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June 17, 1996

WESTCHESTER ADVOCATES FOR DISABLED ADULTS; and STEPHEN GOODHUE; PAUL EISEMAN; LOUIS ENKER; RONI ENKER; NANCY GUIDDY; ESTEBAN SILVERA; ALICIA SILVERA; VERONICA F. BROPHY; JANE DOE, and RICHARD ROE, as Parents and Guardians of, Respectively, JASON GOODHUE; KARI EISEMAN; KENNETH ENKER; JOHN GUIDDY; RICHARD SILVERA; THOMAS BROPHY; JOHN DOE, and RACHEL ROE, Plaintiffs, against GEORGE E. PATAKI, as Governor of the State of New York; ANDREW O'ROURKE, as County Executive of Westchester County; THOMAS A. MAUL; JAMES L. STONE; BRIAN WING, and MARY E. GLASS, 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 of Westchester County; and WESTCHESTER COUNTY, Defendants.

The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 This case against Westchester County and State of New York officials and Westchester County is the third of 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 when they "aged-out" of educational placements at the end of the school year in which they became twenty-one.

 This action arises from the withdrawal from TCF by the Westchester County (County) Department of Social Services (DSS) in November 1995. The first suit arose from the withdrawal by New York City from TCF at the end of May 1995. *fn1" Following New York City's successful withdrawal, in November 1995, both Suffolk and Westchester Counties emulated New York City's withdrawal from the program. *fn2" This court entered an order directing Suffolk County to resume payment of plaintiffs' residential care for a period of six months, with the State to assume full funding of any plaintiffs remaining in out-of-state placement at the end of that period. That order, however, has been stayed by the Second Circuit with respect to the County, pending appeal, and is presently in effect with respect to the State.


 1. The Plaintiffs


 The present action involves six severely disabled, multiply handicapped, plaintiffs, all of whom were placed in out-of-state institutions as children, years ago, with the approval of the State, because no appropriate treatment programs were available in-state. For example, one plaintiff, Jason Goodhue, aged twenty-seven, "has a diagnosis of severe mental retardation, cerebral palsy, spastic diplegia, *fn3" functional scoliosis, statis [possibly static] encephalopathy *fn4" and a seizure disorder. He uses a wheel chair which [he] is able to push independently, though his control is poor. He is nonverbal, understands simple commands and usually responds yes/no verbally to questions." Unsigned document on Letchworth Developmental Disabilities Services Office (DDSO) letterhead, *fn5" titled "90 Day Update for Transitional Funding," dated December 30, 1995, Pltf. Ex. 10. Nearly six years ago this plaintiff "aged out" of his educational placement, that is, at the end of the school year in which he became twenty-one, he became ineligible for educational funding.

 Westchester County asserts that Stephen Goodhue, Jason Goodhue's father, rejected an available placement in a letter dated September 9, 1995 to Carole R. Touzalin, Director of Clinical Services for Community Based Services, Inc. (CBS). Giuliano Aff. PP 5-6. In fact, the letter submitted was one, and certainly not the last, of a series of letters exchanged between Mr. Goodhue and Ms. Touzalin and others in the long-drawn-out process of arranging an appropriate new placement for 'Jason Goodhue. In the letter which the County now chooses to interpret as a rejection of an available placement, Mr. Goodhue, who observed that he had read an article that stated, "'the group home system in the state of New York has, for the foreseeable future shut down,'" told Ms. Touzalin that "it is in the best interest of our son, Jason, that he remain at the Melmark Home where he has resided for the past twenty-three years . . .." However, this was not the end of Mr. Goodhue's correspondence with Ms. Touzalin nor did it represent the rejection of an available placement.

 Plaintiffs have submitted a series of letters regarding CBS evaluation of Jason Goodhue and proposal of a placement for him in a CBS facility. The following chronological summary provides the context for thee single statement to which the County now assigns such significance.

June 13, 1995 Ltr. from Touzalin to Melmark School official requesting information about Jason and asking Melmark to "inform the family so we can ascertain if they are interested in an alternate placement for Jason." Pltf. Ex. 17.
June 23, 1995 Ltr. from Goodhue to Touzalin, requesting a meeting "to discuss your facilities, share with you Jason's medical and personal history, and visit one or more of your group homes." Pltf. Ex. 18
June 28, 1995 Ltr. from Touzalin to Goodhue, describing "the possibility of opening an additional group home in Westchester County" that might "open up spaces in a few areas" so that "Jason might fit nicely into our group home into our group home . . . [in] Buchanan, NY." Ms. Touzalin also notes that CBS had "not received the final go ahead that would enable us to purchase property." Pltf. Ex. 19.
July 25, 1995 Ltr. from Olveira (County Case Manager) to Goodhue belatedly notifying him of Jason's referral to CBS that had been made in June. Pltf. Ex. 20.
September 9, 1995 Ltr. from Goodhue to Touzalin, expressing "decision that it is in the best interest of our son, Jason, that he remain at the Melmark Home where he has resided for the past twenty three years," but also stating that he hopes to visit the CBS facility in Buchanan in October. Pltf. Ex. 22.
September 25, 1995, Ltr. from Olveira to Goodhue, warning Goodhue that a refusal of a placement would mean that "transitional funding will not take over the financial responsibility of keeping Jason at Melmark Home." Olveira also stated: "As far as this Department is concerned your son has been formally accepted into Community Based Services, and the bed will be available in the near future." Pltf. Ex. 23. This latter statement by Olveira is astonishing: CBS had not yet reviewed Jason's records nor, apparently, yet purchased the home that would become a new facility and, when occupied by existing CBS clients, create vacancies in existing facilities, one of which might be suitable for Jason Goodhue.
November 30, 1995 Ltr. from Touzalin to Goodhue, notifying him that Jason had been accepted for placement "sometime in 1996." She also noted a meeting with Goodhue and his wife and invited them to see the facility "after the holidays." She further noted interest in meeting Jason. Pltf. Ex. 24.
December 21, 1995 Ltr. from Goodhue to Touzalin, providing a contact for a CBS visit to Jason at Melmark Home and accepting an invitation to visit the Buchanan facility for which Goodhue notes the availability of placement is from six to nine months in the future. Pltf. Ex. 25.
February 10, 1996 Ltr. from Goodhue to Touzalin, noting that Goodhue had visited the Buchanan facility, inquiring whether CBS had visited Jason at Melmark, and indicating that while he sought to assure that Jason's best interest were served, he was still interested. Pltf. Ex. 27.
May 7, 1996 Ltr. from Frederick Zazycki, Director, Letchworth DDSO, to Goodhue, copies to, inter alia, Touzalin, indicating that the CBS placement "is projected to be available no later than December 31, 1996." Pltf. Ex. 14.

 As this history indicates, the placement about which Mr. Goodhue and Ms. Touzalin corresponded had, as a prerequisite to availability, the development of another group home by CBS to which some of an existing facility's current residents would be transferred, creating, in turn, a vacancy that might be appropriate for Jason. This process was clearly enunciated in the June 28, 1995 letter from Ms. Touzalin to Mr. Goodhue:

We have been told to screen individuals for placement, but have not received the final go ahead that would enable us to purchase property. When this approval comes through we would open a small home for six individuals, but would move residents from our current homes into the new site. This would, however, open up spaces in a few areas.

 Pltf. Ex. 19.

 The most recent indication of availability of this placement for Jason Goodhue in a CBS facility "is projected to be available no later than December 31, 1996," according to the May 7, 1996 letter to Mr. and Mrs. Goodhue from Frederick Zazycki, Director, OMRDD Letchworth DDSO. Pltf. Ex. 14. (Emphasis added.)

 Intervening correspondence submitted by the plaintiffs indicates that Mr. Goodhue continuously maintained contact with CBS, visited the facility and indicated interest in the possible placement. There is no indication that either the County or the agency ever viewed his reservation of judgment on the appropriateness of a somewhat hypothetical placement for his wheelchair-bound and nonverbal son as a rejection. The County case manager, Maria T. Olveira, wrote Mr. Goodhue on September 25, 1995, replying to his "concern about the possibility of this placement not coming through," by stating a rather exaggerated view of the status of a placement offer: "As far as this Department is concerned your son has been formally accepted into Community Based Services, and the bed will be available in the near future." Pltf. Ex. 23. (Emphasis added.) The letter also warned Mr. Goodhue that a refusal of the offer would mean the end of TCF funding for Jason at Melmark Home.

 It is, however, clear that, as of the present, Mr. Goodhue has not spurned any placement nor that any placement has been offered by CBS that has been actually available. What is not clear is how, from this factual basis, the County drew the conclusion regarding CBS' commitments with regard to Jason Goodhue's placement found in Maria T. Olveira's September 25, 1995 letter to Stephen Goodhue. As of the date of Ms. Olveira's letter, CBS had not met Jason and the Goodhues had not visited the proposed facility. In her November 30, 1995 letter, Ms. Touzalin of CBS wrote to Mr. Goodhue: "The proposed move would be to our group home in Buchanan, NY and would occur sometime in 1996. It may take up to six months to have everything in place, but I do want you to know of our decision, and to arrange a visit for you to see the Buchanan home right after the holidays." Pltf. Ex. 24. (Emphasis added.)

 In sum, although the County asserts that "upon information and belief, these individuals have maintained their TCF status not because of the unavailability of appropriate placements but instead because of the reluctance of their parents or guardians to accept such placements," Giuliano Aff. P 6, the full context of the situation reviewed above paints a quite different picture. As Ms. Touzalin noted with respect to Jason Goodhue, placement of a TCF recipient is "a long drawn out process." Pltf. Ex. 26, January 19, 1996 Ltr. from Touzalin to Goodhue. In the same vein, plaintiffs have also submitted a May 7, 1996 letter from Letchworth DDSO Director Zazycki notifying another plaintiff that a proposed placement "is expected to have a vacancy no later than December 31, 1996." Pltf. Ex. 15.


 Another plaintiff, Ricardo Silvera, twenty-nine years old, is no longer in out-of-state placement. He was transferred from an out-of-state placement at the Woods School in Langhorne, Pennsylvania, to the Livingstone Avenue Facility of Abbott House in New York State on February 3, 1996, shortly after the effective date of the County's withdrawal from TCF funding. In addition to his constitutional claims under 42 U.S.C. ยง 1983, he and his parents have raised pendent state tort claims against the County for his injuries and the impairment of his rehabilitation that resulted from that transfer, as well as for indemnification for damage claims that may be raised against him and his parents.

 Ricardo Silvera's disabilities were described as follows in a document on Westchester DDSO letterhead titled "90 Day Update for Transitional Funding," dated October 31, 1995, Pltf. Ex. 11:

Ricardo functions in the severe range of mental retardation. He has been diagnosed with Down's Syndrome and Organic Personality Disorder. He has alopecia, *fn6" thyroid dysfunction and testicular atrophy. He has a bilateral hearing loss and limited language acquisition. Ricardo communicates through sign, gestures and vocalizations. His receptive language skills are good. He is able to understand and respond to complex commands. He is self toileting with supervision and performs other self care tasks with verbal prompts. There has been aggressive behavior addressed with a behavior plan. Behaviors have included grabbing, kicking, hitting, hair pulling, throwing objects, throwing excrement and urinating on others.

 Plaintiffs allege that County defendants' precipitous withdrawal from TCF and improper transfer planning, including the absence of opportunity for his parents to visit the facility prior to his transfer, resulted in serious injury to Ricardo Silvera and his parents. "Ricardo Silvera violently reacted to the change of residence. . . . He attacked an autistic resident, pulling his hair; destroyed furniture; vomited all over himself, and was otherwise unmanageable, requiring restraint by two staff members." Compl. P 77. The complaint alleges that the facility notified his father that he "would be sent to the psychiatric ward of White plains Hospital unless he was picked up at once. They added that there was insufficient staff to deal with Ricardo's outbursts." After Ricardo spent the remainder of that day and evening with his father, the next day the facility received Ricardo again. Plaintiffs assert that "staffing was increased" at the facility at the time of Ricardo's readmission. Compl. P 78-79.


 These descriptions indicate the severity and complexity of Jason Goodhue's and Ricardo Silvera's disabilities that were the very reasons for their educational placement out-of-state initially, and for their remaining in out-of-state placements long after they were no longer eligible for educational placement. TCF was utilized by New York State and its localities for particularly hard-to-place disabled adults. The plaintiffs, other than Ricardo Silvera, remain in the out-of-state placements where they had been placed with State approval when they were children because, through no fault of their own, the State has been unable to place them in in-state facilities.

 After oral argument, the County submitted conclusory affidavits from persons without direct knowledge of on-going placement efforts for plaintiffs, the nature of their requirements and the availability or appropriateness of the "proposed" placements. For example, the County's affiant Salem addressed only the cost of TCF. County affiant Giuliano qualifies his statement regarding plaintiffs' rejection of placements as being "upon information and belief," P 6, and presents an interpretation of what constitutes an appropriate placement offer that is rendered unworthy of belief in the light of the materials submitted by the plaintiffs.

 2. Notice of Termination of Transitional Care Funding

 Arguing that it provided notice to the plaintiffs in the summer of 1995, the County has submitted letters sent to the plaintiffs that stated:

As you might be aware, Transitional Funding of individuals with developmental disabilities, placed in residential schools, will be ending. In an effort to insure that your child's residential needs are met, the Westchester County Department of Community Mental Health and the Letchworth Developmental Services Office have made referrals to community based agencies.
Our office received verbal notification that your child has been accepted for residential placement into [facility name].
We are notifying you at this time, so that you can begin the planning process with [facility] to arrange for the most ...

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