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April 2, 1996

SUFFOLK PARENTS of HANDICAPPED ADULTS; and IRENE HOOPS; FRANK GATLAND; FRANCES SENSALE LENZO; JOYCE B. ARON; LILLIAN MELVILLE HAMID; MARGARET DeVOE; JANE DOE, and RICHARD ROE, as parents and guardians of, respectively, LORA HOOPS; ANDREW GATLAND; JAMES SENSALE; LOURDES ARON; GLENNA HAMID; KAREN DeVOE; JOHN DOE, and RACHEL ROE, Plaintiffs, against GEORGE E. PATAKI, as Governor of the State of New York; ROBERT J. GAFFNEY, as County Executive of Suffolk County; THOMAS A. MAUL; JAMES L. STONE; BRIAN WING, and JOHN B. WINGATE, as Commissioners of, respectively, the New York State Office of Mental Retardation and Developmental Disabilities; the New York State Office of Mental Health; the New York State Department of Social Services, and the Commissioner of the Department of Social Services; and SUFFOLK COUNTY, Defendants.

The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 This case is the second of possibly three cases concerning the care and treatment of profoundly disabled and medically fragile adults whose rights under the federal Constitution have been gravely imperiled as the result of an unfortunate funding dispute between the State of New York and three of its local governments. These adults have been the beneficiaries of a joint state and local program called Transitional Care Funding (TCF). The program was developed to provide a bridge between educational placements of severely disabled persons in residential programs and long-term adult residential care after they "aged-out" of educational placements at the end of the school year in which they became twenty-one.

 The first suit arose from the withdrawal by New York City from TCF at the end of May 1995, and, ultimately resulted in State assumption of full responsibility for funding. *fn1" Following New York City's successful withdrawal, the Suffolk County Executive, always frustrated by the State's refusal to assume full financial responsibility for the program, finally determined to emulate New York City's withdrawal from the program and, last November, obtained the necessary approval from the County Legislature. *fn2"



 The present action involves four severely disabled, multiply handicapped, plaintiffs, *fn3" all of whom were placed, with the approval of the State, in out-of-state institutions as children, years ago, because no appropriate treatment programs were available in-state. For example, one plaintiff, aged twenty-five, diagnosed as functioning in the profound range of mental retardation, with cerebral palsy and a seizure disorder, has been at The Woods School, in Langhorne, Pennsylvania, since she was placed there by a Suffolk County local school district nineteen years ago, at the age of six. Pltf. Mot. Hoops Aff.

 There is no dispute by either the County or the State defendants that the plaintiffs' disabilities are severe nor that plaintiffs require institutionalization. The State's position, however, is that, under state law, it is authorized only to reimburse localities for their expenditures for the care of TCF clients. Further, the State maintains that the court has erred in finding that the constitutionally protected liberty interests of these severely disabled persons are impaired by the State's role in the abrupt cessation of funding for their placements without providing adequate opportunity for them to locate alternative care in New York. Tr. at 26-27. Abramowitz Ltr. dated March 8, 1996 at 4.

 The State disclaims responsibility for TCF recipients on the basis of its use of third parties: localities for payments to providers and financial management and private institutions for provision of care. The State also relies on the expressed disclaimer of "entitlement" in the TCF statute. *fn4" The State's division of responsibility for TCF recipients among several of its agencies, as well as local governmental bodies -- ranging from local school districts to the county -- has also made it possible for a State representative to come into court and assert that TCF recipients, despite their having been placed in institutions many years ago with the specific approval of the State Education Department, stand in the same position as persons coming into placement from their own homes. Tr. at 21, Brooks Tr. at 27. The State's role in educational placements, prior to the TCF recipients "aging-out," has been neither acknowledged nor denied by the State, which has sought to confine its role to that assigned to two of its agencies, the Office of Mental Retardation and Developmental Disabilities (OMRDD) and the Office of Mental Health (OMH).

 Nor does the County dispute the plaintiffs' need for care. On June 9, 1995, Suffolk County (County) Department of Social Services (DSS) Commissioner Wingate wrote to the parents of plaintiff Sensale, who was to "age-out" of his educational placement on July 1, 1995, in response to a letter Sensale's parents had written to the Legislature to protest the County's announced intention of accepting no new TCF clients on that date: "Please be assured that it was never my purpose to suggest that your son does not need the level of care he is presently receiving at the Woods School." County Ex. I. In his July 25, 1995 letter to the TCF parents, Commissioner Wingate wrote:

 County Ex. A (Emphasis added.).

 All of the plaintiffs, with one exception, were originally placed in out-of-state residential care as children by Suffolk County local school boards with the approval of the State Education Department *fn5" because no adequate programs or placements were available in New York State. These educational placements could be made only after five refusals by in-state institutions and only if the State approved. Tr. at 28. The TCF recipients in Suffolk County in November 1995 range in age from twenty-two to thirty-one. County Ex. E.


 TCF was established in 1983 because the State could not accommodate all the individuals who had been placed for educational reasons as soon as the school year ended in which they turned twenty-one, a process called "aging out." *fn6" Thus TCF recipients remained in their educational placements even after they reached twenty-one and the locality's educational obligations to them under federal law expired. TCF provided that their expenses were to be paid under a formula in which localities were reimbursed by the State for fifty percent of the costs of continued placement until January 1, 1995, when the State's share increased to sixty percent. *fn7" In 1996, under the statute passed in 1994, new entry into TCF was to be ended, and in 1999, the State was to assume complete responsibility for all those remaining in TCF status.

 As previously mentioned, this lawsuit arose out of the County's unhappiness with the State's failure to assume full funding of residential placement of these severely disabled adults. This would ordinarily be solely a responsibility of the State. It is a responsibility that will, in fact, be the State's once the plaintiffs are placed appropriately in adult facilities in New York State. The County's frustration with the State plus budgetary pressure led it to withdraw from the program under which it, after State reimbursement, paid forty percent of the costs of these individuals' care. The 1996 annual cost of the program was estimated, in a County legislative submission to be $ 1,863,858. County Brf. Addendum I. As the County would be entitled to reimbursement of sixty percent of that amount, its actual 1996 cost would be $ 745,543 if the State placed none of the current group of TCF recipients before year end.

 This court has dealt previously with a locality's withdrawal from the TCF program in Brooks v. Pataki, 95-CV-2902. See Brooks I, 908 F. Supp. 1142, 1144-45 (E.D.N.Y. 1995), (describing the history of TCF in New York State.) In Brooks I, plaintiffs, New York City residents, were granted a preliminary injunction against the State defendants that ordered the State defendants to fund the plaintiffs' placements during a transition period in which in-State placements are sought and given appropriate review. See, id. at 1149-54, (analyzing the constitutional issues presented in that case.) See also Brooks II, 908 F. Supp. 1157 (E.D.N.Y. 1995) (denying State defendants' request for a stay pending appeal.)

 The Suffolk County Executive has an extensive history, going back almost eight years, of omitting the TCF program from its proposed budget. These efforts have been repeatedly thwarted by the County Legislature (Legislature), at least, that is, until November 1995. A further effort was made to restore the program in February 1996.

 In 1989, the County Executive announced its decision to withdraw and notified state agencies, providers and parents. The County Legislature then restored full funding and the County Executive did not veto the program. (Plaintiffs aver that County Executive Halpin attempted to cut the program even earlier than this, in 1988, and the County Legislature restored the program. Probeyahn Aff. P 5.) Again in 1990, the County Executive eliminated TCF from the County budget and notified all parties, but again the County Legislature restored TCF funding. Kelsch Aff. dated February 23, 1996 P 23. Plaintiffs submitted a copy of a June 10, 1992 letter from Robert J. Gaffney, County Executive, to Albert Robidoux, Director, Long Island Developmental Center (the local OMRDD office, a Developmental Disabilities Service Office (DDSO)), *fn8" notifying him that the County would fund only the TCF incumbents as of February 13, 1992 and only until December 31, 1992. Pltf. Ex. 13. The Legislature restored the funds, then as before. Probeyahn Aff. P 7. Only in 1991, 1993 and 1994 were there no efforts by the County Executive to omit TCF from its proposed budget. The plaintiffs suggest that the 1993 and 1994 restraint was the result of the pending TCF reform, vetoed by Governor Cuomo in 1993 but reintroduced and enacted in 1994. Id. P 7-8.

 The following narrative of the County's 1995 actions regarding TCF is based on the chronology submitted by the County. Sklar Ltr. dated March 15, 1996. *fn9" In May 1995, one year before the TCF statute eliminated new intake into the program, County DSS Commissioner Wingate announced that the department would not accept the eight individuals who were "aging-out" at the end of that school year. The County DSS Commissioner notified the State, the schools and the TCF recipients' parents/advocates of this plan, but, as before, the County Legislature, on September 8, 1995, restored full funding.

 In June 1995, County DSS Commissioner Wingate submitted his proposal to omit TCF from the County's proposed budget for the coming year, and, in July, notified the parents of incumbent TCF recipients (but not the parents of those who aged out in mid-1995) and the State commissioners who are defendants here (or their predecessors), as well as the OMRDD director for Long Island, Marvin Colson, of the plan. The County did not attach copies of the Commissioner's letters to the institutions in July 1995, but it avers that notification was also sent to the institutions at that time. Sklar Ltr. dated March 15, 1996, Chronology.

 Following the announcement by County DSS, in July 1995, regarding its planned 1996 budget, as had also occurred following the May 1995 announcement that no new TCF recipients would be accepted, parents and other interested parties began lobbying the County legislators, meeting, as previously, with encouragement from the legislators.

 The County DSS refusal to accept the 1995 TCF intake was an active issue over the summer of 1995. For instance, on July 28, 1995, the presiding officer of the Legislature wrote the local OMRDD director, acknowledging the effort to deny TCF funding to the eight persons who "aged out" of educational placements in 1995, stating:

This is written, in the hope that the schools will not act precipitously against the interest of the clients who need their care and will be aware of the legislature's efforts, along with the State, to find the necessary funding.

 Attached to Abramowitz Ltr. dated March 8, 1996. *fn10"

 On September 8, 1995, the County Legislature, by a vote of thirteen in favor, four opposed, and one abstention, approved a bill directing payment, through 1995, of the costs of residential placement of the eight persons who "aged-out" in 1995. The County Executive approved the bill on September 22, 1995.

 Although the County DSS intent to omit TCF from the 1996 County budget was announced in July 1995, the County Executive's 1996 Recommended Budget that formally omitted TCF was presented to the Legislature and the public only on September 14, 1996. In October 1995, the Legislative Budget Review Office released its evaluation of the Recommended Budget, recommending against restoration of TCF in 1996. On October 23, 1995, County DSS Commissioner Wingate stated, in his message to an Operating Budget Meeting of the Legislature, that an amount sufficient only for carryover 1995 TCF expense had been included in the 1996 budget proposal for his agency.

 On November 8, 1995, the Legislature approved the 1996 budget bill with only the carryover amount for TCF. The Legislature also voted on a separate resolution to restore funding for TCF in the 1996 County Budget on that date. A majority, eleven of eighteen legislators, voted for the resolution but that margin failed to achieve the super-majority of fourteen required to restore the funds.

 On November 24, 1995, more than two weeks after the adoption of the 1996 County Budget omitting TCF on November 8, 1995, County DSS Commissioner Wingate wrote the State Defendants, giving "official notice that effective January 1, 1996, Suffolk County Department of Social Services will discontinue funding for all individuals in the Transitional Funding Program." (Emphasis added.) He attached a listing of eighteen TCF recipients that included six persons who had not been on the July list (some of those who aged out in 1995) and omitted two persons who had been on the July list. County Ex. E (November letters to State officials) (emphasis added) and Ex. B (July letters to State officials). The County also notified the institutions at which the TCF recipients resided that TCF funding would end on December 31, 1995. *fn11" County Ex. D.


 Although disclaiming all constitutional responsibility for the Suffolk County TCF recipients, the State concedes that it received and took cognizance of Suffolk County's "official notice" of its intent to withdraw from TCF contained in the Commissioner Wingate's letter of November 24, 1995. Abramowitz Ltr. dated March 8, 1996. The State notes, however, that, even after the County's November 1995 letter, it received a further communication from the Presiding Officer of the County Legislature, indicating further efforts on the part of the legislators to restore funding. On January 22, 1996, the Presiding Officer of the Legislature, Donald R. Blydenburgh, in a letter to the OMRDD Long Island director, Marvin Colson, wrote:

As Presiding Officer of the Suffolk County Legislature, I want to advise you and the schools that provide the services received by Suffolk County residents, that I have introduced a resolution to restore the funds necessary to complete this program in 1996. The resolution will come before the Budget Steering Committee the end of February. If it passes out of committee, it will come before the general legislature at the March 5, 1996 meeting.
I am working diligently to find the necessary funding to maintain the level of services needed by these individuals. This is written in the hope that the schools providing services will not act ...

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