 Notice of MOTION in Limine by New York State Department of Health. (Hathaway, Barbara) (Entered: 04/29/2009)

04/29/2009 257 BRIEF on MOTION in Limine by New York State Department of Health. (Hathaway, Barbara) Modified on 4/30/2009 to correct event(Lee, Tiffeny). (Entered: 04/29/2009)

04/29/2009 258 MOTION in Limine to Exclude from Trial Certain Issues Raised in Defendants' Summary of Claims and Defenses to be Tried by Disability Advocates, Inc.. (Sheldon, Sandra) (Entered: 04/29/2009)

04/29/2009 259 MEMORANDUM in Support re 258 MOTION in Limine to Exclude from Trial Certain Issues Raised in Defendants' Summary of Claims and Defenses to be Tried filed by Disability Advocates, Inc.. (Sheldon, Sandra) (Entered: 04/29/2009)

04/29/2009 260 Proposed Pretrial Order [Joint] by George Pataki, Antonia C. Novello, James Stone, New York State Department of Health, New York State Office of Mental Health, Disability Advocates, Inc. (Attachments: # 1 Exhibit 1−3A, # 2 Exhibit 3B−4C) (Raish, Anne) (Additional attachment(s) added on 5/6/2009: # 2 Exhibit 3B, # 3 Exhibit 4A−4C) (Lee, Tiffeny). Modified on 5/6/2009 to include redacted document (Lee, Tiffeny). (Entered: 04/29/2009)

04/29/2009 261 NOTICE by Disability Advocates, Inc. / Disability Advocates, Inc.'s Statement of the Elements of its Claims (Bolton, Jonathan) (Entered: 04/29/2009)

04/29/2009

Motions terminated, docketed incorrectly: 255 MOTION in Limine filed by New York State Department of Health is a duplicate of 256 which remains pending before the Court. Document 257 MOTION in Limine filed by New York State Department of Health is further briefing related to Document 256 . (Lee, Tiffeny) (Entered: 04/30/2009)

05/01/2009

Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Final Pretrial Conference held on 5/1/2009. Responses to the motions in limine shall be filed no later than Tuesday, May 5, 2009. The parties shall indicate which issues, if any, they withdraw from their motions in limine. In particular, the parties are directed to specify which of the proposed "issues for trial" can be addressed solely by post−trial briefing. The court will 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. The court will provide the parties with a schedule of trial dates and times closer to the start date of the trial. With advance notice, the court can accommodate the schedules of

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expert witnesses. At trial, each side may make a short opening statement. So Ordered by Judge Garaufis on May 1, 2009. (Garaufis, Nicholas) (Entered: 05/01/2009)
05/04/2009 262 ORDER. The attached document sets forth the trial schedule for May. So Ordered by Judge Nicholas G. Garaufis on 5/4/2009. (Wilensky, Julie) (Entered: 05/04/2009)
05/05/2009 263 MEMORANDUM in Opposition re 252 MOTION in Limine to Preclude the Trial Testimony of Previously Undisclosed Witnesses, 258 MOTION in Limine to Exclude from Trial Certain Issues Raised in Defendants' Summary of Claims and Defenses to be Tried filed by New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 05/05/2009)
05/05/2009 264 MEMORANDUM in Opposition re 256 Notice of MOTION in Limine filed by Disability Advocates, Inc.. (Sheldon, Sandra) (Entered: 05/05/2009)
05/05/2009 265 AFFIDAVIT/DECLARATION in Opposition re 256 Notice of MOTION in Limine filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2−5, # 3 Exhibit 6−8) (Bolton, Jonathan) (Entered: 05/05/2009)
05/06/2009 266 NOTICE of Appearance by Liad Levinson on behalf of all plaintiffs (aty to be noticed) (Levinson, Liad) (Entered: 05/06/2009)
05/06/2009 267 Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc. (Raish, Anne) (Entered: 05/06/2009)
05/08/2009 268 MEMORANDUM & ORDER. Plaintiff's Motion to exclude issues from trial 258 is GRANTED in part and DENIED in part, Defendants' Motion 256 is GRANTED in part and DENIED in part, and Plaintiff's Motion to preclude Defendants' witness 252 is DENIED. In addition, 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 by Judge Nicholas G. Garaufis on 5/8/2009. (Garaufis, Nicholas) (Entered: 05/08/2009)
05/08/2009 269 ORDER to Permit Possession and Use of Electronic Devices. Ordered by Judge Nicholas G. Garaufis on 5/08/2009. (Lee, Tiffeny) (Entered: 05/11/2009)
05/11/2009 279 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial begun on 5/11/2009. Opening statements: Witness called. Counsel for both sides present. Trial cont'd. 5/12/2009. (Court Reporter Anthony Frisolone) (Clarke, Melonie) (Entered: 06/22/2009)
05/12/2009 270 NOTICE of Appearance by Scott J. Spiegelman on behalf of all defendants (aty to be noticed) (Spiegelman, Scott) (Entered: 05/12/2009)
05/12/2009 280 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/12/2009. Witness called. Counsel present for both sides. Trial Cont'd 5/13/09. (Court Reporter Anthony Frisolone) (Clarke, Melonie) (Entered: 06/22/2009)
05/13/2009 281 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/13/2009. Witness called. Counsel present for both sides. Cont'd 5/14/09. (Court Reporter Anthony Frisolone) (Clarke, Melonie) (Entered: 06/22/2009)
05/14/2009 271 ORDER. The attached document sets forth the trial schedule for June 1−19, 2009. So Ordered by Judge Nicholas G. Garaufis on 5/14/2009. (Garaufis, Nicholas) (Entered: 05/14/2009)
05/14/2009 282 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/14/2009. Witness called. Counsel present for both sides. Cont'd 5/15/09. (Court Reporter Anthony Frisolone)(Clarke, Melonie) (Entered: 06/22/2009)
05/15/2009 272 EVIDENTIARY ORDER. SO ORDERED by Judge Nicholas G. Garaufis on 5/15/2009. (Entered: 05/15/2009)
05/15/2009 283 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/15/2009. Witness called. Counsel present for both sides. Cont'd 5/18/09. (Court Reporter Anthony Frisolone) (Clarke, Melonie) (Entered: 06/22/2009)
05/18/2009 284 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/18/2009. Witness called. Counsel present for both sides. Cont'd 5/20/09. (Court Reporter

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Lisa Schmid)(Clarke, Melonie) (Entered: 06/22/2009)

05/20/2009 285 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/20/2009. Witness called. Counsel present for both sides. Cont'd 5/21/09. (Court Reporter Lisa Schmid)(Clarke, Melonie) (Entered: 06/22/2009)

05/21/2009 286 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/21/2009. Witness called. Counsel present for both sides. Cont'd 5/26/09. (Court Reporter Lisa Schmid) (Clarke, Melonie) (Entered: 06/22/2009)

05/22/2009 273 ORDER setting forth the post−trial briefing schedule. The parties' proposed findings of fact and conclusions of law shall be filed no later than July 13, 2009. Responses shall be filed no later than July 22, 2009. The briefing schedule is predicated on the assumption that the trial will conclude on or about June 19, 2009 and is subject to change in the event that the trial concludes earlier. So Ordered by Judge Nicholas G. Garaufis on 5/22/2009. (Garaufis, Nicholas) (Entered: 05/22/2009)

05/26/2009 287 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/26/2009. Witness called. Counsel present for both sides. Cont'd 5/27/09. (Court Reporter Marie Foley) (Clarke, Melonie) (Entered: 06/22/2009)

05/27/2009 288 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/27/2009. Witness called. Counsel present for both sides. Cont'd 5/28/09. (Clarke, Melonie) (Entered: 06/22/2009)

05/28/2009 289 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/28/2009. Witness called. Counsel present for both sides. Cont'd 5/29/09. (Court Reporter Marie Foley)(Clarke, Melonie) (Entered: 06/22/2009)

05/29/2009 290 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 5/29/2009. Witness called. Counsel present for both sides. Cont'd 6/1/09. (Court Reporter Marie Foley)(Clarke, Melonie) (Entered: 06/22/2009)

06/01/2009 291 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 6/1/2009. Witness called. Counsel present for both sides. Cont'd 6/2/09. (Court Reporter Michele Nardone) (Clarke, Melonie) (Entered: 06/22/2009)

06/02/2009 292 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 6/2/2009. Witness called. Counsel present for both sides. Cont'd 6/3/09. (Court Reporter Michele Nardone)(Clarke, Melonie) (Entered: 06/22/2009)

06/03/2009 293 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 6/3/2009. Witness called. Counsel present for both sides. Cont'd 6/4/09. (Court Reporter Michelle Nardone.) (Clarke, Melonie) (Entered: 06/22/2009)

06/04/2009 294 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 6/4/2009. Witness called. Counsel present for both sides. Cont'd 6/15/09. (Court Reporter Michelle Nardone.) (Clarke, Melonie) (Entered: 06/22/2009)

06/05/2009 274 NOTICE of Appearance by Ankush Khardori on behalf of Disability Advocates, Inc. (aty to be noticed) (Khardori, Ankush) (Entered: 06/05/2009)

06/08/2009 275 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/19/09, before Judge Garaufis. Court Reporter/Transcriber G. Rudolph, Telephone number 718−613−2538. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/29/2009. Redacted Transcript Deadline set for 7/9/2009. Release of Transcript Restriction set for 9/8/2009. (Rudolph, Gene) (Entered: 06/08/2009)

06/09/2009

Minute Entry for Settlement Conference held before Magistrate Judge Marilyn D. Go on 6/8/2009. Appearances by Cliff Zuckert, Anne Raish, Andrew Gordon for plaintiff; Barbara Hathaway, Amy Held, Scott Spiegelman, Pamela O'Brien (by tel), Peter Durfee (by tel) for defendants. Settlement discussions held. Next conference scheduled for June 11, 2009 at 1:00 p.m. (by tel) (DeVeaux, Yvonne) (Entered: 06/09/2009)

06/11/2009 276 SEALED envelope containing In Camera declaration of Joseph Reilly dated 1/13/2008 placed in vault. (Clarke, Melonie) (Entered: 06/11/2009)

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06/15/2009 295 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial held on 6/15/2009. Witness called. Counsel present for both sides. Cont'd 6/16/09. (Court Reporter Shelly Silverman.) (Clarke, Melonie) (Entered: 06/22/2009)

06/16/2009

Minute Entry Telephone Settlement Conference held before Magistrate Judge Marilyn D. Go on 6/11/2009. Appearances by Cliff Zuckert, Anne Raish for plaintiff; Barbara Hathaway for defendants. Settlement discussions continued to follow trial on June 15, 2009 with defendants and June 16, 2009 with plaintiff. The parties should call or report to chambers to set the next settlement conference date (DeVeaux, Yvonne) (Entered: 06/16/2009)

06/16/2009

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Settlement Conference held on 6/15/2009. Appearances by Barbara Hathaway, Scott Spiegelman, Matthew Silverman for defendants. Settlement discussions held. (DeVeaux, Yvonne) (Entered: 06/16/2009)

06/16/2009 296 Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Bench Trial completed on 6/16/2009. Witness called. Counsel present for both sides. Trial concludes. (Court Reporter Shelly Silverman.) (Clarke, Melonie) (Entered: 06/22/2009)

06/17/2009 277 ORDER. The court directs the parties to compile a complete set of exhibits admitted into evidence, listed and copied in the order that the exhibits were admitted during trial. By July 13, 2009, Plaintiff shall file one copy of this joint submission on ECF, redacted pursuant to Judge Go's protective order dated May 19, 2004. For the redacted exhibits, Plaintiff shall also file unredacted versions under seal with the Clerk's office. In addition, Plaintiff is directed to provide an unredacted courtesy copy of the joint submission to chambers. So Ordered by Judge Nicholas G. Garaufis on 6/17/2009. (Garaufis, Nicholas) (Entered: 06/17/2009)

06/18/2009 278 Sealed letter dated 12/3/07 re Declarations of Adult Home Residents. (Clarke, Melonie) (Entered: 06/18/2009)

06/23/2009

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Telephone Settlement Conference held on 6/22/2009. Appearances by telephone by Anne Raish, Cliff Zucker, Barbara Hathaway. Next settlement conference to be held on June 26, 2009 at 9:00 a.m. (by tel) (DeVeaux, Yvonne) (Entered: 06/23/2009)

06/26/2009

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Telephone Settlement Conference held on 6/26/2009. Appearances by Anne Raish, Cliff Zuckert for plaintiff; Barbara Hathaway for defendants. Settlement conference continued to July 2, 2009 at 3:30 p.m. (by tel) (DeVeaux, Yvonne) (Entered: 06/26/2009)

06/26/2009 297 AFFIDAVIT/AFFIRMATION of Patricia Bott by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 06/26/2009)

06/26/2009 298 AFFIDAVIT/AFFIRMATION of Barbara K. Hathaway by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 06/26/2009)

06/26/2009 299 AFFIDAVIT/AFFIRMATION of Amy Held by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 06/26/2009)

06/26/2009 300 AFFIDAVIT/AFFIRMATION of Kevin Cotter by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 06/26/2009)

06/30/2009 301 NOTICE by Disability Advocates, Inc. /Notice of Withdrawal of Notice of Appearance (Khardori, Ankush) (Entered: 06/30/2009)

06/30/2009 302 Letter dated 6/26/09 by defense counsel re: four affidavits electronically filed, doc.#297−300. (Clarke, Melonie) (Entered: 06/30/2009)

07/02/2009 303 Letter Dated 7/2/09 Re: Response to 6/26/09 Letter by Disability Advocates, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Raish, Anne) (Entered: 07/02/2009)

07/06/2009

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go.Telephone Settlement Conference held on 7/2/2009. Appearances by Anne Raish and Clifford Zuckert for plaintiff; Barbara Hathaway for defendants. Settlement discussions are at an impasse. (DeVeaux, Yvonne) (Entered: 07/06/2009)

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07/10/2009 304 Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc. (Attachments: # 1 Exhibit Index, # 2 Exhibit Cross−Reference List of Exhibits, # 3 Exhibit P−316, # 4 Exhibit S−62, # 5 Exhibit S−76, # 6 Exhibit S−34, # 7 Exhibit S−151, # 8 Exhibit S−154, # 9 Exhibit S−157, # 10 Exhibit S−158, # 11 Exhibit S−159, # 12 Exhibit S−160, # 13 Exhibit S−161, # 14 Exhibit S−165, # 15 Exhibit S−166, # 16 Exhibit P−372, # 17 Exhibit S−97, # 18 Exhibit S−98, # 19 Exhibit P−525, # 20 Exhibit P−526, # 21 Exhibit P−527, # 22 Exhibit S−141, # 23 Exhibit P−126 Part 1, # 24 Exhibit P−126 Part 2, # 25 Exhibit P−126 Part 3, # 26 Exhibit P−126 Part 4, # 27 Exhibit P−130, # 28 Exhibit P−128, # 29 Exhibit D−349, # 30 Exhibit P−166, # 31 Exhibit P−385, # 32 Exhibit P−386, # 33 Exhibit S−33, # 34 Exhibit S−5 Part 1, # 35 Exhibit S−5 Part 2, # 36 Exhibit S−5 Part 3, # 37 Exhibit S−5 Part 4, # 38 Exhibit S−5 Part 5, # 39 Exhibit S−5 Part 6, # 40 Exhibit D−351) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 305 EXHIBIT D−352 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−534, # 2 Exhibit P−535, # 3 Exhibit P−536, # 4 Exhibit P−538, # 5 Exhibit P−537, # 6 Exhibit S−155, # 7 Exhibit S−152, # 8 Exhibit P−296, # 9 Exhibit P−300, # 10 Exhibit P−303, # 11 Exhibit P−304, # 12 Exhibit P−305, # 13 Exhibit P−571, # 14 Exhibit P−572, # 15 Exhibit P−573, # 16 Exhibit P−357, # 17 Exhibit P−59, # 18 Exhibit S−80, # 19 Exhibit S−149, # 20 Exhibit D−249, # 21 Exhibit D−252, # 22 Exhibit D−324, # 23 Exhibit D−327, # 24 Exhibit D−330, # 25 Exhibit D−336, # 26 Exhibit D−333, # 27 Exhibit D−331, # 28 Exhibit D−247, # 29 Exhibit D−248) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 306 EXHIBIT D−254 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit S−19, # 2 Exhibit D−221, # 3 Exhibit D−222, # 4 Exhibit S−150 Part 1, # 5 Exhibit S−150 Part 2, # 6 Exhibit P−586, # 7 Exhibit P−55, # 8 Errata S−17, # 9 Exhibit P−286, # 10 Exhibit P−394 Part 1, # 11 Exhibit P−394 Part 2, # 12 Exhibit P−394 Part 3, # 13 Exhibit P−394 Part 4, # 14 Exhibit P−394 Part 5, # 15 Exhibit P−394 Part 6, # 16 Exhibit P−394 Part 7, # 17 Exhibit P−394 Part 8, # 18 Exhibit P−395 Part 1, # 19 Exhibit P−395 Part 2, # 20 Exhibit P−395 Part 3, # 21 Exhibit P−395 Part 4, # 22 Exhibit P−395 Part 5, # 23 Exhibit P−395 Part 6, # 24 Exhibit P−395 Part 7) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 307 EXHIBIT P−400 Part 1 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−400 Part 2, # 2 Exhibit P−400 Part 3, # 3 Exhibit P−400 Part 4, # 4 Exhibit P−400 Part 5, # 5 Exhibit P−400 Part 6, # 6 Exhibit P−400 Part 7) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 308 EXHIBIT P−400 Part 8 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−400 Part 9, # 2 Exhibit P−400 Part 10, # 3 Exhibit P−400 Part 11, # 4 Exhibit P−400 Part 12, # 5 Errata P−400 Part 13, # 6 Exhibit P−400 Part 14) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 309 EXHIBIT P−400 Part 15 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−400 Part 16, # 2 Exhibit P−400 Part 17, # 3 Exhibit P−400 Part 18, # 4 Exhibit P−400 Part 19) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 310 EXHIBIT P−400 Part 20 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−400 Part 21, # 2 Exhibit P−400 Part 22, # 3 Exhibit P−401 Part 1, # 4 Exhibit P−401 Part 2, # 5 Exhibit P−401 Part 3, # 6 Exhibit P−401 Part 4, # 7 Exhibit P−401 Part 5, # 8 Exhibit P−401 Part 6, # 9 Exhibit P−404 Part 1, # 10 Exhibit P−404 Part 2, # 11 Exhibit P−404 Part 3, # 12 Exhibit P−404 Part 4, # 13 Exhibit P−404 Part 5, # 14 Exhibit P−405 Part 1, # 15 Exhibit P−405 Part 2, # 16 Exhibit P−405 Part 3, # 17 Exhibit P−405 Part 4, # 18 Exhibit P−405 Part 5, # 19 Exhibit P−405 Part 6, # 20 Exhibit P−405 Part 7, # 21 Exhibit P−405 Part 8) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 311 EXHIBIT P−406 Part 1 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−406 Part 2, # 2 Exhibit P−406 Part 3, # 3 Exhibit P−406 Part 4, # 4 Exhibit P−406 Part 5, # 5 Exhibit P−406 Part 6, # 6 Exhibit P−408 Part 1, # 7 Exhibit P−408 Part 2, # 8 Exhibit P−408 Part 3, # 9 Exhibit P−409 Part 1, # 10 Exhibit P−409 Part 2, # 11 Exhibit P−409 Part 3, # 12 Exhibit P−409 Part 4, # 13 Exhibit P−409 Part 5, # 14 Exhibit P−439 Part 1, # 15 Exhibit P−439 Part 2, # 16 Exhibit P−440 Part 1, # 17 Exhibit P−440 Part 2, # 18 Exhibit P−441 Part 1, # 19 Exhibit P−441 Part 2, # 20 Exhibit P−442 Part 1, # 21 Exhibit P−442 Part 2) (Raish, Anne) (Entered: 07/10/2009)

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07/10/2009 312 EXHIBIT P−445 Part 1 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−445 Part 2, # 2 Exhibit P−530, # 3 Exhibit P−531, # 4 Exhibit P−532, # 5 Exhibit P−354, # 6 Exhibit P−355, # 7 Exhibit P−356, # 8 Exhibit P−358, # 9 Exhibit P−359, # 10 Exhibit P−360, # 11 Exhibit P−361, # 12 Exhibit P−362, # 13 Exhibit P−363, # 14 Exhibit P−364, # 15 Exhibit P−365, # 16 Exhibit P−149, # 17 Exhibit P−589 Part 1, # 18 Exhibit P−589 Part 2, # 19 Exhibit P−589 Part 3, # 20 Exhibit P−589 Part 4, # 21 Exhibit P−589 Part 5, # 22 Exhibit P−589 Part 6, # 23 Exhibit S−40, # 24 Exhibit S−70, # 25 Exhibit S−28, # 26 Exhibit S−61, # 27 Exhibit S−59, # 28 Exhibit S−60, # 29 Exhibit P−590) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 313 EXHIBIT P−583 Part 1 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−583 Part 2, # 2 Exhibit P−583 Part 3, # 3 Exhibit P−540, # 4 Exhibit P−541, # 5 Exhibit P−542, # 6 Exhibit P−543, # 7 Exhibit P−544, # 8 Exhibit P−545, # 9 Exhibit P−546, # 10 Exhibit P−568, # 11 Exhibit P−569, # 12 Exhibit P−553, # 13 Exhibit P−555 Part 1, # 14 Exhibit P−555 Part 2, # 15 Exhibit P−555 Part 3, # 16 Exhibit P−564 Part 1, # 17 Exhibit P−564 Part 2, # 18 Exhibit P−564 Part 3, # 19 Exhibit P−564 Part 4, # 20 Exhibit P−566 Part 1, # 21 Exhibit P−566 Part 2, # 22 Exhibit P−552 Part 1, # 23 Exhibit P−552 Part 2, # 24 Exhibit P−142 Part 1, # 25 Exhibit P−142 Part 2, # 26 Exhibit P−142 Part 3, # 27 Exhibit P−142 Part 4, # 28 Exhibit P−170, # 29 Exhibit P−228, # 30 Exhibit P−229) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 314 EXHIBIT P−62 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit P−68, # 2 Exhibit P−116, # 3 Exhibit P−187, # 4 Exhibit P−283, # 5 Exhibit P−284, # 6 Exhibit S−103 Part 1, # 7 Exhibit S−103 Part 2, # 8 Exhibit S−103 Part 3, # 9 Exhibit P−8 Part 1, # 10 Exhibit P−8 Part 2, # 11 Exhibit P−93, # 12 Exhibit P−226 Part 1, # 13 Exhibit P−226 Part 2, # 14 Exhibit P−94, # 15 Exhibit P−591, # 16 Exhibit S−103, # 17 Exhibit S−133, # 18 Exhibit D−360, # 19 Exhibit S−31, # 20 Exhibit S−35, # 21 Exhibit D−107 Part 1, # 22 Exhibit D−107 Part 2, # 23 Exhibit S−12 Part 1, # 24 Exhibit S−12 Part 2, # 25 Exhibit S−16 Part 1, # 26 Exhibit S−16 Part 2, # 27 Exhibit S−32) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 315 EXHIBIT D−64 Part 1 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit D−64 Part 2, # 2 Exhibit D−65, # 3 Exhibit S−18, # 4 Exhibit S−145, # 5 Exhibit S−147, # 6 Exhibit P−293, # 7 Exhibit D−359, # 8 Exhibit S−1, # 9 Exhibit D−1, # 10 Exhibit D−2, # 11 Exhibit D−3, # 12 Exhibit D−10, # 13 Exhibit D−11, # 14 Exhibit D−12, # 15 Exhibit S−2, # 16 Exhibit D−129 Part 1, # 17 Exhibit D−129 Part 2, # 18 Exhibit D−129 Part 3, # 19 Exhibit D−129 Part 4, # 20 Exhibit D−129 Part 5, # 21 Exhibit D−128, # 22 Exhibit D−130, # 23 Exhibit D−131, # 24 Exhibit D−133, # 25 Exhibit D−132, # 26 Exhibit D−136 Part 1, # 27 Exhibit D−136 Part 2, # 28 Exhibit D−139, # 29 Exhibit D−135, # 30 Exhibit D−138, # 31 Exhibit S−49, # 32 Exhibit S−50 Part 1, # 33 Exhibit S−50 Part 2, # 34 Exhibit P−390, # 35 Exhibit D−361, # 36 Exhibit D−362, # 37 Exhibit D−363, # 38 Exhibit D−364, # 39 Exhibit D−365, # 40 Exhibit D−366, # 41 Exhibit D−367, # 42 Exhibit D−369, # 43 Exhibit D−370, # 44 Exhibit D−371, # 45 Exhibit D−372, # 46 Exhibit D−373, # 47 Exhibit D−374, # 48 Exhibit P−640, # 49 Exhibit P−634, # 50 Exhibit P−644, # 51 Exhibit p−649, # 52 Exhibit P−646, # 53 Exhibit P−653, # 54 Exhibit P−645, # 55 Exhibit P−647, # 56 Exhibit D−271, # 57 Exhibit D−384, # 58 Exhibit D−350, # 59 Exhibit D−98, # 60 Exhibit S−93 Part 1, # 61 Exhibit S−93 Part 2, # 62 Exhibit D−381, # 63 Exhibit D−376, # 64 Exhibit S−29, # 65 Exhibit D−347) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 316 EXHIBIT D−190 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit D−259, # 2 Exhibit S−27, # 3 Exhibit S−11, # 4 Exhibit S−101, # 5 Exhibit P−673, # 6 Exhibit P−674, # 7 Exhibit D−389, # 8 Exhibit S−52 Part 1, # 9 Exhibit S−52 Part 2, # 10 Exhibit S−52 Part 3, # 11 Exhibit S−52 Part 4, # 12 Exhibit S−53, # 13 Exhibit S−71 Part 1, # 14 Exhibit S−71 Part 2, # 15 Exhibit S−71 Part 3, # 16 Exhibit S−71 Part 4, # 17 Exhibit D−387, # 18 Exhibit S−57 Part 1, # 19 Exhibit S−57 Part 2, # 20 Exhibit S−58, # 21 Exhibit D−162, # 22 Exhibit D−386, # 23 Exhibit D−383, # 24 Exhibit S−146, # 25 Exhibit D−90, # 26 Exhibit D−193, # 27 Exhibit D−272, # 28 Exhibit P−706 Part 1, # 29 Exhibit P−706 Part 2, # 30 Exhibit S−55, # 31 Exhibit S−144, # 32 Exhibit D−395, # 33 Exhibit D−397, # 34 Exhibit S−30, # 35 Exhibit D−398, # 36 Exhibit D−385, # 37 Exhibit P−63, # 38 Exhibit P−724, # 39 Exhibit P−725, # 40 Exhibit S−54, # 41 Exhibit D−404, # 42 Exhibit D−405, # 43 Exhibit D−415, # 44 Exhibit D−402, # 45 Exhibit D−15) (Raish, Anne) (Entered: 07/10/2009)

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07/10/2009 317 EXHIBIT D−28 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit D−29, # 2 Exhibit D−34, # 3 Exhibit D−20, # 4 Exhibit D−51, # 5 Exhibit D−49, # 6 Exhibit D−50, # 7 Exhibit D−57 Part 1, # 8 Exhibit D−57 Part 2, # 9 Exhibit D−59, # 10 Exhibit D−23, # 11 Exhibit P−743, # 12 Exhibit P−744, # 13 Exhibit S−156 Part 1, # 14 Exhibit S−156 Part 2, # 15 Exhibit D−391 Part 1, # 16 Exhibit D−391 Part 2, # 17 Exhibit D−391 Part 3, # 18 Exhibit D−392, # 19 Exhibit D−393, # 20 Exhibit S−6 Part 1, # 21 Exhibit S−6 Part 2, # 22 Exhibit S−6 Part 3, # 23 Exhibit S−6 Part 4, # 24 Exhibit S−8 Part 1, # 25 Exhibit S−8 Part 2, # 26 Exhibit S−8 Part 3, # 27 Exhibit S−23, # 28 Exhibit S−38, # 29 Exhibit S−39 Part 1, # 30 Exhibit S−39 Part 2, # 31 Exhibit S−69 Part 1, # 32 Exhibit S−69 Part 2, # 33 Exhibit S−75) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 318 EXHIBIT S−77 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit S−81, # 2 Exhibit S−88 Part 1, # 3 Exhibit S−88 Part 2, # 4 Exhibit D−277, # 5 Exhibit D−278, # 6 Exhibit D−279, # 7 Exhibit D−280, # 8 Exhibit D−281, # 9 Exhibit D−399 Part 1, # 10 Exhibit D−399 Part 2, # 11 Exhibit D−399 Part 3, # 12 Exhibit D−399 Part 4, # 13 Exhibit D−394 Part 1, # 14 Exhibit D−394 Part 2, # 15 Exhibit D−394 Part 3, # 16 Exhibit D−394 Part 4, # 17 Exhibit D−227, # 18 Exhibit D−417, # 19 Exhibit S−72, # 20 Exhibit D−418, # 21 Exhibit D−423, # 22 Exhibit D−424, # 23 Exhibit D−167, # 24 Exhibit D−182, # 25 Exhibit S−25, # 26 Exhibit S−26, # 27 Exhibit D−348, # 28 Exhibit D−441, # 29 Exhibit D−434) (Raish, Anne) (Entered: 07/10/2009)
07/10/2009 340 Sealed Document (Box) placed in vault. (Lee, Tiffeny) (Entered: 08/27/2009)
07/11/2009 319 EXHIBIT D−433 Part 1 by Disability Advocates, Inc.. Related document: 304 Letter,,,, filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit D−433 Part 2, # 2 Exhibit D−442, # 3 Exhibit D−439, # 4 Exhibit D−420, # 5 Exhibit D−421, # 6 Exhibit D−422, # 7 Exhibit D−431, # 8 Exhibit D−440 Part 1, # 9 Exhibit D−440 Part 2, # 10 Exhibit D−440 Part 3, # 11 Exhibit D−440 Part 4, # 12 Exhibit S−148, # 13 Exhibit P−771, # 14 Exhibit P−771A Part 1, # 15 Exhibit P−771A Part 2, # 16 Exhibit P−771A Part 3, # 17 Exhibit P−771A Part 4, # 18 Exhibit P−771A Part 5, # 19 Exhibit P−771A Part 6, # 20 Exhibit P−771A Part 7, # 21 Exhibit P−771A Part 8, # 22 Exhibit P−264, # 23 Exhibit P−630, # 24 Exhibit P−753, # 25 Exhibit P−753A Part 1, # 26 Exhibit P−753A Part 2, # 27 Exhibit P−753A Part 3, # 28 Exhibit P−753A Part 4, # 29 Exhibit P−753A Part 5, # 30 Exhibit P−753A Part 6, # 31 Exhibit P−753A Part 7, # 32 Exhibit P−753A Part 8, # 33 Exhibit P−753A Part 9, # 34 Exhibit P−753A Part 10, # 35 Exhibit P−263, # 36 Exhibit P−768, # 37 Exhibit P−719, # 38 Exhibit P−247, # 39 Exhibit P−245, # 40 Exhibit P−244, # 41 Exhibit S−128, # 42 Exhibit S−127, # 43 Exhibit P−756, # 44 Exhibit P−757, # 45 Exhibit D−137, # 46 Exhibit P−722, # 47 Exhibit P−758, # 48 Exhibit P−759, # 49 Exhibit P−723, # 50 Exhibit P−748, # 51 Exhibit P−659, # 52 Exhibit P−754, # 53 Exhibit P−773, # 54 Exhibit S−87, # 55 Exhibit S−67) (Raish, Anne) (Entered: 07/11/2009)
07/13/2009 320 Proposed Findings of Fact by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 07/13/2009)
07/13/2009 321 Proposed Findings of Fact by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 07/13/2009)
07/13/2009 322 MOTION in Limine / Motion to Admit Exhibit P−774 into Evidence by Disability Advocates, Inc.. (Levinson, Liad) (Entered: 07/13/2009)
07/13/2009 323 MEMORANDUM in Support re 322 MOTION in Limine / Motion to Admit Exhibit P−774 into Evidence filed by Disability Advocates, Inc.. (Levinson, Liad) (Entered: 07/13/2009)
07/13/2009 324 AFFIDAVIT/DECLARATION in Support re 322 MOTION in Limine / Motion to Admit Exhibit P−774 into Evidence filed by Disability Advocates, Inc.. (Attachments: # 1 Exhibit A−F) (Levinson, Liad) (Entered: 07/13/2009)
07/13/2009 325 Proposed Findings of Fact by Disability Advocates, Inc. (Attachments: # 1 Cover Letter) (Raish, Anne) (Entered: 07/13/2009)
07/22/2009 326 NOTICE of Appearance by Timothy A. Clune on behalf of Disability Advocates, Inc. (notification declined or already on case) (Clune, Timothy) (Entered: 07/22/2009)

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07/22/2009 327 MEMORANDUM in Opposition re 322 MOTION in Limine / Motion to Admit Exhibit P−774 into Evidence Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Admit Evidence After Trial filed by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Hathaway, Barbara) (Entered: 07/22/2009)

07/22/2009 328 AFFIDAVIT/DECLARATION in Opposition re 322 MOTION in Limine / Motion to Admit Exhibit P−774 into Evidence filed by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Hathaway, Barbara) (Entered: 07/22/2009)

07/22/2009 329 Proposed Findings of Fact by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 07/22/2009)

07/22/2009 330 MEMORANDUM in Opposition re 320 Proposed Findings of Fact filed by Disability Advocates, Inc.. (Attachments: # 1 Cover Letter) (Raish, Anne) (Entered: 07/22/2009)

07/22/2009 331 STIPULATION by Disability Advocates, Inc. (Raish, Anne) (Entered: 07/22/2009)

07/23/2009 334 STIPULATION AND ORDER: Attorneys for the parties in the above−captioned action have reviewed and agreed upon changes to be made to the official trial transcript as directed by the Court on June 16,2009; therefore, the parties, by their undersigned attorneys, hereby stipulate that the changes reflected in the errata sheet attached as Exhibit I will be incorporated into the official trial transcript. Ordered by Judge Nicholas G. Garaufis on 7/23/2009. See order for further detail (Clarke, Melonie) (Entered: 07/28/2009)

07/28/2009 332 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−15−09, before Judge Garaufis. Court Reporter/Transcriber S.Silverman, Telephone number 718.613.2537. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/17/2009. Redacted Transcript Deadline set for 8/25/2009. Release of Transcript Restriction set for 10/23/2009. (Silverman, Shelly) (Entered: 07/28/2009)

07/28/2009 333 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−16−09, before Judge Garaufis. Court Reporter/Transcriber S.Silverman, Telephone number 718.613.2537. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/17/2009. Redacted Transcript Deadline set for 8/25/2009. Release of Transcript Restriction set for 10/23/2009. (Silverman, Shelly) (Entered: 07/28/2009)

08/11/2009 335 NOTICE of Appearance by Roger A. Bearden on behalf of Disability Advocates, Inc. (notification declined or already on case) (Bearden, Roger) (Entered: 08/11/2009)

08/12/2009

Email Notification Test − DO NOT REPLY. (Abdallah, Fida) (Entered: 08/12/2009)

08/12/2009 336 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5−26−09, before Judge Garaufis. Court Reporter/Transcriber Marie Foley, Telephone number 718−613−2596. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/31/2009. Redacted Transcript Deadline set for 9/9/2009. Release of Transcript Restriction set for 11/9/2009. (Foley, Marie) (Entered: 08/12/2009)

08/12/2009 337 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5−27−09, before Judge Garaufis. Court Reporter/Transcriber Marie Foley, Telephone number 718−613−2596. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/31/2009. Redacted Transcript Deadline set for 9/9/2009. Release of Transcript Restriction set for 11/9/2009. (Foley, Marie) (Entered: 08/12/2009)

08/12/2009 338 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5−28−09, before Judge Garaufis. Court Reporter/Transcriber Marie Foley, Telephone number 718−613−2596. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript

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Restriction. After that date it may be obtained through PACER. Redaction Request due 8/31/2009. Redacted Transcript Deadline set for 9/9/2009. Release of Transcript Restriction set for 11/9/2009. (Foley, Marie) (Entered: 08/12/2009)
08/12/2009 339 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5−29−09, before Judge Garaufis. Court Reporter/Transcriber Marie Foley, Telephone number 718−613−2596. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/31/2009. Redacted Transcript Deadline set for 9/9/2009. Release of Transcript Restriction set for 11/9/2009. (Foley, Marie) (Entered: 08/12/2009)
09/08/2009 341 MEMORANDUM AND ORDER SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW. So Ordered by Judge Nicholas G. Garaufis on 9/8/2009.(Garaufis, Nicholas) (Entered: 09/08/2009)
09/24/2009 342 NOTICE of Appearance by Roberta L. Mueller on behalf of Disability Advocates, Inc. (aty to be noticed) (Mueller, Roberta) (Entered: 09/24/2009)
09/25/2009 343 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−1−2009, before Judge Garaufis. Court Reporter/Transcriber M.Nardone, Telephone number 718−613−2601. Email address: Michele_Nardone@nyed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/13/2009. Redacted Transcript Deadline set for 10/23/2009. Release of Transcript Restriction set for 12/21/2009. (Nardone, Michele) (Entered: 09/25/2009)
09/25/2009 344 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−2−2009, before Judge Garaufis. Court Reporter/Transcriber M.Nardone, Telephone number 718−613−2601. Email address: Michele_Nardone@nyed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/13/2009. Redacted Transcript Deadline set for 10/23/2009. Release of Transcript Restriction set for 12/21/2009. (Nardone, Michele) (Entered: 09/25/2009)
09/25/2009 345 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−3−2009, before Judge Garaufis. Court Reporter/Transcriber M.Nardone, Telephone number 718−613−2601. Email address: Michele_Nardone@nyed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/13/2009. Redacted Transcript Deadline set for 10/23/2009. Release of Transcript Restriction set for 12/21/2009. (Nardone, Michele) (Entered: 09/25/2009)
09/25/2009 346 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−4−2009, before Judge Garaufis. Court Reporter/Transcriber M.Nardone, Telephone number 718−613−2601. Email address: Michele_Nardone@nyed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/13/2009. Redacted Transcript Deadline set for 10/23/2009. Release of Transcript Restriction set for 12/21/2009. (Nardone, Michele) (Entered: 09/25/2009)
10/07/2009 347 Letter dated 10/5/2009 to Judge Garaufis from Naomi Lehrer regarding the court's ruling pertaining to the violation of Americans with Disabilities Act. (Lee, Tiffeny) (Entered: 10/07/2009)
10/15/2009 348 Letter MOTION for Extension of Time to File A Proposed Remedial Plan by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Hathaway, Barbara) (Entered: 10/15/2009)
10/16/2009 349 Letter to Court by Proposed Intervenor United States of America by United States Of America (Goldberger, Michael) (Entered: 10/16/2009)

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10/20/2009 350 ORDER granting 348 Motion for Extension of Time to File A Proposed Remedial Plan. Ordered by Judge Nicholas G. Garaufis on 10/15/2009. (Abdallah, Fida) (Entered: 10/20/2009)

10/20/2009 351 Letter to Judge Garaufis by New York Coalition for Quality Assisted Living (Sherrin, Jeffrey) (Entered: 10/20/2009)

10/20/2009 352 Letter MOTION for pre motion conference by Empire State Association of Assisted Living. (Luntz, David) (Entered: 10/20/2009)

10/21/2009 353 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/18/09, before Judge Nicholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: lisaschmidccr.rmr@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/9/2009. Redacted Transcript Deadline set for 11/18/2009. Release of Transcript Restriction set for 1/18/2010. (Schmid, Lisa) (Entered: 10/21/2009)

10/21/2009 354 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/20/09, before Judge Nicholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: lisaschmidccr.rmr@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/9/2009. Redacted Transcript Deadline set for 11/18/2009. Release of Transcript Restriction set for 1/18/2010. (Schmid, Lisa) (Entered: 10/21/2009)

10/21/2009 355 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/21/09, before Judge Nicholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: lisaschmidccr.rmr@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/9/2009. Redacted Transcript Deadline set for 11/18/2009. Release of Transcript Restriction set for 1/18/2010. (Schmid, Lisa) (Entered: 10/21/2009)

10/22/2009

Minute Entry for proceedings held before Judge Nicholas G. Garaufis on 10/22/2009: Cliff Zucker for Plaintiff; Barbara Hathaway for Defendants; Amanda Maisels for proposed intervenor United States; Jeffrey Sherrin for proposed intervenor New York Coalition for Quality Assisted Living ("NYCQAL"); David Luntz for proposed intervenor Empire State Association of Assisted Living ("ESAAL"). The United States shall serve its motion to intervene no later than 10/23/2009 and any response by the parties is due no later than 11/13/2009. NYCQAL and ESAAL shall serve their respective motions to intervene no later than 11/4/2009 and any response by the parties is due no later than 11/13/2009. The parties are further directed to advise the court in writing as to the details of their plans to apprise adult home residents of the current status of this litigation and its ramifications for them. This submission should be made no later than 11/5/2009. SO ORDERED by Judge Nicholas G. Garaufis on October 22, 2009. (Court Reporter Vicki Torres−Butler.) (Johnston, Brian) (Entered: 10/22/2009)

10/23/2009 356 NOTICE by United States Of America Notice of Motion (Goldberger, Michael) (Entered: 10/23/2009)

10/23/2009 357 MEMORANDUM in Support filed by United States Of America. (Attachments: # 1 Complaint) (Goldberger, Michael) (Entered: 10/23/2009)

10/23/2009 358 Amended MOTION to Intervene WITH FULL COPY OF PROPOSED COMPLAINT IN INTERVENTION by United States Of America. (Attachments: # 1 Exhibit) (Goldberger, Michael) (Entered: 10/23/2009)

10/27/2009 359 NOTICE of Appearance by Jeffrey J. Sherrin on behalf of New York Coalition for Quality Assisted Living (aty to be noticed) (Sherrin, Jeffrey) (Entered: 10/27/2009)

11/04/2009 360 Letter MOTION for Extension of Time to File response to defendants' proposed remedial plan by Disability Advocates, Inc.. (Zucker, Cliff) (Entered: 11/04/2009)

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11/04/2009 361 MOTION to Intervene by Empire State Association of Assisted Living. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Memorandum in Support, # 4 Affidavit of Service) (Luntz, David) (Entered: 11/04/2009)

11/04/2009 362 MOTION to Intervene by New York Coalition for Quality Assisted Living. (Attachments: # 1 Affidavit Francesca Sommer with Exhibits A−B, # 2 Memorandum in Support, # 3 Proposed Answer in Intervention, # 4 Certificate of Service) (Sherrin, Jeffrey) (Entered: 11/04/2009)

11/05/2009

ORDER granting 360 Motion for Extension of Time to File. Plaintiff shall file its response to Defendants' proposed remedial plan no later than November 24, 2009. SO ORDERED by Judge Nicholas G. Garaufis on 11/5/2009. (Johnston, Brian) (Entered: 11/05/2009)

11/05/2009 363 ***This document has been filed incorrectly please disregard. (See doc # 364) Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc., Empire State Association of Assisted Living, New York Coalition for Quality Assisted Living, New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone, United States Of America (Attachments: # 1 Proposed Order, # 2 Notice Concerning the Court's September 8, 2009 Memorandum and Order) (Raish, Anne) (Entered: 11/05/2009)

11/05/2009 364 Letter to the Honorable Nicholas G. Garaufis by Disability Advocates, Inc., New York State Department of Health, New York State Office of Mental Health (Attachments: # 1 Proposed Order, # 2 Notice Concerning the Court's September 8, 2009 Memorandum and Order) (Raish, Anne) (Entered: 11/05/2009)

11/06/2009 365 Proposed Pretrial Order Proposed Remedial Plan by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 11/06/2009)

11/06/2009 366 AFFIDAVIT/AFFIRMATION re 365 Proposed Pretrial Order of Robert Myers in support of Proposed Remedial Plan by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 11/06/2009)

11/06/2009 367 AFFIDAVIT/AFFIRMATION re 365 Proposed Pretrial Order of Martha Schaeffer Hayes in suppport of Proposed Remedial Plan by New York State Department of Health, New York State Office of Mental Health (Hathaway, Barbara) (Entered: 11/06/2009)

11/06/2009 368 MEMORANDUM in Support re 365 Proposed Pretrial Order Proposed Remedial Plan filed by New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 11/06/2009)

11/10/2009 369 ORDER re 364 Letter, filed by New York State Department of Health, New York State Office of Mental Health, Disability Advocates, Inc.: Defendant, New York State Department of Health, shall provide copies of the annexed notice to each of the adult homes listed below for distribution to every resident in such adult home, See Document. Ordered by Judge Nicholas G. Garaufis on 11/6/2009. (Lee, Tiffeny) (Entered: 11/10/2009)

11/13/2009 370 Letter responding to the United States', the Empire State Association of Assisted Living, Inc.'s, and the New York Coalition for Quality Assisted Living's Motions to Intervene by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 11/13/2009)

11/13/2009 371 MEMORANDUM in Opposition re 362 MOTION to Intervene, 361 MOTION to Intervene / Disability Advocates, Inc.'s Memorandum of Law in Opposition to Adult Home Association's Motions to Intervene filed by Disability Advocates, Inc.. (Attachments: # 1 Cover Letter) (Raish, Anne) (Entered: 11/13/2009)

11/13/2009 372 AFFIDAVIT/DECLARATION in Opposition re 362 MOTION to Intervene, 361 MOTION to Intervene / Declaration of Anne S. Raish in Support of Disability Advocates, Inc.'s Memorandum of Law in Opposition to Adult Home Associations' Motions to Intervene filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 11/13/2009)

11/13/2009 373 MEMORANDUM in Support re 358 Amended MOTION to Intervene WITH FULL COPY OF PROPOSED COMPLAINT IN INTERVENTION / Disability Advocates, Inc.'s Memorandum of Law in Support of the United States' Motion to Intervene filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 11/13/2009)

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11/19/2009 374 Letter regarding United States' Motion to Intervene as Plaintiff by United States Of America (Goldberger, Michael) (Entered: 11/19/2009)
11/19/2009 375 Letter MOTION for Leave to File to Participate as Litigating Amicus by City Of New York. (Grumet, Lisa) (Entered: 11/19/2009)
11/20/2009 376 Letter concerning defendant Department of Health's compliance with the Court's Order of November 6, 2009 by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 11/20/2009)
11/20/2009 377 SCHEDULING ORDER directing the parties to submit any response to the City's request 375 no later than November 23, 2009. SO ORDERED by Judge Nicholas G. Garaufis on 11/20/2009. (Johnston, Brian) (Entered: 11/20/2009)
11/20/2009 378 REPLY in Support Reply Memorandum of Law filed by Empire State Association of Assisted Living. (Luntz, David) (Entered: 11/20/2009)
11/20/2009 379 REPLY in Support re 362 MOTION to Intervene filed by New York Coalition for Quality Assisted Living. (Attachments: # 1 Certificate of Service) (Sherrin, Jeffrey) (Entered: 11/20/2009)
11/23/2009 380 CERTIFICATE OF SERVICE by Empire State Association of Assisted Living for Reply Memorandum of Law (Luntz, David) (Entered: 11/23/2009)
11/23/2009 381 RESPONSE in Opposition re 375 Letter MOTION for Leave to File to Participate as Litigating Amicus filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 11/23/2009)
11/23/2009 382 REPLY in Support re 375 Letter MOTION for Leave to File to Participate as Litigating Amicus filed by City Of New York. (Grumet, Lisa) (Entered: 11/23/2009)
11/23/2009 383 Letter responding to the City of New York's request to participate as a litigating amicus by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 11/23/2009)
11/23/2009 384 ORDER granting 358 Motion to Intervene. SO ORDERED by Judge Nicholas G. Garaufis on 11/23/2009. (Johnston, Brian) (Entered: 11/23/2009)
11/24/2009 385 MEMORANDUM in Support of Plaintiff's Remedial Plan and in Opposition to Defendants' Remedial Plan filed by United States Of America. (Maisels, Amanda) (Entered: 11/24/2009)
11/24/2009 386 Intervenor COMPLAINT, filed by United States Of America. (Maisels, Amanda) (Entered: 11/24/2009)
11/24/2009 387 AFFIDAVIT of Service for Complaint in Intervention served on Barbara Hathaway on November 24, 2009, filed by United States Of America. (Maisels, Amanda) (Entered: 11/24/2009)
11/24/2009 388 ORDER granting in part 375 Request to Participate as Litigating Amicus. SO ORDERED by Judge Nicholas G. Garaufis on 11/24/2009. (Johnston, Brian) (Entered: 11/24/2009)
11/24/2009 389 ORDER granting amicus curiae status to the Empire State Association of Assisted Living and the New York Coalition for Quality Assisted Living pending resolution of their respective motions to intervene. SO ORDERED by Judge Nicholas G. Garaufis on 11/24/2009. (Johnston, Brian) (Entered: 11/24/2009)
11/24/2009 390 MEMORANDUM in Opposition re 365 Proposed Pretrial Order / Disability Advocates Inc.'s Memorandum of Law in Opposition to Defendants' Proposed Remedial Plan and in Support of Its Proposed Remedy filed by Disability Advocates, Inc.. (Attachments: # 1 Proposed Order, # 2 Cover Letter) (Raish, Anne) (Entered: 11/24/2009)
11/25/2009 391 Letter submitting Remedial Plan by New York Coalition for Quality Assisted Living (Attachments: # 1 Amicus Remedial Plan, # 2 Certificate of Service) (Sherrin, Jeffrey) (Entered: 11/25/2009)
11/27/2009 392 AFFIDAVIT/AFFIRMATION of Adam Karpati by City Of New York (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C) (Grumet, Lisa) (Entered: 11/27/2009)

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11/27/2009 393 Amicus Curiae APPEARANCE entered by Lisa Fleming Grumet on behalf of City Of New York (Grumet, Lisa) (Entered: 11/27/2009)

11/27/2009 394 Amicus Curiae APPEARANCE entered by David T. Luntz on behalf of Empire State Association of Assisted Living (Attachments: # 1 Certificate of Service) (Luntz, David) (Entered: 11/27/2009)

12/01/2009 395 REPLY in Support re 385 Memorandum in Support of Proposed Remedial Plan filed by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Hathaway, Barbara) (Entered: 12/01/2009)

12/04/2009 396 MEMORANDUM in Opposition Memorandum in Response to the Memoranda on Proposed Remedy by Amici Empire State Association of Assisted Living, New York Coalition for Quality Assisted Living, and the City of New York filed by United States of America. (Maisels, Amanda) (Entered: 12/04/2009)

12/04/2009 397 MEMORANDUM in Opposition re 393 Amicus Curiae Appearance, 365 Proposed Pretrial Order, 394 Amicus Curiae Appearance / Disability Advocates Inc.'s Memorandum of Law in Response to AMICI's Remedial Proposals and in Further Support of DAI's Proposed Remedy filed by Disability Advocates, Inc.. (Attachments: # 1 Cover Letter) (Raish, Anne) (Entered: 12/04/2009)

12/04/2009 398 MEMORANDUM in Opposition re 391 Letter, 392 Affidavit filed by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Spiegelman, Scott) (Entered: 12/04/2009)

12/17/2009 399 Defendants' ANSWER to Complaint in Intervention by the United States by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Hathaway, Barbara) (Entered: 12/17/2009)

12/23/2009 400 ORDER denying 361 Motion to Intervene by Empire State Association of Assisted Living and denying 362 Motion to Intervene by New York Coalition for Quality Assisted Living. SO ORDERED by Judge Nicholas G. Garaufis on 12/23/2009. (Johnston, Brian) (Entered: 12/23/2009)

12/30/2009 401 NOTICE by Disability Advocates, Inc. Notice of Withdrawal of Notice of Appearance of Sandra Sheldon (Sheldon, Sandra) (Entered: 12/30/2009)

01/20/2010 402 NOTICE OF APPEAL as to 400 Order on Motion to Intervene, by New York Coalition for Quality Assisted Living. Filing fee $ 455.00 Receipt #4653010219. Service done electronically. (McGee, Mary Ann) (Entered: 01/20/2010)

01/21/2010

Electronic Index to Record on Appeal sent to US Court of Appeals. 402 Notice of Appeal. The documents in this case are online and may be downloaded. The following are not online: 4,6−9,14−18,21−22,25−26,28,29,39,40,42,44−45,47−49,65,73,92,99,65,73,92,99,115,276, 278,340. (McGee, Mary Ann) (Entered: 01/21/2010)

01/21/2010 403 NOTICE OF APPEAL by Empire State Association of Assisted Living from Memo and Order dtd 12/23/09 Filing fee $ 455, receipt number 0207−3944942. Service done electronically. (Luntz, David) Modified on 1/21/10 (McGee, Mary Ann). Modified (Entered: 01/21/2010)

01/21/2010 404 CERTIFICATE OF SERVICE by Empire State Association of Assisted Living re Notice of Appeal (Luntz, David) (Entered: 01/21/2010)

01/21/2010

First Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 404 Certificate of Service, 403 Notice of Appeal (McGee, Mary Ann) (Entered: 01/21/2010)

03/01/2010 405 REMEDIAL ORDER AND JUDGMENT. Please see attached. Ordered by Judge Nicholas G. Garaufis on 3/1/2010. (Johnston, Brian) (Entered: 03/01/2010)

03/01/2010 406 MEMORANDUM & ORDER regarding REMEDIAL ORDER AND JUDGMENT. Please see attached. Ordered by Judge Nicholas G. Garaufis on 3/1/2010. (Johnston, Brian) (Entered: 03/01/2010)

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03/03/2010 407 NOTICE OF APPEAL as to 406 Memorandum & Opinion, 405 Order by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. Filing fee $ 455.00 Receipt #4653011907. Service done electronically. (McGee, Mary Ann) (Entered: 03/03/2010)

03/04/2010

Electronic Index to Record on Appeal sent to US Court of Appeals 407 Notice of Appeal. The documents in this case are online and may be downloaded. The following documents were not scanned: 4,6,8,9,14,16−18,21−23,25,26,28,29,39.40,44,47−49,64,65,73,92,99,115,276,278,340. (McGee, Mary Ann) (Entered: 03/04/2010)

03/04/2010 408 Letter motion to stay pending appeal of the Court's Remedial Order and Judgment filed March 1, 2010 by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 03/04/2010)

03/04/2010

ORDER: Defendants' unopposed request for a one week extension of time as to the parties' obligations under Paragraph 14 of the Remedial Order and Judgment is granted. Plaintiff and Plaintiff−Intervenor shall respond to Defendants' request for a stay of the court's Remedial Order pending appeal no later than March 8, 2010. SO ORDERED by Judge Nicholas G. Garaufis on 3/4/2010. (Johnston, Brian) (Entered: 03/04/2010)

03/05/2010 409 Letter in support of defendants' motion to stay pending appeal by New York Coalition for Quality Assisted Living (Sherrin, Jeffrey) (Entered: 03/05/2010)

03/08/2010 410 RESPONSE in Opposition re 408 MOTION to Stay Pending Appeal of the Court's Remedial Order and Judgment filed March 1, 2010 filed by Disability Advocates, Inc.. (Raish, Anne) (Entered: 03/08/2010)

03/08/2010 411 RESPONSE in Opposition re 408 MOTION to Stay filed by United States of America. (Goldberger, Michael) (Entered: 03/08/2010)

03/11/2010 412 ORDER denying 408 Motion to Stay. SO ORDERED by Judge Nicholas G. Garaufis on 3/11/2010. (Johnston, Brian) (Entered: 03/11/2010)

03/11/2010 413 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 11, 2009, before Judge Garaufis. Court Reporter/Transcriber Anthony D. Frisolone, Telephone number 718 613 2487. Email address: AFrisolone@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2010. Redacted Transcript Deadline set for 4/12/2010. Release of Transcript Restriction set for 6/9/2010. (Frisolone, Anthony) (Entered: 03/11/2010)

03/11/2010 414 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 12, 2009, before Judge Garaufis. Court Reporter/Transcriber Anthony D. Frisolone, Telephone number 7186132487. Email address: afrisolone@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2010. Redacted Transcript Deadline set for 4/12/2010. Release of Transcript Restriction set for 6/9/2010. (Frisolone, Anthony) (Entered: 03/11/2010)

03/11/2010 415 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 13, 2009, before Judge Garaufis. Court Reporter/Transcriber Anthony D. Frisolone, Telephone number 7186132487. Email address: afrisolone@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2010. Redacted Transcript Deadline set for 4/12/2010. Release of Transcript Restriction set for 6/9/2010. (Frisolone, Anthony) (Entered: 03/11/2010)

03/11/2010 416 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 14, 2009, before Judge Garaufis. Court Reporter/Transcriber Anthony D. Frisolone, Telephone number 7186132487. Email address: afrisolone@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2010. Redacted Transcript Deadline set for 4/12/2010.

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 42 of 46

Release of Transcript Restriction set for 6/9/2010. (Frisolone, Anthony) (Entered: 03/11/2010)

03/11/2010 417 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 15, 2009, before Judge Garaufis. Court Reporter/Transcriber Anthony D. Frisolone, Telephone number 7186132487. Email address: afrisolone@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/1/2010. Redacted Transcript Deadline set for 4/12/2010. Release of Transcript Restriction set for 6/9/2010. (Frisolone, Anthony) (Entered: 03/11/2010)

03/11/2010 418 AMENDED ORDER denying 408 Motion to Stay. SO ORDERED by Judge Nicholas G. Garaufis on 3/11/2010. (Johnston, Brian) (Entered: 03/11/2010)

03/15/2010 419 Letter Dated March 15, 2010 to the Honorable Nicholas G. Garaufis Regarding Briefing Schedule for Fee Application by Disability Advocates, Inc. (Raish, Anne) (Entered: 03/15/2010)

03/17/2010 420 ORDER re 419 Letter filed by Disability Advocates, Inc. Application Granted. Ordered by Judge Nicholas G. Garaufis on 3/2010. (Lee, Tiffeny) (Entered: 03/18/2010)

03/19/2010 421 MOTION for Extension of Time to File Names and Duties of Monitor by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone. (Hathaway, Barbara) (Entered: 03/19/2010)

03/22/2010

ORDER granting 421 Motion for Extension of Time. Application granted. SO ORDERED by Judge Nicholas G. Garaufis on 3/22/2010. (Johnston, Brian) (Entered: 03/22/2010)

03/24/2010 422 Letter submitting names of potential monitors by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 03/24/2010)

03/24/2010 423 MEMORANDUM in Support of Proposed Monitor Candidates and Joint Proposed Monitor Order filed by Disability Advocates, Inc.. (Attachments: # 1 Proposed Order / [Joint Proposed] Order Appointing Monitor) (Raish, Anne) (Entered: 03/24/2010)

03/24/2010 424 DECLARATION of Gayle S. Gerson in Support of Disability Advocates, Inc.'s Memorandum of Law in Support of Proposed Monitor Candidates and Proposed Monitor Order by Disability Advocates, Inc. (Gerson, Gayle) (Entered: 03/24/2010)

03/24/2010 425 Letter in Support of Plaintiff's Memorandum in Support of Proposed Monitor Candidates and Proposed Monitor Order by United States of America (Maisels, Amanda) (Entered: 03/24/2010)

03/26/2010 426 Letter attaching an Amended Joint Proposed Order Appointing Monitor by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Attachments: # 1 Proposed Order Amended Joint Proposed Order Appointing Monitor) (Spiegelman, Scott) (Entered: 03/26/2010)

03/31/2010 427 NOTICE of Appearance by Steven Marc Pesner on behalf of New York Coalition for Quality Assisted Living (aty to be noticed) (Pesner, Steven) (Entered: 03/31/2010)

03/31/2010 428 NOTICE OF APPEAL as to 405 Order by New York Coalition for Quality Assisted Living. Filing fee $ 455, receipt number 0207−4067914. (Pesner, Steven) (Entered: 03/31/2010)

03/31/2010

Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 236 Motion for Extension of Time to File, 362 Motion to Intervene, 349 Letter, 178 Letter, 374 Letter, 274 Notice of Appearance, 202 Response in Opposition to Motion, 302 Letter, 232 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, 218 Memorandum in Support, 308 Exhibit, 353 Transcript,, 119 Transcript, 414 Transcript,, 100 Order, 245 Motion for Leave to Appear Pro Hac Vice, 203 Response in Opposition to Motion, 108 Letter, 150 Affidavit, 139 Letter, 357 Memorandum in Support, 27 Letter, 368 Memorandum in Support, 316 Exhibit,,,, 376 Letter, 323 Memorandum in Support, 177 Rule 56.1 Statement, 131 Motion for Extension of Time to Complete Discovery, 12 Consent to Electronic Case Filing, 262 Order, 194

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 43 of 46
Letter, 314 Exhibit,,, 391 Letter, 187 Letter, 145 Motion for Summary Judgment, 227 Affidavit in Opposition, 163 Affidavit, 112 Notice of Appearance, 60 Letter, 344 Transcript,, 206 Affidavit, 125 Letter, 75 Letter, 332 Transcript,, 210 Affidavit, 135 Letter, 249 Order on Motion for Extension of Time to File, 216 Order on Motion for Leave to File Excess Pages, 103 Letter, 214 Affidavit in Opposition to Motion,,,,,,, 169 Affidavit, 355 Transcript,, 180 Transcript, 80 Letter, 91 Letter, 382 Reply in Support, 189 Motion for Extension of Time to File Response/Reply, 157 Affidavit, 70 Reply to Response to Motion, 240 Scheduling Conference, Settlement Conference,,,, 197 Order, 384 Order on Motion to Intervene, 204 Rule 56.1 Statement, 13 Consent to Electronic Case Filing, 46 Protective Order, 155 Affidavit, 261 Notice(Other), 401 Notice(Other), 72 Letter, 34 Letter, 413 Transcript,, 388 Order on Motion for Leave to File, 301 Notice(Other), 407 Notice of Appeal, 188 Order, 146 Affidavit, 399 Answer to Complaint, 284 Bench Trial − Held, 235 Letter, 120 Letter, 251 Notice(Other), 271 Order, 268 Order on Motion in Limine,,,,,,,, 253 Memorandum in Support, 363 Letter,, 297 Affidavit, 149 Affidavit, 293 Bench Trial − Held, 321 Proposed Findings of Fact, 231 Memorandum & Opinion,, 129 Transcript, 298 Affidavit, 181 Letter, 418 Order, 263 Memorandum in Opposition, 87 Letter, 84 Letter, 166 Affidavit, 66 Letter, 318 Exhibit,,, 132 Letter, 348 Motion for Extension of Time to File, 309 Exhibit, 409 Letter, 183 Affidavit in Support of Motion,, 257 Motion in Limine, 244 Notice of Appearance, 386 Intervenor Complaint, 250 Trial Brief, 329 Proposed Findings of Fact, 118 Letter, 74 Letter, 389 Order, 90 Letter, 330 Memorandum in Opposition, 361 Motion to Intervene, 101 Letter, 104 Transcript, 273 Order, 221 Reply in Support, 283 Bench Trial − Held, 358 Motion to Intervene, 179 Stipulation and Order, 219 Motion to Strike, 422 Letter, 327 Memorandum in Opposition, 291 Bench Trial − Held, 364 Letter, 258 Motion in Limine, 114 Letter, 24 Order, 160 Affidavit, 133 Letter, 404 Certificate of Service, 148 Affidavit, 165 Affidavit, 54 Letter, 89 Letter, 270 Notice of Appearance, 168 Affidavit, 324 Affidavit in Support of Motion, 208 Affidavit, 255 Motion in Limine, 223 Notice(Other), 226 Affidavit in Opposition to Motion, 161 Affidavit, 83 Letter, 209 Affidavit, 50 Letter, 311 Exhibit,,, 265 Affidavit in Opposition to Motion, 337 Transcript,, 286 Bench Trial − Held, 105 Letter, 394 Amicus Curiae Appearance, 335 Notice of Appearance, 300 Affidavit, 199 Affidavit in Opposition to Motion, 339 Transcript,, 381 Response in Opposition to Motion, 428 Notice of Appeal, 281 Bench Trial − Held, 93 Order, 51 Letter, 158 Affidavit, 328 Affidavit in Opposition to Motion, 319 Exhibit,,,,,, 82 Letter, 338 Transcript,, 111 Letter, 224 Letter, 354 Transcript,, 269 Order, 424 Declaration, 347 Letter, 229 Letter, 397 Memorandum in Opposition, 69 Letter, 94 Motion for Protective Order, 305 Exhibit,,, 5 Order, 56 Letter, 38 Letter, 390 Memorandum in Opposition, 359 Notice of Appearance, 342 Notice of Appearance, 230 Letter, 402 Notice of Appeal, 320 Proposed Findings of Fact, 403 Notice of Appeal, 153 Affidavit, 102 Letter, 312 Exhibit,,, 107 Letter, 417 Transcript,, 225 Order, 336 Transcript,, 296 Bench Trial − Completed, 152 Affidavit, 212 Affidavit, 427 Notice of Appearance, 333 Transcript,, 88 Letter, 151 Affidavit, 411 Response in Opposition to Motion, 367 Affidavit, 334 Stipulation and Order, 195 Letter, 370 Letter, 113 Letter, 416 Transcript,, 41 Memorandum & Opinion, 67 Motion to Compel, 184 Letter, 387 Affidavit of Service, 86 Letter, 304 Letter,,,, 294 Bench Trial − Held, 85 Letter, 176 Motion for Partial Summary Judgment, 378 Reply in Support, 331 Stipulation, 285 Bench Trial − Held, 252 Motion in Limine, 207 Affidavit, 30 Letter, 167 Affidavit, 220 Memorandum in Support, 310 Exhibit,,, 292 Bench Trial − Held, 162 Affidavit, 425 Letter, 366 Affidavit, 322 Motion in Limine, 421 Motion for Extension of Time to File, 412 Order on Motion to Stay, 233 Notice(Other), 57 Letter, 63 Letter, 241 Notice of Appearance, 182 Affidavit in Support of Motion, 406 Memorandum & Opinion, 356 Notice(Other), 352 Motion for Pre Motion Conference, 81 Motion for Extension of Time to Complete Discovery, 96 Letter, 76 Letter, 420 Order, 306 Exhibit,,, 272 Order, 243 Notice of Appearance, 53 Letter, 396 Memorandum in Opposition, 116 Letter, 393 Amicus Curiae Appearance, 2 Disclosure of Interested Parties, 164 Affidavit, 55 Letter, 380 Certificate of Service, 213 Affidavit, 345 Transcript,, 159 Affidavit, 325 Proposed Findings of Fact, 78 Letter, 123 Letter, 175 Affidavit, 392 Affidavit, 141 Letter, 68 Response in Opposition to Motion, 405 Order, 43 Order, 201 Response in Opposition to Motion, 143 Letter, 122 Letter, 172 Memorandum in Support, 375 Motion for Leave to File, 1 Complaint, 371 Memorandum in Opposition, 264 Memorandum in Opposition, 277 Order,, 33 Letter, 238 Letter, 373 Memorandum in Support, 288 Bench Trial − Held, 215 Motion for Leave to File Excess Pages, 130 Transcript, 20 Notice of Appearance, 136 Letter, 280 Bench Trial − Held, 400 Order on Motion to Intervene, 124 Letter, 211 Affidavit, 415 Transcript,, 126 Letter, 341 Memorandum & Opinion, 110 Notice of Appearance, 10 Consent to Electronic Case Filing, 31 Letter, 200 Response in Opposition to Motion, 192 Letter, 19 Answer to Complaint, 242 Notice of Appearance, 147 Affidavit, 196 Letter, 267 Letter, 59 Notice of

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 44 of 46

Appearance, 239 Letter, 186 Scheduling Order, 95 Response in Opposition to Motion, 11 Consent to Electronic Case Filing, 198 Scheduling Order, 58 Letter, 385 Memorandum in Support, 315 Exhibit,,,,,, 191 Letter, 351 Letter, 343 Transcript,, 3 Scheduling Order, 61 Letter, 36 Affidavit, 408 Motion to Stay, 156 Affidavit, 295 Bench Trial − Held, 117 Notice of Appearance, 247 Motion for Extension of Time to File, 79 Letter, 190 Letter, 134 Letter, 379 Reply in Support, 350 Order on Motion for Extension of Time to File, 121 Notice of Appearance, 144 Order, 193 Order on Motion for Summary Judgment, 248 Letter, 369 Order, 137 Letter, 185 Order, 426 Letter, 254 Affidavit in Support of Motion, 259 Memorandum in Support, 234 Notice of Appearance, 383 Letter, 289 Bench Trial − Held, 372 Affidavit in Opposition to Motion, 98 Letter, 419 Letter, 266 Notice of Appearance, 170 Affidavit, 290 Bench Trial − Held, 37 Letter, 395 Reply in Support, 205 Affidavit, 360 Motion for Extension of Time to File, 299 Affidavit, 173 Motion in Limine, 256 Motion in Limine, 174 Memorandum in Support, 237 Notice of Consent to Change Attorney, 317 Exhibit,,, 77 Notice of Appearance, 326 Notice of Appearance, 346 Transcript,, 313 Exhibit,,, 97 Letter, 127 Letter, 171 Rule 56.1 Statement, 365 Proposed Pretrial Order, 109 Letter, 62 Letter, 52 Letter, 260 Proposed Pretrial Order, 106 Letter, 246 Filing Fee Received, 32 Letter, 279 Bench Trial − Begun, 287 Bench Trial − Held, 71 Letter, 410 Response in Opposition to Motion, 142 Letter, 275 Transcript,, 217 Affidavit in Support of Motion, 140 Order, 307 Exhibit, 282 Bench Trial − Held, 128 Letter, 138 Pre Motion Conference, 154 Affidavit, 398 Memorandum in Opposition, 303 Letter, 228 Memorandum in Support (Gonzalez, Mary) (Entered: 03/31/2010)

04/05/2010 429 ORDER appointing Monitor. SO ORDERED by Judge Nicholas G. Garaufis on 4/5/2010. (Attachments: # 1 Affidavit of Martha B. Knisley) (Johnston, Brian) (Entered: 04/05/2010)

04/09/2010 430 NOTICE by Disability Advocates, Inc. Notice of Withdrawal of Notice of Appearance of Jonathan R. Bolton (Bolton, Jonathan) (Entered: 04/09/2010)

05/26/2010 431 NOTICE by Disability Advocates, Inc. / Notice of Withdrawal of Appearance of Anne Raish on Behalf of Disability Advocates, Inc. (Raish, Anne) (Entered: 05/26/2010)

06/04/2010 432 NOTICE of Appearance by Jota Lee Borgmann on behalf of Disability Advocates, Inc. (aty to be noticed) (Borgmann, Jota) (Entered: 06/04/2010)

06/24/2010 433 ORDER: See attached. SO ORDERED by Judge Nicholas G. Garaufis on 6/24/2010. (Johnston, Brian) (Entered: 06/24/2010)

07/01/2010 434 MOTION for Extension of Time to File Document Under Remedial Order by New York State Department of Health, New York State Office of Mental Health. (Hathaway, Barbara) (Entered: 07/01/2010)

07/01/2010

ORDER denying 434 Motion for Extension of Time to File. Application denied. SO ORDERED by Judge Nicholas G. Garaufis on 7/1/2010. (Johnston, Brian) (Entered: 07/01/2010)

07/08/2010 435 NOTICE by Disability Advocates, Inc. Notice of Withdrawal of Appearance of Kevin M. Cremin on Behalf of Disability Advocates, Inc. (Cremin, Kevin) (Entered: 07/08/2010)

08/03/2010 436 MOTION for Protective Order Clarification regarding its application to the United States by United States of America. (Attachments: # 1 Protective Order May 19, 2004) (Maisels, Amanda) (Entered: 08/03/2010)

08/11/2010 437 ORDER: The court directs the parties to submit any comments on the Monitor's proposed budget no later than August 18, 2010. SO ORDERED by Judge Nicholas G. Garaufis on 8/11/2010. (Attachments: #(1) Proposed Court Monitor Budget) (Johnston, Brian) (Entered: 08/11/2010)

08/16/2010

Motions terminated, docketed incorrectly: 436 MOTION for Protective Order Clarification regarding its application to the United States filed by United States of America. This is not a motion; it is a letter. (Abdallah, Fida) (Entered: 08/16/2010)

08/16/2010

Clarification of PROTECTIVE ORDER: By letter dated August 3, 2010, counsel for intervenor United States, seeks to clarification from this Court that a Protective Order filed on May 19, 2004 also extends to this intervenor. Ct. doc. 46. No opposition has been has been filed. Ordinarily, an "intervenor is treated as if the intervenor were an original party and has equal standing with the original parties," absent conditions imposed by the Court when intervention is granted. Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 1920 at 609 (2007). Judge Garaufis granted permissive intervention to the United

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 45 of 46
States to participate in proceedings concerning the appropriate remedy to be rendered by the Court. See ct. doc. 384. Given the purpose of intervention and the lack of restrictions imposed, this Court finds that the United States is entitled to access the confidential documents exchanged in this action. Accordingly, the defendants must promptly produce to the United States the documents containing confidential information and the United States shall be bound by the terms of the Protective Order (ct. doc. 46). Ordered by Magistrate Judge Marilyn D. Go on 8/16/2010. (Go, Marilyn) (Entered: 08/16/2010)
08/16/2010 438 Letter regarding Court Monitor's proposed budget by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 08/16/2010)
08/18/2010 439 Letter Regarding Court Monitor's Proposed Budget by Disability Advocates, Inc. (Gordon, Andrew) (Entered: 08/18/2010)
08/24/2010 440 ORDER re: Court Monitor Budget. Approved. So Ordered by Judge Nicholas G. Garaufis on 8/20/2010. (Lee, Tiffeny) (Entered: 08/26/2010)
09/24/2010 441 NOTICE of Appearance by Aditi Dilip Kothekar on behalf of Disability Advocates, Inc. (aty to be noticed) (Kothekar, Aditi) (Entered: 09/24/2010)
10/19/2010 442 Letter Report regarding implementation of Court Order by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 10/19/2010)
12/21/2010 443 NOTICE by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone Notice of Withdrawal (Silverman, Matthew) (Entered: 12/21/2010)
02/04/2011 445 STATUS REPORT by Court Monitor (Attachments: # 1 Exhibit A) (Greene, Donna) (Entered: 02/28/2011)
02/18/2011 444 Letter Defendants' Quarterly Report by New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, James Stone (Hathaway, Barbara) (Entered: 02/18/2011)
03/08/2011 446 Letter Withdrawing Appearance by Disability Advocates, Inc. (Bearden, Roger) (Entered: 03/08/2011)
05/31/2012 447 MANDATE of USCA as to 428 Notice of Appeal filed by New York Coalition for Quality Assisted Living, 407 Notice of Appeal, filed by James Stone, New York State Department of Health, George Pataki, Antonia C. Novello, New York State Office of Mental Health. It is Ordered that the judgment of the District Court is VACATED and the action is DISMISSED in accordance with the opinion of this Court. Issued as Mandate: 5/30/12. (Attachments: # 1 Opinion) (McGee, Mary Ann) Modified on 5/31/2012 (McGee, Mary Ann). (Entered: 05/31/2012)
03/25/2013 448 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/18/2009, before Judge Nicholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: LisaSchmidCCR.RMR@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/24/2013. (Schmid, Lisa) (Entered: 03/25/2013)
03/25/2013 449 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/20/2009, before Judge NIcholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: LisaSchmidCCR.RMR@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/24/2013. (Schmid, Lisa) (Entered: 03/25/2013)
03/25/2013 450 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/21/2009, before Judge Nicholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: LisaSchmidCCR.RMR@gmail.com. Transcript

Case: 1:03-cv-3209 As of: 06/25/2017 10:41 PM EDT 46 of 46
may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/24/2013. (Schmid, Lisa) (Entered: 03/25/2013)

 
 [Draft—10/13/10]
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, INC. and EMPIRE STATE ASSOCIATION OF ASSISTED LIVING, Movants-Appellants, and
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.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF OF THE NATIONAL DISABILITY RIGHTS NETWORK, CYNTHIA CATHLEEN CALORI, TONI TURNER, DR. NELBA CHAVEZ, CHARLES CURIE,
NATALIE REATIG AND DR. PATRICIA MORRISSEY AS AMICI CURIAE IN SUPPORT OF APPELLEE DISABILITY ADVOCATES, INC.

*Counsel of Record October 13, 2010

Antony L. Ryan* Rebecca R. Silber Alejandro H. Cruz CRAVATH, SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000
Attorneys for Amici Curiae

Corporate Disclosure Statement
Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Curiae National Disability Rights Network certifies that it does not have a parent corporation and that no publicly held corporation owns more than 10% of its stock.

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI..............................................................................................1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................4 I. THE PAIMI STATUTE WAS ENACTED TO AUTHORIZE P&A
ORGANIZATIONS TO INVESTIGATE ABUSE AND NEGLECT OF PERSONS WITH MENTAL ILLNESS AND TO PURSUE LITIGATION ON THEIR BEHALF. .............................................................4 II. INDIVIDUALS WITH MENTAL ILLNESS PROVIDE MEANINGFUL GUIDANCE TO P&A ORGANIZATIONS THROUGH PAIMI ADVISORY COUNCILS.............................................10 III. DAI HAS STANDING TO PURSUE LITIGATION ON BEHALF OF ITS INJURED CONSTITUENTS...........................................................13 A. DAI’s Constituents Have Article III Standing in Their Own
Right. ...................................................................................................13 B. Congress Has Granted P&As Representative Standing to
Vindicate the Rights of Individuals with Mental Illness.....................15 C. P&As Also Meet Hunt’s Requirements for Associational
Standing. ..............................................................................................19 D. The Overwhelming Majority of Courts Have Rightly Held That
P&As Have Standing To Sue on Behalf of Individuals with Mental Illness. .....................................................................................25 CONCLUSION ........................................................................................................31
-i-

TABLE OF AUTHORITIES

Cases

Page(s)

Advocacy Ctr. for the Elderly & Disabled v. La. Dept. of Health and Hosps., No. 10-1088, 2010 WL 3170072 (E.D. La. Aug. 9, 2010).................................29

Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358 (M.D. La. 1999)...................................................................7

Aiken v. Nixon, 236 F. Supp. 2d 211 (N.D.N.Y. 2002)................................................................27

Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 894 F. Supp. 424 (M.D. Ala. 1995), aff’d, 97 F.3d 492 (11th Cir. 1996) ............7

Allen v. Wright, 468 U.S. 737 (1984)............................................................................................16

Ariz. Ctr. for Disability Law v. Allen, 197 F.R.D. 689 (D. Ariz. 2000) ............................................................................6

Ass’n for Retarded Citizens v. Dallas County Mental Health & Retardation Ctr. Bd. of Trs., 19 F.3d 241 (5th Cir. 1994) ................................................................................28

Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) ...............................................................................24

Bernstein v. Pataki, 233 Fed. Appx. 21 (2d Cir. 2007).................................................................27, 28

Brown v. Stone, 66 F. Supp. 2d 412 (E.D.N.Y. 1999) ..................................................................27

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989)............................................................................................16

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc, 467 U.S. 837 (1984)............................................................................................10

-ii-

Page(s)
Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2d Cir. 2006) .................................................................................7
Craig v. Boren, 429 U.S. 190 (1976)............................................................................................16
Disability Rights Wisc., Inc. v. Wisc. Dep’t of Public Instruction, 463 F.3d 719 (7th Cir. 2006) ................................................................................7
Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999) ..................................................25, 26
Fin. Insts. Ret. Fund v. Office of Thrift Supervision, 964 F.2d 142 (2d Cir. 1992) ...............................................................................18
Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979)..............................................................................................18
Goldstein v. Coughlin, 83 F.R.D. 613 (W.D.N.Y. 1979) ....................................................................9, 27
Griswold v. Conn., 381 U.S. 479 (1965)............................................................................................16
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977).................................................................................... passim
Ind. Prot. & Advocacy Servs. v. Ind. Family & Social Servs. Admin., 603 F.3d 365 (7th Cir. 2010) ..............................................................................18
Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) ..........................................................23, 27
Laflamme v. New Horizons, Inc., 605 F. Supp. 2d 378 (D. Conn. 2009).................................................................27
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......................................................................................13, 15
Mo. Prot. and Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) ........................................................................29, 30
-iii-

Page(s)
Mental Disability Law Clinic, Touro Law Ctr. v. Carpinello, 189 F. Appx 5 (2d Cir. 2006) .............................................................................27
N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339 (2d Cir. 1989) .............................................................................17
Olmstead v. L.C., 527 U.S. 581 (1999)............................................................................................14
Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) .................................................................... passim
Prot. & Advocacy for Persons with Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119 (2d Cir. 2006) .................................................................................6
Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002) .................................................................................28
Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992).................................................................9, 27
Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984)............................................................................................16
State of Conn. Office of Prot. & Advocacy for Persons with Mental Illness v. State of Conn., 706 F. Supp. 2d 266 (D. Conn. 2010).................................................................27
Trautz v. Weisman, 846 F. Supp. 1160 (S.D.N.Y. 1994) ...................................................................27
UAW v. Brock, 477 U.S. 274 (1986)............................................................................................23
United Food & Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544 (1996)................................................................................19, 23, 30
United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148 (2d Cir. 1993) .............................................................................18
-iv-

Page(s) Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464 (1982)............................................................................................16 Warth v. Seldin, 422 U.S. 490 (1975)............................................................................................18
Statutes & Rules 42 U.S.C. § 6012 (1976) ............................................................................................5 42 U.S.C. § 10801....................................................................................................12 42 U.S.C. § 10802...................................................................................... 5-6, 10, 11 42 U.S.C. §10803............................................................................................. 5-6, 22 42 U.S.C. § 10804....................................................................................................10 42 U.S.C. § 10805............................................................................................ passim 42 U.S.C. § 10807....................................................................................................30 42 U.S.C. § 10827.................................................................................................. 5-6 42 U.S.C. § 15043..........................................................................................5, 6, 7, 8 42 U.S.C. § 15044....................................................................................................10 42 C.F.R. § 51.6 .........................................................................................................9 42 C.F.R. § 51.42 .................................................................................................6, 21 Fed. R. Civ. P. 17 .....................................................................................................17 Mental Hygiene Law § 45.07...................................................................................10
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Page(s) Other Authorities 62 Fed. Reg. 53,548 (Oct. 15, 1997)........................................................................10 132 Cong. Rec. H2642, May 13, 1986 ......................................................................9 H.R. Rep. No. 401, 99th Cong., 1st Sess. (1985) ................................................6, 12 S. Rep. No. 1169, 93d Cong., 2d Sess. (1974) ..........................................................5 S. Rep. No. 1297, 93d Cong., 2d Sess. (1974) ..........................................................5 S. Rep. No. 109, 99th Cong., 1st Sess. (1985).......................................................4, 5 S. Rep. No. 120, 103d Cong., 1st Sess. (1993),
reprinted in 1994 U.S.C.C.A.N. 164 .......................................................... 8-9, 27 Gary P. Gross, Protection and Advocacy System Standing–To Vindicate the
Rights of Persons with Disabilities, 22 Mental & Physical Disability L. Rep. 674 (1998).........................................25 Kelsey McCowan Heilman, The Rights of Others: Prot. and Advocacy Organizations’ Associational Standing to Sue, 157 U. Pa. L. Rev. 237 (2008) ............................................................................25 1 Laurence H. Tribe, Constitutional Law § 3-19 (3d ed. 2000) ..............................16
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INTEREST OF AMICI This brief is submitted on behalf of amici curiae the National Disability Rights Network, Cynthia Cathleen Calori, Toni Turner, Dr. Nelba Chavez, Charles Curie, Natalie Reatig and Dr. Patricia Morrissey.1 The National Disability Rights Network (“NDRN”) is the membership association of federally sanctioned protection and advocacy systems (“P&As”). In the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI” or “the Act”), Congress tasked P&As with protecting the rights of individuals with mental illness. There are P&As in all 50 States, the District of Columbia, Puerto Rico, and the territories. Through their efforts, P&As aim to prevent mistreatment of individuals and to achieve systemic reform for thousands of people. See generally Nat’l Disability Rights Network, 2008 Annual Report: Protection and Advocacy for Individuals with Mental Illness (July 2009), available at http://www.ndrn.org/pub/AnnRpt/2008/2008PAIMIAnnualReport.pdf. It is critical to the mission of P&As to pursue legal remedies on behalf of individuals with mental illness. Cynthia Cathleen Calori has served as the Chairwoman of New York’s PAIMI Advisory Council since 2007. Toni Turner served as
1 The parties have consented to this filing. Counsel to the parties did not author this brief in whole or in part and did not contribute money to fund the preparation or submission of this brief.

Chairwoman of the PAIMI Advisory Council from 1998 to 2006. PAIMI requires each P&A to have an advisory council to “advise the system on policies and priorities to be carried out in protecting and advocating the rights of individuals with mental illness”. By law, at least sixty percent of advisory council members, including the chairperson, must be individuals who have received or are receiving mental health services, or who have a family member who receives such services. Additional members include professionals in the mental health services fields and individuals knowledgeable about mental illnesses. The New York PAIMI Advisory Council advises New York’s P&As, including DAI.
Dr. Nelba Chavez is the Senior Executive Advisor to Moving Organizations Ahead, a consulting company for non-profit organizations. From 1994 until 2001, she was Administrator of the Substance Abuse and Mental Health Services Administration (“SAMHSA”) of the federal Department of Health and Human Services (“HHS”), the agency that administers federal funding for the P&A program. Charles Curie is founder of the Curie Group, LLC, a healthcare consulting company specializing in mental health services. Mr. Curie served as Administrator of SAMHSA from 2001 to 2006. Natalie Reatig, who is currently retired, served as Director of the PAIMI Program at SAMHSA from 1985 to 1996. Dr. Patricia Morrissey is CEO of Employment Diversity Network, an organization aimed at securing jobs for people with disabilities in the Washington, D.C. area.
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Dr. Morrissey was Commissioner of the Administration on Developmental Disabilities from 2001 until 2009 and assisted in drafting the Developmental Disabilities Act Amendments of 1996 and 2000.
SUMMARY OF ARGUMENT Protection and advocacy (“P&A”) organizations provide an array of vital services to individuals with mental illness. From their experiences in varied capacities with DAI and other P&A organizations around the country, Amici know that this lawsuit enforcing the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, providing the opportunity for residents of adult homes in New York to live in a more integrated setting, is one of many successful results that P&A organizations achieve for persons with mental illness. Along with other services P&As provide, P&A litigation is an important means to protect the rights of persons with mental illness. Amici submit this brief in support of DAI because they believe that standing for P&A organizations to bring suit is critical to ensuring that there are effective remedies for State violations of the ADA and other rights of individuals with mental illness. This brief demonstrates first that Congress has authorized P&As to bring litigation in a representative capacity to ensure the protection of individuals with mental illness. This authorization is made clear in the language of the statute
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and the accompanying legislative history, and is confirmed by subsequently enacted HHS regulations. See infra Part I.
Through their investigative work, P&As such as DAI are intimately familiar with conditions in institutions such as the adult homes at issue here. Notably, P&As are guided by advisory councils, which ensure that P&As are responsive to their constituents’ interests. See infra Part II.
Accordingly, Amici respectfully submit that DAI has standing in this case based on the Article III injury in fact suffered by DAI’s constituents. Congress has conferred representative standing on DAI by statute and, based on DAI’s responsiveness to the needs of individuals with mental illness, DAI also meets the Supreme Court’s test in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), for associational standing for nonmembership organizations. See infra Part III.
ARGUMENT I. THE PAIMI STATUTE WAS ENACTED TO AUTHORIZE P&A
ORGANIZATIONS TO INVESTIGATE ABUSE AND NEGLECT OF PERSONS WITH MENTAL ILLNESS AND TO PURSUE LITIGATION ON THEIR BEHALF.
Congress passed the PAIMI Act in response to congressional findings that individuals with mental illness receiving care and treatment were too often being abused and neglected. See S. Rep. No. 109, 99th Cong., 1st Sess. 2-3 (1985). Congress determined that “abusive” conditions created “a need for an
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advocacy system independent of any service provider”. Id. at 2. The “limited authority of advocates” and the fact that existing protective systems were “not . . . sufficient for protecting the mentally ill” required legislation to “affirm and enforce the rights of the mentally ill”. Id. at 2-3.
PAIMI grew out of legislation concerning individuals with developmental disabilities. In 1975, Congress established the first of several programs providing states funding to create P&A systems. The law was enacted in response to reports of severe abuse and neglect at the Willowbrook School for the Mentally Retarded, in New York. See Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. § 6012 (1976); S. Rep. No. 1297, 93d Cong., 2d Sess. 59 (1974). The DD Act had two goals: to improve care in residential facilities and to minimize inappropriate and involuntary confinement in such facilities. See S. Rep. No. 1169, 93d Cong., 2d Sess. 1-2 (1974). Under the DD Act, to receive federal funding a state must create and maintain a P&A system to “protect and advocate the rights of individuals with developmental disabilities”. 42 U.S.C. § 15043(a).
Similar concerns about abuse, neglect and the disregard of the civil rights of institutionalized individuals with mental illness led to PAIMI’s enactment in 1986. PAIMI authorized additional funding for P&A systems, expanding their mission to encompass the protection of individuals with mental illness. 42 U.S.C.
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§§ 10802(2), 10803, 10827. Congress enacted PAIMI to “prevent further instances of abuse and neglect”. See H.R. Rep. No. 401, 99th Cong., 2d Sess. 3 (1985).
Two PAIMI requirements particularly empower P&As to protect and advocate for their constituents.
First, P&As can monitor facilities and have access to patient records and individual residents in covered facilities. Under PAIMI and the DD Act, P&A organizations “shall have the authority to investigate incidents of abuse and neglect”. 42 U.S.C. § 10805(a)(1)(A); see also id. § 15043(a)(2)(B). To ensure that such investigations are effective, the statutes provide that P&A systems “shall . . . have” a broad right of access to “all records” that are relevant to an investigation in enumerated circumstances. 42 U.S.C. §§ 10805(a)(4), 15043(a)(2)(I) and (J). These powers of oversight and access allow P&As to monitor conditions in covered facilities, see 42 C.F.R. § 51.42(c)(2), interact in an investigative capacity with individuals receiving mental health treatment in residential facilities, see 42 C.F.R. § 51.42(b), review incident reports from facilities, see Ariz. Ctr. for Disability Law v. Allen, 197 F.R.D. 689 (D. Ariz. 2000), examine peer-review evaluations of mental health professionals, Prot. & Advocacy for Persons with Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119 (2d Cir. 2006) (Sotomayor, J.), and investigate reports from affected individuals or the public about abusive or otherwise unacceptable conditions in
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facilities, see Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2d Cir. 2006) (Sotomayor, J.); Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 894 F. Supp. 424 (M.D. Ala. 1995), aff’d, 97 F.3d 492 (11th Cir. 1996); Disability Rights Wisc., Inc. v. Wisc. Dep’t of Public Instruction, 463 F.3d 719 (7th Cir. 2006) (tips from friends and family of residents); Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358, 365 (M.D. La. 1999) (tips from facility residents).
Second, Congress gave P&As the power to pursue legal and other remedies to protect and advocate on behalf of individuals with mental illness. The plain language of PAIMI confers on P&As the ability to act in a representative capacity and bring legal actions on behalf of their constituents. P&A organizations “shall have the authority to pursue administrative, legal, and other appropriate remedies or approaches to ensure the protection of individuals with mental illness”. 42 U.S.C. § 10805(a)(1)(B); see also id. § 15043(a)(2)(A)(i) (same requirement under the DD Act).
In giving P&A organizations this authority, Congress conceived of more than the usual attorney-client relationship. Indeed, Congress drew a distinction in PAIMI between “individuals” and “clients”. While a P&A is broadly authorized to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness”, id. § 10805(a)(1)(B) (emphasis added), in specific types of
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cases involving access to medical records the P&A may obtain records only for an
“individual who is a client of the system”, id. § 10805(a)(4)(A) (emphasis added).
Cf. 42 U.S.C. § 10805(a)(4)(B)-(C) (granting P&As access to records of
individuals who are not clients of the system). The statute’s distinction between
“individuals” and “clients” implies that while a P&A may have a traditional
attorney-client relationship with certain constituents, the statutory authorization in
section 10805(a)(1)(B) is not limited to individual “clients”. Rather, PAIMI
broadly authorizes P&As to bring lawsuits, not only to obtain individual relief, but
in their own right to protect all “individuals with mental illness”.
The legislative history of the federal P&A program also shows
Congress’ intent to authorize P&As to sue on behalf of individuals with mental
illness. In amending the DD Act in 1993, the responsible Senate Committee stated that it had reviewed the statute’s authorization for P&As to sue2 and determined
that the statute clearly confers standing on P&As to sue in their own right:
The Committee heard testimony about the waste of scarce resources that are expended on litigating the issue of whether P&A systems have standing to bring suit. The Committee wishes to make it clear that we have reviewed this issue and have decided that no statutory fix is necessary because the current statute is clear that P&A systems have standing to pursue legal remedies to ensure the protection of and advocacy for the rights of individuals with developmental disabilities within the State.
2 The DD Act has language identical in relevant aspects to PAIMI, which was modeled after the DD Act. Compare 42 U.S.C. § 15043(a)(2)(A)(i) with 42 U.S.C. § 10805(a)(1)(B).
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S. Rep. No. 120, 103d Cong., 1st Sess. 39-40 (1993), reprinted in 1994 U.S.C.C.A.N. 164, 202-03 (emphases added). The Senate report also gave express approval to two district court decisions holding that P&As have standing to sue for injury to their constituents. Id. (citing Goldstein v. Coughlin, 83 F.R.D. 613 (W.D.N.Y. 1979); Rubenstein v. Benedictine Hosp., 790 F. Supp. 396 (N.D.N.Y. 1992); see also 132 Cong. Rec. H2642-02, May 13, 1986 (statement of Rep. Waxman) (stating in the enactment of PAIMI that “[i]t is also clear that the conferees do not intend for questions of standing or jurisdiction to limit the effectiveness, range, or forums in which [P&As] can work”).
In accordance with Congress’ intent, the implementing regulations promulgated by HHS explicitly allow funds allotted under PAIMI to be used by P&As to litigate in their own right to redress instances of abuse, in addition to litigating on behalf of individuals. See 42 C.F.R. § 51.6(f). The regulations were issued in 1997 at the direction of Amicus Dr. Chavez, then the Administrator of SAMHSA, to realize Congress’ intent that P&As have broad authority in bringing lawsuits. The regulations provide: “Allotments may be used to pay the . . . costs incurred by a P&A system [1] in bringing lawsuits in its own right to redress incidents of abuse or neglect . . . and other rights violations impacting on individuals with mental illness and [2] when it appears on behalf of named plaintiffs or a class of plaintiffs for such purposes.” Id. (emphases added). This
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distinction is empty unless Congress intended for P&As to do something other than sue “on behalf of named plaintiffs or a class of plaintiffs”, that is, to bring lawsuits in their own right to ensure the protection of individuals with mental illness.
As the agency tasked with administration of PAIMI, HHS’s interpretation of PAIMI receives substantial deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). While HHS acknowledged that, of course, standing is ultimately a question for the courts, HHS expressed its view that “without showing injury to itself, a P&A system does have standing to bring suit on behalf of” its constituents. See Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness (Final Rule), 62 Fed. Reg. 53,548, 53,553-54 (Oct. 15, 1997). Through their experience in the federal administration of the P&A program, Amici Dr. Chavez, Mr. Curie, Ms. Reatig and Dr. Morrissey know the importance of P&A litigation as a supplement to federal action to protect the rights of individuals with mental illness. II. INDIVIDUALS WITH MENTAL ILLNESS PROVIDE
MEANINGFUL GUIDANCE TO P&A ORGANIZATIONS THROUGH PAIMI ADVISORY COUNCILS.
Under PAIMI and the DD Act, each state establishes its own P&A organization. See 42 U.S.C. §§ 10802(2) & 15044(a).3 PAIMI requires the P&A’s
3 New York has designated the Commission on Quality of Care and Advocacy for Persons with Disabilities (CQCAPD) as New York’s P&A. See Mental Hygiene Law § 45.07(p). Under the provisions of 42 U.S.C. § 10804 and Mental Hygiene Law § 45.07(i), CQCAPD entered into
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service priorities be set by an Advisory Council, at least 60% of whose members are “individuals who have received or are receiving mental health services or who are family members of such individuals”. Id. § 10805(a)(6)(B); see also infra Part III.C.
New York’s PAIMI Advisory Council, currently chaired by Amicus Ms. Calori and previously by Amicus Ms. Turner, advises DAI in its protection and advocacy activities. The Council holds an annual public meeting to discuss the PAIMI program’s goals and objectives for the upcoming year. For 2011, these goals include, among other things,
• Protecting “PAIMI-eligible individuals from harm in residential care or treatment facilities”; [and]
• Assist[ing] “PAIMI-eligible individuals in obtaining access to . . . care and treatment . . . in the least restrictive environment available”.
See Protection and Advocacy for Individuals with Mental Illness Goals/Objectives for FY2011, available at http://cqc.ny.gov/advocacy/protection-advocacyprograms/paimi#bottom. Amici Ms. Calori and Ms. Turner are convinced that this lawsuit furthers those goals.
The PAIMI Advisory Council also meets on a quarterly basis with representatives of DAI and the other New York P&As. At these meetings, the
a contract with DAI in 1988 designating DAI as an authorized New York P&A. (Zucker Aff. ¶¶ 4-6, Dkt. No. 205.) The contract between CQCAPD and DAI has been periodically renewed ever since. (Id. at ¶ 6.)
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Council is regularly briefed on major litigation, including this lawsuit, and advises DAI on its protection and advocacy services for persons with mental illness.
In fulfilling its duties as a designated New York P&A organization, 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”. (See DAI’s website, included as Murray Decl. Ex. 52, Dkt. No. 214-27.) In pursuit of these goals, DAI provides a variety of services, in addition to litigation on behalf of its constituents, aimed at improving the position of New York State residents with mental illness. These services and activities include “advice and professional assistance, administrative remedies, technical assistance, negotiation [and] mediation, legal assistance, [providing] information [and] referral[s], [and] training”. (Id.) Thus, together with litigation on behalf of its constituents, DAI provides both direct services to its constituents and uses its investigative and legal powers to obtain systemic relief to benefit larger numbers of constituents. Both types of activities are necessary to fulfill the mandate of an organization created to “ensure that the rights of individuals with mental illness are protected”, 42 U.S.C. § 10801(b)(1), and “prevent further instances of abuse and neglect”, H.R. Rep. No. 401, 99th Cong., 1st Sess. 3 (1985).
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III. DAI HAS STANDING TO PURSUE LITIGATION ON BEHALF OF ITS INJURED CONSTITUENTS. DAI’s standing to bring this suit is based on injury to adult home
residents. DAI showed at trial that its constituents suffered judicially redressible injury caused by the State defendants. See infra Part III.A. By enacting PAIMI, Congress explicitly designated P&As to bring representative suits to protect the rights of persons with mental illness, thereby abrogating by statute the prudential bar to one party suing to redress another’s injury. See infra Part III.B. Moreover, DAI has associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), to bring this action. See infra Part III.C. Consistent with the overwhelming majority of courts that have addressed the issue, see infra Part III.D., this Court should therefore affirm the district court’s holding that DAI has standing to bring this suit to protect the legal rights of its constituents.
A. DAI’s Constituents Have Article III Standing in Their Own Right. DAI demonstrated at trial that its constituents easily satisfy Article III
standing and could sue in their own right. Article III requires that the plaintiff show “injury in fact”; a “causal connection between the injury and the conduct complained of”; and that it is “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision”. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
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First, qualified individuals with a disability have the right under the ADA to receive care and treatment in the most integrated setting. See Olmstead v. L.C., 527 U.S. 581, 600 (1999). DAI demonstrated at trial that its constituents were injured by New York’s denial of their Olmstead rights. Testimony showed that many adult home residents have an interest in supported housing. (See JA142:390:6-16 (S.K.); JA506:1846:3-JA507:1849:19 (Dorfman); JA565:2081:12082:8 (Burstein); JA780:2979:13-JA781:2980:16 (Zucker); JA723:2751:18-25 (I.K.) (testifying that for adult home residents, supported housing is “freedom. It’s being able actually to live like a human being again”).) Adult home residents also testified that they want to leave the adult homes where they live because these homes isolate them, foster learned helplessness, and push residents into a state of hopeless dependence. (See JA141:389:22-JA142:390:2 (S.K.); JA157:451:20JA158:454:22, JA162:471:4-21 (G.L.); JA707:2685:22-2686:15, JA717:2724:252726:6 (I.K.).) Evidence at trial also demonstrated that many individuals discharged to adult homes from psychiatric hospitals are eligible for supported housing. (See JA497:1810:22-JA500:1819:23, JA512:1869:10-1870:24 (Dorfman).) Residents further testified that it is very difficult for adult home residents to obtain information regarding supported housing. (See JA141:389:22JA142:390:2 (S.K.); JA158:453:11-454:22 (G.L.); JA717:2724:25-2726:6 (I.K.).)
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These facts demonstrate “concrete” and “particularized” injury to adult home residents.
Second, standing also requires a causal connection between the injury and the defendants’ conduct. Lujan, 405 U.S. at 560-61. DAI has shown that the denial of the right to placement in the most integrated setting, required under the ADA and by Olmstead, is caused by the defendants’ systematic and pervasive isolation of DAI’s constituents in adult homes and disregard for the rights of individuals who qualify for placement in a more integrated setting, such as supported housing. (See JA205:644:16-JA206:646:22; JA217:691:25JA218:694:8; JA221:708:20-JA222:710:4 (Rosenberg).)
Finally, to show standing, a favorable decision must be likely to redress the injury. Lujan, 405 U.S. at 561. This requirement is easily met in this case. The district court’s decision and order requiring the State to provide supported housing opportunities for qualified adult home residents will redress the injury inflicted on DAI’s constituents by being warehoused indefinitely in adult homes. (See JA208:655:3-24; JA212:669:5-18; JA217:691:25-JA218:694:8; JA222:709:13-710:12 (Rosenberg).)
B. Congress Has Granted P&As Representative Standing to Vindicate the Rights of Individuals with Mental Illness. PAIMI is a statutory grant of representative standing for P&As to
vindicate the rights of individuals with mental illness receiving care and treatment.
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See 42 U.S.C. § 10805(a)(1)(B) (granting P&As the authority to “pursue administrative, legal, and other appropriate remedies or approaches to ensure the protection of individuals with mental illness”). PAIMI therefore gives DAI the authority to sue as the representative of adult home residents.
There is no constitutional standing barrier to suits by a representative based on injury in fact suffered by those whom the plaintiff represents. The presumption against standing to raise the rights of a third party is a rule of prudential, not Article III standing. See Allen v. Wright, 468 U.S. 737, 750-51 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982). The presumption against third-party standing is overcome “[w]here practical obstacles prevent a party from asserting rights on behalf of itself” and where the litigant “can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal”. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984); see 1 Laurence H. Tribe, Constitutional Law § 3-19, at 435 (3d ed. 2000). Thus, in numerous cases the Supreme Court has granted standing for one party to assert the rights of another, despite the absence of legislation, where the general prudential considerations against third-party standing do not apply. See, e.g., Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989); Craig v. Boren, 429 U.S. 190 (1976); Griswold v. Conn., 381 U.S. 479, 481 (1965).
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Likewise, this Court has found representative standing where plaintiffs “represent the rights and interests of” those suffering the underlying Article III injury in fact. N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1347-48 (2d Cir. 1989).
DAI overcomes the general presumption against third-party standing. Isolated in adult homes, with the culture of dependency these institutions foster, residents are often unaware of their rights and reasonably fear retribution from adult home administrators if they bring suit in their own name. With its long experience and deep knowledge of its constituency, and the participation of individuals with mental illness, see supra Part II, DAI can properly frame the issues and present them with the necessary adversary zeal. That is why Congress created P&As. See supra Part I. DAI therefore “represent[s] the rights and interests of” adult home residents. Terry, 886 F.2d at 1348.
PAIMI makes DAI’s standing clear. PAIMI makes DAI a representative of its constituents for purposes of protecting their rights as individuals with mental illness. This is no different from how the law may designate someone to be a guardian, trustee or other representative of another, and authorize the representative to bring suit on the other person’s behalf. See Fed. R. Civ. P. 17(c)(1) (listing those who may sue in a representative capacity). PAIMI is an express congressional designation that the relationship between DAI and its
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constituents is such that DAI can pursue legal remedies to protect the rights of its constituents.4
Congress has the power to grant standing to plaintiffs to represent the rights of persons who have suffered Article III injury in fact. “Congress may, by legislation, expand standing to the full extent permitted by Art. III, thus permitting litigation by one ‘who otherwise would be barred by prudential standing rules.’” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). Thus, in Financial Institutions Retirement Fund v. Office of Thrift Supervision, 964 F.2d 142, 147 (2d Cir. 1992), the Court held that a statute “enumerating persons empowered to bring” suit overrode any prudential limits on the plaintiffs’ standing. Accord United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1153-54 (2d Cir. 1993). Congress’ express grant to P&As of the right to sue on behalf of persons with mental illness therefore confers standing on DAI.
4 The cause of action in this case is under Title II of the ADA and the Rehabilitation Act. This is therefore not a case in which a P&A asserts a right of action directly under PAIMI. See Ind. Prot. & Advocacy Servs. v. Ind. Family & Social Servs. Admin., 603 F.3d 365, 375 (7th Cir. 2010) (holding that PAIMI grants P&As a right of action for access to patient records). Rather, PAIMI creates the legal relationship between P&As and their constituents that grants DAI standing to assert adult homes residents’ ADA claims.
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C. P&As Also Meet Hunt’s Requirements for Associational Standing. DAI also has associational standing. In Hunt v. Washington State
Apple Advertising Commission, the Supreme Court set out the requirements for an organization to sue on behalf of its constituency. For the organization to have standing, 1) its members must “have standing to sue in their own right”, 2) “the interests it seeks to protect [must be] germane to [its] purpose”, and 3) “neither the claim asserted nor the relief requested [can require] the participation of individual members” of the organization. See 432 U.S. at 343. The third requirement is a prudential one, and Congress may abrogate it by statute. See United Food & Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 552-53 (1996). DAI meets all three of these requirements. Moreover, the third Hunt requirement does not apply because PAIMI is a clear congressional abrogation of this prudential standing requirement. See United Food, 517 U.S. at 553.
Under PAIMI, DAI protects and advocates the rights of “individuals with mental illness who are receiving care or treatment in” New York. 42 U.S.C. § 10805(a)(1)(B). In Hunt, the Supreme Court applied a test of “functional equivalence”, see Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1113 (9th Cir. 2003), to determine whether the plaintiff’s status as a state commission, “rather than a traditional voluntary membership organization, [would] preclude[] it from asserting . . . claims” on behalf of Washington apple growers. Hunt, 432 U.S. at
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344. The Court reasoned that it was necessary to look at the “substance” of the
organization, and not its mere “form”, to determine whether it was capable of
properly representing the interests of its purported constituency. Id. at 344-45.
The Court concluded that the Commission’s
purpose is the protection and promotion of the Washington apple industry . . . . It thus serves a specialized segment of the . . . community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation. . . . Under the circumstances presented here, it would exalt form over substance to differentiate between the . . . Commission and a traditional trade association representing the individual growers and dealers who collectively form its constituency. Id.
Hunt does not require an organization to have members in the
traditional sense. Indeed, the state commission at issue in Hunt did not. Instead,
Hunt analyzes an organization to determine whether there are “indicia of
membership” indicating the organization “[i]n a very real sense . . . represents [its
constituents] and provides the means by which they express their collective views
and protect their collective interests”. Id. at 345. Voting control of an organization
is merely one indicator that the organization represents its constituents. See id. at
345. Contrary to the State’s arguments (Br. at 76-77), voting control is not
dispositive.
The structure of P&As established by PAIMI confers the indicia of
membership that Hunt requires. A PAIMI advisory council guides P&A activities.
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The New York PAIMI Advisory Council performs that role for DAI. As required by PAIMI, 60% of the Council’s members are individuals “who have received or are receiving mental health services” or their family members. 42 U.S.C. § 10805(a)(6)(B). The Council is chaired by Amicus Ms. Calori, who, as required by PAIMI, was a consumer of mental health services within the state. Id. § 10805(a)(6)(C). DAI is intimately familiar with the concerns of individuals with mental illness through the investigations it conducts and its unique statutory access to facilities and their residents. Id. § 10805(a)(4); 42 C.F.R. § 51.42. Through the Council and its annual public meetings, DAI’s constituency guides DAI’s protection and advocacy services. See supra Part II.
Congress, moreover, expressly designated P&As to sue on behalf of individuals with mental illness. This congressional designation makes this a much easier case than Hunt, where the Court was left to grapple with a situation where it was unclear whether, despite clear injury to apple growers, the state commission should be allowed standing to sue on their behalf. In Hunt, there was no express designation of the organization’s right to sue. Like the organization in Hunt, P&As are creatures of statute. But unlike in Hunt, P&As are specifically authorized by Congress to sue on behalf of their injured constituents. NYCQAL’s characterization of DAI as a mere “concerned bystander” (NYCQAL Br. at 33, 35) is therefore directly refuted by PAIMI itself. DAI is not a bystander. DAI is the
21

organization designated by Congress and New York State to protect the rights of individuals with mental illness.
Hunt’s first prong is satisfied because DAI’s constituents have Article III standing to bring this suit in their own right. See supra Part III.A. Nor is there any question under Hunt’s second prong as to whether the interests DAI seeks to protect “are germane to [its] purpose”. Hunt, 432 U.S. at 343. The State does not dispute this because it cannot. DAI’s statutory mandate is to “protect and advocate the rights of individuals with mental illness”. 42 U.S.C. § 10803(2)(A). DAI’s advocacy of adult home residents’ rights under the ADA is “central to [DAI’s] purpose of protecting and” advocating the rights of individuals with mental illness. 432 U.S. at 344.
The hypothetical conflicts among DAI’s constituents raised by NYCQAL do nothing to alter this analysis. (See NYCQAL Br. at 36-39.) First, the record at trial shows no evidence of such intra-constituency conflict. Tellingly, NYCQAL itself presents the Court with statistics suggesting that between 66% and 92% of adult home residents would like to leave their adult home. (Id. at 37.) Second, access to supported housing is the right of every qualified adult home resident under the ADA and Olmstead. While those who wish to move out of adult homes will have more options with the district court’s injunction, those residents who do not qualify for such housing or who do not wish to leave an adult home
22

setting will not be forced into supported housing. There is no basis in the record (or in common sense) for NYCQAL’s unsupported assertion that the injunction will injure any of DAI’s constituents.
Hunt’s third requirement is that neither the claim asserted nor the relief requested necessitates the participation of an organization’s individual constituents. 432 U.S. at 343. This prudential requirement was abrogated by Congress in PAIMI’s authorization of DAI to sue on behalf of its constituents. United Food, 517 U.S. at 552-53. DAI therefore need not satisfy the third Hunt prong.
But in any event, this action does not require individual constituent participation. Even if individualized assessments are required to determine the services and supports that will be necessary in light of the district court’s injunction, DAI can litigate a case to obtain such a remedy for the benefit of its constituents. See UAW v. Brock, 477 U.S. 274, 288 (1986). A plaintiff organization satisfies the third Hunt requirement so long as “[t]he claims asserted by plaintiffs may be resolved by [the court] answering common questions of law without individualized proof”. Joseph S. v. Hogan, 561 F. Supp. 2d 280, 308 (E.D.N.Y. 2008). The record demonstrates this—the District Court remedied the State’s ADA violations without the individual participation of adult home residents.
23

NYCQAL argues that, if the third Hunt requirement applied—which it does not—DAI would lack standing to bring this suit because a treatment team must determine whether individual adult home residents qualify for supported housing. (NYCQAL Br. at 41.) This argument misunderstands the nature of this lawsuit, which is for injunctive relief. In Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004), NYCQAL’s sole authority for their argument on this point, this Court made clear that where, as here, an “organization seeks a purely legal ruling without requesting that the federal court award individualized relief to its members, the Hunt test may be satisfied”.5 The only question of a remotely individualized nature in this action is the assessment—in enforcing the injunction—of what services a person will need in supported housing. That determination requires neither participation of individuals during the course of the litigation, nor individual determinations by the court afterwards.
5 Bano involved organizations bringing claims for money damages on behalf of their members, which would require a court to use “individualized proof” to determine “the fact and extent” of injury. 361 F.3d at 714. Here, by contrast, DAI sought and obtained injunctive relief.
24

D. The Overwhelming Majority of Courts Have Rightly Held That P&As Have Standing To Sue on Behalf of Individuals with Mental Illness. Courts that have addressed the issue agree that P&As have standing to
sue on behalf of their constituents.6 These courts hold that PAIMI grants P&As the representative authority to sue to protect the rights of individuals with mental illness and that P&As satisfy Hunt’s requirements for associational standing.
The leading cases concerning P&As’ standing to sue on behalf of their constituents are Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999), and Oregon Advocacy Center v. Mink, 322 F.3d 1101. In Doe v. Stincer, Florida’s P&A brought suit alleging violations of the ADA in a Florida statute’s restriction of access to records of treatment for mental illness. See Stincer, 175 F.3d at 881. The Eleventh Circuit held that the plaintiff P&A could satisfy Hunt’s requirements for organizational standing. Id. at 886. The court reasoned that, as in Hunt, P&As “serve[ ] a specialized segment of the . . . community which is the primary beneficiary of its activities, including prosecution of this kind of litigation”. Id. Further, the court found that “under [PAIMI], Congress authorized protection and advocacy organizations . . . to protect and enforce the rights of individuals with
6 Commentators also agree on this point. See Gary P. Gross, Protection and Advocacy System Standing–To Vindicate the Rights of Persons with Disabilities, 22 Mental & Physical Disability L. Rep. 674, 674 (1998); Kelsey McCowan Heilman, The Rights of Others: Protection and Advocacy Organizations’ Associational Standing to Sue, 157 U. Pa. L. Rev. 237, 241 (2008).
25

mental illness, perform[ing] the functions of a traditional . . . association representing [individuals with mental illness]”. Id. After detailing the numerous ways in which a P&A’s constituents have a meaningful voice in the direction and agenda of the organization, the court concluded that “[i]n a very real sense . . . as in Hunt, the [P&A] represents the State’s individuals with mental illness and provides the means by which they express their collective views and protect their collective interests”. Id. (quotations omitted).7
Similarly, in Mink, the Ninth Circuit held that a P&A’s constituents are the “functional equivalent of members for purposes of associational standing” because the P&A is “sufficiently identified with and subject to the influence of those it seeks to represent as to have a personal stake in the outcome of the controversy”. Mink, 322 F.3d at 1110-11 (quotations omitted). The Ninth and Eleventh Circuits agreed that by enacting PAIMI, Congress clearly abrogated prudential standing requirements (such as the third Hunt requirement) and conferred upon P&As representative status to pursue litigation on behalf of individuals with mental illness. See Stincer, 175 F.3d at 884 (“[T]he very purpose of [PAIMI] was to confer standing on protection and advocacy systems . . . as
7 The Eleventh Circuit in Stincer ultimately held that the P&A had not demonstrated standing because, although the requirements of Hunt were met, the organization had failed to sufficiently show that any of its constituents had suffered injury-in-fact. 175 F.3d at 888. Here, by contrast, DAI proved at trial that its constituents have suffered injury-in-fact. See infra pp. 13-15.
26

representative bodies charged with the authority to protect and litigate the rights of individuals with mental illness.”); accord Mink, 322 F.3d at 1110.
Courts within this circuit agree with the sound reasoning in Stincer and Mink, uniformly holding that P&As have standing to sue in their own name on behalf of their constituents. See State of Conn. Office of Prot. & Advocacy for Persons with Mental Illness v. State of Conn., 706 F. Supp. 2d 266, 279-84 (D. Conn. 2010); Laflamme v. New Horizons, Inc., 605 F. Supp. 2d 378, 396-97 (D. Conn. 2009); Joseph S., 561 F. Supp. 2d at 308; Aiken v. Nixon, 236 F. Supp. 2d 211, 224 (N.D.N.Y. 2002). Courts in this circuit have also held that PAIMI grants P&As standing to sue in a representative capacity. Brown v. Stone, 66 F. Supp. 2d 412, 423-25 (E.D.N.Y. 1999), aff’d sub nom. Mental Disability Law Clinic, Touro Law Ctr. v. Carpinello, 189 F. Appx 5, 7 (2d Cir. 2006); Trautz v. Weisman, 846 F. Supp. 1160, 1163 (S.D.N.Y. 1994); Rubenstein v. Benedictine Hosp., 790 F. Supp. at 408-09; Goldstein, 83 F.R.D. at 614-15. The Senate Committee responsible for PAIMI and the DD Act has endorsed the reasoning of two of these cases as properly reflecting congressional intent. See S. Rep. No. 120, 103d Cong., 1st Sess. 40 (1993) (citing Goldstein and Rubenstein).
Furthermore, this Court has twice held that similar organizations have associational standing to sue on behalf of their constituents. In Bernstein v. Pataki, 233 Fed. Appx. 21 (2d Cir. 2007), New York’s Mental Hygiene Legal Service, an
27

organization “mandated by New York law to initiate and take any legal action deemed necessary to safeguard the right of any patient or resident to protection from abuse or mistreatment”, sued various state agencies claiming constitutional violations. Id. at 23, 24 (quotations omitted). This Court held that the plaintiff organization had standing to sue on behalf of its constituents because it “serves a specialized segment of the State’s . . . community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation.” Id. at 24 (citing Hunt, 432 U.S. at 344) (quotations omitted). Likewise, in Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002), this Court held that RECAP, a not-for-profit corporation providing educational and housing services to low-income families, had associational standing to sue on behalf of recovering alcoholics. Id. at 46. The Court concluded that “RECAP serves a class of individuals with discrimination claims; the interests at issue are germane to RECAP’s purpose; and no individual participation is required under these circumstances”. Id. at 46 n.2. RECAP “therefore . . . meets the organizational standing requirements of Hunt”. Id. The same is true with respect to DAI here.
Contrary authority from other courts is based on misreading Hunt and ignoring PAIMI. In Association for Retarded Citizens v. Dallas County Mental Health & Retardation Center. Board of Trustees, 19 F.3d 241 (5th Cir. 1994), the
28

court held that the Texas P&A lacked standing to sue on behalf of a disabled minor under the Fair Housing Act. To support its conclusion that the P&A lacked associational standing, the court stated that the P&A failed to establish “the first prong of [the Hunt] inquiry because [the individual named in the suit] is not a ‘member’ of [the P&A]. The organization bears no relationship to traditional membership groups because most of its ‘clients’ . . . are unable to participate in and guide the organization’s efforts.” Id. at 244. This reasoning, however, is contrary to Hunt. Hunt holds that an association need not be a membership organization for standing purposes. 432 U.S. at 346-47. The Hunt test is a functional one, examining the specific characteristics of an organization to determine if there are sufficient “indicia of membership”. Id. at 344. The Fifth Circuit never considered the statutorily mandated elements of P&As—the same organizational characteristics that led the courts in Stincer and Mink to the opposite conclusion. See Mink, 322 F.3d at 1110 (describing the analysis of Dallas as “overly formalistic” in light of Hunt). Dallas is also distinguishable because it involved a P&A under the DD Act, without PAIMI’s structural protections. See Advocacy Ctr. for the Elderly & Disabled v. La. Dept. of Health and Hosps., No. 10-1088, 2010 WL 3170072, at *6-7 (E.D. La. Aug. 9, 2010).
The Eighth Circuit’s decision in Missouri Protection and Advocacy Services, Inc. v. Carnahan, 499 F.3d 803 (8th Cir. 2007), is even less persuasive.
29

The Eighth Circuit held that the Missouri P&A did not meet the first Hunt requirement for want of actual “members”. Id. at 810. The Eighth Circuit went on to hold that despite 42 U.S.C. § 10807, which “expressly authoriz[ed] this type of global challenge to state programs absent the participation of individuals seeking redress of specific injuries”, the P&A also failed Hunt’s third prong because there would be a need for individualized proof. 499 F.3d at 810 & n.7. That analysis is contrary to the Supreme Court’s decision in United Foods, holding that Congress can abrogate the prudential third prong of Hunt. United Foods, 517 U.S. at 546. In sum, the cases upon which Defendants and their amici rely are unpersuasive and contrary to controlling Supreme Court precedent.
30

CONCLUSION For all the foregoing reasons, this Court should affirm the District Court’s judgment and remedial order in their entirety.

October 13, 2010

Respectfully submitted,

/s/ Antony L. Ryan Rebecca R. Silber Alejandro H. Cruz CRAVATH, SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000
Attorneys for Amici Curiae

31

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because it contains 6,972 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 it has been prepared in a proportionately spaced typeface using Microsoft Word in 14point Times New Roman. Dated: October 13, 2010
/s/ Antony L. Ryan CRAVATH, SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Attorney for Amici Curiae
32

 
 Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 1 of 20
CONSOLIDATED,SM
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:13−cv−04165−NGG−ST

United States of America v. State of New York Assigned to: Judge Nicholas G. Garaufis Referred to: Magistrate Judge Steven Tiscione Cause: 42:1201 Civil Rights (Disability)
Special Master
Clarence J Sundram

Date Filed: 07/23/2013 Jury Demand: None Nature of Suit: 445 Civil Rights: Americans with Disabilities − Employment Jurisdiction: U.S. Government Plaintiff
represented by Clarence J Sundram 26 Abbey Road Delmar, NY 12054 518−527−1918 Email: cjsundram@post.harvard.edu PRO SE

Plaintiff United States of America

represented by Alison Barkoff U.S. Department of Justice 950 Pennsylvania Ave., NW − NYA Washington, DC 20530 202−305−8454 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Maisels U.S. Department of Justice 950 Pennsylvania Ave, Nw − Nya Washington, DC 20530 202−305−8454 Fax: 202−307−1197 Email: amanda.maisels@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eve Hill U.S. Department of Justice 950 Pennsylvania Ave., NW −NYA Washington, DC 20530 202−305−8454 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Samuels U.S. Department of Justice 950 Pennsylvania Ave., NW − NYA Washington, DC 20530 202−305−8454 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Goldberger United States Attorneys Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201−1820 (718)254−6052 Fax: (718)254−6083 Email: Michael.Goldberger@usdoj.gov LEAD ATTORNEY

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 2 of 20
ATTORNEY TO BE NOTICED
Nicholas Lee U.S. Department of Justice 950 Pennsylvania Ave., NW −NYA Washington, DC 20530 202−305−8454 Email: nicholas.lee2@usdoj.gov TERMINATED: 09/14/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Bond U.S. Department of Justice 950 Pennsylvania Ave., NW − NYA Washington, DC 20530 202−305−8454 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila Foran U.S. Department of Justice 950 Pennsylvania Ave., NW −NYA Washington, DC 20530 202−305−8454 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eliza Dermody U.S. Department of Justice 950 Pennsylvania Avenue, Nw − Nya Washington, DC 20530 (202)305−0463 Fax: (202)514−7821 Email: eliza.dermody@usdoj.gov ATTORNEY TO BE NOTICED
Jennifer Bronson U.S. Department of Justice 950 Pennsylvania Ave Nw Nya 6021 Washington, DC 20530 (202)353−0678 Fax: (202)514−7821 Email: jennifer.bronson2@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant State of New York

represented by Barbara K. Hathaway Attorney General's Office State of New York 120 Broadway 24th Floor New York, NY 10271 (212)416−8572 Fax: 212−416−6009 Email: barbara.hathaway@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin P. Kandel Office of the New York State Attorney

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 3 of 20
General 120 Broadway New York, NY 10271 UNITED STA 212−416−6536 Fax: 212−416−6075 Email: erin.kandel@ag.ny.gov ATTORNEY TO BE NOTICED
Gary J. Malone Constantine Cannon LLP 335 Madison Avenue, 9th Floor New York, NY 10017 (212) 350−2700 Fax: 212−350−2701 Email: gmalone@constantinecannon.com ATTORNEY TO BE NOTICED
Harrison J. McAvoy Constantine Cannon LLP 335 Madison Avenue 9th Floor New York, NY 10017 (212)350−2766 Fax: (212)350−2701 Email: hmcavoy@constantinecannon.com ATTORNEY TO BE NOTICED
Jane R. Goldberg State of New York, Office of Attorney General 120 Broadway New York, NY 10271 (212)416−6133 Fax: (212)416−6009 Email: jane.goldberg@ag.ny.gov ATTORNEY TO BE NOTICED
Jean Kim Constantine Cannon LLP 450 Lexington Avenue 17th Floor New York, NY 10017 (212) 350−2700 Fax: 212−350−2701 Email: jkim@cpny.com ATTORNEY TO BE NOTICED
Katherine Brady Dirks New York State Office of the Attorney General 120 Broadway New York, NY 10271 (212)416−8105 Fax: (212)416−6009 TERMINATED: 07/31/2015 ATTORNEY TO BE NOTICED
Matthew Joseph Lawson Office of New York State Attorney General 120 Broadway, 24th Floor New York, NY 10271 (212)416−8610 Fax: (212)416−6009

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 4 of 20

Email: matthew.lawson@ag.ny.gov ATTORNEY TO BE NOTICED

Robert L. Begleiter Schlam, Stone & Dolan, LLP 26 Broadway 19th floor New York, NY 10004 (212) 344−5400 Email: rbegleiter@constantinecannon.com ATTORNEY TO BE NOTICED

Todd Alan Spiegelman NYS Attorney General's Office 120 Broadway 24th Floor New York, NY 10271 (212)416−8661 Fax: (212)416−6075 Email: todd.spiegelman@ag.ny.gov ATTORNEY TO BE NOTICED

William Scott State of New York Office of the Attorney General The Capitol Albany, NY 12224 518−776−2255 Fax: 518−915−7740 Email: william.scott@ag.ny.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Mental Health Association in New York State, Inc.

represented by Antony L. Ryan Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 212−474−1000 Fax: 212−474−3700 Email: aryan@cravath.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
New York Association of Psychiatric Rehabilitation Services

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
New York Association on Independent Living

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Alliance on Mental Illness of New York City

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 5 of 20

Amicus
Coalition of Institutionalized Aged and Disabled

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Community Access

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Long Term Care Community Coalition

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Mental Health Empowerment Project, Inc.

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Schuyler Center for Analysis and Advocacy

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Venture House

represented by Antony L. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/23/2013 07/23/2013 07/23/2013
07/23/2013

# Docket Text
1 COMPLAINT against State of New York, filed by United States of America. (Attachments: # 1 Civil Cover Sheet) (Bowens, Priscilla) (Entered: 07/23/2013)
2 Summons Issued as to State of New York. (Bowens, Priscilla) (Entered: 07/23/2013)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link:http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 07/23/2013)
4 ORDER REASSIGNING CASE. Case reassigned to Judge Nicholas G. Garaufis and Magistrate Judge Marilyn D. Go for all further proceedings. Judge Roslynn R. Mauskopf, Magistrate Judge Viktor V. Pohorelsky no longer assigned to case. Ordered by Chief Judge Carol Bagley Amon on 7/23/2013. (Bowens, Priscilla) (Entered: 07/23/2013)

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 6 of 20

07/23/2013 08/01/2013 08/01/2013 08/08/2013 08/08/2013 08/09/2013 08/20/2013 08/20/2013
08/20/2013 08/23/2013 09/16/2013
10/10/2013
10/24/2013

5 UNSIGNED Stipulation and Order of Settlement. The parties agree that it is in their mutual interest to avoid the time, expense, and risk of litigation and hereby resolve the allegations by entering into this agreement. (Greene, Donna) (Entered: 07/23/2013)
6 NOTICE of Appearance by Barbara K. Hathaway on behalf of State of New York (aty to be noticed) (Hathaway, Barbara) (Entered: 08/01/2013)
7 NOTICE of Appearance by Katherine Brady Dirks on behalf of State of New York (aty to be noticed) (Dirks, Katherine) (Entered: 08/01/2013)
8 Letter dated 7/31/2013 to Judge Garaufis from potential intervenors, requesting that the Court not approve the Proposed Stipulation of Settlement at this time. (Lee, Tiffeny) (Entered: 08/08/2013)
9 Letter responding to 7/31/13 letter by United States of America (Maisels, Amanda) (Entered: 08/08/2013)
ORDER: The court will hold an initial conference in this matter on Tuesday, August 20, 2013, at 11:00 a.m. Ordered by Judge Nicholas G. Garaufis on 8/9/2013. (Edelman, Keith) (Entered: 08/09/2013)
Email Notification Test − DO NOT REPLY (Lee, Tiffeny) (Entered: 08/20/2013)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Initial Conference Hearing held on 8/20/2013. Counsel for all parties present. The court consolidated United States v. New York, 13−CV−4165, and O'Toole v. Cuomo, 13−CV−4166, without objection. In the near future, the parties will (1) file an unopposed motion for class certification, without a memorandum of law; (2) provide the court with the details concerning an upcoming fairness hearing, including the proposed notice to potential class members; and (3) confer and report to the court about the provisions of the Proposed Stipulation and Order of Settlement discussed at the hearing. (Court Reporter Holly Driscoll) (Edelman, Keith) (Entered: 08/20/2013)
Case Consolidated. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 08/21/2013)
10 Letter dated 8/21/2013 to Judge Garaufis from Harold Iselin, Esq., representing potential intervenors, re proposed consent judgment. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 08/23/2013)
11 Letter MOTION for Settlement / Modifying Settlement Agreement by Andrew M. Cuomo, Steven Farrell, Raymond O'Toole, Nirav R. Shah, Ilona Spiegel, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York, United States of America. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Gordon, Andrew) (Entered: 09/16/2013)
12 ORDER re (11) Motion for Settlement in case 1:13−cv−04165−NGG−MDG; and (11) Motion for Settlement in case 1:13−cv−04166−NGG−MDG. Some modifications proposed in the September 16, 2013, letter resolve prior deficiencies, and the court accepts proposed modifications 1 and 2. However, the Settlement Agreement still does not sufficiently establish mechanisms to enable court supervision of the settlement. Settlement agreements in similar Olmstead cases have established a more explicit and unrestricted monitoring role for the courts involved, and the agreements in these cases are instructive templates, see Order. If the parties have objections to provisions such as the ones excerpted above (see Order), they shall raise them with the court by letter. If not, the parties shall confer and provide the court with modifications to the current Settlement Agreement adopting sufficient similar provisions. Ordered by Judge Nicholas G. Garaufis on 10/4/2013. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 10/10/2013)
13 Letter requesting conference by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 10/24/2013)

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 7 of 20

11/14/2013 11/20/2013 12/10/2013 01/09/2014
01/10/2014 01/13/2014
01/15/2014
01/15/2014 01/17/2014

14 Letter dated 11/13/2013 to Judge Garaufis from Jeffrey Sherrin, Esq. and Harold Iselin, Esq. on behalf of certain impacted adult homes regarding proposed modifications to the settlement. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 11/20/2013)
15 Letter responding to 11/13/13 Letter by United States of America Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Nicholas) (Entered: 11/20/2013)
16 Letter MOTION for Settlement / Modifying Settlement Agreement by Andrew M. Cuomo, Steven Farrell, Raymond O'Toole, Nirav R. Shah, Ilona Spiegel, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York, United States of America. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 12/10/2013)
17 MOTION for Leave to File an Amici Curiae Brief by Mental Health Association in New York State, Inc., New York Association of Psychiatric Rehabilitation Services, New York Association on Independent Living, National Alliance on Mental Illness of New York City, Coalition of Institutionalized Aged and Disabled, Community Access, Long Term Care Community Coalition, Mental Health Empowerment Project, Inc., Schuyler Center for Analysis and Advocacy, Venture House. (Attachments: # 1 Declaration Declaration of Antony L. Ryan in Support of the consented−to Motion of Proposed Amici Curiae to Submit an Amici Curiae Brief, # 2 Memorandum in Support Memorandum of Law of Amici Curiae Mental Health Organizations in Support of Proposed Settlement Agreement) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Ryan, Antony) (Entered: 01/09/2014)
18 ORDER granting (17) Motion for Leave to File AMICI CURIAE BRIEF in case 1:13−cv−04165−NGG−MDG; granting (34) Motion for Leave to File AMICI CURIAE BRIEF in case 1:13−cv−04166−NGG−MDG. So Ordered by Judge Nicholas G. Garaufis on 1/10/2014. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 01/10/2014)
19 MEMORANDUM in Support re (5 in 1:13−cv−04165−NGG−MDG, 5 in 1:13−cv−04166−NGG−MDG) Order of Settlement filed by Coalition of Institutionalized Aged and Disabled, Community Access, Long Term Care Community Coalition, Mental Health Association in New York State, Inc., Mental Health Empowerment Project, Inc., National Alliance on Mental Illness of New York City, New York Association of Psychiatric Rehabilitation Services, New York Association on Independent Living, Schuyler Center for Analysis and Advocacy, Venture House. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Ryan, Antony) (Entered: 01/13/2014)
20 ORDER re (16) Motion for Modification of Settlement in case 1:13−cv−04165−NGG−MDG; and (26) Motion for Modification of Settlement in case 1:13−cv−04166−NGG−MDG. On the basis of the parties' articulation of the proposed modification, the court GRANTS the parties' request to modify Section L of the Proposed Settlement Agreement with the language contained in the December 10, 2013, letter. The parties shall submit a revised proposed settlement agreement that incorporates this modification and the modifications approved by the court's October 10, 2013, Order. So Ordered by Judge Nicholas G. Garaufis on 1/14/2014. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 01/15/2014)
21 Letter dated 1/14/2014 to Judge Garaufis from Jeffrey J. Sherrin, Esq., and Harold N. Iselin, Esq., representing Adult Home Residents and concerned businesses, re proposed modifications to the settlement. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 01/17/2014)
22 Letter concerning additional submissions by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 01/17/2014)

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 8 of 20

01/17/2014 01/30/2014 02/04/2014 02/04/2014 02/12/2014
03/17/2014
03/18/2014 04/04/2014
04/11/2014 06/10/2014 06/24/2014
09/30/2014

ORDER. The court GRANTS Defendants' request 22 to make additional submissions before the court's final ruling on settlement. Any party that intends to make an additional submission to the court regarding settlement may do so on or before February 4, 2014. Ordered by Judge Nicholas G. Garaufis on 1/17/2014. (Holmes, Jennifer) (Entered: 01/17/2014)
23 SETTLEMENT AGREEMENT Amended Stipulation and Order of Settlement by United States of America Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Nicholas) (Entered: 01/30/2014)
24 Letter by United States of America Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Nicholas) (Entered: 02/04/2014)
25 Letter by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 02/04/2014)
26 Letter dated 2/6/2014 to Judge Garaufis from Jeffrey J. Sherrin, Esq., and Harold N. Iselin, Esq., representing Adult Home Residents and concerned businesses, in response to letters submitted to the Court on February 4, 2014 by the plaintiff class (Dkt. No. 54), the United States (Dkt. No. 55), and the defendants (Dkt. No. 56). Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 02/12/2014)
28 ORDER: The court finds the proposed settlement to be fair, reasonable, and adequate. The court also finds the attorney's fees to be reasonable. Therefore Plaintiffs' Motion for Final Approval of the Proposed Settlement Agreement and Attorney's Fees in case No. 13−CV−4166 is GRANTED. For purposes of case No. 13−CV−4165, the Proposed Settlement Agreement serves as a Consent Judgment and is also APPROVED. Ordered by Judge Nicholas G. Garaufis on 3/17/2014. (Holmes, Jennifer) (Main Document 28 replaced on 3/18/2014) (Lee, Tiffeny). (Entered: 03/17/2014)
ORDER. The March 17, 2014, Memorandum and Order (Document 28 ) has been updated to correct footnote 10. Ordered by Judge Nicholas G. Garaufis on 3/18/2014. (Holmes, Jennifer) (Entered: 03/18/2014)
ORDER. By April 11, 2014, the parties shall advise the court of the amount of funds for implementation of the Settlement in these actions appropriated in the budget recently passed by the New York State legislature for the Fiscal Year commencing April 1, 2014. Ordered by Judge Nicholas G. Garaufis on 4/4/2014. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG. (Holmes, Jennifer) (Entered: 04/04/2014)
29 Letter advising the court of funds appropriated for implementation of settlement by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 04/11/2014)
30 STATUS REPORT by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Quarterly Report: Jan. 23 to Apr. 23, 2014) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 06/10/2014)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis:Status Conference held on 6/20/2014. In connection with Defendants' First Quarterly Report, the parties and the Independent Reviewer provided a status update to the court about the implementation of the settlement agreement. (Court Reporter Anthony Mancuso.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Holmes, Jennifer) (Entered: 06/24/2014)
31 STATUS REPORT by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Appendix) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara)

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 9 of 20

11/05/2014
12/02/2014
12/12/2014 12/16/2014 01/16/2015 03/30/2015 04/10/2015 04/10/2015 04/17/2015 04/21/2015 05/12/2015

(Entered: 09/30/2014)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 11/3/2014. In connection with Defendants' Second Quarterly Report, the parties and the Independent Reviewer provided a status update to the court regarding the implementation of the Settlement Agreement. (Court Reporter Gene Rudolph.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Izant, Jeffrey) (Entered: 11/5/2014) (Entered: 11/05/2014)
32 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/3/14, before Judge Garaufis. Court Reporter/Transcriber Rudolph. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 12/23/2014. Redacted Transcript Deadline set for 1/5/2015. Release of Transcript Restriction set for 3/2/2015. (Rudolph, Gene) (Entered: 12/02/2014)
33 MOTION for Extension of Time to File Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 12/12/2014)
34 ORDER granting (33) Motion for Extension of Time to File in case 1:13−cv−04165−NGG−MDG; granting (66) Motion for Extension of Time to File in case 1:13−cv−04166−NGG−MDG. So Ordered by Judge Nicholas G. Garaufis on 12/12/2014. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 12/16/2014)
35 STATUS REPORT by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Status Report) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 01/16/2015)
36 ANNUAL REPORT submitted by Clarence J. Sundram, Independent Reviewer. (Attachments: # 1 Appendix) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Chee, Alvin) (Entered: 03/30/2015)
37 MOTION for Extension of Time to File Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Goldberg, Jane) (Entered: 04/10/2015)
38 ORDER granting 37 Motion for Extension of Time to File Quarterly Report. Defendants' Quarterly Report due April 21, 2015. Ordered by Judge Nicholas G. Garaufis on 4/10/2015. (Day, Lori) (Entered: 04/10/2015)
39 Letter Regarding Budget Appropriations by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 04/17/2015)
40 STATUS REPORT by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock (Attachments: # 1 Exhibit) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 04/21/2015)
41 NOTICE by Clarence J Sundram Request for Court Order (Attachments: # 1 Proposed Order) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Sundram, Clarence) (Entered: 05/12/2015)

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 10 of 20

05/12/2015 05/13/2015 05/14/2015 05/14/2015
05/15/2015 07/01/2015 07/06/2015 07/06/2015 07/29/2015 07/29/2015 07/31/2015
08/10/2015 08/20/2015

42 Letter regarding Independent Reviewer's Proposed Order by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 05/12/2015)
43 COURT EXHIBIT 1: Presentation on 2015 Annual Report by Independent Reviewer. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 05/14/2015)
44 EXHIBIT 1 by United States of America presented at court conference on May 13, 2015 by United States of America. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Goldberger, Michael) (Entered: 05/14/2015)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 5/13/2015. In connection with the Independent Reviewer's First Annual Report and Defendants' Fourth Quarterly Report, the Independent Reviewer and the parties provided a status update to the court regarding implementation of the Settlement Agreement. The court requested that Defendants provide an additional report to the court by July 1, 2015, responding to the specific issues raised by Plaintiffs and the Independent Reviewer. (Court Reporter Holly Driscoll.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG. (Izant, Jeffrey) (Entered: 05/14/2015)
45 ORDER regarding monitoring compliance. So Ordered by Judge Nicholas G. Garaufis on 5/13/2015. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 05/15/2015)
46 STATUS REPORT by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Status Report) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 07/01/2015)
47 STATUS REPORT Quarterly report dated July 6, 2015 by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 07/06/2015)
48 Letter Cover letter to Quarterly report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 07/06/2015)
49 Letter responding to the State's July 1, 2015 report to the Court by United States of America Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Goldberger, Michael) (Entered: 07/29/2015)
50 MOTION to Withdraw as Attorney (Katherine Brady Dirks) by State of New York. (Dirks, Katherine) (Entered: 07/29/2015)
ORDER granting Katherine Brady Dirks' 50 84 Motion to Withdraw as Attorney and Veronica Seungwon Jung's 80 Motion to Withdraw as Attorney. Attorney Katherine Brady Dirks terminated in case 1:13−cv−04165−NGG−MDG and 1:13−cv−04166−NGG−MDG; Attorney Veronica Seungwon Jung terminated in case 1:13−cv−04166−NGG−MDG. Ordered by Magistrate Judge Marilyn D. Go on 7/31/2015. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Moo−Young, Jillian) (Entered: 07/31/2015)
Status Conference set for 8/19/2015 at 02:30 PM in Courtroom 4D South before Judge Nicholas G. Garaufis. (Riquelme, Claudia) (Entered: 08/10/2015)
51 EXHIBIT Presented by defendants at Aug. 19, 2015 conference by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway,

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 11 of 20

08/20/2015 08/21/2015 10/15/2015 12/02/2015
01/14/2016 01/26/2016 02/16/2016
02/16/2016 02/17/2016 02/19/2016

Barbara) (Entered: 08/20/2015)
52 NOTICE of Appearance by Matthew Joseph Lawson on behalf of State of New York (aty to be noticed) (Lawson, Matthew) (Entered: 08/20/2015)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 8/19/2015. In connection with Defendants' 46 July 1, 2015, Status Report, and Defendants' 47 Fifth Quarterly Report, the parties and the Independent Reviewer provided a status update to the court regarding the implementation of the Settlement Agreement. (Court Reporter Lisa Schwam.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Izant, Jeffrey) (Entered: 08/21/2015)
53 STATUS REPORT Quarterly Report Oct. 15, 2015 by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 10/15/2015)
54 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 13, 2015, before Judge Garaufis. Court Reporter/Transcriber H. Driscoll, Telephone number 718−613−2274. Email address: hdrisc@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 12/23/2015. Redacted Transcript Deadline set for 1/4/2016. Release of Transcript Restriction set for 3/1/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Driscoll, Holly) (Entered: 12/02/2015)
55 SCHEDULING ORDER: Status Conference set for 2/19/2016 02:00 PM in Courtroom 4D South before Judge Nicholas G. Garaufis. Ordered by Judge Nicholas G. Garaufis on 1/14/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Nelson, Jack) (Entered: 01/14/2016)
56 STATUS REPORT Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 01/26/2016)
57 ORDER: On February 8, 2016, the court received a letter from Jeffrey J. Sherrin of O'Connell & Aronowitz, who claims to represent "many of the adult homes identified in the Federal settlement" in the above−captioned actions but who has not filed an appearance in either action. The letter makes a number of serious allegations regarding the implementation of the settlement agreement. On February 12, 2016, Plaintiffs' counsel filed a response to Mr. Sherrin's letter on ECF. (Ltr. (Dkt. 91 in 13−CV−04166).) In light of Plaintiffs' counsel's response, the Clerk of Court is respectfully directed to file Mr. Sherrin's letter on ECF as a relevant document in both actions. The parties should be prepared to discuss both letters at the upcoming status conference. So Ordered by Judge Nicholas G. Garaufis on 2/12/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 02/16/2016)
58 Letter dated 2/8/2016 to Judge Nicholas G. Garaufis from Jeffrey J. Sherrin, Esq. regarding the implementation of the settlement agreement. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 02/16/2016)
59 Letter by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 02/17/2016)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 2/19/2016. In connection with Defendants' 56 Seventh Quarterly Report, the parties and the Independent Reviewer provided a status update to the court

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03/10/2016 03/14/2016 03/25/2016 04/01/2016 04/08/2016 04/18/2016 04/20/2016
05/31/2016 06/20/2016

regarding the implementation of the Settlement Agreement. The next status conference will be held on June 3, 2016, at 02:00 PM in Courtroom 4D South. (Court Reporter Stacy Mace.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Nelson, Jack) (Entered: 02/19/2016)
60 MOTION for Extension of Time to File Response to letter by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 03/10/2016)
61 ORDER granting (60) Motion for Extension of Time to File in case 1:13−cv−04165−NGG−MDG; and granting (95) Motion for Extension of Time to File in case 1:13−cv−04166−NGG−MDG. So Ordered by Judge Nicholas G. Garaufis on 3/10/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 03/14/2016)
62 Letter in response to Feb. 8, 2016 letter of Mr. Sherrin by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 03/25/2016)
63 STATUS REPORT Annual Report by Clarence J Sundram Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Sundram, Clarence) (Entered: 04/01/2016)
64 Notice of Related Case (Bowens, Priscilla) (Entered: 04/08/2016)
65 STATUS REPORT Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 04/18/2016)
66 ORDER re 16−CV−1683, 13−CV−4165, and, 13−CV−4166: The court notes that the 10 and 13 letters requesting reassignment do not comply with the court's individual rules requiring parties to request a pre−motion conference prior to filing a motion. However, the court waives that requirement in this case and DENIES as unnecessary the motion for a pre−motion conference, (Dkt. 11 in 16−CV−1683).). However, if Residents and Families Plaintiffs and Empire Plaintiffs wish to move for the reassignment and/or remand of Residents and Families United, they must make a formal, omnibus motion to that effect. The court sets the following briefing schedule: Residents and Families Plaintiffs and Empire Plaintiffs shall serve their motions upon all parties in all three above−captioned cases by April 29, 2016; those parties shall serve their responses upon Residents and Families Plaintiffs and Empire Plaintiffs by May 13, 2016; and Residents and Families Plaintiffs and Empire Plaintiffs shall serve their replies, if any, upon the other parties and electronically file the fully briefed motions by May 20, 2016. Finally, the court GRANTS Defendants' motion for an extension of time to answer the Second Amended Complaint in Residents and Families United, until fourteen (14) days following a decision on Plaintiffs' anticipated motions. (See First Mat. for Extension of Time (Dkt. 7 in 16−CV−1683).) So Ordered by Judge Nicholas G. Garaufis on 4/20/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Tiffeny) (Entered: 04/20/2016)
SCHEDULING ORDER: Status Conference originally set for 6/3/2016 is rescheduled for 6/20/2016 at 11:00 AM in Courtroom 4D South. Ordered by Judge Nicholas G. Garaufis on 5/31/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Nelson, Jack) (Entered: 05/31/2016)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 6/20/2016. Counsel for all parties present. In connection with the Independent Reviewer's 63 Annual Report and Defendants' 65 Quarterly Report, the parties and the Independent Reviewer provided a status update to the court regarding the implementation of the Settlement Agreement. The court ordered Defendants to file a formal response to the Independent Reviewer's recommendations by June 23, 2016. The Independent Reviewer will canvass the parties and suggest a date for the next

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06/24/2016 08/02/2016 09/12/2016 09/14/2016 09/19/2016 10/04/2016
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status conference. (Court Reporter Sherry Bryant.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Nelson, Jack) (Entered: 06/20/2016)
67 STATUS REPORT Response to Independent Reviewer's Annual Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 06/24/2016)
68 STATUS REPORT Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 08/02/2016)
69 MOTION to Withdraw as Attorney NICHOLAS C. LEE by United States of America. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lee, Nicholas) (Entered: 09/12/2016)
ORDER granting (69) Motion to Withdraw as Attorney. Attorney Nicholas Lee terminated in case 1:13−cv−04165−NGG−MDG. Ordered by Magistrate Judge Marilyn D. Go on 9/14/2016. Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hugh, Lewis) (Entered: 09/14/2016)
70 Letter re Status of implementation of Settlement by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Exhibit) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Hathaway, Barbara) (Entered: 09/19/2016)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 9/30/2016. Counsel for all parties present. In connection with the Independent Reviewer's 71 Special Report on In−Reach and Contractor Staffing, Defendants' 67 Response to the Independent Reviewer's 63 Annual Report, and Defendants' 68 Quarterly Report, the parties and the Independent Reviewer provided a status update to the court regarding the implementation of the Settlement Agreement. The court DIRECTED Defendants to file the following items by October 31, 2016: (1) a formal response to the Independent Reviewer's Special Report on In−Reach and Contractor Staffing recommendations; (2) a supplemental report addressing outstanding issues that have been identified by the parties concerning Defendants' responses to the Independent Reviewer's Annual Report recommendations; and (3) a list of the adult homes and, with respect to each home, the number of beds and the percentage of residents with mental illness residing at that home. The court further DIRECTED Plaintiffs to submit a letter by October 31, 2016, which details their concerns regarding involuntary discharges at certain adult homes. The court set a date for the next status conference but due to a scheduling conflict, the Independent Reviewer will canvass the parties and suggest a new date for the next status conference. (Court Reporter Charleane M. Heading.) Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Weigel, Jessica) (Entered: 10/04/2016)
SCHEDULING ORDER: Status Conference originally set for 12/16/2016 is rescheduled for 1/18/2017 at 11:00 AM in Courtroom 4D South. Ordered by Judge Nicholas G. Garaufis on 10/11/2016. (Weigel, Jessica) (Entered: 10/11/2016)
72 STATUS REPORT Response to the Court's inquiries from 9/30/2016 conference by Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−MDG, 1:13−cv−04166−NGG−MDG (Lawson, Matthew) (Entered: 10/31/2016)
Case Reassigned to Magistrate Judge Robert M. Levy. Magistrate Judge Marilyn D. Go no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Marziliano, August) (Entered: 11/23/2016)

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11/28/2016 11/30/2016 12/22/2016 01/19/2017
01/20/2017 01/26/2017 02/15/2017
02/21/2017 02/22/2017

73 Letter in Response to Plaintiffs' October 28, 2016 Letter Regarding Non−Transitional Discharges by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 11/28/2016)
74 NOTICE of Appearance by Erin P. Kandel on behalf of State of New York (aty to be noticed) (Kandel, Erin) (Entered: 11/30/2016)
75 STATUS REPORT Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 12/22/2016)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 1/18/2017. Counsel for all parties present. In connection with the Defendants' 75 Quarterly Report, the parties and the Independent Reviewer provided a status update to the court regarding the implementation of the 23 Settlement Agreement. The court requested that the Governor's Appointments Office expedite the hiring of a replacement for the Director of the Office of Community Transitions at the New York State Department of Health. The parties informed the court that they intend to meet and confer concerning possible changes to the structure of the Settlement Agreement. The court DIRECTED the parties to file a joint status report by April 1, 2017, reporting on their progress towards amending the Settlement Agreement. The parties further reported to the court that they have not reached an agreement with respect to Plaintiffs' request for information concerning non−transitional discharges. The court DIRECTED the parties to advise the court by March 1, 2017, as to whether the parties have resolved this issue. The next status conference will be held on April 5, 2017, at 11:00 AM in Courtroom 4D South. (Court Reporter Michele Nardone.) Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Weigel, Jessica) (Entered: 01/19/2017)
76 NOTICE of Appearance by Todd Alan Spiegelman on behalf of All Defendants (aty to be noticed) (Spiegelman, Todd) (Entered: 01/20/2017)
77 NOTICE of Appearance by Eliza Dermody on behalf of United States of America (aty to be noticed) Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Dermody, Eliza) (Entered: 01/26/2017)
ORDER re Class Plaintiffs' Application for Status Conference [Dkt. 118 in Case No. 13−CV−4166]. Class Plaintiffs seek a status conference on the disputed issue of class counsel's ability to monitor and observe in−reach at the adult homes. Class Plaintiffs are DIRECTED to bring this dispute to the attention of the Independent Reviewer pursuant to Section L.6.f. of the Amended Settlement Agreement. If the parties are unable to resolve this dispute with the help of the Independent Reviewer, the court will hold a status conference on February 22, 2017, at 3:30 PM in Courtroom 4D South. Ordered by Judge Nicholas G. Garaufis on 2/15/2017. (Weigel, Jessica) (Entered: 02/15/2017)
SCHEDULING ORDER: A status conference is set for February 22, 2017, at 3:30 PM in Courtroom 4D South before Judge Nicholas G. Garaufis. All parties are DIRECTED to appear at the conference. Ordered by Judge Nicholas G. Garaufis on 2/21/2017. (Weigel, Jessica) (Entered: 02/21/2017)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 2/22/2017. Counsel for all parties present. Class counsel moved the court to order Defendants to allow class counsel's expert, Elizabeth Jones, to observe the in−reach process. The court reserved judgment on the Motion. Defendants reported to the court that they consented to the February 16, 2017, Order from the New York State Supreme Court in John Doe v. Howard Zucker, et al., Index No. 07079/2016, which temporarily restrained and enjoined the New York State Department of Health and the New York State Office of Mental Health from enforcing or implementing the following regulations: 18 N.Y.C.R.R. § 487.4(c); 8 N.Y.C.R.R. §§ 487.13(c), (d), (e), (f), (g); 14 N.Y.C.R.R. § 580.6(c)(2); 14 N.Y.C.R.R. § 582.6(c)(2) (the "Regulations"). Entry of the Temporary Restraining Order ("TRO") enjoining the Regulations triggers Section O of the Settlement Agreement, which requires the parties to meet and confer "in good faith at least three times during a

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02/23/2017
02/28/2017 02/28/2017 03/01/2017
03/01/2017 03/06/2017

period of 120 days after such court order" in order to "determine appropriate modifications to th[e] [Settlement Agreement] that would give effect to the original intent of the [parties to the Settlement Agreement]." The court DIRECTED the parties to submit a letter to the court by no later than June 16, 2017, the end of the 120−day period, informing the court as to whether the parties have reached an agreement on appropriate modifications to the Settlement Agreement. The court further ORDERED that if the parties are unable to reach an agreement, the court will hold a trial in this case, to commence on July 10, 2017. The parties are DIRECTED to work with Magistrate Judge Robert M. Levy to prepare a proposed joint pre−trial order ("JPTO"). The parties are further DIRECTED to submit the proposed JPTO to this court by June 9, 2017. The court ORDERED the Attorney General of the State of New York to appear at the next status conference on April 5, 2017, at 11:00 AM in Courtroom 4D South. If the Attorney General is not available on April 5, 2017, the court will consider another date in early April when the Attorney General is available and will reschedule the status conference accordingly. All other dates and deadlines in this case shall remain in effect. So Ordered by Judge Nicholas G. Garaufis on 02/22/2017. (Court Reporter Charleane Heading.) Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Weigel, Jessica) (Entered: 02/22/2017)
ORDER re April 5, 2017, Status Conference: Howard A. Zucker, M.D., J.D., Commissioner of Health for New York State, and Ann Marie T. Sullivan, M.D., Commissioner of Mental Health for New York State, are ORDERED to appear at the next status conference on April 5, 2017, at 11:00 AM in Courtroom 4D South. The Commissioners should be prepared to testify under oath about their decision to consent to entry of a Temporary Restraining Order in the Albany County Supreme Court regarding the regulations referenced in the Settlement Agreement. Ordered by Judge Nicholas G. Garaufis on 2/23/2017. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML. (Weigel, Jessica) (Entered: 02/23/2017)
78 Letter Requesting Leave to Allow Kent Stauffer, Esq. to Appear at Status Conference by State of New York Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 02/28/2017)
79 Letter MOTION to Withdraw as Attorney Request to Allow the New York State Office of the Attorney General to Withdraw as Counsel by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. (Attachments: # 1 Declaration of Kent T. Stauffer in Support of the New York State Office of Attorney General's Request to Withdraw as Counsel) Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 02/28/2017)
80 ORDER re the New York State Office of the Attorney General's ("OAG") Motion to Withdraw as Counsel. The court ORDERS: (1) OAG to submit a memorandum of law in support of its Motion by no later than March 6, 2017; and (2) Plaintiffs to advise the court in writing as to whether they consent or object to the Motion and state their reasons for taking such position by no later than March 13, 2017. The court will hold a hearing on the Motion on March 22, 2017, at 11:00 AM in Courtroom 4D South. Counsel for all parties are DIRECTED to review the attached Order for instructions as to who is required to appear at the hearing. Ordered by Judge Nicholas G. Garaufis on 3/1/2017. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML. (Weigel, Jessica) (Entered: 03/01/2017)
81 Letter Regarding Non−Transitional Discharges by Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 03/01/2017)
82 MEMORANDUM in Support re (120 in 1:13−cv−04166−NGG−RML, 79 in 1:13−cv−04165−NGG−RML) Letter MOTION to Withdraw as Attorney Request to Allow the New York State Office of the Attorney General to Withdraw as Counsel filed by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, State of New York. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 03/06/2017)

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03/07/2017
03/09/2017
03/13/2017 03/15/2017 03/16/2017 03/16/2017 03/17/2017 03/17/2017 03/17/2017 03/20/2017 03/22/2017

83 ORDER re the Office of the Attorney General's ("OAG") Motion to Withdraw as Counsel: OAG is DIRECTED to file a supplemental brief by no later than March 9, 2017, advising the court as to whether there are any exceptions to OAG's statutory duty to defend that would justify it withdrawing from its representation of the State Defendants. Ordered by Judge Nicholas G. Garaufis on 3/7/2017. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML. (Weigel, Jessica) (Entered: 03/07/2017)
84 MEMORANDUM in Support re (120 in 1:13−cv−04166−NGG−RML, 79 in 1:13−cv−04165−NGG−RML) Letter MOTION to Withdraw as Attorney Request to Allow the New York State Office of the Attorney General to Withdraw as Counsel (The OAG's Supplemental Memorandum of Law) filed by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 03/09/2017)
85 Letter re the New York State Office of the Attorney General's Motion to Withdraw as Counsel by United States of America Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Dermody, Eliza) (Entered: 03/13/2017)
86 NOTICE of Appearance by Jennifer Bronson on behalf of United States of America (aty to be noticed) Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Bronson, Jennifer) (Entered: 03/15/2017)
87 Letter Regarding Procedure for March 22 Hearing by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 03/16/2017)
ORDER re Plaintiffs' Motion to Compel (see Dkt. 130 in Case No. 13−CV−4166). Defendants are DIRECTED to respond to Plaintiffs' Motion by no later than 2:00 PM on March 17, 2017. Plaintiffs shall file their reply, if any, by no later than 9:00 AM on March 20, 2017. Ordered by Judge Nicholas G. Garaufis on 3/16/2017. (Weigel, Jessica) (Entered: 03/16/2017)
88 Letter Regarding Plaintiffs' Motion to Compel by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 03/17/2017)
89 RESPONSE to Motion re (130 in 1:13−cv−04166−NGG−RML) Letter MOTION to Compel expedited production of documents filed by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Lawson, Matthew) (Entered: 03/17/2017)
90 ORDER re Defendants' Application to Stay Plaintiffs' Motion to Compel Expedited Production of Documents: The Application is DENIED. Ordered by Judge Nicholas G. Garaufis on 3/17/2017. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Weigel, Jessica) (Entered: 03/17/2017)
ORDER re Plaintiffs' Application for Extension of Time (Dkt. 136 in No. 13−CV−4166) to Reply in Further Support of Plaintiffs' Motion to Compel (Dkt. 130 in No. 13−CV−4166). The Application is GRANTED. Plaintiffs' deadline to file their Reply is extended nunc pro tunc until 9:00 AM on March 21, 2017. Ordered by Judge Nicholas G. Garaufis on 3/20/2017. (Weigel, Jessica) (Entered: 03/20/2017)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: The court held a hearing on the Office of the Attorney General's ("OAG") Motion to Withdraw as Counsel for the State Defendants. Counsel for all parties present. The court reserved judgment on the Motion to Withdraw.

The court granted Class Plaintiffs' Motion for Additional Discovery (Dkt. 138 in No. 13−CV−4166) and set the following deadlines for discovery: (1) The State Defendants

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03/23/2017
03/24/2017 03/24/2017 03/24/2017 03/24/2017 03/24/2017 03/24/2017
03/28/2017

shall provide a privilege log to Plaintiffs by no later than March 29, 2017, at 5:00 P.M.; (2) discovery, including depositions, shall be complete by no later than May 5, 2017; (3) the court will hold a hearing on the full record on May 17, 2017, at 10:00 AM in Courtroom 4D South. The court instructed the parties that all discovery issues should be raised with Magistrate Judge Robert M. Levy. The court advised the State Defendants that they may retain separate counsel (besides OAG) for the limited purpose of responding to Plaintiffs' discovery requests. The State Defendants shall promptly advise the court as to who they have retained.
With regard to Doe v. Zucker, et al., Index No. 07079/2016 (N.Y. Sup. Ct.), Howard A. Zucker, M.D., J.D., Commissioner of Health for the State of New York, advised the court that the Department of Health ("DOH") consents to the John Doe plaintiff's request to return to the Oceanview Manor adult home. Accordingly, the court directed OAG to: (1) advise the state court that Doe v. Zucker is now moot and that the Temporary Restraining Order ("TRO") entered in that case should therefore be rescinded; (2) inform the state court of the existence of this federal action and the DAI Settlement Agreement; and (3) advise this court when the issues of the rights of John Doe and the TRO have been resolved.
The parties' deadline to file a joint status report, reporting on their progress towards amending the Settlement Agreement, is adjourned sine die. The status conference set for April 5, 2017, is also adjourned and will be rescheduled at a later date. (Court Reporter Annette Montalvo.) Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Weigel, Jessica) (Entered: 03/22/2017)
91 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3−22−2017, before Judge Nicholas G. Garaufis. Court Reporter/Transcriber Annette M. Montalvo, Telephone number 718−804−2711. Email address: annette.montalvo@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 4/13/2017. Redacted Transcript Deadline set for 4/24/2017. Release of Transcript Restriction set for 6/21/2017. Associated Cases: 1:13−cv−04165−NGG−RML, 1:13−cv−04166−NGG−RML (Montalvo, Annette) (Entered: 03/23/2017)
Magistrate Judge Steven Tiscione randomly assigned. Magistrate Judge Robert M. Levy no longer assigned to case. (Brown, Marc) (Entered: 03/24/2017)
92 NOTICE of Appearance by Robert L. Begleiter on behalf of State of New York (aty to be noticed) (Begleiter, Robert) (Entered: 03/24/2017)
93 Letter to Judge Garaufis regarding representation of defendants by Andrew M. Cuomo, The New York State Department of Health, The New York State Office of Mental Health, State of New York Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Begleiter, Robert) (Entered: 03/24/2017)
94 NOTICE of Appearance by Gary J. Malone on behalf of State of New York (aty to be noticed) (Malone, Gary) (Entered: 03/24/2017)
95 NOTICE of Appearance by Jean Kim on behalf of State of New York (aty to be noticed) (Kim, Jean) (Entered: 03/24/2017)
96 STATUS REPORT Defendants' Quarterly Report by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Lawson, Matthew) (Entered: 03/24/2017)
97 Letter to Judge Garaufis by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Letter to Justice Hartman and Justice O'Connor, # 2 Amended Stipulation and Order of Settlement, # 3 Minute Entry, 3/22/17, # 4 Cover page of Hearing Transcript, 3/22/17) Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Spiegelman, Todd) (Entered: 03/28/2017)

Case: 1:13-cv-4165 As of: 06/25/2017 10:44 PM EDT 18 of 20

03/29/2017 03/29/2017 03/30/2017
03/30/2017 03/30/2017 04/03/2017 04/03/2017 04/05/2017
05/04/2017 05/05/2017

98 Letter by Andrew M. Cuomo, The New York State Department of Health, The New York State Office of Mental Health, State of New York Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Begleiter, Robert) (Entered: 03/29/2017)
99 Letter to Judge Garaufis by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York (Attachments: # 1 Supplemental Declaration of Kent T. Stauffer) Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Spiegelman, Todd) (Entered: 03/29/2017)
100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on February 22, 2017, before Judge Garaufis. Court Reporter/Transcriber Charleane M. Heading, Telephone number 718−613−2643. Email address: cheading@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 4/20/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/28/2017. (Heading, Charleane) (Entered: 03/30/2017)
ORDER re the New York State Office of the Attorney General's ("OAG") 99 Letter. Plaintiffs are DIRECTED to submit a response to OAG's letter by no later than April 3, 2017. In their response, Plaintiffs shall advise the court as to whether they intend to seek sanctions against the State Defendants. Ordered by Judge Nicholas G. Garaufis on 3/30/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 03/30/2017)
101 Letter from Kent Stauffer regarding correspondence with Albany Supreme Court by Andrew M. Cuomo, Nirav R. Shah, The New York State Department of Health, The New York State Office of Mental Health, Kristin M. Woodlock, State of New York Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Lawson, Matthew) (Entered: 03/30/2017)
102 NOTICE by Clarence J Sundram Third Annual Report filed Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Sundram, Clarence) (Entered: 04/03/2017)
103 Letter responding to the submission of the New York State Office of the Attorney General dated March 29, 2017, and to advise the Court whether the United States intends to seek sanctions against the State Defendants. by United States of America Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Goldberger, Michael) (Entered: 04/03/2017)
104 TRANSCRIPT of Proceedings held on June 20, 2016, before Judge Garaufis. Court Reporter/Transcriber SHERRY BRYANT. Email address: sbryant102@verizon.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 4/26/2017. Redacted Transcript Deadline set for 5/8/2017. Release of Transcript Restriction set for 7/4/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Hong, Loan) (Entered: 04/05/2017)
105 MOTION to Approve Consent Judgment To Amend the Amended Consent Judgment and Seeking Cancellation of the Hearing Scheduled for May 17, 2017 by United States of America. (Attachments: # 1 Stipulation and Order Amending the Amended Consent Judgment and Seeking Cancellation of the Hearing Scheduled for May 17, 2017, # 2 Second Amended Stipulation and Order of Settlement) Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Goldberger, Michael) (Entered: 05/04/2017)
ORDER re the parties' 105 Motion to Approve Consent Judgment: By no later than May 8, 2017, at 9:00 AM, the parties are DIRECTED to jointly submit a redline, comparing the proposed [105−2] Second Amended Stipulation and Order of

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05/05/2017 05/09/2017
05/10/2017 05/11/2017 05/15/2017 05/17/2017
05/17/2017 05/18/2017 05/18/2017 06/06/2017

Settlement to the 23 Amended Stipulation and Order of Settlement. Ordered by Judge Nicholas G. Garaufis on 5/5/2017. Associated Cases: 1:13−cv−04165 NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 05/05/2017)
106 STIPULATION REDLINED, COMPARING Amended Stipulation and Order of Settlement to Second Amended Stipulation and Order of Settlement, pursuant to the Court's order dated May 5, 2017 by United States of America Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Goldberger, Michael) (Entered: 05/05/2017)
107 ORDER, that the May 17, 2017, hearing on the New York State Office of the Attorney General's ("OAG") motion to withdraw (Mot. to Withdraw (Dkt. 79) is converted to a status conference and is rescheduled from May 17, 2017, at 10:00 a.m., to May 17, 2017, at 2:00 p.m. Counsel for all parties in the above captioned matters shall be present. In addition, the following individuals are ORDERED to appear: Alphonso B. David, Counsel to the Governor; Paul Francis, Deputy Secretary to the Governor for Health and Human Services for the New York State; Keith J. Starlin, Assistant Attomey General; Howard A. Zucker, M.D., J.D., Commissioner of Health for New York State; Michael G. Bass, Director of the Bureau of Litigation at New York State Department of Health; Ann Marie T. Sullivan, M.D., Commissioner of Mental Health for New York State; and Mark Noordsy, Deputy Counsel for Litigation at New York State Office of Mental Health. (See Order for further detail.) So Ordered by Judge Nicholas G. Garaufis on 5/8/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Lee, Tiffeny) (Entered: 05/09/2017)
ORDER re May 17, 2017, hearing: The State shall be prepared to advise the court of the amount of funds appropriated in the New York State FY 2017−18 Budget for implementation of the Settlement in these actions. Ordered by Judge Nicholas G. Garaufis on 5/10/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 05/10/2017)
108 Letter by Andrew M. Cuomo, The New York State Department of Health, The New York State Office of Mental Health, State of New York Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Begleiter, Robert) (Entered: 05/11/2017)
109 NOTICE of Appearance by Harrison J. McAvoy on behalf of State of New York (aty to be noticed) (McAvoy, Harrison) (Entered: 05/15/2017)
Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Status Conference held on 5/17/2017. Counsel for all parties present. In connection with the Independent Reviewer's Third Annual Report and Defendants' Quarterly Report, the Independent Reviewer and the parties provided a status update to the court regarding the implementation of the Settlement Agreement. The next status conference will be held on July 10, 2017, at 2:00 PM in Courtroom 4D South. (Court Reporter Lisa Schmid) Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 05/17/2017)
110 COURT EXHIBITS 1−3 Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Lee, Tiffeny) (Entered: 05/18/2017)
111 STIPULATION AND ORDER, amending the Agreement (Amended Stipulation and Order of Settlement, Doc. 28 ) to delete section O.1, and withdrawing specified discovery requests. See Document for complete detail. So Ordered by Judge Nicholas G. Garaufis on 5/17/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Lee, Tiffeny) (Entered: 05/18/2017)
112 SECOND AMENDED STIPULATION AND ORDER OF SETTLEMENT. So Ordered by Judge Nicholas G. Garaufis on 5/17/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Lee, Tiffeny) (Entered: 05/18/2017)
113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5−17−2017, before Judge Nicholas Garaufis. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613−2644. Email address: LisaSchmidCCR.RMR@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for

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Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 6/27/2017. Redacted Transcript Deadline set for 7/7/2017. Release of Transcript Restriction set for 9/4/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Schmid, Lisa) (Entered: 06/06/2017)
114 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207−9590106. by State of New York. (Attachments: # 1 Notice of Motion in Support, # 2 Exhibit Certificate of Good Standing) (Scott, William) (Entered: 06/08/2017)
ORDER granting 114 Motion for Leave to Appear Pro Hac Vice. Having reviewed the Pro Hac Vice application 114 submitted by William A. Scott for Defendant State of New York and found it to be in compliance with the local rules concerning attorney admissions, the application is approved. If not already done, the attorney shall register for ECF which is available online at the NYED's homepage. Once registered, the attorney shall file a notice of appearance and ensure that he receives electronic notifications of activity in this case. Also, the attorney shall ensure that the $150 admission fee is submitted to the Clerk's Office. So Ordered by Magistrate Judge Steven Tiscione on 6/9/2017. (Vasquez, Lea) (Entered: 06/09/2017)
115 NOTICE of Appearance by William Scott on behalf of State of New York (notification declined or already on case) (Scott, William) (Entered: 06/09/2017)
116 ORDER: The court APPOINTS Katya Jestin of Jenner & Block LLP to serve as a guardian ad litem for the Class Member Plaintiffs. The court further DIRECTS Jeffrey Sherrin, counsel for the plaintiffs in the Regulations Actions, to provide the court with (1) the names of the anonymous Class Member Plaintiffs; and (2) contact information for each of the Class Member Plaintiffs. Ordered by Judge Nicholas G. Garaufis on 6/15/2017. (Attachments: # 1 Exhibit Roberts Deposition Transcript) Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 06/15/2017)
117 Letter requesting change in time of the status conference scheduled for July 10, 2017 by United States of America (Goldberger, Michael) (Entered: 06/21/2017)
SCHEDULING ORDER: The status conference originally set for July 10, 2017, at 2:00 PM is rescheduled to July 10, 2017, at 11:45 AM in Courtroom 4D South before Judge Nicholas G. Garaufis. Ordered by Judge Nicholas G. Garaufis on 6/21/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 06/21/2017)
118 ORDER: The court finds that, for the purposes of Mental Hygiene Law § 33.13(c)(1), the need for the guardian ad litem to access otherwise confidential information (including protected health information as defined in 45 C.F.R. § 160.103) in order to carry out her duties as set forth in the court's June 15, 2017, Order significantly outweighs the need for confidentiality. Pursuant to 45 C.F.R. § 164.512(e)(1)(i) and the inherent authority of the court, it is hereby ORDERED that the guardian ad litem shall have access to the Class Member Plaintiffs' protected health information and other confidential information that is necessary for the guardian ad litem to conduct her duties. Ordered by Judge Nicholas G. Garaufis on 6/22/2017. Associated Cases: 1:13−cv−04165−NGG−ST, 1:13−cv−04166−NGG−ST (Weigel, Jessica) (Entered: 06/22/2017)

 
 712fjf13 USDOJ: Justice Department Obtains Corllll"ehensiw Agreement to Ensure NewYorkCityAd.Jt Home Residents with Mental Illness /Ve Affa"ded Opporh.rl...
Department ofJustice

FOR IMMEDIATE RELEASE

Office ofPublic Affairs Tuesday, July 23, 2013

Justice Department Obtains Comprehensive Agreement to Ensure New York City Adult Home Residents with Mental Illness Are Afforded Opportunities to Live in the Community
The Justice Department's Civil Rights Division and the U.S. Attorney's Office for the Eastern District ofNew York announced today that they, along with plaintiffadult home residents, entered into a comprehensive settlement agreement with the state ofNew York under the Americans with Disabilities Act (ADA). The settlement agreement will provide reliefto thousands ofpeople with mental illness unnecessarily segregated in 23 adult homes in New York City. Adult homes are institutional, segregated settings that house large numbers ofpeople with mental illness.

Under the settlement agreement, New York will offer supported housing to people with mental illness currently residing in adult homes. Supported housing is apartments scattered throughout the community for which the state provides rental assistance and housing-related support services. Supported housing residents have access to community-based services and supports that promote their inclusion, independence, and full participation in community life. The settlement agreement has been filed with the U.S. District Court for the Eastern District ofNewYorkfor the court's approval.

The Supreme Court made clear in its landmark decision Olmstead v. L.C, that people with disabilities have a civil right under the ADA to receive services in the most integrated setting appropriate to their needs. The state worked cooperatively with the department and private plaintiffs to negotiate a settlement that resolves the allegations that the New York mental health service system violates the ADA by relying on large, institutional adult homes instead of supported housing units that are scattered throughout the community. A state is responsible for segregation when it designs and implements a system that unnecessarily relies on institutional facilities, regardless ofwhether they are privately owned and operated.

"Today's settlement agreement reaffirms the right ofpeople with disabilities to live independently and participate in all aspects of community life," said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division. "This agreement creates opportunities for thousands ofNewYorkers with mental illness to participate fully in community life, enriching local communities and ending the stigmatization of institutional life. Governor Andrew Cuomo played a crucial role in making this agreement a reality, and I commend his leadership."

Over the next five years, New York will provide scattered-site supported housing to at least 2,ooo, and potentially more than 4,ooo, adult home residents. NewYorkhas also committed to providing people moving to supported housing with the community-based services and supports that will allow them to thrive in the community. The agreement also will ensure that adult home residents have the information they need to make an informed choice about where to live. If they choose to move to supported housing, they will participate in a person-centered, transition planning process. An independent reviewer with extensive experience in mental health systems will monitor the state's compliance with the agreement.

Because ofthis agreement, people like Ilona Spiegel, one ofthe named plaintiffs, will get the opportunity to live independently and "become emancipated" after 15 years in an adult home. Spiegel lived independently in her own apartment until she received psychiatric treatment in a hospital in 1998. When she left the hospital, her only discharge option was to move into an adult home. In the adult home, Spiegel shares a small room with a roommate, has scheduled mealtimes and no opportunity to cook for herself, has little privacy as

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staffhave entered her room without permission and finds living in the adult home extremely isolating. Spiegel has said that she cannot wait to live in her own apartment again and have autonomy over her life, including doing her own cooking, cleaning and shopping, have personal privacy in her home, and be free from intrusion into her personal belongings.

Loretta E. Lynch, U.S. Attorney for the Eastern District ofNewYork stated: "With this agreement, thousands ofNewYorkers will be able to leave the shadow ofinstitutional living and instead live in and contribute to their communities. Because ofthis cooperative effort, their lives will be immeasurably better and our communities all the richer for their presence."

The individual plaintiffadult home residents, on behalfofthemselves and a class ofadult home residents with mental illness, are represented by Paul, Weiss, Rifkind, Wharton &Garrison, LLP; Disability Advocates Inc.; Bazelon Center for Mental Health Law; New York Lawyers for the Public Interest; MFY Legal Services Inc.; and Urban Justice Center.

The Civil Rights Division enforces the ADA, which authorizes the attorney general to investigate whether a

state is serving individuals with disabilities in the most integrated settings appropriate to their needs.

Visit

to learn more about the Olmsteaddecision, the ADA, and other laws enforced by

the Justice Department's Civil Rights Division.

This agreement is due to the efforts ofthe following Civil Rights Division and U.S. Attorney's Office staff: Alison Barkoff, Special Counsel for Olmstead Enforcement; Rebecca B. Bond, Chiefofthe Disability Rights Section; Sheila Foran, Special Legal Counsel; Amanda Maisels and Nicholas Lee, Trial Attorneys; Lance Simon, Contractor; and Michael J. Goldberger, ChiefofCivil Rights in the Civil Division ofthe U.S. Attorney's Office for the Eastern District ofNew York.
Civil Rights Division

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 New York ADA Settlement Fact Sheet
The United States, private plaintiffs, on behalf of themselves and all others similarly situated, and the State of New York, have reached a Settlement Agreement that has been filed with the U.S. District Court for the Eastern District of New York for the court’s approval. Under the Agreement, the State of New York will provide individuals with mental illness in adult homes the opportunity to live in the most integrated setting appropriate to their needs, as required by title II of the Americans with Disabilities Act (ADA), as interpreted by the United States Supreme Court in Olmstead v. L.C., and Section 504 of the Rehabilitation Act. Before reaching this Agreement, the parties litigated these issues in DAI v. Paterson, in the District Court and the U.S. Court of Appeals for the Second Circuit.
 Overview o The Agreement will transform New York’s mental health system to ensure that individuals with mental illness who reside in 23 large, privately owned institutional settings known as adult homes in New York City are provided the opportunity to receive the community-based services and housing that will enable them to live, work, and participate fully in community life. o The Agreement provides community-based, scattered-site supported housing to all people with mental illness who are unnecessarily segregated in these adult homes and who wish to live in supported housing. Supported housing is scattered-site apartments for which the State provides rental assistance and housing-related support services. Residents will have access to flexible services to support them as needed and desired. The State will create at least 2,000 supported housing units and will continue to create additional units to ensure that all eligible adult home residents who want to move to supported housing have the opportunity to do so. o Every adult home resident who moves to supported housing will also get the communitybased mental health services he or she needs to succeed in supported housing, including Assertive Community Treatment (ACT) teams, crisis services, personal care assistance, assistance with taking medication, and care coordination. The State will also implement a person-centered planning process to help people transition into the community.
 Relief in Settlement Agreement o Target Population  The Agreement provides relief to individuals with mental illness residing in 23 adult homes in New York City that have 120 or more beds and in which at least 25% or more of the resident population has a mental illness. There are approximately 4000 individuals with mental illness in these adult homes. o Community-Based Supported Housing  New York will provide supported housing to all individuals with mental illness who are unnecessarily segregated in these adult homes, enabling them to transition from adult homes to the community. Over five years, at least 2,000 people -- and potentially more than 4,000 people -- will benefit from the newly created supported housing units. Supported housing affords individuals choice in their

daily lives and enables them to interact with individuals without disabilities to the fullest extent possible. o Community-Based Mental Health Services  The Agreement will ensure that individuals with mental illness receive the array of services they need to successfully transition to, and remain in, community-based settings. These services include ACT, mental health clinic services, personal care services, home health services, care coordination, and crisis services. o Person-Centered Planning  New York will implement procedures for transition planning that ensure that adult home residents with mental illness are fully informed about supported housing, and have opportunities to visit apartments and speak with peers who live in supported housing.  Adult home residents will be provided information regularly about the benefits of supported housing.  The planning process will identify the housing that is the most integrated setting appropriate for the individual and the services that will support the individual in the community.  Accountability o The Agreement will be monitored by an independent reviewer who will report to the United States and the private plaintiffs on New York’s compliance. o The State is required to provide to the independent reviewer and the parties quarterly reports that track the State’s progress. o The Agreement is court-enforceable.