Case 2:06-cv-01042-BMC-SMG Document 74-2 Filed 09/18/07 Page 1 of 59 PageID #: 994

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

EDWIN T., JOSEPH S. and STEVEN W.;

:

DISABILITY ADVOCATES, INC.; and SIDNEY :

HIRSCHFELD, Director, Mental Hygiene Legal :

Services, Second Judicial Department,

:

:

Plaintiffs, :

:

-against-

:

:

MICHAEL F. HOGAN, in his official

:

capacity as Commissioner of the New York State :

Office of Mental Health; THE NEW YORK

:

STATE OFFICE OF MENTAL HEALTH;

:

RICHARD F. DAINES, in his official capacity :

as Commissioner of the New York State

:

Department of Health; THE NEW YORK STATE :

DEPARTMENT OF HEALTH; and ELIOT

:

SPITZER, in his official capacity as Governor of :

the State of New York,

:

:

Defendants. :

---------------------------------------------------------------x

filed electronically No. 06-CV-1042 (BMC) (SMG)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

John Gasior Deborah Hochhauser Assistant Attorneys General Of Counsel 212-416-8570

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants 120 Broadway - 24th Floor New York, New York 10271

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TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Statutory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. The Nursing Home Reform Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 a. “Preadmission Screenings” by the state mental health authority prior to a nursing home admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 b. Nursing homes are required to regularly perform “assessments and reviews” of residents in their care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 c. The state mental health authority must conduct a “Resident Review” upon notification by a nursing home that there has been a “significant change” in the physical or mental condition of a resident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 d. Nursing homes must prepare a resident “Plan of Care” . . . . . . . . . . . . . . . . . . . . . 6
B. The Parties, Allegations And Relief Requested In The Amended Complaint. . . . . . . . . . 6 1. The Individual Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. The Advocate Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Plaintiffs’ claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4. Defendant Department of Health And Defendant Office Of Mental Health . . . . . . . . 8
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 POINT I - THE NURSING HOME REFORM ACT DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION AGAINST DEFENDANTS . . . . . . . . . . 9 A. The Challenged Sections Of The NHRA Do Not Create Rights Which Are Privately Enforceable Against The Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1. 42 U.S.C. §§ 1396r(e)(7)(A) and (b)(3)(F) do not create privately enforceable rights regarding the Preadmission Screening process . . . . . . . . . . . 11

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2. 42 U.S.C. § 1396r(e)(7)(C) does not create a privately enforceable right to a Resident Review against Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. The existence of an enforcement scheme under the NHRA negates a finding of a private right of action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B. The Regulations Upon Which Plaintiffs Rely Do Not Give Rise To A Privately Enforceable Federal Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
POINT II - PLAINTIFFS FAIL TO STATE A CLAIM AGAINST DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Plaintiffs Fail To State A Claim Against Defendants Under the American With Disabilities Act or The Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 1. Plaintiffs fail to set forth a prima facie case of discrimination by Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 2. Even if plaintiffs established a prima facie case of discrimination against Defendants, the relief sought would require a fundamental alteration of a service, program or activity provided by Defendants . . . . . . . . . . 26 3. Claims against individual defendants should be dismissed . . . . . . . . . . . . . . . . . 27
B. Plaintiffs Fail to State a Claim Against Defendants Under the Nursing Reform Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
POINT III - PLAINTIFFS DAI AND HIRSCHFELD LACK ASSOCIATIONAL STANDING TO BRING THE ASSERTED CLAIMS AGAINST DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
POINT IV - PLAINTIFFS EDWIN T., JOSEPH S. AND STEVEN W. LACK STANDING TO BRING THE ASSERTED CLAIMS AGAINST DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
POINT V - PLAINTIFFS FAIL TO NAME NECESSARY PARTIES . . . . . . . . . . . . . . 41 A. The Nursing Homes Are Necessary Parties To This Litigation . . . . . . . . . . . . . . . . . 42 B. The Article 28 Hospitals Are Necessary Parties To This Litigation . . . . . . . . . . . . . 43
ii

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POINT VI -

A THREE YEAR STATUTE OF LIMITATIONS GOVERNS ALL OF PLAINTIFFS’ CLAIMS AND BARS RELIEF FOR ANY CLAIMS BASED ON ACTS OUTSIDE THE LIMITATION PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

A. Courts In This Circuit Uniformly Apply A Three-Year Statute Of Limitations For Claims Like Those Asserted By Plaintiffs . . . . . . . . . . . . . . . . . . . . 45

POINT VII - GOVERNOR SPITZER SHOULD BE DISMISSED AS A PARTY TO THIS LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

A. Governor Spitzer is not a Proper Party to this Litigation . . . . . . . . . . . . . . . . . . . . . 48

B. Rule 21 of the Federal Rules of Civil Procedure Requires that Governor Spitzer Should be Dismissed from this Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

iii

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TABLE OF AUTHORITIES Cases Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 20 A Helping Hand, LLC v. Baltimore County, Maryland, 295 F. Supp.2d 585 (D. Md. 2003) . . . 41 Access 4 All, Inc. v. Wellington Hotel Co., No. 03 Civ. 5027 (RLC),
2005 WL 3211598 (S.D.N.Y. July 12, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Aiken v. Nixon, 236 F. Supp. 2d 211 (N.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 American Stock Exchange, LLC v. Towergate Consultants Ltd.,
2003 WL 21692814 (S.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Arbor Hill Concerned Citizens Neighborhood Ass'n v. City of Albany,
250 F. Supp. 2d 48 (N.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 38, 39 Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41 BD v. DeBuono, 130 F. Supp. 2d 401 (S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Blessing v. Freestone, 520 U.S. 329 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16 Blum v. Yaretsky, 457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 44, 45 Candelaria v. Cunningham, 98 Civ. 6273 (LAP), 2000 U.S. Dist. LEXIS 8669
(S.D.N.Y. June 20, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Carelli v. Howser, 923 F.2d 1208 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Comm. for Pub. Educ. & Religious Liberty v. Rockefeller, 322 F. Supp. 678
(S.D.N.Y. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Conley v. Gibson, 255 U.S. 41 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503 (2d Cir. 2006) . . . . . . . . . . . . 19 Fiesel v. Bd. of Educ., 490 F. Supp. 363 (E.D.N.Y. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Fitzpatrick v. Sony BMG Music Entertainment, 07 Civ. 2933 (SAS),
2007 U.S. Dist. LEXIS 60238 (S.D.N.Y. Aug. 15, 2007) . . . . . . . . . . . . . . . . . . . . . . . . 20, 33 Fox v. State Univ. of New York, No. 05 CV 2350 (ADS)(ETB),
iv

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2007 WL 2193925 (E.D.N.Y. July 23, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Gardner v. Wansart, No. 05 CIV. 3351 (SHS), 2006 WL 2742043
(S.D.N.Y. Sept. 26, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13, 14, 16, 18 Graus v. Kaladjian, 2 F. Supp. 2d 540 (S.D.N.Y. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Hallett v. New York State Dep't of Correctional Services, 109 F. Supp. 2d 190
(S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Harris v. James, 127 F.3d 993 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Helen L. v. DiDario, 46 F.3rd 325 (3rd Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Henrietta D. v. Bloomberg, 331 F.3rd 261 (2nd Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Hollander v. Brezenoff, 787 F.2d 834 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333 (1977) . . . . . . . . . . . . . . . 33, 34 In re NYAHSA Litig., 318 F. Supp. 2d 30 (N.D.N.Y. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 In re U.S. Catholic Conference (USCC), 885 F.2d 1020 (2nd Cir. 1989) . . . . . . . . . . . . . . . . . . . 42 Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), 490 F.3d 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 King v. Town of Hempstead, 161 F.3d 112 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 179 F.R.D. 417
(S.D.N.Y.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Leocata v. Wilson-Coker, 343 F. Supp. 2d 144 (D. Conn. 2004),
affd’, 148 Fed. Appx. 64 (2nd Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 McNiece v. Jindal, No. Civ. A. 97-2421, 1998 WL 175899 (E.D. La. Apr. 14, 1998) . . 25, 29, 31 Monaco v. Stone, No. CV-98-3386, 2002 WL 32984617 (E.D.N.Y. Dec. 20, 2002) . . . . . . . . . 34 Morse v. University of Vermont, 973 F.2d 122 (2nd Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 47
v

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Nat’l Ass’n. of Coll. Bookstores, Inc. v. Cambridge Univ. Press, 990 F. Supp. 245 (S.D.N.Y. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Okunieff v. Rosenberg, 996 F. Supp. 343 (S.D.N.Y. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23-25, 27 Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . . . . . . . . . . 11, 14, 16 Protection & Advocacy, Inc. v. Murphy, No. 90 C 569, 1992 WL 59100
(N.D. Ill. Mar. 16, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Prye v. Carnahan, No. 04-4248-CV-C-ODS, 2006 WL 1888639
(W.D. Mo. July 17, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 369 F. Supp. 2d 353 (E.D.N.Y. 2005) . . . . 20 Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 39 Rodriguez v. City of New York, 197 F.3d 611 (2nd Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Scaggs v. New York Dept. of Educ., No. 06-DV-0799 (JFB)(VVP),
2007 WL 1456221 (E.D.N.Y. May 16, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Sherwin-Williams Co. v. Spitzer, No. 1:04CV185, 2005 WL 2128938
(N.D.N.Y. Aug. 24, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Small v. Gen. Nutrition Cos., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) . . . . . . . . . . . . . . . . . . . . . . 49 Solomon v. New York City Bd. of Educ., No. CV-95-1878, 1996 WL 118541
(E.D.N.Y. Mar. 6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Taylor v. Vermont Dep’t of Educ., 313 F.3d 768 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 11, 16 United States v. New York, No. 5:04-CV-00428 (NAM/DEP),
2007 U.S. Dist. LEXIS 21722 (N.D.N.Y. Mar. 27, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Univ. Legal Servs., Inc. v. St. Elizabeths Hosp., No. Civ. 105CV00585TFH,
2005 WL 3275915 (D.D.C. July 22, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Wang v. Pataki, 164 F. Supp. 2d 406 (S.D.N.Y. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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Warden v. Pataki, 35 F. Supp.2d 354 (S.D.N.Y. 1999), aff’d sub nom., Chan v. Pataki, 201 F.3rd 430 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Warren v. Altieri, 59 Fed. Appx. 426 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002)ë289 F.3d 852 . . . . . . . . . . . . . . . . 2 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statutes 29 U.S.C. § 701 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 29 U.S.C. § 794(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 10801 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. § 12131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 1396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 1396c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 1396r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 1396r(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. § 1396r(b)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 1396r(b)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 43 42 U.S.C. § 1396r(b)(3)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 44 42 U.S.C. § 1396r(b)(3)(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 12, 13, 31 42 U.S.C. § 1396r(e)(7)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 42 42 U.S.C. § 1396r(e)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15, 26, 28, 31, 32, 42 42 U.S.C. § 1396r(e)(7)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15, 32
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42 U.S.C. § 1396r(e)(7)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16 42 U.S.C. § 1396r(e)(7)(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 29 42 U.S.C. § 1396r(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 1396r(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 1396r(g)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 1396r(g)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 1396r(g)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 1396r(g)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 1396r(g)(3)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 1396r(g)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 201(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Americans with Disabilities Act 42 U.S.C. § 12131 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 New York Mental Hygiene Law Article 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 New York Public Hygiene Law § 2801(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 New York Public Hygiene Law § 2801(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 New York Public Hygiene Law § 2806-b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. . . . 7 Rehabilitation Act, 29 U.S.C. § 794 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rules and Regulations 18 N.Y.C.R.R. § 505.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 10 N.Y.C.R.R. § 415.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 28 C.F.R. 35.130(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 28 C.F.R. § 35.130(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Case 2:06-cv-01042-BMC-SMG Document 74-2 Filed 09/18/07 Page 10 of 59 PageID #: 1003 42 C.F.R. § 430.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 C.F.R. § 483.108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 C.F.R. § 483.116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 42 C.F.R. § 483.118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 C.F.R. § 483.120(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 42 C.F.R. § 483.126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 29 42 C.F.R. § 483.132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 C.F.R. §§ 483.100 - 483.138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Fed. R. Civ. P. Rule 19(a)(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45
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This Memorandum of Law respectfully is submitted on behalf of defendants, Michael F. Hogan, in his official capacity as Commissioner of the New York State Office of Mental Health, The New York State Office of Mental Health (“OMH”), Richard F. Daines, in his official capacity as Commissioner of the New York State Department of Health, the New York State Department of Health (“DOH”) and Eliot Spitzer, in his official capacity as Governor of the State of New York (collectively “Defendants”), in support of their motion to dismiss the First Amended Complaint.
PRELIMINARY STATEMENT Plaintiffs essentially challenge the propriety of the discharge of persons with mental illness from psychiatric hospitals and psychiatric units of general hospitals to nursing homes (such persons collectively are referred to herein as “Nursing Home Residents”) and the care such persons receive once they are in the nursing homes. The First Amended Complaint (“Amended Complaint” or “Amend. Compl.”), alleges that there are “perhaps thousands” of such Nursing Home Residents, an allegation unbounded by any time limitation. While only three Nursing Home Residents are participating as plaintiffs in this action, the relief requested would require the State to individually evaluate thousands of clinical records for an as-yet unidentified and unknown number of Nursing Home Residents, even if the State did not err in affirming the initial determination that placement in a nursing home was warranted and, presumably, even if the State received no subsequent notice that a resident was able and willing to leave. Plaintiffs’ demands do not stop there. Plaintiffs also would have the Court compel Defendants to tailor individualized relief for thousands of Nursing Home Residents, including transferring such persons from a nursing home to another form of residence, even if that required the State to “expand, develop and make available sufficient community-based care and treatment
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opportunities . . . .” for that entire population. Amend. Compl. at pg. 23. Quite simply, the plaintiffs want this Court to issue an order which effectively would compel the State to build thousands of new housing units.
Plaintiffs seek too much. Defendants move to dismiss plaintiffs’ claims made under the federal Nursing Home Reform Act, the Americans with Disabilities Act and the Rehabilitation Act, pursuant to Fed. R. Civ. Proc. Rule 12(b)(6), because plaintiffs failed to state a claim under any of those acts. In addition, plaintiffs do not have a private right of action pursuant to the Nursing Home Reform Act. Defendants also move to dismiss plaintiffs’ claims, pursuant to Fed. R. Civ. Proc. Rule 12(b)(1), because plaintiffs do not adequately plead standing to assert their claims and the Court thus lacks subject matter jurisdiction over those issues.
STATEMENT OF THE CASE A. Statutory Framework
1. The Nursing Home Reform Act The Medical Assistance program (“Medicaid”) (42 U.S.C. § 1396 et seq.) is a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502 (1990). The Medicaid program, Title XIX of the Social Security Act, was created in 1965 and "provides a federal subsidy to states that choose to reimburse poor individuals for certain medical care." Westside Mothers v. Haveman, 289 F.3d 852, 855 (6th Cir. 2002). "Although participation in the program is voluntary, participating states must comply with certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and Human Services." Wilder, 496 U.S. at 502. States participate in the program through State plans for medical assistance (“State Plan”) that are submitted to and approved by the
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Secretary of Health and Human Services (the “Secretary”). 42 U.S.C. § 1396; see also 42 C.F.R. § 430.10. A state that fails to comply with its approved State Plan and certain federal requirements runs the risk of having the Secretary revoke its funding. 42 U.S.C. § 1396c.
In 1987, Congress passed the Nursing Home Reform Amendments (“NHRA”) to Medicaid to prevent the inappropriate placement of mentally ill and mentally retarded individuals into nursing facilities.1 H.R.Rep. No. 100-391, pt. 1, at 459. As set forth in 42 U.S.C. § 1396r, the NHRA requires certain “preadmission screening” and “resident review” procedures (denominated the “PASRR” process)2 to be followed before a nursing home may accept a mentally retarded or mentally ill individual into its care. Section 1396r also requires a nursing home to follow certain protocols for mentally ill residents in its care.
a. “Preadmission Screenings” by the state mental health authority prior to a nursing home admission.
Before any mentally ill individual is admitted into a nursing home, the NHRA requires that individual to undergo a preadmission screening process (“Preadmission Screening”). See 42 U.S.C. § 1396r(b)(3)(F). The Preadmission Screening consists of a physical and mental evaluation performed by an independent person or entity other than the State mental heath authority, in New York OMH. Id. The NHRA and its implementing regulations mandate that a nursing home may not admit an individual with mental illness unless the Preadmission Screening shows that: (1) the screened individual requires “the level of services” provided by a nursing
1 Generally, pursuant to 42 U.S.C. § 1396(a), a “nursing facility” is an institution which primarily is engaged in providing skilled nursing care and related services for residents who require medical or nursing care or which provides health related care and services to individuals who because of their mental or physical condition requires care and services which can be made available to them only through institutional facilities.
2 See 42 U.S.C. § 1396a(a)(28); 42 U.S.C. § 1396r(e)(7). 3

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home; and, if so, (2) a determination is made whether the mentally ill persons requires “specialized services.” 42 U.S.C. § 1396r(b)(3)(F); 42 C.F.R. § 483.118. Placement of a mentally ill person in a nursing home may be considered appropriate when his/her needs are such that they meet the minimum standards for admission and the individual’s treatment needs do not exceed the level of services deliverable by the nursing home. 42 C.F.R. § 483.126.
b. Nursing homes are required to regularly perform “assessments and reviews” of residents in their care.
Once an individual is placed in a nursing home, the NHRA requires the facility - - not the State mental health authority - - to conduct resident assessments (“Resident Assessment(s)”). 42 U.S.C. § 1396r(b)(3). Resident Assessments are required under three circumstances: (1) within 14 days of the resident’s admission; (2) promptly after a “significant change in the resident’s physical or mental condition;” and (3) at least once per year.3 42 U.S.C. § 1396r(b)(3)(C)(i)(I III). The Resident Assessment performed by the nursing home must: (1) describe the resident’s capability to perform daily life functions and significant impairments in functional capacity; (2) be based on a uniform minimum data set defined by the federal government; (3) use an “instrument” which is specified by the State; and (4) include the identification of medical problems. 42 U.S.C. § 1396r(b)(3)(A)(i-iv).
If a Resident Assessment reveals that there has been a “significant change” in the physical or mental condition of a resident, the nursing home is required to inform the State mental health authority. 42 U.S.C. § 1396r(b)(3)(E).
3 Nursing homes are obligated to, in essence, supplement the Resident Assessments with periodic reviews, wherein the nursing home is required to “examine each resident no less frequently than once every 3 months and, as appropriate, revise the resident’s assessment to assure the continuing accuracy of the assessment.” 42 U.S.C. § 1396r(b)(3)(C)(ii).
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c. The state mental health authority must conduct a “Resident Review” upon notification by a nursing home that there has been a “significant change” in the physical or mental condition of a resident.
When a nursing home informs the State mental health authority that there has been a significant change in a mentally ill resident’s physical or mental condition, a resident review (“Resident Review”) must be performed. 42 U.S.C. § 1396r(e)(7)(B)(iii). As with a Preadmission Screening, the Resident Review must be based on a physical and mental evaluation performed by a person or entity independent of the State mental health authority. Id. at § 1396r(e)(7)(B)(i). The Resident Review must determine: (1) whether the resident requires the level of services provided by a nursing home; and (2) whether or not the individual requires “specialized services.” Id. at § 1396r(e)(7)(B)(i)(I - II).
If the Resident Review shows that an individual who has resided in a nursing home for at least 30 months does not need nursing home level of care but does require specialized services, the State must: (1) inform the resident of the institutional and noninstitutional alternatives covered under the State Plan; (2) offer the resident the choice of remaining in the facility or receiving covered services at an alternative institutional or noninstitutional setting; (3) clarify the effect of eligibility for services if the resident chooses to leave the facility; and (4) provide or arrange for the provision of specialized services. 42 U.S.C. § 1396r(e)(7)(C)(i).
If the Resident Review shows that an individual who has not resided in a nursing home for at least 30 months does not need nursing home level of care but does require specialized services, the State must: (1) arrange for the safe and orderly discharge of the resident; (2) prepare and orient the resident for such discharge; and (3) provide or arrange for the provision of specialized services. 42 U.S.C. § 1396r(e)(7)(C)(ii). If the Resident Review shows that an individual needs neither nursing home level of care nor specialized services, the State must: (1)
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arrange for the safe and orderly discharge of the resident; and (2) prepare and orient the resident for such discharge. 42 U.S.C. § 1396r(e)(7)(C)(iii).
d. Nursing homes must prepare a resident “Plan of Care”. Pursuant to the NHRA, nursing homes are required to provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a plan of care. 42 U.S.C. § 1396r(b)(2). The plan of care is initially prepared, to the extent possible, with the participation of the resident and his/her family and by a team which includes the resident’s attending physician and a registered professional nurse who has responsibility for the resident. Id. The plan of care must be reviewed and updated after each Resident Assessment is completed by the nursing home. Id. B. The Parties, Allegations And Relief Requested In The Amended Complaint. Plaintiffs, consisting of three mentally ill persons (the “Individual Plaintiffs”) and two advocacy organizations (the “Advocate Plaintiffs”), essentially challenge: (1) the propriety of the discharge of persons with mental illness from psychiatric hospitals to nursing homes; and (2) the Defendants’ alleged failure to move Nursing Home Residents who no longer require a nursing home level of care to other more “integrated” housing. 1. The Individual Plaintiffs The Amended Complaint (See Gasior Aff. Exh. A) alleges that two of the Individual Plaintiffs4, Edwin T. and Joseph S., formerly were patients at the State-operated Creedmoor Psychiatric Center and that they were discharged to one of two nursing homes, one in Andover,
4 Originally there were seven named Individual Plaintiffs. Of those original seven, only two, Edwin T. and Joseph G. remain. Steven W. was added to this action in the Amended Complaint.
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New Jersey and one in Queens, New York.5 Amend. Compl., ¶¶ 11, 12. The Amended Complaint added as an Individual Plaintiff Steven W., formerly a patient in the psychiatric ward of Montefiore Hospital, an Article 28 hospital6, who was discharged to the Brookhaven Rehabilitation and Health Care Center in New York. Amend. Comp., ¶ 13.
2. The Advocate Plaintiffs There are two Advocate Plaintiffs in this action. The first, Disability Advocates, Inc. (“DAI”), is described in the Amended Complaint as a not-for-profit corporation, authorized to practice law in New York and to act as a protection and advocacy agency under the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq. Amend. Comp. ¶ 18. The second is Sidney Hirschfeld, Director, Mental Hygiene Legal Services, Second Judicial Department (“MHLS”). The Amended Complaint describes MHLS as “a duly authorized agency of the State of New York created and governed by New York Mental Hygiene Law Article 47 to provide protection and advocacy services for individuals with a mental disability.” Id. at ¶ 19. 3. Plaintiffs’ claims The asserted bases for this action are that Defendants, by allowing the Individual Plaintiffs to be placed in a nursing home, violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act (“Rehabilitation Act”), 29 U.S.C. § 701 et seq., and the NHRA, 42 U.S.C. § 1396 et seq. Plaintiffs also allege that the Defendants
5 A copy of Defendants’ answer is annexed to the Gasior Aff. as exhibit B. 6 The definition of hospital is set forth in New York Public Health Law (“PHL”) § 2801; See also New York Mental Hygiene Law (“MHL”) § 31.02(a)(2) (the operation of any part of a general hospital for the purposes of providing residential or non-residential services for the mentally disabled requires an operating certificate issued by the state).
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have failed to meet the standards set forth by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), which, plaintiffs assert, permits a person with mental illness, like the Individual Plaintiffs, to sue the State for “failing to place him or her ‘in the most integrated setting appropriate to [his or her] needs.” Amend. Comp. ¶ 3.
Relief is sought by the Advocate Plaintiffs for persons other than the Individual Plaintiffs. The Amended Complaint at ¶ 20 specifically identifies the persons and reasons why the Advocate Plaintiffs brought this action:
Plaintiffs DAI and MHLS are pursuing this action to protect and advocate for the rights and interests of individuals with mental illness unlawfully discharged to and residing in nursing homes or residing in state psychiatric hospitals or Article 28 psychiatric wards and at risk of unlawful placement in nursing homes in the discharge planning process. . . . . These individuals are DAI’s and MHLS’s constituents . . . . Thus, aside from the Individual Plaintiffs, the alleged beneficiaries to the Advocate Plaintiffs’ participation in this litigation -- the Advocate Plaintiffs’ “Constituents” -- are divided into two large groups. First are the Nursing Home Residents, as described above.. The second group, those presently residing in psychiatric hospitals, are persons alleged to be “at risk” of unlawful placement in a nursing home.7 4. Defendant Department of Health And Defendant Office Of Mental Health DOH is the New York State agency that, pursuant to the PHL, licenses, supervises and enforces the laws and regulations applicable to nursing homes in New York. PHL §§ 2801(2), (3); 2806-b. DOH is the single State agency that operates the New York State Medicaid program. N.Y. Social Services Law (“SSL”) § 363-a(1). DOH licenses non-State hospitals
7 Based on the extant pleadings, this latter group can have no claims presently “ripe” for adjudication by the Court in any sense of the word.
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operating in New York pursuant to PHL article 28 (“Article 28 Hospitals”). DOH and OMH jointly license Article 28 Hospitals’ with psychiatric beds that provide psychiatric services pursuant to PHL article 28 and MHL §§ 31.02, 31.04, 31.22 and 31.23. DOH is the “State Medicaid Agency”pursuant to SSL § 363-a(1). DOH administers the joint federal-state Medicaid programs in New York, including administration of NHRA programs.
OMH is charged under New York law with the responsibility for assuring the development of comprehensive plans, programs, and services in the areas of treatment, rehabilitation, education, and training of mentally ill persons. MHL §7.07(a) It is the “state mental health authority” in New York, as that term is defined in 42 U.S.C. § 201(m). It has the responsibility for seeing that mentally ill persons are provided with care and treatment. MHL § 7.07©. It also operates State psychiatric facilities, including the Creedmoor psychiatric hospital, the facility from which two of the three Individual Plaintiffs were discharged. MHL § 7.17.
ARGUMENT POINT I
THE NURSING HOME REFORM ACT DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION AGAINST DEFENDANTS
All of Plaintiffs' claims regarding the alleged deficiencies in the Defendants implementation of the NHRA, including the PASRR program, employ 42 U.S.C. § 1983 as an enforcement vehicle. See Amend. Compl. ¶ 45, Wherefore Clauses 118 through 136.
In Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (“Gonzaga”), the Supreme Court clarified the criteria courts must consider when evaluating whether an individual may sue to enforce a statutory provision under 42 U.S.C. § 1983 or directly under a statute through an implied private right of action. The Court held that the plaintiff had no right to sue a university for damages under § 1983 to enforce provisions of the Family Educational Rights and Privacy Act
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(“FERPA”), 20 U.S.C. §1232g, which prohibited the Secretary of Education from granting federal funding to educational institutions that had a policy or practice of releasing individual educational records without authorization. Gonzaga, 536 U.S. at 277.
The Court granted certiorari in Gonzaga, in part, to “resolve any ambiguity” in its prior opinions concerning when federal statutory provisions may be enforced under 42 U.S.C. §1983. Id. The Court previously had identified, in Blessing v. Freestone, 520 U.S. 329 (1997), what it characterized in Gonzaga as three factors to guide judicial inquiry into whether a statute confers a right to bring suit: (1) Congress must have intended that the provision in question benefit the plaintiff; (2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial resources; and (3) the provision giving rise to the asserted right “must be couched in mandatory, rather than precatory, terms.” Gonzaga, 536 U.S. at 282-83 (citing Blessing v. Freestone, 520 U.S. at 340-41). The Gonzaga Court noted that Blessing underlined that “only violations of rights, not laws . . . give rise to §1983 actions,” but that confusing language had “led some courts to interpret Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect.” Id., 536 U.S. at 282-83. The Gonzaga Court clarified that a plaintiff must have “an unambiguously conferred right” under a statute in order to support a cause of action under § 1983, and that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section.” Id.
Importantly, the Gonzaga Court noted that federal spending power legislation generally may not be individually enforced in court. Id. 536 U.S. at 280. This is appropriate because “the typical remedy” for non-compliance with conditions for federal spending legislation “is not a private cause of action for noncompliance but rather action by the Federal Government to
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terminate funds to the State.” Id. (quoting Maine v. Thiboutot, 448 U.S. 1, 28 (1980)). See also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981) (typical remedy for State noncompliance with conditions imposed on federal spending legislation is not private cause of action but action by federal government to terminate funds to State). Therefore, “unless Congress ‘speaks with a clear voice,’ and manifests an ‘unambiguous’ intent to confer individual rights, federal funding provisions provide no basis for private enforcement by § 1983.” See Gonzaga 536 U.S. at 280 (quoting Thiboutot, 448 U.S. at 17, 28, n.21); See also Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 785-6 (2d Cir. 2002), (even if provision specifically refers to a “right”, such language is not determinative because it can be read as “modifying the terms imposed on fund-receiving institutions”).
A. The Challenged Sections Of The NHRA Do Not Create Rights Which Are Privately Enforceable Against The Defendants 1. 42 U.S.C. §§ 1396r(e)(7)(A) and (b)(3)(F) do not create privately enforceable rights regarding the Preadmission Screening process.
Plaintiffs apparently challenge Defendants NHRA Preadmission Screening procedures. See Amend. Compl. ¶¶ 129-136.8 However, like the statutes in Gonzaga and Taylor, the language embodied in 42 U.S.C. § 1396r(e)(7)(A) and (b)(3)(F) which govern the Preadmission Screening process, are not privately enforceable against the Defendants. Specifically, 42 U.S.C. § 1396r(e)(7)(A)(i) states in relevant part:
(e) State requirements relating to nursing facility requirements. As a condition of approval of its plan under this title [42 USCS §§ 1396 et seq.], a State must provide
8 Throughout the Amend. Compl., plaintiffs generally allege that the Defendants have violated plaintiffs’ rights without first setting forth the separate and distinct responsibilities of each named defendant and without distinguishing the alleged wrongdoings committed by each named defendants. DOH and OMH have distinct statutory duties and it should not be presumed that they have joint responsibility and/or culpability for the unlawful acts alleged by plaintiffs.
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for the following: . . . . (7) State requirements for preadmission screening and resident review.
(A) Preadmission screening. (i) In general. . . . . the State must have in effect a preadmission screeing program, for making determinations (using criteria developed under subsection (f)(8)) described in subsection (b)(3)(F) for mentally ill and mentally retarded individuals (as defined in subparagraph (G)) who are admitted to nursing facilities on or after January 1, 1989.
The basic requirements for a Preadmission Screening are described at 42 U.S.C. §
1396r(b)(3)(F)(i), which states that:
(F) Requirements relating to preadmission screening for mentally ill and mentally retarded individuals. Except as provided in clauses (ii) and (iii) of subsection (e)(7)(A), a nursing facility must not admit, on or after January 1, 1989, any new resident who - (i) is mentally ill . . . unless the State mental health authority has determined (based on an independent physical and mental evaluation performed by a person or entity other than the State mental health authority) prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires specialized services for mental illness.
This language does not manifest a unambiguous intent to confer rights on a particular
individual or group. There can then be no basis for private enforcement of this statute under §
1983 against Defendants. Certainly, with respect to § 1396r(e)(7)(A)(i), the intent is to generally
set forth the content of the State Plan in order to obtain federal approval. If the State Plan did not
contain Preadmission Screening/Resident Review procedures, federal approval would be
withheld. There is no language in § 1396r(e)(7)(A)(i) which evidences any intent, much less an
unambiguous intent, to confer a right on a particular individual.9 Th statutory terms plainly do
not grant “private rights” to an “identifiable class” of beneficiaries, nor are they “phrased in
9 In any event, plaintiffs do not seem to contend that the State Plan does not have a Preadmission Screening process as required by 42 U.S.C. 1396r(e)(7)(A)(i).
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terms of the persons benefitted.” Gonzaga, 536 U.S. at 282-83. Nor does the language mandating a Preadmission Screening at 42 U.S.C. §
1396r(b)(3)(F)(i) create a private right of action against the Defendants in this action. This section neither expressly nor implicitly indicates that Congress intended to create a private right of action. Rather, the statutory language mandates that a nursing home must not admit a mentally ill person unless, prior to admission, an evaluation performed by an entity other than the State mental health authority has determined: (1) whether that person requires nursing home level of services, and, if such services are required; (2) whether the individual requires specialized services for mental illness. 42 U.S.C. § 1396r(b)(3)(F)(i). Nothing in this section places a mandatory obligation on Defendants to act on behalf of any individual beneficiary. Any obligation Defendants may have is far too removed from plaintiffs to show congressional intent to create a new right conferring an individual entitlement enforceable against Defendants.
Furthermore, as specifically set forth at 42 U.S.C. § 1396r(e)(7)(D)(i), the remedy for State failure to conduct a Preadmission Screening is for the federal government to withhold payment for any nursing homes services received by the resident:
(D) Denial of Payment. (i) For failure to conduct preadmission screening or review. No payment may be made under section 1903(a) [42 USCS § 1396b(a)] with respect to nursing facility services furnished to an individual for whom a determination is required under subsection (b)(3)(F) or subparagraph (B) but for whom the determination is not made.
Clearly, this language is focused on the entities being regulated, i.e., the State and nursing homes, and does not create a right for individual nursing home residents to receive a Preadmission Screening and/or Resident Review which is enforceable against the Defendants. The remedy for Defendants’ alleged non-compliance with these federal spending conditions “is
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not a private cause of action for noncompliance but rather action by the Federal Government to
terminate funds to the State.” Gonzaga, 536 U.S. at 280; see also Pennhurst State Sch. & Hosp.,
451 U.S. at 28. This specific conclusion was contemplated in the comments accompanying the
final PASRR rules:
Failure by a State to implement a PASARR program in accordance with the proposed requirements would lead to compliance actions against the State under section 1904 of the [Social Security] Act. The failure to implement the clear statutory mandates, such as subjecting all categories of individuals (Medicaid, Medicare, and private pay) with MI or MR to PASARR and requiring that [nursing facilities] not admit unscreened individuals, would be viewed as a failure to meet Medicaid State plan requirements. Compliance proceedings could result in loss of FFP in the State’s Medicaid nursing home program until compliance is achieved. Even in the absence of a compliance action, HCFA could disallow FFP in [nursing facility] services provided to individuals required to be subject to PASARR review but not, in fact, reviewed.
See 57 Fed. Reg. 56450. Clearly, there is no mention of an intent to create a private right of
action. In fact, the rules specifically contemplate other compliance actions against the State
rather than a private right of action brought by a nursing home resident.
2. 42 U.S.C. § 1396r(e)(7)(C) does not create a privately enforceable right to a Resident Review against Defendants.
Plaintiffs also seem to mount a general challenge to Defendants’ practices undertaken
pursuant to 42 U.S.C. § 1396r(e)(7)(C), i.e., the Defendants’ response to a Preadmission
Screening or to a Resident Review. See Amend. Compl. ¶¶ 126, 127, 129-136. Section
1396r(e)(7)(C) sets forth steps the State must follow in response to a Resident Review where it is
determined that the resident does not require the level of services provided by a nursing home but
who either: (i) requires specialized services for mental illness and has continuously resided in a
nursing home for at least 30 months before the date of the determination; (ii) requires
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specialized services; or (iii) does not require specialized services. 10
Pursuant to 42 U.S.C. § 1396r(e)(7)(D)(ii), if the State fails to adhere to the requirements
set forth in § 1396r(e)(7)(C), payment would be withheld for services provided to those
individuals that do not require nursing home level of services (except if the individual needed
specialized services and resided in the nursing home for at least 30 months before the date of
termination). 42 U.S.C. § 1396r(e)(7)(D)(ii) specifically states that:
(D) Denial of Payment . . . . (ii) For certain residents not requiring nursing facility level of services. No payment may be made under section 1903(a) [42 USCS § 1396b(a)] with respect nursing facility services furnished to an individual (other than an individual described in subparagraph (C)(i)) who does not require the level of services provided by a nursing facility.
Again, these sections of the NHRA are clearly phrased in terms of the entity being
regulated, i.e., the State and/or nursing homes. The remedy for a State’s non-compliance with
the conditions imposed in this federal spending legislation “is not a private cause of action for
noncompliance but rather action by the Federal Government to terminate funds to the State.”
Gonzaga, 536 U.S. at 280; see also Pennhurst State Sch. & Hosp., 451 U.S. at 28. Therefore,
even if these provision can be read as referring to a patient’s “right” to certain procedures
following a State Preadmission Screening or Resident Review, this language is not determinative
of the issue of whether the resident has a private right of action. This statutory language can only
be read as “modifying the terms imposed on fund-receiving institutions.” Taylor, 313 F.3d at
10 As stated previously (see Statement of the Case § A(1)(c) supra), the State is obligated to conduct a Resident Review pursuant to § 1396r(e)(7)(B)(i) only after a nursing homes notifies the State of a significant change in a resident’s physical or mental condition. See 42 U.S.C. § 1396r(e)(7)(B)(iii). Moreover, the State’s obligation to respond to the Resident Review, as set forth in § 1396r(e)(7)(C)(i),(ii) or (iii), commences only if the Resident Review determines that the resident does not require the level of services provided by a nursing home.
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785. This is true even if a resident reaps a specific benefit, e.g., a PASSR review, from the
State’s enumerated responsibilities. See Blessing, 520 U.S. at 344-45.11
3. The existence of an enforcement scheme under the NHRA negates a finding of a private right of action.
Not only does a Medicaid recipient have a general right to seek administrative review of
any change in the level of care afforded, the NHRA requires the States to set up an appeals
procedure for individuals who allege that they have been adversely affected by determinations
which are made as a consequence of the Preadmission Screening or Resident Review process.
See 42 U.S.C. § 1396r(e)(7)(F); 42 CFR 431.220.12 In addition, the NHRA specifically charges
the federal government with the responsibility to assure that the requirements which govern the
provision of care in nursing homes, and the enforcement of those requirements, are adequate to
protect the health, safety, welfare and rights of residents and to promote the effective use of
11 Although the First Circuit in Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003), did find that certain nursing home residents had a private right of action to seek specialized services found to be necessary by a Preadmission Screening or Resident Review, the circuit court failed to fully consider the analysis undertaken by the Court in Gonzaga regarding the limitations federal spending legislation places on finding a private right of action. See also Taylor. Nor did the Rolland court specifically address the question of whether an individual has a private right of action to challenge generally a State’s Resident Review procedures. For example, plaintiffs here, without more, allege generally that the State’s Resident Review procedures are defective. Contrary to the facts in Rolland, plaintiffs here do not seek, for example, specialized services which a State Resident Review determined to be necessary. In fact, none of the Individual Plaintiffs allege specifically that they received a Resident Review or, if they did, what findings were made. Nor did Rolland consider if the State had an adequate administrative enforcement scheme, which, if extant, would negate a private right of action. See Gonzaga, 536 U.S. at 28081 (Congress left no doubt of intent for private enforcement because provision required States to pay an “objective” monetary entitlement to individual health care providers, with no sufficient administrative means of enforcing the requirement against States that failed to comply).
12 Plaintiffs fail to allege that they took advantage of the available appeals process and sought review of the result of the Preadmission Screening process which initially found them eligible for nursing home level of care or any Resident Review which determined that they were still qualified for nursing home level of services.
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public funds. See 42 U.S.C. § 1396r(f). Moreover, in order to ensure State and nursing home compliance with NHRA
requirements, the NHRA sets forth an elaborate scheme of required survey and certification processes that must be followed by both the State and the federal government. See 42 U.S.C. § 1396r(g). The standard annual surveys include, for example, an audit of Preadmission Screenings pursuant to 42 U.S.C. § 1396r(b)(3) in order to determine the accuracy of such assessments and the adequacy of the plan of care. See 42 U.S.C. § 1396r(g)(2)(A)(ii). If the standard survey reveals deficiencies in the quality of care provided by nursing homes, the State then must conduct an extended survey of a sample larger than that used in the standard survey and review facility staffing, service training and contracts with consultants. See 42 U.S.C. § 1396r(g)(2)(B). In addition to the surveys completed by the State, the federal government itself conducts regular surveys of nursing homes. See 42 U.S.C. § 1396r(g)(3)(A). If the federal government determines that, contrary to the finding of a State’s survey, a nursing home does not meet NHRA requirements, the federal determination is binding and supercedes that of the State. See 42 U.S.C. § 1396r(g)(3). The federal government may also conduct special surveys if it has reason to question the compliance of the nursing homes with the requirements of, for example, the patient assessments. See 42 U.S.C. § 1396r(g)(3)(D).
In addition to the above survey process, the State is required to establish procedures to investigate complaints of violations by nursing homes, including any violations of the resident assessment requirements of 42 U.S.C. § 1396r(g)(3)(D), which includes the Preadmission Screening requirement. See 42 U.S.C. § 1396r(g)(4).
The existence of such an elaborate enforcement scheme, with provision for administrative appeals, precludes finding a private right of action against the Defendants. See Gonzaga, 536
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U.S. at 280 -81 (“Congress left no doubt of its intent for private enforcement . . . because the provision required States to pay an 'objective' monetary entitlement to individual health care providers, with no sufficient administrative means of enforcing the requirement against States that failed to comply"); Carelli v. Howser, 923 F.2d 1208, 1214-16 (6th Cir. 1991)(Congress intended to foreclose a private right of action based on the elaborate auditing system which ensured compliance and that any relief the court might order would merely address the shortcomings determined by the federal government’s audit).
B. The Regulations Upon Which Plaintiffs Rely Do Not Give Rise To A Privately Enforceable Federal Right
In support of their contentions, plaintiffs principally rely on 42 C.F.R. §§ 483.100483.138. See Amend. Compl. ¶ 120. Plaintiffs’ reliance on these regulations is misplaced because they do not confer a federal right enforceable under § 1983.
The issue of whether a regulation, standing alone, is privately enforceable in a section 1983 action apparently remains open in this circuit. See D.D. ex rel V.D. v. New York City Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006) (“DD”); See also King v. Town of Hempstead, 161 F.3d 112, 114 (2d Cir. 1998). However, the majority of circuits have determined that where a regulation’s enforcing statute confers no federal right, the regulation alone cannot create a right enforceable under section 1983. D.D., 465 F.3d at 513. It has been held that:
if the regulation defines the content of a statutory provision that creates no federal right under the three-prong test, or if the regulation goes beyond explicating the specific content of the statutory provision and imposes distinct obligations in order to further the broad objectives underlying the statutory provision ... , the regulation is too far removed from Congressional intent to constitute a “federal right” enforceable under § 1983. Harris v. James, 127 F.3d 993, 1009 (11th Cir. 1997). Also, as aptly stated,
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Not every rule creates a right. Upon analysis, this Court concludes that § 1983 does not authorize indiscriminate private enforcement of the vast universe of federal regulations but extends such enforcement only to those regulations that further define the substance of a statutory (or constitutional) provision that itself creates an enforceable right. In this Court’s view, no other result is consonant with the separation of powers, for if Congress intended that only certain specific provisions give rise to private enforcement actions under § 1983, it cannot have intended that private actions be predicated on administrative regulations not closely connected to these statutory sources of private power.
Graus v. Kaladjian, 2 F. Supp. 2d 540, 543 (S.D.N.Y. 1998)(citations omitted). Neither the
NHRA nor applicable regulations cited by plaintiffs create an enforceable right.
POINT II PLAINTIFFS FAIL TO STATE A CLAIM AGAINST DEFENDANTS Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that complaints must
include “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. Rule 8(a)(2). When considering a motion to dismiss under Fed. R. Civ. P. Rule
12(b)(6), “all factual allegations of the complaint must be accepted as true . . . and all reasonable
inferences must be made in plaintiffs’ favor.” Reade-Alvarez v. Eltman, Eltman & Cooper, P.C.,
369 F. Supp.2d 353, 358 (E.D.N.Y. 2005). However, “although the complaint need not provide
detailed factual allegations, it must amplify a claim with some factual allegations to render the
claim plausible.” Fitzpatrick v. Sony BMG Music Entertainment, 07 Civ. 2933 (SAS), 2007 U.S.
Dist. LEXIS 60238 (S.D.N.Y. Aug. 15, 2007) (citations omitted) (Gasior Aff. Exh. C). “The
complaint must provide the grounds upon which the plaintiff’s claim rests through factual
allegations sufficient to raise a right to relief above the speculative level.” Id. (citations omitted).
“Bald assertions and conclusions of law will not suffice.” Id. (citations omitted).
The Supreme Court's decision in Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955
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(2007), recently altered the legal standards applicable to Rule 12(b)(6) motions. In Twombly, the Court abandoned the familiar standard from Conley v. Gibson, 255 U.S. 41 (1957), that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S. Ct. at 1968 (quoting Conley, 255 U.S. at 45-46). In its place the Court held that Rule 8(a) requires complaints to allege "enough facts to state a claim to relief that is plausible on its face," id. at 1974, or, put otherwise, to "possess enough heft to ‘show that the pleader is entitled to relief,'" Id. at 1966. Twombly has been cited by the Second Circuit as establishing a rule of general applicability. E.g., Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007). In Iqbal, the Second Circuit concluded that Twombly creates "a flexible ‘plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Id. at 157-58 (emphasis in original). Plaintiffs’ claims herein do not possess enough “heft” to survive dismissal.
A. Plaintiffs Fail To State A Claim Against Defendants Under the American With Disabilities Act or The Rehabilitation Act 1. Plaintiffs fail to set forth a prima facie case of discrimination by Defendants.
Both Title II of the ADA and § 504 of the Rehabilitation Act provide that no qualified individual with a disability shall, by reason of such disability be denied the benefits of the services or programs of a public entity or be subject to discrimination by such entity. 42 U.S.C. § 12132; 29 U.S.C. § 794(a).13 Title II governs only the activities of public entities which are
13 See Weixel v. Bd. of Educ., 287 F.3d 138 (2d Cir. 2002) (holding that a complaint brought under the ADA and Rehabilitation Act is sufficient to withstand dismissal if it alleges that: (1) plaintiff has a disability for purposes of Section 504/ADA; (2) plaintiff is otherwise qualified for the benefit that was denied; and (3) plaintiff has been denied the benefit by reason
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defined as, inter alia, any State or local government, any department, agency, special purpose district, or other instrumentality of a State or States or local government. 42 U.S.C. 12131(1). However, the applicable regulation provides that “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).
These anti-discrimination statutes do not require a defendant to provide substantively different services to the disabled, no matter how great their need for the services, but only to make reasonable accommodations to enable meaningful access to such services as may be provided, whether such services are adequate or not. Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000). In reaching this conclusion, the Second Circuit in Wright relied on the holdings reached in: (1) Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (rejecting ADA challenge based on New York City’s failure to provide safety monitoring devices to a subset of individuals with disabilities because the “ADA requires only that a particular service provided to some not be denied to disabled people”); (2) Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998) (rejecting Rehabilitation Act claim by disabled individual who sought, inter alia, a “job coach,” because “what [plaintiff] seeks to challenge is not illegal discrimination against the disabled, but the substance of the services provided to him”); and (3) Lincoln CERCPAC v. Health & Hospitals Corp., 147 F.3d 165, 168 (2d Cir. 1998) (affirming dismissal of Rehabilitation Act and ADA claims brought by disabled children who were transferred from one rehabilitation center to another with fewer services because “the disabilities statutes do not guarantee any particular level of medical care for disabled person, nor [do they] assure maintenance of service previously
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provided”). Wright, 230 F.3d at 548. Here, plaintiffs appear to claim that “defendants” have violated the Individual Plaintiffs’
rights (and the Advocate Plaintiffs’ “constituents’” rights) under the ADA and the Rehabilitation Act because they were discharged to nursing homes from State psychiatric hospitals and Article 28 hospital psychiatric wards. Amend. Compl. ¶¶ 1-6. Specifically, plaintiffs make the conclusory allegation that plaintiffs have been and are being discharged to nursing homes despite the fact that they do not need nursing home care (Id. ¶¶ 5 and 6) and more integrated settings than nursing homes are available to them. Id. ¶¶ 8-10. Plaintiffs contend that the discharge to nursing homes unnecessarily segregates them in violation of their fundamental rights. Id. ¶ 51.
Plaintiffs primarily rely on the holding in Olmstead v. L.C., 527 U.S. 581 (1999) (“Olmstead”) to support their claims that Defendants violated their rights under the ADA and the Rehabilitation Act. See Amend. Compl., ¶¶ 1-10 and 49. Olmstead analyzed the circumstances under which a qualified individual with a disability must be offered, pursuant to the ADA, a more integrated setting than institutionalization. In Olmstead, the plaintiffs, patients in a State hospital, who were determined by the State’s own medical professionals to no longer need institutionalization, challenged the State’s failure to discharge them into community-based treatment. There, the Court held that “States are required to provide community-based treatment for persons with mental disabilities when 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, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 607 (emphasis added).
Plaintiffs’ reliance on Olmstead for the contention that the Defendant’s placements into nursing homes violate the ADA and the Rehabilitation Act is misplaced for several reasons.
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First, none of the Individual Plaintiffs have alleged that, at the time of their discharge to a nursing home, they had been determined by the State’s treatment professionals to no longer need institutionalization or that placement into community-based treatment, as opposed to a nursing home, would be more appropriate.14 Therefore, unlike the plaintiffs in Olmstead, plaintiffs here have not even minimally established that the Defendants continue to “segregate” them contrary to their medical needs.15
Furthermore, since there was no determination at the time of their discharge to a nursing home that a setting more integrated than a nursing home was appropriate and available to meet plaintiffs’ needs, it was not required under Olmstead, that they be offered a different or more integrated setting. See Olmstead, 527 U.S. at 601-02 (holding that nothing in the ADA or its implementing regulations condones the termination of institutional settings for persons unable to handle or benefit from community settings and that, according to 28 C.F.R. § 35.130(d), the services and programs must be administered in the most integrated setting appropriate to the needs of the individual). The Court cannot assume that a nursing home placement is, in all instances, not the appropriate alternative for the Nursing Home Residents. See Olmstead, 527 U.S. at 605 (for some individuals most integrated setting may be an institution).
Second, plaintiffs’ reliance on Olmstead is misplaced because there, in contrast to the
14 As the Court in Olmstead noted, “the 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. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.” Olmstead, 527 U.S. at 602 (internal quotations omitted).
15 Similarly, this case is distinguishable from the facts in Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), where a nursing home resident found by the State to be eligible to reside at home and receive services through the State’s attendant care program was nonetheless not discharged from the nursing home.
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facts here at hand, persons continued to be confined (contrary to doctor’s orders) in State psychiatric hospitals, a very restrictive setting. Here, Nursing Home Residents are alleged to have been discharged from a more restrictive setting - - a psychiatric hospital - - to a less restrictive setting - - a nursing home. As noted by the Court in Olmstead, Defendants are not required to provide a specific level of benefits to individuals, as long as the Defendants adhere, as they do here, to the ADA’s non-discrimination requirements. See Olmstead, 527 U.S. at 603, n.14. Notably, unlike Olmstead, the Amended Complaint fails to allege what other, less restrictive or more integrated setting had been found by a qualified professional to be appropriate to meet the needs of the Individual Plaintiffs.16 The Individual Plaintiffs certainly could have provided this level of factual information in the Amended Complaint.
Courts in the Second Circuit consistently have refused to give Olmstead the expansive reading plaintiffs advocate here. For example, in Leocata v. Wilson-Coker, 343 F. Supp. 2d 144 (D. Conn. 2004), aff’d, 148 Fed. Appx. 64 (2d Cir. 2005), a post-Olmstead decision, the plaintiff resided in an assisted living facility. Because the plaintiff’s personal resources were being depleted and Medicaid would not pay for her continued stay at the assisted living facility, the plaintiff was going to be moved to a more restrictive, Medicaid-covered, nursing home. Plaintiff argued that the threatened move violated her ADA rights because a nursing home was not the most integrated setting appropriate to her needs. Granting the defendants’ motion to dismiss the ADA claim, the court reasoned that the plaintiff failed to establish that defendants denied her
16 Moreover, pursuant to 42 C.F.R. § 483.132, a PASRR evaluator is required to consider all levels of treatment possibilities in assessing the level of care required for an individual, beginning with community programs up through in-patient institutional care, including nursing home level of care. See McNiece v. Jindal, No. Civ. A. 97-2421, 1998 WL 175899 (E.D. La. Apr. 14, 1998)(finding that a PASRR conclusion that nursing home level of care is required means that lesser levels of care were considered and rejected) (Gasior Aff. Exh. D).
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Medicaid benefits due to her disability or that defendants had any discriminatory animus against persons with her particular disability. Leocata, 343 F. Supp 2d at 156. Similarly here, Defendants’ motion to dismiss should be granted because plaintiffs have failed to plead such an ADA violation. There is no allegation that the factors utilized to send mentally ill persons to a nursing home are different from the factors employed to send other persons to nursing homes, or to send other State psychiatric patients to other settings. See also Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003)(a valid ADA Title II claim requires that there must be something different about the way the plaintiff is treated by reason of his/her disability); see also Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998) (pre-Olmstead decision which dismissed plaintiff’s ADA claims because what he sought to challenge was not illegal discrimination against the disabled but the substance of the services provided).
Plaintiffs make the general and unsupported statement that they now are “able to, qualified for, and would like to reside in a more integrated setting” than the nursing homes in which they now reside. See Amend. Compl., ¶¶ 70, 86 and 94. Even if these allegations are true, plaintiffs fail to set forth a claim that Defendants have violated their rights pursuant to the ADA and Rehabilitation Act. The three Individual Plaintiffs currently reside in nursing homes. Id., ¶¶ 66, 82, and 88. They do not allege that, at the time of their discharge from the hospital, a Preadmission Screening was completed which reached an incorrect determination. The plaintiffs do not allege that Defendants operate nursing homes, administer the medical care provided to the Individual Plaintiffs or make discharge determinations for Nursing Home Residents.
In addition, plaintiffs do not allege that Defendants have made the determination that Nursing Home Residents continue to need, or no longer need, nursing home level of care. Defendant OMH is required to do an NHRA mandated Resident Review only when a nursing
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home provides notice of a significant change in a resident’s physical or mental condition. 42 U.S.C. § 1396r(e)(7)(B)(iii). As explained in Point I(B), plaintiffs have failed to minimally establish or even allege that a Resident Review was required and completed and that, as a consequence of such a review, it was determined that any of the Individual Plaintiffs no longer needed nursing home level of care. Therefore, plaintiffs cannot establish, based upon the allegations in the Amended Complaint, that Defendants have violated plaintiffs’ rights under the ADA or Rehabilitation Act due to their continued placement in a nursing homes. See Blum v. Yaretsky, 457 U.S. 991 (1982)(a nursing home’s decision to discharge patients turns on medical judgments made by private parties and does not constitute State action).
2. Even if plaintiffs established a prima facie case of discrimination against Defendants, the relief sought would require a fundamental alteration of a service, program or activity provided by Defendants.
Even assuming, arguendo, that plaintiffs have established a prima facie case of discrimination pursuant to the ADA or the Rehabilitation Act, Defendants are required only to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination . . .,” but Defendants need not do so if they “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). Among other things, plaintiffs request that the Court compel Defendants to move Nursing Home Residents out of nursing homes and into another form of residence, even if that required the State to “expand, develop and make available sufficient community-based care and treatment opportunities . . . .” Amend. Compl., ¶ 23. Such relief would clearly require the Defendants to fundamentally alter the nature of their services, programs or activities which is not required. See Olmstead, 527 U.S. at 597.
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3. Claims against individual defendants should be dismissed. The ADA and Rehabilitation claims made against Michael Hogan, Richard Daines and Eliot Spitzer, named as defendants in their official capacities, should be dismissed. In Winokur v. Office of Court Admin., 190 F. Supp. 2d 444, 450-51 (E.D.N.Y. 2002), the district court held that an individual defendant could not be held liable in his personal or official capacity under the ADA. See also, Fox v. State Univ. of New York, No. 05 CV 2350 (ADS)(ETB) 2007 WL 2193925, *4 (E.D.N.Y. July 23, 2007) (because State is real party in interest for plaintiff's claims against individual defendants in their official capacities, it would be redundant to permit claims to proceed when plaintiff already has cause of action against the State)(Gasior Aff. Exh. Q); Hallett v. New York State Dep't of Corr. Servs., 109 F. Supp. 2d 190, 199 (S.D.N.Y. 2000)(Chin, J.)(holding individual defendants may not be held liable under either the ADA or the Rehabilitation Act in either their official or individual capacities); Candelaria v. Cunningham, 98 CIV. 6273 (LAP) 2000 U.S. Dist. LEXIS 8669, * 8 (S.D.N.Y. June 20, 2000)(Preska, J.)(rejecting individual liability under the ADA and the Rehabilitation Act in either official or individual capacity) (Gasior Aff. Exh. E). B. Plaintiffs Fail to State a Claim Against Defendants Under the Nursing
Reform Act Plaintiffs make the general claim that Defendants have violated plaintiffs’ rights under the NHRA. See Amend. Compl., ¶¶ 129-136. Assuming, arguendo, that this Court does find that there is a private right of action under the applicable sections of the NHRA (See Point I supra), the plaintiffs fail to state a claim against Defendants under the NHRA. The NHRA was enacted to reduce the use of nursing homes for the care of individuals who are not in need of such level of services. As a result, as discussed above, the NHRA
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provides for a Preadmission Screening process. See 42 U.S.C. 1396r(e)(7)(A). The PASRR process is used to determine if an individual requires nursing home level of care and if the individual requires specialized services. Id. An individual who does not need nursing home level of services may not be admitted to a nursing home and further screening is not required. Moreover, pursuant to 42 C.F.R. § 483.126, an individual with a mental illness is appropriately placed in a nursing home if that individual meets the minimum standards for admission and the individual’s need for treatment does not exceed the level of services which can be delivered in the nursing home.
In addition, and importantly, a Preadmission Screening determination, which determines an individual’s need for nursing home services, made by an entity other than the State mental health authority, is binding and the State Medicaid Agency may not countermand that determination. See 42 C.F.R. § 483.108; see also McNiece, 1998 WL 175899 at *6 (holding that the PASRR evaluation is binding with respect to an applicant’s needed level of care).
Significantly, under 42 CFR § 483.132 the PASARR evaluator is to consider all levels of treatment possibilities in assessing the required level of service for the particular applicant, beginning with the community programs up through in-patient institutional care, including, specifically, a nursing home. The regulation was intended to assure that “the (nursing home) placement would be selected only after less restrictive settings had been rejected because the individual’s care needs are so extensive that the individual requires institutional care.” Id. at *4 (citing 57 Fed. Reg. 56450, 56496)(emphasis added). However, there is an appeals process in place if an individual believes that he or she has been adversely affected by either a Preadmission Screening or a Resident Review determination. See 42 U.S.C. § 1396r(e)(7)(F).17
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Without any specificity or support, plaintiffs make only conclusory allegations that the New York’s PASRR process (1) permits the unlawful admission to nursing homes of individuals with mental illness whose physical and mental conditions do not require the level of services provided by a nursing home (Amend. Compl. ¶ 129); (2) is not sufficient to evaluate whether an individual with mental illness proposed for admission to a nursing home could receive community based-treatment (Id. ¶ 130); (3) does not provide for a copy of the evaluation report to be sent to the individual or resident and his or her legal representative (Id. ¶ 131); (4) does not assure that individuals with mental illness placed in a nursing home receive specialized services or services of a lesser intensity to permit those individuals to rehabilitate, recover and progress towards a more integrated setting (Id. ¶ 132); and (5) is not sufficient to conduct a Resident Review of an individual with mental illness who resides in a nursing home and has a significant change in condition. Id. ¶ 133.
Moreover, the only allegations which specifically reference the Individual Plaintiffs, Edwin T., Joseph S., and Steven W., also are conclusory and unsupported by any factual allegations. For example, plaintiffs contend that persons: (1) have been discharged, or is at risk of being discharged, to a nursing home without an appropriate evaluation as to whether his/her physical and mental condition requires nursing home services, without evaluation as to whether they could receive community-based treatment, and without evaluation as to whether they require specialized services or services of a lesser intensity (Id. ¶ 134); and (2) do not receive required specialized services for treatment of mental illness and do not receive a Resident Review upon a significant change in condition. Id. ¶ 135. In the body of the Amended Complaint, however, none of the Individual Plaintiffs alleges any facts which support these legal claims. See Amend. Compl. ¶¶ 65-71; 81-86; 87-94.
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In addition, none of the Individual Plaintiffs alleged that they have appealed the determination to discharge them to a nursing home pursuant to a PASSR Preadmission Screening. Even assuming that the few facts which are alleged by the Individual Plaintiffs are true, they fail to state a claim against the Defendants pursuant to NHRA. None of the Individual Plaintiffs allege, for example, that a nursing home admitted them before the State mental health authority determined that they required nursing home level of services and/or specialized services for mental illness pursuant to 42 U.S.C. § 1396r(b)(3)(F)(i). Nor do they contend that, once in the nursing home, they had a significant change in their physical or mental condition, that the nursing homes informed the Defendants of that change in condition and the Defendants then failed to conduct a Resident Review as required by 42 U.S.C. § 1396r(e)(7)(B)(iii). Moreover, other than in a general statement in the Third Claim For Relief (Amend. Compl. ¶ 135), nowhere in the Amended Complaint do the Individual Plaintiffs allege or demonstrate in any manner whatsoever that they require specialized services (as defined in 42 C.F.R. § 483.120(a)) for mental illness or that they have failed to receive them pursuant to 42 C.F.R. § 483.120(b).
Rather, the Individual Plaintiffs simply allege that they were not offered a more integrated setting than a nursing home when they were discharged from the hospital. Amend. Compl. ¶¶ 67, 83, 90 and 93. (The Preadmission Screening may have found that the Individual Plaintiffs were not ready to move to a setting other than their current nursing home residence.) In any event, this contention is without merit. First, nowhere in the NHRA, or applicable regulations, is it stated that an individual upon discharge from a hospital to a nursing home must be offered a more integrated setting than a nursing home, if nursing home care is appropriate .18 Second, the
18 See McNiece, 1998 WL 175899 at *6 (finding that a PASSR conclusion that a nursing home level of care is required means that lesser levels of care were considered and rejected).
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NHRA section relied on by plaintiffs (42 U.S.C. §§ 1396r(e)(7)(C)(ii)-(iii); Amend. Compl. ¶ 126) applies to a nursing home resident who has been determined, after the completion of a Resident Review, not to need nursing home level of service. That section requires: (1) the arrangement for the safe and orderly discharge for the resident from the nursing home; (2) that the nursing home resident is prepared and oriented for such discharge; and (3) that if needed, specialized services for mental illness are either provided or arranged to be provided. See 42 U.S.C. §§ 1396r(e)(7)(C)(ii) & (iii). Thus, the section does not apply to the Individual Plaintiffs.
Even assuming, arguendo, that 42 U.S.C. 1396r(e)(7)(C)(ii) or (iii) applies to the Individual Plaintiffs and that those sections impose an affirmative obligation upon Defendants, conspicuously absent from the allegations is any contention that Defendants completed a Resident Review which determined that any of the Individual Plaintiffs did not need a nursing home level of services, that Defendants are not making (or attempting to make) arrangements for the safe and orderly discharge from the nursing home, that Defendants are not preparing and orienting them for such discharge, or that if needed, Defendants are not providing or arranging to provide needed specialized services for their mental illness.19 Moreover, contrary to their unsupported legal conclusions (Amend. Compl. ¶ 135), the Individual Plaintiffs fail to set forth any allegation whatsoever that Defendants were informed that these plaintiffs have experienced a significant change in their mental or physical change in condition which would require Defendants to perform a Resident Review pursuant to 42 U.S.C. § 1396r(e)(7)(B)(iii).
19 Although Edwin T. alleges he has been “approved by Andover for discharge” (Amend. Compl., ¶ 71), he fails to allege that a Resident Review determined he did not need nursing home level of care. He also fails to allege the date he was “approved by Andover for discharge.” Thus, even if the statutory section is applicable to Plaintiff Edwin T., the alleged facts are insufficient to demonstrate a Resident Review found he did not need nursing home level of care or that Defendants are not making appropriate and timely arrangements for his discharge.
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Therefore, the Individual Plaintiffs’ allegations do not meet the bare minimum to overcome a motion to dismiss. Their contentions fail to set forth a statement of facts which render their contentions plausible and raise a right to relief above the level of speculation. Fitzpatrick v. Sony BMG Music Entertainment, 07 DIV. 2933 (SAS) 2007 U.S. Dist. LEXIS 60238 (S.D.N.Y. Aug. 15, 2007). Accordingly, their claims should be dismissed.
POINT III PLAINTIFFS DAI AND HIRSCHFELD LACK ASSOCIATIONAL STANDING TO BRING THE ASSERTED CLAIMS AGAINST DEFENDANTS The Advocate Plaintiffs assert that they have standing to represent the alleged thousands of persons discharged from both State hospitals and Article 28 psychiatric units to a nursing home, persons dubbed as the Advocate Plaintiffs’ “constituents”. Amend. Compl. ¶ 20. While only three of the Advocate Plaintiffs’ “constituents” have been named as plaintiffs, the Amended Complaint makes the sweeping allegation that all of such persons “have each suffered injuries that would allow them to bring suit against Defendants in their own right”, that the “interests DAI and MHLS seek to protect in this action are germane to DAI’s and MHLS’s purposes” and that “[n]either the claims asserted nor the relief requested in this action requires the participation of individual constituents . . . .” Amend. Compl. ¶¶ 26-28. These allegations, appearing for the first time in the Amended Complaint, track the standard for associational standing articulated by the Supreme Court in Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977) (“Hunt”). The Advocate Plaintiffs fail, however, to meet the Hunt standard because they seek individualized relief for each member of the entire “constituent” group, an amorphous body allegedly numbering in the thousands. Amend. Compl. ¶ 20. Although the Advocate Plaintiffs have a statutory charter to represent persons with mental illness, they still must demonstrate
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“associational” standing when they bring claims as expansive in nature as those in this action. Monaco v. Stone, No. CV-98-3386, 2002 WL 32984617, *21 (E.D.N.Y. Dec. 20, 2002) (“Monaco”) (Gasior Aff. Exh. F). (Congress authorized PAIMI organizations to bring suit for their constituents if they meet “traditional” associational standing test). Specifically, as with any organization seeking associational standing, the Advocate Plaintiffs must meet the three-prong test specified by the Supreme Court in Hunt. That means they must show that:
(1) Their constituents would otherwise have standing to sue in their own right; (2) The interests they seek to protect are germane to their purpose; and (3) Neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit. Hunt 432 U.S. at 343. The Hunt test has been applied to advocacy organizations like the Advocate Plaintiffs in this case. See Aiken v. Nixon, 236 F. Supp. 2d 211, 224 (N.D.N.Y. 2002) (PAIMI statute 42 U.S.C. § 10805 authorizes organization to bring suit on behalf of members if it meets traditional associational standing test); Prye v. Carnahan, No. 04-4248-CV-C-ODS, 2006 WL 1888639, *3 (W.D. Mo. July 17, 2006) (Hunt factors for associational standing apply to PAIMI organization) (Gasior Aff. Exh. G).
Defendants assume, arguendo, for purposes of the present motion, that the first two prongs of the Hunt test are satisfied, i.e., the unidentified Advocacy Plaintiff constituents would themselves have standing to assert some, but perhaps not all, of the claims in the Amended Complaint and the interests the Advocacy Plaintiffs seek to protect are germane to their purpose.20 The Advocate Plaintiffs have not, however, satisfied the third prong of the Hunt test, for all claims asserted in the Amended Complaint. It frequently is noted that “the third prong of
20 However, as noted in Point IV infra, the Individual Plaintiffs fail to adequately plead some causes of action. Therefore, the first prong of the Hunt test arguably also has not been met.
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the Hunt test can be broken down into two parts - the ‘claim asserted’ and the ‘relief requested’ elements”. Nat’ Ass’n of Coll. Bookstores, Inc. v. Cambridge Univ. Press, 990 F. Supp. 245, 248 (S.D.N.Y. 1997)(“Nat’l Ass’n.”). See also Arbor Hill Concerned Citizens Neighborhood Ass'n v. City of Albany, 250 F. Supp. 2d 48, 58 (N.D.N.Y. 2003) (“Arbor Hill”); Hunt, 432 U.S. at 343. As will be explained, the Advocate Plaintiffs’ bid for associational standing founders on Hunt’s third prong.
As a general proposition, where an association seeks a declaratory judgment, injunction, or some form of prospective relief, standing is presumed, though not guaranteed, because “it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.” Sherwin-Williams Co. v. Spitzer, No. 1:04CV185 (DNH/RFT), 2005 WL 2128938, *8 (N.D.N.Y. Aug. 24, 2005) (citing Warth v. Seldin, 422 U.S. 490, 515 (1975)) (Gasior Aff. Exh. H). The relief sought is, however, only half the story. Even when an association seeks an injunction, the claim it asserts may be such that it cannot be resolved on an association-wide basis. Nat’l Ass'n, 990 F. Supp. at 248-49. An organization will not be granted standing to assert claims of injunctive relief on behalf of its members where the “fact and extent” of the injury that gives rise to the claims for injunctive relief would require individualized proof. Access 4 All, Inc. v. Wellington Hotel Co., No. 03 CIV. 5027 (RLC), 2005 WL 3211598, *2 (S.D.N.Y. July 12, 2005) (Gasior Aff. Exh. I).
Several claims identified in the Amended Complaint plainly seek relief where the “fact and extent” of the injury giving rise to the claim would require individualized proof, precluding associational standing for the Advocate Plaintiffs. For example, the Amended Complaint on page 22 at “Wherefore” paragraph d (“Relief Request D”), requests the following relief:
An Order requiring Defendants to: 34

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i. Identify all individuals discharged to nursing homes from State psychiatric hospitals;
ii. Identify all individuals discharged to nursing homes from Article 28 psychiatric wards;
iii. Determine whether such individuals require care in a nursing home;
iv. Determine whether such individuals can receive necessary care and treatment in a more integrated setting;
v. Offer all individuals who either do not require care in a nursing home or could receive care and treatment in a more integrated setting without regard to whether they require nursing home level of care an opportunity to receive care and treatment in the most integrated appropriate setting;
vi Promptly provide such care and treatment in the most integrated setting to those individuals who do not oppose it; and
vii. Promptly identify, expand, develop and make available sufficient community-based care and treatment opportunities to ensure that the most-integrated care and treatment is provided without undue delay to those who desire it.
It is difficult to conceive of relief that could be more particularized. Furthermore, this relief is
linked to allegations in paragraphs 109 and 110 of the Amended Complaint, which also speak to
individualized relief, stating that all of the Advocate Plaintiffs’ constituents are qualified to
participate in more integrated settings “appropriate to their needs” and that Defendants can
accommodate those needs. While there is absolutely no factual support for such a blanket
assertion in the Amended Complaint for the thousands of constituents the Advocate Plaintiffs
claim to represent, the allegation “appropriate to their needs” must be read to refer to individuals
with wholly unique combinations of mental and/or physical illness, not an undifferentiated,
homogenous group with a single condition that is susceptible to one form of treatment.
Before the District Court could grant relief appropriate to the particular needs of each
Nursing Home Resident, it would be necessary to make some preliminary determinations for
each person. First, the Court would need to determine if the individual had been improperly
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discharged from a psychiatric hospital to a nursing home. The Court simply cannot presume that all of the Advocate Plaintiffs’ constituents were improperly placed in a nursing home. Second, it would be necessary to determine which of the Nursing Home Residents are, in fact, not receiving proper care, or being improperly screened for participation in other housing. The Court also would need to determine whether such persons want to move out of the nursing home. The Advocate Plaintiffs cannot reasonably assert that every one of their nursing home constituents wants to and can leave nursing home care. These are only preliminary considerations.
The Court then would need to decide what is “appropriate to the needs” for each of the Nursing Home Residents. It assuredly cannot be presumed that all of the Advocacy Plaintiffs’ nursing home constituents share the same degree of mental illness, age and infirmity, and in some instances, physical illness and that the “most integrated setting” for one person will be the same for any other. Each person would require an individualized evaluation to assure that the State took “steps necessary” to “assure” that they are moved to the appropriate setting.
It is evident that Relief Request D is precisely the type of claim where individual participation of each claimant is required, precluding associational standing. Relief Request D is fundamentally different from what is presumed to be the essential purpose of this lawsuit - to compel the State to change procedures found by the Court to violate federal law.21 It focuses more on individual injuries that may have been suffered by the Advocacy Plaintiffs’ individual
21 For example, the Amended Complaint’s Wherefore paragraph “a” merely seeks a declaration that Defendants have violated the ADA and the Rehabilitation Act. Similarly, Wherefore paragraph “b” seeks a declaration that Defendants have violated the NHRA by failing to develop and implement specific PASRR requirements. A declaration that, for example, Defendants were in violation of certain PASRR requirements and must make institutional corrections to those program deficiencies would not appear to require the participation of any of the Advocate Plaintiffs’ constituents.
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constituents, and rectification of particular alleged injuries, not systemic relief. This is precisely the type of relief which Arbor Hill found to preclude associational
standing. In Arbor Hill, the municipal defendants were responsible for the inspection, assessment, and abatement of lead hazards in selected housing. Plaintiff, a citizens’ neighborhood association, claimed that its members were harmed by the defendants' failure to comply with federal law and regulations designed to protect public health from the risks associated with lead-based paint. Arbor Hill, 250 F. Supp. 2d at 54. The first claim for relief sought to “[p]ermanently enjoin [d]efendants from directing, administering, and operating the City of Albany Lead Paint Abatement Program, except in accordance with TSCA and other applicable regulatory requirements.” Id. at 58. As purely injunctive relief, that claim did not require the participation of individual association members and, had plaintiff stopped there, the court’s inquiry would have been at an end and associational standing achieved. Id. at 59.
But the plaintiff did not stop there. The association also sought an order to have the defendants take other actions to remedy or mitigate the harm caused by the alleged violations, including: (1) ensuring that all dwellings that were improperly abated were safe for human habitation; and (2) conducting medical monitoring of those residents who may have been exposed to the health risks of lead poisoning. Id. The addition of this request for relief was fatal to plaintiff’s quest for associational standing, and the Court’s reasoning on that point resonates herein with respect to plaintiffs’ Relief Request D and other non-declaratory relief:
At trial, each and every person whose home was allegedly abated improperly would not only have to testify as to the background material that their homes had work performed, which is permissible but certainly not necessary . . . such persons would also have to testify to their current medical condition. . . . In addition, the scope of medical monitoring will not be uniform. Each person may have been subject to different levels of exposure, and may require different types
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of monitoring, varying in degree and quantity. It is this type of heterogenous relief, requiring extensive individual participation, that is sought to be curtailed by the third prong of the Hunt test. Id. at 59. See also Bano v. Union Carbide Corp., 361 F.3d 696, 715-16 (2d Cir. 2004) (“Bano”) (associational standing denied because participation by individual property owners needed to permit identification of contaminated properties with individual assessments required as to nature, breadth, severity of contamination and determination as to which specific remediation methods would be appropriate). The need for individualized relief is fatal to associational standing. It is fatal to associational standing by the Advocate Plaintiffs, at a minimum with respect to the relief sought in Relief Request D. Furthermore, the fact that a complaint may speak facially only to injunctive relief does not end the Court’s associational standing inquiry. In Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591 (2d Cir. 1993), the Second Circuit considered an association of New York City landowners’ claim that certain provisions of the city's rent regulations effected an unconstitutional taking of its members' property. Though the association sought only injunctive relief, the Second Circuit’s analysis went deeper. A takings claim, the court noted, requires a property owner to show that he has been denied an “economically viable use” of, or a “just and reasonable return” on, the property in question, and that this injury was caused by the challenged regulation. Id. at 596. The Court found that the question of whether such a burden is met cannot be answered without a particularized analysis of each person’s circumstances and held that the association did not have standing under Hunt. Similar analysis is found in Univ. Legal Servs., Inc. v. St. Elizabeths Hosp., No. Civ. 105CV00585TFH, 2005 WL 3275915, *5 (D.D.C. July 22, 2005) (Gasior Aff. Exh. J), where the court implied that a PAIMI organization’s associational standing probably would be denied if it was necessary to rely on the individualized participation of its constituents,
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in the form of testimony and affidavits, to prove its claims as opposed to purely injunctive remedies that would bring institution-wide relief for its constituents.
Simlarly, in Protection & Advocacy, Inc. v. Murphy, No. 90 C 569, 1992 WL 59100 (N.D. ILL. Mar. 16, 1992) (Gasior Aff Exh. K), a case involving a PAIMI organization’s standing, the court considered the requirement that there be “particularized”allegations of demonstrable injury to obtain associational standing. Without such particularization, “there can be no confidence of ‘a real need to exercise the power of judicial review’ or that relief can be framed ‘no [broader] than required by the precise facts to which the court's ruling would be applied.’” Id. at * 11 (citing Warth v. Selden, 422 U.S. 490, 508 (1975)). An organization’s assertion of standing cannot be different from the standing of the members it represents. Id. at *12. Accordingly, when an association’s members’ claims are “general, conclusory, and . . . inferential allegation[s] of unspecified injuries”-- like those asserted in Relief Request D -associational standing is not warranted. Id.
There is no question that the Advocate Plaintiffs’ demand that Defendants identify all of their constituents discharged to nursing homes from every psychiatric hospital or psychiatric unit in the State, without any time limitation, and then determine the constituents’ needs and provide for those needs is the type of heterogenous relief which, under the Hunt test’s third prong, is not properly asserted by an organization claiming associational standing.22 The Advocate Plaintiffs stand on firmer ground when they represent particular identifiable persons, such as the three
22 Compounding the need for individual participation in this case, as opposed to cases involving, for example, landlords, is the fact that the Advocate Plaintiffs’ constituents are mentally ill. As noted by the court in A Helping Hand, LLC v. Baltimore County, Maryland., 295 F. Supp. 2d 585, 592 (D. Md. 2003), the Supreme Court has held that disability status ordinarily requires an “individualized assessment.”
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Individual Plaintiffs in this case. But associational standing carves only a narrow exception from
the ordinary rule that a litigant must assert its own legal rights and interests and cannot rest its
claim to relief on the legal rights or interests of third parties. See Bano, 361 F.3d at 715. As the
Second Circuit stated in Bano,
If the involvement of individual members of an association is necessary, either because the substantive nature of the claim or the form of the relief sought requires their participation, we see no sound reason to allow the organization standing to press their claims, even where it seeks to do so as a putative class representative.
Id. at 715. Accordingly, where the Advocate Plaintiffs seek to obtain individualized relief for
unidentified persons, they should be denied associational standing and that cause of action, in
this case Relief Request D, dismissed.
POINT IV PLAINTIFFS EDWIN T., JOSEPH S. AND STEVEN W. LACK STANDING
TO BRING THE ASSERTED CLAIMS AGAINST DEFENDANTS
The Individual Plaintiffs’ claims against Defendants should be dismissed because the
Amended Complaint fails to contain allegations that their alleged injuries are fairly traceable to
the Defendants’ policies regarding the NHRA, a fact which deprives these plaintiffs of standing
to assert such claims. A three-pronged test is applied to determine whether plaintiffs have
standing in federal courts:
First, plaintiffs must show that they have suffered an injury in fact that is both concrete in nature and particularized to them. . . . Second, the injury must be fairly traceable to defendants' conduct. . . . Third, the injury must be redressable by removal of defendants' conduct. . . . The second and third prongs - traceability and redressability - often dovetail; essentially, both seek a causal nexus between the plaintiff's injury and the defendant's assertedly unlawful act. To establish standing, a plaintiff must plead all three elements.
In re U.S. Catholic Conference (USCC), 885 F.2d 1020, 1023 -24 (2d Cir. 1989).
The Amended Complaint makes general allegations regarding deficiencies in Defendants’
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implementation of the PASRR - - see amend. compl. ¶ 134 - - and generalized allegations of violations of the ADA and the Rehabilitation Act. Amend. Compl. ¶¶ 5, 6. Noticeably missing from the Amended Complaint, however, is any specific allegation that the Defendants failed to provide the Individual Plaintiffs with either a Preadmission Screening (§ 1396r((e)(7)(A)) before they entered nursing home care or a Resident Review (§ 1396r((e)(7)(B)) following a significant change in circumstances. Allegations are made that the Individual Plaintiffs are now able and qualified for and wish to receive treatment and live in a more integrated setting than a nursing home. Amend. Compl. ¶¶ 16, 70, 86, 94. But the closest any of the individual plaintiffs come to asserting that they did not actually receive a PASRR review is the allegation by Edwin T. that he “has been approved by Andover [nursing home] for discharge . . . .” Id. at ¶ 71. This pleading does not implicate any failure by Defendants to conduct a PASRR review and thus precludes the Individual Plaintiffs standing to assert such claims. “[W]hen a plaintiff lacks standing to bring suit, a court has no subject matter jurisdiction over the case.” Catholic Conference, 885 F.2d at 1023. See also Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 117 (2d Cir. 1991) (standing is a threshold jurisdictional issue under Article III in all cases since putative plaintiffs lacking standing are not entitled to have their claims litigated in federal court). Accordingly, the Individual Plaintiffs’ claims regarding the NHRA should be dismissed because the Individual Plaintiffs’ lack of standing robs this Court of subject matter jurisdiction.23
POINT V PLAINTIFFS FAIL TO NAME NECESSARY PARTIES “[A] person subject to service of process whose joinder will not deprive the court of
23 Even assuming, arguendo, that this Court determines that the plaintiffs do have standing to bring this litigation against Defendants, given these pleading deficiencies, the Court should rule that the Individual Plaintiffs fail to state a claim upon which relief can be granted.
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jurisdiction must be joined in an action when ‘in the person's absence complete relief cannot be accorded among those already parties . . . .’” Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 179 F.R.D. 417, 419 (S.D.N.Y.1998) (quoting Fed.R.Civ.P. 19(a) and referring to the persons described as “necessary” parties). Am. Stock Exch., LLC v. Towergate Consultants Ltd., 2003 WL 21692814, *3 (S.D.N.Y. 2003) (Gasior Aff. Exh. L).
A. The Nursing Homes Are Necessary Parties To This Litigation Pursuant to 42 C.F.R. § 483.116, “[i]f the State mental health authority determines that a resident or applicant for admission to a nursing facility requires nursing facility level of services, the nursing facility may admit or retain the individual.” Id. (emphasis added). Therefore, if the nursing home disagrees with the Preadmission Screening determination made by the State mental health authority, the nursing home is not obligated to admit an individual. In addition, as noted in section A(1)(b) of the Statement of the Case above, once an individual is placed in a nursing home, the NHRA requires that the nursing home, not the State mental health authority, conduct Resident Assessments. See 42 U.S.C. § 1396r(b)(3)(C). If the nursing home’s Resident Assessment reveals that there has been a “significant change” in the physical or mental condition of a resident, the nursing home is required to inform the State mental health authority. 42 U.S.C. § 1396r(b)(3)(E). Only then is the State required to perform a Resident Review. Id. Here, plaintiffs’ primary contention is that individuals who do not need nursing home level of care are nonetheless being admitted into nursing homes. Amend. Compl. ¶ 129. In addition, plaintiffs allege that the Defendants are failing to perform Resident Reviews. Id. ¶ 133. However, as explained above, nursing homes are required to provide a primary and indispensable role in providing notice to the State when there has been a significant change in a resident’s condition triggering the need for the State mental health authority to perform a Resident
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Review.24 Accordingly, nursing facilities housing Nursing Home Residents are necessary parties to this litigation pursuant to Fed. R. Civ. P. Rule 19(a)(2)(i) and they should either be added as parties or the plaintiffs’ claims dismissed.
B. The Article 28 Hospitals Are Necessary Parties To This Litigation To the extent that plaintiffs allege that the various psychiatric wards of non-state operated hospitals (the Article 28 hospitals) are unlawfully discharging individuals to nursing facilities, the Article 28 hospitals are necessary parties. While the State does regulate both Article 28 Hospitals and nursing homes, that function does not make the State responsible for discharge planning done by Article 28 hospitals or for the subsequent care of those persons once they reside in a nursing home. Cf. Amend. Compl. at ¶¶ 5, 6, 20, 21. As noted in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974), the fact that an otherwise private actor is regulated or licensed by a state agency does not make that actor's conduct a state action. Rather, the complaining party must show that “there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). The district court in Okunieff v. Rosenberg, 996 F. Supp. 343 (S.D.N.Y. 1998), considered whether the State could be held responsible for a private hospital’s decision to involuntarily commit and confine the
24 Mere licensure or regulation will not suffice to make the State liable for errors made by a nursing home, for example, a defective Resident Assessment. This was explained in some depth by the Supreme Court in Blum v. Yaretsky, 457 U.S. 991, 1005 (1982). Furthermore, State regulations at 10 N.Y.C.R.R. § 415.11 make it clear that, once a patient is transferred to a nursing home, responsibility for comprehensive case management, service planning, and related services is transferred to the nursing home. These State regulations, including discharge planning, specifically require nursing homes to assess their residents in a great number of areas, including their mental and psychosocial status. Id. at 18 N.Y.C.R.R. § 415.11(a)(2)(viii). Regulations at 18 N.Y.C.R.R. § 505.20 similarly demonstrate that the nursing home, not the State, is responsible for discharge planning for nursing home residents who receive Medicaid.
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plaintiff and determined that New York’s MHL did not create a sufficiently close nexus between the State and the hospital defendants to mandate their classification as state actors, which is what plaintiffs herein attempt to do. Id. at 352. Extensive regulation and the receipt of federal funds, without more, do not establish that the actions of a non-state hospital are attributable to the state regulator. Id. The State’s regulatory function regarding Article 28 Hospitals does not, therefore, make the State responsible for any (alleged) failure on the part of such hospitals to properly plan and implement the discharge of a psychiatric patient to a nursing home.
Therefore, the Article 28 hospitals are necessary parties to this litigation and, pursuant to Fed. R. Civ. P. Rule 19(a)(2)(i), they should either be added as parties to this action or, if that is not possible, plaintiffs’ action should be dismissed.25
POINT VI A THREE YEAR STATUTE OF LIMITATIONS GOVERNS ALL OF PLAINTIFFS’ CLAIMS AND BARS RELIEF FOR ANY CLAIMS BASED ON ACTS OUTSIDE THE LIMITATION PERIOD The Amended Complaint unquestionably seeks particularized relief for individuals other than the three Individual Plaintiffs, i.e., relief for the Advocate Plaintiffs’ “constituents.” Relief Request D seeks an order requiring Defendants to identify all individuals discharged to nursing homes from State and Article 28 psychiatric wards, determine whether such individuals require nursing home care and move them if they do not. Thousands of persons are implicated. Amend. Compl., ¶ 21. While the Amended Complaint asserts that “neither the claims asserted nor the relief requested in this action requires the participation of individual constituents in this lawsuit”
25 If plaintiffs continue to assert that the discharge planning by Article 28 hospitals is irrelevant and that, therefore, Article 28 hospitals are not necessary parties to this litigation, then it necessarily follows that the discharge planning by State psychiatric hospitals also is irrelevant in this action.
44

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(Id. at ¶ 28), the fact that particularized relief is sought for “all” nursing home residents demonstrates otherwise, as shown in Point III , supra. Any person seeking such specific relief from the Court is required to demonstrate that the allegedly unlawful State action -- whether it is the failure to perform a Preadmission Screening for the patient before he/she enters the nursing home, or the failure to perform a Resident Review after a significant change in a resident’s condition -- occurred within the applicable statute of limitations.
All of the statutes upon which plaintiffs base their claims - the ADA, the Rehabilitation Act and the NHRA - are subject to a three-year statute of limitations. See section A infra. Given that plaintiffs filed this action on March 8, 2006, claims based on acts occurring before March 8, 2003 would be barred. Therefore, there is a very strong probability that many of the Advocate Plaintiffs’ constituents’ claims are time-barred, in whole or in part. The Advocate Plaintiffs cannot evade application of the statute of limitations to “Constituents” by artfully failing to include in their pleadings any reference to the date upon which an alleged wrongful act occurred. A. Courts In This Circuit Uniformly Apply A Three-Year Statute Of Limitations For
Claims Like Those Asserted By Plaintiffs The district court in Gardner v. Wansart, No. 05 Civ. 3351 (SHS), 2006 WL 2742043, *3 (S.D.N.Y. Sept. 26, 2006) (Gasior Aff. Exh. M), explained why New York’s federal courts employ a three-year statute of limitations in cases asserting claims like those made by plaintiffs. Essentially, when a federal law, like the ADA, does not contain a statute of limitations, courts look to analogous State law to determine the appropriate limitation period. Id. at *3. In New York, federal courts apply New York’s three-year statute of limitations for personal injury claims to Title II and Title III ADA claims, as well as to claims brought pursuant to section 504 of the Rehabilitation Act, which statute also lacks reference to a specific statute of limitations. Id. The
45

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Gardner court also noted that section 1981 claims in New York are subject to a three-year statute of limitations. Id. (citing Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). See also, Solomon v. New York City Bd. of Educ., No. CV-95-1878, 1996 WL 118541 *4 (E.D.N.Y. Mar. 6, 1996) (3-year State statute of limitations that applies to personal injury actions applies to discrimination claims brought under Section 504 of the Rehabilitation Act) (Gasior Aff. Exh. N); Scaggs v. New York Dept. of Educ., No. 06-DV-0799 (JFB)(VVP), 2007 WL 1456221, *9 (E.D.N.Y. May 16, 2007) (applying New York's three-year statute of limitations to ADA claim) (Gasior Aff. Exh. O); Fiesel v. Bd. of Educ., 490 F. Supp. 363, 365 (E.D.N.Y. 1980) (applying 3year statute of limitation to claim brought under Rehabilitation Act, 29 U.S.C. §794); Morse v. Univ. of Vermont, 973 F.2d 122, 127 (2d Cir. 1992) (actions under § 504 of the Rehabilitation Act are governed by the State statute of limitations applicable to personal injury actions). It also has been held that § 1983 actions are governed by New York's three-year statute of limitations, as set out in N.Y. C.P.L.R. § 214. Warren v. Altieri, 59 Fed. Appx. 426 (2d Cir. 2003).
Defendants have not found any cases that explicitly applied a three-year limitations period to NHRA claims like those advanced by plaintiffs. Like the ADA, however, the NHRA does not contain a specific limitations period. Section 1396r of NHRA is, however, part of the Medicaid Act (see In re NYAHSA Litig., 318 F. Supp. 2d 30, 32 (N.D.N.Y. 2004)), and the Second Circuit has held that a three-year statute of limitations properly is applied to claims based on Medicaid violations. Hollander v. Brezenoff, 787 F.2d 834, 839 (2d Cir. 1986).
When the alleged claims resulting from a psychiatric hospital discharge accrued (or those of any potential hospital discharge), so as to start the three-year limitations period, is determined by federal law and, in the Second Circuit, “a cause of action accrues ‘when the plaintiff knows or has reason to know of the injury that is the basis of the action.’” BD v. DeBuono, 130 F. Supp.
46

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2d 401, 424 (S.D.N.Y. 2000). Although Defendants deny that any discharges from psychiatric hospitals violated the NHRA, the ADA or the NHRA, Defendants assert that, with respect to hospital discharges, the relevant event constituting the accrual date upon which the three-year statute of limitations would begin to run should be the date the person was actually discharged from the hospital.26 Respecting discharges then, the claims of many nursing home residents will likely be barred by the three-year statute of limitations. Accordingly, with respect to a cause of action based on the discharge from a psychiatric hospital, the Court should bar relief unless plaintiffs can demonstrate that a particular Nursing Home Resident was discharged from a psychiatric hospital within three years of the filing of the initial complaint in this action (March 8, 2006).27
Similarly, unless a “Constituent”/Nursing Home Resident can demonstrate that, while he/she was a resident of a nursing home, the Defendants violated a provision of the NHRA, the ADA or the NHRA within the three-year statute of limitations, a claim based on such a violation should be barred.
26 If the Court determines that the Amended Complaint fails to state a cause of action, it will be unnecessary for it to consider Defendants’ statute of limitations arguments. But if, for example, the Court finds that Relief Request D states a viable cause of action for Nursing Home Residents, then any such relief should be circumscribed by the three-year statute of limitations.
27 The Advocate Plaintiffs cannot by their status as advocates enlarge the statute of limitations. Their standing is coextensive with their “constituents” standing. As noted in Small v. Gen. Nutrition Cos., 388 F. Supp. 2d 83, 97-98 (E.D.N.Y. 2005), “associational standing exists only insofar as organization members have standing, associational standing may not be broader or more extensive than the standing of the organization's members.” If a “constituent’s” claim is time barred in this litigation, it also is barred to the Advocate Plaintiffs.
47

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POINT VII GOVERNOR SPITZER SHOULD BE DISMISSED AS A PARTY TO THIS LITIGATION A. Governor Spitzer is not a Proper Party to this Litigation Even assuming, arguendo, that this Court finds that this matter should not be dismissed as against DOH and OMH, it should certainly be dismissed as against Governor Spitzer. Plaintiffs do not make any specific claim, even if the allegations of the Amended Complaint are assumed to be true, that would involve a justiciable action against Governor Spitzer. Plaintiffs cannot name the Governor as a party to this litigation under the general theory that he has a duty to take care that the laws are faithfully executed. See Warden v. Pataki, 35 F. Supp. 2d 354, 359 (S.D.N.Y. 1999), aff’d sub nom., Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999)(holding Governor not proper party to litigation based upon “duty under New York Constitution to take care that the laws are faithfully executed.”); see also Wang v. Pataki, 164 F. Supp. 2d 406, 410 (S.D.N.Y. 2001)(finding that “where the legislative enactment provides that entities other than the executive branch of the State are responsible for implementation of the statute no claim against the Governor lies”). Since the Amended Complaint fails to demonstrate that Governor Spitzer has any connection with the implementation or enforcement of any relevant statute implicated in this litigation, he is immune from suit. See United States v. New York, No. 5:04-CV-00428 (NAM/DEP), 2007 U.S. Dist. LEXIS 21722 (N.D.N.Y. Mar. 27, 2007) (Gasior Aff. Exh. P). B. Rule 21 of the Federal Rules of Civil Procedure Requires that Governor Spitzer Should be Dismissed from this Litigation Moreover, and in any event, this matter should be dismissed as against Eliot Spitzer, as Governor of the State of New York pursuant to Fed. R. Civ. P. Rule 21. Rule 21 provides in relevant part: “Parties may be dropped or added by order of the court on motion of any party or of
48

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its own initiative at any stage of the action and on such terms as are just.” Fed. R. Civ. P. Rule
21. Even assuming, arguendo, that plaintiffs were to prevail in this matter, Governor Spitzer’s
presence in this litigation is not necessary to afford plaintiffs the full relief they seek. In the
interest of justice he therefore should be dropped from this litigation. See Comm. for Pub. Educ.
& Religious Liberty v. Rockefeller, 322 F. Supp. 678, 686 (S.D.N.Y. 1971) (Governor dropped
from the litigation because full relief could be afforded by the other named defendants).
CONCLUSION
For the reasons set forth above, the Court should grant Defendants’ motion to dismiss the
Amended Complaint and grant such other and further relief as the Court deems just and proper.
Dated: New York, New York September 18, 2007
ANDREW M. CUOMO Attorney General of the
State of New York Attorney for Defendants 120 Broadway, 24th Floor New York, New York 10271

To: SCHIFF HARDIN LLP Beth D. Jacob, Esq. Lori D. Greendorfer, Esq. 900 Third Avenue New York, New York 10022 212-753-5000

By: /S_________________________ John Gasior Deborah Hochhauser Assistant Attorneys General 120 Broadway, 24th Floor New York, New York 10271 212-416-8570
49

 
 Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 1 of 61 PageID #: 1376

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------------x

EDWIN T.; JOSEPH S.; and STEVEN W.;

:

DISABILITY ADVOCATES, INC.; and SIDNEY

:

HIRSCHFELD, Director, Mental Hygiene Legal Service, :

Second Judicial Department

:

:

Plaintiffs,

:

:

:

v.

:

:

MICHAEL F. HOGAN, in his official capacity as

:

Commissioner of the New York State Office of

:

Mental Health; THE NEW YORK STATE OFFICE

:

OF MENTAL HEALTH; RICHARD F. DAINES,

:

in his official capacity as Commissioner of the

:

New York State Department of Health; THE NEW

:

YORK STATE DEPARTMENT OF HEALTH;

:

and ELIOT SPITZER, in his official capacity

:

as Governor of the State of New York,

:

:

Defendants.

:

------------------------------------------------------------------------x

Civ No. 06 CV 1042 (BMC) (SMG)

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 2 of 61 PageID #: 1377
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................ iv PRELIMINARY STATEMENT .......................................................................................... 1 STATEMENT OF THE CASE............................................................................................. 2
A. The Americans with Disabilities Act and Rehabilitation Act................................... 2 B. The Nursing Home Reform Act ................................................................................ 5
1. Defendants’ Failure to Evaluate Whether Individuals Require Nursing Facility Level of Care.................................................................... 7 2. Defendants’ Failure to Evaluate Appropriate Level of Mental Health Treatment ...................................................................................................... 9 3. Defendants’ Failure to Perform Resident Reviews Upon Significant Change in Condition ................................................................................................. 10 4. Defendants’ Failure to Provide Notice to Evaluated Individuals ........................ 11 5. Plaintiffs’ Requests for Relief.............................................................................. 11 C. The Parties................................................................................................................. 12 1. The Individual Plaintiffs ...................................................................................... 12 2. The Organizational Plaintiffs............................................................................... 13 3. New York State Office of Mental Health ............................................................ 14 4. New York State Department of Health................................................................ 15 5. Governor Eliot Spitzer ......................................................................................... 15 ARGUMENT........................................................................................................................ 15 I. PLAINTIFFS STATE A CLAIM UNDER THE ADA AND REHABILITATION ACT ............................................................................................... 15 A. Unnecessary Institutionalization in Nursing Homes Violates the ADA and Rehabilitation Act........................................................................................... 16
i

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B. Whether Relief In This Action Would Require a Fundamental Alteration Cannot Be Resolved on a Motion to Dismiss................................................ 21 II. PLAINTIFFS STATE A CLAIM UNDER THE NURSING HOME REFORM ACT ............................................................................................................... 21 A. Plaintiffs Allege Multiple Violations of Their Rights Under the NHRA ................. 21 B. Plaintiffs Can Enforce Their NHRA Rights Through 42 U.S.C. § 1983 .................. 24 C. Defendants Cannot Overcome the Presumption of Enforceability ........................... 28 D. Defendants’ Methods of Administering the PASRR Program Independently Violate the ADA and Rehabilitation Act ............................................... 31 III. DAI AND MHLS HAVE STANDING TO BRING CLAIMS ON BEHALF OF INDIVIDUALS WITH MENTAL ILLNESS WHO RESIDE IN OR ARE AT RISK OF DISCHARGE TO NURSING HOMES .............. 32 A. DAI’s and MHLS’s Statutory Mandates Override Prudential Limitations on Associational Standing ........................................................................... 33 B. This Action Will Not Require This Court to Make Individualized Placement Decisions ....................................................................................................... 35 IV. EDWIN T., JOSEPH S., AND STEVEN W. HAVE STANDING TO PURSUE THEIR CLAIMS............................................................................................................ 38 V. PLAINTIFFS HAVE NOT FAILED TO NAME NECESSARY PARTIES ................. 39 A. The Nursing Homes Are Not Necessary Parties....................................................... 39 B. The Article 28 Hospitals Are Not Necessary Parties ................................................ 40 VI. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS........................................................................................................ 41 A. All of Plaintiffs’ Claims Accrued Within Three Years of the Filing of this Action ........................................................................................................ 41 B. Plaintiffs’ Claims Constitute Continuing Violations ................................................ 43 C. Any Statute of Limitations Applicable to Plaintiffs’ ADA, Rehabilitation Act, and NHRA Claims Is Tolled By Mental Illness.............................. 44
ii

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 4 of 61 PageID #: 1379 D. Any Applicable Statute of Limitations on the NHRA Claims Is Tolled In Light of Defendants’ Failure to Provide Notice.......................................... 46
VII. DEFENDANTS HOGAN, DAINES, AND SPITZER ARE APPROPRIATE OFFICIAL CAPACITY DEFENDANTS ........................................ 47
CONCLUSION..................................................................................................................... 48
iii

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TABLE OF AUTHORITIES
Page Cases
Aiken v. Nixon 236 F. Supp. 2d 211 (N.D.N.Y. 2002)................................................................................ 32, 34
Arbor Hill Concerned Citizens Neighborhood Ass’n v. City of Albany 250 F. Supp. 2d 48 (N.D.N.Y. 2003)........................................................................................ 37
Bano v. Union Carbide Corp. 361 F.3d 696 (2d Cir. 2004).......................................................................................... 33, 37, 38
BD v. DeBuono 130 F. Supp. 2d 401 (S.D.N.Y. 2000)....................................................................................... 43
Bell Atlantic Corp. v. Twombly __ U.S. __, 127 S. Ct. 1955 (2007)........................................................................................... 16
Bernstein v. Pataki 233 Fed. Appx. 21 (2d Cir. 2007)....................................................................................... 32, 34
Blessing v. Freestone 520 U.S. 329 (1997)...................................................................................................... 25, 26, 30
Blum v. Yaretsky 457 U.S. 991 (1982).................................................................................................................. 41
Bowles v. New York 617 N.Y.S.2d 712, 714-15 (N.Y. App. Div 1st Dept. 1994) ............................................... 45, 46
Browdy v. Lantz No. 3:03CV1981, 2006 WL 2711753 (D. Conn. Sept. 21, 2006) ............................................ 47
Brown v. Stone 66 F. Supp. 2d 412 (E.D.N.Y. 1999) ........................................................................................ 32
Building & Construction Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Development, Inc.,
448 F.3d 138 (2d Cir. 2006)................................................................................................ 37, 39
Burke v. Kodak Ret. Income Plan 336 F.3d 103 (2d Cir. 2003)...................................................................................................... 47
iv

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 6 of 61 PageID #: 1381
Candelaria v. Cunningham No. 98 CIV. 6273(LAP), 2000 WL 798636 (S.D.N.Y. June 20, 2000..................................... 48
Cannon v. Univ. of Chicago 441 U.S. 677 (1979)................................................................................................................. 25
Carelli v. Howser 923 F.2d 1208 (6th Cir. 1991) ................................................................................................. 30
Chosen Intern., Inc. v. Chrisha Creations 413 F.3d 324 (2d Cir. 2005)...................................................................................................... 19
Concourse Rehabilitation & Nursing Center Inc. v. Whalen 249 F.3d 136 (2d Cir. 2001)...................................................................................................... 27
Connolly v. McCall 254 F.3d 36 (2d Cir. 2001)........................................................................................................ 41
Conley v. Gibson 355 U.S. 41 (1957).................................................................................................................... 16
Cornwell v. Robinson 23 F.3d 694 (2d Cir. 1994)........................................................................................................ 44
D.D. v. New York City Bd. of Educ. 465 F.3d 503 (2d Cir. 2006)...................................................................................................... 31
Deshawn E. v. Safir 156 F.3d 340 (2d Cir. 1998)...................................................................................................... 32
Doe v. Goord No. 04 CV 0570, 2004 WL 2829876 (S.D.N.Y. Dec. 10, 2004).............................................. 47
Doe v. Pfrommer 148 F.3d 73 (2d Cir. 1998)............................................................................................ 20, 23, 32
Eastern Paralyzed Veterans Ass'n v. Lazarus-Burman Assocs. 133 F. Supp. 2d 203 (E.D.N.Y. 2001). ..................................................................................... 44
Employees Committee for Justice v. Eastman Kodak Company 407 F. Supp. 2d 423 (W.D.N.Y. 2005) .................................................................................... 37
Erickson v. Pardus __ U.S. __, 127 S.Ct. 2197 (2007)..................................................................................... 15, 22
v

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 7 of 61 PageID #: 1382
Fisher v. Oklahoma Health Care Auth. 335 F.3d 1175 (10th Cir. 2003) ........................................................................................... 17, 41
Fox v. State University of New York No. 05 CV 2350, 2007 WL 2193925 (E.D.N.Y. July 23, 2007) .............................................. 47
Frederick L. v Dep’t of Pub. Welfare 364 F.3d 487 (3rd Cir. 2004) .................................................................................................... 42
Frederick L. v Dep’t of Pub. Welfare of Pa. 422 F.3d 151 (3rd Cir. 2005) .................................................................................................... 21
Friends of the Earth, Inc. v. Laidlaw, Envtl. Servs. (TOC), Inc. 528 U.S. 167 (2000).................................................................................................................. 38
Goldberg v. Kelly 397 U.S. 254 (1970)............................................................................................................ 23, 47
Golden State Transit Corp. v. City of Los Angeles 493 U.S. 103 (1989).................................................................................................................. 29
Gomillion v. New York 274 N.Y.S.2d 381 (N.Y. Ct. Cl. 1966)...................................................................................... 45
Gonzaga Univ. v. Doe 536 U.S. 273 (2002)...................................................................................................... 25, 28, 29
Gregory v. Daly 243 F.3d 687 (2d Cir. 2001)...................................................................................................... 15
Hallett v. New York State Dep’t of Corr. Servs. 109 F. Supp. 2d 190 (S.D.N.Y. 2000)....................................................................................... 47
Harris v. Olszewski 442 F.3d 456 (6th Cir. 2006) ......................................................................................... 29, 30, 31
Havens Realty Corp. v. Coleman 455 U.S. 363 (1982).................................................................................................................. 44
Helen L. v. DiDario 46 F.3d 325 (3d Cir. 1995).................................................................................................. 17, 19
Henrietta D. v. Bloomberg 331 F.3d 261 (2d Cir. 2003).......................................................................................... 19, 47, 48
vi

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 8 of 61 PageID #: 1383
Hunt v. Washington State Apple Adver. Comm’n 432 U.S. 333 (1977)........................................................................................................... passim
Iqbal v. Hasty 490 F.3d 143 (2d Cir. 2007)...................................................................................................... 16
Johnson v. Railway Express Agency, Inc. 421 U.S. 454 (1975).................................................................................................................. 45
Jackson v. Metropolitan Edison Co. 419 U.S. 345 (1974).................................................................................................................. 41
Kathleen S. v. Dep’t of Pub. Welfare of Com. of Pa. 10 F. Supp. 2d 460 (E.D. Pa. 1998) .......................................................................................... 32
Kelly v. New York 57 A.D.2d 320, 395 N.Y.S.2d 311 (N.Y. App. Div. 4th Dept. 1977)....................................... 45
Ledbetter v. Goodyear Tire & Rubber Co. __ U.S. __, 127 S. Ct. 2162 (2007)........................................................................................... 44
Leocata v. Wilson-Coker 343 F.Supp.2d 144 (D. Conn. 2004)......................................................................................... 20
Lincoln Cercpac v. Health & Hosps. Corp. 147 F.3d 165 (2d Cir. 1998)...................................................................................................... 20
Mastercard Int’l. Inc. v. Visa Int’l. Serv. Ass’n, Inc. 471 F.3d 377 (2d Cir. 2006)...................................................................................................... 39
Martin v. Voinovich 840 F. Supp. 1175 (S.D. Ohio 1993) ................................................................................. passim
McNiece v. Jindal No. Civ. A. 97-2421, 1998 WL 175899 (E.D. La. Apr. 14, 1998) ..................................... 19, 22
M.K.B. v. Eggleston 445 F. Supp. 2d 400 (S.D.N.Y. 2006)....................................................................................... 25
M.O.C.H.A. Soc., Inc. v. City of Buffalo 199 F. Supp. 2d 40 (W.D.N.Y. 2002) ....................................................................................... 37
Muller v. New York 686 N.Y.S.2d 652 (N.Y. Ct. Cl. 1999)................................................................................ 44, 45
vii

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 9 of 61 PageID #: 1384
Nat’l Ass’n of Coll. Bookstores v. Cambridge Univ. Press 990 F. Supp. 245 (S.D.N.Y. 1997)............................................................................................ 37
N.J. Prot. & Advocacy, Inc. v. Davy No. Civ. 05-1784(SRC), 2005 WL 2416962 (D.N.J. Sep. 30, 2005) ....................................... 34
N.Y. State Nat’l Org. of Women v. Terry 886 F.2d 1339 (2d Cir. 1989).................................................................................................... 37
Okunieff v. Rosenberg 996 F. Supp. 343 (S.D.N.Y. 1998)............................................................................................ 41
Olmstead v. L.C. 527 U.S. 581 (1999)........................................................................................................... passim
Oregon Advocacy Ctr. v. Mink 322 F.3d 1101 (9th Cir. 2003) .................................................................................................. 34
Ottis v. Shalala 862 F. Supp. 182 (W.D. Mich. 1994) ........................................................................... 24, 26, 28
Patsy v. Bd. of Regents of Fla. 457 U.S. 496 (1982).................................................................................................................. 23
Pearl v. City of Long Beach, 296 F.3d 76 (2d Cir. 2002)........................................................................................................ 41
Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dep’t of Pub. Welfare 402 F.3d 374 (3d Cir. 2005)................................................................................................ 31, 42
Pinaud v. County of Suffolk 52 F.3d 1139 (2d Cir.1995)................................................................................................. 42, 43
Protection & Advocacy Inc. v. Murphy No. 90 C 569, 1992 WL 59100 (N.D. Ill. Mar. 16, 1992) .................................................. 42, 43
Prye v. Carnahan No. 04-4248-CV-C-ODS, 2006 WL 1888639 (W.D. Mo. July 17, 2006) ......................... 42, 43
Rabin v. Wilson-Coker 362 F.3d 190 (2d Cir. 2004)...................................................................................................... 25
Radaszewski v. Maram 383 F.3d 599 (7th Cir. 2004) ........................................................................................ 16, 19, 21
viii

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 10 of 61 PageID #: 1385
Rent Stabilization Ass’n v. Dinkins 5 F.3d 591 (2d Cir. 1993) ................................................................................................... 37, 38
Reynolds v. Giuliani No. 98 Civ. 8877(WHP); 2005 WL 342106 (S.D.N.Y. Feb 14, 2005) .................................... 25
Risinger v. Concannon 117 F. Supp. 2d. 61 (D. Me. 2000) ........................................................................................... 34
Rivers v. Katz 67 N.Y.2d 485 (1986) ............................................................................................................... 45
Roach v. Morse 440 F.3d 53 (2d Cir. 2006)........................................................................................................ 23
Roe v. City of New York 151 F. Supp. 2d 495 (S.D.N.Y. 2001)....................................................................................... 32
Rodriguez v. City of New York 197 F.3d 611 (2d Cir.1999)....................................................................................................... 20
Rolland v. Cellucci 52 F. Supp. 2d 231 (D. Mass. 1999) ................................................................................... 17, 36
Rolland v. Romney 318 F.3d 42 (1st Cir. 2003)................................................................................................. passim
Rubinstein v. Benedictine Hospital 790 F. Supp. 396 (N.D.N.Y. 1992)........................................................................................... 33
Sabree v. Richman 367 F.3d 180 (3d Cir. 2004)...................................................................................................... 29
Small v. Gen. Nutrition Cos. 88 F. Supp. 2d 83 (E.D.N.Y. 2005) .......................................................................................... 37
Swierkiewicz v. Sorema N.A. 534 U.S. 506 (2002)............................................................................................................ 15, 22
Taylor v. Vermont Department of Education 313 F.3d 768 (2d Cir. 2002)...................................................................................................... 27
Townsend v. Quasim 328 F.3d 511 (9th Cir. 2003) ......................................................................................... 17, 20, 21
ix

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 11 of 61 PageID #: 1386
Trautz v. Weisman 846 F. Supp. 1160 (S.D.N.Y. 1994).......................................................................................... 32
UAW v. Brock 477 U.S. 274 (1986).................................................................................................................. 35
United Food & Commercial Workers Union v. Brown Group, Inc. 517 U.S. 544 (1996).................................................................................................................. 33
United States v. Yonkers Bd. of Ed. 992 F. Supp. 672 (S.D.N.Y. 1998)............................................................................................ 44
Univ. Legal Servs., Inc. v. St. Elizabeth’s Hosp. No. Civ. 105CV00585TFH, 2005 WL 3275915 (D.D.C. July 22, 2005)........................... 34, 37
Unzueta v. Schalansky No. 99-4162-RD, 2002 WL 1334854 (D. Kan. May 23, 2002)................................................ 34
Veltri v Bldg. Serv. 32B-J Pension Fund 393 F.3d 318 (2d Cir. 2004)...................................................................................................... 46
Warth v. Seldin 422 U.S. 490 (1975).................................................................................................................. 35
Wilder v. Virginia Hospital Association 496 U.S. 498 (1990)............................................................................................................ 29, 30
Williams v. Walsh 558 F.2d 667 (2d Cir. 1977)...................................................................................................... 45
Wright v. City of Roanoke Redevelopment & Housing Authority 479 U.S. 418 (1987).................................................................................................................. 29
Wright v. Giuliani 230 F.3d 543 (2d Cir. 2000)................................................................................................ 20, 29
Statutes
29 U.S.C. § 794........................................................................................................................... 1, 2 42 U.S.C. § 1396r .................................................................................................................. passim 42 U.S.C. § 1983.................................................................................................................... passim 42 U.S.C. § 10801................................................................................................................... 13, 34 42 U.S.C. § 10805......................................................................................................................... 32 42 U.S.C. § 12101........................................................................................................................... 2 42 U.S.C. § 12131....................................................................................................................... 1, 2 42 U.S.C. § 12132....................................................................................................................... 1, 2
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42 U.S.C. § 1396a ..................................................................................................................... 7, 15 N.Y. Exec. Law § 702.................................................................................................................. 48 N.Y. Exec. Law § 703.................................................................................................................. 48 N.Y. Mental Hyg. Law § 47.03 ........................................................................................ 12, 32, 34 N.Y. Pub. Health Law § 2801....................................................................................................... 15 N.Y. Pub. Health Law § 2803....................................................................................................... 15 N.Y. Pub. Health Law § 2805....................................................................................................... 15 N.Y. Pub. Health Law § 2806....................................................................................................... 15 N.Y. Pub. Health Law § 2806-b ................................................................................................... 15 N.Y. Soc. Serv. Law § 363-a .................................................................................................... 4, 15 N.Y. Const. Art. V, § 4 § 363-a .................................................................................................... 48 P.L. 100-203, 101 Stat 1330 (1987).......................................................................................... 5, 10 P.L. 104-315, 110 Stat 3824 (1996).............................................................................................. 10
Rules and Regulations 28 C.F.R. § 35.130 .......................................................................................................... 2, 3, 18, 31 28 C.F.R. Pt. 35, App. A § 130................................................................................................. 2, 18 42 C.F.R. §§ 483.100-483.138............................................................................................... passim 42 C.F.R. § 431.220 .................................................................................................................. 2, 18 45 C.F.R. §84.4 ............................................................................................................... 2, 3, 16, 31 Fed. R. Civ. P. 8...................................................................................................................... 15, 21 Fed. R. Civ. P. 19.......................................................................................................................... 39 Fed. R. Civ. P. 21.......................................................................................................................... 48 N.Y. CPLR § 208.......................................................................................................................... 46
Other Authorities 57 Fed. Reg. 56450-01 (Nov. 30, 1992) ..................................................................................... 5, 7 H.R. Rep. No 100-391, Pt. 1 (1987) ......................................................................................... 5, 32
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PRELIMINARY STATEMENT

Plaintiffs Edwin T., Joseph S., S teven W., Disability Advocates, Inc., and S idney

Hirschfeld, Director, Mental Hygiene Legal Service, Second Judicial Department (collectively,

“plaintiffs”) have sued defendants New York St ate Office of Mental Health, New York State

Department of Health, their respective comm issioners in their official capacities, and Governor

Eliot Spitzer, in h is official capacity (collectively, “New York” or “defe ndants”) for failing to

administer their se rvices, programs, and activ ities in the most integ rated setting ap propriate to

the needs of qualified individuals with m

ental illness, le ading to the unnecessa ry

institutionalization in nursing homes of hundreds of New Yorkers with mental illness who do not

require nursing care in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

12131, 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. See First Amended

Complaint (“First Am. Compl.”) ¶¶ 95-117. New York also violates the federal Nursing Hom e

Reform Act (“NHRA”), 42 U.S.C. § 1396r, thr ough its failure to develop a Pre-Adm ission

Screen and Resident Review (“PA SRR”) program to assure that i ndividuals with mental illness

reside in nursing hom es only if they require nu rsing home care and to assure that individuals

residing in nursing homes receive appropriate mental health treatment. See First Am. Compl. ¶¶

118-136.

Plaintiffs state claims under the A DA, Rehabilitation Act, and NHRA. First , the ADA

and Rehabilitation Act comm unity integration mandate clearly prohibits the unnecessary

institutionalization of individuals w ith mental illness in nursing hom es. Second , plaintiffs,

including individual plaintiffs Edwin T., Joseph S., and Ste ven W., specifically allege multiple

violations of their PASRR rights under the NHR A, which are enforceable in a suit brought

pursuant to 42 U.S.C. § 1983. Third , the organizational plaintiffs in this ac tion, Disability

Advocates, Inc. (“DAI”) and Sidn ey Hirschfeld, Director, Mental H ygiene Legal Service, 1

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Second Judicial Department (“MHLS”), and the indi vidual plaintiffs, have standing to assert the claims in this action. L ast, there is no statute of limitations bar to any of plaintiffs’ claims. For these and other reasons stated herein, defendant s’ motion to dism iss should be denied in its entirety.
STATEMENT OF THE CASE A. The Americans with Disabilities Act and Rehabilitation Act
Title II of the ADA, 42 U.S.C. §§ 12131, 12132, and Section 504 of t he Rehabilitation Act, 29 U.S.C. § 794, prohibit discrim ination against individuals with di sabilities, including those with m ental illness.1 In enacting the A DA, Congress explicitly identified unjustified segregation of persons with disabilities as a form of discrimination. See 42 U.S.C. § 12101(a)(2) (“historically, society has tended to isolate and segregate indivi duals with d isabilities, and, despite some im provements, such form s of dis crimination against individua ls with disabilities continue to be a serious and pervasive social p roblem”); id. § 12101(a)(5) (“individuals with disabilities continually encounter various forms of discrimination, including ... segregation”).
To prevent unjustified segregation of persons with disabilities, regulations adopted under the ADA and Rehabilitation Act re quire that a public entity must administer its services, programs and activities in the m ost integrated setting appropriate to the n eeds of qualified individuals with disabilities. See 28 C.F.R. § 35.130(d) (ADA); 4 5 C.F.R. § 84.4(b)(2) (Rehabilitation Act); see also 28 C.F.R. pt. 35, App. A, § 130 (“ [T]he most integrated setting appropriate to the needs of qualif ied individuals with dis abilities” is “a setting that enab les
1 Title II app lies to public entities, s ee 42 U.S.C. § 12132, and Section 504 applies to recipients of federal financial assistance, see 29 U.S.C. § 794(a). D efendants admit that they are public entities covered by Title II of th e ADA and are recipients of fede ral financial assistance. See First Am. Compl. ¶¶ 34, 39, 40, 41; Answer to F irst Amended Complaint (“Answer”) ¶¶ 24, 27, 28, 29.
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individuals with dis abilities to interact with nondisabled persons to th e fullest extent possible ….”). The ADA and Rehabilitation Act also require that a public entity ad minister its programs so as not to defeat or substantially impair accomplishment of the objectives of the program with respect to individuals w ith disabilities. See 28 C.F.R. § 35.130(b)(3)(ii)(ADA); 45 C.F.R. §84.4(b)(4)(ii)(Rehabilitation Act).
Defendants’ failure to adm inister their serv ices, programs, and activ ities in the most integrated setting appropriate to the needs of qualified individuals with mental illness has led to the unnecessary institutionalization in nursing ho mes of hundreds of New Yorkers with m ental illness who do not r equire inpatient nursing care. See First Am. Compl. ¶¶ 95-102, 104-05. Defendants have em ployed methods of adm inistration that have led to the unnecess ary institutionalization of individuals with mental illness in nursing homes. See id. ¶¶ 103, 114.
Plaintiffs Edwin T., Joseph S., and Steven W. bring ADA an d Rehabilitation Act claims on their ow n behalf. See First Am. Com pl. ¶¶ 11-17, 65-71, 81-86, 87-94, 95-105, 106-117. Plaintiffs DAI and MH LS bring ADA and Rehabilitation claim s on behalf of individuals with mental illness discharged or at-r isk of discharge f rom state psychiatric hospitals operated by defendant New York State Offi ce of Mental Health (“O MH”) and on behalf of individuals discharged or at-risk of discharge from psychiatric wards of hospita ls licensed pursuant to Article 28 of the New York Public Health La w (“Article 28 psychi atric wards”). See id. ¶¶ 1827, 49-52, 53-64, 95-105, 106-117. Thes e individuals are collectively ref erred to as “constituents” of DAI and MHLS. See id. ¶ 20.
Plaintiffs bring their A DA and Re habilitation Act claim s against defendants New York State Department of Health (“DOH”) and Richard F. Daines, DOH Commissioner, because DOH is the s ingle state agency that operates New York S tate’s medical assistance program
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(“Medicaid”), which pays for the care and trea tment in nursing hom es of plaintiffs Edwin T., Joseph S., and Steven W. and the vast majority of DAI and MHLS’s constituents. See N.Y. Soc. Serv. Law § 363-a(1); First Am . Compl. ¶¶ 38, 44. DOH fails to operate the Medicaid program in such a manner as to ensure that individua ls with mental illness in nursing homes receive care and treatment in the most integrated setting appropriate to their needs. See First Am. Compl. ¶¶ 95-105, 106-17. DOH also fails to ad minister the PASRR program to accomplish the program’s objective of assuring that individuals with mental illness do not reside inappropriately in nursing homes and that these individuals receive necessary mental health treatment if in nursing hom es. See id. ¶¶ 103-04, 114-16.
Plaintiffs bring their A DA and Re habilitation Act claim s against defendants New York State Office of Mental Health (“O MH”) and Michael F. Hogan, OM H Commissioner, because OMH is responsible for the inappropriate discharge of individuals with mental illness to nursing homes from state psychiatric hospitals. See First Am. Compl. ¶ 31. Further, OMH has failed to develop sufficient community-based housing to ensu re that individu als with m ental illness are served in the most integrated setting appropriate to their needs. See id. ¶ 53. Last, OMH fails to administer the PASRR program to accomplish the program ’s objective of assuring that individuals with m ental illness do not res ide inappropriately in nurs ing homes and that the se individuals receive necessary m ental health treatment if in nur sing homes in violation of the ADA. See id. ¶¶ 33, 103-04, 114-16.
Plaintiffs sue Governor Spitzer as the individual ultim ately responsible for ensuring that New York operates its services, programs and activ ities in conf ormity with the ADA and Rehabilitation Act. See First Am. Compl. ¶ 41.
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To remedy defendants’ violations of the ADA and Rehabilitation Act, plain tiffs seek an
order requiring defendants to (1) ad minister their services, program s, and activities in the m ost
integrated setting appropriate to the needs of qualified individuals with mental illness residing in
nursing homes, (2) identify indivi duals with m ental illness discharged from state psychiatric
hospitals and Article 28 psychiatric wards to nursing hom es, (3) determ ine whether such
individuals could receive care and treatment in a m ore integrated setting, and (4) provide care
and treatment in a m ore integrated setting to those individual s who are qualified for and not
opposed to such care. See First Am. Compl. Wherefore Clause ¶ d. Pl aintiffs further seek a n
order requiring defendants to adm inister their PASRR program so as not to defeat or
substantially impair accomplishment of the objectives of the program with respect to individuals
with disabilities. See id. Wherefore Clause ¶ f.
B. The Nursing Home Reform Act
The Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r, was adopted as part of
the Omnibus Budget Reconciliation Act of 1987, P.L. 100-203, 101 Stat 1330 (1987), in order to
“end the in appropriate placement of m entally ill or mentally retarded individuals in nurs ing facilities.” H.R. Rep. N o. 100-391, pt. 1, at 459 (1987). 2 The NHRA requires s tates to ensure
that individuals with mental illness are not inappropriately placed in nursing homes and that they 2 For an overview of the NHRA’s preadm ission screening and resident review requirements, see Department of Health and Human Services, Office of Inspecto r General, “P readmission Screening and Resident Review for Younger Nurs ing Facility Residents W ith Serious Mental Illness” (OEI-05-05-00220; Jan. 2007), available at http://oig.hhs.gov/oei/reports/oei-05-0500220.pdf (last visited Nov. 15, 2007). See also Department of Health and Human Services, Office of I nspector General, “Younger Nursing Facility Residents w ith Mental Illness: Preadmission Screening and Resident Review (PASRR) Implementation and Oversight” (OEI05-99-00700; Jan. 2001), available at http://oig.hhs.gov/oei/reports/oei-05-99-00700.pdf (last visited Nov. 15, 2007); Department of Health and Human Services, Office of Inspector General, “Younger Nursing Facility Residents with Mental Illness: An Unidentified Population” (OEI-0599-00701; Jan. 2001), available at http://oig.hhs.gov/oei/reports/oei-05-99-00701.pdf (last visited Nov. 15, 2007).
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receive appropriate mental health treatment while in a nu rsing facility. See 42 U.S.C. § 1396r; see also 42 U.S.C. § 1396a(a)(28) (state Medicaid plan must provide for compliance with NHRA). Section 1396r(e)(7) of the NHRA delin eates the “State requirem ents for preadmission screening and resident review.” 42 U.S.C. § 139 6r(e)(7). Regulations prom ulgated pursuant to the statute implem ent the NHRA’s preadm ission screening and resident review (“PASRR”) requirements. See 42 U.S.C.. § 1396r(f)(8)(A); 42 C.F.R. §§ 483.100-483.138; 57 Fed. Reg. 56450-01 (Nov. 30, 1992). These PASRR requirem ents apply to any indi vidual proposed for admission to or who resides in a Medicaid-certified nursing facility. See 42 C.F.R. § 483.102(a). For individuals receiving care outside their state of residence, the state in which the individual is a resident must pay for PASRR and make the required determinations. See 42 C.F.R. § 483.110.
Defendants have failed to im plement a PASR R program consistent with the NHRA by (1) failing to evaluate properly whether individual s with mental illness require nursing facility level of care, including whether co mmunity treatment is appropriate ; (2) f ailing to evaluate properly the level of m ental health treatment individuals with m ental illness residing in nursing homes require and to assure that such individu als receive appropriate treatment; (3) failing to assure that residen ts of nursing homes receive resident reviews upon a significant chang e in condition; and (4) failin g to assure that ind ividuals with mental illness receive a copy of their PASRR evaluation report. See First Am. Compl. ¶¶ 118-36.
Edwin T., Joseph S., and Steven W . bring NHRA claims on their own behalf. See First Am. Compl. ¶¶ 134, 135, W herefore Clause ¶¶ b, f. DAI and MHLS bring NHRA claim s on behalf of individuals with mental illness discharged or at-risk of discharge from state psychiatric hospitals operated by defendant O MH and on beha lf of individuals disc harged or at-risk of discharge from Article 28 psychiatric wards. See id. ¶ 20.
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Plaintiffs bring their NHRA claim s against defendants DOH and Dain es because DOH, as the S tate Medicaid agency, is responsible for assuring that New York’s PASRR program operates in conformity with federal law. See First Am. Compl. ¶38; 42 U.S.C. § 1396a(a)(28); 57 Fed. Reg. 56450-01, 56452.
Plaintiffs bring their NHRA claim s against defendants OMH and Hogan because OM H, as the “State m ental health au thority” in New York State, is responsible under the NHRA for determining whether an individual with m ental illness requires nursing facility level care and determining what level of mental health treatment such individual requires. See 42 U.S.C. § 1396r(e)(7)(B)(i); First Am. Compl. ¶¶ 30, 33, Answer ¶ 21.
Plaintiffs sue Governor Spitzer as the individual ultim ately responsible for ensuring that New York operates its PASRR program in conformity with the NHRA. See First Am. Compl. ¶ 41.
To remedy defendants’ violat ion of the NHRA, plaintiffs seek an order d irecting defendants to im plement a PASRR program th at complies with the NHRA, to evaluate individuals with m ental illness residing in nursing homes under such a program, to m ake appropriate community-based treatm ent available for those determined eligible f or community placement, and to ensure that individuals with mental illness determined to require nursing home care receive appropriate m ental health trea tment. See First Am . Compl. W herefore Clause ¶¶ d, f .
1. Defendants’ Failure to Evaluate Whether Individuals Require Nursing Facility Level of Care
For individuals with m ental illness propos ed for adm ission to a nursing facility, the NHRA requires that “the State must have in effect a preadmission screening program,” 42 U.S.C. § 1396r(e)(7)(A)(i), to determ ine “prior to admission that, because of the physical and mental
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condition of the individual , the individual requires the level of services provided by a nursing facility,” 42 U.S.C. § 1396r(b)(3)(F )(i). The NHRA further provides that “in the case of each resident of a nursing facility who is mentally ill, the State mental health authority must review and determine . . . whether o r not the resident, because of the residen t’s physical and m ental condition, requires the level of services provided by a nursing facility.” 42 U.S.C. § 1396r(e)(7)(B)(i). For both the preadm ission screen and the resident revi ew, the “State mental health authority” makes the determ ination as to whether an individual meets nursing facility level of care based upon “an independent physical and mental evaluation performed by a person or entity other than the State m ental health authority.” 42 U.S.C. § 1396r(b)(3)(F)(i); 42 U.S.C. § 1396r (e)(7)(B)(i).
To determine whether an individual m eets nursing facility level of care, the independent evaluator must assess whether “[t]he individual’s total needs are such that his or her needs can be met in an appropriate community setting.” 42 C.F.R. § 483.132(a)(1). T he evaluator examines “the level of support that would be needed to assist the in dividual to perfor m these activities while living in the community,” and “determ ine[s] whether this level of support can be provided to the individual in an alternat ive community setting or whether the level of support needed is such that NF [Nursing Facility] placem ent is required.” 42 C.F.R. § 483.134(b)(5). If th e individual’s needs cannot be m et in a community setting, the assessor de termines if “[t]he individual’s total need s are such th at they can be m et only on an inpatient basis, which m ay include the option of placem ent in a home and community-based services waiver program.” Id. § 483.132(a)(2); see 57 Fed. Reg. 56450-01, 56496 (“NF [Nursing Facility] placement would be
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selected only after less restrictive settings had been rejected be cause the individual's care needs are so extensive that the individual requires institutional care”).3
The PASRR system in New York fails to evaluate whether the needs of individuals with mental illness proposed for nur sing home admission or residing in nursing hom e are such that they can be m et in an appropriate comm unity setting, including community-based care funded under a home and community-based se rvices waiver program. See First Am. Compl. ¶¶ 129-30, 133. As a result, ind ividuals with m ental illness whose n eeds can b e met in an appropriate community setting are n evertheless determined eligible for nursing home care. Thus, whenever OMH authorizes and approves nursing home care for a person with a mental illness, it does so in violation of the NHRA. Because its p rocedures are un lawful, every individu al with m ental illness in a nursing home has been denied the right to a preadmission screen.
2. Defendants’ Failure to Evaluate Appropriate Level of Men tal Health Treatment
For individuals who require th e level of serv ices provided by a nursing facility, the PASRR evaluation must evaluate the level of mental health treatment such individual requires. 42 U.S.C. § 1396r(b)(3)(F)(i); id. § 1396r(e)(7)(B)(i)(II). If the evaluation indicates that the individual requires specialized se rvices for m ental illness, the NHRA provides th at the “State must . . . provide for (or arrange for the provisi on of) such specialized se rvices for the m ental illness.” 42 U.S.C. § 1396r(e)(7 )(C)(i)(IV), (ii)(III); s ee 42 C.F.R. §§ 483.116(b)(2); 483.118(c)(1)(iv). If the individual requires servi ces of a lesser intensit y, the nursing facility 3 If inpatient care is “appropriate and desired,” the evaluator must further assess whether “the NF [Nursing Facility] is an appropriate institutional setting for meeting [the individual’s] needs.” 42 C.F.R. § 483.132(a)(3). If the Nu rsing Facility is not an appropr iate setting, the evaluator then assesses other institutional settings “such as a n ICF/MR [ intermediate care f acility for the mentally retarded] (including small, community-based facilities), an IM D [institute for mental disease] providing services to ind ividuals aged 65 or older, or a psyc hiatric hospital.” Id. § 483.132(a)(4).
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must provide such services as determined by the evaluation report. See 42 C.F.R. § 483.120(c). Whether specialized services or services or a lesser intens ity are r ecommended, the evaluation report must identify “the specific … m ental health services required to m eet the evaluated individual's needs.” 42 C.F.R. § 483.128(i)(4), (5).
Defendants fail to eva luate properly the lev el of mental health trea tment an ind ividual with mental illness proposed for admission to nursing ho mes or residing in a n ursing home requires. See First Am. Compl. ¶¶ 132, 134. As a result, individuals with mental illness residing in nursing homes do not receive needed mental health treatment.
3. Defendants’ Failure to Perform Reside nt Reviews Upon Significant Change in Condition
The State must conduct a reside nt review “promptly after a nursing facility has notified the State mental health authority … that the re has been a sign ificant change in the resident’s physical or m ental condition.” 42 U.S.C. § 1396r(e)(7)(B)(iii). 4 This review determ ines both whether the individual requires the level of se rvices provided by a nursing facility, including whether the individual could be served in the community, see 42 U.S.C. § 1396r(e)(7)(B)(i)(I), 42 C.F.R. § 483.132(a)(1),(2), and the level of m ental health treatment such individual requires. See 42 U.S.C. § 1396r(e)(7)(B)(i)(II).
Defendants fail to conduct proper resident reviews when individuals with mental illness residing in nursing homes experience a significant change of condition. See First Am. Compl. ¶¶ 130-35. As a result, som e individuals with m ental illness continue to reside unnecessarily in nursing homes despite im provement in their c ondition which would m ake them eligible for 4 As originally adopted, the NHR A required the state m ental health authority to perform this resident review on an annual basis. P.L. 100-203, § 4211(e)(7)(B). The requirem ent of annual resident review was amended in 1996 in favor of a resident review where “there has been a significant change in the resident’s physical or mental condition.” P.L. 104-315, 110 Stat. 3824 (1996).
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community placement. Others do n ot have their mental health tre atment needs identified and therefore do not receive necessary treatment.
4. Defendants’ Failure to Provide Notice to Evaluated Individuals The NHRA requires that individuals with mental illness who are evaluated as part of the PASRR process receive a copy of the independe nt evaluation report and have the results explained to them . See First Am . Compl. ¶ 125; 42 C.F. R. § 483.128(l)(1) (evaluation report must be provided to the individual); 42 C. F.R. § 483.128(k) (independent evaluator m ust interpret and explain the evalua tion results to the individual) ; 42 C.F.R. § 483.128(i) (describing contents of evaluation report); see also 57 Fed. Reg. 56450-01, 56489 (“[W ]e believe it is essential that the person being screen ed … receive a layman's explanation and a copy of the full evaluation report for several reason s. These are sensitive issues for the person being screened and the results of the screening may have great impact on the individual's options for future care. These are disabled populations for whom extra care must be given to allow them to exercise their rights. Since PASARR Level II determinations are appealable, they must understand the basis on which the determinations were made in order to assess whether they should submit an appeal.”). Defendants fail to provide a c opy of the evaluation report to individuals with m ental illness who undergo preadm ission screening or residen t review. See First Am . Compl. ¶ 131. As a result, plaintiffs have not received notice that defendants have failed to evaluate them in a manner consistent with the NHRA and are not apprised of a basis for appeal. 5. Plaintiffs’ Requests for Relief The NHRA defines the actions a state m ust take in response to the PASRR and resident review determinations. See 42 U.S.C. § 1396r(e)(7)(C). Sin ce no nursing hom e resident with mental illness has received a proper PASRR evalua tion, plaintiffs seek an order that each individual with m ental illness discharged from an OMH psychia tric hospital or Article 28
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psychiatric ward to a nursing hom e receive a p roper PASRR evaluatio n and be entitled to th e

relief that results from such evaluation. See First Am. Compl. Wherefore Clause ¶¶ d, f .

If the PASRR evaluation indicates that the needs of an individual with mental illness can

be met in a community setting, plaintiffs seek an order requiring New York to offer that

individual an appropriate community setting. See 42 U.S.C. § 1396r(e)(7)(C)(i)(II), 42 U.S.C. §

1396r(e)(7)(C)(ii)(I),(II); 42 C.F. R. §§ 483.118, 483.130(m )(5), (6); see also 57 Fed. Reg.

56450-01, 56469 (Nov. 30, 1992) (“The State . . . has

statutory responsibility f or making

available the appropriate alternative settings to which residents can m ove. To deal with these

residents, New York must have a m aster plan which, based on assessed needs, provides for the

expansion or creation of the placement options, in the right numbers and types ….”); Firs t Am. Compl. Wherefore Clause ¶¶ d, f. 5 If the PASRR evaluation indicates that the nursing facility is

an appropriate placem ent, plaintiffs seek an order requiring New York to ensure that the

individual receives appropriate m ental health treatment. See 42 U.S.C. § 1396r(e)(7)(C)(i)(IV);

id. § 1396r(e)(7)(C)(ii)(IV); First Am. Compl. Wherefore Clause ¶¶ d, f.

C. The Parties

1. The Individual Plaintiffs

Plaintiffs Edwin T., Joseph S. and Steven W . bring claims on their own behalf against all

defendants for violation of the ADA, Rehabilitation Act, and NHR A. Edwin T. is a New Yo rk

resident discharged from Creedmoor Psychiatric Center to Andover Subacute and Rehabilitation

5 Nursing home residents with mental illness who have resided in the nursing facility for at least 30 months before the date of the resident review have the choice of rem aining in the nursing home or accepting a comm unity placement. See 42 U.S.C. § 1396r(e)(7)(C)(i); 42 C.F.R. § 483.130(m)(4).
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II nursing home in May 2004. See First Am. Compl. ¶¶ 11, 14-17, 65-71. 6 Joseph S. is a New York resident, discharged from Creedmoor Psychiatric Center to Meadow Park Nursing Home in September 2003 and currently resides at the Far Rockaway Nursing Home in Queens, New York. See id. ¶¶ 12, 14-17, 81-86. Steven W . is a New York resident, discharged from the psychiatric ward of Montefiore Medical Ce nter to Brookhaven Rehabilitati on and Health Care Center in June 2004, where he currently resides. See id. ¶¶ 13, 14-17, 87-94.
Edwin T., J oseph S. an d Steven W. each have a sign ificant mental impairment, but no need for nursing home care. See First Am. Compl. ¶¶ 14, 17, 68, 84, 91, 96, 107. They are able to, qualified for and wish to live and receiv e treatment in a m ore integrated s etting than the nursing home in which they currently reside. See id. ¶¶ 84, 86, 91, 94, 109. They each w ere admitted to a nurs ing home under a PASRR program which f ailed to ev aluate them in compliance with the NHRA. See id. ¶¶ 118-36.
2. The Organizational Plaintiffs Disability Advocates, Inc. (“DAI”) is a not-for-profit protection and advocacy organization authorized under the federal P rotection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801 et seq. , to pursue legal, adm inistrative and other appropriate remedies on behalf of individuals with mental illness. See First Am. Compl. ¶ 18. Sidney Hirschfeld is Director of Mental Hygiene Legal Service, Second Judicial Departm ent 6 Although Edwin T. was discharged from Andover in July 2007, his claims are not moot, as they are capable of repetition yet evading review. In Ol mstead v. L.C. , the Supreme Court found a live controversy where the plain tiffs, after commencing litigation, obtained a community placement: “[Plaintiffs] L.C. and E.W . are curr ently receiving treatment in community-b ased programs. Nevertheless, the ca se is not m oot …. [I]n view of the m ultiple institutional placements L.C. and E.W. have experienced, the controversy they brought to court is ‘capable of repetition, yet evading review.’” 527 U.S. 581, 594 n.6 (1999). Like the Olm stead plaintiffs, Edwin T. has had m ultiple psychiatric institutionalizations and, so long as defendants continue their policy of discharging indivi duals from psychiatric faciliti es to nursing hom es, Edwin T . faces a substantial risk of unnecessary placement in a nursing facility.
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(“MHLS”), an agency of the State of New York authorized, pursuant to Article 47 of the Mental Hygiene Law to in itiate and take any leg al action necessary to protec t the lega l rights of individuals with a m ental disability. See First Am . Compl. ¶ 19; N.Y. Mental Hyg. Law § 47.03(e).
DAI and MHLS bring claims on behalf of individuals discharged or at-risk of discharge to nursing hom es directly from state psychiatric hospitals operated by defendant OMH and others discharged or at -risk of discharge to nursing hom es from Article 28 psychiatric wards. See First Am . Compl. ¶¶ 20, 95-136. These indi viduals are collectively referred to as “constituents” of DAI and MHLS. Id. ¶ 20. These constituents are qualified to receive treatment in a more integrated setting than the nursing homes in which they currently reside. See id. ¶ 93. The constituents were discharged or are at-r isk of discharge to a nursing home under a PASRR program which failed or will fail to evaluate them in compliance with the NHRA. See id. ¶¶ 118-36.
3. New York State Office of Mental Health Defendant New York State Office of Mental Health (“OMH”) operates state psychiatric centers; licenses and funds co mmunity-based housing for persons with m ental illness; and licenses, supervises, and enforces the laws and re gulations applicable to Article 28 psychiatric wards. See First Am . Compl. ¶¶ 30-34. OM H is the “S tate mental health authority” in New York State, with responsibil ity under the NHRA for m aking a final PASRR determination. See id. ¶ 30, Answer ¶ 21. Defendant Michael F . Hogan, sued in his official capacity, is the Commissioner of OMH. See First Am. Compl. ¶ 29.
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4. New York State Department of Health

Defendant New York State Department of Health (“DOH”) is the single state agency that

operates New York State’s Medicaid program , which pays for the care and treatment in nursing

homes of plaintiffs Edwin T., Joseph S., and St even W. and the vast majority of DAI and

MHLS’s constituents. See First Am. Compl. ¶¶ 38, 44; N.Y. Soc. Serv. Law § 363-a. As the

State Medicaid agency, DOH is responsible for assuring that New York’s PASRR program

operates in conformity with federal law. See First Am. Compl. ¶ 38; 42 U.S.C. § 1396a(a)(28);

57 Fed. Reg. 56450-01, 56452 (Nov. 30, 1992). DOH also li censes, supervises and enforces the

laws and regulations applicable to nursing hom es, see First Am. Compl. ¶ 36; N.Y Pub. Health

Law §§ 2801(2), (3); 2806-b, and licenses, supervis es and enforces the laws and regulations

applicable to Article 28 hospitals, see First Am. Compl. ¶ 37; N.Y. Pub. Health Law §§ 2801(1);

2803(1); 2805; 2806. Defendant Richard F. Daines , sued in his official capacity, is the

Commissioner of DOH. See First Am. Compl. ¶ 35.

5. Governor Eliot Spitzer

Eliot Spitzer, sued in his official capacity, is the Governor of the State of New York. See

First Am. Compl. ¶ 40.

ARGUMENT

I.

PLAINTIFFS STATE A CLAIM UNDER THE ADA AND

REHABILITATION ACT

The Federal Rules of Civil Procedure require a plaintiff to provi de a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see

Erickson v. Pardus, __ U.S. __, 127 S. Ct. 2197, 2200 (2007); Swierkiewicz v. Sorema N.A., 534

U.S. 506, 515 (2002) (rejecting heightened pleading standard in case alleging national origin and

age discrimination); Gregory v. Daly , 243 F.3d 687, 691 (2d Cir. 2001) (court “’must accept as

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true all of the f actual allegations set out in plaintif f's complaint, dra w inferences from those allegations in the light m ost favorable to plai ntiff, and construe the complaint liberally’”) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).7 Under the liberal pleading standards of the Federal Rules, plaintiffs state claims for relief under the ADA and Rehabilitation Act.
A. Unnecessary Institutionalization in Nursing Homes Violates the ADA and Rehabilitation Act
The ADA and Rehabilitation Act require the St ate of New York to “adm inister services, programs, and activities in th e most integrated setting app ropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (A DA); see 45 C.F.R. § 84.4(b)(2) (Rehabilitation Act); First. Am . Compl. ¶¶ 2, 102, 115. In Olm stead v. L.C. , 527 U.S. 581 (1999), the Supreme Court examined the case of two individuals with mental illness residing in a state psychiatric hospital who were qualif ied for community-based tre atment. Id. at 583, 603. Despite their ability and desire to reside in the community, Georgia’s mental health system failed to make community-based treatm ent available. Id. at 583. The Supr eme Court held that the failure to make community-based treatment available violated the ADA and Rehabilitation Act’s requirement that Georgia adm inister its services, programs, and activities in the m ost integrated setting. Id. at 606.
Four federal circuit courts ha ve applied the community inte gration mandate examined in Olmstead to cases where the state’s services, program s, or activ ities unnecessarily segregated individuals with disabilities in nursing hom es. See Radaszewski v. Maram , 383 F.3d 599, 615
7 Defendants argue that Bell Atlantic Corp. v. Twom bly, __ U.S. __, 127 S. Ct. 1955 (2007) “altered the legal s tandards applicable to Rule 12(b)(6) motions.” Defs’ Br. at 19-20. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) held that Bell Atlantic did not establish a “heightened pleading rule,” based in part on the Supreme Court’s rejection of a heightened pleading standard in Erickson, 127 S. Ct. at 2200, decided tw o weeks after Bell Atlantic . See Iqbal, 490 F.3d at 158.
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(7th Cir. 2004) (failure to fund private nursing ca re to prevent nursing h ome placement violates ADA and Rehabilitation Act integration mandate); Townsend v. Quasim, 328 F.3d 511, 520 (9 th

Cir. 2003) (state’s decision to fund nursing servi ces for certain Medicaid recipients only in a

nursing home setting would violat e ADA unless state could dem onstrate that funding hom e and

community-based nursing services for these indi viduals would fundam entally alter the state’s Medicaid program); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182-84 (10 th Cir. 2003)

(state’s decision to fund m ore prescription drugs in Medicaid-cove red nursing homes than in its

Medicaid home and co mmunity-based waiver program violates ADA unless state can

demonstrate that funding unlim ited prescription drug coverage in the waiver would

fundamentally alter state’s Medica id program); Helen L. v. DiDario , 46 F.3d 325, 339 (3d Cir.

1995) (pre-Olmstead case finding ADA and Rehabilitation Act’s integration mandate violated by

unnecessary institutionalization of individuals with disabiliti es in nursing hom es); see also

Rolland v. Cellucci , 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (applying ADA integration

mandate to private nursing facilities). The Justice Department also has recognized that Olmstead

applies to state serv ice systems for people with disabilities that segregate individuals with

disabilities in nursing homes. See Findings of Department of Justice concerning Laguna Honda

Hospital and Rehabilitation Center

(Aug. 3, 2004) at 2-3, available at

http://www.usdoj.gov/crt/split/documents/laguna_honda_findlet_aug3.pdf (last visited

November 15, 2007).

As these c ases make clear, the c ommunity integration mandate is not lim ited to

individuals in psychiatric hospitals, see Defs’ Br. at 23-24, but extends to any individual with a

disability who resid es in a se tting that is not the most integrated f or that individual. This is

consistent with the plain language of the co mmunity integration mandate, which requires New

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York to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disa bilities.” 28 C.F.R. § 35.130(d) (em phasis added); see also 28 C.F.R. pt. 35, App. A § 130 (“[T]he most integrated setting appropriate to the needs of qualified individuals with disabilities” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.”) (emphasis added).
Defendants mistakenly argue that the state’s own treatment professionals must determine whether an individual is qualified for community-based treatment in order for that individual to bring a claim for violation of the comm unity integration mandate. Defs’ Br. at 22-23. To support their argum ent, defendants m isconstrue the statem ent in Olm stead that “States are required to provide community-based treatm ent for persons with m ental disabilities when the State's treatment professionals determine that such placement is appro priate.” Olm stead, 527 U.S. at 607. In Olm stead, there was “no genuine dispute concerning the status of L.C. and E.W . as individuals ‘qualified’ for nonins titutional care: The State' s own professionals determined that community-based treatment would be appr opriate for L.C. and E.W., and nei ther woman opposed such treatment.” Id. at 602-03. Thus, the Court did not consider a situation, like the
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one here, where the sta te systematically fails to evaluate individua ls with m ental illness for community placement. See First Am. Compl. ¶¶ 5-6, 8, 21, 56, 72-73, 104, 116, 129, 130, 134.8
To be entitled to relief under the community integration m andate, plaintiffs must allege,
as they do, that they are qualified for the commun ity programs to which they se ek access. See
First Am. Compl. ¶¶ 16, 51, 70, 86, 94, 98, 109; Olm stead, 527 U.S. at 602 (t o state claim for
violation of community integration mandate, plaintiffs must “m ee[t] the essen tial eligibility
requirements for the receipt of services or the participation in programs or activities provided by
a public entity’”) (quoting 42 U.S.C. § 12131(2)); Henrietta D. v. Bloomberg, 331 F.3d 261, 272
(2d Cir. 2003) (to allege a violation of the ADA and Rehabilitation Act, plaintiffs m ust be
“‘qualified individuals’” with a disability). The determination of a state treatm ent professional
that plaintiffs are qualified for community placem ent is not necessa ry to afford them the relief
they seek. See Helen L., 46 F.3d at 329, 339 (granting relief under the community integration
mandate where a pri vate service agency, not the state, “determined that [plaintiff] was el igible
for attendant care services” in the community); Radas zewski, 383 F.3d at 608 (upholding
community integration claim brought by individual residing at hom e; no allegation that state
professional determined the individual to be qualified to reside there).
8 If defendants com e forward in d iscovery with community placem ent evaluations from the state’s own professionals, there wi ll be a question of fact as to whether those evaluations are entitled to deference. See Olmstead, 527 U.S. at 602-03. This Court cannot presum e on a motion to dism iss that the state perform ed such evaluations and th at they are entitled to deference. See, e.g., Chosen Int’l, Inc. v. Chrisha Creations, 413 F.3d 324, 327 (2d Cir. 2005) (a court takes the f acts as alleged in the com plaint to be true, and must draw all reasonab le inferences from those facts in favor of the plaint iff). This Court also cannot presume that such community placement evaluations have taken place merely because the NHRA requires the s tate to review community placement as part of the PASRR process. See Defs’ Br. at 24 n.16, (citing McNiece v. Jindal, No. Civ. A. 97-2421, 1998 WL 175899 (E.D . La. Apr. 14, 1998)); Defs’ Br. at 25. Plaintiffs allege that defendants have failed to implement community evaluation as part of their PASRR program. See First Am. Compl. ¶¶ 67, 83, 90, 130. Taking these allegations as true, there are no community placement evaluations to which this Court could defer.
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To remedy defendants’ violations of the ADA and Rehabilitation Act, plain tiffs seek an order granting them reasonable access to the comm unity-based treatment defendant OMH already provides to other individuals with mental illness. Thus, unlike the plaintiffs in Wright v. Giuliani, 230 F.3d 543 (2d Cir. 2000) (cited in Defs’ Br. at 21-22) , plaintiffs do not seek substantively different services for the disab led from the servic es that now exist, but rath er a reasonable accommodation to allow them to acces s existing comm unity-based services. See Wright, 230 F.3d at 548 (people with disabilities may seek “‘reasonable accommodations’ to enable ‘meaningful access’ to su ch services as may be provided,” but may not seek “that substantively different services be provided to the disabled”) (citations omitted). Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999), Doe v. Pfr ommer, 148 F.3d 73 (2d Cir. 1998), and Leocata v. Wilson-Coker, 343 F.Supp.2d 144 (D. Conn. 2004) (cited in Defs’ Br. at 21, 24), each concerned claims for a new service, which the courts held were not required under the ADA and Rehabilitation Act. See Rodriguez, 197 F.3d at 618 (hom e safety m onitoring services); Pfrommer, 148 F.3d at 77, 84 (job coach); Leocata , 343 F. Supp. 2d at 156 (Medicaid paym ent for assisted living f acility care).9 Indeed, Rodriguez specifically disti nguished between an impermissible ADA claim seeking a new service and the type of claim asserted in Olmstead, and here, where “the parties disputed on ly—and the Court addressed only—where [the state] should provide treatment, not whether it must provide it.” Rodriguez, 197 F.3d at 619 (citing Olmstead) (emphasis in origina l); see Townsend, 328 F.3d at 517 (rejecting the defendants’ reliance on Rodriguez in nursing home Olmstead case).
9 Lincoln Cercpac v. Health & Hospitals Corp. , 147 F.3d 165, 168 (2d Cir.1998) (Defs’ Br. at 21) held that individuals required to seek service from a different hospital when a hospital closed did not state a claim for disability discrim ination under the ADA or Rehabilitation Act. This case has no bearing on plaintiffs’ community integration claims in this case.
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B. Whether Relief In This Action Would Require a Fundamental Alteration Cannot Be Resolved on a Motion to Dismiss

Defendants cannot establish on a motion to dismiss that relief in this action would require

a fundamental alteration of defenda nts’ services, program s, or activities. De fs’ Br. at 26. In

opposing a claim for r easonable accommodation under the community integratio n mandate,

defendants bear the bu rden of sho wing that the requested accommodation would c onstitute a

fundamental alteration. Olm stead, 527 U.S. at 605-06 (state has burden of establishing

fundamental alteration defense); Frederick L. v. Dep’t of Pub. W elfare of Pa., 422 F.3d 151, 157

(3d Cir. 2005) (state cannot meet its burden of establishing fundamental alteration defense unless

it “adequately dem onstrates a reasonably specific and m easurable commitment to

deinstitutionalization for which [it] may be held accountable”); 28 C.F.R. §§ 35.130(b)(7), 41.53,

42.511(c); 45 C.F.R § 84.12(c). Clearly, defendants cannot establish their fundamental alteration

defense on a motion to dismiss. See, e.g., Radaszewski, 383 F.3d at 614 (funda mental alteration

defense “not an assessment that can be made on the pleadings”); cf. Townsend, 328 F.3d at 520

(remanding summary judgm ent motion to district court for factual findings on fundam ental

alteration defense).

II.

PLAINTIFFS STATE A CLAIM UNDER THE NURSING HOME

REFORM ACT

A. Plaintiffs Allege Multiple Violations of Their Rights Under the NHRA

Plaintiffs allege tha t the NHRA imposes specific duties on defendants to im plement a

PASRR program and describes those duties in g reat detail. See First Am. Compl. ¶¶ 120, 122-

28. Plaintiffs further allege the specific ways that defendants have failed to com ply with these

duties, see id. ¶¶, 129-133, 136, including by failing to im plement a PASRR program sufficient

to evaluate whether an individual with m ental illness requires nursing facility level of care or

could receive treatment in the community, see id. ¶¶ 129, 130; to evaluate the level of m ental

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health treatment required by individuals with mental illness in nursing homes, see id. ¶ 132; to conduct a resident review of an individual wi th mental illness in a nursing home when such individual experiences a signifi cant change in condition, see id. ¶ 133; and to assure that a copy of the evaluation report is sent to the individual or resident and his or her legal representative, see id. ¶ 131.
Plaintiffs Edwin T., Joseph S., and Steven W . make specific allegations with respect to defendants’ noncompliance with the NHRA. They each allege that th ey were d ischarged to a nursing home without an approp riate evaluation as to whethe r their physical and m ental condition requires nursing facility services, without evaluation as to whether they could receive community-based treatment, and without appropriat e evaluation as to the le vel of mental health treatment they require. See First Am. Compl. ¶ 134. They further allege that they do not receive appropriate mental health treatment. See id. ¶ 135.
Defendants nevertheless assert that plaintiffs make only “c onclusory” allegations with respect to defendants’ failure to administer their PASRR program in c ompliance with f ederal law. Defs’ Br. at 29. The Federal Rules of Civil Procedure require a plaintiff to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Erickson, 127 S. Ct. at 2200; Swierkiewicz , 534 U.S. at 515. Plaintif fs’ detailed allegations concerning defendants’ violations of the NHRA more than meet this standard.
Defendants further assert that the NHRA provides for an appeals process and that none of the plaintiffs have alleged that they a ppealed their PASRR determination. See Defs’ Br. at 28 & n.17, 30. Defendants’ legal argum ent is unclear as the only case they cite, McNiece , 1998 WL 175899 at *6, upheld a challenge under the NHRA brought by an individual who was denied nursing home placement. In any case, plaintiffs need not alleg e they appealed their PASRR
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determinations. First, there is no exhaustion of administrative remedies required for claims, such as plaintiffs’ NHRA claim s, brought under 42 U.S.C. § 1983. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982) (plaintiffs pursuing ci vil rights claim s under § 1983 need not exhaust administrative remedies before filing suit in court); Roach v. Morse, 440 F.3d 53, 58 (2d Cir. 2006) (Medicaid applicant not required to exhaust state adm inistrative remedies prior to bringing § 1983 action challenging state' s denial of Medicaid benefits); Pfromm er, 148 F.3d a t 78 (no exhaustion of rem edies required for ac tion brought under § 1983 alleging violations of Title I of the Rehabilitation Act).
Second, defendants’ failure to provide a copy of the PASRR evaluation report, see First Am. Compl ¶ 131, deprived plaintif fs of an opport unity to appeal their PASRR determ ination. See Goldberg v. Kelly , 397 U.S. 254, 267 (1970) (due proce ss requires “tim ely and adequate notice detailing the reasons”); see also 57 Fed. Reg. 56450-01, 56489 (“[W]e believe it is essential that the person being screen ed … receive a layman's explanation and a copy of the full evaluation report .… Since PASARR Level II dete rminations are appealab le, they m ust understand the basis on which the determ inations were made in order to assess w hether they should submit an appeal.”).
Last, defendants do not assert that they have established a PA SRR appeals process sufficient to meet the re quirements of federal law, relying instead on a citation to the federal statute that m andates they im plement such a process. See Defs’ Br. at 28 (citing 42 U.S.C. § 1396r(e)(7)(F)). Thus, even if plaintiffs were re quired to exhaust state procedures before filing their NHRA claim s, which they are not, def endants would need to establish that they have implemented a PASRR appeals process sufficient to meet the requirements of federal law.
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B. Plaintiffs Can Enforce Their NHRA Rights Through 42 U.S.C. § 1983 Defendants incorrectly argue that plaintiffs cannot enforce their rights under the NHRA through a lawsuit brought under 42 U.S.C. § 1983. Defs’ Br. at 9-19. The courts to have considered the issue hav e rejected defendants’ argument, correctly concluding that the NHRA’s PASRR provisions conf er rights on nursing hom e residents which are enforceable through § 1983. See Rolland v. Romney, 318 F.3d 42, 56 (1st Cir. 2003) (NHRA requirement to screen for and provide specialized services enforceable through § 1983 in lawsuit brought by nu rsing home residents); Martin v. V oinovich, 840 F. Supp. 1175, 1202 (S.D. Ohio 1993) (NHRA PASRR provisions enforceable through § 1983 in lawsui t brought by nursing home residents); see also Ottis v. Shalala, 862 F. Supp. 182, 1887 (W .D. Mich. 1994) (holding 42 U.S.C. § 1396r(h)(2) enforceable through § 1 983 in suit under NHRA to compel state to implem ent enforcement procedures). This Court should f ollow the unanimous case law and hold that the NHRA provisions at issue in th is case are enforceab le through § 1983 in a lawsuit brough t by nursing home residents and those at-risk of discharge to nursing homes. In Rolland v. Rom ney, supra, the plaintiffs brought suit under § 1983 to com pel the Commonwealth of Massachusetts to provide speci alized services to pe rsons found to require both nursing facility care and spe cialized services for mental illness or mental retardation a s required under the NHRA. The Firs t Circuit affirmed the district court’s opinion that nursing home residents could enforce the entitlem ent to specialized services through § 1983. Rolland v. Romney, 318 F.3d at 56 . In finding the NHRA provi sions enforceable, the First Circuit no ted that “rights-creating” language is prevalent in the NHRA” a nd that “[t]he NHRA speaks largely in terms of the persons intended to be benef itted, nursing home residents.” Id. at 52, 53. The court then examined the specific statutory entitlement to specialized services and held that it was
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intended to benefit nursing hom e residents, that it was neither vague nor am orphous, and that it unambiguously bound the states. Id. at 53-56.
In finding the NHRA enforceable, the First Circuit applied the framework set out by the Supreme Court in Blessing v. Freestone , 520 U.S. 329 (1997) and rea ffirmed in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). See Rolland v. Rom ney, 318 F.3d at 51-52 & 51 n.8. 10 To determine whether a fed eral law is enforceab le through section 1983, a court should examine “whether or not Congress intende d to confer individual rights upon a class of beneficiaries.” Gonzaga, 536 U.S. at 285; id. at 284 (statute’s “text m ust be ‘phrased in term s of the persons benefited.’”) (quoting Cannon v. Univ. of Chicago , 441 U.S. 677, 692, n.13 (1979)). To m ake this determination, courts apply the three-part test first set out in Blessing under which a plaintiff must show: (1) “Congress m ust have intended that the provi sion in question benefit the plaintiff,” (2) “the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence,” and (3) “the statute … unambiguously impose[s] a binding obligation on the States.” Blessing, 520 U.S. at 340-41; see Gonzaga, 536 U.S. at 282 (citing Blessing test); Rolland v. Romney , 318 F.3d at 52; see also Rabin v. WilsonCoker, 362 F.3d 190, 201-02 (2d Cir. 2004) (applying Gonzaga in holding righ t to transitional Medicaid enforceable through § 1 983); M.K.B. v. Eggleston , 445 F. Supp. 2d 400, 428 (S.D.N.Y. 2006) (applying Gonzaga in holding Medicaid reasonable prom ptness requirement enforceable through § 1983); Reynolds v. Giuliani , No. 98 Civ.8877(WHP); 2005 WL 342106, at *15-16 (S.D.N.Y. Feb. 14, 2005) (same).
10 Defendants’ contention that this court should depart from the Rolland v. Rom ney decision because the First Circuit did not app ly Gonzaga is misplaced. Defs’ Br. at 16 n.11. Rolland v. Romney cites and quotes the Gonzaga decision. See Rolland v. Romney, 318 F.3d at 51 n.8.
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The First C ircuit’s decision in Rolland v. Romney is consistent with the district court opinion in Martin v. Voinovich , supra. See Rolland v. Romney , 318 F.3d at 54 (citing Martin, 840 F. Supp. at 1200). In Martin , the district court held that the NHRA’s PASRR requirements were enforceable through § 1983 in a suit brought by i ndividuals with m ental retardation and development disabilities who alleged they were unnecessarily institutionalized in nursing hom es in violation of the NHRA. See Martin, 840 F. Supp. at 1200. The court held that the PASRR provisions were intended to benefit the plain tiffs, that the rights were neither vague nor amorphous, and that the provisions im pose binding obligations on the state. Id. The court further held that Congress di d not intend to foreclose en forcement through § 1983. Id. at 120102; see also Ottis, 862 F. Supp. at 187.
This Court should follow Rolland v. Rom ney and Martin and find that the PASRR provisions of the NHRA at issue in this case are enforceable th rough § 1983. The NHRA is replete with rights-creating language. See Rolland v. Romney , 318 F.3d at 53 (“The NHRA speaks largely in terms of the persons intended to be benefitted, nursing home residents . . . . The statute contains a laundry list of rights to be afforded residents and com mands certain state and nursing home activities in o rder to ensure that residents receive necessary services. In short, after clearly identifying those it seeks to protect, the statut e goes on to endow them with particular rights, utilizing ‘rights-creating’ language.”).
Further, application of three-part Blessing test requires a finding that the specific PASRR provisions of the NHRA at issu e in this case are enforceable through § 1 983. First, PASRR is clearly intended to benefit i ndividuals proposed for adm ission to nursing hom es and nursing
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home residents. See Rolland v. Romney , 318 F.3d at 53; Martin , 840 F. Supp. at 1200. 11 The

PASRR statute and regulations speak repeatedly of the individual proposed for adm ission to the

nursing home and nursing home residents. See, e.g.

, 42 U.S.C. § 1396r(b)(3)(F )(i)

(preadmission screen must determine whether “individual requires the level of services provided

by a nursing facility” and “whether individual requires specialized services for mental illness.”);

42 U.S.C. § 1396r(e)(7)(B)(i)(I), (II) (resident review must de termine “whether or not the

resident … requires the level of services provided by a nursing f acility” and “whether or not the

resident requires specialized services for m ental illness.”); 42 U.S.C. § 1396r(e)(C)(i)(IV) (s tate

must provide or arrange for provision of specialized services to individual or resident); 42 C.F.R.

§ 483.128(l)(1) (evaluation report must be provided to the i ndividual); 42 C.F.R. § 483.128(k) (evaluation must be interpreted and explained to the individual).12

Second, the PASRR pr ovisions are not so vague and am orphous as to be beyond the

competence of the judiciary to enforce. See Rolland v. Romney, 318 F.3d at 53-54; Martin , 840

F. Supp. at 1200. As described in Martin , PASRR requires “that th e State must have a

11 The Second Circuit’s opinion in Concourse Rehabilitation & Nursing Center Inc. v. Whalen , 249 F.3d 136, 143-44 (2d Cir. 2001), strongly suggests that the Second Circ uit would find that the PASRR provisions at issue in this case are enforceable in a lawsuit brought by nursing home residents. Concourse Rehabilitation held that the provisions of 42 U.S.C. § 1396r(b)(4)(A) mandating that nursing facilities provide certain services and activities were not enforceable in a lawsuit brought by a health care pr ovider seeking an enhanced Medicaid rate in order to provide these services. The Second Circuit wrote “It is clear from the plain language of this provision that it was not intended to benefit the putative Plaintiffs—here the health care providers. Rather, the provision is obv iously intended to b enefit Medicaid beneficiaries.” 249 F.3d at 143-44 (internal citation omitted) (emphasis added). 12 Taylor v. Verm ont Department of Education , 313 F.3d 768, 785-86 (2d Ci r. 2002) (cited in Defs’ Br. at 11, 16) does not require a different conclusion. In Taylor , the Second Circuit held that the Fam ily Educational Rights and Priv acy Act’s (FERPA) record-access provisions, 20 U.S.C. § 1232g(a)(1 ), did not create right s enforceable through a § 1983 action. Taylor , 313 F.3d at 785-86. Unlike the NHRA, FERPA’s record access provisions “spe ak directly to the Secretary of Education,” and “focus[] on the prohibition of federal funding.” Taylor, 313 F.3d at 785. By contrast, the P ASRR provisions of the NHRA m anifest a clear Congressional intent to confer individual rights.

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preadmission screening program in effect. Sect ion 1396r(e)(7)(B)(i) an d (iii)(I) p rovide, inter alia, that the State m ust conduct annual reviews 13 to determine whether a resid ent requires the services of a nursing facility or an intermediate care facility, and whethe r the resident requires specialized services for m ental retardation.” Martin , 840 F. Supp. at 1200. Further, “[t]he implementing PASARR regulations contain numerous requirements and give detailed guidance and definitions about how, when a nd by whom th e required PASARR determ inations are to be made.” Id.
Third, the PASRR provisions of the NHRA cite d above are clearly a binding obligation on New York, rather than m erely a congressional preference for a certain kind of conduct. The word “must” and “required” appears repeated ly throughout the statute and regulations. See Rolland v. Rom ney, 318 F.3d at 55 (“The statutory requir ements for states … are clearly mandatory rather than advisory. The word ‘must’ is repeated frequently.”); Martin, 840 F. Supp. at 1200; see also Ottis, 862 F. Supp. at 186-87.
Based on the foregoing, this Court should hold that the NHRA’ s PASRR provisions confer individual rights and that these righ ts are therefore presumptively enforceable through § 1983. See Gonzaga, 536 U.S. at 284.
C. Defendants Cannot Overcome the Presumption of Enforceability Defendants cannot overcom e the presum ption that plaintiffs’ PASRR rights are enforceable through § 1983. Defs’ Br. at 16-18 ; see Gonzaga, 536 U.S. at 284 n.4 (defendant may overcome presumption of enforceability only by showing that Co ngress “shut the door to private enforcement, either expressly, through specific evidence from the statute itself ... or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual
13 As noted, supra, n. 4, the requirement for annual resident review was eliminated in 1996. 28

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enforcement under § 1983”) (citations and intern al quotation marks omitted); Golden State Transit Corp. v. City of Los Angeles , 493 U.S. 103, 107 (1989) (a court should not “lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy” for deprivation of a conferred right).
Without citation to caselaw, defendants ar gue that Congress im pliedly foreclosed enforceability through § 1983 by estab lishing an appeals process for indiv iduals adversely affected by a PASRR determ ination. See Defs’ Br. at 16 (c iting 42 U.S.C. § 1396r(e)(7)(F); 42 C.F.R. § 431.220). The courts ha ve repeatedly reject ed the argum ent that an appeals process standing alone manifests a Congressional intent to foreclose enforceability through § 1983. See Harris v. Olszewski, 442 F.3d 456, 463 (6 th Cir. 2006) (Medicaid Act fa ir hearing process does not foreclose enforceability th rough § 1983); Sabree v. Richm an, 367 F.3d 180, 193 (3d Cir. 2004) (same); W illiston v. Eggleston , 379 F. Supp. 2d 561, 577-78 (S.D.N.Y. 2005) (food stamps fair hearing process does not foreclose enforceability through § 1983).
The courts have likewise rejected defendant s’ argument that federal and state su rvey procedures manifest a Congressional intent to foreclose a remedy through § 1983. See Defs’ Br. at 17-18. In W right v. City of Roa noke Redevelopment & Housing Authority , 479 U.S. 418 (1987), the Suprem e Court held th at “HUD's authority to audit, enforce annual contributions contracts, and cut off federa l funds” under the Housing Act “ar e insufficient to indicate a congressional intention to forecl ose § 1983 rem edies.” 479 U.S. at 428. In W ilder v. Virginia Hospital Association, 496 U.S. 498 (1990), the S upreme Court applied W right to the Medica id Act, holding that the Secretary of Health and Human Services’ “limited oversight is insufficient to demonstrate an intent to foreclose relief altogether in the courts under § 1983.” W ilder, 496 U.S. at 521-22; see Gonzaga, 536 U.S. at 280-81 (citing Wilder); Martin, 840 F. Supp. at 1201-
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02 (rejecting the defendants’ argum ent that fede ral audit procedures m anifested Congressional intent to foreclose enforcement of PASRR through § 1983).14
Defendants also suggest that the federal gov ernment’s authority to withdraw Medicaid funding for a state’s noncom pliance with the NHR A manifests an intent to foreclose a rem edy through § 1983. See Defs’ Br. at 13-14. This argum ent has likewise been definitively rejected by the Suprem e Court. See Blessing, 520 U.S. at 348 (power of the Secretary of Health and Human Services to cut federal funding of gran t to state does not foreclose a § 1983 rem edy); Wilder, 496 U.S. at 521-22 (holding th at although the Medicaid Act “authorizes the Secretary to ... curtail federal funds to States whose plans are not in com pliance with the Act, ... [t]his administrative scheme cannot be considered sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of § 1983”); see also Harris, 442 F.3d at 463 (the fact "[t]hat the Fe deral Government may withhold federal funds to non-complying States is not inconsistent with private enforcement”) (citing Wilder, 496 U.S. at 521-22).
Defendants’ further argum ent that plaintiffs cannot en force the PASRR regulations standing alone, Defs’ Br. at 18-19, m isunderstands the nature of plaintiffs’ claim s. As shown above, plaintiffs do not seek to enforce the PA SRR regulations independent of the NHRA, but

14 Martin specifically distinguished C arelli v. Howser, 923 F.2d 1208, 1214-16 (6 th Cir. 1991),

upon which defendants rely. See Martin, 840 F. Supp. at 1201-02; Defs’ Br. at 18 (citing

Carelli). In Carelli, the Secretary of Health and Human Services audited the State of Ohio, found

them to be out of com pliance with federal fa mily support and child su pport law, and ordered

Ohio to take corrective action. 923 F.2d at 1215. The plainti ffs then brought suit to com pel

Ohio to enact these changes at a faster pace th an the federal governm ent had ordered. See id.

The Sixth Circuit dismissed the case, issuing a decision “akin to an abstention o rder” delaying

the action pending the enforcem ent proceedings already un dertaken. See id. at 1216. As the

Martin court recogn ized, “Carelli bears little re semblance to the instant case.” Martin , 840 F.

Supp. at 1201. As in Martin , here “there is no indication that the Secretary has recently

performed a comprehensive audit or that any orde r by this Court would sim ply mirror an earlier

order by the Secretary. Furthermore, there

is no apparent ‘com prehensive’ system of

enforcement present in the instant case.” Id. at 1201-02.

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rather seek to enforce the statuto ry mandate that New York operate a PAS RR system to determine whether an individual with mental illness proposed for admission or residing in a nursing home requires nursing facility level of care and to determine the mental health treatment the individual requires. The PASRR regulations adopted pursu ant to specific Congressional mandate, see 42 U.S.C. § 1396r(f)(8)(A), merely define the methods and criteria by which a state must make these deter minations required by the NHRA. See 42 C.F.R. §§ 483.100-483.138. These regulations are enforceable in a lawsuit brought und er § 1983. See Rolland v. Rom ney, 318 F.3d at 54 (PASRR regulations enforceable through § 1983); Martin , 840 F.Supp. at 1200 (same); see also D.D. v. New York City Bd. of Educ. , 465 F.3d 503, 513 (2d Cir. 2006) (Individuals with Disab ilities Education Act regulations enforceable through § 19 83), opinion amended on denial of reh’g by , 480 F.3d 138 (2nd Cir. 2007); Harris , 127 F.3d at 1009 (“[S]o long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further defines or fleshes out the content of that right, then the statu te—in conjunction with the regulation—may create a federal ri ght as further defined by the regulation.”) (internal quotation marks omitted).
D. Defendants’ Methods of Administering the PASRR Program Independently Violate the ADA and Rehabilitation Act
Defendants’ methods of adm inistering the PASRR program independently violate the ADA and R ehabilitation Act. See First Am . Compl. ¶¶ 103, 118-136. Under the ADA and Rehabilitation Act, “[ a] public entity … may not, directly or through contractual or other arrangements, utilize criteria or methods of administration . . . [t]hat have the purpose or effect of defeating or substan tially impairing accomplishment of the objectives of the public entity' s program with respect to indivi duals with disabilitie s.” 28 C.F.R. § 35.130(b)(3); 45 C.F.R. § 84.4(b)(4); see First Am. Com pl. ¶¶ 103, 114; P a. Prot. & Advocacy, In c. v. Pa. Dep’t of Pub.
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Welfare, 402 F.3d 374, 382 (3d Cir. 2005); Kathleen S. v. Dep’t of Pub. Welfare of Com. of Pa.,

10 F. Supp. 2d 460, 466 (E.D. Pa. 1998). The purpose of the PASRR program is to end the

inappropriate placement of m entally ill indiv iduals in nursing facilities and to assure tha t

individuals with m ental illness in n ursing homes receive appropriate mental health treatm ent.

See, e.g., H.R. Rep. No.100-391, pt. 1, at 459. By failing to adm inister the PASRR program to

assure that individuals with m ental illness receive comm unity-based treatment and appropriate

mental health care in nursing homes, defendants utilize methods of administration that defeat the

objectives of the PASRR program, thereby violating the ADA and Rehabilitation Act.

III.

DAI AND MHLS HAVE STANDING TO BRING CLAIMS ON BEHALF

OF INDIVIDUALS WITH MENTAL ILLNESS WHO RESIDE IN OR ARE

AT RISK OF DISCHARGE TO NURSING HOMES

DAI and MHLS have statutory authority to br ing claims on behalf of individuals with

mental illness, including those res iding in nur sing homes and at-r isk of discharge to nursing homes.15 See First Am . Compl. ¶¶ 18-19; 42 U.S.C. § 10805(a)(1) (DAI); N.Y. Mental Hyg.

Law § 47.03(e) (MHLS). DAI’s and MHLS’s authority to bring such actions has been upheld by

courts within this Circu it. DAI: See Aiken v. Nixon , 236 F. Supp. 2d 211, 224 (N.D.N.Y.

2002); Brown v. Stone, 66 F. Supp. 2d 412, 423-27 (E.D.N.Y. 1999); T rautz v. Weisman, 846 F.

15 Without citation, defendants assert that individuals in state psychiatric hospitals and Article 28 psychiatric ward at risk of unl awful placement in nursing homes do not have jus ticiable claims. Defs’ Br. at 8 n.7. The First Am ended Complaint alleges that individuals with mental illness are at-risk of inappropriate discharge to nursing homes, First Am. Compl. ¶¶ 20, 134, that the risk of inappropriate discharge is attributable to the failure of the defendants to operate their services, programs, and activities in conformity with the ADA, Rehabilitation Act, and NHRA, id.. ¶¶ 95117, and that a federal court deci sion will be likely to redress this injury by providing these individuals with appropriate, community-based treatment, rather than inappropriate nursing home treatment, id. ¶ 10, Wherefore clause ¶¶ c, e-f. T hus, individuals at ri sk of inappropriate discharge have adequately alleged their stan ding to assert claims in this action. See Deshawn E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (describin g requirements for standing to seek injunctive and declar atory relief); Roe v. City of New York , 151 F. Supp. 2d 495, 502-06 (S.D.N.Y. 2001).

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Supp. 1160, 1163 (S.D.N.Y. 1994); Rubinstein v. Benedictine Hosp. , 790 F. Supp. 396, 408-09 (N.D.N.Y. 1992). MHLS: See Bernstein v. Pataki, 233 Fed. Appx. 21, 24 (2d Cir. Apr. 3, 2007) (Summary Order).
Defendants do not challenge DAI’s and MHLS’s statutory authority. Defs’ Br. at 33. Instead, they assert that DAI and MHLS should not be permitted to assert claims on behalf of their constituents becau se relief in this la wsuit would require th is Court to p erform an individualized assessment of each individual with mental illness residing in a nurs ing home to determine whether that individual could m ore appropriately reside in the community. Def s’ Br. at 32-40. Defendants’ argument misstates the applicable law and the relief pl aintiffs seek in this action.
A. DAI’s and MHLS’s Statutory Mandates Override Prudential Limitations on Associational Standing
Organizations seeking to bring claims on behalf of individuals must satisfy the three-part test for ass ociational standing set forth in Hunt v. Washi ngton State Apple Advertising Commission, 432 U.S. 333, 343 (1977). The Hunt test provides that an organization has associational standing if:
(a) its members, or any one of them has standing to sue on their own, (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, 432 U.S. at 343. The third prong of the Hunt associational standing test is prudential and not constitutionally-required. See United Food & Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 557 (1996) (“[T]he th ird prong of the associational standing test is best seen as focusing on . . . m atters of administrative convenience and efficiency, not on elem ents of a case or controversy within the meaning of the Constitution.”).
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Defendants do not challenge DAI’s and MHLS’s standing with respec t to the f irst and second Hunt prongs. Defs’ Br. at 33. 16 Their challenge to the th ird prong contravenes the case law that organizations such as DAI and MHLS w ith specific statutory m andates to bring claim s on behalf of individuals with di sabilities do not need to satisf y the prudential prong of the Hunt analysis. See Oregon Advocacy Ctr. v. Mink , 322 F.3d 1101, 1113 (9th Ci r. 2003) (“in light of the role Congress assigned by statute to advocacy organizations such as OA C, Congress abrogated the third prong of the Hunt test”), Univ. Legal Servs., Inc. v. St. Elizabeth’s Hosp. , No. Civ. 105CV00585TFH, 2005 WL 3275915, at *4-*5 (D.D.C. July 22, 2005) (“PAIMI has freed Plaintiffs from the third requirement of standing under Hunt”); Unzueta v. Schalansky, No. 99-4162-RD, 2002 WL 1334854, at *3 (D. Kan. May 23, 2002); Risinger v. Concannon , 117 F. Supp. 2d. 61, 68-70 (D. Me. 2000); see also N.J. Prot. & A dvocacy, Inc. v. Davy , No. Civ. 051784(SRC), 2005 WL 2416962, at *2 (D.N .J. Sept. 30, 2005); Bernstein , 233 Fed. Appx. at 24 (Summary Order).17 This court should follow this case law and hold that DAI and MHLS do not need to satisfy the third Hunt prong in order to assert associational standing in this case.
16 In any event, DAI and MHLS satisfy the first and second Hunt prongs. First, as set forth infra Point IV, named plaintiffs Edwin T., Joseph S., and Steven W., all of whom are DAI and MHLS constituents, have standing to assert their ADA, Rehabilitation Act, and NHRA claims. Second, the interests DAI and MHLS se ek to protect— the rights of mentally ill nursing hom e residents—are germane to the organizations’ purpos es as la id out in th eir statutory mandates. See PAIMI Act, 42 U.S.C. § 10801, et seq. , (DAI’s mandate); N.Y. Mental Hyg. L aw § 47.03 (MHLS’s mandate). 17 Aiken, 236 F. Supp. 2d at 224, and Prye v. Carnahan , No. 04-4248-CV-C-ODS, 2006 W L 1888639 at *3 (W.D. Mo. July 17, 2006) (cited in Defs’ Br. at 33) are not to the contrary. Aiken reiterated the three prong Hunt test and held that plaintiff DAI had associational standing without discussion of the third prong. Prye merely found all three H unt prongs met without considering whether the PAIMI statute overrides Hunt’s prudential prong.
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B. This Action Will Not Require This Court to Make Individualized Placement Decisions

Even if DAI and MHLS must satisfy the third Hunt prong, the relief plaintiffs seek in this

action does not defeat their associat ional standing. As part of the re lief in this ac tion, plaintiffs

seek an order requiring defendants to identify indi viduals with mental illness residing in nursing

homes, determine whether such individuals require care in a nursing home, determine whether

they could receive care in a m ore integrated setting, and provide such care to those individuals

who do not oppose it. See First Am. Compl. Wherefore Clause ¶ d. Defendants m isrepresent

this request for relief as asking this Court to identify, assess and determ ine appropriate care for

each individual with mental illness resid ing in a nursing home. Defs’ Br. at 34 -36. To the

contrary, plaintiffs seek an order requiring defendants to perform these activities. Thus, this case

will not require this Court to perform individualized evaluations and there is no ba sis to defeat

DAI’s and MHLS’s organizational standing under the third Hunt prong.

The Supreme Court rejected defend ants’ argument in th is case in UAW v. Brock , 477

U.S. 274 (1986). In Brock, plaintiff UAW sought an order that would require state authorities to

perform a review of individual union members’ eligibility for certain benefits and award those

benefits where appropriate. Id. at 287-88. Brock rejected the defendant’s argument that the need

for the state authorities to conduct individualized assessments as part of the relief violates Hunt’s

third prong. Id. The Court stated:

[T]hough the unique facts of ea ch UAW member's claim will have to be considered by the p roper state authorities before any m ember will b e able to receive the benefits allegedly due him, the UAW can litigate this case without the participation of those individual claim ants and still ensure that “th e remedy, if granted, will inure to the benefit of t hose members of the associatio n actually injured.”

Id. at 288 (quoting Warth v. Seldin , 422 U.S. 490, 515 (1975)). As in Brock , paragraph d of

plaintiffs’ prayer for rel ief does not call upon this 35

Court to eva luate each individual’s

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appropriateness for community placement or their desire for such placement. Rather, this Court would order defendants to make these and other individualized assessments.
Defendants nevertheless argue that in order to obtain th e relief DAI and MHLS seek, plaintiffs will need to present evidence regarding each and e very nursing home resident. Defs’ Br. at 35-38. The district court in R olland v. Cellucci, 52 F. Supp. 2d 231, 242 (D. Mass. 1999) rejected this argument in a sim ilar lawsuit brought under the ADA and NHRA. In Rolland v. Cellucci, the plaintiffs, including tw o organizational plaintiffs, brought suit under the ADA and NHRA challenging the unnecessary institutionalization of individuals with mental retardation in nursing homes and the failure to pr ovide specialized services for such individuals. The court held that although such nursing home residents “m ay require an individual needs assessm ent were relief granted, th is is not a claim which requires individualized proof as to the claim ed violations or compliance with the various statutes at issue.” Rolland v. Cellucci , 52 F. Supp. 2d at 242.
Defendants operate their services, program s, and activities in violation of the ADA and Rehabilitation Act’s co mmunity integration mandate and fail to operate a PASRR program consistent with the NHRA. To prov e this at trial, plaintiffs intend to introduce expert testimony regarding a sam ple of individuals with m ental illness r esiding in nurs ing homes, New York’s own data regarding ind ividuals with mental illness in nursing hom es, New York’s docum ents reflecting their polices and pr ocedures, and testim ony from New York’s witnesses regarding
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such policies and procedures. Plaintiffs also may use som e illustrative resid ent testimony.18 Plaintiffs do not need to introduce the testimony of each resident in order to prevail at trial. As a result, there is no basis to defeat a ssociational standing under the third Hunt prong. See University Legal Services, 2005 WL 3275915 at *5 (institution-wide relief for constitu ents can be provided through th e use of m edical records, audits, depositions of Defendants, expert and fact witness testimony, and other relevant documents and written discovery).
Defendants incorrectly rely on dicta in Arbor Hill Concerned Citizen s Neighborhood Association v. City of Albany , 250 F. Supp. 2d 48, 57-59 (N.D.N.Y. 2003)(Defs’ Br. at 37-38). In Arbor Hill, the district court held that the organizational plaintiff fa iled to allege that a single member had suffered an injury and, therefore, the organizational plaintiff could not establish standing under the first Hunt prong. Arbor Hill , 250 F. Supp. 2d at 55-57. 19 Arbor Hill ’s analysis of the third Hunt prong is dicta. See id. at 57-59. In any event, Arbor Hill’s analysis of the type of individualized proof required to prove that the City of Albany’ s failed to administer its lead abatement program properly has no bearing on the type of proof plaintiffs intend to offer in this case.
Bano v. Union Carbide Corp., 361 F.3d 696, 715-16 (2d Cir. 2004) and Rent Stabilization Association v. Dinkins , 5 F.3d 591, 596 (2d Cir. 1993) (Defs’ Br. at 38) also do not help
18 The use of illus trative resident testimony does not defeat associational standing. That som e “individuated proof may be necessary does not in itself preclude associational standing.” Nat’l Ass’n of Coll. Bookstores v. Ca mbridge Univ. Press , 990 F. Supp. 245, 250 (S.D.N.Y. 1997). Indeed, courts in this Circuit routinely perm it associational standing where some individualized proof is anticipated. See N.Y. State Nat’l Org. of Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989); Employees Committee for J ustice v. Eastm an Kodak Company, 407 F. Supp. 2d 423 (W.D.N.Y. 2005); Sm all v. Gen. Nutrition Cos. , 388 F. Supp. 2d 83, 99 (E.D.N.Y. 2005); M.O.C.H.A. Soc., Inc. v. City of Buffalo, 199 F. Supp. 2d 40, 49 (W.D.N.Y. 2002). 19 The Second Circuit called into question Arbor Hill ’s analysis of the first Hunt prong in Building & Construction Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Development, Inc., 448 F.3d 138, 145 n.2 (2d Cir. 2006).
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defendants. Bano rejected associational stand ing for claims for individual property rem ediation

filed by an organization represen ting individuals harm ed by the chemical disaster in Bhopal,

India. Bano, 361 F.3d at 715-16. Rent Stabilization held similarly with respect to a challenge to

New York City’s rent control law brought by an association of landlords who alleged that

individual landlords had suffered a regulatory taki ng. Rent Stabilization , 5 F.3d at 596. These

cases have no bearing on the claims in this case in which plaintiffs allege that defendants operate

their services, program s, and activities in violation of the ADA a nd Rehabilitation Act’s

community integration mandate and f ail to o perate a P ASRR program consistent with the

NHRA. As shown above, such claim s do not require the individualized participation of each individual harmed.20

IV.

EDWIN T., JOSEPH S., AND STEVEN W. HAVE STANDING TO

PURSUE THEIR CLAIMS

Edwin T., Joseph S., and Steven W . have standing to assert their NHRA claim s. Defs’

Br. at 40-41. They each allege that defendant s have failed to im plement a PASRR program

consistent with the NHRA, that they have been injured by this f ailure, and that this inju ry is

redressable through the relief sought in this action. See First Am. Compl. ¶ 134 (“Plaintiffs

Edwin T., Joseph S., and Steven W. . . . have b een discharged . . . to a nursing hom e without an

appropriate evaluation as to whether their physical and mental condition requires nursing facility

services, without evaluation as to w hether they could receive community-based treatm ent, and

without appropriate evaluation as to whether they require specializ ed services or services of a

lesser intensity.”); id. ¶ 135 (“Plaintiffs Edwin T., Joseph S ., and Steven W . . . do not receive

required specialized services for treatment of mental illness and do not receive a resident review

20 Protection & Advocacy Inc. v. Murphy, No. 90 C 569, 1992 WL 59100, at *13 (N.D. Ill. Mar. 16, 1992) (Defs’ Br. at 39) held that the organizati onal plaintiff failed to al lege concrete injury and therefore could not establish standing.

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upon a significant chang e in condition.”); id. Wherefore Clause ¶¶ b, f (seeking declaratory and injunctive relief to require def endants to establish a PASRR system in compliance with federal law, to assess plaintiffs under su ch system, and to ta ke the requir ed actions following such assessment). These allegations establish Edwin T.’s, Joseph S.’s, and Steven W.’s standing. See Friends of the Earth, Inc. v. Laid law, Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180-81 (2000)

(“[T]o satisfy Article III's st anding requirements, a plaintiff m ust show (1) it has suffered an “injury in fact” that is (a) conc rete and particularized and (b) actual or im minent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to m erely speculative, th at the in jury will be redressed by a favorable decision.”); see Building & Const. Trades , 448 F.3d at 145 (“There is no heightened pleading requirement for allegations of standing.”).21

V.

PLAINTIFFS HAVE NOT FAILED TO NAME NECESSARY PARTIES

A. The Nursing Homes Are Not Necessary Parties

The nursing homes in which the plain tiffs and constituents reside are not neces sary

parties to this litigation. “A party is necessary under Rule 19(a)(1) only if in that party's absence

“complete relief cannot be accorded among those already parties.” Mastercard Int’l. Inc. v. Visa

Int’l. Serv. Ass’n, Inc. , 471 F.3d 377, 385 (2d Cir. 2006) (quo ting Fed. R. Civ. P. 19(a)(1))

(emphasis in original).

Defendants do not assert that the nursing hom es are necessary parties for plaintiffs’ ADA and Rehabilitation Act claims. Defs’ Br. at 42-43. They are not necessary parties for plain tiffs’ NHRA claims because complete relief can be accorded th rough an order directing d efendants to screen and review individuals with mental illness, to provide community-based care to those who

21 Defendants’ assertion that Edwin T ., Joseph S. and Steven W. fail to state a claim under the NHRA, Defs’ Br. at 41 n.23, is addressed supra, at 21-22.

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are willing and able to receive su ch care, and to assure app ropriate mental health treatment for those individuals with mental illness who remain in nursing homes. See Rolland v. Romney, 318 F.3d at 58 (affir ming district court’s order th at state com ply with NHRA by i mplementing a policy to as sure that individuals with m ental retardation in nursing ho mes receive appropriate treatment; nursing homes were not parties); 57 Fed. Reg. 56450-01, 56469 (“The State . . . has statutory responsibility for m aking available the appropriate alternative settings to which residents can move. To deal with these residents, the State must have a master plan which, based on assessed needs, provides for the expansion o r creation of the placem ent options, in the righ t numbers and types.”).
The nursing homes’ role in notifying New York of a significant change of condition does not alter this conclusion. See Defs’ Br. at 42 (citing 42 U.S. C. § 1396r(b)(3)(E )). Although nursing homes must notify New York of a signi ficant change in condition, New York m ust ensure that nursing hom es provide this notification and New York must conduct a proper resident review upon receipt of such notification. See First Am. Compl. ¶ 133. Complete relief in this action can be accorded by an order requir ing New York to im plement a resident review process consistent with the NHRA.
B. The Article 28 Hospitals Are Not Necessary Parties The conclusion that nursing homes are not necessary parties for plaintiffs’ NHRA claims applies equally to Article 28 hosp itals. Full relief may be obtained through an appropriate order directing defendants to comply with their duties under the NHRA claims. Article 28 hospitals are also not nec essary parties for plaintiffs’ ADA and Rehabilitation Act claims because full relief m ay be obtaine d through an order req uiring defendants to (1 ) administer their se rvices, programs, and activ ities in the most integ rated setting ap propriate to the needs o f qualified individuals with m ental illness residing in nur sing homes, (2) identif y
40

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individuals with m ental illness discharged from state ps ychiatric hospitals and Article 28

psychiatric wards to nursing hom es, (3) determine whether such individuals could receive care

and treatment in a more integrated setting, and (4) provide care and treatment in a m ore

integrated setting to those individuals who are qualified for and not opposed to such care. See

First Am. Compl. Wherefore Clause ¶ d.

The cases defendants cite concerning whethe r a private entity can be sued under § 1983

have no relevance to whether the Article 28 hospitals ar e necessary parties in this action. See

Defs’ Br. at 43-44 (citing Jackson v. Metropolitan Edison Co. , 419 U.S. 345, 350 (1974); Blum

v. Yaretsky, 457 U.S. 991, 1004 (1982); O kunieff v. Rosenberg , 996 F. Supp. 343, 352

(S.D.N.Y. 1998)). In each of those cases, the plaintiffs sought to sue a priv ate entity under §

1983 on the grounds that the private entity ’s actions cons tituted state action. Plain tiffs in this

case sue public entities under the ADA, Rehabilitation Act, and NHRA and therefore defendants’

cases are not on point.

VI.

PLAINTIFFS’ CLAIMS ARE NOT BARRED BY THE STATUTE OF

LIMITATIONS

A. All of Plaintiffs’ Claims Accrued Within Three Years of the Filing of this Action

Although courts in this Circui t apply a three-year statute of limitations to claims under

the ADA, Rehabilitation Act, and the NHRA, see, e.g., Pearl v City of Long Beach, 296 F.3d 76,

79-80 (2d Cir. 2002), each of plaintiffs’ claims for violation of the ADA, Rehabilitation Act, and

NHRA accrued within three years of the filing of this action.

Federal law governs when a cause of ac tion accrues under the ADA and Rehabilitation

Act. See Pearl, 296 F.3d at 80; Connolly v. McCall , 254 F.3d 36, 41 (2d Cir. 2001). The ADA

and Rehabilitation Act require New York to administer its services, programs, and activities so

that individuals with mental illness can receive care and treatm ent in the most integrated setting 41

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appropriate to their needs. A new cause of action accrues each day that th e state fails to administer its services, program s, and activities in such a m anner. See Martin, 840 F. Supp. at 1189 (“Each time a position becom es available in the community a nd a plaintiff or member of the plaintiff class is denied that position on the basis of disability, there is an alleged violation.”). Thus, any individual with m ental illness unnecessarily residing in a nursing hom e within three years of the filing of this action can properly seek relief, regard less of when the individual was initially admitted to the nursing home.
None of the cases cited by defendants address the application of a statute of limitations to a claim arising under the ADA and Rehabilitati on Act’s co mmunity integration m andate and none stand for the pro position, advanced by defenda nts, that individ uals with m ental illness unnecessarily institutionalized for more than thr ee years lose th eir right to ch allenge their institutionalization by virtue of their lengthy ins titutionalization. Defs’ Br. at 45-46 . To the contrary, courts have recogni zed that claim s brought by pers ons with disabilities under the community integration m andate may be asserted by individuals notwithstanding their lengthy institutionalization. See Pa. Prot. & Advocacy, Inc. , 402 F.3d at 378 (applying comm unity integration mandate to residen ts of geriatric mental “institutionalized for decades in sta teoperated facilities” of which “approxim ately 40 re sidents . . . have been institutionalized for more than 50 years”); Frederic k L. v. Dep’t of Pub. W elfare, 364 F.3d 487, 489 (3d Cir. 2004) (Olmstead claims on behalf of individuals with persistent mental disabilities institutionalized for more than 12 years).
Plaintiffs’ NHRA clai ms likewise accrue with in three years of the fili ng of this action. The Second Circuit held in Pinaud v. County of Suffolk , 52 F.3d 1139, 1156 (2d Cir. 1995) that when an actionable claim under § 1983 agains t a county or m unicipality depends on a h arm
42

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stemming from a county's policy or custom, “a cause of action against the m unicipality does not necessarily accrue upon the occurrence of a harmful act, but only later when it is clear, or should be clear, that the harm ful act is the consequence of a count y ‘policy or custom .’” Pinaud , 52 F.3d at 1156 (citation o mitted); see BD v. DeBuono, 130 F. Supp. 2d 401, 424 (S.D.N.Y. 2000) (applying Pinaud to Individuals with Disabilities E ducation Act claim brought pursuant to § 1983).
The same rule app lies to s tate policies or customs such as def endants’ failure to implement a PASRR pr ogram consistent with f ederal law. Although plain tiffs discharged to a nursing home were aware of the disc harge, they could not know th at their discharge to a nursing home was d ue to New York’s failure to evalua te them for community placem ent as requir ed under the N HRA. For plaintiffs to have been aware of such a policy or custom would have required them to be fa miliar with the NHRA st atute and regulations, to understand that the NHRA required a community placem ent and mental health services evaluation, to com pare the requirements of the NHRA against New York’s im plementation of the NHRA, to conclude from such a comparison th at New York was violatin g the NHRA, and to perf orm this analysis even though New York failed to provide a copy of the evaluation report to them, making it impossible for plaintiffs to perform this analysis. Clearly, plaintiffs were not aware when they e ntered the nursing home that their injuries stemmed from a state policy or custom, nor could they have been expected to know. Thei r claims asserted in th is action are therefore not barred by a statute of limitations.
B. Plaintiffs’ Claims Constitute Continuing Violations Defendants’ ongoing violations of the ADA, Rehabilitation Act, and NHRA also constitute continuing violations for which there is no statute of lim itations bar. “[A] continuing violation may be found where there is proof of specific ongoing discri minatory policies or
43

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practices, or where specific and related instances of discrimination are permitted ... to continue unremedied for so long as to am ount to a disc riminatory policy or practice.” Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994); see Havens Realty Corp. v. Colem an, 455 U.S. 363, 380-81 (1982) (“[W]here a plaintiff, pursuant to th e Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice th at continues into the limitations period, the complain t is timely”); United States v. Yonkers B d. of Ed., 992 F. Supp. 672, 675 (S.D.N.Y. 1998) (“In a situation of ongoi ng wrong, it is as if the continuing policy of discrimination or violation repeatedly triggers a nd retriggers the statute of li mitations clock.”); see Eastern Paralyzed Veterans Ass'n v. Lazarus-Burman Assocs., 133 F. Supp. 2d 203, 212-213 (E.D.N.Y. 2001).22
Plaintiffs allege an ongoing policy and pr actice of unnecessarily institutionalizing individuals with mental illness in nursing homes in violation of the ADA and Rehabilitation Act. See First Am. Compl. ¶¶ 95-117. They further alle ge an ongoing failure to m aintain a PASRR program in compliance with the NHRA. See id. ¶¶ 118-136. There is no statute of lim itations bar to these continuing violations of law. Se e Martin, 840 F. Supp. at 1188-89 (applying continuing violation theory to plaintiffs’ community integration and NHRA claims).
C. Any Statute of Limitations Applicable to Plaintiffs’ ADA, Rehabilitation Act, and NHRA Claims Is Tolled By Mental Illness
The statute of limitations on all of plaintiffs’ claims is also tolled by m ental illness. See N.Y. C.P.L.R. § 208; C ourt of Claim s Act § 10(5); Muller v. Ne w York, 686 N.Y.S.2d 652,
22 The contin uous violation theory is not im paired by the Su preme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co., __ U.S. __, 127 S. Ct. 2162 (2007). In L edbetter, the plaintiff failed to allege any discriminatory act within the applicable statute of limitations, which the Court held to bar recovery. 127 S. Ct. at 2169. By contrast, in this case, plaintiffs have alleged numerous violations of federal law with in the thr ee years prior to th e filing of the complaint.
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657 (N.Y. Ct. Cl. 1999), unanim ously aff’d, 719 N.Y.S.2d 916 (4th Dept. 2001), leave to appeal denied, 754 N.E.2d 202 (N.Y. 2001). 23 Muller held that the statute of limitations on a patient’s claim against the State was tolled solely because she was an inpatient in a psychiatric hospital.24

Although in New York even involuntary psychiat ric hospitalization crea tes no presumption of

incapacity, Rivers v. Katz , 495 N.E.2d 337, 341-42 (N.Y. 1986), New York courts treat

psychiatric hospitalization as a per se toll. Significantly, Muller did not discuss or consider

Muller’s mental functioning, whether she had the ability to commence litigation, or whether she

was a voluntary patient or an involuntar

y patient. Thus, under New York law,

institutionalization for mental illness is a per se toll.

While the New York courts h ave not spe cifically addressed the question of whether

confinement in a nursin g home for the purpose of treatment of mental illness tolls the statute of

limitations, the f acts alleged show that th ese nursing homes are the equi valent of psychiatric

hospitals, and therefore New York courts would apply a per se toll. Plaintiffs were all patients in

psychiatric hospitals w ho were d irectly transferred to nu rsing homes. B ecause of their m ental

illness, they are confined on locked wards or on wards where their departure sets off alarms. See

First Am. Compl. ¶¶ 58, 69, 76, 85, 92. Discharge from the ps ychiatric hospital does not

automatically end the toll of the statute of limitations. Gomillion v. New York , 274 N.Y.S.2d

381, 383-84 (N.Y. Ct. Cl. 1966). W hen a patient in a psychiatric hospital is transferred directly

23 The f ederal courts follow state law on tollin g statutes of limitations. See Williams v. Walsh, 558 F.2d 667, 674 (2d Cir. 1977), citing Johnson v. Railway Express Agency, Inc. , 421 U.S. 454, 463-67 (1975). 24 Muller held that psychiatric hospitalization tolled the statute of limitations and notice of claim requirements under Court of Claims Act § 10(5). 686 N.Y.S.2d at 6 57. The standards for tolling under Court of Claims Act § 10(5) are identical to the standards for tolling under N.Y. C.P.L.R. § 208, which is applicable to all ot her civil actions in New York. See Bowles v. New York , 617 N.Y.S.2d 712, 714-15 (N.Y. App. Div. 1 st Dept. 1994); Kelly v. New York , 57 A.D.2d 320, 325-326, 395 N.Y.S.2d 311, 315 (N.Y. App. Div. 4th Dept. 1977).
45

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to a facility that s imilarly restricts their fr eedom because they are m entally ill, it m ust be presumed that the tolling continues. Moreove r, these nursing hom e admissions were for the purpose of psychiatric treatment and rehabilitation,25 leaving no doubt that these facilities are the equivalent of psychiatric hospitals for the purposes of tolling.
Defendants are estopped from asserting the st atute of lim itations. The plaintiffs were transferred from psychiatric hospitals to these restrictive nursing institutions with the require d authorization and approval of the State of New York. Such approval can only be lawfully given on the premise they cannot live in the community. See the discussion of the requirements of the NHRA infra at 7-9. W hen the State has authorized and approved the transfer from psychiatric hospitals to restrictive institutional settings on the prem ise that plaintiffs cannot live in the community, the state is estopped from asserting the statute of limitations. Compare Bowles, 617 N.Y.S.2d at 714-15 (when the state has repeatedly asserted that the claimant is in need of inpatient care and treatm ent for mental illness pursuant to the Crim inal Procedure Law, it is estopped from asserting the statut e of limitations). Therefore, under New York law, the statute of limitations is tolled until three years after plaintiffs are discharged from the nursing homes.26
D. Any Applicable Statute of Limitations on the NHRA Claims Is Tolled In Light of Defendants’ Failure to Provide Notice
Defendants’ failure to provide individuals evaluated in the PASRR process with a copy of the evaluation report, including failing to provi de them with a statem ent of the reasons for denial of community placem ent and for the determ ination of mental health needs, als o tolls any applicable statute of limitations on plaintiffs’ NHRA claim s. See Veltri v Bldg. Serv. 32B-J 25 This can be inferred from the allegations in the First Amended Complaint. If the court deems this to be in sufficiently alleged, the plaintiffs seek leave to am end the complaint to add such an allegation. 26 Relying on Ohio law, the cour t in Martin, 840 F. Supp. at 1189 (S.D. Ohio 1993), tolled similar ADA, Rehabilitation Act and NHRA claims on the basis of mental retardation.
46

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Pension Fund, 393 F.3d 318, 324-325 (2d Cir. 2004) (defendants’ failure to provide notice

equitably tolls statute of limitations); Burke v. Kodak Ret. Incom e Plan, 336 F.3d 103, 107 (2d

Cir. 2003) (sam e); see also Goldberg, 397 U.S. at 267 (due process requires “tim ely and

adequate notice detailing the reasons”); 42 C.F.R. § 483.128 (k), (l) (individual must be provided

copy of PASRR evaluation report and have results in terpreted and explained); 42 C.F.R. §

483.128(i) (describing required contents of PASRR evalua tion report); 57 Fed. Reg. 56450-01,

56489.

VII.

DEFENDANTS HOGAN, DAINES, AND SPITZER ARE APPROPRIATE

OFFICIAL CAPACITY DEFENDANTS

The Second Circuit held in Henrietta D. , 331 F.3d 261 (2d Cir. 2003), that a public

official sued in his or her official capacity is a “public entity” subject to liability under the ADA.

331 F.3d at 288; see Browdy v. La ntz, No. 3:03CV1981, 2006 W L 2711753, at *6 (D. Conn.

Sept. 21, 2006). The same holds true for official capacity suits under the Rehabilitation Act. See

Doe v. Goord , No. 04 CV 0570, 2004 W L 2829876, at *18 (S.D.N.Y. Dec. 10, 2004).

Defendants’ motion to dism iss Hogan, Daines, a nd Spitzer as official capacity defendants i n

plaintiffs’ ADA and Rehabilitation Ac t claims relies o n pre-Henrietta D. case law and is

therefore incorrect. See Defs’ Br. at 27 (citing Hallett v. N.Y. State Dep’t of Corr. Servs., 109 F.

Supp. 2d 190, 199-200 (S.D.N.Y. 2000) and Candelaria v. Cunningham , No. 98 CIV. 6273(LAP), 2000 WL 798636, at *3 (S.D.N.Y. June 20, 2000)).27

Defendants ask that Governor Spitzer be dismissed from this litigation because

“Governor Spitzer’s presence in this litigation is not necessary to a fford plaintiffs the full relief

they seek.” Defs.’ Br. at 59. Governor Spit zer is “responsible for ensuring that New York

27 Fox v. State University of New Yor k, No. 05 CV 2350, 2007 WL 2193925, at *3-4 (E.D.N.Y. July 23, 2007) (cited in Defs’ Br. at 27), likewise relies on pre-Henrietta D. case law and should therefore be disregarded.

47

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operates its services, programs and activities in conformity with the Americans with Disabilities Act, the Rehabilita tion Act, and th e NHRA,” see First Am. Compl, ¶ 40, and is therefore an appropriate defendant See, e.g., N.Y. Const. Art. V, § 4 (gover nor appoints agency heads); N.Y. Exec. Law §§ 702-03 (governor appoi nts members to and receives reports from state m ost integrated setting coordinating c ouncil). Thus, Governor Spitzer is an appropriate defendant in this action. Should this Court nevertheless enter an order dism issing the Governor from this action, it should require the defendants, includi ng Governor Spitzer, to stipulate that the remaining defendants have the power to provide th e full relief that the plaintiffs seek. See Fed. R. Civ. P. 21 (dismissal “on such terms as are just”).
CONCLUSION For the foregoing reasons, this Court should deny defendants’ motion to dismiss.
Dated: Albany, New York November 16, 2007
DISABILITY ADVOCATES, INC. By: ______________/s/________________
Roger A. Bearden (RB-9491) Cliff Zucker (CZ-2254) Amy E. Lowenstein (AL-6119) 5 Clinton Square, 3rd Floor Albany, NY 12207 (518) 432-7861 SCHIFF HARDIN LLP Beth D. Jacob (BJ-6415) Lori D. Greendorfer (LG-0064) 900 Third Avenue 23th Floor New York, NY 10022 (212) 753-5000
48

Case 2:06-cv-01042-BMC-SMG Document 82 Filed 11/16/07 Page 61 of 61 PageID #: 1436
MENTAL HYGIENE LEGAL SERVICE, SECOND JUDICIAL DEPARTMENT Dennis B. Feld (DF-2803) Lisa Volpe (LV-7953) 170 Old Country Road Mineola, NY 11501 (516) 746-4373 NEW YORK LAWYERS FOR THE PUBLIC INTEREST Marianne Engelman-Lado (ML-6749) Sandra DelValle (SD-1700) 151 West 30th Street, 11th Floor New York, NY 10001-4007 (212) 244-4664
49

 
 Case 2:06-cv-01042-BMC-SMG Document 89 Filed 03/05/08 Page 1 of 43 PageID #: <pageID>

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------------------X

JOSEPH S.; STEVEN W.;

:

DISABILITY ADVOCATES, INC.;

:

and SIDNEY HIRSCHFELD, Director, Mental

:

Hygiene Legal Service, Second Judicial Department

:

:

Plaintiffs,

:

:

v.

:

:

MICHAEL F. HOGAN, in his official

:

capacity as Commissioner of the New York State

:

Office of Mental Health; THE NEW YORK STATE

:

OFFICE OF MENTAL HEALTH; RICHARD F.

:

DAINES, in his official capacity as Commissioner

:

of the New York State Department of Health;

:

THE NEW YORK STATE DEPARTMENT OF

:

HEALTH; and ELIOT SPITZER, in his official capacity :

as Governor of the State of New York,

:

:

Defendants.

:

:

-------------------------------------------------------------------------X

SECOND AMENDED COMPLAINT
No. 06 CV 1042 (BMC/SMG)

Plaintiffs Disability Advocates, Inc. (“ DAI”), a New York protection and advocacy agency, and Sidney Hirschfeld, Directo r, Mental Hygiene Legal Service, Secon d Judicial Department (“MHLS”) sue the Def endants on behalf of individuals with m ental illness unnecessarily institutionalized in nursing hom es. Plaintiffs Joseph S. and Steven W ., each an individual with a m ental illness residing in a nursing hom e, sue the Defendants on their own behalf. Together, plaintiffs allege:

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PRELIMINARY STATEMENT OF THE ADA AND REHABILITATION ACT CLAIMS 1. Plaintiffs bring these claim s under the Americans with Disabilities Act (“ADA”)
and Rehabilitation Act on behalf of New Yorkers with m ental illnesses who res ide in nu rsing homes, who receive mental health services there, and who are unlawfully segregated there.
2. These nursing homes are de facto psychiatric institutions called by another name. They effectively function as lo cked wards of psychiatric hosp itals. Scores or hundreds of individuals with mental illness live together on wards populated almost exclusively with others with mental illness; they have little privacy; they cannot leave without setting off alarm s; and they have little access to the outdoors, much less to the community outside the institution. While they ostensibly have been consigned to these ins titutions for psychiatric rehabilitation, very little is offered in the way of rehabili tative services, and their chances of returning to the community are virtually nil, notwithstanding their ability to live in more integrated settings. These are d ead end institutions—warehouses for forgotten human beings.
3. New York State operates a m ental health system which provides mental health treatment and services to residents of New York with m ental illness. This mental health system provides mental health treatm ent and services in a variety of settings, including: in state psychiatric hospitals; in private psychiatric hos pitals; in outpatient co mmunity settings; in residential settings located in the community; and in nursing homes. The services of this m ental health system are paid for in a variety of ways, including by direct state paym ent and by Medicaid.
4. Defendant New York State Office of Me ntal Health (“OMH”) has the state statutory duty to develop an effec tive, integrated and co mprehensive service sy stem for the delivery of all services to persons with mental illness. Defendant New York State Department of Health (“DOH”) is the state agency responsible for administering the Me dicaid system, and is
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responsible for paying f or those expenses of the state’s m ental health system which are eligible for Medicaid payment.
5. As public entities under the ADA a nd Rehabilitation Act, OMH and DOH m ust administer the state’s m ental health system and Medicaid system in the most integrated setting appropriate to the needs of qua lified individuals with disab ilities. Thus, defendants m ay not operate the m ental health system in a m anner which unnecessarily pr ovides mental health services in institutions such as nursing hom es when the services can be provided in m ore integrated settings such as comm unity-based mental health housing li censed and/or funded by defendant OMH (“OMH community housing”). Moreover, the state m ay not adm inister its Medicaid system in a manner which unnecessarily pays for mental health services in institutions such as nursing hom es when the services can be pa id for in m ore integrated settings such as OMH community housing.
6. In violation of the ADA and Rehabilita tion Act, defendants operate the m ental health system and the Medicaid system in a manner which results in persons with mental illness receiving mental health services in nursing homes when they are qualified to rec eive such services in OMH community housing.
7. Defendants operate the m ental health sy stem and the Medicaid s ystem in a manner which m akes it very difficult or im possible for a person with m ental illness who is receiving mental health services in a nursing hom e to obtain m ental health services in a m ore integrated setting.
8. Defendants use eligib ility criteria which effectively screen out individuals with mental illness living in nurs ing homes from OMH community housing, although su ch individuals meet the essential eligibility criteria for OMH community housing.
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9. Defendants further exclude the needs of su ch individuals from their planning for and development of OMH community housing.
10. The obligation to provide services in the most integrated setting appropriate is an ongoing obligation—if the individual with mental illness is currently qualified for care in a more integrated setting; the state has a n obligation to provide such care in the m ost integrated, appropriate setting within a reasonable time.
11. Defendants know, or reasonably should know, that there are hundreds, and perhaps thousands, of persons with m ental illness residing in nursing hom es who could rece ive mental health services in m ore integrated, appropr iate settings. Def endants have not taken reasonable steps to identify such persons and to offer them more integrated se rvices in a tim ely manner. Therefore, defendants have no defense to the cla im that continuing to ins titutionalize individuals with mental illness in nursing homes is discrimination.
PRELIMINARY STATEMENT OF THE NURSING HOME REFORM ACT CLAIMS 12. Plaintiffs’ Nursing Home Refor m Act (“NHRA”) claim is brought on behalf of
individuals with m ental illness who were unlawfully discharg ed to nursing homes from New York State Psychiatric Centers and from psychiatric wards of New York hospitals which are licensed pursuant to New York Public Health Law Article 28 (“Article 28 psychiatric wards”) in violation of the NHRA. This claim is also on b ehalf of individuals with mental illness who are in such hospitals and at risk of such unlawful discharge to nursing homes.
13. The NHRA requires the defendants to conduc t a preadmission screen of persons with mental illness wh o are p roposed for ad mission to a nursing hom e. As part of the preadmission screen, defendants m ust arrange for an independent evaluation of the appropriateness of the nursing hom e admission, which must include an independent evaluation
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of whether the individual could receive care in a community setting rather than a nursing hom e. If nursing facility ca re is re quired, the preadmission screen m ust determine that the nursing facility is capable of providing the needed treatment. Notabl y, the determination of a hospital treatment team that a nursing hom e placement is appropriate is en titled to no deference, and a nursing home admission is unlawful unless there ha s been a preadm ission screen that complies with the NHRA.
14. Defendants’ preadmission screen proce dures do not contain an independent evaluation of whether the indiv idual could receive care in a comm unity setting rather than a nursing home and does not determine whether the nursing facility is capable of providing needed treatment, and thus every adm ission of an individua l with mental illness to a nur sing home violates the NHRA.
15. The NHRA also requires defendants to c onduct a review of ev ery resident of a nursing home who experien ces a signif icant change of condition while res iding in a nur sing home. The change of condition review must include an indepe ndent evaluation of continued nursing home residence, which must include an independent evaluation of whether the patient could receive care in a community setting rather than a nursing hom e and whether the nursing facility is capable of providing needed tr eatment. The determination of a nursing hom e treatment team that a n ursing home placement is a ppropriate is entitled to no deference in the resident review. Continued treatment in a nursing home is unlawful unless there has been a change of condition review that complies with the NHRA.
16. For the vast m ajority of nursing hom e residents with m ental illness who experience a change of condition, the defendants fail to provide a resident review.
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17. The defendants know, or reasonably should know, that there are many individuals who experience a significant change of condition, ye t in the vast m ajority of instances do not ascertain who they are, or m ake reasonable in quiries to nursing hom es that fail to report any changes in condition.
18. Even when defendants are notified of a ch ange in condition, they fail to conduct a change of condition review in the vast majority of cases.
19. For those few individuals who do re ceive a resident review, defendants’ resident review procedure does not cont ain an independent evaluation of whether the patient could receive care in a community se tting rather than a nursing hom e and does not evaluate whether the nursing facility is capable of providing needed treatment, and thus every such review violates the NHRA.
JURISDICTION 20. This action is brought pursuant to T itle II of the ADA, 42 U.S.C. § 12133, the Rehabilitation Act, 29 U.S.C. § 794a, and 42 U.S.C. § 1983. 21. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 as a case arising under the laws of the United States and 28 U.S.C. § 1343(a) for actions under law s providing for the protection of civil rights. 22. Declaratory and injunctive relief are sought under 28 U.S.C. § 2201 et seq. 23. 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 om issions giving rise to the claims herein occurred.
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PARTIES A. Individual Plaintiffs 24. Plaintiff Joseph S. resides in the Far Ro ckaway Nursing Home in Far Rockaway, New York. 25. Plaintiff Steven W . resides in the Br ookhaven Rehabilitation and Health Care Center in Far Rockaway, New York. 26. Joseph S. and Steven W. each has a hist ory of and currently has a significan t mental impairment that substantially limits one or more of his m ajor life activities and each is therefore an individual with a disability for purposes of the Am ericans with Disabilities Act an d the Rehabilitation Act. 27. Joseph S. and Steven W. each has no m edical or m ental condition that requ ires nursing home care. 28. Joseph S. and Steven W. are able to, qualified for, and wish to re ceive treatment and live in a m ore integrated setting than the nursing home in which they currently reside, but have not been able to do so because of defendants’ operation of their public mental health system and Medicaid system. 29. When Joseph S. was proposed for adm ission to a nursing hom e in Septem ber 2003, his preadm ission screen did not include an i ndependent evaluation of whether he could receive care in the community a nd did not evaluate whether the nur sing facility to which he was to be admitted could provide the services he required. Joseph S. did not receive a copy of the independent evaluation report. 30. When Steven W. was proposed for admission to a nursing home in June 2004, his preadmission screen did not include an independ ent evaluation of whether he could receive care in the community and did not evaluate whether the nursing facility to which he was to be
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admitted could provide the serv ices he required. Steven W. did not receiv e a copy of the

independent evaluation report.

B. Associational Plaintiffs

31. Plaintiff Disability Advocates, Inc. is a not-for-profit corporation, authorized to

practice law under New York State law. DAI is an authorized protection and advocacy agency

under the Protection and Advocacy for Indiv iduals with Mental Illn ess Act (“P AIMI”), 42

U.S.C. § 10801 et seq. DAI has st atutory authority to pursue le gal, administrative, and other

appropriate remedies to ensure th e protection of individuals with m ental illness who are

receiving care and treatment in New York State or who are re sidents of New York State and are

receiving care and treatment outside of New York State. 42 U.S.C. § 10805.

32. Plaintiff Sidney Hirschfeld is the Directo r of Mental Hy giene Legal Service,

Second Judicial Departm ent, and brings this action in his offi cial capacity. MHLS is a duly

authorized agency of the State of New York created and governed by New York Mental Hygiene

Law Article 47 to pro vide protection and ad vocacy services for ind ividuals with a m ental

disability. MHLS has statutory au thority to initiate and take any legal action on behalf of such

individuals. N.Y. Mental Hyg. Law § 47.03(e). Plaintiff Hirschfe ld, as Director of MHLS, is

responsible for fulfilling this mandate. 22 N.Y.C.R.R. § 694.2.

33. The individuals on whose behalf DAI

and MHLS bring c laims are all

“individual[s] with mental illness” as that term is defined in 42 U.S.C. § 10802(4), are “mentally

ill” as that term is defined in 42 U.S.C. § 1396r(e)(7)(G)(i), and have a “mental disability” as that

term is defined in N.Y. Mental Hyg. Law § 1.03( 3). These individuals are DAI’s and MHLS’s

constituents (collectively referred to herein as “constituents”).

34. In addition to being pla intiffs, Joseph S. and Steven W . each is also a co nstituent

of DAI and MHLS.

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35. The nursing hom es in which these consti tuents reside a re “facilities” rendering care and treatment for mentally ill individuals as that term is defined in 42 U.S.C. § 10802(3) and are “facilit[ies]” in whic h services for individuals with mental disabilities are prov ided as that term is defined in N.Y. Mental Hyg. Law § 1.03(6).
36. These constituents have m ental impairments that substantially lim it one or m ore major life activities, including but not limited to thinking, concentra ting, learning, self-care, or interacting with others. They are therefore i ndividuals with disabiliti es for purposes of the Americans with Disabilities Act and the Rehabilitation Act.
37. These constituents have each suffered injuries that would allow them to bring suit against defendants in their own right.
38. The interests DAI and MHLS seek to p rotect in this action are germane to DAI’s and MHLS’s purposes.
39. Neither the claim s asserted nor th e relief requested in this action requ ires the participation of individual constituents in the lawsuit.
40. DAI and MHLS bring their ADA and Reha bilitation Act claim s on behalf of individuals with mental illness in nursing homes who, prior to their residence in nursing homes, resided either in state psychiatric hospitals or in Article 28 psychiatri c wards. DAI and MHL S have constituents who have standing to bring such claims.
41. DAI and MHLS bring their ADA and Reha bilitation Act claim s on behalf of individuals with m ental illness who reside in nursing ho mes because defendants operate th e state’s mental health sy stem and Medicaid syst em in a m anner which results in p ersons with mental illness receiving mental health services in nursing hom es when they are qualif ied to
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receive such services in OMH community housing. DAI and MHLS have constituents who have standing to bring such claims.
42. DAI and MHLS bring their NHRA claim s on behalf of each and every individu al with mental illness discharged from a state psychiatric hospital or an Article 28 psychiatric ward to a nursing hom e and who current ly resides in a nursing hom e. Each such individual failed to receive an independent evaluati on of whether he or she could receive care in a comm unity setting rather than a nursing hom e and whether the nursing faci lity was capable of providing needed treatment because the state fails in ev ery instance to conduct a p readmission screen that complies with the NHRA. DAI and MHLS have c onstituents who have standing to bring such claims.
43. DAI and MHLS also bring NHRA claim s on behalf of individuals currently residing in state psychiatric hos pitals and Article 28 psychiatric wards who are at risk of discharge to nursing homes because the state fails in every instance to conduct a p readmission screen that complies with the NHRA. DAI and MHLS have constituents who have standing to bring such claims.
44. DAI and MHLS further bring NHRA claim s on behalf of individuals with mental illness residing in nursing homes who experie nced or will exper ience a s ignificant change of condition and did not o r will not receive a res ident review. DAI and MHLS have constituen ts who have standing to bring such claims.
45. DAI and MHLS further bring NHR A claims on behalf of those individuals with mental illness in nu rsing homes who experien ced a s ignificant change of condition and who received a defective resident review because th e state fails to conduct a residen t review that
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complies with the NHRA, or who will receive such a defective resident review. DAI and MHLS have constituents who have standing to bring such claims.
C. Defendants 46. Defendant Michael F. Hogan is the Commissioner of OMH. He is responsible for the operation and adm inistration of OMH, incl uding its planning, program s and services for individuals with mental illness in New York. He is sued in his official capacity. 47. OMH has the state statutory duty to plan fo r and develop an effective, integrated and comprehensive service system for the delivery of all services to persons with mental illness and to plan for such individuals. N.Y. Mental Hyg. Law §§ 5.07(b); 7.01; 7.07(a); 7.15. 48. As part of its system for persons w ith mental illness, OMH opera tes state psychiatric hospitals, see N.Y. Me ntal Hyg. Law Arts. 9, 29; licenses and funds Article 28 psychiatric wards, see id. §§ 1.03(6), (10); 31.02; 31.04; 31.05; and licenses and funds OMH community housing and support services, see id. §§ 31.02, 31.04, 31.05, 31.07, 31.09, 31.11, 31.13, 31.19, 41.33, 41.38, 41.44, 41.47. 49. OMH is the “State m ental health authority” in New York State as th at term is defined in 42 U.S.C. § 201(m). 50. As the State m ental health au thority, OMH must m ake a determ ination, based upon an independent evaluation, of the appropriat eness of the nursing home admission proposed for any individual with mental illness, which must include an independent evaluation of whether the patient could receive care in a community setting rather than a nursing home and whether the nursing facility is capable of providing needed tr eatment. 42 U.S.C. § 13 96r(e)(7); 42 C.F.R. §§ 483.106(d)(1); 483.110, 483.112, 483.126, 483.132, 483.134(b)(5). 51. OMH must also determ ine, based upon an independent evaluation, of the continued appropriateness of nursing home care for any individual with mental illness residing in
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a nursing home who experiences a significant ch ange of condition. This independent evaluation must include an independent evaluation of whether the patient could receive care in a community setting rather than a nursing home and whether the nursing facility is capable of providing needed treatment. 42 C.F.R. §§ 483.106(d), 483.110, 483.126, 483.132, 483.134(b)(5).
52. OMH is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). 53. OMH is a recipient of federal funds. 54. OMH is a program of state government. 55. Defendant Richard F. Daines is th e Commissioner of the New York State Department of Health. He is responsible for the operation and administration of the Department of Health, including its activities regarding nursing homes, the New York State Medicaid program, and Article 28 hospitals. He is sued in his official capacity. 56. DOH is the single state agency that ope rates the New York State Medicaid program, which provides payment for individuals with mental illness to reside in nursing homes and community-based mental health treatment. N.Y. Soc. Serv. § 363-a. 57. As the single state agen cy that operates the New York State Medicaid program , DOH must assure that New York operates a preadmission screen and resident review program in conformity with the NHRA. 42 U.S.C. § 1396a(a)(28). 58. DOH licenses, supervises and enforces th e laws and regulations applicable to nursing homes and determ ines whether nursin g homes are perm itted to alter or expand. N.Y. Pub. Health Law §§ 2801(2), (3); 2802; 2806-b; 10 N.Y.C.R.R. § 709.3. 59. DOH licenses, supervises and enforces th e laws and regulations applicable to Article 28 hospitals, which include hospitals that have psychiatri c units, and is responsible for
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protecting the rights of the patients therein. N.Y. Pub. H ealth Law §§ 2801(1); 2803(1); 2805, 2806.
60. DOH is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131(1). 61. DOH is a recipient of federal funds. 62. DOH is a program of state government. 63. Defendant Eliot Spitzer 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 ul timately responsible for ensuring that New York opera tes its services, programs and activities in conformity with the Am ericans with Disabilities Act, the Rehabilitation Act, and the NHRA. His pre sence in th is lawsuit is necessary to afford plaintiffs the full relief they seek. He is sued in his official capacity.
FACTS ADA AND REHABILITATION ACT CLAIM A. Legal Background 64. Title II of the Am ericans with Disabi lities Act (“ADA”), 42 U.S.C. §§ 12131, 12132, and Section 504 of the Re habilitation Act, 29 U.S.C. § 794, prohibit discrim ination against individuals with disabilities, including those with mental illness. 65. In enacting the ADA, Congress explicitly identified unjustified segregation of persons with disabilities as a form of discrimination. See 42 U.S.C. § 12101(a)(2) (“historically, society has tended to isolate a nd segregate individuals with di sabilities, and, despite som e improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem ”); id. § 12101(a)(5) (“individuals with disabilities continually encounter various forms of discrimination, including ... segregation”). 66. To prevent unjustified segregation of persons with disabilities, regulations adopted under the ADA and Rehabi litation Act require that a public entity must administer its
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services, programs, and activ ities in the m ost integrated setting approp riate to the needs of qualified individuals with disabilities. See 28 C.F.R. § 35.130(d) (ADA); 45 C.F.R. § 84.4(b)(2) (Rehabilitation Act).
67. As described below, defendants’ failure to administer their services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with mental illness has led to the unnecessary instit utionalization in nurs ing homes of hundreds of New Yorkers with mental illness who do not require nursing care.
B. New York’s Public Mental Health System 68. Under the New York State Mental Hygi ene law, defendant New York State Office of Mental Health (“OMH”) must “develop an effective, integrated, comprehensive system for the delivery of all services to the m entally ill.” N. Y. Mental Hyg. L aw § 7.01; see id. §§ 7.07(a); 7.15. 69. Significantly, “[s]uch a system should include, whenever possible, the provision of necessary treatm ent services to people in their hom e communities; it should assure the adequacy and appropriateness of residential arrange ments for people in need of service; and it should rely upon improved programs of institutional care only when necessary and appropriate. ” N.Y. Mental Hyg. Law § 7.01. 70. The state public m ental health system established under New York State law involves a num ber of residential settings, in cluding state-operated psychiatric hospitals, psychiatric wards of general hosp itals, residential treatment programs, single-site and scatteredsite housing for persons with mental illness, and nursing homes. 71. Pursuant to the ADA and Rehabilitation Act, and consistent with its own statutory mandate, OMH m ust operate New York’s public mental health system in ord er to serve individuals with mental illness in the most integrated setting consistent with their clinical needs.
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72. Thus, the system may rely upon nursing home care only if such care is clinically appropriate and if more integrated OMH community housing is not appropriate.
C. OMH Community Housing 73. OMH licenses and funds several types of community housing programs, including single-site, scattered-site, licensed and unlicensed, community housing programs. 74. An individual in OMH community hous ing receives a housing subsidy and receives community-based mental health treatment and supports. 75. The goal of OMH community housing is to allow an individual with mental illness to live and receive mental health treatment in the community. 76. Individuals with mental illness who do not require in-patient psychiatric care are qualified for OMH community housing if they ha ve a Severe and P ersistent Mental Illness (SPMI). 77. The particular types of such housing fo r which an individual with SPMI is appropriate depends upon the individual’s needs and desires. 78. For an individual who does not reside in a state psychiatric hospital, including an individual residing in a nursi ng home, the state’s treatm ent professionals do not determ ine whether that individual meets the SPMI criteria or is appropriate for one or m ore of the types of OMH community housing programs. 79. Based upon their clin ical condition and history, J oseph S., Steven W . and all the constituents in nursing homes meet the SPMI criteria. 80. Joseph S., Steven W., and the vast majority of the constituents are appropriate for one or more types of OMH community housing.
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D. Defendants’ Failure to Serve Individuals with Mental Illness In the Most Integrated Setting
81. Despite meeting the e ssential eligibility requirements for OMH community housing, Joseph S., Steven W., and the constituents reside in nursing homes.
82. They reside in nursing homes because OMH has failed to develop sufficient OMH community housing to meet their needs.
83. Once in nursing homes, Joseph S., Steven W., and the constituents are effectiv ely excluded from OMH community housing.
84. OMH designates priority populations for the community housing it develops and sets aside certain OMH community housing for designated populations, for exam ple, homeless individuals with mental illness.
85. OMH has not designated nursing hom e residents as a priority population for any of the community housing it has developed and has not set aside any O MH community housing for individuals with mental illness residing in nursing homes.
86. Due to the high dem and for OMH comm unity housing, this failure to either designate nursing home residents as a priority population or to set asid e any housing for nursing home residents effectively excl udes nursing homes residents with mental illness from accessing OMH community housing.
87. Further, although defendants know, or reasonably should know, that hundreds and perhaps thousands, of individua ls with m ental illness unnecessarily reside in nursing hom es, OMH and DOH exclude the needs of individuals with m ental illness residing in nursing hom es from their planning and do not consider whether such individuals could be served in more integrated settings.
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88. OMH, DOH, and Governor Spitzer

contribute to th e unnecessary

institutionalization of individuals with mental illness in nursing hom es by failing to redirect the

money currently spent on individu als with m ental illness in nursing hom es to c are for such

individuals in OMH community housing.

89. OMH, DOH and Governor Spitzer fail to redirect such funds despite the

substantial cost savings defendants would achieve if individuals with mental illness in nursing

homes were served in OMH community housing.

90. Upon information and belief, the vast m ajority of individuals with m ental illness

currently receiving services in nursing hom es could live in OMH community housing and

receive community-based mental health treatment for less money than the State currently spends

on nursing home care.

91. Nevertheless, defendants do not make available those funds they currently expend

on institutional nursing home care for individuals with m ental illness to enable such individuals

to receive care and treatment in the community.

92. As a result, individu als with mental illness spend years in nursing hom es instead

of the more integrated settings for which they are eligible.

E. Nursing Homes Are Highly-Segregated Institutions

93. In the nursing homes, Joseph S., Steven W ., and th e constituents have little

privacy, cannot leave without setting off alarms, and have little access to the outdoors, much less

to the community outside the institution.

94. These nursing homes are de facto psychiatric institutions called by another name.

95. They effectively function as locked wards of psychiatric hospitals.

96. While they have ostensibly been consigned to these institutions for psychiatric

rehabilitation, very little is of fered in the way of rehabilitative se rvices, and they have little

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chance of returning to the community notwith standing their ability to live in m ore integrated settings.
97. Joseph S., Steven W ., and the constitu ents are harm ed by their c ontinuing unnecessary institutionalization.
1. New Jersey Nursing Homes 98. Two large nursing hom es in New Je rsey—Andover Subacute and Rehabilitation Center, II, Inc. (“Andover”), lo cated in Andover, New Jersey, and Lincoln Park Care Center L.L.C. (“Lincoln Park”), located in Lincoln Park, New Jersey—each house over 500 individuals, the majority of who m are New York residents with mental illness who do not require nursing care and are qualified to reside in OMH community housing. 99. Other nursing hom es in New Jersey m ay also house individuals with m ental illness who do not require nursing care and are qualified to reside in OMH community housing. 100. New York pays f or New York residents with mental illness to live in nursing homes in New Jersey and other states through the New York Medicaid program. 101. Andover and Lincoln Park m aintain separate floors for reside nts with m ental illness segregated from the other res idents of the nursing h ome. Residents with mental illn ess are not allowed to leave these floors unless they ha ve special passes th at entitle them to certain privileges. Even with special pas ses, all of the residents with m ental illness have m inimal contact with the outside world. Except for ciga rette breaks and other pre-determ ined, limited time periods, most of these residents have no access to fresh air. 102. Andover and Lincoln Park m aintain secured doors that m ust be activated by staff in order for anyone to leave the facility. Resident s with mental illness can leave the facility only
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with permission and when accom panied by facility staff and only on pre-determined, facilityorganized, group activities.
103. All of these restrictions on freedo m are typical of the lim itations on freedom found in state-operated psychiatric centers and Article 28 psychiatric wards.
104. The services at Andover and Lincoln Park are administered with little expectation that residents will return to the community.
105. Staff at Andover and Lincoln Park adm inister medication for residents with mental illness and do not permit residents to administer their own medication.
106. Other than providing m edication, Andover and Lincoln Park provide little psychiatric care.
107. Residents likewise receive almost no social work care. At Lincoln Park, there are three social workers for over 500 residents. Th ese social workers do not provide individual or group therapy.
108. The programs at Andover and Lincoln Park do not promote the rehabilitation and recovery of individuals with m ental illness, and do not assist them in becom ing more independent.
109. Andover and Lincoln Park do not link reside nts to educational, pre-vocational, and vocational services intended to facilitate residents’ return to the job m arket and/or their attainment of educational or career advancement goals.
110. When staff at Andover and Li ncoln Park attempt to discharge residents to OMH community housing, they find that such residents are effectively excluded from such housing.
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111. Therefore, staff at Andover and Lincoln Pa rk prefer not to raise the subject of discharge with residents with mental illness because they know that there is very little hope that they in fact will be discharged to more integrated setting.
112. Of the hundreds of Ne w York residents residing at Andover and Lincoln Park, few have transitioned to OMH community housing.
2. New York Nursing Homes 113. At least nine nursing hom es in New York State house individuals with m ental illness who do not require nursing home care and who could reside in OMH community housing. 114. Brookhaven Rehabilitation and Health Care Center LLC in Far Rockaw ay, New York; New Surfside Nursing Ho me LLC in Far Rockaway, New Yor k; Woodmere Rehabilitation and Health Care Center in W oodmere, New York; Meadow Park Re habilitation and Health Care Center in Fl ushing, New York; Lawrence Care Center LLC in Arverne, New York; Park Nursing Hom e in Rockaway Beach, New York; Horizon Care Center in Arverne, New York; Holliswood Care Center, Inc. in Quee ns, New York; and Haven Manor Health Care Center in F ar Rockaway, New York each house individuals with m ental illness w ho do not require nursing home care and who could reside in OMH community housing. 115. Other nursing homes in New York State may also house individuals with m ental illness who do not require nursing home care and who could reside in OMH community housing. 116. New York pays f or New York residents with mental illness to live in these nursing homes through the New York Medicaid program. 117. Although the conditions vary in the New York nursing homes, all of the abovenamed homes do not perm it the residents to leave the facility unescorted or without permission, and several restrict the residents’ movements within the facility.
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118. The New York nursin g homes operate on a regim ented time schedule with established meal and recreation periods, cigarette breaks and medication administration.
119. The New York nursing hom es provide insu fficient psychiatric and so cial work care. Other than m edication management, the New York nursing hom es do not provide individual or group therapy.
120. The programs in these hom es do not prom ote the rehabilitation and recovery of individuals with mental illness, and do not assist them in becoming more independent.
121. The nursing hom es do not link residents to educational, pr e-vocational, and vocational services intended to facilitate residents’ return to the job market and/or their attainment of educational or career advanc ement goals. Instead, the nursing hom es treat residents with mental illness as if the nursing home was their final home.
122. When staff at the New York nursin g homes attempt to find appropriate OM H community housing to which to discharge residents with mental illness, they find that nurs ing home residents are effectively excluded from such housing.
3. Massachusetts Nursing Homes 123. At least six nursing hom es in Massachus etts house New Yorkers with m ental illness who, upon information and belief, do not require nursing home care and who could reside in OMH community housing. 124. New York pays f or New York residents with mental illness to live in nursing homes in Massachusetts through the New York Medicaid program. 125. These individuals, like individuals in Ne w Jersey and New York nursing hom es, are unable to access OMH community housing.
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F. The Individual Plaintiffs 126. Joseph S. and Steven W. each res ide in a nu rsing home because of defendants ’ failure to o perate their public m ental health system and Medicaid sys tem in such a way as to serve these individuals in the most integrated setting appropriate to their clinical need.
1. Joseph S. 127. Plaintiff Joseph S. was born in 1952. He resided at the Meadow Park Nursing Home in Far Rockaway, Queens from September 2003 through December 2006 and currently resides at the Far Rockaway Nursing Home. 128. Joseph S. was discharged to Meadow Park from Creedm oor Psychiatric Center. Joseph S.’s discharge plan di d not contain a m edical reason for nursing hom e placement, indicating only that Joseph S. would benefit fr om training in community living skills and noting that he exp erienced occasional incontinence, for which he received m edication and wore a protective undergarment. 129. While at Meadow Park, Joseph S. was evaluated by a Community Alternatives Systems Agency for the purpose of determ ining whether upon his return to the community he would be eligible for New York's Medicaid-funded home health services. It was determined that Joseph S. did not require nursing care, and was th erefore ineligible for unnecessary home health services. 130. Nevertheless, because no OMH comm unity housing was availab le to hi m, he continued to reside in a nursing home. 131. In December 2006, Joseph S. decided to move to Far Rockaway Nursing Home in Far Rockaway, Queens. 132. When he entered Far Rockaway, he continued not to require nursing home care.
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133. At Far Rockaway, Joseph S. is not perm itted to administer his own m edications, receives little psychiatric care, and is not permitted to leave the facility unescorted.
134. Joseph S. is able to, qualified for, and would like to live in a m ore integrated setting than Far Rockaway Nursing Home.
2. Steven W. 135. Steven W. was born in 1946 and has re sided at Brookhaven Rehabilitation and Health Care Center since June of 2004. 136. Steven W. was discharged to Brookhaven Rehabilitation and Health Care Center in June of 2004 from the Article 28 psychiatric ward at Montefiore Medical Center. 137. At the time of discharge, his discharge plan did not contain a medical reason for nursing home placement, indicating only that h e would benefit from a rehabilitation program in preparation for community living. 138. Shortly after his arriva l at Brookhaven, his treat ment plan was changed, eliminating the plan for community reintegration. 139. At Brookhaven, Steven W. is unable to leav e the facility unescorted and is unable to leave the floor without supervision. He wears a device on his wrist that triggers an alarm if he attempts to leave the floor or the facility without permission. 140. Steven W. is able to, q ualified for, and would like to live in a m ore integrated setting than Brookhaven.
THE NURSING HOME REFORM ACT A. Legal Background 141. The NHRA requires states to ensure that individuals with mental illness are not inappropriately placed in nursing hom es and that they receive app ropriate mental health
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treatment while in a nu rsing facility. See 42 U.S.C. § 1396r; see also 42 U.S.C. § 1396a(a)(28) (state Medicaid plan must provide for compliance with NHRA).
142. The NHRA delineates State requirements for preadmission screening and resident review (“PASRR”). 42 U.S.C. § 1396r(e)(7). Regulations promulgated pursuant to the statute implement the NHRA’s PASRR requirements. See 42 U.S.C.. § 1396r(f)(8)(A); 42 C.F.R. §§ 483.100-483.138.
143. These PASRR requirements apply to any in dividual proposed for admission to or who resides in a Medicaid-certified nursing facility. See 42 C.F.R. § 483.102(a).
144. For individuals with mental illness proposed for adm ission to a nursing facility, the NHRA r equires that “the Stat e must have in effect a prea dmission screening program,” 42 U.S.C. § 1396r(e)(7)(A)(i), to determ ine “prior to admission that, because of the physical and mental condition of the individual, the ind ividual requires the level of services provided by a nursing facility.” 42 U.S.C. § 1396r(b)(3)(F)(i).
145. The NHRA further provides that “in the case of each resident of a nursing facility who is mentally ill, the State mental health authority must review and determine . . . whether or not the resident, because of the resident’s physi cal and m ental condition, requires the level of services provided by a nursing facility.” 42 U.S.C. § 1396r(e)(7)(B)(i).
146. For both the preadmission screen and the resident review, the “State mental health authority” makes the d etermination as to whe ther an individual meets nursing facility level of care based upon “an independent physical and mental evaluation performed by a person or entity other than the State mental health authority.” 42 U.S.C. § 1396r(b)(3)(F)(i); 42 U.S.C. § 1396r(e)(7)(B)(i); 42 C.F.R. § 483.106(d).
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147. Unless the individual’s physical and mental condition is determined to require the level of services provided by a nursing facility, the nursing facility must not admit the individual. 42 U.S.C. § 1396r(b)(3)(F)(i).
148. For individuals residing in nursing homes and not requiring nursing facility services, the state must arrange for and prepare th e individual for discharge to a m ore integrated setting. 42 U.S.C. § 1396r(e)(7)(C)(ii)-(iii).
149. DOH, as the single state agency responsible for adm inistration of New York’s Medicaid program, must assure New York’s compliance with federal PASRR requirements. See 42 U.S.C. § 1396a(a)(28).
150. OMH, as New York’s state m ental health authority, makes the determination, based upon an independent evaluation, as to wh ether individuals proposed for adm ission or residing in nursing homes require nursing facility level of care and specialized services.
1. Independent Evaluation of Need for Nursing Facility Level of Care 151. In conducting an independent evaluation of whether an individual m eets nursing facility level of care, the independent evaluator must first assess whether “[t]he individual’s total needs are such that his or her needs can be met in an appropriate community setting.” 42 C.F.R. § 483.132(a)(1). 152. The evaluation must examine “the level of support that would be needed to assist the individual to perform … ac tivities of daily liv ing while living in the community,” an d “determine[s] whether this level of support can be provided to the individual in an alternative community setting or w hether the level of suppor t needed is such that NF [Nursing Facility] placement is required.” 42 C.F.R. § 483.134(b)(5).
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153. If the individual’s needs ca nnot be m et in a comm unity setting, the evaluation
examines if “[t]he individual’s total needs are such that they can be met only on an inpatient
basis, which m ay include the op tion of placemen t in a ho me and community-based serv ices
waiver program.” Id. § 483.132(a)(2).
154. If institutional care is required, the evaluation examines whether a nursing facility
is an appropriate placement, id. § 483.132(a)(3), including whether the particular nursing facility
is capable of providing the services the individual requires. Id. § 483.126.
155. If nursing hom e care is required, the independent evaluation m ust examine
whether the individual requires specialized services for treatment of mental illness. See 42
C.F.R. § 483.134.
2. Evaluation Report and Notice of Findings 156. Upon conclusion of the required eval uation, the NHRA requires that the
independent evaluator create an evaluation report, which:
(1) Identifies the name and professional title of person(s) who performed the evaluation(s) and the date on which each portion of the evaluation was administered;
(2) Provides a summary of the medical and social history, including the positive traits or developmental strengths and weaknesses or developmental needs of the evaluated individual;
(3) If NF services are recommended, identifies the specific services which are required to meet the evaluated individual's needs, including services required in paragraph (i)(5) of this section;
(4) If specialized services are not recommended, identifies any specific mental retardation or mental health services which are of a lesser intensity than specialized services that are required to meet the evaluated individual's needs;
(5) If specialized services are recommended, identifies the specific mental retardation or mental health services required to meet the evaluated individual's needs; and
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(6) Includes the bases for the report's conclusions. 42 C.F.R. § 483.128(i).
157. The evaluator m ust send a copy of the evaluation report to the individual or resident and his or her legal repr esentative, the appropriate State au thority, the ad mitting or retaining NF, the individual’s attending physician, and the discharging hosp ital if the individual is seeking NF admission from a hospital. 42 C.F.R. § 483.128(l).
158. Upon completion of the independent evalua tion, the state m ental health authority must also notify the individual of the results of the review. See 42 C.F.R. § 483.130(k). This notice must include:
(1) Whether a NF level of services is needed; (2) Whether specialized services are needed; (3) The placement options that are available to the individual consistent with these determinations; and (4) The rights of the individual to appeal the determination. 42 C.F.R. § 483.130(l). 3. Resident Review Upon Significant Change of Condition 159. The nursing facility must “notify the State mental health authority or State mental retardation or develop mental disability autho rity, as applicable, promp tly after a significant change in the physical or mental condition of a resident who is mentally ill or mentally retarded.” 42 U.S.C. § 1396r(b)(3)(E). 160. Upon receipt of such notice, the State m ental health au thority must review the need for nursing facility level of care and/or for specialized serv ices. See 42 U.S.C. § 1396r(e)(7)(B)(iii).
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4. Sending State Responsibility for Out-of-State Placement 161. When an individual is p laced outside his state of residence, “[t]he State in which the individual is a State res ident (or would be a State resident at th e time he or sh e becomes eligible for Medicaid) . . . must pay for the PASARR and make th e required determinations.” 42 C.F.R. § 483.110(a). 162. A State can m eet its ongoing obligations to residents in out -of-state nursing homes by m aking “arrangements for PASARR in its provider agreem ents with out-of -State facilities or reciprocal interstate agreements.” 42 C.F.R. § 483.110(b). B. Defendants’ Violations of NHRA 163. Defendants’ PASRR system violates the requirements of the NHRA in each of the following ways:
1. Evaluation of Nursing Facility Level of Care 164. When an individual with m ental illness is referred for an independent evaluation, the independent evaluation does not consider wh ether the individual re quires nursing facility level of care or whether they could receive treatment in the community 165. Each of the constituents in nursing ho mes, including plaintiffs Joseph S. and Steven W., received a deficient preadm ission screen at th e time of ad mission to the nursing home. 166. Each of the constitu ents at-risk of entering a nursing home will not r eceive a proper preadmission screen prior to their entry into the nursing home. 167. The constituents evaluated, or at-ris k of evaluation, under defendants’ d efective preadmission screen are deprived of the bene fits of the preadm ission screen, nam ely, the opportunity to live in and receive community-based mental health housing and treatment.
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2. Determination That Nursing Facility Is Capable of Providing Needed Treatment
168. Joseph S., Steven W ., and virtually all of the constituents were discharged to nursing homes for the purpose of receiving psychiatric rehabilitation.
169. The regulations im plementing NHRA, 42 C.F.R. § 483.126, state that a nursing facility admission may be considered appropriate only when the indi vidual's needs are su ch that they do not exceed the level of services which can be delivered in the NF.
170. The nursing facilities to which the named plaintiffs and the constituents have been admitted cannot and do not provide the prescribed psychiatric rehabilitation services.
171. Nevertheless, the defendants’ preadm ission screen p ermits admission to su ch facilities in violation of the NHRA.
172. The constituents a t-risk of entering a nurs ing home will not r eceive a prope r preadmission screen which determ ines whether th e nursing facility to which the individual is proposed for admission is capable of providing the services such individual requires
173. The constituents evaluated, or at-ris k of evaluation, under defendants’ d efective preadmission screen are deprived of the bene fits of the preadm ission screen, nam ely, the opportunity to receive appropriate mental health treatment in the nursing home.
3. Evaluation Report and Notice of Findings 174. Once the independent evaluation has been completed, defendants’ PASRR system does not provide the affected individual with a copy of the independent evaluation. 175. As a result, each and every constituent with mental illness residing in a nursing home, including Joseph S. and St even W., has not received notice of the ba sis for the determination that they require nursing f acility level of care r ather than tre atment in the community.
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176. Further, each of the co nstituents at-risk of entering a nur sing home will no t receive notice of the basis f or the determination that they re quire nursing facility level of care rather than treatment in the community.
4. Resident Review Upon Significant Change of Condition 177. Defendants fail to conduct resident reviews for individuals with m ental illness residing in nursing homes who experience a significant change of condition as required under the NHRA. 178. Upon information and belief, DAI and MHLS have constituents for whom nursing homes have provided notification of a significan t change of condition to defendants and for whom defendants have failed to provide any resident review. 179. Further, upon information and belief, DAI and MHLS have constituents for whom nursing homes have provided notification of a si gnificant change of condition to defendants and for whom defendants have failed to provide a prope r resident review to independently evaluate whether the individual requires nursing facility level of care , including whether they could receive treatment in the community, and to whom defendants have failed to provide a copy of the evaluation report. 180. Further, upon information and belief, DAI and MHLS have constituents for whom nursing homes have failed to provide notificatio n of a significant ch ange of condition to defendants due to defendants’ fa ilure to develop a system to assure that nursing hom es notify them when an individual with mental illness experiences a significant change of condition. 181. Defendants’ deficient reside nt review program deprives the constituents of the benefits of the review, nam ely, the opportunity to liv e in and receive community-based m ental health housing and treatment.
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C. The Individual Plaintiffs 182. Because of defendants’ failure to op erate a PASRR program that com plies with the NHRA, when Joseph S. and Steven W . were admitted to a nursing hom e, the preadmission screen did not consider whether they required nu rsing facility level of care, including whether they could receive treatment in the community, or determine that the nursing facility was capable of providing needed treatment. 183. Joseph S. and Steven W. each did not receive a cop y of the in dependent evaluation report. 184. As a result, Joseph S. and Steven W. were deprived of the benefits of the preadmission screen, nam ely, the opportunity to live in and receive comm unity-based mental health housing and treatment, to receive appropriate mental health care in the nursing homes, and to receive notice of the basis for the determination that they required nursing facility level of care rather than treatment in the community.
FIRST CLAIM FOR RELIEF (AGAINST ALL DEFENDANTS) VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 185. Plaintiffs repeat and reallege the above paragraphs. 186. This claim for relief is brought against each and every defendant. 187. Joseph S., Steven W ., and the constitu ents are individuals with m ental illness. They have mental impairments that substantially limit one or more major life activity. 188. Joseph S., Steven W ., and the constitu ents are qualif ied individuals with disabilities within the meaning of 42 U.S.C. § 12131(2).
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189. Joseph S., Steven W ., and the constitu ents are qualified to partic ipate in m ore integrated settings appropriate to their needs.
190. Defendants can reasonably accommodate serv ing plaintiffs Joseph S., St even W., and the constituents in the most integrated setting appropriate to their needs.
191. Defendants OMH and DOH are public entiti es covered by Title I I of the ADA. 42 U.S.C. § 12131(1)(A ), (B). Defendants Hogan, Daines, and Spitzer are responsible for the operation of public entities covered by Title II of the ADA.
192. Title II of the ADA prohibits defendants from discriminating against individuals with disabilities in connection with servi ces, programs and activities. 42 U.S.C. §§ 12131, 12132.
193. Title II also requires that “a public entity shall administer services, programs, and activities in the m ost integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
194. Title II further provid es that “a public entity m ay 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 defea ting or substantially impairing accomplishment of the objectives o f the public entity’s program with respect to individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3).
195. Defendants have failed to m eet these obligations. Defendants discrim inate against Joseph S., Steven W ., and the const ituents. Def endants’ unlawful activities and omissions have resulted in Joseph S., Steven W., and the constituents living and receiving services in nursing homes rather than the most integrated setting appropriate to their needs.
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196. Defendants’ failure to adm inister services, programs, and a ctivities in the m ost integrated setting appropriate to th e needs of Joseph S., Steven W ., and the c onstituents constitute continuing violations of law.
SECOND CLAIM FOR RELIEF (AGAINST ALL DEFENDANTS) VIOLATION OF THE REHABILITATION ACT 197. Plaintiffs repeat and reallege the above paragraphs. 198. This claim for relief is brought against each and every defendant. 199. Joseph S., Steven W ., and the constitu ents are individuals with m ental illness. They have mental impairments that substantially limit one or more major life activity. 200. Joseph S., Steven W ., and the constitu ents are qualif ied individuals with disabilities within the meaning of 29 U.S.C. § 705(20). 201. Joseph S., Steven W ., and the constitu ents are qualified to partic ipate in m ore integrated settings appropriate to their needs. 202. Defendants can reasonably accommodate serv ing Joseph S., Steven W ., and the constituents in the most integrated settings appropriate to their needs. 203. Defendants OMH and DOH are program s and conduct activities receiving federal financial assistance. Defendants Hogan, Daines, and Spitzer are re sponsible for the operation of programs receiving federal assistance. 204. 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 the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 205. Section 504 also requires:
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For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs. 45 C.F.R. § 84.4(b)(2). 206. Section 504 further provides that a “r ecipient may not, directly or through contractual or other arrangem ents, utilize criteria or m ethods of administration: (i) that have the effect of subjecting qualified ha ndicapped persons to discrim ination on the basis of handicap; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons . . . .” 45 C.F.R. § 84.4(b)(4). 207. Defendants are obligated under Section 504 of the Rehab ilitation Act to administer New York State progr ams and to utilize m ethods of administration in a m anner that supports the availability of serv ices and programs in the most in tegrated setting for individuals with disabilities. 208. Defendants have failed to m eet these obligations. Defendants discrim inate against Joseph S., Steven W ., and the const ituents. Def endants’ unlawful activities and omissions have resulted in Joseph S., Steven W., and the constituents living and receiving services in nursing homes rather than the most integrated setting appropriate to their needs. 209. Defendants’ failure to adm inister services, programs, and a ctivities in the m ost integrated setting appropriate to th e needs of Joseph S., Steven W ., and the c onstituents constitute continuing violations of law.
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THIRD CLAIM FOR RELIEF (AGAINST ALL DEFENDANTS) VIOLATION OF THE NURSING HOME REFORM ACT 210. Plaintiffs repeat and reallege the above paragraphs. 211. This claim for relief is brought against each and every defendant. 212. The NHRA requires that states develop and implement a Preadmission Screening and Resident Review (“PASRR”) program for all applicants t o, and residents of, Medicaidcertified nursing facilities. 42 U.S.C. § 1396a (a)(28); 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 - 483.138. 213. The nursing homes to which Joseph S., Steven W., and the constituents have been admitted or are a t-risk of admission are Medicaid-certified facilities and receive payment from the New York State Medicaid program for their care. 214. Defendants’ preadmission screen unlawf ully permits the adm ission to nursing homes of individuals with mental illness whose physical and mental conditions do not require the level of services provided by a nursing facility. 215. Defendants’ preadmission screen does not include an independent evaluation of whether an individual could receive care in a community setting rather than a nursing home. 216. Defendants’ preadmission screen does not evaluate whether a particular nursing facility is capable of providing needed treatment. 217. Defendants’ preadmission screen does not arrange for a copy of the independent evaluation report to be sent to the individual and his or her legal representative. 218. Defendants do not conduct a resident re view upon receipt of notification from nursing homes that individuals with m ental illness have experienced a significant change of condition.
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219. Defendants fail to assure that nursing hom es notify defendants when individuals with mental illness experience a significant change of condition in order for defendants to perform a resident review for such individuals.
220. For those individuals for whom defendants conduct a resident review, defendants’ resident review does not include an independent evaluation of whether th e patient could receive care in a co mmunity setting rather than a nursin g home, does not evaluate whether a particular nursing facility is capable of prov iding needed treatment, and does no t provide a copy of the independent evaluation to the evaluated individual.
221. Joseph S., Steven W., and each of the cons tituents residing in a nursing home did not receive a preadm ission screen that com plies with the NHRA in that it d id not include an independent evaluation of whethe r the patient could receive care in a community setting rather than a nursing home.
222. Joseph S., Steven W ., and the con stituents residing in a n ursing home did not receive a p readmission screen that complies with the N HRA in that it did no t include an independent evaluation of whether a particular nursing facility is capable of providing services.
223. Joseph S., Steven W., and each of the cons tituents did not receive a copy of the independent evaluation report.
224. The constituents at risk of discharge to a nursing hom e will not r eceive an independent evaluation as to whether their p hysical and m ental condition requires nursing facility services, including whether they cou ld receive community-based treatment, will not receive an independent evaluation evaluate as to whether a partic ular nursing facility is capable of providing needed treatment, and will not receive a copy of the independent evaluation report.
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225. Constituents have not received a res ident review upon notification from nursing homes to defendants that the constituents have experienced a significant change of condition.
226. For those constituents who have received a resident review, defendants’ resident review did not include an indepe ndent evaluation of whether the p atient could receive care in a community setting rather than a nursing hom e, did not evaluate whether a particular nursing facility is capable of providing needed treatment, and did not provide a copy of the evaluation report to the evaluated individual.
227. For those constituents who have experien ced a sign ificant change of condition and for whom nursing hom es have failed to notify New York of this change, defendants have failed to put in p lace a system to a ssure that nursing hom es notify New York of a significant change of condition.
228. Defendants’ failure to operate a PASRR system consiste nt with the NHRA constitutes a continuing violation of law.
FOURTH CLAIM FOR RELIEF (AGAINST ALL DEFENDANTS) UTILIZING CRITERIA OR METHODS OF ADMINISTRATION THAT DEFEAT OR SUBSTANTIALLY IMPAIR THE OBJECTIVES OF THE PASRR PROGRAM 229. Plaintiffs repeat and reallege the above paragraphs. 230. This claim for relief is brought against each and every defendant. 231. Title II of the ADA prohibits defendants from discriminating against individuals with disabilities in connection with servi ces, programs and activities. 42 U.S.C. §§ 12131, 12132. 232. Title II further provid es that “a public entity m ay not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the
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effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defea ting or substantially impairing accomplishment of the objectives o f the public entity’s program with respect to individuals with disabilities. . . .” 28 C.F.R. § 35.130(b)(3).
233. 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 the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
234. Section 504 further provides that a “r ecipient may not, directly or through contractual or other arrangem ents, utilize criteria or m ethods of administration: (i) that have the effect of subjecting qualified ha ndicapped persons to discrim ination on the basis of handicap; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipien t’s program or activity with respect to handicapped persons . . . .” 45 C.F.R. § 84.4(b)(4).
235. The purpose of the PASRR program is to end the inappropriate placem ent of mentally ill individuals in nursing facilities and to assure appropriate mental health treatment
236. By failing to adm inister the PASRR program to assur e that individuals with mental illness are not in appropriately placed in nursing homes, failing to assure that individuals with mental illness receive community-based treatment, and failing to assure appropriate mental health treatment in nursing hom es, defendants utilize criteria or m ethods of administration that defeat or substantially impair the o bjectives of the PASRR program , thereby violating the ADA and Rehabilitation Act.
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237. Joseph S., Steven W ., and each of the c onstituents is harm ed by defendants’ utilizing criteria or methods of administration that defeat or substantially impair the objectives of the PASRR program. WHEREFORE, Plaintiffs pray for the following relief
a. A Declaration that d efendants have violated the Americans with Disabilities Act, and the Rehabilitation A ct by administering programs and providing services for individuals with mental illness in nursing homes rather than in the most integrated setting appropriate to their needs;
b. A Declaration that defendants have violated the Nursing Home Reform Act by: i. Failing to develop and implem ent a PASRR program which prevents the admission to nursing hom es of indivi duals with mental illness whose physical and mental conditions d o not require the level of services provided by a nursing home; ii. Failing to develop and im plement a PASRR program which makes an independent evaluation of whether an ind ividual with m ental illness proposed for adm ission to a nu rsing home can receive community-based treatment rather than treatment in a nursing home;
iii. Failing to develop and im plement a PASRR program which makes an independent evaluation of whether the nursing facility to which a n individual with m ental illness is proposed for ad mission is capable of providing needed treatment;
iv. Failing to develop and im plement a PASRR program which gives adequate notice of a PASRR decision to the individual with mental illness
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by providing the individual with a c opy of the independent reviewer’s evaluation report; v. Failing to conduct a resident review of individuals with mental illness in a nursing home who have a significant change in condition; and vi. Failing to provide services in the co mmunity to those pe rsons who would have been identified as suitable for community care outside a nursing home, had the defendants conducted preadmission screens and resident reviews as required by the NHRA. c. A Declaration that d efendants have violated the Americans with Disabilities Act, and the Rehabilitation A ct by utilizing crit eria or methods of administration that defeat or substantially impair the objectives of the PASRR program; d. An Order requiring defendants to adm inister programs and provide services for individuals with mental illness residing in nursing hom es in the m ost integrated setting appropriate to their needs; e. An Order requiring defendants to: i. Develop and implement an effective plan for providing care and treatm ent in the most integrated setting appropriate to the needs of those individuals with mental illness who are in nursing homes, who are qualified to receive mental health services in more integrated settings, and who do not oppose receiving mental health services in a more integrated setting. ii. Promptly identify, expand, develop and make available sufficient community-based care and treat ment opportunities, including O MH community housing, to ensure that th e most-integrated appropriate care
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and treatment is provided without undue delay to those qualified individuals who desire it; f. An Order requiring defendants to: i. Operate a PASRR program which will identify whether individuals with mental illness proposed for admission to a nursing home require the level of services provided by a nursing f acility and disapprove their adm ission to a nursing facility if they do not, as required by the NHRA; ii. Operate a PASRR program which will dete rmine whether an individu al with mental illness proposed for admission to a nurs ing home could receive community-based treatment, and, if so, disapprove their admission to a nursing facility as required by the NHRA; iii. Operate a PASRR program which will determine whether the nursing facility to which an individual with m ental illness is proposed for admission is capable of providing needed treatment and, if not, disapprove their admission to the nursing facility as required by the NHRA; iv. Operate a PASRR program which will provide adequate notice of PASRR decisions, including providing a copy of the independent evaluation report to the individual or resident and his or her legal representative; v. Operate a P ASRR program which will conduct a residen t review of all individuals with m ental illness in a nursing h ome who experien ce a significant change in condition vi. Conduct a resident review of every nursing home resident with m ental illness who has never re ceived a lawful preadmission screen or a lawf ul
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resident review determ ination, based upon an independent evaluation regarding whether the nursing home resident can presently receive needed treatment in a comm unity setting and whether the nurs ing facility is capable of providing needed treatm ent, and take the actions required by the NHRA after such a review; and vii. Conduct a resident review of every nursing home resident with m ental illness who has experienced a s ignificant change of condition since admission and was not provided with a lawful resident review, based upon an independent evaluation of whet her the nursing home resident can presently receive needed treatment in a community setting and whether the nursing facility is capa ble of providing needed treatment, and take the actions required by the NHRA after such a review. g. An Order requiring defendants to utilize crit eria or methods of administration in their PASRR program that do not defeat or substantially impair the objectives of the PASRR program; h. An award of prevailing party costs, disbursements, and attorney fees; and i. Such other relief as the Court deems appropriate.
Dated: New York, New York March 5, 2007 SCHIFF HARDIN LLP By: ____________/s/__________________
Beth D. Jacob (BJ-6415) Lori D. Greendorfer (LG-0064) 900 Third Avenue, 24th Floor New York, New York 10022 (212) 753-5000
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DISABILITY ADVOCATES, INC. Cliff Zucker (CZ-2254) Roger A. Bearden (RB-9491) Amy Lowenstein (AL-6119) 5 Clinton Square, 3rd Floor Albany, NY 12207 (518) 432-7861 NEW YORK LAWYERS FOR THE PUBLIC INTEREST Marianne Engelman-Lado (ML-6749) Sandra DelValle (SD-1700) 151 West 30th Street, 11th Floor New York, NY 10001-4007 (212) 244-4664 MENTAL HYGIENE LEGAL SERVICE, SECOND JUDICIAL DEPARTMENT Dennis B. Feld (DF-2803) Lisa Volpe (LV-7953) 170 Old Country Road Mineola, NY 11501 (516) 746-4373
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 Case 2:06-cv-01042-BMC-SMG Document 93 Filed 04/21/08 Page 1 of 60 PageID #: 1570

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

JOSEPH S. and STEVEN W.; DISABILITY

:

ADVOCATES, INC.; and SIDNEY

:

HIRSCHFELD, Director, Mental Hygiene Legal :

Service, Second Judicial Department,

:

:

Plaintiffs,

:

:

-against-

:

:

MICHAEL F. HOGAN, in his official

:

capacity as Commissioner of the New York State :

Office of Mental Health; THE NEW YORK

:

STATE OFFICE OF MENTAL HEALTH;

:

RICHARD F. DAINES, in his official capacity :

as Commissioner of the New York State

:

Department of Health; THE NEW YORK STATE :

DEPARTMENT OF HEALTH; and DAVID A. :

PATERSON, in his official capacity as Governor of :

the State of New York,

:

:

Defendants.

:

---------------------------------------------------------------x

GOLD, S., United States Magistrate Judge:

REPORT and RECOMMENDATION 06-CV-1042 (BMC)

INTRODUCTION

This case concerns New York state’s obligation to provide mental health services and

treatment to individuals with mental illness in the most integrated setting appropriate to their

individual needs. Approximately 400,000 adults are served by New York state’s public mental health system.1 These individuals are treated in hospitals, residential facilities, outpatient clinics,

and other community-based treatment settings. Finding the proper placement within the

spectrum of services available for an individual with mental illness is no doubt often a difficult

1 The OMH Ctr. for Performance Evaluation and Outcomes Mgmt., Progress Report on New York State’s Public Mental Health System 3 (Jan. 2001), available at http://www.omh.state.ny.us/omhweb/progressreport/PrgRptLR.pdf.

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and complex problem. According to plaintiffs, hundreds, and perhaps thousands, of individuals with mental illness are residing in nursing homes who could be residing and receiving treatment in less restrictive, community-based programs.
Plaintiffs have filed a second amended complaint asserting claims pursuant to three federal statutes on behalf of individuals with mental illness residing in nursing homes: Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, 12132; Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794; and the Federal Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r.2 Generally, the ADA and Section 504 prohibit discrimination against individuals with disabilities, including individuals with mental illness. The ADA was passed, in part, to combat discrimination against individuals with disabilities, including discrimination in the form of unnecessary segregation of those with disabilities in nursing homes and other institutions. See Kathleen S. v. Dep’t of Pub. Welfare of Pa., 10 F. Supp. 2d 460, 468 (E.D. Pa. 1998) (citing 134 Cong. Rec. 9384 (1988)). The federal regulations implementing both the ADA and Section 504 have specific provisions, referred to as “integration” regulations or mandates, that require public entities to treat individuals with disabilities in the “most integrated setting appropriate to the[ir] needs.” 28 C.F.R. §§ 35.130(d), 41.51(d). In Olmstead v. Zimring, 527 U.S. 581, 119 S. Ct. 2176 (1999), the Supreme Court held that these integration mandates require a state to provide services to individuals in community settings rather than institutions whenever the relevant professionals conclude that the services required by the individual may
2 Section 504 was enacted in 1973. Congress passed the NHRA as part of the Omnibus Budget Reconciliation Act of 1987. To redress deficiencies with Section 504, the ADA was enacted in 1990. See Helen L. v. DiDario, 46 F.3d 325, 330-33 (3d Cir. 1995) (discussing the history of Section 504 and the ADA). As discussed infra, claims under the ADA and Section 504 are often alleged and analyzed in tandem.
2

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appropriately be rendered in a community setting, unless the expense involved would fundamentally alter the state’s overall services and programs.
The NHRA was passed specifically to end the practice of inappropriately institutionalizing individuals with mental illness or mental retardation in nursing homes. The NHRA imposes stringent procedures that states and nursing homes must follow before and after an individual with mental illness or mental retardation is admitted to a nursing home.
Defendants move to dismiss the complaint on various grounds pursuant to Federal Rule of Civil Procedure 12(b). For the reasons and with the limited exception stated below, I respectfully recommend that defendants’ motion be denied.
PROCEDURAL HISTORY On March 8, 2006, Disability Advocates, Inc. (“DAI”) and Sidney Hirschfeld, Director of Mental Hygiene Legal Service, Second Judicial Department (“MHLS”), together with individual plaintiffs, filed a complaint against Sharon E. Carpinello, in her official capacity as Commissioner of the New York State Office of Mental Health, the New York State Office of Mental Health (“OMH”), Antonia C. Novello, in her official capacity as Commissioner of the New York State Department of Health, the New York State Department of Health (“DOH”), and George Pataki, in his official capacity as Governor of the State of New York.3 On June 29, 2007, defendants requested a pre-motion conference with respect to their anticipated motion to dismiss. The Honorable Brian M. Cogan then referred the motion to me for a report and recommendation. During a conference held on July 10, 2007, I granted plaintiffs an opportunity to file an amended
3 In the original complaint, there were seven named individual plaintiffs: Edwin T., Bradley W., Omar W., Carlos S., Justina F., Lisa H., and Joseph S.
3

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complaint that might address some of the deficiencies identified by the defendants prior to the filing of any motions. On July 24, 2007, DAI and MHLS, together with three individual plaintiffs – Edwin T., Joseph S., and Steven W. – filed their amended complaint against Michael F. Hogan, who replaced Sharon Carpinello as Commissioner of OMH, Richard F. Daines, who replaced Antonia Novello as Commissioner of DOH, and Eliot Spitzer, who replaced George Pataki as Governor, as well as against two state agencies, OMH and DOH. Defendants filed their motion to dismiss the amended complaint on September 18, 2007.
I heard argument on defendants’ motion on February 21, 2008. During the oral argument, I granted plaintiffs an opportunity to amend their complaint again to address defendants’ contentions, including the argument that some claims lacked sufficient specificity. Plaintiffs filed a Second Amended Complaint (“Sec. Am. Compl.”), together with a post-hearing letter (“Pl. Letter”), on March 5, 2008, Docket Entry 89, and defendants filed a response (“Def. Letter”) on March 12, 2008, Docket Entry 91.4
OVERVIEW As noted above, plaintiffs bring this action on behalf of individuals with mental illness who have been or will be unlawfully discharged from psychiatric hospitals and hospital psychiatric wards to nursing homes, and seek declaratory and injunctive relief on their behalf. According to plaintiffs, New York State’s flawed mental health system has the effect of warehousing individuals with mental illness in nursing homes in violation of federal laws.
4 In the second amended complaint, Edwin T. is no longer named as a plaintiff. In addition, Eliot Spitzer was named in his official capacity as governor of New York. On March 17, 2008, however, David A. Paterson replaced Eliot Spitzer as governor of New York. Accordingly, pursuant to Federal Rule of Civil Procedure 25(d), Paterson is substituted as a defendant in this action in place of Spitzer.
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Plaintiffs allege that New York State has failed to provide these individuals with programs and services in the most integrated setting appropriate to their needs. Moreover, plaintiffs contend that, once placed in the nursing homes, individuals do not receive the rehabilitative services or mental health treatment they need, and therefore are unable to transfer to community-based treatment programs. Essentially, plaintiffs argue that thousands of New York residents with mental illness are languishing for years in nursing homes, some of them outside of New York State or far away from family members, on locked wards or otherwise unable to leave the facility, without receiving the mental health treatment they need and despite the fact that they do not require a nursing home’s level of care. Plaintiffs allege that these nursing homes have become de facto psychiatric hospitals, but without the psychiatric services that a hospital setting provides.
The state, and more specifically, OMH and DOH, are required by state law to care for and treat individuals with mental illness. The NHRA’s Preadmission Screening and Resident Review (“PASRR”) process imposes additional responsibilities on the defendants.
Pursuant to New York Mental Hygiene Law, The state of New York and its local governments have a responsibility . . . for the comprehensively planned care, treatment and rehabilitation of their mentally ill citizens. Therefore, 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 include, whenever possible, the provision of necessary treatment services to people in their home communities; it should assure the adequacy and appropriateness of residential arrangements for people in need of service; and it should rely upon improved programs of institutional care only when necessary and appropriate.
N.Y. MENTAL HYG. LAW § 7.01. To implement these policies and goals, the legislature established OMH, and charged it with responsibility for “develop[ing] an effective, integrated
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comprehensive system for the delivery of all services to the mentally ill . . . .” Id. See also id. § 7.07. As the state agency responsible for developing and implementing New York’s mental health policies and programs, OMH operates inpatient psychiatric hospitals and licenses and funds psychiatric wards of hospitals licensed pursuant to Article 28 of the New York Public Health Law (“Article 28 hospitals”). Sec. Am. Compl. ¶ 48.
DOH operates New York’s Medicaid program. In that capacity, DOH provides payment for individuals with mental illness living in nursing homes and is responsible for ensuring compliance with the NHRA. Id. ¶¶ 56, 57. DOH is also the state agency in charge of licensing, supervising, and enforcing laws applicable to nursing homes and Article 28 hospitals. Id. ¶¶ 58, 59.
At its most basic level, the NHRA requires that states accepting federal Medicaid funds have a screening plan, specifically a PASRR plan, to ensure that decisions to place individuals in nursing facilities are made appropriately. 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. § 483.104. Level I of the PASRR program requires that the State “identify all individuals who are suspected of having [mental illness]” and who are being referred to a nursing home. 42 C.F.R. § 483.128(a). PASSR “Level II is the function of evaluating and determining whether [nursing facility] services and specialized services are needed.” Id.
When an individual with mental illness is hospitalized, either in a psychiatric hospital or in a psychiatric ward of an Article 28 hospital, there may come a time when his treatment team determines that he is ready to be discharged to a less restrictive setting. At that time, a discharge service plan is prepared by a staff member on his treatment team. See N.Y. MENTAL HYG. LAW § 29.15 (regulating discharge planning). If the team concludes that he should be discharged to a
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nursing home, the state must be notified of that determination. The NHRA and its implementing regulations obligate the applicable state agency, here defendant OMH, to assess whether the patient in fact requires the level of services provided by a nursing home before he or she may be placed there. See 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. §§ 483.106(d)(1), 483.112(a), 483.132(d). Although OMH’s determination must be “based on an independent physical and mental evaluation performed by a person or entity” other than OMH, OMH is ultimately responsible for the PASRR determination that an individual requires a nursing home level of care.5 42 C.F.R. § 483.106(d)(1); see also id. §§ 483.106(e)(3), 483.112(a), 483.132(d). In addition, OMH’s Level II PASRR determination must include whether an individual also needs specialized services for mental illness, id. §§ 483.106(d)(1), 483.112(b), and if so, the state must ensure that the required services are provided, id. § 483.126. Finally, a nursing home must notify OMH if there has been a “significant change” in an individual’s mental or physical condition. 42 U.S.C. § 1396r(e)(7)(B)(iii). Once notified, OMH must review and determine whether the individual still requires nursing level of services. Id.
STANDARDS GOVERNING A MOTION TO DISMISS Defendants move to dismiss the various claims in the complaint on the following seven grounds: 1) that the plaintiffs fail to allege a prima facie claim of discrimination sufficient to state causes of action for violations of the ADA and Section 504; 2) that the NHRA does not confer a right of action enforceable through § 1983, and that even if the court concludes that it
5 Once admitted to a nursing home, the nursing home must conduct resident assessments within fourteen days of admission, at least every year, and after a significant change in an individual’s physical or mental condition. 42 U.S.C. § 1396r(b)(3)(C)(i). In addition, a nursing home must conduct informal resident reviews every three months. Id. § 1396r(b)(3)(C)(ii).
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does, plaintiffs’ complaint is vague and conclusory and fails to meet the requirements of Federal Rule of Civil Procedure 8; 3) that DAI and MHLS lack associational standing to bring these claims; 4) that the governor is not properly named as a defendant; 5) that the complaint fails to allege the necessary causal connection between plaintiffs’ injuries and defendants’ actions and therefore the individual plaintiffs lack standing; 6) that the complaint fails to name necessary parties; and 7) that certain claims are outside the statute of limitations period.
The Federal Rules of Civil Procedure require only that a complaint set out a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8. Motions to dismiss address the sufficiency of plaintiffs’ complaint, not the sufficiency of plaintiffs’ evidence, and a court deciding a motion to dismiss must accept all allegations in the complaint as true and draw all inferences in favor of the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
For many years, courts construing Rule 12 motions applied the rule set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957), that a complaint should be dismissed only if “it appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief.” Last year, however, the Supreme Court abandoned the Conley “no set of facts” language and instead adopted a “plausibility standard.” Bell Atlantic Corp. v. Twombly, _ U.S. _, _, 127 S. Ct. 1955, 1968-69 (2007). That is, a complaint should allege “enough fact to raise a reasonable expectation that discovery will reveal evidence” to support the plaintiffs’ claims. Id. at 1965. The Second Circuit has interpreted the Court’s Twombly decision “not [as] requiring a universal standard of heightened fact pleading, but . . . instead [as] requiring a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim
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with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). “Once a claim has been adequately stated, [however,] it may be supported by showing any set of facts consistent with the allegations in the complaint.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Thus, some amount of factual detail is now required to survive a Rule 12(b)(6) motion to dismiss. On the one hand, a complaint comprised only of “labels and conclusions, and a formulaic recitation of the elements of a cause of action” is insufficient; on the other hand, a complaint should not be dismissed so long as plaintiffs provided sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, _ U.S. at _, 127 S. Ct. at 1965.
DISCUSSION 1. Failure to State ADA and Section 504 Claims
Defendants first contend that plaintiffs’ complaint fails to state ADA and Section 504 claims. Defendants argue that plaintiffs’ complaint does not identify obligations that defendants have but do not meet.
a. The ADA and Section 504 of the Rehabilitation Act Congress enacted the ADA after finding 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). Accordingly, Title II of the ADA 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,
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or be subjected to discrimination by any such entity.” Id. § 12132. Section 504 of the Rehabilitation Act has a similar provision.6 See 29 U.S.C. § 794(a). Claims under the two
statutes are treated identically unless – unlike here – one of the minor differences in the two
disability acts is pertinent to a claim. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.
2003).
The Second Circuit has stated that
In order to establish a violation under the ADA, the plaintiffs must demonstrate that (1) they are “qualified individuals” with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs’ disabilities.
Id. at 272. To establish a violation of Section 504, plaintiffs bear the additional burden of
showing that defendants receive federal funding. Id. Plaintiffs have sufficiently alleged all of
these elements and therefore have adequately pled claims under the ADA and Section 504. See
Sec. Am. Compl. ¶¶ 187-96 (ADA violation); id. ¶¶ 199-209 (Section 504 violation).
Plaintiffs bring their ADA and Section 504 claims alleging violations of the statutes’
“integration mandates” issued by the United States Attorney General. The ADA directs the
Attorney General to promulgate implementing regulations. 42 U.S.C. § 12134(a). Pursuant to
6 Section 504 provides: 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a). 10

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that authority, the Attorney General has issued an “integration regulation” or “integration mandate,” to combat the historical segregation and isolation of those with mental illness. It provides as follows: “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).7 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. Messier v. Southbury Training Sch., 1999 WL 20910, at *9 (D. Conn. Jan. 5, 1999) (quoting 35 C.F.R. Pt. 35, App. A at 450).
[P]laintiffs may establish a prima facie violation of 28 C.F.R. § 35.130(d) by proving that [defendants] place certain residents [in a more restrictive setting than required], even though [those] exercising professional judgment have determined previously that the most integrated setting for those residents is a community placement. Id. at *10. In Olmstead v. Zimring, 527 U.S. 581, 119 S. Ct. 2176 (1999), the Supreme Court considered the scope of the ADA’s integration mandate: “Specifically, we confront the question whether the proscription of discrimination [in Title II of the ADA] may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes.” Olmstead, 527 U.S. at 587, 119 S. Ct. at 2181. The Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability,” id. at 597, 119 S. Ct. at 2185, noting that “Congress explicitly identified unjustified ‘segregation’ of persons
7 See also 28 C.F.R. § 41.519(d) (integration regulation pursuant to Section 504); 45 C.F.R. § 84.4(b)(2) (same). Agency regulations should be given substantial deference in interpreting a statute. See Olmstead, 527 U.S. at 597-98, 119 S. Ct. at 2185-86.
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with disabilities as a ‘for[m] of discrimination.’” Id. at 600, 119 S. Ct. at 2187 (quoting 42 U.S.C. §§ 12101(a)(2), 12101(a)(5)). Thus, unnecessary segregation of individuals with mental illness is discrimination per se and a violation of the ADA; no demonstration of differential treatment between individuals with mental illness and those without is required. See Helen L., 46 F.3d at 333, 335 (holding that evidence of discriminatory animus is not required to establish an ADA or Section 504 claim); Messier, 1999 WL 20910, at *9 (The ADA “prohibits states from providing services to individuals with disabilities in an unnecessarily segregated setting, even absent a showing of differential treatment between disabled and nondisabled persons.”).
Plaintiffs in Olmstead were psychiatric patients in a state hospital who remained institutionalized even after medical professionals determined that their needs could be met in community-based settings. The Court concluded that,
under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when 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, taking into account the resources available to the State and the needs of others with mental disabilities. Olmstead, 527 U.S. at 607, 119 S. Ct. at 2190. Thus, plaintiffs here may prevail if the complaint alleges, with sufficient factual detail to render their claims plausible, that individuals are placed in nursing facilities even though 1) a determination has been made that a particular individual’s needs may be met in a more integrated setting, 2) the individual consents to reside in a more integrated setting, and 3) the state can reasonably accommodate a placement in a more integrated setting. Defendants argue that Olmstead requires that the determination that an individual’s needs
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may be met in a more integrated setting must be made by a state mental health professional. Def. Mem. 22-23; Def. Letter.8 Defendants contend that, because the second amended complaint does not allege that any state mental health professional made any finding about any of the plaintiffs, it fails to state a claim under either the ADA or Section 504. However, the language from Olmstead concerning determinations by “the State’s treatment professionals,” 527 U.S. at 587, 607, 119 S. Ct. at 2181, 2190, appears to be based on the particular facts of that case and not central to the Court’s holding. Indeed, the determinations regarding community treatment for both of the named plaintiffs in Olmstead were made by their treating professionals, who also happened to be the state’s treatment professionals simply because the plaintiffs were institutionalized in a state facility. Id. at 593, 119 S. Ct. at 2183. Accordingly, I reject defendants’ argument that Olmstead requires that the state’s mental health professionals be the ones to determine that an individual’s needs may be met in a more integrated setting. See Fisher v. Ok. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (“[U]nder Olmstead and the applicable ADA regulations, when treatment professionals have determined that community placement is appropriate for disabled individuals, those individuals do not oppose the placement, and the provision of services would not constitute a ‘fundamental alteration,’ states are required to place those individuals in community settings rather than institutions.” ) (emphasis added); Messier, 1999 WL 20910, at *10 (implicitly acknowledging that the relevant determination may be made by treating professionals, who may or may not be employed by defendant state agencies); but see Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Oh. 2002) (“Martin 2002”)
8 “Def. Mem.” refers to the Memorandum of Law in Support of Defendants’ Motion to Dismiss the First Amended Complaint, submitted on September 18, 2007, Docket Entry 74.
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(requiring plaintiffs to plead “that the state’s professionals have determined the plaintiffs are qualified for community-based care, or by pleading facts from which it may be inferred that the determinations of the state’s professionals are manifestly unreasonable”). Moreover, 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. Cf. Fisher, 335 F.3d at 1181-82 (concluding that even those not currently institutionalized but only at risk of unjustified segregation may bring suit); Martin 2002, 222 F. Supp. 2d at 965 (“Olmstead’s central holding [is] that unnecessary institutionalization of persons with mental disabilities constitutes discrimination under the ADA.”).
b. Analysis of Plaintiffs’ ADA and Section 504 Claims Plaintiffs first allege that nursing homes are “highly-segregated institutions.” Id. ¶¶ 9395, 100-03, 117. Plaintiffs contend that individuals with mental illness in nursing homes “cannot leave without setting off alarms, and have little access to the outdoors, much less to the community outside the institution.” Id. ¶ 93. More specifically, plaintiffs allege that at two large nursing homes in New Jersey where New York residents with mental illness have been placed, “residents with mental illness [are] segregated from the other residents of the nursing home” because they reside on separate floors and are not allowed to leave their floors unless they have “special passes.” Id. ¶ 101. See also id. ¶ 117 (alleging that New York nursing homes similarly restrict movement within their facilities). Plaintiffs contend that Steven W., one of the named plaintiffs, “is unable to leave the facility unescorted and is unable to leave the floor without supervision. He wears a device on his wrist that triggers an alarm if he attempts to leave the
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floor or the facility without permission.” Id. ¶ 139. Plaintiffs further allege that many of the individuals with mental illness who are residing
in nursing homes do not require any nursing or medical care, and are eligible to receive treatment in more integrated community settings. Sec. Am. Compl. ¶¶ 6-8, 10-11, 41, 79-83, 86-87, 90, 92, 189. Defendants argue that, even if Olmstead does not require findings by a state’s treatment professionals, there must be some medical determination that an individual’s needs may be met in a less segregated setting before the integration mandate is violated. Def. Mem. 11. Although the complaint could be clearer, the allegations cited above are sufficient to suggest that there has been a professional determination that the clinical needs of these individuals may be met in an integrated, community-based setting. In fact, the complaint specifically alleges that a mental health professional evaluated Joseph S. and determined that his needs could be met in a more integrated setting. Sec. Am. Compl. ¶ 129. In addition, the complaint states that the named plaintiffs would consent to reside in a more integrated setting. Id. ¶¶ 28, 134, 140.
Plaintiffs’ allegations that individuals with mental illness are unnecessarily segregated in highly restrictive nursing homes, even though their needs could be met in a more integrated setting, and that these individuals desire to reside in a more integrated setting, are adequate to state violations of the ADA and Section 504 under Olmstead and meet Twombly’s plausibility standard. See Martin 2002, 222 F. Supp. 2d at 973; Messier, 1999 WL 20910, at *10; Cramer v. Chiles, 33 F. Supp. 2d 1342, 1353 (S.D. Fla. 1999) (“Institutionalization of individuals with developmental disabilities, against their will, where less confining programs will satisfy their
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needs, violates the Americans with Disabilities Act’s integration requirements.”).9 Accordingly, plaintiffs have sufficiently alleged that defendants fail to “administer [their] 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). Moreover, the allegations concerning the restrictions on freedom within the nursing homes amply state a claim for a violation of the integration mandate because these restrictions on an individual’s freedom prevent them from interacting with “nondisabled persons to the fullest extent possible.” 35 C.F.R. Pt. 35, App. A at 450; see also Messier, 1999 WL 20910, at *9.
Plaintiffs’ general allegations are supported by specific factual assertions with respect to the named plaintiffs. See ATSI Commc’ns, 493 F.3d at 98 (“Once a claim has been adequately stated, it may be supported by showing any set of facts consistent with the allegations in the complaint.”). Both named plaintiffs allege that they have a mental illness, but “no medical or mental condition that requires nursing home care.” Sec. Am. Compl. ¶ 27; see also id. ¶¶ 12829, 137. Moreover, both are “able to, qualified for, and would like to live in a more integrated setting” than the nursing homes where they reside. Id. ¶¶ 134, 140. See also id. ¶ 28. Specifically, plaintiff Joseph S. has resided in a New York nursing home since his discharge from a state psychiatric hospital in September, 2003. Id. ¶ 127. The hospital discharge plan for Joseph S. “did not contain a medical reason for nursing home placement.” Id. ¶ 128; see also id.
9 The cases cited by defendants in their memorandum and letter, Def. Mem. 21, 24-25, Def. Letter, are inapposite as they interpret the ADA’s reasonable accommodation and equal access requirements and not the integration mandate. See Henrietta D., 331 F.3d at 272-73; Rodriguez v. City of New York, 197 F.3d 611, 618-19 (2d Cir. 1999); Doe v. Pfrommer, 148 F.3d 73, 81-83 (2d Cir. 1998); Lincoln CERCPAC v. Health & Hosps. Corp., 147 F.3d 165, 167-68 (2d Cir. 1998); Leocata v. Wilson-Coker, 343 F. Supp. 2d 144, 155 (D. Conn. 2004).
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¶ 29. In addition, as noted above, Joseph S. was evaluated by an independent agency while in the nursing home and was determined not to require nursing level of care. Id. ¶ 129. Similarly, Steven W. was discharged in June, 2004 from a psychiatric ward of a New York state hospital to a nursing home, where he continues to reside today. Id. ¶¶ 135-36. His discharge plan also failed to state a medical reason for nursing home placement, although it did include a proposal for community reintegration.10 Id. ¶ 137; see also id. ¶ 30.
Defendants argue that, even if plaintiffs are entitled to receive services in a less segregated setting, the second amended complaint fails to allege how it is that defendants are responsible for plaintiffs having been placed in nursing home facilities. Def. Letter. Olmstead, however, made clear that “under Title II of the ADA, States are required to provide communitybased treatment for persons with mental disabilities” when appropriate and when other criteria are met. Olmstead, 527 U.S. at 607, 119 S. Ct. at 2190 (emphasis added). See also N.Y. MENTAL HYG. LAW § 7.01 (entrusting to OMH the statutory duty “to develop an effective, integrated comprehensive system for the delivery of all services to the mentally ill . . . .”); Sec. Am. Compl. ¶ 71 (“OMH must operate New York’s public mental health system in order to serve individuals with mental illness in the most integrated setting consistent with their clinical needs.”); id. ¶ 47.
Defendants also invoke the discussion in Olmstead that suggests that an entity may be excused from providing community-based treatment if it “can demonstrate that making the
10 I infer that the discharge treatment plan from the hospital included community reintegration because plaintiffs’ follow-up statement is that his treatment plan was changed, eliminating the community reintegration aspect of his prior plan, shortly after his arrival at the nursing home.
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modifications [necessary to offer such treatment] would fundamentally alter the nature of the service, program, or activity” of the entity, pursuant to 28 C.F.R. § 35.130(b)(7). Olmstead, 527 U.S. at 605-06, 119 S. Ct. at 2189. Defendants argue that the broad relief that plaintiffs seek here would require a fundamental alteration to the state’s mental health policies and practices. Def. Mem. 26. Nonetheless, it would be inappropriate to dismiss plaintiffs’ ADA and Section 504 claims for this reason at this stage of the litigation because defendants bear the burden of establishing “fundamental alteration” as a defense. See Olmstead, 527 U.S. at 604-06, 119 S. Ct. at 2189 (noting that a state has the burden of establishing a fundamental alteration defense); Radaszewski v. Maram, 383 F.3d 599, 614-15 (7th Cir. 2004) (holding that the cost-benefit analysis that must be undertaken to assess a fundamental alteration defense is not appropriately made at the pleading stage); Martin 2002, 222 F. Supp. 2d at 972 (“[W]hether [the] requested relief would entail a fundamental alteration is a question that cannot be answered in the context of a motion to dismiss.”).
For all these reasons, I conclude that plaintiffs’ complaint meets the requirements of Rule 8 and Twombly’s plausibility standard and sufficiently pleads ADA and Section 504 causes of action. 2. Section 1983 Right of Action under the NHRA
Plaintiffs’ claims under the NHRA, although not specifically invoking § 1983, see Sec. Am. Compl. ¶¶ 12, 163-181, 212-28, are brought pursuant to that statute. Sec. Am. Compl. ¶ 20; Pl. Mem. 24.11 Defendants contend that plaintiffs’ complaint fails to state a claim upon which
11 “Pl. Mem.” refers to Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the First Amended Complaint, submitted on November 16, 2007, Docket Entry 82.
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relief can be granted because the NHRA and its implementing regulations do not create federal rights enforceable through a § 1983 action.
a. Supreme Court Framework for § 1983 Analysis Under § 1983, an individual may obtain relief for a violation of constitutional or federal statutory rights. See Maine v. Thiboutot, 448 U.S. 1, 4-6, 100 S. Ct. 2502, 2504-05 (1980) (recognizing that § 1983 actions may be brought to enforce rights created by federal statutes in addition to constitutional rights). “In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359 (1997). Thus, if a plaintiff alleges a violation of a federal law as the basis of a § 1983 action, the court must determine whether the federal statute involved confers an individual right. Plaintiffs bear the burden of establishing that a statute gives rise to federal rights enforceable through § 1983. See Blessing, 520 U.S. at 342, 346, 117 S. Ct. at 1360, 1362; Williams v. U.S. Dep’t of Hous. & Urban Dev., 2006 WL 2546536, at *9 (E.D.N.Y. Sept. 1, 2006) (describing it as “axiomatic that ‘the plaintiff must demonstrate that’ the statute creates an individual right”) (quoting City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120, 125 S. Ct. 1453, 1458 (2005)). The Supreme Court has outlined a three-part test for determining whether a statute gives rise to a federal right:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.
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Blessing, 520 U.S. at 340-41, 117 S. Ct. at 1359 (citations omitted). Moreover, “[e]ven if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983 . . . . [D]ismissal is proper if Congress ‘specifically foreclosed a remedy under § 1983.’” Id. at 341, 117 S. Ct at 1360 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9, 104 S. Ct. 3457, 3464 (1984)).
Although the language used in Blessing suggests that the first prong of its test is satisfied if it is clear that the plaintiff is an intended beneficiary of the statute, the Supreme Court has since rejected this proposition and narrowed the scope of the first Blessing factor. In Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct 2268 (2002), the Court recognized that some courts had interpreted Blessing
as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action. Gonzaga, 536 U.S. at 283, 122 S. Ct. at 2275. The Court then explicitly rejected the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Accordingly, it is rights, not the broader or vaguer “benefits” or “interests,” that may be enforced under the authority of that section. Id. The Gonzaga Court held that, for a federal statute to confer an individual right enforceable under § 1983, it must include “explicit rights-creating” language “phrased in terms of the persons benefited.” Id. at 284, 122 S. Ct. at 2276 (internal quotation marks and citation omitted). As examples of “explicit rights-creating” language, the Court cited Title VI of the Civil Rights Act
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of 1964 and Title IX of the Education Amendments of 1972 because the statutes, each of which declares that “[n]o person” shall be subjected to discrimination, id. at 284 n.3, 122 S. Ct. at 2275-76 (quoting 42 U.S.C. § 2000d; 20 U.S.C. § 1681(a)), “are phrased ‘with an unmistakable focus on the benefited class,’” id. at 284, 122 S. Ct. at 2275-76 (citation omitted). In contrast, “[s]tatutes that focus on the [entity or] person regulated rather than the individuals protected create ‘no implication of an intention to confer rights on a particular class of persons.’” Alexander v. Sandoval, 532 U.S. 275, 289, 121 S. Ct. 1511, 1521 (2001) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 1779 (1981)). The Gonzaga Court concluded that the statute at issue there – the Family Educational Rights and Privacy Act (“FERPA”) – does not create individual rights because the provisions speak “only in terms of institutional policy and practice . . . [and] have an ‘aggregate’ focus[;] they are not concerned with ‘whether the needs of any particular person have been satisfied,’ and they cannot ‘give rise to individual rights.’” Gonzaga, 536 U.S. at 288, 122 S. Ct. at 2278 (quoting Blessing, 520 U.S. at 343-44, 117 S. Ct. at 1361).12
The Gonzaga Court did emphasize that funding statutes generally do not give rise to a § 1983 right of action. Id. at 280-81, 122 S. Ct. at 2273-74 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 28, 101 S. Ct. 1531, 1540, 1545 (1981)). The Court, however,
12 The relevant FERPA section, 20 U.S.C. § 1232g(b)(1), at issue in Gonzaga provides: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . ) of students without the written consent of their parents to any individual, agency, or organization.
Gonzaga, 536 U.S. at 279, 122 S. Ct. at 2273. 21

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expressly distinguished and did not overrule its holding in an earlier case, Wilder v. Virginia
Hospital Ass’n, 496 U.S. 498, 110 S. Ct. 2510 (1990). In Wilder, the Supreme Court held that a
private right of action existed under a provision of the Medicaid Act that uses language similar to that involved in this case.13 Citing Wilder with approval and referring to the statutory language at
issue there, the Gonzaga Court stated that “Congress left no doubt of its intent for private
enforcement . . . because the provision[, 42 U.S.C. § 1396a(a)(13)(A),] required States to pay an
‘objective’ monetary entitlement to individual health care providers, with no sufficient
administrative means of enforcing the requirement against States that failed to comply.”
Gonzaga, 536 U.S. at 280-281, 122 S. Ct. at 2274.
b. Pertinent Post-Gonzaga Case Law from Courts of Appeals
Several decisions from Courts of Appeals shed light on how to determine whether a
statutory provision confers an individual right post-Gonzaga. In particular, several courts have
13 The section at issue in Wilder provided a State plan for medical assistance must– . . . provide . . . for payment . . . of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State . . .) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services . . . and to assure that individuals eligible for medical assistance have reasonable access . . . to inpatient hospital services of adequate quality.
Wilder, 496 U.S. at 502-503, 110 S. Ct. at 2514 (quoting 42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V)).
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considered whether various provisions of the Medicaid Act, 42 U.S.C. §§ 1396 et seq., which includes the NHRA, confer enforceable rights.
One such post-Gonzaga case was decided by the Second Circuit. In Rabin v. WilsonCoker, 362 F.3d 190, 201-02 (2d Cir. 2004), plaintiffs were Medicaid recipients who sued under § 1983 based on 42 U.S.C. § 1396r-6 of the Medicaid Act. Section 1396-r essentially affords families receiving Medicaid with a grace period before losing their benefits when their income rises. The statute provides that
each State plan approved . . . must provide that each family which was receiving aid pursuant to a plan of the State . . . in at least 3 of the 6 months immediately preceding the month in which such family becomes ineligible for such aid . . . shall . . . remain eligible for assistance under the plan . . . during the immediately succeeding 6-month period . . . . 42 U.S.C. § 1396r-6. The Second Circuit’s analysis in Rabin included a detailed discussion of Gonzaga. The court pointed out that the statute at issue in Gonzaga was held to be “‘two steps removed from the interests of the individual students and parents’” because it “only forbade the government from funding schools that demonstrated a ‘policy or practice’ of disclosing student records.” Rabin, 362 F.3d at 201 (quoting Gonzaga, 536 U.S. at 287, 122 S. Ct. at 2277). Distinguishing the provision in Gonzaga, the Second Circuit found that § 1396r-6 “focuse[d] much more directly than d[id] the FERPA provision on the individual’s entitlement. In particular, it contains no qualifying language akin to FERPA’s ‘policy or practice.’” Id. The Second Circuit recognized that § 1396r-6 requires state plans to provide for families to continue receiving aid, “rather than directly requiring that all eligible persons receive the assistance.” Id. Nonetheless, the court rejected defendants’ argument that the statute as a result had an “aggregate” and
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administrative policy focus and concluded that “[b]ecause all of the language of Section 1396r-6 except the ‘plan requirements’ language, reflects Congress’s intention to confer a right to [assistance] upon persons who meet the various eligibility requirements, we find that Section 1396r-6 can support a Section 1983 claim.” Id. at 202. Cf. NextG Networks of N.Y., Inc. v. City of New York, 513 F.3d 49, 52-53 (2d Cir. 2008) (finding that a provision of the Telecommunications Act with respect to regulation of telecommunications providers did not create individual rights enforceable by providers where statute placed limitations on state and local governments and did not confer any benefit on providers);14 Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 150 (2d Cir. 2006) (A “statute[] which provides that a state or municipality may not ‘enact or enforce’ certain kinds of laws governing motor carriers of property, 49 U.S.C. § 14501(c)(1), is not ‘phrased in terms of the persons benefitted;’ . . . the statute focuses on the regulated actors . . . [and] has an aggregate, rather than an individual, focus.”).
Other circuits have also held that provisions of the Medicaid Act may give rise to rights enforceable in a § 1983 action. In Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004), the Third Circuit considered whether 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10), and 1396d(a)(15) conferred individual rights that could be enforced in a § 1983 action.15 The court reviewed the relevant
14 The section at issue provides: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” NextG Networks, 513 F.3d at 52 (quoting 47 U.S.C. § 253(a)).
15 Section 1396a(a)(8) provides: “A State plan for medical assistance must– . . . provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” Section 1396a(a)(10) provides in relevant part: “A State plan for
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Supreme Court precedent, including Gonzaga. The provisions at issue in Sabree required a state to provide reasonably prompt payment for certain services rendered on behalf of individuals with mental retardation in intermediate care facilities. Sabree, 367 F.3d at 182. The Third Circuit found the language of the Medicaid Act provisions – “A State plan must provide” – to be indistinguishable from the Titles VI and IX language – “No person shall” – that the Gonzaga Court concluded was explicit rights-creating language conferring an enforceable right. Id. at 190. Relying to some extent on Wilder, which had identical language and was found to confer individual rights, the Third Circuit held that the Medicaid provisions provided rights enforceable through § 1983. Id. at 192.
The First, Fourth, Fifth, and Ninth Circuits have all held that the same Medicaid provisions considered in Sabree confer individual rights. Bryson v. Shumway, 308 F.3d 79, 8889 (1st Cir. 2002) (holding that § 1396a(a)(8) creates an enforceable right); Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007) (same); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 603 (5th Cir. 2004) (holding that § 1396a(a)(10), even though phrased in terms of the requirements a state plan must meet, creates an enforceable right); Watson v. Weeks, 436 F.3d 1152, 1155 (9th Cir. 2006) (same). See also Michelle P. ex rel. Rayl v. Kan. Dep’t of Social & Rehab. Servs., 317 F. Supp. 2d 1233, 1249 (same). Courts of Appeals have also found that other Medicaid provisions confer individual rights. See Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007) (finding that the Medicaid Act’s free choice provisions, 42 U.S.C. §§ 1396n(c)(2)(C) and (d)(2)(C), confer individual rights); Harris v. Olszewski, 442 F.3d 456, 461-62 (6th Cir. 2006) (finding that
medical assistance must . . . provide . . . for making medical assistance available . . . to all [eligible] individuals . . . .”
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Medicaid’s freedom-of-choice provision, 42 U.S.C. § 1396a(a)(23), created individual rights enforceable through § 1983). In contrast, courts have almost unanimously held that the Equal Access provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), does not confer any rights.16 Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 704 (5th Cir. 2007) (“The Equal Access provision has a clearly aggregate and systemic focus that deals with institutional policy and procedures, rather than an individualized focus concerned with whether the needs of any particular person or class of recipients have been satisfied.”); Westside Mothers v. Olszewski, 454 F.3d 532, 542 (6th Cir. 2006) (collecting cases). See also Lankford v. Sherman, 451 F.3d 496, 509 (8th Cir. 2006) (finding that Medicaid’s reasonable-standards requirement, 42 U.S.C. § 1396a(a)(17), “focuses on the aggregate practices of the state” and therefore does not create individual rights).
Finally, and in the context of a different statutory scheme, the Fifth Circuit recently considered whether a provision of the United States Housing Act could be enforced in a § 1983 action. Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 360 (5th Cir. 2006), cert denied 127 S. Ct. 136 (2006). The statute at issue in Johnson referred to “famil[ies] receiving tenantbased assistance” and set forth the means for calculating “the monthly assistance payment for the family.” 42 U.S.C. §§ 1437f(o)(2)(A), (B). Recognizing the significance of Gonzaga, the Fifth
16 Section 1396a(a)(30)(A) states that A state plan for medical for medical assistance must . . . provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization . . . and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. 26

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Circuit noted that the Supreme Court’s “approach to § 1983 enforcement of federal statutes has been increasingly restrictive; in the end, very few statutes are held to confer rights enforceable under § 1983.” Id. at 360. Nevertheless, the court found that Congress unambiguously intended the Housing Act provision at issue to benefit families and thus to create an enforceable right. The Fifth Circuit cited a provision that provided for “the monthly assistance payment for a family receiving assistance,” and concluded that “[t]he statutory language could not be clearer.” Id. at 363 (first emphasis added). See also id. n.36 (“The text of the statute, in providing for “the monthly assistance payment for a family,” is undoubtedly “phrased in terms of the persons benefited.”) (citing Gonzaga, 536 U.S. at 284, 122 S. Ct. at 2276).
c. Analysis of the NHRA Plaintiffs argue that the NHRA creates federal rights enforceable under § 1983. More specifically, plaintiffs contend that defendants are responsible for implementing the NHRA’s Preadmission Screening and Resident Review (“PASRR”) provisions, 42 U.S.C. §§ 1396a(a)(28) and 1396r(e)(7), and the related PASRR regulations, 42 C.F.R. §§ 483.100 - 483.138, and that the defendants’ failure “to operate a PASRR system consistent with the NHRA” is a violation of plaintiffs’ federal rights. Sec. Am. Compl. ¶¶ 228; see also id. ¶¶ 212-27. Section 1396a(a)(28) provides that a state plan for medical assistance must ensure that nursing facilities comply with § 1396r(b) - (d), and that the state itself complies with § 1396r(e). Subsection (e) of § 1396r, titled “State requirements relating to nursing facility requirements,” has the following PASRR provision:
[T]he State must have in effect a preadmission screening program, for making determinations . . . for mentally ill . . . individuals . . . who are admitted to nursing facilities . . . . . . .
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[I]n the case of each resident of a nursing facility who is mentally ill, the State mental health authority must review and determine . . . whether or not the resident, because of the resident’s physical and mental condition, requires the level of services provided by a nursing facility . . . and whether or not the resident requires specialized services for mental illness.
42 U.S.C. §§ 1396r(e)(7)(A)(i) and (e)(7)(B)(i).
There is no question that plaintiffs meet the first Blessing factor as individuals “within the
general zone of interest that [§ 1396r] is intended to protect.” 520 U.S. at 340-41, 117 S. Ct. at
1359. Indeed, the Second Circuit in Concourse Rehabilitation & Nursing Center, Inc. v. Whalen,
249 F.3d 136 (2d Cir. 2001), specifically noted that Medicaid recipients were the intended
beneficiaries of § 1396r. In Concourse Rehabilitation, plaintiffs were nursing facilities suing the
State Department of Health after an audit revealed that the nursing facilities had been overpaid
under the state’s Medicaid program. Plaintiffs alleged violations of the federal Medicaid Act,
pursuant to § 1396a(a)(13)(A) and § 1396r, the latter being the provision at issue in this case.
The Second Circuit examined both provisions to determine whether they give rise to a § 1983
action and concluded, with respect to § 1396r, that it did not entitle nursing facilities to bring suit.17 The court held: “It is clear from the plain language of this provision[, § 1396r(b)(4)(A),]
that it was not ‘intend[ed] to benefit the putative plaintiff[s]’ – here the health care providers.
17 Section 1396r(b)(4)(A) “requires nursing facilities to ‘provide . . . specialized rehabilitative services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.’” Concourse Rehab., 249 F.3d at 143 (quoting 42 U.S.C. § 1396r(b)(4)(A)). Section 1396a(a)(13)(A) requires payment of nursing facility services “‘through the use of rates []determined in accordance with methods and standards developed by the state which . . . take into account the costs . . . of complying with [other] sections . . . .’” Id. at 140 (quoting 42 U.S.C. § 1396a(a)(13)(A) (1994)). The court held that the nursing facility could sue under § 1396a(a)(13)(A), relying on Wilder, 496 U.S. at 510, 110 S. Ct. at 2517-18, because this provision, in contrast to § 1396r(b)(4)(A), “is clearly intended to benefit health care providers.” Id. at 144.
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Rather, the provision is obviously intended to benefit Medicaid beneficiaries.” Concourse Rehabilitation, 249 F.3d at 143-44 (internal citation omitted). See also Bock Assocs. v. Chronister, 951 F. Supp. 969, 974 (D. Kan. 1996) (finding that a service provider was not “an intended beneficiary of the [PASRR] requirements[, which were] . . . intended to improve the quality of care for patients and to save money for the state and federal governments”).
As Gonzaga made clear, however, meeting Blessing’s “zone of interest” test is not enough; for plaintiffs’ NHRA claims to survive, they must satisfy Gonzaga’s stricter requirement that the statute contain, with respect to Medicaid nursing home residents, “explicit rights-creating terms,” Gonzaga, 536 U.S. at 284, 122 S. Ct. at 2276, “phrased with an unmistakable focus on the benefited class,” id., 122 S. Ct. at 2275 (internal quotation marks and citation omitted). The question is close because, while the intent of the NHRA is clearly to benefit individuals with mental illness, the PASRR provision, 42 U.S.C. § 1396r(e)(7), is phrased in terms of the requirements that states must meet to maintain federal funding.
Courts that have considered whether the NHRA may give rise to a § 1983 action by a Medicaid recipient have come to different conclusions. Compare Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003) (finding a private right of action under § 1396r); Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 387 n.5 (5th Cir. 2003) (assuming without deciding that a right of action exists under § 1396r(e)(7)(C)(i)(I) of the NHRA); Ottis v. Shalala, 862 F. Supp. 182, 187 (W.D. Mich. 1994) (finding nursing home resident had a private right of action under § 1396r); Martin v. Voinovich, 840 F. Supp. 1175, 1200-02 (S.D. Oh. 1993) (“Martin 1993”) (same), with Sparr v. Berks County, 2002 WL 1608243 (E.D. Pa. July 18, 2002) (finding no private right of action under § 1396r); Brogdon ex. rel. Cline v. Nat’l Healthcare Corp., 103 F.
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Supp. 2d 1322, 1330-32 (N.D. Ga. 2000) (no private right of action against nursing home). Most of these decisions, however, were rendered prior to the Supreme Court’s decision in 2002 in Gonzaga, which, as noted above, narrowed the scope of the first Blessing factor.
The only two post-Gonzaga NHRA decisions – Rolland and Sparr – curiously came to opposite conclusions as to whether § 1396r creates an enforceable right of action. Rolland barely mentions Gonzaga (the decision is noted twice in passing – once in footnote eight and again with respect to the question of whether the statute is “vague & amorphous”), and Sparr fails to cite Gonzaga at all. These cases thus fail to provide any useful guidance for determining whether § 1396r creates an enforceable right after Gonzaga.
Analyzing the PASRR provisions of the NHRA in light of Gonzaga, I conclude that they confer individual rights upon plaintiffs. Unlike the statutes in Gonzaga and Blessing, §§ 1396r(e)(7)(A) and (B) are directly concerned with “whether the needs of any particular person have been satisfied.” Blessing, 520 U.S. at 343, 117 S. Ct. at 1361, quoted in Gonzaga, 536 U.S. at 288, 122 S. Ct. at 2278. In Blessing, the Court pointed out that the statute at issue provided a “yardstick for the Secretary to measure the systemwide performance” of a state program. Id. at 343, 117 S. Ct. at 1361. Here, in contrast, the statute’s concern is whether each individual placed in a nursing home actually requires nursing care, and if so, what additional services the individual requires. 42 U.S.C. §§ 1396r(e)(7)(A)(i), (e)(7)(B)(i); see also id. § 1396r(b)(3)(F)(i) (outlining the requirements for the state’s determinations).
The NHRA provision requiring preadmission screening includes specific language referring to the persons benefited – “determinations . . . for mentally ill . . . individuals.” 42 U.S.C. § 1396r(e)(7)(A)(i); see also id. § 1396r(b)(3)(F)(i) (State must determine “prior to
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admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires specialized services for mental illness.”). The language in the provision requiring resident reviews uses language that is even more clearly “rights-creating” – “in the case of each resident of a nursing facility who is mentally ill . . . .” 42 U.S.C. § 1396r(e)(7)(B)(i). Although these provisions are phrased in terms of the responsibilities imposed upon a state, their plain purpose is to protect the rights of individuals.18 See Johnson, 442 F.3d at 360, 363 (finding a right of action by low-income families even though the provision at issue required payments be made to landlords as opposed to being made to the intended beneficiaries of the statute, low-income families). They are thus distinguishable from the FERPA provision that the Court found to be “two steps removed from the interests of individual students and parents,” Gonzaga, at 536 U.S. at 287, 122 S. Ct. at 2277, because it concerned policies and practices that must be in place to obtain federal funding. Here, the procedures required by PASRR directly impact the individual, in that they determine whether he or she will be placed in a nursing home and what services he or she will receive. Accordingly, § 1396r(e)(7) places “an unmistakeable focus on the benefited class” – individuals with mental illness who
18 In addition, the regulations implementing the NHRA, although by themselves not creating enforceable rights, offer strong support that the NHRA confers an individual right. 42 C.F.R. § 483.106(d)(1) (“The [PASRR] determinations of whether an individual requires the level of services provided by a [nursing facility] and whether specialized services are needed . . . must be made by the State mental health authority . . . .”) (emphasis added); id. §§ 483.112(a),(b) (“For each [nursing facility (“NF”)] applicant with [mental illness (“MI”)] . . ., the State mental health . . . authority . . . must determine . . . whether, because of the resident’s physical and mental condition, the individual requires the level of services provided by a NF [and] whether the individual requires specialized services for the mental illness .”); id. § 483.126 (“Placement of an individual with MI . . . in a NF may be considered appropriate only when . . . .”); id. § 483.132(a) (“For each applicant for admission to a NF and each NF resident with MI . . . .”).
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have been or will be placed in nursing homes. Gonzaga, 536 U.S. at 284, 122 S. Ct. at 2275. The statute’s requirements that individualized determinations be made, 42 U.S.C. §§ 1396r(e)(7)(A), 1396r(e)(7)(B), suggest that it was intended to create “an individual entitlement to services,” Gonzaga, 536 U.S. at 281, 122 S. Ct. at 2274 (contrasting the provision in Blessing which required a state to “substantially comply” with the Social Security Act’s requirements), and thus “give rise to individual rights,” id. at 288, 122 S. Ct. at 2278.
Finally, the fact that the statute is phrased in terms of requirements for a state plan does not foreclose a finding that the statute also includes individual rights-creating language.19 Several courts have concluded that the Medicaid provisions they confronted conferred individual rights despite phrasing that imposed requirements on participating state plans because it was clear that the provisions otherwise had an individualized focus. Wilder, 496 U.S. at 502-03, 110 S. Ct. at 2514; Rabin, 362 F.3d at 202; Harris, 442 F.3d at 461; Sabree, 367 F.3d at 182.20 In Rabin, the Second Circuit focused on § 1320a-2, which specifically states that a “provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan.” Rabin, 362 F.3d at 202 (quoting 42 U.S.C. § 1320a-2). Except for the “plan” language, the PASRR provisions at issue here similarly reflect an individual focus and are therefore properly read to confer individual rights.
19 Section 1396a(a)(28)(D)(i) states: “A State plan for medical assistance must provide for compliance . . . with the requirements of section 1396r(e) of this title . . . .”
20 The provisions in Wilder, Harris, and Sabree began: “A State plan for medical assistance must. . . .” Wilder, 496 U.S. at 502-503, 110 S. Ct. at 2514 (quoting 42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V)); Harris, 442 F.3d at 461 (quoting 42 U.S.C. § 1396a(a)(23)); Sabree, 367 F.3d at 182 n.4, 5 (quoting 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)). Similarly, the provision in Rabin stated that “each State plan . . . must provide. . . .” 362 F.3d at 201 (quoting 42 U.S.C. § 1396r-6(a)(1)).
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The legislative history leading to the enactment of the NHRA provides further compelling
evidence of Congressional intent to create an implied right of action.21 In Rolland, 318 F.3d at
45-47, the First Circuit examined the legislative history of the NHRA at length, and it bears
repeating here:
In 1987, Congress passed the NHRA, part of the Omnibus Budget Reconciliation Act, as a response to th[e] apparently widespread problem [of mentally ill and mentally retarded individuals being placed in nursing homes that were unable to provide the necessary and appropriate services and treatments]. The report from the House of Representatives began: “Substantial numbers of mentally retarded and mentally ill residents are inappropriately placed, at Medicaid expense, in [skilled nursing facilities] or [intermediate care facilities]. These residents often do not receive the active treatment or services that they need. A recent [Government Accounting Office] review of mentally retarded residents in [these facilities] in Connecticut, Massachusetts, and Rhode Island concluded that the active treatment needs of these individuals were generally not being identified or met.” The NHRA attempted to ensure that those placed in nursing homes actually needed nursing care and that once residing in a nursing home, individuals would receive the other kinds of treatment they needed. Towards that end, the NHRA established requirements for nursing homes in their care of mentally retarded [and mentally ill] residents, 42 U.S.C. § 1396r(b); instituted specific enumerated rights for residents, id. § 1396r(c); and required states to screen and provide services to mentally retarded [and mentally ill] residents, id. § 1396r(e).
Rolland, 318 F.3d at 46 (quoting H.R. Rep. No. 100-391, pt. 1, at 459, reprinted in 1987
U.S.C.C.A.N. 2313-279). With respect to individuals with mental illness, the population
21 I am mindful that the Court in Blessing cautioned that a court must consider specific statutory provisions as opposed to a statute as a whole in determining whether an enforceable right exists. 520 U.S. at 342-43, 117 S. Ct. at 1360. Nonetheless, courts often consider the legislative history of the entire statute in determining Congressional intent. See, e.g., Wilder, 496 U.S. at 516-17, 110 S. Ct. at 2521-22; Rabin, 362 F.3d at 196-97 (“[T]he interpretation given to the statute must be consistent with the congressional purpose for enacting it.” (citing Holloway v. U.S., 526 U.S. 1, 9, 119 S. Ct. 966, 970-71 (1999)).
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relevant to this case, the House Report further noted:
Testimony heard by the Subcommittee on Health and the Environment indicates that, in 1985, roughly 980,000 nursing home residents, about two-thirds of the nursing home population, had a primary or secondary diagnosis of mental disorder. Of the nursing home population under age 55, approximately 70 percent have a mental disorder diagnosis; for a number of these diagnoses, such as schizophrenia, depressive disorder, and anxiety disorders, active treatment in community settings can be appropriate. [Accordingly,] the Committee has adopted a two-step approach to end the inappropriate placement of mentally ill or mentally retarded individuals in nursing facilities.
H.R. Rep. No. 100-391, pt. 1, at 459. In concluding that § 1396r created a private right of action,
the First Circuit in Rolland found that
[t]he NHRA speaks largely in terms of the persons intended to be benefitted, nursing home residents . . . . The statute contains a laundry list of rights to be afforded residents and commands certain state and nursing home activities in order to ensure that residents receive necessary services. In short, after clearly identifying those it seeks to protect, the statute goes on to endow them with particular rights, utilizing “rights-creating” language.
Rolland, 318 F.3d at 53. See also Martin 1993, 840 F. Supp. at 1200 (finding that the PASRR
provisions created enforceable rights).
Defendants’ strongest argument is that the NHRA is a spending statute; as noted above,
the Supreme Court suggested in Gonzaga that spending statutes generally do not create
enforceable rights. Gonzaga, 536 U.S. at 280-81, 122 S. Ct. at 2273-74. Some courts have
found this argument persuasive. See Sparr, 2002 WL 1608243; Brogdon, 103 F. Supp. 2d 1322.
The Second Circuit, however, has not clearly decided whether funding statutes may confer
enforceable rights in light of Gonzaga. See Kapps v. Wing, 404 F.3d 105, 127 (2d Cir. 2005) (“In
the aftermath of the [Supreme] Court’s decision in Gonzaga University, our circuit has not yet
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[Low Income Home Energy Assistance Act].”) (comparing Taylor v. Vt. Dep’t of Ed., 313 F.3d 768, 786 (2d Cir. 2002) (finding that § 1232g(a) of the FERPA did not create an enforceable right) with Rabin, 362 F.3d at 202 (finding that § 1396r-6 of the Medicaid Act did create an enforceable right)).
I conclude that the fact that the NHRA is a spending statute does not preclude a finding that its provisions give rise to enforceable rights. True, the NHRA provides that a state is to be denied payment if it fails to make a PASRR determination or if an individual is not in need of the level of care that a nursing home provides. See 42 U.S.C. § 1396r(e)(7)(D). Nonetheless, the NHRA’s denial of payment is based on improper individual determinations and is thus distinguishable from a denial of funding under FERPA, the statute at issue in Gonzaga, which is triggered by a prohibited policy or practice. Compare NHRA, 42 U.S.C. §§ 1396r(e)(7)(D)(i), (ii) (“No payment may be made . . . with respect to nursing facility services furnished to an individual for whom a determination is required . . . but for whom the determination is not made[; or for] services furnished to an individual . . . who does not require the level of services provided by a nursing facility.”) with FERPA, 20 U.S.C. § 1232g(b)(1) (“No funds shall be made available . . . to any educational agency or institution which has a policy or practice of permitting the release of educational records” without consent.). Moreover, as discussed above, it is clear that the intended beneficiaries of the NHRA are mentally ill and mentally retarded individuals, and in particular those who have been inappropriately placed in nursing homes. For this reason in particular, the analyses in Rabin and Sabree, both of which held that the fact that the provisions at issue were part of the Medicaid Act, a spending statute, did not foreclose a finding that the provisions conferred individual rights enforceable through § 1983.
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benefit the NHRA was enacted, and that the NHRA creates a federal right that plaintiffs may enforce under § 1983. Accordingly, plaintiffs meet the first Blessing factor, as limited by Gonzaga. Moreover, there does not appear to be any dispute that the statute meets the remaining two Blessing factors – that the statute is not “vague and amorphous” and that it imposes binding obligations on the state. The statute mandates a clearly-defined process to be followed by the state before an individual with mental illness may be admitted to a nursing home and if an individual has a significant change in condition while in the facility. See 42 U.S.C. §§ 1396r(e)(7)(A)(i), (e)(7)(B)(i), (e)(7)(C)(iii); 42 C.F.R. §§ 483.104, 483.106, 483.112, 483.126, 483.128, 483.132. The PASRR regulations are precise, unambiguous, and mandatory.
Accordingly, the NHRA confers individual rights that are presumptively enforceable through § 1983, unless the administrative scheme of the NHRA manifests a Congressional intent to “specifically foreclose[] a remedy under § 1983.” Smith, 468 U.S. at 1005 n.9, 104 S. Ct. at 3464; see also Gonzaga, 536 U.S. at 284-85, 122 S. Ct. at 2276; Blessing, 520 U.S. at 341, 117 S. Ct. at 1360. “Congress may do so expressly . . . or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Blessing, 520 U.S. at 341, 117 S. Ct. at 1360. The Court in Blessing noted, however, that “[o]nly twice [had it] found a remedial scheme sufficiently comprehensive to supplant § 1983.” Id. at 347, 117 S. Ct. at 1362 (citing Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 101 S. Ct. 2615 (1981), and Smith, 468 U.S. 992, 104 S. Ct. 3457).
Defendants here argue that, because the NHRA provides for an appeal of a PASRR determination, and because a Medicaid recipient has a general right to administrative review, Congress intended to foreclose any remedy under § 1983. Def. Mem. 16-18 (citing 42 U.S.C.
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§ 1396r(e)(7)(F); 42 C.F.R. § 431.220).22 However, these review procedures have been held not to constitute a comprehensive remedial scheme sufficient to supplant § 1983. See Wilder, 496 U.S. at 521-22, 110 S. Ct. at 2524 (finding that Medicaid administrative scheme and appeals procedures do not foreclose a § 1983 action under the Medicaid Act); Harris, 442 F.3d at 463 (finding that Medicaid’s grant of an opportunity for a fair hearing is not inconsistent with a remedy under § 1983); Sabree, 367 F.3d at 193 (finding that the administrative hearing process under the Medicaid Act is insufficient to preclude a § 1983 action). “[A] court should ‘not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy.’” Sabree, 367 F.3d at 193 (quoting Golden State Transit Corp. v. City of Los Angelos, 493 U.S. 103, 107, 110 S. Ct. 444, 449 (1989)).
In addition, defendants contend that federal oversight of a state’s Medicaid plan indicates a Congressional intent to foreclose claims brought under § 1983. Def. Mem. 16-18 (citing 42 U.S.C. §§ 1396r(f), (g)). However, federal oversight of a state’s compliance with the NHRA and the federal government’s ability to terminate federal funds have similarly been held to be insufficient to preclude a § 1983 action. See Wilder, 496 U.S. at 521-22, 110 S. Ct. at 2524; Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 428, 107 S. Ct. 766, 773 (1987); Harris, 442 F.3d at 463.
Defendants’ final argument with respect to the NHRA is that the complaint “fails to set forth any facts whatsoever” to support plaintiffs’ NHRA claims. Def. Letter; see also Def. Mem.
22 The NHRA provides: “Each State, as a condition of approval of its plan . . ., must have in effect an appeals process for individuals adversely affected by [PASRR] determinations . . . .” 42 U.S.C. § 1396r(e)(7)(F). The Federal Regulations require that a state must grant a hearing to “[a]ny recipient who requests it because he or she believes the agency has taken an action erroneously” and to “any individual who requests it because he or she believes the State has made an erroneous [PASRR] determination.” 42 C.F.R. §§ 431.220(a)(2), (a)(4).
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27-31. However, as discussed above, plaintiffs are not required to set forth detailed facts in their complaint but rather only a “short and plain statement of the claim,” FED. R. CIV. P. 8, with sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, _ U.S. _, _, 127 S. Ct. at 1965. Plaintiffs’ complaint meets these minimal standards. The complaint provides ample notice to defendants of the violations of the NHRA that are the basis of plaintiffs’ claims. Plaintiffs specifically allege that defendants’ PASSR program does not include an independent evaluation prior to a nursing home admission, Sec. Am. Compl. ¶¶ 14, 29-30, 164-66, 182, 215-16, 221, that defendants fail to conduct resident reviews when notified by the nursing homes of significant changes in an individual’s condition, id. ¶¶ 18, 177-78, 218, that defendants fail to ensure that an appropriate, independent evaluation is made as part of the resident review process, id. ¶¶ 19, 179, 220, and that defendants fail to provide plaintiffs with copies of their evaluations and PASSR determinations, id. ¶¶ 174, 183, 217, 223.23
For all these reasons, defendants’ motion to dismiss plaintiffs’ claims under the NHRA should be denied. 3. Associational Standing
Plaintiffs DAI and MHLS bring this action on behalf of their constituents, including inter alia individuals with mental illness who reside in nursing homes and those at-risk of residing in a
23 Plaintiffs also allege that the nursing homes fail to notify defendants of significant changes of condition “due to defendants’ failure to develop a system to assure that nursing homes notify them when an individual with mental illness experiences a significant change of condition.” Sec. Am. Compl. ¶ 180. It is not clear whether this allegation would support a claim entitling plaintiffs to relief because the obligation to initiate the resident review process is on the nursing homes and the nursing homes are not defendants in this action. 42 U.S.C. § 1396r(e)(7)(B)(iii). Nonetheless, at this stage of the litigation, plaintiffs’ claim is sufficient, even though they might not ultimately be able to establish that defendants’ actions create a “system” in which the nursing homes’ inaction leads to liability against the state.
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nursing home in the future. DAI is a non-profit organization with statutory authority under the
Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. §§ 10801
et seq., to pursue legal recourse on behalf of New York state residents with mental illness
receiving care and treatment. Sec. Am. Compl. ¶ 31. Similarly, MHLS has statutory authority
pursuant to New York Mental Hygiene Law Article 47 to pursue legal action on behalf of
patients and residents of New York mental health facilities. Id. ¶ 32. DAI and MHLS seek to
bring claims on behalf of individuals with mental illness who have been or will be unlawfully
discharged from psychiatric hospitals and hospital psychiatric wards to nursing homes.24 Id.
¶¶ 40, 42-43.
In 1986, Congress enacted the PAIMI after finding that
individuals with mental illness are vulnerable to abuse and serious injury; . . . individuals with mental illness are subject to neglect, including lack of treatment, . . . health care, and adequate discharge planning; and State systems for monitoring compliance with respect to the rights of individuals with mental illness . . . are frequently inadequate.
42. U.S.C. § 10801(a). Accordingly, the purposes of PAIMI, relevant to this litigation, are
to ensure that the rights of the individuals with mental illness are protected; and to assist States to establish and operate a protection and advocacy 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 . . . .
24 The complaint appears to allege that DAI and MHLS also seek to bring claims on behalf of all individuals with mental illness who currently reside in nursing homes regardless of where they were prior to their nursing home admissions. See Sec. Am. Compl. ¶ 41. In their letter accompanying the second amended complaint, however, plaintiffs specifically state that their ADA and Section 504 claims “are made on behalf of current nursing home residents who w[ere] discharged to nursing homes from state psychiatric hospitals and Article 28 psychiatric wards.” Pl. Letter.
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Id. § 10801(b). To accomplish these purposes, PAIMI entitles agencies with statutory authority, such as DAI, to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness . . . .” Id. § 10805(a)(1)(B).
Independent of PAIMI but around the time of its enactment in 1986, MHLS was established pursuant to New York statute with a broad mandate to represent individuals receiving care and treatment in New York mental health facilities. MHLS has the following statutory responsibilities relevant to this action: “[t]o study and review the admission and retention of all patients or residents,” to provide legal services to its constituents “related to the admission, retention, and care and treatment” of patients or residents, and “to initiate and take any legal action deemed necessary to safeguard the right of any patient or resident to protection from abuse or mistreatment . . . .” N.Y. MENTAL HYG. LAW §§ 47.03(a), (c), (e). See also Bernstein v. Pataki, 233 Fed. Appx. 21, 24-25 (2d Cir. 2007) (summary order) (recognizing MHLS’s statutory authority to bring claims, citing N.Y. Mental Hygiene Law § 47.03); Shrader v. Granninger, 870 F.2d 874, 876 (2d Cir. 1989) (same); Ughetto v. Acrish, 130 A.D.2d 12, 21-23, 518 N.Y.S.2d 398, 404 (Sup. Ct. App. Div. 2d Dep’t 1987) (same); Hirschfeld v. Hogan, 18 Misc. 3d 531, 533, 848 N.Y.S.2d 507, 510 (N.Y. Sup. Ct., Nassau County, 2007) (same). Moreover, the New York Rules of Court impose a duty upon the director of MHLS to ensure that “all requirements of law as to patients’ admissions, treatment and discharge affecting patients’ rights have been complied with.” N.Y. COMP. CODES R. & REGS., tit. 22, §§ 622.2(a)(6)(ii), 694.2(a)(6)(ii), 823.2(a)(6)(ii), 1023.2(a)(6)(ii). See also Hirschfeld, 18 Misc. 3d at 533, 848 N.Y.S.2d at 510.
In Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434 (1977), the Supreme Court held that an association has standing to bring suit on behalf of its
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members if the following three criteria are met: “(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.” Hunt, 432 U.S. at 343, 97 S. Ct. at 2241. Defendants acknowledge the statutory authority granted to DAI and MHLS, and propose for purposes of the pending motion that the court assume that plaintiffs have satisfied Hunt’s first two prongs. Def. Mem. 33. Defendants argue, however, that because plaintiffs seek individualized relief and the individuals with mental illness whose rights are at stake must participate in the litigation, plaintiffs therefore fail Hunt’s third prong. Id. at 32.
In United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 116 S. Ct. 1529 (1996), the Supreme Court considered whether a statute may confer associational standing in abrogation of the Hunt test, and in particular its third prong. To answer that question, the Court considered whether all three Hunt prongs were constitutionally-based and therefore necessary. The Court concluded that Hunt’s third prong was “prudential,” and stated that
once an association has satisfied Hunt’s first and second prongs assuring adversarial vigor in pursuing a claim for which Article III standing exists, it is difficult to see a constitutional necessity for anything more. . . . Hence the third prong of the associational standing test is best seen as focusing on . . . administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution. Brown Group, 517 U.S. at 556-57, 116 S. Ct. at 1536. Accordingly, plaintiffs argue that they do not need to satisfy the “prudential” third prong of Hunt, given the organizations’ statutory authority to bring claims on behalf of their constituents. Pl. Mem. 34. Several courts have concluded that, in enacting PAIMI, Congress did explicitly grant
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associational standing to PAIMI organizations, thereby eliminating the need for plaintiffs to meet the third prong of Hunt. Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1113 (9th Cir. 2003) (holding that, “in light of the role Congress assigned by statute to advocacy organizations . . . Congress abrogated the third prong of the Hunt test”); N.J. Prot. & Advocacy, Inc. v. Davy, 2005 WL 2416962, at *2 (D.N.J. Sept. 30, 2005) (noting that defendant did not contest that Congress’s grant of associational standing pursuant to PAIMI eliminated the need for an organizational plaintiff to meet Hunt’s third requirement); Univ. Legal Servs., Inc. v. St. Elizabeths Hosp., 2005 WL 3275915, at *4 (D.D.C. July 22, 2005); Unzueta v. Schalansky, 2002 WL 1334854, at *3 (D. Kan. May 23, 2002).
As discussed above, both Congress and the New York legislature clearly intended to confer standing on DAI and MHLS to bring lawsuits to protect the rights of individuals with mental illness in New York. In light of their statutory mandates, I conclude that DAI and MHLS have associational standing to pursue claims on behalf of their constituents in this action wihtout regard to whether they meet Hunt’s third prong. See Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condominium, 458 F. Supp. 2d 160, 171-72 (S.D.N.Y. 2006) (noting that Hunt’s third prong is prudential and finding that organization met associational standing test).
Even if plaintiffs were required to satisfy the third prong, I would conclude that the claims plaintiffs assert and the relief they seek are not so individualized as to defeat associational standing. Plaintiffs’ complaint seeks only declaratory and injunctive relief. Generally, where plaintiffs seek injunctive relief, the third prong of the Hunt test is presumed to be satisfied. See Bernstein, 2007 WL 1113263, at *2, 233 Fed. Appx. at 24-25 (summary order) (“‘If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those
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members of the association actually injured.’”) (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct. 2197, 2213 (1975)); Sherwin-Williams Co. v. Spitzer, 2005 WL 2128938, at *8 (N.D.N.Y. Aug. 24, 2005). However, an association does not necessarily satisfy Hunt’s third prong merely because it seeks only equitable relief; an “organization lacks standing to assert claims of injunctive relief on behalf of its members 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, 714 (2d Cir. 2004) (quoting Warth, 422 U.S. at 515-16, 95 S. Ct. at 2214, and Hunt, 432 U.S. at 343, 97 S. Ct. at 2441).
In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Brock, 477 U.S. 274, 288, 106 S. Ct. 2523, 2532 (1986), the union (“UAW”) and some of its members challenged the Secretary of Labor’s application of a statute that provided benefits to workers laid off due to competition from imports. The defendant challenged UAW’s standing on grounds that the union itself suffered no injury but rather brought suit solely as a representative of those of its members injured by defendant’s interpretation of the statute. Brock, 477 U.S. at 281, 106 S. Ct. at 2528. More specifically, defendant contended that, to grant the relief sought, the district court would be required “to consider the individual circumstances” of each aggrieved UAW worker. Id. at 287, 106 S. Ct. at 2531. The Supreme Court rejected this argument and held that, “though the unique facts of each UAW member’s claim will have to be considered by the proper state authorities before any member will be able to receive the benefits allegedly due him, the UAW can litigate this case without the participation of those individual claimants and still ensure that ‘the remedy, if granted, will inure to the benefit of those members of the association actually injured.’” Id. at 288, 106 S. Ct. at 2532 (quoting
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Warth, 422 U.S. at 515, 95 S. Ct. at 2213). See also Bano, 361 F.3d at 714 (recognizing that “where the organization seeks a purely legal ruling without requesting that the federal court award individualized relief to its members, the Hunt test may be satisfied”).
As in Brock, associational standing is not defeated here by virtue of the individualized relief sought. The claims asserted by plaintiffs may be resolved by answering common questions of law without individualized proof, even though defendants may need to undertake individualized assessments if the court grants plaintiffs the relief they seek. See Rolland v. Cellucci, 52 F. Supp. 2d 231, 242 (D. Mass. 1999) (“While each class member may require an individual needs assessment were relief granted [for alleged violations of the ADA and NHRA], this is not a claim which requires individualized proof as to the claimed violations or compliance with the various statutes at issue.”). Plaintiffs’ claims here would not require “individualized proof” or participation. Plaintiffs do not contend that any individual plaintiff (other than the two named plaintiffs) is entitled to a court order placing him or her in a community-based treatment program; rather, they allege that defendants have discriminatory policies and practices that unnecessarily place individuals with mental illness in nursing homes as a matter of routine, and without first conducting legally required assessments. Thus, the focus of plaintiffs’ proof will be on defendants’ actions. Moreover, the fact that participation by some individuals may be required – for example, to demonstrate the general manner in which defendants fail to ensure that individuals discharged from psychiatric wards or hospitals are properly screened before they are placed in nursing homes – is not fatal to associational standing. See Warth, 422 U.S. at 511, 95 S. Ct. at 2212 (“[S]o long as . . . individual participation of each injured party” is not necessary, “the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.”) (emphasis added). In this respect, this case resembles Hospital Council of
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Western Pennsylvania v. City of Pittsburgh, 949 F.2d 83 (3d Cir. 1991), in which the court, citing
Warth, concluded as follows:
Here, the claims asserted by the Council would require some participation by some Council members. This case, unlike many prior associational standing cases, does not involve a challenge to a statute, regulation, or ordinance, but instead involves a challenge to alleged practices that would probably have to be proven by evidence regarding the manner in which the defendants treated individual member hospitals. Adjudication of such claims would likely require that member hospitals provide discovery, and trial testimony by officers and employees of member hospitals might be needed as well. Nevertheless, since participation by “each [allegedly] injured party” would not be necessary, we see no ground for denying associational standing.
Hosp. Council, 949 F.2d at 89-90 (alteration in original).
Although the injunctive relief that plaintiffs seek would, if granted, require individualized
evaluations of whether persons with mental illness could appropriately receive care and treatment
in a setting more integrated than a nursing home, these individualized assessments would be
completed by defendants, not the court. The concern with individualized assessments in Hunt
and Bano was focused on a court’s undertaking them and the consequent requirement of
individual participation in the lawsuit. In contrast, and as in Brock, 477 U.S. at 288, 106 S. Ct. at
2532, plaintiffs’ suit does not directly seek individualized relief, but instead seeks a court order
requiring the defendants to make individualized assessments of the need for nursing home care.
See Bano, 361 F.3d at 714. Thus, the claims plaintiffs assert and the relief they seek are not too
individualized to preclude associational standing.25
25 The conclusion that associational standing is proper is not inconsistent with the conclusion that the NHRA confers individual rights enforceable under § 1983. The NHRA does, as discussed earlier, create rights for individuals with mental illness. Plaintiffs, however, do not seek individualized court-ordered relief. Rather, the organizational plaintiffs seek to enforce the individual rights of their constituents in a single lawsuit and, if successful, seek system-wide
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Finally, on the question of standing, defendants argue that plaintiffs fail to identify an individual with mental illness currently in a psychiatric ward or hospital who is at-risk of being discharged to a nursing home. Def. Letter. Defendants contend that this failure is fatal to plaintiffs’ allegation of associational standing. Plaintiffs, however, are not required to identify in their complaint specific individuals who may in the future be placed in a nursing home. See Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (recognizing that future “mistakes cannot be specifically identified in advance” but nonetheless granting associational standing). Plaintiffs need only allege, with sufficient factual detail to render the claim plausible, that there is a likelihood of prospective improper discharges to nursing homes. Similarly, I reject defendants’ argument that the second amended complaint does not name as a plaintiff any individual who has experienced a significant change in condition without receiving a resident review as required by 42 U.S.C. § 1396r(e)(7)(B)(iii); even if the second amended complaint fails to identify any such specific individual, it clearly alleges that defendants’ practices will impose this result on nursing home residents in the future. Sec. Am. Compl. ¶¶ 1519, 163, 177-81.
For all these reasons, I conclude that organizational plaintiffs DAI and MHLS have associational standing to bring the claims asserted in the second amended complaint on behalf of their constituents. 4. Dismissal of the Governor as a Defendant
In their original motion, defendants sought to dismiss the governor as a defendant in this action, arguing that he is not a proper party and should be dismissed in the interests of justice
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pursuant to Federal Rule of Civil Procedure 21. Def. Mem. 48-49. Plaintiffs sue the governor in his official capacity based on his “responsib[ility] for ensuring that New York operates its services, programs and activities in conformity with the Americans with Disabilities Act, the Rehabilitation Act, and the NHRA.” Sec. Am. Compl. ¶ 63.
During oral argument on the motion, the parties agreed to resolve the issue among themselves. Tr. 63-65.26 The second amended complaint again names the governor as a defendant. In their post-argument letter, defendants do not address the issue of the governor as defendant. Accordingly, I infer that defendants have abandoned their argument for dismissal of the governor as a defendant. 5. Standing of Individual Plaintiffs
In their original motion, defendants argued that the named plaintiffs lacked standing to pursue their NHRA claims because the named plaintiffs failed to allege specific injuries as a result of any violations of the NHRA. Def. Mem. 40-41. With the filing of the second amended complaint, defendants appear to abandon this argument. See Def. Letter. In any event, plaintiffs’ new pleading specifically alleges violations of the NHRA with respect to each of the named plaintiffs. Sec. Am. Compl. ¶¶ 29, 30, 182-84.
Defendants now appear to argue that the individual plaintiffs lack standing to pursue their ADA and Section 504 claims because the second amended complaint does not specifically allege that a medical professional has determined that they are eligible to reside in a community-based program rather than a nursing home. See Def. Letter. As discussed above, however, plaintiffs specifically allege that Joseph S. was evaluated and determined not to be in need of a nursing
26 “Tr.” refers to the oral argument of February 20, 2008 on defendants’ motion to dismiss.
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home level of care. Sec. Am. Compl. ¶ 129. Moreover, the complaint alleges that both of the named plaintiffs have a mental illness but no medical condition requiring a nursing home level of care, id. ¶¶ 27, 128-29, 137, and that both are “able to, qualified for, and would like to live in a more integrated setting” than the nursing homes in which they reside. Id. ¶¶ 134, 140. See also id. ¶ 28. Accordingly, the named plaintiffs have standing to pursue the claims they make in the second amended complaint. 6. Necessary Parties
Next, defendants argue that the complaint should be dismissed for failure to join necessary parties pursuant to Federal Rule of Civil Procedure 19. Defendants contend that the hospitals from which individuals with mental illness are discharged and the nursing homes where they are placed are necessary parties to this litigation.
Under the Federal Rules of Civil Procedure, a party is deemed “necessary” if “in that [entity’s] absence, the court cannot accord complete relief among existing parties.” FED. R. CIV. P. 19(a)(1).27 If a court finds that a party is necessary but joinder is not feasible, only then would it consider whether dismissal is warranted, applying the factors set forth in Rule 19(b). Defendants, as the moving party, bear the burden of establishing that joinder of necessary parties is required. See Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 137 (E.D.N.Y. 2000); M.C. v. Voluntown Bd. of Educ., 178 F.R.D. 367, 369 (D. Conn. 1998).
27 A person or entity may also be a necessary party if “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may as a practical matter impair or impede the person’s ability to protect the interest.” FED. R. CIV. P. 19(a)(1)(B)(i). “Under the impair or impede clause, however, the absent party itself must assert an interest in the subject matter of the pending case.” M.C. v. Voluntown Bd. of Educ., 178 F.R.D. 367, 370 (D. Conn. 1998). Here, the nursing homes and hospitals have not sought to intervene in this litigation and thus they may not be deemed necessary under the impair or impede clause of Rule 19.
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Under Rule 19(a)(1), “the term complete relief refers only ‘to relief as between the persons already parties, and not as between a party and the absent person whose joinder is sought.’” Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 209 (2d Cir. 1985). See also Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 313 (3d Cir. 2007) (limiting the “Rule 19(a)(1) inquiry to whether the district court can grant complete relief to persons already named as parties to the action; what effect a decision may have on absent parties is immaterial”). Accordingly, the question is whether any relief obtained would be hollow if the absent party is not joined, and “[c]ourts are most likely to rule that complete relief may not be accorded among the parties present in circumstances where the absent party plays a significant role in the provision of some form of injunctive relief.” Rose v. Simms, 1995 WL 702307, at *3 (S.D.N.Y. Nov. 29, 1995).
Defendants contend that it is nursing homes that conduct the resident reviews that are part of the PASRR process, and that nursing homes are the entities responsible for notifying the state of any “significant change” in the condition of a mentally ill nursing home resident. Def. Mem. 42 (citing 42 U.S.C. § 1396r(b)(3)(E)). During oral argument on the motion, defendants also argued that the homes are necessary parties because the homes cannot admit individuals who are not in need of nursing care. Tr. 30 (referencing 42 U.S.C. § 1396r(b)(3)(F)). Plaintiffs respond that the nursing homes are not necessary because the relief they seek is a court order directing defendants to conduct the screening and reviews required by statute, and to provide communitybased treatment to individuals qualified to receive it. Pl. Mem. 39-40. Plaintiffs rely on Rolland, 318 F.3d at 58, in which the First Circuit affirmed the district court’s order that the state defendants implement treatment policies in compliance with the NHRA, and in particular, § 1396r(e), even though the nursing homes where plaintiffs resided were not parties to the
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litigation. Id. Section 1396r(e) – titled “State requirements relating to nursing facility requirements”
(emphasis added) – clearly places the ultimate responsibility for the initial PASRR determination on the state. See 42 U.S.C. § 1396r(e)(7)(A)(i) (“[T]he State must have in effect a preadmission screening program for making determinations . . . .”). The Federal Regulations explicitly provide that the state, here OMH, is responsible for the PASRR determinations. See 42 C.F.R. § 483.106(d)(1) (requiring the PASRR determinations be made by the state mental health authority); id. § 483.112(a) (requiring the state mental health or mental retardation authority to make determinations as to whether an individual requires the level of care provided by nursing facilities); id. §§ 483.128(a), (e) (discussing the requirements for a state’s PASRR program); id. § 483.132(d) (“[T]he State mental health or mental retardation authority must determine whether [a nursing facility] level of services is needed.”). Moreover, all of the relief sought in the second amended complaint is directed at the defendants; plaintiffs do not seek any affirmative relief from nursing homes. Although some aspects of the relief sought – such as an order requiring defendants to conduct resident reviews of nursing home residents – might require the cooperation of nursing homes, there is no reason to believe they would not cooperate with the efforts of the defendants to comply with any order issued by this court. Accordingly, the nursing homes are not necessary parties.
With respect to the Article 28 hospitals, defendants contend that the hospitals are responsible for discharge planning and are therefore necessary parties to this litigation. Def. Mem. 43-44. As plaintiffs argue, however, the hospitals are not necessary parties because no relief requested by plaintiffs requires their participation, Pl. Mem. 40-41; rather plaintiffs seek to enforce the duties imposed by the NHRA upon defendants OMH and DOH.
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7. Statute of Limitations This action was filed on March 8, 2006. The parties agree that a three-year statute of
limitations governs each of plaintiffs’ claims. Def. Mem. 45; Pl. Mem. 41. The individuals on whose behalf plaintiffs assert claims include some who were discharged to nursing homes and whose rights under the NHRA were allegedly violated on or after March 8, 2003. Clearly then, none of plaintiffs’ claims are time-barred in their entirety even absent any basis for tolling. However, plaintiffs seek relief for all individuals with mental illness currently residing in nursing homes, regardless of when they were discharged from psychiatric hospitals and psychiatric wards of hospitals or when they were allegedly not properly screened or reviewed as required by the NHRA. Sec. Am. Compl. wherefore clauses f(vi), (vii). It is less clear whether claims concerning individuals who were discharged to nursing homes or were entitled to resident reviews before March 8, 2003 are timely. Because the limitations issues that arise with respect to plaintiffs’ NHRA claims are different from those that apply to their ADA and Section 504 claims, I address each set of claims separately below.
Plaintiffs’ ADA and Section 504 claims are timely because they assert present and ongoing violations of the statutes’ integration mandates, rendering the date of any particular individual’s discharge to a nursing home irrelevant. Pl. Mem. 42; Pl. Letter. In other words, plaintiffs contend that their rights under the ADA and Section 504 are being violated now, regardless of then they were discharged to nursing homes, because they have a right today to be released from the nursing home and to receive care in a more integrated community-based setting. Thus, no time bar arises from the date on which they were admitted to a nursing home.
In Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Oh. 1993), a plaintiff class consisting of persons with mental retardation or developmental disabilities brought suit under the ADA and
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Section 504. The court refused to dismiss plaintiffs’ claims on limitations grounds, even though
many had been placed in institutions on dates outside the limitations period. Although the
court’s reasoning was somewhat different than that set forth above, its analysis applies to the
facts at issue here:
Plaintiffs allege they are eligible for community placement, yet they continue to live in institutions. They allege that based on their disabilities they have been denied community placement. Each time a position becomes available in the community and a plaintiff or member of the plaintiff class is denied that position on the basis of disability, there is an alleged violation. Therefore, the Court finds that the acts of discrimination alleged by plaintiffs are not based solely on isolated incidents. Instead, the alleged discrimination is an ongoing and continuous violation. Martin 1993, 840 F. Supp. at 1189.28 Other courts have also permitted ADA and 504 claims
brought on behalf of individuals who were institutionalized before the limitations period, albeit
without explicit discussion of any limitations issues. See Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t
of Pub. Welfare, 402 F.3d 374, 378 (3d Cir. 2005) (noting that many residents had been
institutionalized for decades); Frederick L. v. Dep’t of Pub. Welfare of Pa., 364 F.3d 487, 489
(3d Cir. 2004) (noting that over two-thirds of a class had been institutionalized for more than ten
years). Accordingly, plaintiffs’ ADA and Section 504 claims are timely.
Unlike the ADA and Section 504, which afford plaintiffs an ongoing right to receive
services in the most integrated setting appropriate to their needs, the NHRA, insofar as relevant
here, is concerned with specific events: admissions to nursing homes and significant changes in
the condition of nursing home residents. Plaintiffs nevertheless contend that these claims are
28 The class in Martin 1993 also brought NHRA claims. The court’s limitations analysis did not distinguish between the ADA and Section 504 claims on the one hand and the NHRA claims on the other. As set forth in the text below, I conclude that a different analysis should be applied to each group of claims, and that aspects of plaintiffs’ NHRA claims are time-barred.
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timely, even with respect to individuals discharged to nursing homes before March 8, 2003, because of the continuing violation doctrine, the toll for insanity, and equitable tolling.
a. Continuing Violation Plaintiffs contend that defendants’ “ongoing failure to maintain a PASRR program in compliance with the NHRA” is a “continuing violation” and that plaintiffs’ NHRA claims are therefore not barred by any statute of limitations. Pl. Mem. 43-44. A continuing violation occurs “where there is proof of specific ongoing discriminatory policies or practices.” Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). When a plaintiff successfully establishes a continuing violation, the statute of limitations is tolled until the “last asserted occurrence of that practice.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S. Ct. 1114, 1125 (1982). An association’s right to sue is coextensive with the claims available to its individual members. See Hunt, 432 U.S. at 343, 97 S. Ct. at 2241 (holding that an association has standing to sue on behalf of its members if “its members would otherwise have standing to sue in their own right” and other requirements are met). Accordingly, DAI and MHLS may only pursue those claims that its constituents could bring. The timeliness of the NHRA claims asserted in the second amended complaint therefore hinges on whether the claims would be timely if asserted by the individual constituents of DAI and MHLS themselves. Plaintiffs suggest that the continuing violation rule may be applied to otherwise stale individual claims whenever a defendant’s unlawful practices continue during the limitations period, regardless of whether the individual plaintiff is the subject of any actions taken pursuant to those practices within the limitations period. Pl. Mem. 43-44. However, the rule is more narrowly construed. “[T]he concept of a ‘continuing violation’ is not intended to be an open-
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ended escape hatch to allow litigants who have failed to promptly bring suit to enforce their rights to avoid the consequences of the limitations period.” Bourdais v. City of New Orleans, 2005 WL 3801576, at *4 (E.D. La. Apr. 29, 2005). To the contrary, most courts have interpreted the Supreme Court’s ruling on continuing violations in Havens Realty as requiring a plaintiff to establish not only an unlawful policy but also a violation that specifically affects the plaintiff within the limitations period. Construing Havens Realty, the court in Bourdais held as follows:
In the Havens case, the Supreme Court made a distinction between plaintiffs who have or have not been personally affected by an alleged continuing violation. Applying the “policy or practice” type of continuing violation theory, the Court held that only those plaintiffs who were personally affected by an illegal act of defendant within the applicable limitations period were entitled to assert a claim based on defendant’s continued unlawful acts or policy. 2005 WL 3801576, at *4. See also Cornwell, 23 F.3d at 704 (finding claim timely where a specific individual was subjected to defendant’s continuing discriminatory practices); Claybrooks v. Primus Auto. Fin. Servs., Inc., 363 F. Supp. 2d 969, 982-83 (M.D. Tenn. 2005) (harmonizing Havens with Sixth Circuit precedent requiring that “a plaintiff must show both a continuing, over-arching policy of discrimination and a specific discriminatory act against the plaintiff within the limitations period,” and collecting cases); but see Barkley v. Olympia Mortgage Co., 2007 WL 2437810, at *15-16 (E.D.N.Y. Aug. 22, 2007) (construing Havens to permit plaintiffs whose claims were time-barred to pursue them because defendants had engaged in an ongoing discriminatory practice that continued into the limitations period). The holding in Bourdais is consistent with the rationale supporting the continuing violation rule. The rule is typically applied when a plaintiff can not reasonably be expected to recognize that he has a cause of action until he becomes aware that the otherwise time-barred
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discriminatory conduct he complains of is part of an unlawful policy or practice. Under these circumstances, a cause of action
does not necessarily accrue upon the occurrence of a harmful act, but only later when it is clear, or should be clear, that the harmful act is the consequence of a . . . “policy or custom.” In fact, [Second Circuit precedent] recognizes that sort of delayed accrual theory: “Where no single act is sufficiently decisive to enable a person to realize that he has suffered a compensable injury, the cause of action may not accrue until the wrong becomes apparent.” Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (quoting Singleton v. City of New York, 632 F.2d 185, 192-93 (2d Cir. 1980)); see also Hargraves v. Capital City Mortgage Corp., 140 F. Supp. 2d 7, 18 (D.D.C. 2000) (“The continuing violations theory should be applied where the type of violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period.”), quoted in Pantoja v. Scott, 2001 WL 1313358, at *11 (S.D.N.Y. Oct. 26, 2001) (internal quotations omitted); Johnson v. Nyack Hosp., 891 F. Supp. 155, 165 (S.D.N.Y. 1995). This narrow construction of the continuing violation rule is also consistent with more recent Supreme Court precedent. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), the Court held that discrete acts, even those that may be part of a continuing policy or practice, are not saved by the continuing violation rule. Morgan, 536 U.S. at 113-14, 122 S. Ct. at 2072-73. In reaching this holding, the Morgan Court distinguished claims based upon discrete events from hostile environment claims as follows: “The ‘unlawful employment’ practice [in hostile environment claims] . . . cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. at 115, 122 S. Ct. at 2073.
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See also Ledbetter v. Goodyear Tire & Rubber Co., Inc., _ U.S. _, _, 127 S. Ct. 2162, 2167-69 (2007) (reaffirming that a violation with continuing effects does not toll the limitations period). Defendants’ alleged violations of the NHRA – failures to conduct PASSR evaluations for individuals over a number of years – are “each discrete, actionable offenses. The plaintiffs’ claims are not based on the accumulation over several years . . .; rather, the plaintiffs have separate claims for each [PASSR violation].” SJB ex rel. Berkhout v. New York City Dep’t of Ed., 2004 WL 1586500, at *8 (S.D.N.Y. July 14, 2004). Plaintiffs’ NHRA claims (unlike their claims pursuant to the ADA and Section 504) are more akin to the discrete employment practices that the Morgan Court held were not saved by the continuing violation rule than they are to hostile work claims.
Finally, the continuing violation rule “is disfavored by courts in this circuit.” Mallard v. Potenza, 2007 WL 4198246, at *4 n.3 (E.D.N.Y. Nov. 21, 2007) (citing Nakis v. Potter, 2004 WL 2903718, at *10 n.2 (S.D.N.Y. Dec.15, 2004) (collecting cases)). See also Morgan, 536 U.S. at 113, 122 S. Ct. at 2072 (noting that equitable tolling doctrines should be applied “sparingly”). For all these reasons, application of the continuing violation rule is not warranted here, and it does not save the claims of those individuals whose claims under the NHRA are based upon events that took place before March 8, 2003. b. Insanity Toll
Plaintiffs next argue that the limitations period should be tolled because this case is brought on behalf of individuals with mental illness who are institutionalized. Under New York law, the statute of limitations is extended for individuals suffering from “insanity at the time the cause of action accrues.” N.Y. C.P.L.R. 208. The Court of Appeals has stated that New York’s insanity toll should be “narrowly interpreted” based on its legislative history, which indicates that
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efforts to substitute the phrase “mental illness” for “insanity” were rejected. McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d 543, 548 (1982). The Court concluded that the insanity toll applies “only to those individuals who are unable to protect their legal rights because of an overall inability to function in society.” Id. See also Basher v. Madonna Realty Corp., 2007 WL 174130, at *3 (E.D.N.Y. Jan. 19, 2007) (discussing McCarthy’s “high bar” for establishing insanity under CPLR 208).
Plaintiffs cite one case from the New York Court of Claims, Muller v. New York, 179 Misc. 2d 980, 987, 686 N.Y.S.2d 652, 657 (N.Y. Ct. Cl. 1999), for the proposition that psychiatric hospital patients are entitled to a per se toll of the statute of limitations due to insanity. Pl. Mem. 44-45. Plaintiffs argue by extension that “New York courts would apply a per se toll” to individuals confined in a nursing home for treatment of mental illness. Id. at 45.
Plaintiffs’ argument for a per se toll is unavailing. First, New York law does not unequivocally apply a per se toll for psychiatric hospitalization. See, e.g., Vallen v. Carrol, 2005 WL 2296620, at *3-5 (S.D.N.Y. Sept. 20, 2005) (rejecting automatic insanity toll based on plaintiff’s institutionalization). This court’s research has not identified any authority, other than the single case cited by plaintiffs, supporting application of a per se toll. Second, in light of the Court of Appeals’ admonition that the insanity toll should be narrowly interpreted, I would decline to extend its application to nursing home residents, even when the homes have policies as restrictive as those alleged by plaintiffs here. Sec. Am. Compl. ¶¶ 2, 93-125. Finally, plaintiffs do not allege any facts suggesting that their constituents suffer from “insanity” and an “over-all inability to function in society.” Indeed, such allegations would seem to contradict their assertions that the individuals at issue are capable of receiving appropriate care and treatment in community settings. Thus, plaintiffs have failed to establish that the insanity toll should apply to
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their NHRA claims in this case. c. Equitable Tolling Finally, plaintiffs contend that the statute of limitations on their NHRA claims should be
equitably tolled due to defendants’ failure to provide their constituents with copies of their PASRR evaluation reports as required by the NHRA. See 42 C.F.R. §§ 483.128(k), (l). “The essence of the doctrine of equitable tolling of a statute of limitations ‘is that a statute of limitations does not run against a plaintiff who is unaware of his cause of action.’” Bodner, 114 F. Supp. 2d at 135 (citation omitted). Thus, equitable tolling may be appropriate where defendants fail to comply with mandatory notice requirements. See Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 324 (2d Cir. 2004) (“hold[ing] that failure to comply with the regulatory obligation to disclose the existence of a cause of action . . . is the type of concealment that entitles plaintiff to equitable tolling of the statute of limitations”); see also Ledbetter, _ U.S. at _, 127 S. Ct. at 2169 (noting that plaintiff made no claim “that discriminatory decisions that occurred prior to that period were not communicated to her”).
Equitable tolling, however, “is a rare remedy to be applied in unusual circumstances.” Wallace v. Kato, _ U.S. _, _, 127 S. Ct. 1091, 1100 (2007); see also Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (“[E]quitable tolling is only appropriate in [ ] rare and exceptional circumstance[s], in which a party is prevented in some extraordinary way from exercising his rights.”) (internal quotation marks and alteration omitted). A plaintiff seeking equitable tolling “must demonstrate that he acted with ‘reasonable diligence’ during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances ‘beyond his control’ prevented successful filing during that time.” Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (citations omitted).
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Applying these principles to the circumstances presented here, I conclude that equitable tolling is not warranted. Although defendants allegedly failed to provide individuals with their PASSR evaluations and reports, plaintiffs were not otherwise prevented from pursuing their NHRA claims that independent evaluations were not completed or that they were “rubber-stamp” evaluations. The organizational plaintiffs were or should have been aware at the time of any violations that defendants were not complying with the NHRA. DAI and MHLS have a statutory duty to ensure that the rights of individuals with mental illness are protected. As noted earlier, MHLS in particular is charged with ensuring that “all requirements of law as to patients’ admissions, treatment and discharge affecting patients’ rights have been complied with.” N.Y. COMP. CODES R. & REGS., tit. 22, §§ 622.2(a)(6)(ii), 694.2(a)(6)(ii), 823.2(a)(6)(ii), 1023.2(a)(6)(ii). There appears to be no reason why DAI and MHLS could not have uncovered defendants’ alleged unlawful practices sooner. Moreover, as defendants point out, DAI undoubtedly became aware of defendants’ practices no later than October, 2002, when The New York Times wrote a series of articles about individuals with mental illness in nursing homes. Def. Reply 21 n.16. For these reasons, I conclude that the circumstances of this case do not warrant application of the doctrine of equitable tolling.
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CONCLUSION For all the reasons stated above, I respectfully recommend that defendants’ motion to dismiss be denied, with the exception that plaintiffs’ NHRA claims be dismissed to the extent they are based on events that occurred before March 8, 2003. Any objections to the recommendations made in this Report must be filed within ten days of this Report and Recommendation and, in any event, on or before May 5, 2008. Failure to file timely objections may waive the right to appeal the District Court’s Order. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72; Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

April 21, 2008 Brooklyn, New York

_________/s/________________ STEVEN M. GOLD United States Magistrate Judge

U:\eoc 2008\edwin t\mtd r&r final.wpd

60

 
 Case 2:06-cv-01042-BMC-SMG Document 98 Filed 05/23/08 Page 1 of 2 PageID #: 1810

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------)(
JOSEPH S. and STEVEN W.; DISABILITY ADVOCATES, INC.; and SIDNEY HIRSCHFELD, Director, Mental Hygiene Legal Service, Second Judicial Department,

(.~ J"'':~q'£.l2"I'

ORDER

~*, hl1-1~~r~4f".'4I"~/(2J-;S:c1fn.8f-al,"V''~).~.t!~ -'l.1!f. ~

CV-06-1042 (BMC)(SMG)

Plaintiffs,

- against-

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

Defendants.

-----------------------------------------------------------)(
COGAN, District Judge.

This case is before me on the Report & Recommendation of Magistrate Judge Steven M.

Gold dated April 21, 2008 [93], in which he recommended denial of defendants' motion to

dismiss, except as to the Nursing Home Reform Act ("NHRA") claims that he found time-

barred. Plaintiffs and defendants have timely objected. Having conducted a de novo review, I

adopt the Report & Recommendation as the Order of this Court and overrule the parties'

objections, as I agree with the analysis of each point addressed by Judge Gold. The only issue

warranting additional comment is plaintiffs' hyperbolic invocation of Muller v. New York, 686

N.Y.S.2d 652 (N.Y. Ct. Cl. 1999), which plaintiffs describe as the progenitor of a "Muller line of

Case 2:06-cv-01042-BMC-SMG Document 98 Filed 05/23/08 Page 2 of 2 PageID #: 1811

cases." There is no "Muller line of cases," and a single Court of Claims decision cannot be said to constitute the law of New York. See King v. Order of United Commercial Travelers, 333 U.S. 153,160-61,68 S.Ct. 488, 492-93 (1948); Singleton v. City of New York, 632 F.2d 185, 199 (2d Cir. 1980). I agree with Judge Gold that the reasoning of that case is not persuasive.
It is therefore ORDERED that defendants' motion to dismiss is denied except as to the time-barred NHRA claims. SO ORDERED.

Dated: Brooklyn, New York May 21, 2008

/s/(BMC) U.S.D·V

Page 2 of2

 
 Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 1 of 19 PageID #: 5058

/
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
--------------------~:f'~_I?~~~------------------------x

JOSEPH S. and STEVEN W.; and

DISABILITY ADVOCATES, INC.,

STIPULATION AND

ORDER OF SETTLEMENT

Plaintiffs,

-against-

No. 06-CV-I042 (BMC)(SMG)

MICHAEL F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health; THE NEW YORK STATE OFFICE OF MENTAL HEALTH; NIRAV R. SHAH, in his official capacity as Commissioner of the New York State Department of Health; THE NEW YORK STATE DEPARTMENT OF HEALTH; and ANDREW CUOMO, in his official capacity as Governor of the State of New York,

Defendants.

--------------------------------------------------------------x

~=ew.; WHEREAS, Plaintiffs Joseph S.;

and Disability Advocates, Inc.;

(collectively, "Plaintiffs") brought this action by the filing of a Complaint seeking declaratory and injunctive relief against Defendants alleging unlawful segregation of

individuals with a serious mental illness in nursing homes in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA"); Section 504 of the

Rehabilitation Act of 1973,29 U.S.C. § 794; and the Nursing Home Reform Act, 42 U.S.c. § 1396r ("NHRA"); and

WHEREAS, Plaintiffs further allege that the Defendants have denied New Yorkers with a serious mental illness the opportunity to live in integrated community settings where they could lead more independent and productive lives because Defendants failed to properly implement the federally mandated Preadmission Screen and Resident Review ("PASRR") system; and

WHEREAS, Defendants Commissioner of the New York State Office of Mental Health. 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, "Defendants" or "the State"), answered the Complaint; and

WHEREAS, Defendants deny that they have violated the ADA, the Rehabilitation Act, or the NHRA; and

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 2 of 19 PageID #: 5059
WHEREAS, DOH has, since 2008, undertaken, and will continue to carry out, state-wide, through September 30, 2016, the Centers for Medicare and Medicaid Services ("CMS") Money Follows the Person Demonstration Project ("the MFP Demonstration Project"), a federal demonstration project through which nursing home residents, including nursing home residents with mental illness, are provided information they need to make informed decisions about long-term care options; and
WHEREAS, on September 21,2010, DOH issued a "Dear Administrator" letter advising administrators of all New York State nursing homes that Section Q of Version 3.0 of the Minimum Data Set ("MDS") was revised so that all nursing home residents are periodically assessed to determine the feasibility of, and interest in, their discharge to the community, and that if discharge is determined to be feasible, and the resident expresses an interest in returning to the community, the nursing home must make a referral to a designated local agency, as set forth in the letter, within ten business days; and
WHEREAS, on April 12, 2011, DOH issued two revised PASRR forms, the New York State Level II Adult Mental Health Evaluation and the New York State Level II Adult Mental Health Evaluation Report, both of which include, among other elements, an independent assessment of whether the total needs of individuals with a serious mental illnesses who are proposed for nursing home admission are such that they can be met in appropriate community settings; and
WHEREAS, DOH has completed an instruction manual for PASRR evaluators who will utilize the revised PASRR forms; and
WHEREAS, on August 2, 2011, DOH issued a "Dear Administrator" letter (I) advising all New York State nursing home administrators that all nursing home residents previously identified through the PASRR process as having mental illness or mental retardation and who have experienced a significant change in status require a new Level II PASRR evaluation; and (2) providing to those administrators the new PASRR New York State Level II Adult Mental Health Evaluation Report; and
WHEREAS, on August 4, 2011, DOH issued a "Dear Hospital CEO" letter advising the Chief Executive Officers of all New York State hospitals of the importance of accurate completion of the SCREEN form and the Hospital and Community Patient Review Instrument when considering nursing home placement in discharge planning; and
WHEREAS, in 2006, OMH directed State psychiatric hospitals in the New York City area to obtain approval from OMH's Central Office for all proposed discharges to nursing homes, and in 2011 directed State psychiatric hospitals and OMH-operated residences in the rest of the state to similarly require such approval, and such directives will remain in effect until the implementation of the Revised PASRR Level II Process; and
2

- - - - - ----- ----

---

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 3 of 19 PageID #: 5060

WHEREAS, DOH, in consultation with OMH, has agreed to issue one or more Requests for Proposals ("RFPs") for an Assessment Contractor(s) to perform assessments of certain individuals with a serious mental illness who reside in nursing homes in order to determine whether their total needs can be met in appropriate community settings; and
WHEREAS, OMH has agreed, subject to approval by the Office of the State Comptroller, to develop 200 supported housing units to expand community housing capacity for Remedy Members, as defined below, and has agreed to create this additional capacity as quickly as possible by amending existing housing contracts on an as needed basis for up to 50 of the 200 units with the remaining 150 units to be developed by the issuance of an RFP; and
WHEREAS, the parties have conducted extensive fact and expert discovery, and have engaged in motion practice before the Court; and
WHEREAS, in order to resolve all issues pending between these parties without the expense, risks, delays, and uncertainties of a trial and any appeals that might follow such a trial, the Plaintiffs and Defendants agree to the terms of this Stipulation and Order of Settlement ("Stipulation") as stated below; and
WHEREAS, all parties acknowledge that the Court has subject-matter jurisdiction over this case, and authority to enter this Stipulation and to enforce its terms; and Defendants acknowledge they are subject to personal jurisdiction of the Court, and that venue is proper in this Court;
IT IS HEREBY STIPULATED AND AGREED by and among the undersigned that this action is settled and dismissed, without prejudice subject to the approval of the Court, on the following terms and conditions:
I. JURISDICTION
This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 as a case arising under the laws of the United States and 28 U.S.C. § 1343(a) for actions under laws providing for the protection of civil rights.
II. DEFINITIONS
A. "ADL" means activities of daily living.
B. "IADL" means instrumental activities of daily living.
C. "Serious Mental Illness" is as defined at 42 C.F.R. § 483.102.
D. "Psychiatric Hospital"' means: (I) a psychiatric hospital operated by OMH; or (2) a private hospital in New York State with an inpatient

3

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psychiatric unit operating pursuant to New York Mental Hygiene Law § 31.02(a)(2).
E. "PASRR" means the Preadmission Screen and Resident Review process required by the Nursing Home Reform Act, 42 U.S.C. § 1396r, and its implementing regulations.
F. "PASRR Evaluator" means the independent evaluator that conducts the Level II PASRR assessments pursuant to the Nursing Home Reform Act.
G. "Assessment Contractor(s)" shall mean the independent entity or entities that conduct the assessments required by Section V below.
H. "Named Plaintiffs" means plaintiffs Joseph S. and Steven W.
I. "Remedy Members" means persons entitled to a remedy under this Stipulation who are NH Remedy Members or PH Remedy Members.
J. "NH Remedy Members" means New Yorkers with Serious Mental Illness who are residents of nursing homes on the date that this Stipulation is executed by the parties, whose nursing home care is paid for by the New York State Medicaid program and who immediately prior to their current residence in nursing homes resided in Psychiatric Hospitals.
K. "PH Remedy Members" means persons with Serious Mental Illness who are residents of Psychiatric Hospitals on the date that this Stipulation is executed by the parties who have received a PASRR Level I Screen and have been referred to the PASRR Evaluator for a Level II PASRR Evaluation but have not yet been evaluated using the Revised PASRR Level II Process for discharge to a nursing home, unless they are discharged from the Psychiatric Hospital to a placement other than a nursing home.
L. "Community Services" means services and supports provided in New York State that assist individuals with Serious Mental IIIness'to live in the community. Such services and supports include, but are not limited to, Assertive Community Treatment ("ACT"), Intensive Case Management ("ICM"). Case Management, Personalized Recovery Oriented Services ("PROS"), Continuing Day Treatment ("COT"), Medicaid benefits for which the Remedy Member is eligible. including home and community based services ("HCBS") waivers. clinic services, certified home health care. personal care assistance, nursing and rehabilitative services.
M. "Community Housing" means the most integrated setting appropriate to the needs of a person with Serious Mental lllness, where the setting is designed to promote independence in daily living, economic self-
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sufficiency and the ability to interact with non-disabled persons to the fullest extent possible. Community Housing includes, but is not limited to: (I) Supportive Housing, including Community Residence Single Room Occupancy ("CRlSRO"), Supported Single Room Occupancy ("SP/SRO"), Apartment Treatment, and Family Care; (2) Supported Housing, including Scattered Site Apartment and Single Site Apartments; (3) independent housing with the person's family or friends; (4) independent housing not owned or operated by a social service entity; (5) Senior Housing; and (6) such other housing alternatives as are clinically appropriate for the particular Remedy Members. No adult home in New York City and no impacted adult home outside of New York City shall be considered to be Community Housing. For purposes of this paragraph, an impacted adult home is an adult home in which at least 25 percent of the resident population or 25 residents, whichever is less, are persons with mental disabilities who have been released or discharged from facilities operated or certified by an Office of the Department of Mental Hygiene. Notwithstanding any other provision of this paragraph, an individual may make an informed choice to live in housing that is not Community Housing.
N. "Community Transition List" means one or more lists maintained for the purpose of facilitating discharge efforts into community housing at a reasonable pace.
III. REVISED PASRR LEVEL II PROCESS
A. Within thirty (30) days of approval of this Stipulation by the Court, no person with a Serious Mental Illness may be placed in a nursing home until he or she first receives a PASRR Level I evaluation and a Level II evaluation that is consistent with procedures set forth in section III(B) ("Revised PASRR Level II Process").
B. The Revised PASRR Level II Process shall utilize the revised PASRR forms developed by DOH, annexed hereto as Exhibit A, which include an assessment by a PASRR Evaluator of whether an individual's total needs are such that they can be met in an appropriate community setting.
I. In assessing whether community placement is appropriate for an individual, the PASRR Evaluator shall meet face-to-face with the individual and:
a. Perform a medical, psychiatric and psychosocial evaluation of the individual; and
5

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 6 of 19 PageID #: 5063
b. Perform a functional assessment of the individual's abilities to engage in ADLs and IADLs necessary to live safely in a community setting.
2. In addition, the PASRR Evaluator shall consider:
a. The range of Community Housing in New York State where the individual prefers to reside;
b. The Community Services required by the individual to live in the most integrated setting appropriate. to his or her needs where the individual will reside;
c. The individual's eligibility for Medicaid waiver programs; and
d. Whether the individual has been provided with information about Community Housing and Community Services, appropriate to the needs of that individual, in a manner calculated to allow the person to make an informed choice regarding such Community Housing and Community Services.
3. A finding that an individual meets the minimum requirements for skilled nursing facility level of care pursuant to 10 NYCRR § 400.12 shall not be interpreted to mean that the individual "requires" skilled nursing facility care.
4. If the PASRR Evaluator determines that the individual's total needs are such that placement into Community Housing is appropriate, but it is determined that Community Housing is not available at such time, and the NH is appropriate and desired, then the individual may be temporarily admitted to a NH. That individual shall also be included on a Community Transition List. A Community Transition List will facilitate the discharge of such individuals to Community Housing with Community Services at a reasonable pace; provided, however, that "reasonable pace" shall be interpreted in a manner that recognizes the Defendants' obligations to Remedy Members under this StipUlation.
5. Upon completion of the PASRR Level II Review, the PASRR Evaluator shall provide to the individuals and entities listed in 42 C.F.R. § 483.128( I) an Evaluation Report that shall contain the information required by 42 C.F.R. § 483.128(i).
6

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 7 of 19 PageID #: 5064
6. Simultaneous with the issuance of the Evaluation Report, the PASRR Evaluator shall provide to the evaluated individual, and to the individuals and entities listed in 42 C.F.R. § 483.130(k), a written notice of the PASRR determination. The notice shall contain all of the information required by applicable statute and regulation, including 42 C.F.R. § 483.130(1) and 42 C.F.R. § 431.206(b).
C. Within thirty (30) days of approval of this Stipulation by the Court, the PASRR Evaluators shall be trained to conduct the Revised PASRR Level II Process using revised PASRR forms. PASRR Evaluators hired after the initial training shall be trained thereafter as necessary. Training of PASRR Evaluators shall include information on all types of Community Housing, Community Services, and waiver programs.
D. Within thirty (30) days of approval of this Stipulation by the Court, DOH shall issue a directive to all nursing homes explaining the circumstances in which the nursing home must request a PASRR Level II Resident Review by the PASRR Evaluator. The directive shall:
I. Advise nursing homes that, consistent with the MDS 3.0 definition, a Significant Change in Status is a decline or improvement in a resident's status that: will not normally resolve itself without intervention by staff or by implementing standard disease-related clinical interventions; is not "self-limiting" (for declines only); impacts more than one area of the resident's health status; and requires interdisciplinary review and/or revision of the health care plan.
2. Advise nursing homes that they must contact the PASRR Evaluator for a Level II Resident Review when there is evidence that a resident has experienced a Significant Change in Status; and
3. Advise nursing homes that when a resident or his or her legal guardian expresses a desire to leave the nursing home, in every instance, the nursing home must evaluate the resident for discharge to the community pursuant to 10 N.y'C.R.R. § 4lS.3(h)(1).
E. When the PASRR Evaluator determines that a nursing home resident can live in the community:
1. The PASRR Evaluator shall report its determination to the Defendants and the nursing home where the resident resides, and the nursing home resident and his or her legal representative;
7

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 8 of 19 PageID #: 5065
2. The nursing home shall initiate discharge planning for the safe and orderly discharge of the resident from the nursing home to the most integrated appropriate tommunity ~ousing with appropriate wmmunity ~rvices and prepare and orient the resident for such discharge; and
3. Defendants shall include the individual on a Community Transition List.
F. Within sixty (60) days of approval of this Stipulation by the Court, DOH will send a "Dear Administrator Letter" to nursing homes reminding them of their discharge planning obligations, including those described in Section III(E)(2), and the potential penalties that may be imposed for lack of compliance. A copy shall be provided to Plaintiffs' counsel.
IV. PH REMEDY MEMBERS
A. Within forty-five (45) days of approval of this Stipulation by the Court, Defendants shall identifY all PH Remedy Members.
B. Within ninety (90) days of approval of this Stipulation by the Court, Defendants shall complete the Revised PASRR Level II Process for all PH Remedy Members.
C. PH Remedy Members who are evaluated using the Revised PASRR Level II Process while in a Psychiatric Hospital and are determined to have total needs such that placement in a home and community based waiver program was considered, but for whom placement was determined not to be feasible at the time of that evaluation, shall be referred to the Assessment Contractor(s) (see section V(E) below).
D. Defendants shall provide written materials to Psychiatric Hospitals for their information and for distribution to PH Remedy Members, PH Remedy Members' guardians and community guardians. These materials shall discuss Community Housing, Community Services and waiver program options available to PH Remedy Members. Defendants shall provide draft written materials to Plaintiffs' counsel within 90 days of approval of this Stipulation by the Court, with an opportunity to provide comments within seven (7) work days; provided, however, that Defendants shall take such comments under consideration in good faith but shall not be bound to accept them.
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v. NH REMEDY MEMBERS
A. Within ninety (90) days of approval of this Stipulation by the Court, Defendants shall identifY all NH Remedy Members, subject to verification by the Assessment Contractor(s).
B. Within forty-five (45) days of approval of this Stipulation by the Court, Defendants shall provide Plaintiffs' counsel with one or more draft RFPs to secure one or more contractors ("Assessment Contractor(s)") that will use trained professionals to assess all NH Remedy Members to identifY needed Community Housing and Community Services.
I. The RFP or RFPs will specify that the Assessment Contractor(s) shall be persons or entities that employ and use trained professional staff with experience working with people with mental illness and the ability to successfully perform the functions outlined in Section V(C).
2. Plaintiffs' counsel shall have eleven (II) work days to comment on such RFP or RFPs prior to the official issuance thereof; provided, however that, while Defendants shall take any such comments received from Plaintiffs under consideration in good faith, this paragraph shall not be interpreted to require the State to incorporate any such comments, or to otherwise limit the State's authority to establish the terms ofthe RFP or select the organization(s) to be awarded the contract; and provided, further, that defendants may require plaintiffs' counsel to sign a stipulation ofconfidentiality prior to receipt of such RFP or RFPs.
3. After Defendants have received comments from Plaintiffs, defendants shall issue the RFP or RFPs in a reasonably prompt manner, and the selection of the Assessment Contractor(s) shall proceed as expeditiously as possible under applicable State law. All contract awards are subject to approval by the Office of the State Comptroller.
C. Within twenty-four (24) months of approval by the Office of the State Comptroller of the contract or contracts with the Assessment Contractor(s) (see Section V(B) above), Defendants shall complete assessments for all NH Remedy Members.
I. The purpose of the assessments is to:
a. determine whether the total needs of each NH Remedy Member are such that they can be met in an appropriate community setting; and
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Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 10 of 19 PageID #: 5067
b. identiry for those NH Remedy Members capable of and desiring to live in the community, the specific types of Community Housing and Community Services necessary to maintain them safely in the community, if that is their preference. Such assessments shall be consistent with the Revised PASRR Level II Process and this Stipulation.
2. Neither such assessment nor any other activity undertaken by the Assessment Contractor(s) pursuant to this Stipulation shall relieve any nursing home of its discharge planning obligations with respect to any NH Remedy Member; provided, however that the nursing homes' duties in respect to discharge planning do not relieve Defendants of their obligations under this Stipulation
3. In assessing whether community placement is appropriate for an individual NH Remedy Member, the Assessment Contractor(s) shall meet with the individual face-to-face and:
a. Perform a medical, psychiatric and psychosocial evaluation of the individual; and
b. Perform a functional assessment of the individual's abilities to engage in ADLs and IADLs necessary to safely live in a community setting.
4. In addition, the Assessment Contractor(s) shall consider:
a. The range of Community Housing in New York State where the individual prefers to reside;
b. The Community Services required by the Remedy Member to successfully live in the most integrated setting appropriate to his or her needs where he or she will reside;
c. The NH Remedy Member's eligibility for Medicaid waiver programs; and
d. Whether the individual has been provided with information about Community Housing and Community Services, appropriate to the needs of that individual, in a manner calculated to allow the person to make an informed choice regarding such Community Housing and Community Services.
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Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 11 of 19 PageID #: 5068
5. Assessment Contractor(s) engaged in the assessment of individual NH Remedy Members shall:
a. Explain the benefits, responsibilities and financial aspects of Community Housing and Community Services for the NH Remedy Member and make reasonable efforts to explore and address concerns for the NH Remedy Member;
b. Facilitate NH Remedy Member visits to Community Housing when appropriate; and
c. Provide to nursing home staff responsible for discharge planning information regarding the Community Housing and Community Services available where the NH Remedy Member prefers to reside, the individual's eligibility for Medicaid waiver programs, and the individual's discharge preferences.
6. An assessment determination shall include that information required to be contained in the PASRR New York State Level II Adult Mental Health Evaluation Report. Such determination shall be appealable to the extent permitted by state or federal law.
7. When the Assessment Contractor(s) determines that an NH Remedy Member can live in the community, defendants shall include the individual on a Community Transition List. NH Remedy Members shall be a "priority population" for those who otherwise meet the eligibility criteria for OMH Community Housing programs.
D. Defendants shall provide written materials to nursing homes for their information and for distribution to NH Remedy Members' and Members' guardians and community guardians. These materials will discuss Community Housing, Community Services and Medicaid waiver program options available to NH Remedy Members. Defendants shall provide draft written materials to Plaintiffs' counsel within 90 days of approval of this Stipulation by the Court, with an opportunity to provide comments within seven (7) work days; provided, however, that Defendants shall take such comments under consideration in good faith but shall not be bound to accept them.
E. Any NH Remedy Member discharged to Community Housing prior to the date on which the contract or contract(s) with the Assessment ' Contractor(s) is approved by the Office of the State Comptroller shall be referred to the Assessment Contractor(s); provided, however. that for such NH Remedy Members, the Assessment Contractor(s) shall contirm that
II

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 12 of 19 PageID #: 5069
pre-discharge assessment and discharge planning activities were consistent with this Stipulation, and carry out assessments and discharge planning activities for those NH Remedy Members for whom those activities were not consistent with this Stipulation.
F. PH Remedy Members referenced in Section IV(C) shall be referred to the Assessment Contractor(s) and the provisions of this Section shall apply to them to the same extent as to NH Remedy Members; provided, however, that the Assessment Contractor(s) shall not be required to duplicate the evaluation that was already conducted under the Revised PASRR Level II Process or discharge planning activities already undertaken as to such PH Remedy Members, but shall use best efforts to reasonably further the purposes of this Section with respect to such individuals.
G. The parties' counsel may freely communicate ex parte with the Assessment Contractor(s); provided, however that such communication may not interfere with the work of the Assessment Contractors(s); and provided, further, that nothing in this paragraph shall obligate the Assessment Contractor(s) to provide any information beyond that required under the contract(s).
VI. COMMUNITY HOUSING
A. Within sixty (60) days of the approval by the Office of the State Comptroller of the contract(s) with the Assessment Contractor(s), the Named Plaintiffs shall be assessed and offered Community Housing and Community Services consistent with their clinical and other needs, capabilities and preferences.
B. Within three (3) years of the approval by the Office of the State Comptroller of the contract with the Assessment Contractor(s) (see Section V(B) above), all NH Remedy Members who are capable of and willing to live in the community, as determined by the Assessment Contractor, will be provided with, or otherwise obtain, Community Housing and Community Services consistent with their needs and preferences.
C. Defendants shall use reasonable efforts to obtain Community Housing for Remedy Members in neighborhoods with access to public transportation, community services and wheelchair accessible housing appropriate to their needs.
D. Defendants shall ensure that the housing of any Remedy Member who is hospitalized or placed in a treatment facility after obtaining Community Housing remains available to them for sixty (60) days or for such other period of time as may be provided in statute or regulation or OMH model.
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Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 13 of 19 PageID #: 5070
to the extent they have jurisdiction to do so, unless there is no prospect of the Remedy Member returning.
E. Upon the approval of this Stipulation by the Court, the Defendants shall initiate an ongoing assessment of the existing Community Housing, taking into account the results of the assessment process required in Section V(C) of this Stipulation and assessments by the PASRR Evaluator, to determine what Community Housing is reasonably required to serve Remedy Members capable ofliving in the community.
VII. COMMUNITY SERVICES
A. Upon the approval of this Stipulation by the Court, the Defendants shall initiate an ongoing assessment of the existing Community Services, guided by the results of the assessment process required in Section V(C) of this Stipulation and assessments by the PASRR Evaluator, to determine what services are reasonably required to serve Remedy Members capable of living in the community.
B. All Remedy Members determined by the Assessment Contractor and PASRR Evaluator as able to move to Community Housing, and who do move to Community Housing, will have reasonable access to the array and intensity of Community Services consistent with their clinical needs that are necessary to transition to and live in Community Housing.
C. Defendants shall consider development of federal Medicaid waivers to facilitate meeting the goals of this Stipulation.
D. Defendants shall designate or retain one or more persons, in accordance with applicable provisions oflaw, who will serve as Community Transition Coordinator(s), for the purpose of facilitating the discharge of Remedy Members to the community, as appropriate. Such Community Transition Coordinator(s) shall have experience directly relevant to facilitating discharges to or among community settings.
VIII. ENFORCEMENT
A. The Court shall retain jurisdiction to assure compliance with this Stipulation but not for more than four years from the date this Stipulation is approved by the Court, at which time this Stipulation shall expire. Plaintiffs may move to extend the Court's jurisdiction, which motion shall be granted if the Plaintiffs show by a preponderance of the evidence that significant actions required by this agreement have not yet been completed.
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Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 14 of 19 PageID #: 5071
B. During the four (4) years after this Stipulation is approved by the Court, Defendants shall provide to Plaintiffs' counsel:
I. A copy of the PASRR Evaluator's monthly program report;
2. A copy of the Assessment Contractor(s)'s monthly report, which shall include:
a. A listing of nursing home residents (name and location where the assessment was completed) assessed by the Assessment Contractor and the dates on which the assessment were completed;
b. The identification of the assessed nursing home resident's housing preference, if any;
c. A determination as to whether or not the individual has the functional capabilities to live safely in the community; and
d. The range of community services necessary for the safe and appropriate transition of the assessed nursing home resident.
3. The Evaluation Reports completed by the Assessment Contractor(s) for those NH Remedy Members for whom community placement was found not appropriate.
4. A quarterly report completed by the Community Transition Coordinator, which shall include the discharge locations for each assessed nursing home resident.
5. A copy of that portion of any Community Transition List applicable to any person on such a list as a result of this Stipulation, updated quarterly.
6. Any requests by the Plaintiffs' counsel for relevant information in addition to the information set forth in this section shall not be unreasonably denied. The parties shall negotiate in good faith any areas of disagreement as to whether such information shall be made available.
7. Defendants shall provide information to Plaintiffs' counsel regarding the development of Community Housing at the quarterly meeting described in paragraph VIIJ(C) below.
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Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 15 of 19 PageID #: 5072

C. The parties will meet on a quarterly basis, together with representatives of the Assessment Contractor(s) and the Community Transition Coordinator, to discuss progress and reporting issues.

D. Dispute Resolution

I. In the event of any reported non-compliance by Defendants with a material provision of this Stipulation, counsel to the parties shall meet and confer in an effort to resolve the reported noncompliance within 30 days of receipt of written notice by Defendants' counsel.

2. In the event of a claimed pattern of non-compliance with a material

provision of this Stipulation and a failure to achieve a resolution of

tshee~kisnsQuen-wbiinthdiinng60mdeaqyiastoiofnthbeymtheeetCaonudrtc)orn"f"e'r-,.e;{it"h'q~-

side may +i.<..t"J -j{<-

Covrf ~<cl

1(1"(,11)"(., N tylrJ1A. r, ....... I/" LO"):Jl'-'l-t A{,,, n,cA It tit) .

3. If such mediation fails to achieve a resolution, Plaintiffs may bring

a motion for enforcement of this Stipulation and the Court shall

determine a reasonable schedule for the hearing and determination

of such motion. 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

Stipulation were not minimal or isolated but were substantial and

sufficiently frequent or widespread to be systemic.

4. For purposes of such a motion addressing systemic noncompliance, non-systemic individual and isolated violations of this Stipulation shall not form a basis for a finding that Defendants are not in compliance with this Stipulation nor shall they serve as the basis for a finding of contempt under this Stipulation. This paragraph shall not be construed to interfere with any right of Plaintiffs to seek a remedy of contempt based on an alleged violation by the Defendants of a written order of the court (if any) that was itself the result of a prior successful application of the Plaintiffs to enforce one or more specific provisions of this Stipulation.

IX. ATTORNEYS' FEES AND COSTS

A. In full settlement of all attorneys' fees and other costs that have been or will be incurred in connection with the litigation, Defendants shall pay to Plaintiffs' counsel $2.5 million; provided, however, that additional fees or costs arising from a motion for enforcement pursuant to Section VIll(D) above may be payable as approved by the court.

15

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 16 of 19 PageID #: 5073
B. Payment of the $2.5 million amount referenced in paragraph A will be made as follows:
I. Within 30 days of the enactment of the New York State budget for fiscal year 2012-13, Defendants shall provide to Plaintiffs' counsel a check for one million dollars.
2. Within 30 days of the enactment of the New York State budget for fiscal year 2013-14, Defendants shall provide to Plaintiffs' counsel a check for one million dollars.
3. Within 30 days of the enactment of the New York State budget for fiscal year 2014-15, Defendants shall provide to Plaintiffs' counsel a check for $500,000 dollars.
C. Payment of each of the amounts referred to in this Section is subject to the approval of all appropriate New York State officials in accordance with the provisions of Section 17 of the New York Public Officers Law and, for each fiscal year, shall be subject to appropriation. Defendants will use their best efforts to secure such approvals and appropriations.
X. MISCELLANEOUS
A. Approval of this Stipulation shall be deemed to occur on the date the Court "So Orders" the Stipulation and the Stipulation shall be deemed effective on that date.
B. Nothing contained herein shall be deemed to be an admission by the Defendants that they have in any manner or way violated the Named Plaintiffs' or any Remedy Member'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 bylaws of any department or subdivision of the State of New York.
C. This StipUlation shall not be admissible in, nor is it related to, any other litigation or settlement negotiations, except in an action or proceeding by the Plaintiffs to enforce the terms of this Stipulation.
D. The parties and their counsel shall, during the period that this Stipulation is in effect, continue to be bound by all Protective Orders entered in this litigation. This obligation shall encompass information obtained pursuant to this Stipulation.
E. Nothing in this Stipulation shall be interpreted to require a fundamental alteration of the State's services.
16

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 17 of 19 PageID #: 5074

F. Nothing contained herein shall be deemed to constitute a policy or practice of the Defendants or the State of New York.

G. This Stipulation 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 Stipulation 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.

H. All parties to this Stipulation have participated in its drafting; consequently, any ambiguity shall not be construed for or against any party.

I.

If any of the dates or periods of time described in this Stipulation 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.

J.

All correspondence concerning this Stipulation 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:

John Gasior, Assistant Attorney General Office of the Attorney General 120 Broadway 24th floor New York, New York 10271 Tel: 212-416-8570 e-mail: john.gasior@ag.ny.gov

To Plaintiffs:

Amy E. Lowenstein, Esq. Disability Advocates, Inc. 5 Clinton Square, 3rd Floor Albany New York 12210 Tel. 518-432-7861 e-mail: AL@DisabilityAdvocates.org

Veronica S. Jung, Esq. New York Lawyers for the Public Interest, Inc. vjung@nylpi.org

K. This Stipulation may not be modified without the express written agreement of counsel for the parties. Absent such agreement, the parties

17

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 18 of 19 PageID #: 5075

may seek a modification of this Stipulation only for good cause shown, with the Court's approval, upon thirty (30) days' written notice to counsel for the other parties.

L. This Stipulation 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.

M. Signatories

I. The undersigned representative ofthe Defendants to this litigation and the Attorney General of the State of New York certifies that he is authorized to enter into the terms and conditions of this Stipulation and to execute and bind legally such Defendants to this document.

2. Each undersigned representative of Plaintiffs certifies that he or she is authorized to enter into the terms and conditions of the Stipulation and to bind legally the Plaintiffs to this document.

For Plaintiffs JOSEPH S.; STEVEN W.; and DISABILITY ADVOCATES, INC.:

I l~ Dated: q

J-.D 1/

Cliff Zucker

Timothy A. Clune

Nina Loewenstein

Amy E. Lowenstein

DISABILITY ADVOCATES, INC.

5 Clinton Square, 3rd Floor

Albany, New York 12207

(518) 432-7861

Dated: '/~/I\

By

Beth D. Jacob

Robert H. Rickner

SCHIFF HARDIN LLP

666 Fifth Avenue, Suite 1700

New York. New York 10103

(212) 753-5000

,/4.+4

BY:~

18

Case 2:06-cv-01042-BMC-SMG Document 232 Filed 09/07/11 Page 19 of 19 PageID #: 5076

Kelly McAnnany Aditi Kothekar Shah NEW YORK LA WYERS FOR THE PUBLIC INTEREST, INC. 151 West 30th Street, 11th Floor New York, New York 10001 (212) 244-4664

For Defendants GOVERNOR ANDREW M. CUOMO, MICHAEL F. HOGAN, THE

NEW YORK STATE OFFICE OF MENTAL HEALTH, NIRAV R. SHAH, and THE

NEW YORK STATE DEPARTMENT OF HEALTH:

\. /:, ,/-1
' , Dated: ~X ~j.·7 L,J C A l 1I3yI::~(~ ' ( ~6-i-C--L ~'

John Gasior

\

!

Joshua Pepper

0

ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

120 Broadway

NewYork,NewYork 10271

(212) 416-8570

SO ORDERED
~xoo~, New, ~~~~

.-"'1 /l

/)

s/ BMC

BRIAN M. COG United States Di

19

 
 CLOSED,CASREF,MEDIATION
U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:06−cv−01042−BMC−SMG

Joseph S., et al v. Michael F. Hogan, et al Assigned to: Judge Brian M. Cogan Referred to: Chief Mag. Judge Steven M. Gold Cause: 42:1396 − Tort Negligence
Mediator Esq. Abe Tawil

Date Filed: 03/08/2006 Date Terminated: 09/06/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by Abe D. Tawil 977 East 7th Avenue Brooklyn, NY 11230 (212) 802−2750 Fax: (212) 802−2745 Email: Abe_Tawil@baruch.cuny.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mediator Hon. (Ret.) Kathleen A. Roberts

represented by Kathleen Anne Roberts JAMS 620 Eighth Avenue 34th Floor New York, NY 10018 (212) 751−2700 Fax: (212) 751−4099 Email: kroberts@jamsadr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Edwin T. TERMINATED: 07/01/2008

represented by Beth D. Jacob Schiff, Hardin & Waite 900 Third Avenue New York, NY 10022 212−753−5000 Fax: 212−753−5044 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clifford H. Zucker Disability Advocates, Inc. 5 Clinton Square 3rd Floor Albany, NY 12207 518−432−7861 Fax: 518−427−6561 Email: cz@disabilityadvocates.info LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Bruce Feld Mental Hygiene Legal Service Second Judicial Department 170 Old Country Road, Suite 500 Mineola, NY 11501 516−746−4373 Fax: 516−746−0598

Email: dbfeld@courts.state.ny.us TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe State of New York Mental Hygiene Legal Service 170 Old Country Road Suite 500 Mineola, NY 11501 516−746−4373 Fax: 516−746−0598 Email: lvolpe@courts.state.ny.us TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer Schiff Hardin LLP 900 Third Avenue New York, NY 10022 212−745−0814 Fax: 212−753−5044 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado 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: mlado@nylpi.org TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price NYLPI 151 West 30th Street 11th Floor New York, NY 10001 212−244−4664 Fax: 212−244−4570 Email: rebeccatprice@hotmail.com TERMINATED: 12/13/2006 LEAD ATTORNEY 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 TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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 TERMINATED: 08/12/2009 LEAD ATTORNEY
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
Amy E. Lowenstein Disability Advocates, Inc. 5 Clinton Square 3rd Floor Albany, NY 12207 518−432−7861 Fax: 518−427−6561 Email: al@disability−advocates.org ATTORNEY TO BE NOTICED
Jeanne Cho Schiff Hardin LLP 900 Third Avenue New York, NY 10022 212−753−5000 Fax: 212−753−5044 ATTORNEY TO BE NOTICED
Kelly Jane McAnnany 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: kmcannany@nylpi.org ATTORNEY TO BE NOTICED
Nina Loewenstein Disability Advocates, Inc. 5 Clinton Square, 3rd Floor Albany, NY 12207 (518)432−7861 Fax: (518)427−6561 Email: nina.loewenstein@disabilityrightsny.org ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal 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: nagarwal@nylpi.org ATTORNEY TO BE NOTICED

Plaintiff
Omar W. TERMINATED: 07/26/2007

Rachael E Seevers Mental Hygiene Legal Service 170 Old Country Road Room 500 Mineola, NY 11501 516−746−4373 Fax: 516−746−4372 TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner Schiff Hardin LLP 900 Third Avenue 23rd Floor New York, NY 10022 212−745−0855 Fax: 212−753−5044 ATTORNEY TO BE NOTICED
Robert H. Rickner Schiff Hardin LLP 900 3rd Ave New York, NY 10022 212−745−9542 Fax: 212−753−5044 ATTORNEY TO BE NOTICED
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
Sandra Del Valle New York Lawyers for the Public Interest 151 West 30th Street New York, NY 10001 212−244−4664 Fax: 212−244−4570 Email: svalle@optonline.net ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe

(See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 05/30/2007 LEAD ATTORNEY
Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Carlos S. TERMINATED: 07/26/2007

Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 05/30/2007 LEAD ATTORNEY

Plaintiff
Justina F. TERMINATED: 07/26/2007

Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe (See above for address)

TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 08/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lisa H. TERMINATED: 07/26/2007

Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 05/30/2007 LEAD ATTORNEY

Plaintiff Joseph S.

Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe (See above for address)

TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 05/30/2007 LEAD ATTORNEY
Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Kelly Lloyd Morron Schiff Hardin LLP 900 Third Avenue New York, NY 10022 (212) 745−0844 Fax: (212) 753−5044 Email: kmorron@schiffhardin.com ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Disability Advocates, Inc.

Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
Veronica Seungwon Jung New York Lawyers for the Public Interest, Inc. 151 West 30th Street 11th Floor New York, NY 10001 212−244−4664 Fax: 212−244−4570 Email: vjung@nylpi.org ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Kelly Lloyd Morron (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle

Plaintiff
Sidney Hirschfeld Director, Mental Hygiene Legal Service, Second Judicial Department TERMINATED: 07/11/2011

(See above for address) ATTORNEY TO BE NOTICED
Veronica Seungwon Jung (See above for address) ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Volpe (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 05/30/2007 LEAD ATTORNEY
Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address)

Plaintiff
Bradley W. TERMINATED: 07/26/2007

ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Kelly Lloyd Morron (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
Veronica Seungwon Jung (See above for address) ATTORNEY TO BE NOTICED
represented by Beth D. Jacob (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clifford H. Zucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Bruce Feld (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Volpe (See above for address) TERMINATED: 08/04/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne L. Engelman Lado (See above for address) TERMINATED: 07/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Price (See above for address) TERMINATED: 12/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address) TERMINATED: 05/30/2007 LEAD ATTORNEY
Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein Disability Advocates, Inc. 5 Clinton Square, 3rd Floor Albany, NY 12207 (518)432−7861 Fax: (518)427−6561 Email: nl@wnylc.com ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address)

Plaintiff Steven W.

TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Sandra Del Valle (See above for address) ATTORNEY TO BE NOTICED
represented by Aditi Kothekar Shah (See above for address) ATTORNEY TO BE NOTICED
Amy E. Lowenstein (See above for address) ATTORNEY TO BE NOTICED
Jeanne Cho (See above for address) ATTORNEY TO BE NOTICED
Kelly Jane McAnnany (See above for address) ATTORNEY TO BE NOTICED
Kelly Lloyd Morron (See above for address) ATTORNEY TO BE NOTICED
Lori D. Greendorfer (See above for address) ATTORNEY TO BE NOTICED
Nina Loewenstein (See above for address) ATTORNEY TO BE NOTICED
Nisha Suresh Agarwal (See above for address) ATTORNEY TO BE NOTICED
Rachael E Seevers (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Richard B. Verner (See above for address) ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lesley M. Delia
V. Defendant Sharon Carpinello in her official capacity as Commissioner of the New York State Office of Mental Health TERMINATED: 07/26/2007

Roberta L. Mueller (See above for address) ATTORNEY TO BE NOTICED
Roger A. Bearden (See above for address) TERMINATED: 03/09/2011 ATTORNEY TO BE NOTICED
Timothy A. Clune (See above for address)
Veronica Seungwon Jung (See above for address) ATTORNEY TO BE NOTICED
represented by Lisa Volpe (See above for address) TERMINATED: 08/04/2011 ATTORNEY TO BE NOTICED
Robert H. Rickner (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Shaw Wheeler Office of the Attorney General State of New York 120 Broadway New York, NY 10271−0332 212−416−8000 Fax: 212−416−6009 TERMINATED: 12/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hochhauser Office of the Attorney General 120 Broadway, 24th Floor New York, NY 10271 212−416−8629 Fax: 212−416−6077 TERMINATED: 07/02/2008
Joanne Skolnick State of New York Office of the Attorney General 120 Broadway New York, NY 110271 212−416−8556 Fax: 212−416−6009 TERMINATED: 05/21/2008
John Peter Gasior Assistant Attorney General 120 Broadway 24th Floor New York, NY 10271

Defendant New York State Office of Mental Health
Defendant Antonia C. Novello in her official capacity as Commissioner

(212) 416−8570 Fax: (212) 416−6077 Email: john.gasior@ag.ny.gov ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper Office of the Attorney General 120 Broadway, 24th Floor New York, NY 10271 212−416−8567 Fax: 212−416−6075 Email: joshua.pepper@oag.state.ny.us ATTORNEY TO BE NOTICED
Michael Anthony Arcati State of New York Office of the Attorney General 120 Broadway New York, NY 10271 212−416−8508 Fax: 212−416−6009 Email: michael.arcati@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Christopher Shaw Wheeler (See above for address) TERMINATED: 12/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hochhauser (See above for address) TERMINATED: 07/02/2008
Joanne Skolnick (See above for address) TERMINATED: 05/21/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
Scott Ronald Wilson Office of the Attorney General of the State of New York 120 Broadway 25th Floor New York, NY 10271−0332 (212) 416−8167 Email: scott.wilson@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Christopher Shaw Wheeler (See above for address)

of the New York State Department of Health TERMINATED: 07/26/2007
Defendant New York State Department of Health
Defendant George Pataki in his official capacity as Governor of the State of New York TERMINATED: 07/26/2007

TERMINATED: 12/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hochhauser (See above for address) TERMINATED: 07/02/2008
Joanne Skolnick (See above for address) TERMINATED: 05/21/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Shaw Wheeler (See above for address) TERMINATED: 12/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hochhauser (See above for address) TERMINATED: 07/02/2008
Joanne Skolnick (See above for address) TERMINATED: 05/21/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
Scott Ronald Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Shaw Wheeler (See above for address) TERMINATED: 12/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hochhauser (See above for address)

Defendant Michael Hogan Commissioner of the New York State Office of Mental Health
Defendant Richard F. Daines Commissioner of the New York State Department of Health
Defendant David A. Paterson Governor of the State of New York

TERMINATED: 07/02/2008
Joanne Skolnick (See above for address) TERMINATED: 05/21/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah Hochhauser (See above for address) TERMINATED: 07/02/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
Scott Ronald Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah Hochhauser (See above for address) TERMINATED: 07/02/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
Scott Ronald Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah Hochhauser (See above for address)

Interested Party
Promesa RHCF Promesa RHCF

TERMINATED: 07/02/2008
John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED
Joshua Benjamin Pepper (See above for address) ATTORNEY TO BE NOTICED
Michael Anthony Arcati (See above for address) ATTORNEY TO BE NOTICED
Scott Ronald Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Kelly Murray Manatt, Phelps & Phillips, LLP 7 Times Square New York, NY 10036 212−790−4509 Fax: 212−790−4545 Email: emurray@manatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/08/2006 03/08/2006 03/08/2006
03/13/2006 03/29/2006 04/12/2006
05/05/2006 05/05/2006 05/10/2006

# Docket Text
1 COMPLAINT (Receipt #322175) against all defendants $ 250, filed by all plaintiffs. (Attachments: # 1 Civil Cover Sheet)(McMahon, Carol) Modified on 3/31/2006 (McMahon, Carol). (Entered: 03/13/2006)
Summons Issued as to Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (McMahon, Carol) (Entered: 03/13/2006)
2 DISCLOSURE of Interested Parties by Omar W., Bradely W.,Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld.(McMahon, Carol) Modified on 3/31/2006 (McMahon, Carol). Modified on 3/31/2006 (McMahon, Carol). (Entered: 03/13/2006)
Case Ineligible for Arbitration(Bollbach, Jean) (Entered: 03/13/2006)
3 NOTICE of Appearance by John P. Gasior on behalf of all defendants (Gasior, John) (Entered: 03/29/2006)
4 ORDER endorsed on letter dated 3/22/06 from AAG Christopher Wheeler to Judge Sandra J. Feuerstein requesting the defendants' time for answering or moving be extended to Friday, May 12, 2006. The Clerk is directed to assign this case to my Brooklyn pending docket and reassign a new Magistrate Judge from the Brooklyn wheel. Ordered by Judge Sandra J. Feuerstein on 3/29/06. (Black, Amanda) (Entered: 04/12/2006)
6 Letter MOTION for Extension of Time to File Answer to May 19, 2006 by New York State Department of Health. (Mierzejewski, Elizabeth) (Entered: 05/26/2006)
7 MOTION for Extension of Time to File Answer re 1 Complaint to May 19, 2006 by New York State Department of Health. (Mierzejewski, Elizabeth) (Entered: 05/26/2006)
ENDORSED ORDER granting 6 Motion for Extension of Time to Answer re 6 Letter MOTION for Extension of Time to File Answer to May 19, 2006 . Ordered by JudgeSandra J. Feuerstein on 5/10/06. (Mierzejewski, Elizabeth) (Entered:

05/18/2006 05/18/2006 05/23/2006 06/05/2006 06/16/2006 06/16/2006 06/22/2006 06/29/2006 07/10/2006
07/12/2006 07/21/2006 07/28/2006
07/31/2006 08/17/2006 08/28/2006 08/28/2006

05/26/2006)
5 Defendants' ANSWER to Complaint by all defendants.(Wheeler, Christopher) (Entered: 05/18/2006)
ORDER granting 7 Motion for Extension of Time to Answer re 7 MOTION for Extension of Time to File Answer re 1 Complaint to May 19, 2006 . Ordered by JudgeSandra J. Feuerstein on 5/18/06. (Mierzejewski, Elizabeth) (Entered: 05/26/2006)
11 NOTICE that the parties are to appear for a Status conference on June 16, 2006 @10:00 a.m. @ the Central Islip Courthouse. The conference is to be held before the Honorable Sandra J. Feuerstein. (Mierzejewski, Elizabeth) (Entered: 06/20/2006)
8 AFFIDAVIT of Service for the Summons and Complaint and Civil Cover Sheet served on Defendants, filed by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Jacob, Beth) (Entered: 06/05/2006)
9 REPORT of Rule 26(f) Planning Meeting. (Greendorfer, Lori) (Entered: 06/16/2006)
10 NOTICE by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld Proposed Protective Order (Greendorfer, Lori) (Entered: 06/16/2006)
12 PROTECTIVE ORDER. Ordered by Judge Sandra J. Feuerstein on 6/22/06. (Mierzejewski, Elizabeth) (Entered: 07/06/2006)
Request for Status Report. This case has been transferred to Judge Cogan. The parties are directed to submit a joint Status Report by 7/13/2006. (Kolker, Dina) (Entered: 06/29/2006)
13 SCHEDULING ORDER: The parties having advised the Court that Judge Feuerstein has stayed discovery in this action pending settlement negotiations until 9/18/06, it is therefore ORDERED that a Status Conference is set for 9/18/2006 09:30 AM before Judge Brian M. Cogan. Counsel are directed to bring to the conference a completed Case Management Plan, which may refer to any discovery previously taken. (See attached form). The parties are advised that they should not expect any further stays of discovery beyond 9/18/06 absent good cause. Counsel are reminded that this is an ECF case and that all submissions should be made through ECF and in accordance with the Judge Cogan's rules, available at http://www.nyed.uscourts.gov/. Ordered by Judge Brian M. Cogan on 7/10/06(Kolker, Dina) (Entered: 07/10/2006)
14 STATUS REPORT dtd. 7/7/06 from Lori Greendorfer.Parties look foward to meeting concerning status of case on 9/18/06 (Jackson, Ramona) (Entered: 07/12/2006)
15 PROTECTIVE ORDER . Ordered by Judge Sandra J. Feuerstein on 6/26/06. (Fernandez, Erica) (Entered: 07/21/2006)
ORDER REFERRING CASE to Magistrate Judge William D. Wall. This case is hereby REFERRED to Judge Wall. The status conference previously set for 9/18/06 before Judge Cogan is cancelled. The conference will be held at a date and time to be set by Judge Wall. Ordered by Judge Brian M. Cogan on 7/28/06. (Kolker, Dina) (Entered: 07/28/2006)
Mag. Judge Steven M. Gold added by random selection. Mag. Judge William D. Wall no longer assigned to case. (Vaughn, Terry) Modified on 8/7/2006 to indicate that Judge Feuerstein requested the assignment of a Brooklyn magistrate judge. (Vaughn, Terry). (Entered: 07/31/2006)
16 SCHEDULING ORDER attached: Initial Conference set for 10/11/2006 at 10:00 AM in 13D South before Magistrate−Judge Steven M. Gold. So Ordered by Judge Steven M. Gold on 8/17/2006. (Vasquez, Lea) (Entered: 08/17/2006)
17 STIPULATION of Dismissal Without Prejudice by Bradley W., Justina F., Lisa H.. (Greendorfer, Lori) (Entered: 08/28/2006)
18 Letter dated 8/28/06 from Lori D. Greendorfer, Esq. confirming adjournment of 10/11/06 Initial Conference from 10 A.M. to 11 A.M. by Bradley W., Omar W., Carlos

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S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 08/28/2006)
NOTICE of Hearing: Initial Conference set for 10/11/2006 at 11:00 AM in 13D South before Magistrate−Judge Steven M. Gold. (Vasquez, Lea) (Entered: 08/29/2006)
Minute Entry for proceedings held before Steven M. Gold : Initial Conference Hearing held on 10/11/2006. Bearden et al for plaintiffs, Gasior and Wheeler for defendants. (1) Plaintiffs will serve interrogatories and document demands by October 27, and defendants will respond on a rolling basis beginning November 29 and completing their responses by January 12. (2) Defendants will serve interrogatories and document demands by November 10, and plaintiffs will respond on a rolling basis beginning December 15 and completing their responses by January 12. (3) Counsel shall submit a discovery plan by January 30 which identifies deponents and proposes a a schedule for conducting depositions. (4) Plaintiffs will submit a letter by October 25 stating whether they are interested in participating in court−annexed mediation (defendants have already expressed their interest). NEXT CONFERENCE: FEB. 8 AT 2 PM. (Vasquez, Lea) (Entered: 10/12/2006)
19 Letter dated 10/18/06 from Lori Greendorfer, Esq. to Magistrate Gold stating Plaintiffs are interested in participating in court−annexed mediation by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 10/18/2006)
20 Letter to Magistrate Judge Steven M. Gold by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 10/19/2006)
ORDER REFERRING CASE to Mediation.Selection of Mediator due by 11/8/2006.. Ordered by Judge Steven M. Gold on 10/25/06. (Gold, Steven) (Entered: 10/25/2006)
21 SELECTION OF MEDIATOR Abe Tawil represented by Abe D. Tawil selected as Mediator.The first mediation session will take place at 10:00AM on 12/12/06 in the Courthouse of the Eastern District of New York, Conference Room 302 South, 225 Cadman Plaza East, Brooklyn, NY 11201. 12/19/06 is the back up date if an alternative or additional session is required. Seven (7) days in advance of the first mediation session, Counsel must file with the Mediator their client's Mediation Statement outlining the facts, legal issues, and particulars of any prior settlement discussions. Attendance in person is required of the trial counsel and client representative with full settlement authority. Mediator's contact information is: Abe D. Tawil, MD, JD, 977 East 7th Street, Brooklyn, NY 11230; telephone (646) 312−3658; fax 646−312−3621; email address "AbeDTawil@hotmail.com".Report of Mediation due by 12/31/2006.(Lepp, Gerald) (Entered: 10/26/2006)
22 Minute Entry for proceedings held before Sandra J. Feuerstein : Docket Call held on 6/26/2006. (Credle, Rita) Modified on 10/30/2006 (Credle, Rita). (Entered: 10/27/2006)
23 Letter to Magistrate Judge Gold by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 11/08/2006)
Email Notification Test − DO NOT REPLY (Permaul, Jenny) (Entered: 11/09/2006)
Email Notification Test − DO NOT REPLY (Permaul, Jenny) (Entered: 11/09/2006)
24 Letter to Magistrate Judge Steven M. Gold by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 11/14/2006)
ORDER re 24 Letter filed by George Pataki,, New York State Department of Health,, New York State Office of Mental Health,, Antonia C. Novello,, Sharon Carpinello. The parties' joint application to stay discovery for 30 days while mediation proceeds is GRANTED. Ordered by Judge Steven M. Gold on 11/22/06. (Gold, Steven) (Entered: 11/22/2006)
25 NOTICE of Appearance by Sandra Del Valle on behalf of all plaintiffs (Del Valle, Sandra) (Entered: 12/01/2006)

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SELECTION OF MEDIATOR Kathleen A. Roberts rep by Kathleen Anne Roberts selected as Mediator.Report of Mediation due by 12/29/2007.(Lepp, Gerald) (Entered: 12/05/2006)
26 Letter to Magistrate Judge Gold regarding mediation and stay of discovery by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 12/12/2006)
28 Letter dated 12/8/06 from Christopher S. Wheeler, to Judge Cogan advising that counsel will no longer be employeed with the NYS Office of the Attorney General. (Guzzi, Roseann) (Entered: 12/14/2006)
ORDER re 26 Letter filed by George Pataki,, New York State Department of Health,, New York State Office of Mental Health,, Antonia C. Novello,, Sharon Carpinello. The parties' request to stay discovery until February 15, 2007 is GRANTED. An updated status report is to be filed by February 19, 2007. So Ordered by Magistrate Judge Steven M. Gold on 12/13/2006. (Vasquez, Lea) (Entered: 12/13/2006)
27 NOTICE of Appearance by Joanne Skolnick on behalf of all defendants (Skolnick, Joanne) (Entered: 12/14/2006)
29 Letter to Magistrate Judge Gold regarding mediation by Edwin T., Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 02/01/2007)
30 ORDER attached re 29 Letter filed by New York State Department of Health, George Pataki, Edwin T., Sharon Carpinello, Antonia C. Novello, New York State Office of Mental Health. (Vasquez, Lea) (Entered: 02/02/2007)
31 Letter to Magistrate Judge Gold regarding 3/20/07 mediation by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 03/21/2007)
ORDER re 31 Letter filed by New York State Department of Health, George Pataki, Sharon Carpinello, Antonia C. Novello, New York State Office of Mental Health. The stay of discovery is extended to April 17th. An in−person conference will be held at 2:00 p.m. on April 17, 2007 to discuss the possibility of resuming discovery in this case. Counsel for all parties must attend. So Ordered by Magistrate Judge Steven M. Gold on 3/23/2007. (Vasquez, Lea) (Entered: 03/23/2007)
32 Letter to Magistrate Judge Gold by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 04/16/2007)
SCHEDULING ORDER: The conference scheduled for today is adjourned to 11:00 a.m. on April 24th. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/17/2007. (Vasquez, Lea) (Entered: 04/17/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 4/24/2007. Zucker, Volpe, DelValle for plaintiffs, Gasior and Held for defendants. Counsel will meet confer over the next two weeks in an effort to narrow their disputes over the proper scope of discovery. Parties will begin producing rolling responses to outstanding written discovery demands by May 8th and complete production by June 5th. Any motions to compel or for protective order to be made by June 12th, with opposition due June 22nd and reply papers due June 29th. NEXT CONFERENCE: JULY 10TH AT 11:00 A.M. (Vasquez, Lea) (Entered: 04/26/2007)
33 NOTICE by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld Notice of Withdrawal of Timothy A. Clune − 5/14/07 (Greendorfer, Lori) (Entered: 05/14/2007)
34 Letter to Magistrate Judge Steven M. Gold dated 5/22/07 by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 05/22/2007)
ORDER re 34 Letter filed by Joseph S., Bradley W., Omar W., Justina F., Sidney Hirschfeld, Carlos S., Lisa H., Edwin T., Disability Advocates, Inc. The application for plaintiff's and defendants' motions to be governed by the page limitations set forth in Rule 2(C) of this court's Individual Motion Practices, with memoranda of law in

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support of and in opposition to motions limited to 25 pages, and reply memoranda limited to 10 pages is GRANTED. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/24/2007. (Vasquez, Lea) (Entered: 05/24/2007)
35 Letter to Judge Cogan and Mag. J. Gold regarding motion for protective order by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 06/12/2007)
36 Letter dated 6/12/07 to John Gasior from Lori Greendorfer by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 06/12/2007)
37 NOTICE of Change of Plaintiff's Firm Address by Lori D. Greendorfer (Greendorfer, Lori) (Entered: 06/18/2007)
38 Letter regarding service of defendant's opposition to plaintiffs' motion to compel by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 06/22/2007)
39 Letter regarding service of plaintiffs' opposition to defendants' motion for protective order by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Bearden, Roger) (Entered: 06/22/2007)
40 Letter regarding service of defendants' reply papers in support of defendants' motion for a protective order by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 06/29/2007)
41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 06/29/2007)
42 MEMORANDUM in Support re 41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law Plaintiff's Memorandum of Law in Support of their Motion to Compel Discovery by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Attachments: # 1 Appendix A) (Greendorfer, Lori) (Entered: 06/29/2007)
43 MOTION for Protective Order and to compel a response to certain interrogatories by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 06/29/2007)
44 AFFIDAVIT/AFFIRMATION re 42 Memorandum in Support, 35 Letter, 39 Letter, 41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law Affidavit of Dennis B. Feld, Esq. in Opposition to the Defendant's Motion for a Protective Order and in further support of the Plaintiff's Motion to Compel by Bradley W., Omar W., Carlos S., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 06/29/2007)
45 AFFIDAVIT/AFFIRMATION re 42 Memorandum in Support, 44 Affidavit,, 43 MOTION for Protective Order and to compel a response to certain interrogatories, 35 Letter, 39 Letter, 41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law Affidavit of Roger Bearden, Esq. in Opposition to the Defendant's Motion for a Protective Order and in further support of the Plaintiff's Motion to Compel by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 06/29/2007)
46 AFFIDAVIT/AFFIRMATION re 42 Memorandum in Support, 45 Affidavit,, 44 Affidavit,, 43 MOTION for Protective Order and to compel a response to certain interrogatories, 35 Letter, 39 Letter, 41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law Affidavit of Cliff Zucker, Esq. in Opposition to the Defendant's Motion for a Protective Order and in further support of the Plaintiff's Motion to Compel by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability

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Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 06/29/2007)
47 MOTION for Protective Order and to compel a response to certain interrogatories by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Attachments: # 1 Affidavit Affidavit of Patrick Clemente# 2 Affidavit Affidavit of John Gasior# 3 Affidavit Affidavit of Alan Holmes# 4 Affidavit Affidavit of James McQuide# 5 Affidavit Affidavit of Mary Ann Monaco# 6 Affidavit Affidavit of Stephanie O'Connell# 7 Affidavit Affidavit of Josehp Rini# 8 Affidavit Affidavit of Richard Pellegrini) (Gasior, John) (Entered: 06/29/2007)
48 MEMORANDUM in Opposition re 43 MOTION for Protective Order and to compel a response to certain interrogatories Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion for a Protective Order and to compel Discovery by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 06/29/2007)
49 MEMORANDUM in Opposition re 48 Memorandum in Opposition, 43 MOTION for Protective Order and to compel a response to certain interrogatories, 47 MOTION for Protective Order and to compel a response to certain interrogatories Plaintiff's Memorandum of Law in Further Support of their Opposition to the Defendant's Motion for a Protective Order by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 06/29/2007)
50 MOTION for Protective Order and to compel a response to certain interrogatories by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Attachments: # 1 Affidavit Reply Affidavit of John Gasior# 2 Affidavit Reply Affidavit of Michael Lindsey# 3 Affidavit Reply Affidavit of Mary Ann Monaco# 4 Affidavit Reply Affidavit of Richard Pellegrini# 5 Affidavit Reply Affidavit of Alfred Volo) (Gasior, John) (Entered: 06/29/2007)
51 MOTION to Compel − Defendants' papers in opposition − by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Attachments: # 1 Affidavit of Deborah Scott in opposition to plaintiffs' motion to compel) (Gasior, John) (Entered: 06/29/2007)
52 Letter to Judge Brian M. Cogan by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 06/29/2007)
53 MOTION to Compel − Affidavit of John Gasior in opposition to plaintiffs' motion to compel, part 1 of 3 by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 06/29/2007)
54 MOTION to Compel − Affidavit of John Gasior in opposition to plaintiffs' motion to compel, part 2 of 3 by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 06/29/2007)
55 MOTION to Compel − Affidavit of John Gasior in opposition to plaintiffs' motion to compel, part 3 of 3 by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki. (Gasior, John) (Entered: 06/29/2007)
56 AFFIDAVIT in Support re 43 MOTION for Protective Order and to compel a response to certain interrogatories, 41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law Declaration of Lori D. Greendorfer in Support of the Plaintiff's Motion to Compel Discovery filed by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J) (Greendorfer, Lori) (Entered: 06/29/2007)

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57 AFFIDAVIT in Support re 41 MOTION to Compel the Defendants to Respond to Certain Discovery Requests identified in the Plaintiff's Memorandum of Law Affidavit of Roger Bearden, Esq. filed by Bradley W., Omar W., Carlos S., Edwin T., Justina F., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 06/29/2007)
ORDER REFERRING proposed motion to dismiss to Magistrate Judge Gold to schedule such proceedings as he deems fit and and to render a report and recommendation as to the proposed motion. Since the pending discovery motions overlap with the proposed motion to dismiss, it will be efficient for Judge Gold to handle all of these matters in the first instance. Ordered by Judge Brian M. Cogan on 2 July 2007. (Cogan, Brian) (Entered: 07/02/2007)
ORDER: By Order of today's date, Judge Cogan, noting that the pending discovery motions overlap with the defendants' proposed motion to dismiss, has referred the motions to dismiss to me for report and recommendation. Accordingly, the conference previously set for July 10 will proceed as scheduled, but this court will conduct a pre−motion conference with respect to the defendants' proposed motions to dismiss at that time, and set a schedule for briefing them. Counsel shall be prepared to identify those aspects of discovery which should proceed, and those aspects of the pending discovery motions which are ripe for decision, even while the Rule 12 motions are being briefed. Ordered by Judge Steven M. Gold on 07/02/07. (Gold, Steven) (Entered: 07/02/2007)
58 Letter to Hon. Steven M. Gold by Disability Advocates, Inc. (Zucker, Cliff) (Entered: 07/03/2007)
ORDER granting in part and denying in part 41 Motion to Compel, as more fully stated on the record; granting in part and denying in part 43 Motion for Protective Order as more fully stated on the record; terminating 47 Motion for Protective Order; terminating 50 Motion for Protective Order; terminating 51 Motion to Compel; terminating 53 Motion to Compel; terminating 54 Motion to Compel; terminating 55 Motion to Compel, all of which were improperly filed as motions when in fact they are memoranda or affidavits filed in support of or opposition to motions. Ordered by JudgeSteven M. Gold on 07/10/07. (Gold, Steven) (Entered: 07/10/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 7/10/2007. Beardon, Zucker and Volpe for plaintiffs, Gaisor for defendants. (1) With respect to defendants' anticipated Rule 12 motion: Plaintiffs will either file an amended complaint on consent by July 24 or indicate by that date that they intend to rely on their existing pleading. Defendants will file their motion to dismiss by August 21, plaintiffs will file their opposition by October 5, and defendants will file their reply by October 19. ORAL ARGUMENT: NOVEMBER 1 AT 2 PM. (2) With respect to the discovery cross−motions, each is granted in part and denied in part as stated more fully on the record. (Tape #FTR: 11:07 − 1:48.) (Vasquez, Lea) (Entered: 07/11/2007)
59 Letter to Magistrate Judge Gold regarding proposed CMS order by Sharon Carpinello, New York State Office of Mental Health, Antonia C. Novello, New York State Department of Health, George Pataki (Gasior, John) (Entered: 07/24/2007)
60 AMENDED COMPLAINT First Amended Complaint against all defendants, filed by all plaintiffs. (Attachments: # 1) (Greendorfer, Lori) (Entered: 07/24/2007)
ORDER re 59 Letter filed by New York State Department of Health, George Pataki, Sharon Carpinello, Antonia C. Novello, New York State Office of Mental Health. Defendants are granted to July 27th to supply the Court with a proposed Order regarding the production of MDS data. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/24/2007. (Vasquez, Lea) (Entered: 07/24/2007)
61 TRANSCRIPT of Proceedings for Civil Cause for Premotion and Discovery Conf. held on 7/10/2007 before Mag. Judge Gold. Appearances for Pltffs: Roger A. Bearden, Esq., Cliff Zucker, Esq. and Lisa Volpe, Esq.; for Defts: AAG John P. Gasior. Court Transcriber: Ruth Ann Harger of Typewrite Word Processing Service, 356 Eltingville Blvd., S.I. NY 10302. (Pgs. 2−112). (Filed in Hard Copy in Case File). (Layne, Monique) (Entered: 07/25/2007)

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62 Letter to Magistrate Judge Steven M. Gold requesting extension of time to submit proposed order regarding CMS data by Michael Hogan, Richard F. Daines, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 07/26/2007)
63 ORDER re 62 Letter filed by New York State Department of Health, Richard F. Daines, Michael Hogan, New York State Office of Mental Health. The application to extend the time to submit a proposed order governing production of the data in issue is GRANTED, except that the parties proposed order shall be submitted by August 15, 2007 rather than August 17, 2007, as requested. (Vasquez, Lea) (Entered: 07/30/2007)
64 NOTICE of Appearance by Deborah Hochhauser on behalf of all defendants (aty to be noticed) (Hochhauser, Deborah) (Entered: 07/30/2007)
65 Letter regarding production of PRI data as ordered by Magistrate Judge Steven Gold by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 08/07/2007)
66 ANSWER to Amended Complaint by all defendants. (Hochhauser, Deborah) (Entered: 08/13/2007)
67 Joint MOTION for Discovery regarding Minimum Data Set by all parties. (Bearden, Roger) (Entered: 08/13/2007)
68 Letter concerning joint motion for discovery of Minimum Data Set by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Bearden, Roger) (Entered: 08/13/2007)
ORDER granting 67 Motion for Discovery and entering proposed order as an order of the court. Ordered by JudgeSteven M. Gold on 08/13/07. (Gold, Steven) (Entered: 08/13/2007)
69 Letter to Magistrate Judge Gold regarding extension of briefing schedule by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 08/16/2007)
ORDER re 69 Letter filed by New York State Department of Health, Richard F. Daines, Eliot Spitzer, Michael Hogan, New York State Office of Mental Health. The schedule submitted in defendant's letter dated August 16th extending the briefing schedule with respect to defendant's motion to dismiss is APPROVED. The oral argument previously scheduled for November 1st will instead be held at 10:00 a.m. on November 15, 2007. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/17/2007. (Vasquez, Lea) (Entered: 08/17/2007)
70 Letter MOTION for Discovery to set discovery deadline and order access to electronic database by all plaintiffs. (Attachments: # 1 Exhibit Exhibit A to Motion) (Bearden, Roger) (Entered: 08/23/2007)
71 SCHEDULING ORDER Attached:Status Conference set for 9/10/2007 at 11:30 AM in 13D South before Chief Magistrate Judge Steven M. Gold. (Vasquez, Lea) (Entered: 08/26/2007)
72 Letter in opposition to plaintiffs' letter motion to set discovery deadline and order access to electronic database by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 08/28/2007)
73 NOTICE of Appearance by Amy E. Lowenstein on behalf of all plaintiffs (aty to be noticed) (Lowenstein, Amy) (Entered: 08/28/2007)
ORDER granting 70 Motion for Discovery. See calendar entry dated 9/10/2007. Ordered by Chief Magistrate Steven M. Gold on 9/10/2007. (Brucella, Michelle) (Entered: 03/11/2008)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 9/10/2007. Volpe, Greendorfer, Del Valle and Engelman Lado for plaintiffs; Gasior and Hochhauser for defendants. (1) Defendants will continue their rolling production of documents and complete same, minus emails, by October 16th. By that same date, defendants will provide information about the fields and nature of information that

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may be retrieved from the "SPARCS" database, and how that database interacts with the MDS database administered by CMS. Defendants will also continue collecting e−mails and other electronically stored documents, and develop a protocol for searching e−mails to be implemented after additional other hard−copy and electronically stored documents have been produced. (2) With respect to defendants' motion to dismiss, moving and opposing memoranda may be as long as 50 pages, and defendants' reply memorandum may be up to 25 pages long. (Tape #FTR 11:41−12:20.) (Vasquez, Lea) (Entered: 09/11/2007)
74 MOTION to Dismiss the Complaint by all defendants.Responses due by 10/16/2007 (Attachments: # 1 Memorandum of Law# 2 Affidavit Affidavit of John Gasior Part 1# 3 Affidavit Gasior Affidavit Part 2) (Gasior, John) (Entered: 09/18/2007)
75 Letter to Judge Gold dated 9/19/07 by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 09/19/2007)
ORDER re 75 Letter filed by Joseph S., Edwin T., Sidney Hirschfeld, Steven W., Disability Advocates, Inc. Plaintiff's time to respond to the motion to dismiss is extended to November 16th, defendant's time to reply is extended to December 1th. The oral argument scheduled for November 15th will instead be held at 2:00 p.m. on January 15, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/20/2007. (Vasquez, Lea) (Entered: 09/20/2007)
NOTICE re Correction to Order dated September 20th: Defendant's time to reply is extended to December 14th. (Vasquez, Lea) (Entered: 09/20/2007)
76 Letter regarding Edwin T to Magistrate Judge Steven M. Gold by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 10/05/2007)
77 Letter to Magistrate Judge Steven M. Gold by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 10/16/2007)
78 Letter to the Honorable Steven M. Gold, dated October 19, 2007, by Lori Greendorfer by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Attachments: # 1 Exhibit) (Greendorfer, Lori) (Entered: 10/19/2007)
79 Letter to Magistrate Steven M. Gold by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 10/19/2007)
80 SCHEDULING ORDER Attached: Telephone Conference set for 11/5/2007 at 3:00 PM before Chief Magistrate Judge Steven M. Gold. (Vasquez, Lea) (Entered: 11/01/2007)
81 TRANSCRIPT of Conference held on September 10, 2007 before Judge Gold. Transcript produced by Transcription Plus II. (Rocco, Christine) (Entered: 11/02/2007)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 11/5/2007. Beardon and Greendorfer for plaintiffs, Gasior and Hochhauser for defendants. Defendants' application for additional time to complete document discovery is granted, with the new deadline being November 28. Defendants shall continue to produce documents, and shall also produce any privilege logs, on a rolling basis. If defendants have not completed their document production by that date, plaintiffs may either notice depositions under Rule 30(b)(6) with respect to defendants' efforts at document production, or move for appropriate sanctions under Rule 37. The court will hold a telephone conference, with the conference call placed by counsel, at 12:00 on December 4, addressed to the status of defendants' document production and any pending discovery disputes. If plaintiffs so request, defendants shall have agency representatives familiar with any remaining disputed discovery issues available to participate in the conference call. (Vasquez, Lea) (Entered: 11/05/2007)
82 RESPONSE in Opposition re 74 MOTION to Dismiss the Complaint filed by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Attachments: # 1 Affidavit in Support of Opposition to Motion to Dismiss) (Bearden, Roger) (Entered: 11/16/2007)

12/07/2007
12/11/2007 12/13/2007 12/18/2007 01/10/2008 01/23/2008 01/24/2008 02/05/2008 02/06/2008 02/20/2008 02/21/2008
03/05/2008

Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Telephone Conference held on 12/4/2007. Bearden and Greendorfer for plaintiffs, Gaisior and Hochhauser and O'Brien and Abrams and Soika for defendants. Plaintiffs will promptly advise the court of any remaining discovery disputes that the parties are unable to resolve. Defendants will promptly submit a proposed revised deadline for their reply papers on the pending motion to dismiss, after which the court will reschedule the oral argument date. (Vasquez, Lea) (Entered: 12/07/2007)
83 MOTION for Extension of Time to File Response/Reply as to Notice (Other), 74 MOTION to Dismiss the Complaint by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health. (Gasior, John) (Entered: 12/11/2007)
ORDER granting 83 Motion for Extension of Time to File Response/Reply to January 10, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/13/2007. (Vasquez, Lea) (Entered: 12/13/2007)
ORDER: In light of the extension of time to brief the pending motions, the oral argument previously set for January 15 will be held instead at 2:00 pm on February 11, 2008. Ordered by Chief Magistrate Steven M. Gold on 12/18/07. (Gold, Steven) (Entered: 12/18/2007)
84 REPLY in Support re 74 MOTION to Dismiss the Complaint filed by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health. (Attachments: # 1 Affidavit of John Gasior) (Gasior, John) (Entered: 01/10/2008)
85 Letter to Honorable Steven M. Gold, dated 1/23/08, re: Decision cited in Mr. Bearden's Declaration by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 01/23/2008)
86 NOTICE of Appearance by Nisha Suresh Agarwal on behalf of Bradley W., Omar W., Carlos S., Edwin T., Justina F., Steven W., Lisa H., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (aty to be noticed) (Agarwal, Nisha) (Entered: 01/24/2008)
87 MOTION to Compel Production of Documents by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Attachments: # 1 Defendants' Initial Disclosures, # 2 Letter dated December 19, 2007 from Roger Bearden to John Gasior, # 3 Letter dated February 1, 2008 from Roger Bearden to John Gasior) (Bearden, Roger) (Entered: 02/05/2008)
SCHEDULING ORDER: Due to a scheduling conflict, the oral argument on defendants' motion to dismiss, previously scheduled for February 11, 2008, is adjourned to 2:00 p.m. on February 20, 2008. Counsel shall also be prepared to address plaintiffs' motion to compel, Docket Entry 87, at the conference. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 2/6/2008. (O'Connor, Erin) (Entered: 02/06/2008)
ORDER granting 87 Motion to Compel and directing defendants to produce outstanding discovery by March 11. Ordered by Chief Magistrate Steven M. Gold on 02/20/08. (Gold, Steven) (Entered: 02/20/2008)
Minute entry for Motion Hearing held on 2/20/2008 before Chief Magistrate Judge Steven M. Gold: DEFERRING RULING on 74 Motion to Dismiss the Complaint filed by George Pataki, Richard F. Daines, Sharon Carpinello, Eliot Spitzer, Michael Hogan, Antonia C. Novello, New York State Office of Mental Health, New York State Department of Health. Bearden for plaintiffs, Gasior and Hochauser for defendants. Oral argument held on defendants' motion to dismiss. Decision reserved. Plaintiffs will file an amended complaint, together with a letter brief not to exceed five pages, by March 5. Defendants may submit a response similarly limited in length by March 12. Defendants' time to answer will not begin to run unless and until an order denying their motion in whole or in part is entered. Defendants shall produce the outstanding discovery discussed during today's argument by March 11. (Tape #FTR 2:08−4:58.) (Vasquez, Lea) (Entered: 02/21/2008)
88 Letter to Mag. Judge Gold, dated 3−5−08, re: Second Amended Complaint by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Greendorfer, Lori) (Entered: 03/05/2008)

03/05/2008 03/12/2008 03/12/2008 03/13/2008 04/21/2008
05/05/2008 05/05/2008 05/19/2008 05/20/2008 05/23/2008 05/29/2008
05/29/2008 05/29/2008
05/29/2008

89 AMENDED COMPLAINT Second Amended Complaint against Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld, filed by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 03/05/2008)
90 TRANSCRIPT of Civil Cause for Oral Argument held on 2/20/2008 before Judge Steven M. Gold. Court Transcriber: Shari Riemer, TypeWrite Word Processing. (Brucella, Michelle) (Entered: 03/12/2008)
91 Letter to Chief Magistrate Judge Steven M. Gold by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 03/12/2008)
92 STIPULATION of Dismissal without Prejudice by Edwin T., Steven W., Joseph S. (Greendorfer, Lori) (Entered: 03/13/2008)
93 REPORT AND RECOMMENDATIONS re 74 MOTION to Dismiss the Complaint filed by George Pataki, Richard F. Daines, Sharon Carpinello, Eliot Spitzer, Michael Hogan, Antonia C. Novello, New York State Office of Mental Health, New York State Department of Health, respectfully recommending that defendants' motion be denied, with the exception that plaintiffs' NHRA claims, to the extent based on events prior to March 8, 2003, be dismissed. Objections to R&R due by 5/5/2008. Ordered by Chief Magistrate Steven M. Gold on 4/21/2008. (O'Connor, Erin) (Entered: 04/21/2008)
94 OBJECTION to 93 Report and Recommendations Dated April 21, 2008 filed by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health. (Gasior, John) (Entered: 05/05/2008)
95 OBJECTION to 93 Report and Recommendations filed by all plaintiffs. (Attachments: # 1 Affidavit Declaration of Lori Greendorfer, Esq.) (Bearden, Roger) (Entered: 05/05/2008)
96 NOTICE by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld re 94 Objection to Report and Recommendations Plaintiffs' Response to Defendants' Objection (Attachments: # 1 Affidavit Declaration of Lori Greendorfer, Esq.) (Bearden, Roger) (Entered: 05/19/2008)
97 OBJECTION to 93 Report and Recommendations Defendants' Response to Plaintiffs' Objections filed by Michael Hogan, Richard F. Daines, New York State Office of Mental Health, New York State Department of Health. (Gasior, John) (Entered: 05/20/2008)
98 ORDER denying defendants' 74 Motion to Dismiss except as to the time−barred NHRA claims; adopting 93 Report and Recommendations of Magistrate Gold. ( Ordered by Judge Brian M. Cogan on 5/21/08 ) (Guzzi, Roseann) (Entered: 05/23/2008)
ORDER: The court will hold a case management conference at 4:00 pm on June 25. Counsel shall meet and confer at least ten days in advance of the conference to discuss whether further mediation efforts might be productive at this time, and to attempt to agree upon a schedule for completing discovery and submitting any anticipated motions for summary judgment. Counsel shall file a letter reporting on the results of their conference no later than June 18. Ordered by Chief Magistrate Steven M. Gold on 05/29/08. (Gold, Steven) (Entered: 05/29/2008)
99 MOTION to Adjourn Conference Scheduled for June 25, 2008 by Michael Hogan, Richard F. Daines, New York State Office of Mental Health, New York State Department of Health. (Gasior, John) (Entered: 05/29/2008)
NOTICE re 99 MOTION to Adjourn Conference Scheduled for June 25, 2008 The court will consider the application to adjourn the June 25th conference once defendant has obtained consent of all parties to make this request. Counsel are permitted to submit potential alternative dates to which the conference may be re−scheduled. (Vasquez, Lea) (Entered: 05/29/2008)
100 NOTICE of Appearance by Joshua Benjamin Pepper on behalf of all defendants (aty to be noticed) (Pepper, Joshua) (Entered: 05/29/2008)

05/30/2008 05/30/2008 06/24/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 07/01/2008 07/01/2008 07/01/2008 07/02/2008 07/02/2008
07/07/2008 07/07/2008 07/15/2008

101 MOTION to Adjourn Conference to July 1, 2008 at 11 a.m. by Michael Hogan, Richard F. Daines, New York State Office of Mental Health, New York State Department of Health. (Gasior, John) (Entered: 05/30/2008)
ORDER granting 101 Motion to Adjourn Conference. The conference previously scheduled for June 25th will instead be held at 11:00 a.m. on July 1,2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/30/2008. (Vasquez, Lea) (Entered: 05/30/2008)
102 Letter re: July 1, 2008 Conference by Edwin T., Steven W., Michael Hogan, Richard F. Daines, Eliot Spitzer, Joseph S., Disability Advocates, Inc., Sidney Hirschfeld, New York State Office of Mental Health, New York State Department of Health (Bearden, Roger) (Entered: 06/24/2008)
103 Letter MOTION for Protective Order by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 06/30/2008)
ORDER denying as moot 99 Motion to Adjourn Conference. Ordered by Chief Magistrate Steven M. Gold on 06/30/08. (Gold, Steven) (Entered: 06/30/2008)
104 ANSWER to 89 Amended Complaint (second amended complaint) by Michael Hogan, Richard F. Daines, Eliot Spitzer, New York State Office of Mental Health, New York State Department of Health. (Gasior, John) (Entered: 06/30/2008)
105 Letter MOTION to Compel Discovery by Sidney Hirschfeld. (Volpe, Lisa) (Entered: 06/30/2008)
106 NOTICE by Michael Hogan, Richard F. Daines, David A. Paterson, New York State Office of Mental Health, New York State Department of Health Notice of Withdrawal as Counsel for Defendants (Hochhauser, Deborah) (Entered: 07/01/2008)
ORDER terminating 105 Motion to Compel on the ground that, during a conference held today, defendants agreed to respond to the discovery demands that are the subject of the motion by July 18. Ordered by Chief Magistrate Steven M. Gold on 07/01/08. (Gold, Steven) (Entered: 07/01/2008)
ORDER denying 103 Motion for Protective Order without prejudice to refiling a new proposed protective order addressing the concerns discussed during today's conference. Ordered by Chief Magistrate Steven M. Gold on 07/01/08. (Gold, Steven) (Entered: 07/01/2008)
107 Letter dated 7/1/08 from Asst. Attorney General Hochhauser to the Clerk withdrawing her appearance. (Vaughn, Terry) (Entered: 07/02/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 7/1/2008. Bearden, Volpe, Greendorfer, et al. for plaintiffs; Gasior and Pepper for defendants. (1) The parties will submit a revised supplemental protective order addressing the concerns discussed during today's conference at their earliest convenience. (2) The parties will submit a letter by July 8th setting forth their position on whether they seek court−assisted medication and, if so, proposing a schedule for same. (3) Defendants will reply to plaintiffs' outstanding discovery demands, as set forth in plaintiffs' letter of June 30th, by July 18th. (4) The case management schedule set forth in the parties' letter dated June 24, 2008 is approved. NEXT CONFERENCE, IN PERSON: SEPTEMBER 24, 2008 AT 4:00 P.M. Counsel shall submit a letter no later than September 22nd identifying those items they seek to raise at the next conference. (Vasquez, Lea) (Entered: 07/02/2008)
108 Joint MOTION for Extension of Time to File Statement Regarding Court−Assisted Mediation by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Bearden, Roger) (Entered: 07/07/2008)
ORDER granting 108 Motion for Extension of Time to File. Counsel are granted to July 22nd to submit a letter regarding court−assisted mediation. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/7/2008. (Vasquez, Lea) (Entered: 07/07/2008)
109 Letter MOTION for Protective Order by Edwin T., Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 07/15/2008)

07/16/2008 07/21/2008 09/22/2008 09/22/2008
09/26/2008
10/08/2008 10/31/2008 11/03/2008 11/07/2008
12/01/2008 12/03/2008 12/04/2008

ORDER granting 109 Motion for Protective Order, and entering the Supplemental Protective Order and amended Protective Order attached to docket entry 109 as orders of the court. Ordered by Chief Magistrate Steven M. Gold on 07/16/08. (Gold, Steven) (Entered: 07/16/2008)
110 Letter from all parties to Chief Magistrate Judge Steven M. Gold Regarding Settlement by Steven W., Michael Hogan, Richard F. Daines, David A. Paterson, Joseph S., Disability Advocates, Inc., Sidney Hirschfeld, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 07/21/2008)
111 MOTION to Compel Document Production by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Attachments: # 1 Exhibit Letter regarding documents identified in Joan Halpin deposition, # 2 Exhibit Letter regarding documents identified in Alan Holmes deposition, # 3 Exhibit Letter regarding documents identified in Mary Ann Monaco deposition) (Bearden, Roger) (Entered: 09/22/2008)
ORDER granting 111 Motion to Compel, to the extent that it seeks, on behalf of all parties, that the conference set by September 24 at 4 pm be held by telephone. Plaintiffs' counsel shall arrange the conference call. At that time the court will hear whether there is any objection to plaintiffs' request that the court order production of the documents the parties have agreed to disclose, and set a schedule for the production of the email discovery described in the last paragraph of the letter motion. Ordered by Chief Magistrate Steven M. Gold on 09/22/08. (Gold, Steven) (Entered: 09/22/2008)
Minute Entry for Status Conference held on 9/24/2008 before Chief Magistrate Judge Steven M. Gold: Beardon, Zucker and Greendorfer for plaintiffs, Gasior and Pepper for defendants. (1) Defendants will provide a schedule for e−mail production within two weeks. (2) Counsel will meet and confer in an effort to agree upon a protocol for sampling data about plaintiffs, and will submit a report on the status of their efforts by November 3. NEXT CONFERENCE, IN−PERSON: DECEMBER 4, 2008 AT 2:00 P.M. Counsel shall submit a letter by December 1st identifying the issues they seek to raise at the next conference. (Vasquez, Lea) (Entered: 09/26/2008)
112 STATUS REPORT Regarding Production of Email by Michael Hogan, Richard F. Daines, David A. Paterson, New York State Office of Mental Health, New York State Department of Health (Gasior, John) (Entered: 10/08/2008)
113 Letter regarding sampling protocol by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Bearden, Roger) (Entered: 10/31/2008)
SCHEDULING ORDER: A Telephone Conference will be held at 11:30 a.m. on November 6th. Counsel for all parties must participate and plaintiffs' counsel is directed to arrange the call with all parties. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/3/2008. (Vasquez, Lea) (Entered: 11/03/2008)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Telephone Conference held on 11/6/2008. Bearden et al. for plaintiffs, Gasior et al. for defendants. Counsel report that they do not seek court intervention with respect to the issue raised in plaintiffs' letter dated October 31, 2008, docket entry 113. The conference previously set for December 4 will proceed as scheduled absent further application to the court. (Tape #FTR 11:32−11:40.) (Vasquez, Lea) (Entered: 11/07/2008)
114 Joint MOTION for Extension of Time to Complete Discovery by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Bearden, Roger) (Entered: 12/01/2008)
ORDER deferring ruling on 114 Motion for Extension of Time to Complete Discovery. This application will be discussed during the conference on December 4th. The conference will be held by telephone and counsel are to make the necessary arrangements for all parties' participation in the call. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/3/2008. (Vasquez, Lea) (Entered: 12/03/2008)
ORDER granting 114 Motion for Extension of Time to Complete Discovery. Ordered by Chief Magistrate Steven M. Gold on 12/04/08. (Gold, Steven) (Entered: 12/04/2008)

12/05/2008
12/12/2008 12/12/2008 01/26/2009 01/26/2009 01/27/2009
01/27/2009 02/04/2009 02/10/2009 03/05/2009 03/06/2009 03/06/2009 03/12/2009

Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 12/4/2008. Bearden, Lowenstein, Greendorfer and Delvalle for plaintiffs, Gasior and Pepper for defendants. The application to extend the previously set case management deadlines (see docket entry 114) is granted for the reasons discussed during today's conference. NEXT CONFERENCE: JUNE 23, 2008 AT 11:00 A.M. Counsel shall contact my chambers promptly if they seek a settlement conference or a discovery dispute arises that cannot be resolved even after counsel confer. Counsel shall submit a letter by June 17 identifying any issues they intend to raise at the conference on June 23rd. (Vasquez, Lea) (Entered: 12/05/2008)
115 DISCLOSURE of Interested Parties by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Greendorfer, Lori) (Entered: 12/12/2008)
ORDER re 115 Disclosure of Interested Parties filed by Joseph S., Sidney Hirschfeld, Steven W., Disability Advocates, Inc. This filing violates Fed.R.Civ.P. 5(d)(1). Plaintiffs are ORDERED to refrain from further violations. Ordered by Judge Brian M. Cogan on 12/12/08. (Weisberg, Peggy) (Entered: 12/12/2008)
116 MOTION to Compel Compliance with Inspection Subpoena by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Attachments: # 1 Brookhaven Subpoena, # 2 Haven Manor Subpoena, # 3 Brookhaven and Haven Manor Objections to Subpoena, # 4 Plaintiffs' Response to Brookhaven and Haven Manor Objections to Subpoena) (Bearden, Roger) (Entered: 01/26/2009)
117 Letter correcting error in previous letter by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Bearden, Roger) (Entered: 01/26/2009)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 1/26/2009. Bearden et al for plaintiffs, Gasior et al for defendants, Litchenstein et al for non−party residential facilities. Plaintiffs shall either continue their negotiations with respect to inspection of non−party facilities and interviews of their staff and evaluations of their residents, or file a motion to compel pursuant to a stipulated briefing schedule if they seek to press the subpoena discussed during this conference call. (Tape #FTR 5:59−6:23.) (Vasquez, Lea) (Entered: 01/27/2009)
ORDER denying 116 Motion to Compel, for reasons stated on the record of the proceedings held on January 26, 2009 and without prejudice to filing of a formal motion to compel pursuant to a stipulated briefing schedule. Ordered by Chief Magistrate Steven M. Gold on 1/27/2009. (Gold, Steven) (Entered: 01/27/2009)
118 MOTION for Discovery by Michael Hogan, Richard F. Daines, David A. Paterson, New York State Office of Mental Health, New York State Department of Health. (Attachments: # 1 Exhibit Exhibit to proposed subpoena) (Pepper, Joshua) (Entered: 02/04/2009)
ORDER granting 118 Motion for Discovery. Defendants may, as suggested in their letter, provide the subpoenas in issue and a return envelope to my chambers. Ordered by Chief Magistrate Steven M. Gold on 2/10/2009. (Gold, Steven) (Entered: 02/10/2009)
119 MOTION for Discovery by Michael Hogan, Richard F. Daines, David A. Paterson, New York State Office of Mental Health, New York State Department of Health. (Pepper, Joshua) (Entered: 03/05/2009)
120 NOTICE by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld of Withdrawal of Appearance (Bearden, Roger) (Entered: 03/06/2009)
ORDER granting 119 Motion for Discovery. Defendants application to submit the subpoenas to the Court is Granted. Counsel shall make the necessary arrangements for hand−delivery of same to Chambers. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/6/2009. (Vasquez, Lea) (Entered: 03/06/2009)
121 Letter by Michael Hogan, Richard F. Daines, David A. Paterson, New York State Office of Mental Health, New York State Department of Health (Pepper, Joshua) (Entered: 03/12/2009)

04/16/2009
04/17/2009 04/20/2009 04/30/2009 05/04/2009
05/14/2009 05/15/2009
05/19/2009 05/19/2009 05/20/2009 06/08/2009 06/08/2009

SCHEDULING ORDER: A telephone conference will be held at 3:30 p.m. on April 21st. Counsel for all parties are required to participate, as well as counsel for the non−party witnesses. Defendants' counsel is requested to arrange the call with all parties as well as notify/confirm with, all attorneys that they are aware of this conference. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/16/2009. (Vasquez, Lea) (Entered: 04/16/2009)
122 Letter MOTION to Continue Telephone Conference by Promesa RHCF. (Murray, Elizabeth) (Entered: 04/17/2009)
ORDER granting 122 Motion to Continue. The telephone conference scheduled for April 21st will instead be held at 11:00 a.m. on May 1, 2009. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/20/2009. (Vasquez, Lea) (Entered: 04/20/2009)
123 NOTICE of Appearance by Rachael E Seevers on behalf of all plaintiffs (aty to be noticed) (Seevers, Rachael) (Entered: 04/30/2009)
Minute Entry for Telephone Conference held on 5/1/2009 before Chief Magistrate Judge Steven M. Gold: Lowenstein for plaintiffs, Pepper and Gasior for defendants, Facher for non−party Riverington, Murray for non−party Promesa. For the reasons stated on the record during today's conference, and those set forth herein, the objections to discovery of patient files lodged by the non−parties are overruled. The court finds that, in light of the significance of the federal rights at issue in this litigation, and the potential impact of a decision in this action on the plaintiffs and the State of New York, and in light of the potential adverse impact on the statistical significance of any results of the analysis being performed by defendants' expert witness, defendants have demonstrated a compelling need for disclosure pursuant to New York Public Health law Section 2785(2)(a). Accordingly, and pursuant to Section 2785(4)(a), defendants shall provide notice of their application for disclosure to the patients involved (either directly or through the non−parties) by May 8, 2009. The letter shall advise the patients that any objections to disclosure must be made in writing by May 22, 2009. If no objections are filed, the non−parties shall produce the materials called for in defendants' subpoena by May 26. If objections are raised, counsel shall so advise the court and seek a further conference. All counsel are hereby urged to use their best efforts to avoid including any identifying information about the patients whenever possible, and to deem any patient−identifying information as having been designated with the highest level of confidentiality described in any of the confidentiality orders entered in this case. (Tape #FTR 11:04−11:24.) (Vasquez, Lea) (Entered: 05/04/2009)
125 Joint MOTION for Extension of Time to Complete Discovery by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld. (Lowenstein, Amy) (Entered: 05/14/2009)
ORDER deferring ruling on 125 Motion for Extension of Time to Complete Discovery. The Court will entertain the application for a four−month extension of the discovery scheduled at the next conference. Counsel are urged to present a more detailed schedule, with specific dates set aside for each anticipated discovery event, prior to the conference. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/15/2009. (Vasquez, Lea) (Entered: 05/15/2009)
126 NOTICE of Appearance by Nina Lowenstein on behalf of all plaintiffs (aty to be noticed) (Lowenstein, Nina) (Entered: 05/19/2009)
127 MOTION for Discovery by Michael Hogan, Richard F. Daines, David A. Paterson, New York State Office of Mental Health, New York State Department of Health. (Pepper, Joshua) (Entered: 05/19/2009)
ORDER granting 127 Motion for Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/20/2009. (Vasquez, Lea) (Entered: 05/20/2009)
128 NOTICE of Appearance by Jeanne Cho on behalf of all plaintiffs (aty to be noticed) (Cho, Jeanne) (Entered: 06/08/2009)
129 Letter dated June 8, 2009 from Jeanne Cho, Esq., of Schiff Hardin LLP, addressed to Chief Magistrate Judge Steven M. Gold requesting that a number of non−party Subpoenas seeking nursing home residents's medical records from nursing facilities be so−ordered (attached to the letter is an example of an exhibit to the Subpoenas

06/16/2009
06/24/2009
06/24/2009 07/01/2009 07/22/2009
08/11/2009
08/12/2009
08/12/2009 08/12/2009 08/12/2009 08/12/2009 08/12/2009 09/01/2009
09/02/2009 09/02/2009

without resident or nursing home identifiers, which details the records sought) by Steven W., Joseph S., Disability Advocates, Inc., Sidney Hirschfeld (Cho, Jeanne) (Entered: 06/08/2009)
130 Letter providing status update and detailing the parties' proposed schedule to complete discovery by Steven W., Michael Hogan, Richard F. Daines, David A. Paterson, Joseph S., Disability Advocates, Inc., Sidney Hirschfeld, New York State Office of Mental Health, New York State Department of Health (Lowenstein, Amy) (Entered: 06/16/2009)
Minute Entry for Status Conference held on 6/23/2009 before Chief Magistrate Judge Steven M. Gold: Volpe, Lowenstein, Agarwal and Severs for plaintiffs, Gasior and Pepper for defendants. The discovery schedule jointly proposed by the parties in plaintiffs' letter filed June 16, 2009, Docket Entry 130, is approved. Counsel are encouraged to consider the possibility of settlement and whether the case has reached the stage at which an ADR mechanism could be productively invoked. To this end, counsel agree that any party may submit an ex parte letter to the court (VIA ELECTRONIC FILING) limited to the subject of settlement. THE COURT WILL HOLD AN IN−PERSON STATUS CONFERENCE AT 2:00 PM ON OCTOBER 14TH. The parties shall submit a letter no later than October 7 setting forth the issues to be addressed at the next conference. (Vasquez, Lea) (Entered: 06/24/2009)
ORDER denying as moot 125 Motion for Extension of Time to Complete Discovery. See Minute Entry for conference held on 6/23/2009. Ordered by Chief Magistrate Steven M. Gold on 6/24/2009. (O'Connor, Erin) (Entered: 06/24/2009)
131 Letter of Withdrawal of co−counsel Marianne Engelman Lado by Joseph S. (Engelman Lado, Marianne) (Entered: 07/01/2009)
132 NOTICE of Appearance by Timothy A. Clune on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (notification declined or already on case) (Clune, Timothy) (Entered: 07/22/2009)
133 Letter addressed to Chief Magistrate Judge Steven M. Gold requesting that a number of non−party Subpoenas seeking nursing home residents' medical records from nursing facilities be so−ordered by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (Lowenstein, Amy) (Entered: 08/11/2009)
ORDER re 133 Letter, filed by Joseph S., Sidney Hirschfeld, Steven W., Disability Advocates, Inc. Plaintiffs are granted permission to submit subpoenas to the Court for endorsement. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/12/2009. (Vasquez, Lea) (Entered: 08/12/2009)
Email Notification Test − DO NOT REPLY (Levine, Evelyn) (Entered: 08/12/2009)
Email Notification Test − DO NOT REPLY (Levine, Evelyn) (Entered: 08/12/2009)
Email Notification Test − DO NOT REPLY (Levine, Evelyn) (Entered: 08/12/2009)
Email Notification Test − DO NOT REPLY (Levine, Evelyn) (Entered: 08/12/2009)
Email Notification Test − DO NOT REPLY (Levine, Evelyn) (Entered: 08/12/2009)
134 MOTION for Discovery extension by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Plaintiff's fourth set of interrogatories, # 2 Plaintiff's second set of document requests) (Pepper, Joshua) (Entered: 09/01/2009)
135 Letter by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson (Pepper, Joshua) (Entered: 09/02/2009)
ORDER granting 134 Motion for Discovery. The conference previously set for October 14 will be held instead at 2:00 p.m. on December 10, 2009. With respect to defendants' letter dated September 2, 2009, Docket Entry 135, defendants may propound the interrogatory described on page two provided plaintiffs do not object. In the event plaintiffs do object, they shall so advise the Court, and a telephone conference will be scheduled. Ordered by Chief Magistrate Steven M. Gold on

09/09/2009 09/16/2009 09/18/2009 09/23/2009
09/25/2009 09/30/2009 10/07/2009 10/07/2009 10/08/2009 10/09/2009 10/13/2009 10/15/2009

9/2/2009. (Gold, Steven) (Entered: 09/02/2009)
136 NOTICE of Appearance by Richard B. Verner on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (aty to be noticed) (Verner, Richard) (Entered: 09/09/2009)
SCHEDULING ORDER: A telephone conference will be held at 10:30 a.m. on September 23, 2009. Counsel for plaintiff is directed to arrange the call with all parties as well as confirm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/16/2009. (Vasquez, Lea) (Entered: 09/16/2009)
137 Letter dated September 18, 2009 from Richard B. Verner, Esq. to Magistrate Judge Gold with an attached copy of the Plaintiffs' Responses and Objections to the Defendants' Third Set of Interrogatories by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (Verner, Richard) (Entered: 09/18/2009)
Minute Entry for Telephone Conference held on 9/23/2009 before Chief Magistrate Judge Steven M. Gold: Zucker and Lowenstein for plaintiffs, Gasior and Pepper for defendants. (1) Defendants will submit a letter by September 30 responding to the court's inquiry about whether, in light of Judge Garaufis' ruling in the case involving adult home residents, this is an opportune time to revisit the subject of settlement or mediation. (2) Counsel will meet and confer with respect to the discovery dispute described in plaintiff's letter dated September 18, 2009, docket entry 137, and submit a letter by October 7 if the parties seek a conference with the court. The conference previously set for December 10, 2009 (see Order dated September 2, 2009) will proceed as scheduled absent further order of the court. (Vasquez, Lea) (Entered: 09/23/2009)
138 NOTICE of Appearance by Roberta L. Mueller on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (aty to be noticed) (Mueller, Roberta) (Entered: 09/25/2009)
139 Letter to Magistrate Judge Steven M. Gold regarding settlement by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson (Gasior, John) (Entered: 09/30/2009)
140 NOTICE of Appearance by Robert H. Rickner on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (aty to be noticed) (Rickner, Robert) (Entered: 10/07/2009)
141 MOTION for pre motion conference regarding Defendants' Third Set of Interrogatories by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Gasior, John) (Entered: 10/07/2009)
142 Letter dated October 8, 2009 from Robert H. Rickner to Magistrate Gold requesting that a number of non−party Subpoenas seeking nursing home residents' medical records from nursing facilities be so−ordered by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (Rickner, Robert) (Entered: 10/08/2009)
ORDER re 142 Letter, filed by Joseph S., Bradley W., Omar W., Justina F., Sidney Hirschfeld, Carlos S., Lisa H., Edwin T., Steven W., Disability Advocates, Inc.. The court will issue the subpoenas as requested in plaintiffs' letter. Counsel may contact my chambers to arrange a date and time for delivery of same. Ordered by Chief Magistrate Steven M. Gold on 10/9/2009. (Gold, Steven) (Entered: 10/09/2009)
143 RESPONSE to Motion re 141 MOTION for pre motion conference regarding Defendants' Third Set of Interrogatories filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Lowenstein, Nina) (Entered: 10/13/2009)
144 NOTICE of Appearance by Kelly Lloyd Morron on behalf of Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (aty to be noticed) (Morron, Kelly) (Entered: 10/15/2009)

10/19/2009 11/03/2009 12/09/2009 12/10/2009 12/10/2009 12/10/2009 12/11/2009
12/11/2009 03/01/2010 03/04/2010 05/03/2010 05/04/2010 06/11/2010

145 Letter by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson (Pepper, Joshua) (Entered: 10/19/2009)
146 Letter to Honorable Steven M. Gold dated November 3, 2009 by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (Rickner, Robert) (Entered: 11/03/2009)
147 Letter by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson (Attachments: # 1 Letter from Amy Lowenstein) (Pepper, Joshua) (Entered: 12/09/2009)
148 Joint MOTION for Extension of Time to Complete Discovery and Opposition to Defendants' MOTION to compel discovery by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W.. (Attachments: # 1 Exhibit Defendants' Third Set of Interrogatories) (Bearden, Roger) (Entered: 12/10/2009)
ORDER granting 148 Motion for Extension of Time to Complete Discovery for the reasons stated on the record of today's conference. Ordered by Chief Magistrate Steven M. Gold on 12/10/2009. (Gold, Steven) (Entered: 12/10/2009)
ORDER denying 141 Motion for Pre Motion Conference, which in actuality is a letter application to compel certain discovery, for the reasons and to the extent stated on the record of today's conference. Ordered by Chief Magistrate Steven M. Gold on 12/10/2009. (Gold, Steven) (Entered: 12/10/2009)
Minute Entry for Status Conference held on 12/10/2009 before Chief Magistrate Judge Steven M. Gold: Bearden et al for plaintiffs, Gasior and Pepper for defendants. Defendants' motion to compel disclosure with respect to the sampling decisions made by plaintiffs' experts is denied for the reasons stated on the record. The parties' joint application to extend discovery, as set forth in plaintiffs' letter dated December 9, 2009, docket entry 148, is approved, with the exception that counsel shall confer with their respective experts and each other in an effort to see whether a shorter schedule might be proposed. Counsel shall submit a letter by March 1, 2010, reporting on the status of this action, including but not limited to any productive ongoing efforts to reach a settlement agreement and any progress in developing a shorter schedule for completing expert discovery. (Tape #FTR 2:03−2:46.) (Vasquez, Lea) (Entered: 12/11/2009)
149 NOTICE of Appearance by Kelly Jane McAnnany on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (aty to be noticed) (McAnnany, Kelly) (Entered: 12/11/2009)
150 Letter to Hon. Steven M. Gold jointly reporting on status by Richard F. Daines, Disability Advocates, Inc., Sidney Hirschfeld, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson, Joseph S., Steven W. (Lowenstein, Amy) (Entered: 03/01/2010)
STATUS REPORT ORDER re 150 Letter, filed by Joseph S., New York State Department of Health, Richard F. Daines, Michael Hogan, David A. Paterson, Sidney Hirschfeld, Steven W., Disability Advocates, Inc., New York State Office of Mental Health: updated status Report due by 5/3/2010. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/4/2010. (Vasquez, Lea) (Entered: 03/04/2010)
151 Letter to Chief Magistrate Judge Gold by Richard F. Daines, Disability Advocates, Inc., Sidney Hirschfeld, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson, Joseph S., Steven W. (Gasior, John) (Entered: 05/03/2010)
STATUS REPORT ORDER: Counsel are directed to electronically file an updated status report by 10/1/2010. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/4/2010. (Vasquez, Lea) (Entered: 05/04/2010)
152 MOTION for Extension of Time to Complete Discovery − Letter to Chief Magistrate Judge Gold regarding June 15th expert reports − by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Gasior, John) (Entered: 06/11/2010)

06/11/2010 06/25/2010
06/25/2010 07/19/2010
07/21/2010 07/22/2010 09/13/2010 09/13/2010 10/01/2010
11/12/2010 11/12/2010 12/03/2010 12/06/2010 02/25/2011

ORDER granting 152 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/11/2010. (Vasquez, Lea) (Entered: 06/11/2010)
153 Letter dated June 25, 2010 from Robert Rickner, Esq. addressed to Chief Magistrate Judge Steven M. Gold requesting an adjournment to June 29, 2010 for sampling and psychiatric expert reports by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (Rickner, Robert) (Entered: 06/25/2010)
ORDER re 153 Letter, filed by Joseph S., Bradley W., Omar W., Justina F., Sidney Hirschfeld, Carlos S., Lisa H., Edwin T., Steven W., Disability Advocates, Inc., granting application for additional time. Ordered by Chief Magistrate Steven M. Gold on 6/25/2010. (Gold, Steven) (Entered: 06/25/2010)
154 TRANSCRIPT of Proceedings held on 12/10/09, before Judge Gold. Court Transcriber TYPEWRITE WORD PROCESSING SERVICE, Telephone number 718−966−1401. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/9/2010. Redacted Transcript Deadline set for 8/19/2010. Release of Transcript Restriction set for 10/18/2010. (Hong, Loan) (Entered: 07/19/2010)
155 MOTION for Discovery by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 07/21/2010)
ORDER granting 155 Motion for Discovery. Defendants may submit the subpoenas to Chambers at their convenience. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/22/2010. (Vasquez, Lea) (Entered: 07/22/2010)
156 MOTION for Extension of Time to Complete Discovery by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Gasior, John) (Entered: 09/13/2010)
ORDER granting 156 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/13/2010. (Vasquez, Lea) (Entered: 09/13/2010)
157 Letter Joint letter dated October 1, 2010 addressed to Chief Magistrate Judge Gold re: Case Status Update by Sharon Carpinello, Richard F. Daines, Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, David A. Paterson, Promesa RHCF, Kathleen A. Roberts, Carlos S., Joseph S., Edwin T., Abe Tawil, Bradley W., Omar W., Steven W. (Rickner, Robert) (Entered: 10/01/2010)
158 MOTION for Extension of Time to Complete Discovery of expert rebuttal reports by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Gasior, John) (Entered: 11/12/2010)
ORDER granting 158 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/12/2010. (Vasquez, Lea) (Entered: 11/12/2010)
159 Letter to The Honorable Steven M. Gold, dated 12//3/2010, requesting extension of deadline for Expert Reply Reports by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (Rickner, Robert) (Entered: 12/03/2010)
ORDER re 159 Letter filed by Joseph S., Sidney Hirschfeld, Steven W., Disability Advocates, Inc.: The proposed revised schedule is approved and hereby entered as an Order of the Court. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/6/2010. (Vasquez, Lea) (Entered: 12/06/2010)
160 MOTION for Extension of Time to Complete Discovery of Expert Witnesses − Letter to Magistrate Judge Gold − by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health. (Gasior, John)

03/03/2011
03/08/2011
03/08/2011 03/23/2011 03/23/2011 04/04/2011 04/07/2011 04/08/2011 04/15/2011 04/15/2011 04/18/2011 04/18/2011 04/18/2011

(Entered: 02/25/2011)
ORDER granting 160 Motion for Extension of Time to Complete Discovery. The parties' joint proposed deadlines for expert depositions and pre−motion letters are hereby approved and entered as an Order of the Court. The Court will hold a telephone conference at 11:00 a.m. on March 8, 2011 to discuss the deadline for pre−trial filings. Counsel for plaintiffs are directed to arrange the conference call and to confirm with all parties that they aware of the conference date and time. Ordered by Chief Magistrate Steven M. Gold on 3/3/2011. (O'Connor, Erin) (Entered: 03/03/2011)
Minute Entry for Telephone Conference held on 3/8/2011 before Chief Magistrate Judge Steven M. Gold: Rickner for plaintiffs, Gasior and Pepper for defendants. The parties' joint application to extend the time to complete expert depositions to April 1, and the time for filing premotion conference applications pursuant to Section III.A.2 of Judge Cogan's Individual Practices to April 15, is GRANTED. All pretrial filings required pursuant to Section IV.B of Judge Cogan's Individual Practices shall be submitted 30 days after any motions made are fully briefed, and the parties shall be ready for trial within 60 days after any motions made are fully briefed. (Vasquez, Lea) (Entered: 03/08/2011)
161 Letter Withdrawing Appearance by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (Bearden, Roger) (Entered: 03/08/2011)
162 MOTION for Extension of Time to Complete Discovery Continued Deposition of Defendants' Expert Dr. Jeffrey Geller by Disability Advocates, Inc., Sidney Hirschfeld, Edwin T., Steven W.. (Loewenstein, Nina) (Entered: 03/23/2011)
ORDER granting 162 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/23/2011. (Vasquez, Lea) (Entered: 03/23/2011)
163 MOTION to Strike Expert Report by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Pepper, Joshua) (Entered: 04/04/2011)
164 Letter dated 4/7/2011, requesting extension to submit Reply. by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (Rickner, Robert) (Entered: 04/07/2011)
ORDER re 164 Letter filed by Joseph S., Sidney Hirschfeld, Steven W., Disability Advocates, Inc.: Plaintiff to respond to defendant's motion to strike by April 18th. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/8/2011. (Vasquez, Lea) (Entered: 04/08/2011)
166 MOTION for pre motion conference by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health. (Gasior, John) (Entered: 04/15/2011)
ORDER as to 166 MOTION for pre motion conference. Hearing set for 4/25/2011 10:00 AM in Courtroom 8D South before Judge Brian M. Cogan. Plaintiff to deliver detailed letter in response by 4/21/11. Ordered by Judge Brian M. Cogan on 4/15/2011. (Cogan, Brian) (Entered: 04/15/2011)
SCHEDULING ORDER: The court will hold a telephone conference at 2:30 p.m. on April 28, 2011. Defendants are requested to arrange the conference call and to confirm that plaintiffs are aware of the conference date and time. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/18/2011. (O'Connor, Erin) (Entered: 04/18/2011)
167 Letter dated April 18, 2011 from Robert Rickner, Esq., addressed to Magistrate Judge Steven M. Gold by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (Rickner, Robert) (Entered: 04/18/2011)
ORDER re 167 Letter: Plaintiffs' application to file excess pages is granted. Plaintiffs' application to file certain exhibits under seal is also granted. Plaintiffs shall electronically file the sealed exhibits −− Instructions on filing sealed documents on ECF are located at the court's website, www.nyed.uscourts.gov. Counsel are advised

04/18/2011 04/18/2011
04/20/2011 04/20/2011 04/20/2011 04/21/2011 04/25/2011
04/29/2011 04/29/2011 05/02/2011

that, in the future, applications seeking relief from the court should be filed as motions, even if made in letter form. Finally, the telephone conference scheduled for April 28th is for scheduling purposes only. Ordered by Chief Magistrate Steven M. Gold on 4/18/2011. (O'Connor, Erin) (Entered: 04/18/2011)
168 Letter dated April 18, 2011 from Amy E. Lowenstein to Magistrate Judge Gold by Disability Advocates, Inc. (Rickner, Robert) (Entered: 04/18/2011)
169 RESPONSE in Opposition re 163 MOTION to Strike Expert Report filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Attachments: # 1 Exhibit A, # 2 Exhibit B (under seal), # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I (under seal), # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M (under seal), # 14 Exhibit N, # 15 Exhibit O (under seal)) (Rickner, Robert) (Additional attachment(s) added on 5/3/2011: # 16 Exhibit B SEALED, # 17 Exhibit I SEALED, # 18 Exhibit M SEALED, # 19 Exhibit O SEALED, # 20 Letter dated 4/19/2011 submitting exhibits under seal) (Marziliano, August). (Entered: 04/18/2011)
170 MOTION for Leave to File Excess Pages by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health. (Gasior, John) (Entered: 04/20/2011)
171 RESPONSE in Opposition re 170 MOTION for Leave to File Excess Pages filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 04/20/2011)
NOTICE: The purpose of the telephone conference scheduled for April 28th is to discuss whether the parties are interested in holding a settlement conference and, if so, to set a date. (O'Connor, Erin) (Entered: 04/20/2011)
172 RESPONSE to Motion re 166 MOTION for pre motion conference filed by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W.. (Lowenstein, Amy) (Entered: 04/21/2011)
Minute Entry and Order for Hearing held on 4/25/11 before Judge Brian M. Cogan. Both parties present. Plaintiffs' 168 Letter is deemed an unopposed motion for limited discovery and is granted to the extent provided on the record. Defendants' 163 Motion to Strike Expert Report is denied without prejudice for the reasons provided on the record: the substance of the motion may be raised as a Daubert motion, and the request to re−open expert discovery is denied without prejudice to renew after reviewing plaintiffs' opposition to that motion. The Court set the following dates: defendants must file their Daubert motion and motion for summary judgment (if any) by 5/16/11; opposition by 6/6; reply by 6/17. All additional discovery disputes shall still be addressed to Magistrate Judge Gold. (Court Reporter: Gene Rudolph). (Clarke, Melonie) (Entered: 04/25/2011)
173 MOTION for Extension of Time to Complete Discovery Related to Defendants' Daubert Motion by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health. (Gasior, John) (Entered: 04/29/2011)
ORDER granting 173 Motion for Extension of Time. Revised briefing schedule: Daubert/summary judgment motions due 5/23; opposition by 6/13; reply by 6/24. No further extensions, even if the depositions do not occur as scheduled. Ordered by Judge Brian M. Cogan on 4/29/2011. (Weisberg, Peggy) (Entered: 04/29/2011)
Minute Entry for Telephone Conference held on 4/28/2011 before Chief Magistrate Judge Steven M. Gold: Zucker et al. for plaintiffs, Gasior and Pepper for defendants. (1) Depositions of plaintiffs will take place at the offices of defendants' counsel on May 5 from 9 to 6 and, if needed, on May 6 from 9−1. The parties will submit a schedule governing PASRR discovery by letter filed no later than May 3. The Court will hold a telephone conference at 1:30 pm on May 12 at which time counsel shall report on the status of their efforts to reach a settlement and whether they seek a court−supervised settlement conference. (Tape #FTR 2:34−2:50.) (Vasquez, Lea) (Entered: 05/02/2011)

05/03/2011 05/06/2011 05/13/2011 05/23/2011 05/23/2011 05/23/2011 05/23/2011 05/23/2011
05/23/2011 05/23/2011 05/23/2011 05/23/2011 05/23/2011

174 Letter to Judge Gold re PASRR discovery schedule by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W. (Lowenstein, Amy) (Entered: 05/03/2011)
ORDER re 174 Letter filed by Joseph S., Sidney Hirschfeld, Steven W., Disability Advocates, Inc: The parties are granted to July 8, 2011 to complete additional PASRR discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/6/2011. (Vasquez, Lea) (Entered: 05/06/2011)
Minute Entry for Telephone Conference held on 5/13/2011 before Chief Magistrate Judge Steven M. Gold: Clune for plaintiffs; Gasior & Pepper for defendants. Settlement discussions among the parties continue. The court will hold a telephone conference for a further status update at 10:00 a.m. on May 26, 2011. (Vasquez, Lea) (Entered: 05/13/2011)
175 MOTION in Limine To Preclude Expert Testimony by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)
176 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)
177 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)
178 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)
179 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Exhibit A (Fries report) (part 1), # 2 Exhibit A (Fries report) (part 2), # 3 Exhibit B (letters), # 4 Exhibit C (letter), # 5 Exhibit D (letter), # 6 Exhibit E (spreadsheet), # 7 Exhibit F (spreadsheet), # 8 Exhibit G (spreadsheet), # 9 Exhibit H (spreadsheet), # 10 Exhibit I (transcript), # 11 Exhibit J (notice of deposition), # 12 Exhibit K (transcript), # 13 Exhibit L (Factor deposition), # 14 Exhibit M (Factor deposition), # 15 Exhibit N (Fries deposition), # 16 Exhibit O (Hecht deposition), # 17 Exhibit P (Loewenstein deposition), # 18 Exhibit Q (Volpe deposition)) (Pepper, Joshua) (Entered: 05/23/2011)
180 MEMORANDUM in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)
181 MOTION for Summary Judgment by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. Responses due by 6/13/2011 (Pepper, Joshua) (Entered: 05/23/2011)
182 MEMORANDUM in Support re 181 MOTION for Summary Judgment filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)
183 AFFIDAVIT/DECLARATION in Support re 181 MOTION for Summary Judgment filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Exhibit A (Tacoronti deposition)) (Pepper, Joshua) (Entered: 05/23/2011)
184 RULE 56.1 STATEMENT re 181 MOTION for Summary Judgment filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 05/23/2011)

05/26/2011 06/03/2011 06/08/2011 06/08/2011
06/13/2011 06/13/2011 06/13/2011 06/13/2011 06/13/2011
06/13/2011
06/16/2011

Minute Entry for Telephone Conference held on 5/26/2011 before Chief Magistrate Judge Steven M. Gold: Clune for plaintiffs; Gasior & Pepper for defendants. Settlement discussions among the parties continue. The parties will submit an updated report on the status of settlement no later than June 3, 2011. (Vasquez, Lea) (Entered: 05/26/2011)
185 STATUS REPORT Letter to Judge Gold by Disability Advocates, Inc., Sidney Hirschfeld, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, Joseph S., Steven W. (Lowenstein, Amy) (Entered: 06/03/2011)
186 First MOTION for Extension of Time to File Response/Reply as to 175 MOTION in Limine To Preclude Expert Testimony , MOTION for Leave to file documents under seal, First MOTION for Leave to File Excess Pages as to 175 MOTION in Limine To Preclude Expert Testimony by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W.. (Lowenstein, Amy) (Entered: 06/08/2011)
ORDER granting 186 Motion for Extension of Time. The Court hereby adopts the following: 1) plaintiffs' opposition to summary judgment and daubert motion due by 6/13 and 6/16, defendants' reply to opposition to summary judgment and daubert motions due by 6/24 and 6/29, respectively; 2) pretrial filings due by 7/29. In addition, plaintiffs' request to file under seal is granted. Counsel is directed to file original documents under seal as separate entries. Instructions on filing sealed entries on ECF are located at www.nyed.uscourts.gov. Memorandum in support of opposition papers may exceed page limit, not to exceed 40 pages. Ordered by Judge Brian M. Cogan on 6/8/2011. (Weisberg, Peggy) (Entered: 06/08/2011)
187 NOTICE of Appearance by Aditi Dilip Kothekar on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (aty to be noticed) (Kothekar, Aditi) (Entered: 06/13/2011)
188 RULE 56.1 STATEMENT re 184 Rule 56.1 Statement RULE 56.1 COUNTER−STATEMENT filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 06/13/2011)
189 AFFIDAVIT/DECLARATION in Opposition re 181 MOTION for Summary Judgment DECLARATION OF LISA HERMAN, ESQ. filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 06/13/2011)
190 AFFIDAVIT/DECLARATION in Opposition re 181 MOTION for Summary Judgment DECLARATION OF JOSEPH A. TRAVER, ESQ. filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 06/13/2011)
191 MEMORANDUM in Opposition re 189 Affidavit in Opposition to Motion, 188 Rule 56.1 Statement, 190 Affidavit in Opposition to Motion, 181 MOTION for Summary Judgment PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AS TOPLAINTIFFS LESLEY DE LIA, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, AND MENTAL HYGIENE LEGAL SERVICE filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 06/13/2011)
192 AFFIDAVIT/DECLARATION in Opposition re 181 MOTION for Summary Judgment DECLARATION OF LISA VOLPE, ESQ. filed by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N) (Rickner, Robert) (Entered: 06/13/2011)
193 AFFIDAVIT/DECLARATION in Opposition re 175 MOTION in Limine To Preclude Expert Testimony Declaration of Branko Jovanovic, Ph.D. filed by Disability Advocates, Inc., Joseph S., Steven W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Rickner, Robert) (Entered: 06/16/2011)

06/16/2011 06/17/2011 06/17/2011 06/17/2011 06/17/2011 06/23/2011 06/23/2011 06/24/2011 06/24/2011 06/24/2011 06/29/2011
06/29/2011 06/29/2011

194 AFFIDAVIT/DECLARATION in Opposition re 175 MOTION in Limine To Preclude Expert Testimony Declaration of Brant Fries, Ph.D. filed by Disability Advocates, Inc., Joseph S., Steven W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Rickner, Robert) (Entered: 06/17/2011)
195 AFFIDAVIT/DECLARATION in Opposition re 175 MOTION in Limine To Preclude Expert Testimony Declaration of Robert Factor, MD, Ph.D. filed by Disability Advocates, Inc., Joseph S., Steven W.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rickner, Robert) (Entered: 06/17/2011)
196 MEMORANDUM in Opposition Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Preclude Expert Testimony filed by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W.. (Rickner, Robert) (Entered: 06/17/2011)
197 AFFIDAVIT/DECLARATION in Opposition re 175 MOTION in Limine To Preclude Expert Testimony Declaration of Robert H. Rickner, Esq. filed by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W.. (Attachments: # 1 A, # 2 B, # 3 C, # 4 D, # 5 E, # 6 G, # 7 I, # 8 L, # 9 P, # 10 Q, # 11 R, # 12 S, # 13 T, # 14 U, # 15 V, # 16 V.1, # 17 V.2, # 18 V.3) (Rickner, Robert) (Entered: 06/17/2011)
199 Letter dated June 17, 2011 addressed to Magistrate Judge Cogan from Robert Rickner, Esq. by Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (Rickner, Robert) (Entered: 06/17/2011)
200 MOTION for Leave to File Excess Pages by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 06/23/2011)
ORDER granting 200 Motion for Leave to File Excess Pages for defendants' reply brief, not to exceed 15 pages. Ordered by Judge Brian M. Cogan on 6/23/2011. (Weisberg, Peggy) (Entered: 06/23/2011)
201 REPLY in Support re 181 MOTION for Summary Judgment filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 06/24/2011)
202 AFFIDAVIT/DECLARATION in Support re 181 MOTION for Summary Judgment filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 06/24/2011)
203 NOTICE of Appearance by Veronica Seungwon Jung on behalf of Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W. (aty to be noticed) (Jung, Veronica) (Entered: 06/24/2011)
204 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Exhibit R (Fries tr), # 2 Exhibit S (Loewenstein tr), # 3 Exhibit T (Jovanovic tr), # 4 Exhibit U (Ureke tr), # 5 Exhibit V (Volpe tr), # 6 Exhibit W (Hecht tr), # 7 Exhibit X (Factor tr), # 8 Exhibit Y (interrogatory), # 9 Exhibit Z (Factor rebuttal report), # 10 Exhibit AA (Geller Second Expert Report), # 11 Exhibit BB (Factor Report Ex. D), # 12 Exhibit CC part 1 (notes), # 13 Exhibit CC part 2 (notes)) (Pepper, Joshua) (Entered: 06/29/2011)
205 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 06/29/2011)
206 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 06/29/2011)

06/29/2011 06/29/2011
06/30/2011
07/05/2011 07/06/2011 07/11/2011 07/12/2011
07/15/2011 07/15/2011 07/16/2011
07/20/2011 07/20/2011 07/20/2011 07/20/2011

207 REPLY in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, George Pataki. (Pepper, Joshua) (Entered: 06/29/2011)
208 AFFIDAVIT/DECLARATION in Support re 175 MOTION in Limine To Preclude Expert Testimony filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Exhibit R (Fries tr), # 2 Exhibit S (Loewenstein tr), # 3 Exhibit T (Jovanovic tr), # 4 Exhibit U (Ureke tr), # 5 Exhibit V (Volpe tr), # 6 Exhibit W (Hecht tr), # 7 Exhibit X (Factor tr), # 8 Exhibit Y (interrogatory), # 9 Exhibit Z (Factor rebuttal report), # 10 Exhibit AA (Geller Second Expert Report), # 11 Exhibit BB (Factor Report Ex. D)) (Pepper, Joshua) (Entered: 06/29/2011)
209 The Clerk of the Court is directed to seal Exhibits 12 and 13 to defendants 204 Affidavit/Declaration in Support re 175 Motion in Limine To Preclude Expert Testimony, as they are confidential documents that counsel filed erroneously. Ordered by Judge Brian M. Cogan on 6/30/2011. As per this order, those attachments have been sealed. (Marziliano, August) (Entered: 06/30/2011)
210 MOTION for Extension of Time to Complete Discovery related to PASRR by Disability Advocates, Inc., Sidney Hirschfeld, Joseph S., Steven W.. (Lowenstein, Amy) (Entered: 07/05/2011)
ORDER granting 210 Motion for Extension of Time to July 25th to Complete Discovery related to PASRR. This extension does not alter dates set by Judge Cogan in his Order dated 6/8/2011. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/6/2011. (Vasquez, Lea) (Entered: 07/06/2011)
211 MEMORANDUM DECISION AND ORDER dated 7/8/11 granting 181 Motion for Summary Judgment. ( Ordered by Judge Brian M. Cogan on 7/8/2011 ) MHLS terminated. (Guzzi, Roseann) (Entered: 07/11/2011)
ORDER. The pretrial submissions due by 7/29 must be filed in the following way: the parties are directed to file a Joint Pretrial Order using the form posted on the Court's website by 7/29. The parties are to simultaneously deliver to Chambers a set of those exhibits to which objection has been made, and those portions of deposition transcripts that a party intends to offer and to which the adversary objects, both as reflected in the Joint Pretrial Order, so that the Court can rule on the objections at the Final Pretrial Conference to the extent practicable. A Final Pretrial Conference will be set at a later date. Ordered by Judge Brian M. Cogan on 7/12/2011. (Weisberg, Peggy) (Entered: 07/12/2011)
212 Letter MOTION for Reconsideration re 211 Order on Motion for Summary Judgment . Request for Leave to File Motion for Reconsideration. by Lesley M. Delia. (Volpe, Lisa) (Entered: 07/15/2011)
213 ORDER denying 175 Motion in Limine. See attached decision. Ordered by Judge Brian M. Cogan on 7/15/2011. (Cogan, Brian) (Entered: 07/15/2011)
ORDER re 212 Motion for Reconsideration. Plaintiffs' motion for leave to file is deemed to constitute their motion for reconsideration. It appears to be well based. If defendants have more to say about it than they said in their briefs, they can file a responsive letter by 7/22/11. Ordered by Judge Brian M. Cogan on 7/16/2011. (Cogan, Brian) (Entered: 07/16/2011)
Set Hearing: The Court will hold Oral Argument on 212 Motion for Reconsideration by telephone on 7/25/2011 at 9:30 AM. The parties are directed to jointly call Chambers at (718) 613−2230. (Weisberg, Peggy) (Entered: 07/20/2011)
214 Letter Request by Lesley M. Delia (Volpe, Lisa) (Entered: 07/20/2011)
ORDER granting 214 Letter request. MHLS is directed to provide by ECF the central call−in number. Ordered by Judge Brian M. Cogan on 7/20/2011. (Weisberg, Peggy) (Entered: 07/20/2011)
215 Letter with Telephone Number for Oral Argument by Lesley M. Delia (Volpe, Lisa) (Entered: 07/20/2011)

07/20/2011 07/23/2011 07/23/2011
07/25/2011 07/25/2011 07/25/2011 07/27/2011 07/29/2011 07/29/2011 08/01/2011 08/02/2011 08/04/2011
08/05/2011

216 RESPONSE in Opposition re 212 Letter MOTION for Reconsideration re 211 Order on Motion for Summary Judgment . Request for Leave to File Motion for Reconsideration. filed by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 07/20/2011)
217 Joint MOTION for Discovery to be reopened by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Pepper, Joshua) (Entered: 07/23/2011)
ORDER granting in part and denying in part 217 Motion for Discovery. As the Court stated at a conference with the parties, when a case challenging the administration of a public program is delayed this long −− over five years −− the program is likely to change and it is not surprising that the change can impact the case. By protracting the case, the parties have created the possibility that it will never end because as soon as the parties think they are close to being done, they face a new modification in the program. Accordingly, the Court will permit the parties to take the discovery specified in this motion, and only that discovery, with the following provisos: (1) the Court is going to try this case at the earliest possible date. If the requested discovery is not completed by that date, then it will not be taken. So it behooves the parties to take this discovery as quickly as possible. (2) Nothing in this discovery will support a request for yet another summary judgment motion. If defendants think they are entitled to judgment as a matter of law, they can move at the close of plaintiffs' case. Ordered by Judge Brian M. Cogan on 7/23/2011. (Cogan, Brian) (Entered: 07/23/2011)
218 Letter with Excerpt Attachment by Lesley M. Delia (Attachments: # 1 Exhibit) (Volpe, Lisa) (Entered: 07/25/2011)
Minute Entry for Oral Argument held on plaintiff MHLS' motion for reconsideration 212 on 7/25/2011 before Judge Brian M. Cogan. Both sides present. Decision reserved. See transcript for details. (Court Reporter: Victoria Butler). (Weisberg, Peggy) (Entered: 07/25/2011)
219 Letter in response by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson (Pepper, Joshua) (Entered: 07/25/2011)
220 MEMORANDUM DECISION AND ORDER denying MHLS' 212 Motion for Reconsideration. ( Ordered by Judge Brian M. Cogan on 7/26/2011 ) (Guzzi, Roseann) (Entered: 07/27/2011)
221 MOTION for Extension of Time to File Joint Pretrial Order by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Gasior, John) (Entered: 07/29/2011)
ORDER granting 221 Motion for Extension of Time to File JPTO. Monday. Ordered by Judge Brian M. Cogan on 7/29/2011. (Cogan, Brian) (Entered: 07/29/2011)
222 Proposed Pretrial Order by Disability Advocates, Inc., Joseph S., Steven W. (Lowenstein, Amy) (Entered: 08/01/2011)
SCHEDULING ORDER: Final Pretrial Conference is set for 9/6/2011 at 2:30 PM in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 8/2/2011. (Weisberg, Peggy) (Entered: 08/02/2011)
223 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/25/11, before Judge Cogan. 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 8/25/2011. Redacted Transcript Deadline set for 9/6/2011. Release of Transcript Restriction set for 11/2/2011. (Rudolph, Gene) (Entered: 08/04/2011)
224 NOTICE of Appearance by Scott Ronald Wilson on behalf of Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson (aty to be noticed) (Wilson, Scott) (Entered: 08/05/2011)

08/09/2011 08/17/2011
08/17/2011 08/18/2011 08/18/2011

225 NOTICE of Appearance by Michael Anthony Arcati on behalf of All Defendants (aty to be noticed) (Arcati, Michael) (Entered: 08/09/2011)
226 MOTION for Leave to File Supplement to Joint Pre Trial Order by Disability Advocates, Inc.. (Attachments: # 1 Supplement) (Loewenstein, Nina) (Entered: 08/17/2011)
ORDER granting 226 Motion for Leave to File. Ordered by Judge Brian M. Cogan on 8/17/2011. (Cogan, Brian) (Entered: 08/17/2011)
227 Letter to Hon. Brian M. Cogan by Michael Hogan, New York State Department of Health, New York State Office of Mental Health (Gasior, John) (Entered: 08/18/2011)
ORDER re 227 Letter filed defendants. Defendants are directed to stop filing letters that are described only as "letters" on ECF. A brief description of the subject matter of the letter must be made in the ECF entry line so that the docket starts to become intelligible.

09/01/2011 09/01/2011 09/02/2011 09/02/2011 09/03/2011 09/06/2011
09/06/2011
09/07/2011

Motions in limine should have been filed with the JPTO since this Court ordered objections to testimony and exhibits to be listed there. Any objections not raised have been waived. The Court will nevertheless accept oral argument with regard to previously stated objections at the scheduled conference. Trial schedule will also be discussed there. Ordered by Judge Brian M. Cogan on 8/18/2011. (Cogan, Brian) (Entered: 08/18/2011)
228 MOTION for Leave to File Motion to Supplement Plaintiffs' Deposition Designations and Remove Witnesses From Plaintiffs' Witness List by Lesley M. Delia, Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 09/01/2011)
229 MOTION for Leave to File Motion to Supplement Plaintiffs' Deposition Designations and Remove Witnesses From Plaintiffs' Witness List by Lesley M. Delia, Disability Advocates, Inc., Justina F., Lisa H., Sidney Hirschfeld, Carlos S., Joseph S., Edwin T., Bradley W., Omar W., Steven W.. (Rickner, Robert) (Entered: 09/01/2011)
ORDER. Plaintiffs' 229 Motion for Leave to File is deemed to be its Motion to Amend the Joint Pretrial Order and is granted. The designations annexed to plaintiffs' motion are deemed an Addendum to the JPTO. Plaintiffs' 228 Motion is terminated as filed in error. Ordered by Judge Brian M. Cogan on 9/2/2011. (Weisberg, Peggy) (Entered: 09/02/2011)
230 Joint MOTION to Adjourn Conference Final Pretrial Conference by Disability Advocates, Inc., Joseph S., Steven W.. (Lowenstein, Amy) (Entered: 09/02/2011)
ORDER denying 230 Motion to Adjourn Conference. The Court has no confidence in the parties' ability to settle this case. Trial will commence in September at a date to be chosen at the conference. Ordered by Judge Brian M. Cogan on 9/3/2011. (Cogan, Brian) (Entered: 09/03/2011)
231 Consent MOTION for Leave to File supplemental exhibits to JPTO by Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, David A. Paterson. (Attachments: # 1 Supplement Plaintiffs' substantive objections, # 2 Supplement exhibit Z11, # 3 Supplement exhibit A12, # 4 Supplement exhibit B12, # 5 Supplement exhibit C12, # 6 Supplement exhibit E12) (Pepper, Joshua) (Entered: 09/06/2011)
MINUTE ENTRY FOR FINAL PRETRIAL CONFERENCE AND ORDER DISMISSING CASE. Both sides present. The parties submitted a settlement agreement disposing of all claims in this action, which the Court, with one modification, approved and So Ordered. Case is dismissed pursuant to the settlement agreement, which will be docketed separately. (Court reporter: Anthony Mancuso.). Ordered by Judge Brian M. Cogan on 9/6/2011. (Cogan, Brian) (Entered: 09/06/2011)
232 Stipulation and Order of Settlement. Ordered by Judge Brian M. Cogan on 9/6/2011. (Clarke, Melonie) (Additional attachment(s) added on 9/7/2011: # 1 Forms) (Clarke, Melonie). (Entered: 09/07/2011)

12/14/2011
12/20/2013 12/20/2013
08/31/2015 08/31/2015 08/31/2015 05/02/2016 05/03/2016 05/03/2016 05/03/2016
05/09/2016 05/11/2016 05/13/2016
05/20/2016 05/24/2016

233 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on September 6, 2011, before Judge Cogan. Court Reporter/Transcriber Burt Sulzer, Telephone number 718 613−2481. Email address: bsulzer@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 1/4/2012. Redacted Transcript Deadline set for 1/17/2012. Release of Transcript Restriction set for 3/13/2012. (Sulzer, Burt) (Entered: 12/14/2011)
234 Letter Request for Telephone Conference by Disability Advocates, Inc. (Attachments: # 1 Exhibit Assessment Joseph S., # 2 Exhibit HRA Application Joseph S., # 3 Exhibit HRA Denial Joseph S., # 4 Exhibit Assessment NH Remedy Member) (Loewenstein, Nina) (Entered: 12/20/2013)
ORDER re 234 request for telephone conference. The Court sees no reason for a conference, whether by telephone or otherwise. If plaintiff's counsel believes that Integral has violated his rights, whether under the injunction or otherwise, then plaintiff's counsel should take such action as they believe is appropriate. Ordered by Judge Brian M. Cogan on 12/20/2013. (Weisberg, Peggy) (Entered: 12/20/2013)
235 STIPULATION to Extend Settlement by Disability Advocates, Inc. (Loewenstein, Nina) (Entered: 08/31/2015)
236 NOTICE of Change of Email Address by Nina Loewenstein (Loewenstein, Nina) (Entered: 08/31/2015)
237 ORDER re 235 Stipulation to Extend Settlement by Disability Advocates, Inc. until June 1, 2016. ( Ordered by Judge Brian M. Cogan on 8/31/2015 ) (Guzzi, Roseann) (Entered: 08/31/2015)
238 Letter Pre−Motion Letter Re: Stipulation Extension by Disability Advocates, Inc. (Loewenstein, Nina) (Entered: 05/02/2016)
ORDER re: 238 letter requesting premotion conference. Plaintiffs are hereby ORDERED to inform the Court whether defendants have consented to this extension. Until they do so, a Pre−Motion conference will not be scheduled. Ordered by Judge Brian M. Cogan on 5/3/2016. (Weisberg, Peggy) (Entered: 05/03/2016)
239 Letter Response to Court Order re: Pre−Motion Request by Disability Advocates, Inc. (Loewenstein, Nina) (Entered: 05/03/2016)
SCHEDULING ORDER: Defendants are directed to file a response to plaintiffs' 238 letter by 5/9/16; a premotion conference on plaintiffs' request to seek an extension of the court−ordered Stipulation of Settlement is set for 5/13/16 at 3:15 pm in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 5/3/2016. (Weisberg, Peggy) (Entered: 05/03/2016)
240 Letter response to plaintiffs' application for pre−motion conference by Sharon Carpinello, Richard F. Daines, Michael Hogan, New York State Department of Health, New York State Office of Mental Health, Antonia C. Novello, George Pataki, David A. Paterson (Gasior, John) (Entered: 05/09/2016)
241 NOTICE of Appearance by Mark J. Murphy on behalf of All Plaintiffs (aty to be noticed) (Murphy, Mark) (Entered: 05/11/2016)
Minute Entry and Order for Pre−Motion Conference held before Judge Brian M. Cogan on 5/13/2016. Both parties present. Plaintiffs' pre−motion conference letter 238 is deemed its motion. Decision reserved on plaintiffs' motion for an extension of the Settlement Agreement. Plaintiffs are required to submit a list to the Court by 5/20/2016 identifying the individuals it believes should be covered under an extension of the stipulation. See transcript for additional details. (CR: Linda Danelczik). (Weisberg, Peggy) (Entered: 05/13/2016)
242 STIPULATION to Extend Settlement by Disability Advocates, Inc. (Attachments: # 1 Proposed Order) (Loewenstein, Nina) (Entered: 05/20/2016)
243 ORDER re 242 Stipulation to extend settlement. ( Ordered by Judge Brian M. Cogan on 5/23/2016 ) (Guzzi, Roseann) (Entered: 05/24/2016)

06/16/2016

244 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 13, 2016, before Judge Cogan. Court Reporter/Transcriber Linda Danelczyk, Telephone number 718−613−2330. Email address: lindadan226@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 7/7/2016. Redacted Transcript Deadline set for 7/18/2016. Release of Transcript Restriction set for 9/14/2016. (Danelczyk, Linda) (Entered: 06/16/2016)