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January 2, 1980

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al., and PATRICIA PARISI, et al., Plaintiffs, against HIGH L. CAREY, individually and as Governor of the State of New York, et al., Defendants.

The opinion of the court was delivered by: BARTELS

This is an application by plaintiffs on behalf of themselves and other members of the Willowbrook class *fn1" for an order implementing and enforcing the Consent Judgment entered in this action on April 30, 1975. Specifically, they seek an order enjoining defendant New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") and its officials from terminating funding for the placement of class members in the home of their natural parents. They base their application principally upon specific provisions of the Consent Judgment and at the same time contend that termination of the funding violates the New York State Administrative Procedure Act and the Equal Protection and Due Process Clauses of the United States Constitution.

Defendants oppose the application, asserting that disbursement of the funds in question is unauthorized, illegal, and unnecessary to assure proper implementation of the Consent Judgment. In substance, they argue that funding of natural home placement of Willowbrook class members and mentally retarded residents of New York state generally is a legislative measure which the state legislature has repeatedly rejected.

Upon consideration of the affidavits, depositions, and briefs submitted by the parties, and the testimony of Kathy Schwaninger, Executive Director of the Willowbrook Review Panel, and oral argument heard on December 7, 1979, the Court concludes for the reasons hereinafter set forth that plaintiffs' motion must be granted.


 The facts underlying the principal civil rights action previously brought on behalf of the residents of Willowbrook Developmental Center (now "Staten Island Developmental Center") have been stated in numerous prior decisions of this Court, *fn2" and they need no repetition here. The major points of contention were settled in 1975 by the Willowbrook Consent Judgment, which has since been modified by order of the Court on March 10, 1977 and September 15, 1978. The essence of the Consent Judgment is its mandate that defendants provide Willowbrook residents with the "least restrictive and most normal living conditions possible . . . ," Consent Judgment, § A(1), and to that end, defendants are required to "take all steps necessary to develop and operate a broad range of non-institutional community facilities and programs to meet the needs of Willowbrook's residents and the class." Id., § V(1). Included in these necessary steps is defendants' responsibility each year to request the New York legislature to "appropriate sufficient additional funds for the development and operation of community facilities and programs to serve the needs of the class . . ." Id., § V(2); see also id., P 3. Within six months after the date of the Judgment, defendants were required to place 200 Willowbrook residents in the community, id., § V(4), toward the Judgment's ultimate goal of deinstitutionalization by reducing the institution's population from approximately 2800 in 1975 to 250 by 1981. Id., § V(1).

 In order to implement these provisions, defendants began in 1975 to develop a placement program offering a broad spectrum of services and community settings, ranging from group homes to individual placements within a family home. As the placement process is currently in effect, the crucial determination as to the most appropriate placement, i. e., "the least restrictive and most normal living conditions possible," for each individual class member is made by an Interdisciplinary Treatment Team *fn3" after careful evaluation of both the client and his or her program, as prepared by direct care staff personnel. Once a placement recommendation is made, parents of the client affected are consulted, and if they object to the proposal, due process procedures may be invoked.

 Pursuant to the community placement mandate of the Consent Judgment, placements of class members in foster homes under the Family Care Program have been made in numerous cases since 1975. Established prior to approval of the Consent Judgment for the benefit of those persons "who do not require inpatient care in an institution but who are unable to function adequately in their own homes or in independent housing accommodations," N.Y.Soc.Serv.L. § 209(3)(c) (McKinney), the Family Care Program provides for income maintenance payments to clients for their "lodging, board and minimal personal attendant services . . ." Id. The purpose of the program is to provide a stable family living arrangement where clients can, through supervision and participation in household activities, enhance developmental abilities and independent living skills. OMRDD Policy Manual § 10. Funding comes from a complex joint federal-state scheme and consists of federal Supplementary Security Income ("SSI") payments and additional state payments established under New York law in order to bring the total payment up to a statutorily determined "standard of monthly need." Id., § 209(2) (McKinney Supp. 1979). *fn4" In order to qualify under the program, various financial and categorical eligibility requirements must be met, *fn5" and the foster parents must be certified by OMRDD as "family care providers." *fn6" Notwithstanding satisfaction of each of these requirements, no class member can be placed in a foster home without an Interdisciplinary Treatment Team first having determined that such placement is the most appropriate.

 Defendants assert that from its inception, the Family Care Program has been directed to placement of retarded persons in foster homes, rather than natural homes, and they rely upon the principle that a parent has legal, and thus financial, responsibility for a natural child until the age of majority. See N.Y.Dom.Rel.L. § 32. On June 28, 1975, however, the State Department of Mental Hygiene issued a departmental Memorandum extending availability of family care benefits to natural parents of retarded adults who have been institutionalized for at least two years in any institution in the state of New York. This interpretation of the applicable regulations was predicated upon the view that upon achieving majority a child is no longer the natural charge of the parents.

 In October 1975, defendants determined that in order to meet the placement goals of the Consent Judgment within the required time frame, additional proposals for immediate community placement of Willowbrook residents were necessary. As a result, on December 5, 1975, then-Deputy Commissioner for Mental Retardation Thomas Coughlin issued Mental Retardation Memorandum No. 75-37, which stated, in part, as follows:

In view of the Consent Judgment ordering the Department to reduce the population of Willowbrook Developmental Center from 2,800 residents to 250 by 1982; and because of the benefit to children which would occur from their early reintegration into their own homes, the Division of Mental Retardation will allow the placement of minor children of the Willowbrook class into their own homes under the family care program as an emergency measure. Children placed must be of an age and status that will allow them to be eligible for regular family care payments when they reach the age of 18. All family care regulations will be followed. (Emphasis added.)

 Payments to natural parents under this emergency program were to be made in amounts equal to those received by foster parents under the statutory Family Care Program. Although this Memorandum referred specifically to that program, it is apparent that the action taken was based not on the family care statutes but on the Consent Judgment because funding was to be drawn solely from the Willowbrook Developmental Center "other than personal services" budget. Statutory family care funding was unavailable because children placed in their natural homes are deemed to receive the income of their parents and, thus, were generally not income eligible under the statutes. The relevance, therefore, of the statutory Family Care Program was solely as a procedural framework for the emergency program. Of the approximately 500 families eligible to take advantage of this program for natural home placement of children residing at Willowbrook, only 20 expressed an interest in participating. *fn7"

 Due largely to its limited impact, this "emergency measure" continued relatively unnoticed until early 1979. On March 21, however, in Sundheimer v. Kolb, N.Y.L.J. at 1 (Sup.Ct.Bronx Co. March 22, 1979), the New York State Supreme Court found the application of the statutory Family Care Program through the Memoranda cited supra to be "laden with unconstitutional defects." *fn8" Although the court concluded that the statutes themselves were properly drafted, it held that the extension of family care benefits by OMRDD to children placed in the natural home only (1) if a member of the Willowbrook class, or (2) if an adult and previously institutionalized for two years, effectively penalized the Sundheimer class "those parents who chose not to submit their children to the well-documented horrors of (the Willowbrook) institution" for caring for their children at home and violated their rights under the Equal Protection Clause of the Fourteenth Amendment. Specifically, the court found that the parents and children affected were identical except for the fact that "one group of children and adults has been institutionalized while the other has not," and it stated that "(by) and large, the plaintiffs and the class which they seek to represent, have been denied unfairly certain benefits and categorized without rational basis to their detriment."

 According to former OMRDD Commissioner Coughlin, the Sundheimer decision presented him with a dilemma: either (1) extend family care benefits to all natural parents of retarded children, regardless of whether a member of the Willowbrook class or extent of prior institutionalization, at an estimated cost approximating the total budget of OMRDD, *fn9" or (2) terminate the funding of all natural home placements. On May 17, 1979, the Commissioner opted for the latter course and issued the following memorandum to all OMRDD associate commissioners:

Effective immediately and without any exceptions, there will be no further admissions to family care in the natural home for both children and adults. Each facility director within your county service group should be called personally by you to be informed of this directive immediately. This is the highest priority ...

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