Later in July, several parents/guardians visited a proposed transfer site in Utica, approximately four and one-half hours from New York City. Tr. at 130. One was told that placement there would be temporary only and that a permanent placement had not been determined. Tr. at 132, 164. The staff at the proposed transfer sites, although described by a parent as "pleasant," demonstrated ignorance about the nature of the plaintiffs' disabilities. Tr. at 131-32. For example, a parent brought to the attention of the OMH staff at the site that his daughter's disability was not primarily psychiatric. Upon review, the State apparently agreed and, in August 1995, State responsibility for this plaintiff was transferred from OMH to OMRDD. Tr. at 161-62. Another parent reported that the staff member designated as her contact "had no awareness that [plaintiff] had a language problem." Tr. at 132.
As part of the events of the Fourth of July weekend, the State gave plaintiffs notice that no further funding would be provided for the current placements and that "the cost of remaining in your current placement would become the responsibility of you and your family." Ethel Davis Jackson, OMH Assoc. Comm. for Adult Community Services Ltr. dated 6/30/95 to Harriet Eaton, Pltf. Mot. Ex. 3. In July and August, the State also notified parents/guardians that it was eliminating the administrative appeal process formerly provided. Pltf. Mot. Ex. 4, James M. Walsh, Assoc. Comm., OMRDD Ltr. dated 7/13/95. Lewis D. Campbell, OMH Dir. Bureau of Special Projects, Ltr. dated 8/1/95, Am. Complt. P93-94. Informal discussions with the Office's staff were offered as a replacement.
Moreover, as of November 1995, efforts have broken down to arrive at an interim settlement (announced in September 1995) in which the State would at least have paid care-providers the sixty percent share that it would otherwise have paid as reimbursement to the City had the City not withdrawn.
Plaintiffs' Out-of-State Placements Result from State Action
These plaintiffs, like those in the Suffolk Developmental Center addressed by the Court of Appeals for the Second Circuit in Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1246 (1984), "are entitled to safe conditions and freedom from undue bodily restraint." The plaintiffs are not in State-operated institutions; and the State asserts that it has no custody of them and no entitlement is involved here. Yet, the State has been intimately involved in their institutionalization from the time it gave its approval when plaintiffs were children and has provided subsidies for their original placements in out-of-state residential care ever since. In many instances, the State is de facto, if not de jure, guardian of the plaintiffs.
Institutionalization of the plaintiffs qualifies as state action for § 1983 purposes under the "close nexus test" where the State "'has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government].'" San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 546, 97 L. Ed. 2d 427, 107 S. Ct. 2971 (1987) (quoting Blum v. Yaretsky, 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982)).
It was the State's failure to promptly place adults (or to return them home -- assuming there was no entitlement to care and that such an alternative was even feasible) as they aged out of child placements that gave rise to the TCF program.
In a collateral matter in state court, Justice Salvador Collazo has held the State liable for nearly $ 9 million for its failure to fulfill its commitment to place 200 mentally retarded City citizens per year in long term residential care. City of N.Y. v. Maul, N.Y.L.J. 10/27/95, p. 31, col. 2 (Sup. Ct. N.Y. County).
Plaintiffs are among those City citizens that the State has failed to place. NYCEP Appellants' Record on Appeal, Rosenbaum Affirm., dated 5/17/95 P5 at 135.
The complexity and variations of the funding relationships over the period between 1982-1995 should not be permitted to obscure the primacy of the State's role in the out-of-state residential placement of severely retarded and mentally ill adults. During the entire period, the State, not the City, has had the responsibility for approving out-of-state placements and monitoring out-of-state facilities. For instance, Ms. Friedman, co-counsel for plaintiffs, stated, without objection from the State or City, that the out-of-state placements were arranged only after parents took their "papers from the Board of Ed. . . . to send them to the regional director in the State Education Department for approving before funding would ever start." Tr. at 45. Further, such placements could be considered only after "there were five in-state rejections for a residential school." Id. Ms. Friedman continued: "The state education system didn't have anything, the local education system didn't have anything, and once they aged out there was no place for these people to go after twenty-one in-state." Id. at 46.
The TCF program was developed as a stopgap measure to bridge the State's persistent inability to find appropriate in-state placements and timely place persons in the adult care system who had been placed in out-of-state residential programs as children. In her memorandum to the Governor's Counsel, Elizabeth Moore, dated 7/21/94, City Mot. Ex. D at 000028, recommending approval of the TCF statute, Susan V. Demers, Deputy Commissioner and General Counsel, Department of Social Services, wrote: "Transitional care originally developed to deal with the problems of persons in residential schools and residential child care facilities who reached the age of 21, who needed placements in OMH or OMRDD adult care facilities but for whom no such placements were available." Id. at 4/000031. Consequently, the State had a determinative role in placing these individuals in the out-of-state facilities and, through its responsibility for locating appropriate in-state placements for them, had a determinative role in their remaining in out-of-state placement when TCF funding terminated.
A. Constitution Requires Exercise of Professional Judgment
In Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), the Supreme Court stated that, to determine the minimum constitutional standard applicable to persons confined (for non-penal reasons) in an institution as the result of state action requires ascertaining whether "professional judgment in fact was exercised." Id. at 321. This does not mean, contrary to plaintiffs' assertion, that transfer may be justified only where "independent medical judgment indicates the necessity of a transfer." Am. Compl. P57. Youngberg establishes the constitutional standard with which the State must comply -- provision of necessary safe conditions and freedom from undue restraint determined by the exercise of professional judgment. Id. at 319. This standard was further elaborated by the Court of Appeals for the Second Circuit in Good Will, 737 F.2d at 1250:
Deprivation [of mentally retarded residents' liberty interest in a humane and decent existence] exists when institution officials fail to exercise professional judgment in devising programs that seek to allow patients to live as humanely and decently as when they entered the school, i.e., when there is no individually oriented, professionally devised program to help . . . residents maintain the fundamental self-care skills with which they entered the Center.
In Youngberg, the Supreme Court acknowledged that: "[A] State necessarily has considerable discretion in determining the nature and scope of its responsibilities." 457 U.S. at 317. However, here, the State has not decided, for reasons of "economy, efficiency and expedition," O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 800, 65 L. Ed. 2d 506, 100 S. Ct. 2467 (1980), to cease providing residential placement for severely disabled adults. That legislative decision would be comparable to the District of Columbia's elimination of free homeless shelters for men in Williams v. Barry, 228 U.S. App. D.C. 220, 708 F.2d 789 (D.C. Cir. 1983), for which a "particularized notice detailing the reasons for the proposed closing and a reasonable opportunity to prepare and submit written responses to the Proposal," 708 F.2d at 790-91, was held to provide "the homeless men all the process they are due."
708 F.2d at 792. Here, however, despite the formalistic abjuration of responsibility in the TCF Statute,
in fact, the State accepts the necessity for residential placement for these plaintiffs and, had it fulfilled its obligation to locate appropriate in-state placements in a timely manner, it would have accepted financial responsibility for them.
Consequently, just as the state actors in Good Will had a constitutional obligation to provide their residents a humane and decent existence, so, too, in this action the State is obligated to exercise professional judgment to find, and professionally plan transition to, suitable facilities for the individuals still in out-of-state placements.
B. Absence of Professional Judgment in Transition Arrangement
The procedure followed by the State was manifestly unprofessional. The actions of State officials on the weekend of July 4, 1995 did not approach the minimal standard necessary to assure appropriate safe conditions for the plaintiffs. State action would have uprooted some plaintiffs to temporary placements in New York where their disabilities were poorly understood with no indication of where their ultimate placements would be or how long they would be in these "temporary" locations. State action now leaves them in limbo without funding for their present placement and without any process for an orderly transition, let alone the "smooth transition" repeatedly promised by State and City officials.
Moreover, the "process" pursued in early July by OMH was at variance with the process it previously announced that it would follow; the "process" was also at variance with the procedures provided in state legislation.
The transfer procedure of the Fourth of July weekend -- if it can be called a procedure -- was an unconstitutional violation of the rights of these individuals that threatened them with irreparable harm. The abrupt cessation of funding for placements without an orderly transition, in violation of the announced procedures of both OMH and OMRDD, continues to threaten plaintiffs with irreparable harm.
The Second Circuit in Good Will, 737 F.2d at 1246, following the Supreme Court in Youngberg, held that once the State made such individuals "dependent on the state, it was required to [house those voluntary residents] in a manner that would not deprive them of constitutional rights." As I read Judge Meskill's endorsement here of Justice Blackmun's concurrence in Youngberg, due process, at a minimum, requires a "do no harm" standard. There is evidence that, if State officials here had succeeded in their plans, the plaintiffs' physical safety as well as the maintenance of their fundamental functional capabilities might well have been endangered. See Pltf. Mot. Ex. 7, Septimus & Bavaro Aff.
The actions of the State here with respect to transition might fairly be analogized to a decision of a State or Congress to end support for a dialysis program. Such a program is not an entitlement; there is no custody of the patient for state action purposes; and the program's elimination is within the discretion of a State or Congress. Still, no one would seriously argue that the Due Process Clause does not impose an obligation upon a State or Congress to provide reasonable notice to dialysis recipients before terminating funding for those who have relied on that life-sustaining program, so as to allow them the opportunity to obtain alternate access to treatment. Where, as here, the recipients are not only dependent upon the State, but the State also has made assurances that the transition would be "smooth," it must be estopped from peremptorily removing funding -- even if there is no entitlement -- without at least following the process it led plaintiffs to expect.
The State's refusal to fund out-of-state placements, in view of its failure to complete placement of all TCF recipients, suggests a perverse game of musical chairs where not one but many persons are left standing when the music stops. The precipitate termination of support for out-of-state placements prior to the State's conclusion of arrangements for suitable placements within the State has left these plaintiffs stranded without financial support and without the means to effectuate an orderly transition to appropriate in-state care.
As Justice Blackmun noted in Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982) (quoting Vitek v. Jones, 445 U.S. 480, 491, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980)):
Each of our due process cases has recognized, either explicitly or implicitly, that because "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action."
Thus, the fact that state law provisions governing funding of out-of-state placement permit the City to terminate funding does not in turn authorize the State to violate its Constitutional duties to these most vulnerable of citizens.
C. State Breached its Due Process Obligations
Having decided that New York State had a due process obligation to the plaintiffs, it may be found to have breached that duty by the following acts:
1. OMH's almost complete failure to plan any orderly transition for its TCF clients after the City announced its intention to terminate funding in October 1994 and even after the Memorandum of Understanding between the City and the State that moved the date of funding termination to July 1, 1995 (subsequently accelerated to June 1, 1995 because of exhaustion of the City's TCF budget);