plaintiffs' current placements were approved by the State of New York only upon a showing that there were no appropriate placements for them within the state.
It is unquestionable that retaining the status quo with respect to plaintiffs' current placements is the only way to protect the plaintiffs' due process rights to necessary safe conditions and freedom from undue restraint, pursuant to Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) and Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1246 (1984). Balancing the very lives and functioning of these fragile individuals against speculative and possibly non-existent incremental cost to the State weighs markedly against issuance of a stay.
3. Movant Lacks Substantial Possibility of Success on Appeal
The State argues it will prevail on appeal because, first, the State defendants were not fully heard, second, the injunction alters the status quo in requiring the State to pay 100% of the cost of the plaintiffs' care and, third, the injunction was improperly directed at the "State," rather than to State officials who are the actual defendants. Finally, the State argues that plaintiffs' due process and equal protection claims are defeated by res judicata as a result of the determination of the state courts that plaintiffs had no entitlement to TCF under the statute.
a. Failure to Fully Hear State Defendants
The State defendants were not fully heard because they requested an adjournment on the second day of the hearing, September 12, 1995, representing that they were working with the plaintiffs and the City to partially fund plaintiffs' placements (to the 60% level of the State budget) from June to the conclusion of the state appellate court review. This failed effort succeeded only in delaying these proceedings by two months, and further exacerbated the care-givers' funding deficit in a manner than cannot be remedied by this court.
When the court reconvened on November 2, 1995 to hear the report of the aborted settlement, the State did not request the Court to reopen the hearing. Indeed, the State, in its request for a stay, has raised no serious questions with regard to the facts relied upon by the court in its decision. Rather, both at the conference on November 2, 1995 and now in its letter request for a stay, it has relied on legal arguments rather than on any meaningful factual dispute. In any event, the appropriate remedy for the alleged lack of an opportunity to be heard is a request for a reopening of the hearing, not for a stay.
b. Injunction Improperly Alters the Status Quo
The State also asserts that it is likely to succeed on appeal because the injunction improperly alters the status quo by ordering the State to provide 100% funding for plaintiffs' placements. However, such funding is the only way to retain the status quo for these severely disabled plaintiffs. Without such funding the care-giving institutions cannot afford to retain plaintiffs. Failure to provide such funding after six months would effectively foreclose plaintiffs' claims.
c. Order Directed to "State" Rather than to State Defendants
The State correctly notes that the court has incorrectly ordered "the State of New York" to fund placements rather than directing the named State defendants. Taking cognizance of this formal distinction, I hereby clarify the object of the injunction to comply with the Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), formula. Governor Pataki and other named State defendants are hereby ordered to take all necessary steps, including but not limited to payment of the out-of-state facilities at which plaintiffs currently reside, maintenance of plaintiffs in their present placements until, following evaluation procedures evincing the exercise of professional judgment, in compliance with the standards enunciated in Youngberg and Good Will, orderly transition to permanent State approved placement is accomplished. Orderly transition is to include the proposal of, and opportunity to visit, appropriate, available, long-term placements plus an opportunity for the plaintiffs and their parents/guardians to obtain independent administrative and/or judicial review.
d. Plaintiffs' Claim Barred by Res Judicata
The State defendants insist that, contrary to the court's conclusion, plaintiffs' claims are barred by res judicata. This court continues to disagree, holding that the State's precipitate actions following the end of TCF in June 1995 inflicted new constitutional injury upon the plaintiffs that could not have been raised in litigation concluded prior to its occurrence. Final resolution of the funding issue in state court (now affirmed by the Appellate Division for the First Department, but still possibly subject to review by the New York Court of Appeals) did not authorize the State to subject plaintiffs to unconstitutional treatment by depriving them of their interest in humane institutionalization without procedural due process.
Interestingly, in the case cited by the State for the proposition that res judicata bars this court from considering the plaintiffs' post-State court decision claims, Balderman v. U.S. Veterans Administration, 870 F.2d 57, 62 (2d Cir. 1989), the Second Circuit held the plaintiff could litigate a second claim arising from his transfer from full-time to part-time status where a second consequence of the transfer occurred only after the first action was concluded. The court permitted the second litigation to proceed ". . . because, at the time of [his earlier suit] his employment had not been terminated. Thus, the present claim could not have been litigated in the [earlier suit]." As in Balderman, plaintiffs could not litigate abrupt, unreviewed transfers by the State until the State actually undertook such action.
e. TCF Entitlement Critical to Plaintiffs' Due Process Claim
In their assertion that the plaintiffs' due process claim must fail, the State defendants wrongly (if understandably) focus on their obligations (or, as determined by the State court, their lack of obligation) to the plaintiffs under the TCF statute. They ignore the obligation created by the State's determinative role in the out-of-state placement of these severely disabled individuals as children and its determinative role in their continuing out-of-state placement when TCF funding ceased. It was the inadequacy of the State's effort to make appropriate in-state placements available that left plaintiffs stranded without funding when the City terminated its participation in TCF.
Moreover, the State defendants misconstrue the plaintiffs' due process entitlement under the Constitution: it is not that the plaintiffs were entitled to TCF funding, it is that, once the State undertook to provide residential care for these individuals, it was obligated to provide necessary, safe conditions and freedom from undue restraint determined by the exercise of professional judgment. Having failed to make appropriate in-state placements available to plaintiffs to replace out-of-state residential care which the State itself previously determined to be more suitable for them than any available in-state, the State could not abruptly leave these severely disabled individuals stranded in placements when the City terminated its participation in TCF.
Furthermore, even if the State had decided to go out of the business of providing residential placements for the most severely disabled, it had a constitutional obligation to do so in an orderly manner. Sending the parents/guardians of these severely disabled persons letters describing the review process prescribed under the TCF statute and assuring them of the State's commitment to a "smooth transition" to in-state placements and then attempting, as OMH did, to transfer the plaintiffs from long-term placements with minimal notice over the Fourth of July weekend to temporary placements does not evince the professional judgment required under the Constitution. Following such assurances by OMRDD, abandonment of these individuals with unpaid care-givers and failure to complete review of proposed placements as represented, also violated, if less dramatically, the minimal requirements of procedural due process.
The State's notifications to plaintiffs and their parents/guardians and care-givers did not provide adequate notice to permit them to prepare for the cessation of funding. In fact, the State directed plaintiffs' participation in a process that resulted in their continued residence in out-of-state facilities.
In Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the Supreme Court held that three factors must be considered in determining the constitutional adequacy of procedures used by a governmental entity to deprive a person of a property or liberty interest:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Here, the private interest that will be affected by pre-deprivation hearings is a liberty interest in life and maintenance of functioning, that, if sacrificed, cannot be made whole by damages. The persons affected are a small number of individuals who the State, itself, has found to have severe disabilities that make incorporation into in-State facilities difficult even while it acknowledges its obligation to provide such placement.
The risk posed by erroneous in-state placement potentially involves life itself, especially in the case of those autistic plaintiffs who are very self-destructive. For others, precipitate and unreviewed transfer threatens loss of functioning capacity that has been attained only at great effort.
The beneficial process for proposal and independent review of in-state placements that continues plaintiffs in their present out-of-state placements for its duration should be resumed. The probable value of this process is illustrated by the affidavits and testimony presented by the plaintiffs' parents/guardians. These present vivid examples of rejections of plaintiffs by facilities suggested by the State and of the inappropriate nature of some proposed placements.
As was noted above, the final factor in determining what, if any, process is due, the Governmental or public interest, does not weigh substantially against a due process requirement of pre-deprivation hearings before plaintiffs are transferred from their existing placements. The incremental cost, if any, of out-of-state placements for a transition period against the cost of alternative in-state placements is not likely to be material. The administrative burden is also not great as the impact of this determination is limited to a group of people that the State itself has defined to be so severely handicapped that residential care was required but could not be provided within the state.
e. TCF Entitlement Critical to Plaintiffs' Equal Protection Claim
As with due process, the State focuses its equal protection argument narrowly on plaintiffs' entitlement (or lack thereof) to TCF funding rather than on their entitlement under the Constitution to humane institutionalization characterized by necessary safe conditions and freedom from undue restraint determined by the exercise of professional judgment. The State has itself created the distinction between persons still institutionalized in out-of-state facilities and those transferred to in-state facilities. It is the unequal treatment meted out to these two groups, arbitrarily divided by State acts and omissions, that violates the equal protection clause of the Fourteenth Amendment.
As previously stated, these severely disabled persons remained in out-of-state facilities because the State did not complete transition before the City funding terminated. For this reason alone, they are to be subjected, if the State's position is accepted, to eviction from the very facilities that the State has previously found to be better suited for them than any instate facility. The severely disabled persons formerly in out-of-state placements who were transferred by the State to in-state facilities prior to the termination of funding retain full State support, while those left out-of-state receive no State support. In addition, the persons placed in-state are given rights to challenge proposed transfers to other in-state facilities that are being denied to these plaintiffs.
As previously noted, there has been no assertion that out-of-state placement costs more than in-state placement. The State is using a State-created distinction as the basis for its invidious discrimination. Bureaucratic and procedural delays cannot be permitted to victimize these vulnerable people so unnecessarily.
A decision such as the transfer of a severely disabled person from an existing, appropriate placement, even if out-of-state, to a new one, even if in-state, is exactly the kind of decision that benefits from a formal review. (And, as noted above, the State provides such review for persons institutionalized within the State.) In O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 797, 65 L. Ed. 2d 506, 100 S. Ct. 2467 (1980), Justice Blackmun, writing for the majority, stated:
Procedural due process seeks to ensure the accurate determination of decisional facts, and informed unbiased exercises of official discretion. To the extent procedural safeguards achieve these ends, they reduce the likelihood that persons will forfeit important interests without sufficient justification.
Serious interests are at stake here. While a post-deprivation hearing is adequate when a prisoner has lost a hobby kit at issue in Parratt v. Taylor, a pre-deprivation hearing is required for more important interests like penal and, as here, non-penal, confinement, whenever circumstances permit. See, Parratt, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) (post-deprivation tort remedies are adequate redress for deprivation of property like the hobby kit at issue in the case) as opposed to Calhoun v. New York State Div. Of Parole Officers, 999 F.2d 647 (2d Cir. 1993) (addition of five days to an inmate's sentence violated inmate's liberty interest and required giving him an adequate opportunity to be heard prior to the deprivation). See also Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 20, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978) ("Although utility service may be restored ultimately, the cessation of essential services for any appreciable time works a uniquely final deprivation. Moreover, the probability of error in utility cutoff decisions is not so insubstantial as to warrant dispensing with all process prior to termination.")
4. The Public Interest
As the foregoing discussion indicates, in the absence of a financial impact on the State, it is hard to find a significant public interest in denying these severely disabled persons support simply because they remain in out-of-state placements due to the State's failure to complete an orderly transfer process that will place them into in-state facilities.
* * *
Consideration of all the factors that must be established under the Second Circuit's test for issuance of a stay lead to the conclusion that the State has not met its "difficult burden." Private Sanitation, 44 F.3d at 1084. Movants have failed to establish they will suffer irreparable harm from enforcement of the injunction where there is no clear indication of any financial impact, much less a substantial one. In contrast, it is clear that the plaintiffs will suffer substantial harm from a stay, in fact so much harm that a stay would be tantamount to dismissal. In addition, movants have not established a substantial possibility of success on appeal nor have they established that the public interest would be advanced by a stay. Because, pursuant to Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974), this court may only order the State to provide prospective funding and because plaintiffs have a compelling need for equitable relief as they are in great jeopardy of harm after nearly six months without funding, further delay would be unconscionable.
Accurate determination of appropriate placement requires careful review of the plaintiffs' requirements and suitability of proposed placements. Failure to provide such review can lead to the forfeiture of the plaintiffs' interests in humane confinement. Thus the State's offer of "appropriate in-State placements" without a formal review process and with no support for existing placements while the proposed placement is under review is a cruel hoax.
Accordingly, the State defendants' motion for a stay of this court's preliminary injunction, pending appeal, is denied. That injunction is hereby revised to order the State defendants, Governor Pataki and the Commissioners of the Office of Mental Retardation and Developmental Disabilities, the Office of Mental Health, and the Department of Social Services to take all necessary steps, including but not limited to payment of out-of-state facilities at which plaintiffs currently reside, to maintain plaintiffs in their present placement until, following evaluation procedures evincing the exercise of professional judgment, in compliance with the standards enunciated in Youngberg and Good Will, orderly transition to permanent State approved placement is accomplished. Orderly transition is to include the proposal of, and opportunity to visit, appropriate, available, long-term placements plus an opportunity for the plaintiffs and their parents/guardians to obtain independent administrative and/or judicial review.
Dated: Brooklyn, New York
November 30, 1995
David G. Trager
United States District Judge