TCF statute.) Id. at 70. Also, the TCF statute mandated the preparation of a transfer plan for each adult by the discharging institution that "include[s] any information necessary to facilitate a safe transfer, such as specific problems, a schedule for administering medications and behavior unique to the individual." § 7.38(f).
Before the appropriateness of an available institutional placement can be determined and a TCF recipient transferred, the constitutional standard established in 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 (2d Cir. 1984), see infra p. 25, must be satisfied. Determination of the appropriateness of a new placement and transfer, as with any other act significantly affecting mentally retarded persons who have been institutionalized with the approval and financial support of the State, must reflect the exercise of professional judgment. For example, in Brooks, OMH notified the TCF recipients' "advocates" that their process would begin with an interview of the TCF recipient and evaluation of his or her clinical records by case management contractor or OMH staff.
Ethel Davis Jackson Ltr. dated February 27, 1995, Brooks Pltf. Ex. 7G.
Currently, OMRDD representatives have expressed a preference for a more cooperative, consultative and less formal (and adversarial) process than that provided in the statute and in the Memorandum of Understanding with the City: "It is the State's view of . . . this case that the formal offer of a placement followed by objection, by an opportunity to object and a hearing is a last resort kind of thing, really only useful if you want to look at it that way where you're trying to cutoff funding from someone who is, you know, who you're not -- -- whose expectation you're not meeting for whatever reason." Tr. at 20.
In any event, the process of determining what constitutes an appropriate placement for severely disabled persons like these plaintiffs must be a consultative one among the professionals at the State agency, the discharging facility and the proposed new facility and the 'advocate(s)' for the TCF client. These essential steps take time to accomplish.
To give some sense of what is involved, it may be instructive to compare the process required here to the much simpler, but not trivial, circumstance of the transfer of a non-disabled student from one college to another. First, the potential transferee's requirements must be determined and her qualifications documented, with transcripts and test scores and possibly letters of recommendation. Then, these requirements must be compared to available programs, a comparison that often involves a visit to the institution under consideration and discussion with the institution's staff of the match between the applicant's requirements and qualifications and the institution's offerings and requirements.
If both the applicant and the institution agree about the match between offerings and requirements and the institution finds the applicant qualified and there is space available, then transfer can take place. If requirements and offerings do not match or if the potential transferee is not accepted or if no place is currently available, the search must resume. To shorten the time period it may be possible to proceed with regard to several colleges simultaneously. Ordinarily in a college transfer, the student and, often with her parents' assistance, conducts all her own investigation, as her and her parents' resources (possibly with help from the institution) will most likely finance it.
Here, where the State will pay the institutions' charges, the State must also be involved but the decision making process becomes exponentially more complex.
TCF clients are often multiply disabled, thus requiring particularly close attention to their specific and individual needs. Research must be undertaken and reports written. Furthermore, there are far greater limitations on availability of appropriate programs for transfer of TCF recipients than in the college transfer scenario because program needs are derived from the particular disabilities presented by the potential transferee and his or her treatment history. Because of the effort involved, applications are seldom pursued with more than one program at a time. Sometimes appropriate placement can be offered only at a future date. Moreover, parents or advocates have little ability to speed the process.
The TCF program was created in response to just this complexity in locating appropriate placements. In 1983, a subcommittee of the New York State Assembly conducted hearings and issued a report on "The Crisis in Transition," noting that the problem was created by "inadequate transitional planning and the scarcity of services for young adults." "Aging Out: The Crisis in Transition at Age 21 for Disabled Individuals in Need of Adult Services," N.Y. State Assembly Subcomm. on Human Rights, January 14, 1983, at 2, Pltf. Ex. 7. "Nearly every speaker cited the difficulty in obtaining appropriate placements of their young adult clientele, particularly the multiply-disabled." Id. at 5. (Emphasis added.) It was then estimated that 1372 individuals would "age out" in 1985, 960 or 70% of whom would require residential placement. The eighteen individuals in TCF status
from Suffolk County when the County withdrew in 1995 must be placed against the context of the problem TCF was created to address, including the large numbers of persons "aging out' of educational placements, for whom in-state, adult placements were not available.
In fact, the State made progress in reducing the number of Suffolk County TCF recipients from 1989 to 1995. The number of Suffolk County TCF recipients grew from forty-four in May 1989 to fifty-two in 1990, but had been reduced to eighteen in November 1995, despite the annual additions of persons who 'aged-out' of education placements. Id. P 23. As of March 1996, the number has been reduced to fourteen, with the State's placement of the four persons on the County's November 1995 list of TCF recipients who had "aged out" in July 1995. Abramowitz Ltr. dated March 8, 1996.
The problem for the plaintiffs before this court, as it was in Brooks, is that the funding ended before the process had been completed for them, through no fault of their own. For those that had aged-out in prior years, their continued TCF status indicates that their disabilities have been particularly difficult for the State to accommodate in in-state placements.
One thing this history certainly establishes is, that, while it may not require two to three years to accomplish the safe transfer of these fragile individuals, thirty-seven days is insufficient. Safe transfer cannot be, and could not be, accomplished in the thirty-seven days between the County's "official" notification of the termination of funding and its actual cut-off.
Dealing with the same problem in Brooks I and drawing upon Justice Blackmun's opinion for the majority in O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 65 L. Ed. 2d 506, 100 S. Ct. 2467 (1980), I wrote:
Here, 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.
908 F. Supp. at 1153.
The State has pointed out that a claim of deprivation of property without procedural due process must identify the protected property interest, citing West Farms Associates v. State Traffic Commission, 951 F.2d 469, 472 (2d Cir. 1991). The Second Circuit quoted Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972): "'the nature of the interest [must be] one within the 'liberty or property' language of the Fourteenth Amendment.'" As this court has previously held, the TCF recipients' interest is a liberty interest in humane institutionalization, with conditions and changes determined with the exercise of professional judgment, not a property right or entitlement in any particular state statutory program. The Court of Appeals for the Second Circuit in Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (1984), following the Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), has 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." Good Will, 737 F.2d at 1246.
In Brooks I, I used the analogy of a governmental program supporting dialysis, 908 F. Supp. at 1152, noting that: "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." These TCF recipients are adults who are incapable of functioning outside of the institutions in which they have resided for years, unless a myriad of support services are provided, if at all. Neither the State nor the County have disputed the necessity of plaintiffs' institutionalization.
Plaintiffs simply cannot make an abrupt transition from institutional life to life on their own, as would result from acceptance of the County's and State's arguments with regard to their non-responsibility. They also cannot make, without planning and support, any transition to another institutional placement that must be found and paid for from public funds. As previously explained, such planning and support cannot be accomplished overnight. It takes months-the State of New York has, in fact, often taken years to accomplish such transitions under TCF. While the State's pace under TCF may not be a model, the history of the difficulty in finding placement for individuals with multiple disabilities in New York State demonstrates that this is not a matter that can be resolved in the thirty-seven day period the County allowed for making the necessary transition after it notified the State, the schools and the plaintiffs on November 24, 1995, following its adoption of its 1996 budget.
Where such liberty interests as those of the plaintiffs are implicated under the Fourteenth Amendment, state actors, including both the State and the County, are obligated to exercise professional judgment in their actions affecting those interests. In Brooks, drawing upon the decisions in 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 (2d Cir. 1984), this court held that "due process, at a minimum, requires a 'do no harm' standard. . . . 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." 908 F. Supp. at 1151.
In Brooks, this court, also, found an Equal Protection violation in the State's refusal to fund TCF recipients in out-of-state facilities because of its determinative role, both in the plaintiffs' original placement, and in their continuing placement, out-of-state.
The State materially assisted in creating the very distinction that then formed the basis for its discrimination in funding while the placements of other persons similarly situated within the state are fully funded.
See Brooks v. Pataki I, 908 F. Supp. at 1154.
There is no question that the State is responsible for these individuals in whose original and continued institutionalization it played so material a role. The Second Circuit, in Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1246 (1984), held that constitutionally protected liberty interests were implicated in the institutionalization of the mentally retarded even under voluntary commitment. Nonetheless, the State continues to argue that it has no federal constitutional responsibility to persons voluntarily committed to its care. See Abramowitz Ltr. dated March 8, 1996. This view, based heavily on DeShaney v. Winnebago County, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), not only believed by this court to be an unwarranted extension of DeShaney to institutionalized persons, but also fails to acknowledge that the plaintiffs' placements are not necessarily to be regarded as "voluntary."
It is true that plaintiffs were placed voluntarily by their parents and local school boards, with the specific approval of the State Department of Education, but they are now adults who have not given consent and are, in fact, incapable of doing so. A voluntary placement does not necessarily retain that character permanently in the face of intervening changes. The Eighth Circuit, in Kennedy v. Schafer, 71 F.3d 292, 294 (8th Cir. 1995), stated: "We see no reason why a patient originally committed voluntarily must retain that status permanently. Facts change, and legal status follows facts." That court suggested that a reasonable test for testing whether someone is a "voluntary" patient is whether the patient "had the absolute right to leave the hospital by simply requesting to be released." Id. at 295.
As a result of their own disabilities, plaintiffs here have no freedom to act in their own behalf. They certainly would not be released if they simply asked to be released. The State--ignoring the irony of the argument--has several times pressed its view that this court would be justified in issuing orders to restrain the private institutions at which plaintiffs reside from simply discharging them to another institution or a home-health care arrangement without developing an appropriate discharge plan. Tr. at 38-39. Brooks Tr. at 220-22.
Other facts that have changed and affected the plaintiffs' legal status after their original placement are their attainment of adult status at age twenty-one and a change in the governmental entities responsible for them. While plaintiffs were in educational placement before they became twenty-one, their local school district and the State were responsible for the costs of their institutionalization. Once the end of the school year in which they became twenty-one was reached they came under the aegis of TCF and, in the case of the Suffolk plaintiffs, they became the responsibility of OMRDD and Suffolk County. Both governmental entities are thereby constitutionally responsible for their continued institutionalization.
The State's assumption of responsibility for the plaintiffs was explicit. The OMRDD Long Island DDSO director and deputy director have attributed far greater responsibility to that agency in letters to parents than has been acknowledged by the State in this litigation:
If [your daughter] has not been placed in an adult residence by the end of the school year, our office will apply for transitional funding so that she can remain in her current setting until an adult placement is secured. . . . To qualify [for TCF], an individual must be deemed appropriate to receive services from OMRDD and must reside in a program approved under Social Services or Education Law. Transitional funding is administered by the N.Y.S. Department of Social Services with voluntary participation by individual county social services departments.