United States District Court, Southern District of New York
April 19, 1999
JUANA RODRIGUEZ, ET AL., PLAINTIFFS,
BARBARA DEBUONO, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Scheindlin, District Judge.
OPINION AND ORDER
Table of Contents
I. Procedural Background .............................. 605
II. Legal Standard for a Permanent Injunction .......... 607
III. Discussion ......................................... 607
A. Plaintiffs' Medicaid Claim ..................... 608
1. Legal Standard for a Private Right of
Action Under 42 U.S.C. § 1983 ............
2. Application of Standard .................. 611
a. 42 U.S.C. § 5 1396a(a)(10)(B) .......... 611
b. Medicaid Act Regulations ............. 612
3. The Merits of Plaintiffs' Medicaid
Claims ................................... 613
a. 42 U.S.C. § 1396a(a)(10)(B) ..........
b. Plaintiffs' Regulatory Claims ........ 614
B. Plaintiffs' Claims Under the Americans With
Disabilities Act and the Rehabilitation
Act ........................................ 614
1. Applicability of Anti-Discrimination
Statutes to This Case .................... 615
2. The Merits of Plaintiffs' ADA and § 504
Claims ................................... 618
a. "Qualified Individual" With a
Disability ........................... 618
b. Plaintiffs Are Excluded From Benefits
Because of Discrimination Based on
Disability ........................... 619
c. Reasonable Accommodation ............. 619
i. Essential Nature of Program ...... 619
ii. Undue Burden ..................... 621
C. Irreparable Harm ............................... 623
IV. Conclusion ........................................... 624
This class action, involving the level of care provided to
mentally impaired individuals, arises out of a challenge to New
York State's design and implementation of its task-based
assessment ("TBA") programs. TBA programs are used throughout
the State to determine the amount of personal care services
hours provided to eligible Medicaid applicants and recipients.
Plaintiffs, New York State Medicaid home care applicants and
recipients, suffer from mental disabilities, such as
that cause them to require assistance with the activities of
daily living ("ADL"). Defendants are Barbara A. DeBuono,
Commissioner of the New York State Department of Health, and
Brian Wing, Acting Commissioner of the New York State
Department of Social Services, ("the State"), and the
respective Departments of Social Services of the City of New
York (the "City"), Nassau County ("Nassau"), Westchester County
("Westchester") and Suffolk County ("Suffolk") (collectively
with the State, "Defendants").*fn1
Plaintiffs allege that defendants' refusal to include "safety
monitoring" as an independent task discriminates against
otherwise eligible cognitively impaired individuals in
violation of: (1) the Medicaid Act, 42 U.S.C. § 1396 et seq.
and its regulations; (2) § 504 of the Rehabilitation Act; and
(3) the Americans with Disabilities Act ("ADA"). Plaintiffs now
move for permanent injunctive relief on all three grounds. For
the reasons that follow, plaintiffs' motion is granted.
I. Procedural Background
Over two years ago, plaintiffs filed a class action complaint
and an order to show cause to preliminarily enjoin the State's
operation of TBA programs.*fn2 Following a two week hearing,
this Court entered an Amended Order ("August 25 Order"),
granting in part and denying in part, plaintiffs' request for
class certification pursuant to Rule 23 of the Federal Rules of
Civil Procedure ("Fed. R. Civ. P.").*fn3 See Rodriguez v.
DeBuono, supra. The plaintiffs' motion for a preliminary
injunction was also granted in part, based on a finding that
plaintiffs had demonstrated a substantial likelihood of success
on the merits of: (1) their safety monitoring claim pursuant to
the Medicaid Act, 42 U.S.C. § 1396a(a)(10)(B), and its
regulations, 42 C.F.R. § 440.240(b); and (2) plaintiffs' claim
that due process requires the City's notices of TBA
determinations for applicants and recipients to include the
number and allocation of authorized hours. See id. at 157,
164-65.*fn4 However, the Court found that plaintiffs failed to
make the required showing with regard to their "span of
time"*fn5 claims against the City and Nassau County as well as
with the remainder of their notice claims. See id. at 161-63,
165, 167. The Court declined to
address plaintiffs' ADA and § 504 claims at that time because
the preliminary injunctive relief was based on plaintiffs'
other claims. See id. at 161 n. 23.
In September 1997, defendants appealed and sought an order
staying the portion of the preliminary injunction requiring
them to provide safety monitoring relief pending appeal. This
Court granted defendants' motion for a stay. On November 16,
1998, the Second Circuit vacated the preliminary injunction,
without reaching the merits of the appeal, finding that
"imminent irreparable harm," an essential requirement for
interim relief, had not been shown in light of the District
Court's stay pending appeal. See Rodriguez v. DeBuono,
162 F.3d 56, 62 (2d Cir. 1998), opinion amended and superseded by
Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999).
On remand, the parties requested further discovery and
settlement negotiations regarding plaintiffs' span of time
claim.*fn6 See Transcript of December 2, 1998 ("Dec. 2 Tr.")
at 16-17. However, all parties sought a swift resolution of the
remaining claims. The parties and the Court agreed that the
litigation would take "two tracks" — one being a final
resolution of the safety monitoring claim, and the other a
settlement track for the span of time claim. See id. at 11.
Accordingly, the span of time claim was bifurcated from the
safety monitoring claim, and the parties moved for final
resolution of the safety monitoring claim pursuant to
Rule 54(b) provides in relevant part:
When more than one claim for relief is presented
in an action, whether as a claim, counterclaim, or
third-party claim, or when multiple parties are
involved, the court may direct the entry of a
final judgment as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for
delay and upon an express direction for the entry
Fed.R.Civ.P. 54(b). While the language of the rule does not
require the trial court to make either formal findings of fact
or conclusions of law in order to certify the judgment under
Rule 54(b), I shall nontheless state the reasons justifying the
entry of a final order on the safety monitoring claim.
See 10 Moore's Federal Practice, § 54.23 (Matthew Bender 3d
First, "a certification under Rule 54(b) should be granted
only if there are `interest[s] of sound judicial
administration' and efficiency to be served." Harriscom Svenska
AB v. Harris Corp., 947 F.2d 627 (2d Cir. 1991) (quoting
Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100
S.Ct. 1460, 64 L.Ed.2d 1 (1980)). A court should not enter
final judgment on fewer than all the claims in an action if the
same or closely related issues remain to be litigated. See
Nat'l Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.
1988) (per curiam). Second, "[n]ot all final judgments on
individual claims should be immediately appealable, even if
they are in some sense separable from the remaining unresolved
claims." Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. 1460. The
district court must determine that the final decision on
certain claims is ready for appeal, taking into account the
equities involved as well as judicial administrative interests.
Plaintiffs' counsel expressed strong support for Rule 54(b)
certification. See Transcript of April 15, 1999 ("Apr. 15
Tr."), at 7-10 (safety monitoring claim is "separable issue
factually distinct" from span of time claim; they are "separate
questions . . . not closely related"; "[o]nce the Court of
Appeals addresses the issue of whether the defendants are
obligated to provide [safety monitoring], that is not going
to be an issue again"). Counsel for defendants the State of New
York and Westchester and Nassau Counties agree that it would be
"in the interests of justice and the interest of judicial
economy" to proceed under Rule 54(b) for a final determination
of the "sufficiently separable" safety monitoring claim. Apr.
15 Tr., at 10-11. The City defendants, however, take no
position with regard to the Court's authority under 54(b) to
issue a final judgment on the safety monitoring claim. See id.
at 14-15, 100 S.Ct. 1460.
I find that the safety-monitoring claim is separable from
plaintiffs' span of time claim. Both claims arise from
defendants' implementation of the TBA program. The claim
adjudicated in this opinion, however, involves defendants'
refusal to provide safety monitoring as an independent task to
otherwise qualified mentally impaired Medicaid applicants and
recipients. The span of time claim, on the other hand, concerns
defendants' alleged failure to authorize sufficient hours of
care to cover the span of time during which unscheduled or
recurring needs occur. While the claims share some of the same
underlying legal issues, for example, Medicaid comparability
law, the safety monitoring and span of time claims are
The parties have now briefed the safety monitoring issue
twice, and the Court has conducted two weeks of hearings. At
this juncture, no further evidence is required. Moreover, the
parties themselves are ready to resolve this issue. Finding no
just reason for delay, a Rule 54(b) certification is
II. Legal Standard for a Permanent Injunction
Generally, to obtain a permanent injunction, a party must
show the absence of an adequate remedy at law and irreparable
harm if the relief is not granted. See New York State, National
Organization for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir.
1989) (citing Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57,
95 S.Ct. 2069, 45 L.Ed.2d 12 (1975)). The standard for a
permanent injunction is essentially the same as for a
preliminary injunction, except that the plaintiff must actually
succeed on the merits. See Amoco Production Co. v. Village of
Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d
542 (1987). However, entry of a permanent injunction requires a
less stringent standard than that for a preliminary
injunction.*fn7 Although a showing of irreparable harm is
required for the imposition of any injunctive relief,
preliminary or permanent, see Sierra Club v. Hennessy,
695 F.2d 643, 647 (2d Cir. 1982), the imminent aspect of the harm is not
crucial to granting a permanent injunction.See Rodriguez 175
F.3d at ___ n. 9.
The law in this Circuit requires a showing that irreparable
damages are likely, not merely possible. See JSG Trading Corp.
v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990); Jackson
Dairy. Inc. v. H.P. Hood & Sons. Inc., 596 F.2d 70, 72 (2d Cir.
1979). Irreparable injury is one that cannot be redressed
through a monetary award. Where money damages are adequate
compensation, a preliminary injunction will not issue. See JSG
Trading Corp., 917 F.2d at 79.
In addition, where, as here, "`public consequences' are
implicated, it is incumbent upon a district court in exercising
its discretion to `balance [ ] the conveniences of the parties
and possible injuries to them according as they may be affected
by the granting or withholding of the injunction.'" Sierra
Club, 695 F.2d at 649 (quoting Weinberger v. Romero-Barcelo,
456 U.S. at 305, 311, 102 S.Ct. 1798 (1982)).
Plaintiffs request permanent injunctive relief requiring
defendants to provide safety
monitoring to cognitively impaired individuals on three
grounds: (1) the Medicaid Act and its regulations, (2) the ADA,
and (3) the Rehabilitation Act.
A. Plaintiffs' Medicaid Act Claim
Medicaid is a cooperative federal-state program through which
the federal government provides financial assistance to states
so that they may furnish medical care to those whose income and
resources are insufficient to procure such services for
themselves. States are not required to participate in all
aspects of the Medicaid program, but if they do participate in
a given program they must comply with the federal Medicaid
statute and regulations in administering that program.
See 42 U.S.C. § 1396a; Alexander v. Choate, 469 U.S. 287, 105
S.Ct. 712, 83 L.Ed.2d 661 (1985); Himes v. Shalala,
999 F.2d 684, 686 (2d Cir. 1993).
The Medicaid Act, 42 U.S.C. § 1396 et seq., provides "medical
assistance" to individuals whose income and resources are
insufficient to meet the costs of medical care, and who are
either age 65 or over, blind, disabled, or members of families
with dependent children. "Medical assistance" is defined to
include "personal care services furnished . . . in a home or
other location." 42 U.S.C. § 1396d(a)(xi)(24); N.Y. Soc. Serv.
L. § 365-a(2)(e) New York State has chosen to include the
federal option for home care services, including "personal care
services", in its State Medicaid plan. See N.Y. Soc. Serv. L. §
365-a(2)(e); 42 C.F.R. § 440.170(f). "Personal care services"
include assistance with tasks associated with the ADL, such as
bathing, toileting, assistance with medications, personal
hygiene, dressing, feeding and light housekeeping and shopping.
See 18 N.Y.C.R.R. §§ 505.14(a)(6)(i)(a), (ii)(a). Such
assistance must be medically necessary and "essential to the
maintenance of the patient's health and safety in his or her
own home." N.Y. Soc. Serv. L. § 365-a(2)(e); 18 N.Y.C.R.R. §§
Plaintiffs argue that defendants' implementation of TBA
violates the Medicaid comparability provision,
42 U.S.C. § 1396(a)(10)(b), which requires that a state plan provide:
that the medical assistance made available to any
individual described in sub-paragraph (A) —
(i) shall not be less in amount, duration, or
scope than the medical assistance made available
to any other such individual, and
(ii) shall not be less in amount, duration, or
scope than the medical assistance made available
to individuals not described in subparagraph (A).
42 U.S.C. § 1396a(a)(10)(B)(i) and (ii).
In holding that plaintiffs were entitled to a preliminary
injunction based on the likelihood of success on the merits of
their comparability claim, the Court found an enforceable
private right of action under § 1396a(a)(10)(B). While the
Second Circuit did not reach the merits of this claim on
appeal, it did suggest that defendants and the District Court
had erroneously characterized the private right of action as
a jurisdictional issue rather than as a question of whether
plaintiffs have failed to state a claim upon which relief can
be granted. See Rodriguez, 175 F.3d at ___. Consequently, I
will now address defendants' renewed arguments against
permitting a private right of action on the comparability
claims. I will also address the question of whether the
Medicaid Act regulations, 42 C.F.R. §§ 440.230(b) and
440.230(c), provide a private right of action.*fn9
1. Legal Standard for a Private Right of Action Under
42 U.S.C. § 1983
Section 1983 imposes liability on anyone who, acting under
color of state law, deprives a person of "any rights,
privileges, or immunities secured by the Constitution and laws"
of the United States. 42 U.S.C. § 1983. Section 1983 can be
used to vindicate violations of federal statutory rights, Maine
v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 65 L.Ed.2d 555
(1980), and its coverage is to be "broadly construed." Golden
State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105,
110 S.Ct. 444, 107 L.Ed.2d 420 (1989). However, not every
violation of a federal law amounts to a violation of a federal
right. See Golden State, 493 U.S. at 106, 110 S.Ct. 444.
To determine whether a private right of action exists under
a federal statute, plaintiffs must show that the statute is:
(1) "intended to benefit" the plaintiffs seeking to enforce it;
(2) a "binding obligation on the governmental unit," rather
than "merely a congressional preference for a certain kind of
conduct;" and (3) not so "vague and amorphous" as to be "beyond
the competence of the judiciary to enforce." Wilder v. Virginia
Hospital Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 110 L.Ed.2d
455 (1990) (quotation marks and citations omitted).
Once plaintiffs have satisfied this test, they are entitled
to a rebuttable presumption that their statutory right is
enforceable under § 1983. Blessing v. Freestone, 520 U.S. 329,
117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). The burden then shifts
to the defendants to demonstrate that Congress "by express
provision or other specific evidence from the statute itself .
. . intended to foreclose such private enforcement." Wilder,
496 U.S. at 520-21, 110 S.Ct. 2510 (quoting Wright v. City of
Roanoke Redev. and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct.
766, 93 L.Ed.2d 781 (1987)).
In 1992, the Supreme Court departed from earlier precedent
finding that no private right of action existed to enforce
§ 671(a)(15) of the Adoption Assistance Act. Suter v. Artist
M., 503 U.S. 347, 364, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992).
There, the Court found that § 671(a)(15) was too vague and
amorphous to create the private remedy sought by the
plaintiffs. See id. at 362-64, 112 S.Ct. 1360. Defendants argue
that this holding superimposed an additional threshold inquiry
upon the standards established in Golden State and Wilder. This
so-called Suter-overlay would require that when Congress acts
pursuant to its spending power, any condition imposed on
federal monies must be set forth "unambiguously." Suter, 503
U.S. at 355-56, 112 S.Ct. 1360. A determination of what is a
"mandatory" condition requires an examination of "exactly what
is required of states" by the statutory provision sought to be
enforced. See id. at 358, 112 S.Ct. 1360.
Subsequently, Congress expressed its disapproval of
Suter, amending the Social Security Act in 1994 to state:
In an action brought to enforce a provision of
this chapter, such provision is not to be deemed
unenforceable because of its inclusion in a
section of this chapter requiring a State plan or
required contents of a State plan. This section is
not intended to limit or expand the grounds for
determining the availability of private actions to
enforce State plan requirements other than by
overturning any such grounds applied in
[Suter], but not applied in prior Supreme Court
decisions respecting such enforceability; provided,
however, that this section is not intended to alter
the holding in [Suter] that section 671(a)(15) of
this title is not enforceable in a private right of
42 U.S.C. § 1320a-2 (hereinafter "Amendment"). Plaintiffs argue
that this Amendment shows Congress' intent to reject the
Supreme Court's reasoning in Suter and to require courts to
return to the pre-Suter approach when deciding whether to
recognize a private right of action to enforce provisions other
than § 671(a)(15). Defendants, on the other hand, argue that
courts should continue to apply a Suter-overlay to any analysis
of the existence of a private right of action. In support of
their position, defendants point to the fact that the Supreme
Court has cited Suter with approval after the passage of the
Amendment. See Blessing, 520 U.S. at 342-343, 345, 117 S.Ct.
In Blessing, the Court took issue with the Ninth Circuit's
"blanket approach" to determining whether Title VI-D of the
Social Security Act creates an enforceable private right of
action for mothers alleging that Arizona did not take adequate
steps to obtain child support payments. See id. at 344, 117
S.Ct. 1353. Concerned that the plaintiffs had not identified
with particularity the rights they claimed and the Ninth
Circuit had not engaged in the requisite methodological
inquiry, the Court remanded the case to the district court with
instructions to separately identify the particular rights that
may arise from the statutory scheme. See id. at 349, 117 S.Ct.
1353. The Court cited Wilder, Wright, and Suter with approval
as examples of the required analysis. Blessing, 520 U.S.
at 342-43, 117 S.Ct. 1353. However, contrary to defendants'
assertions, Blessing did not imply that the Suter-overlay
should continue to apply. In fact, the opinion restated and
relied on the Wilder test. See Blessing, 520 U.S. at 340, 117
In addition to the supplemental briefing by the parties, the
Court has benefitted from the recent decisions by other courts
addressing this issue. While the Second Circuit has not yet
addressed the issue, several lower courts within this Circuit
have found that Congress expressed its intent to require courts
to apply pre-Suter case law to determine the private
enforceability of SSA provisions other than § 671(a)(15).*fn10
See, e.g., McMahon v. Tompkins County Dep't of Soc. Serv., No.
95 Civ. 1134, 1998 WL 187421 (N.D.N.Y. Apr. 14, 1998);
Vogelsang v. County of Cayuga, No. 95 Civ. 1123, 1998 WL 146293
(N.D.N.Y. Mar. 25, 1998); Marisol A. v. Giuliani, 929 F. Supp. 662
(S.D.N.Y. 1996), aff'd on other grounds, 126 F.3d 372
(2d Cir. 1997). However, there is a split of opinion among the
circuit courts that have considered the issue. Compare Harris
v. James, 127 F.3d 993, 1002-03 (11th Cir. 1997) (rejecting
argument that court must `rewind the clock' to determine
federal rights question only according to pre-Suter
precedents); with Visiting Nurse Ass'n. v. Bullen, 93 F.3d 997,
1003 n. 5 (1st Cir. 1996) (assuming that Congress intended to
resurrect Wilder three-part test with no Suter overlay). I
agree with the other district courts in this Circuit and with
the First Circuit that Congress intended to overrule the
Suter-overlay. Therefore, this Court must "rewind the clock and
look to cases prior to Suter to determine the enforceability"
of the provisions at issue in the instant case. Marisol, 929
F. Supp. at 682.
2. Application of Standard
Plaintiffs' claims arise under 42 U.S.C. § 1396a(a)(10)(B)
and Medicaid regulations found at 42 C.F.R. §§ 440.230(b) and
a. 42 U.S.C. § 1396a(a)(10)(B)
Plaintiffs have satisfied the Wilder test with regard to the
enforcement of their Medicaid comparability claim under §
1396(a)(10)(B). First, a plain reading of this section
indicates that it is intended to benefit categorically needy
persons, which some members of the safety monitoring class
undoubtedly are. Second, the comparability provision uses
mandatory, rather than precatory language when it states that
the medical assistance offered to the categorically needy
"shall not" be less than that offered to other categorically
needy individuals. Third, the provision is within the
competence of the judiciary to enforce, requiring a court to
compare the level of services provided to one recipient with
those given another and to determine whether those services are
comparable. The standards to be applied are set by the State's
own actions in setting the level of care to be provided to the
Nevertheless, defendants submit that the comparability
provision was not designed to provide an enforceable private
right of action, but merely to guide the state in structuring
its efforts. Defendants compare this case to Evelyn v. Kings
County Hospital, 956 F. Supp. 288 (E.D.N.Y. 1997). There,
Medicaid patients who obtained care at a Medicaid participating
hospital did not have a cause of action under § 1983 against
state officials for their failure to ensure that the hospital
complied with established state health standards. The court
noted that the language of the statute plaintiffs sought to
enforce, § 1396a(a)(9),*fn11 did not suggest Congressional
intent to mandate the enforcement of state standards "at"
participating institutions. Rather, the language indicates that
Congress intended that a state agency be responsible for
establishing and maintaining health standards "for"
participating institutions. Evelyn, 956 F. Supp. at 296.
In the instant case, the language of the comparability
statute does not suggest, as in Evelyn, that it was intended to
merely guide the state. As discussed above, the regulation's
use of the word "shall" indicates that the regulation mandates
that medical assistance provided to any individual must not be
"less in amount, duration, or scope" than medical assistance
provided to others. 42 U.S.C. § 1396a(a)(10)(B)(i). Therefore,
plaintiffs have a private right of action under §
b. Medicaid Act Regulations
Plaintiffs argue that defendants' safety monitoring policy
violates two Medicaid provisions of the Department of Health
and Human Services regulations, 42 C.F.R. §§ 440.230(b) and
440.230(c).*fn13 Plaintiffs first contend that defendants'
implementation of TBA violates the federal regulation that
"[e]ach service must be sufficient in amount, duration, and
scope to reasonably achieve its purpose." 42 C.F.R. §
440.230(b).*fn14 Plaintiffs also contend that defendants'
implementation of TBA violates the federal regulation that
"[t]he Medicaid agency may not arbitrarily deny or reduce the
amount, duration, or scope of a required service under §§
440.210 and 440.220 to an otherwise eligible recipient solely
because of the diagnosis, type of illness, or condition." 42
C.F.R. § 440.230(c).
Federal law enforceable under § 1983 includes federal
regulations. See Wright, 479 U.S. at 420, 107 S.Ct. 766.*fn15
Here, both regulations defining the contours of plaintiffs'
right to "reasonable standards" for determining their
eligibility for and extent of their medical assistance under §
1396a(a)(17), meet the three-part Wilder test. First, both are
clearly intended to benefit Medicaid recipients by ensuring
they will receive the services needed to meet the purposes of
the Medicaid Act and not be denied services solely due to their
diagnosis, rather than their medical need. Second, the language
of both regulations is mandatory, not precatory. Any state
participating in the federal Medicaid program must provide
services sufficient in "amount, duration, and scope" to
reasonably achieve the objective of the services and must not
deny services based on diagnosis. The language of the Medicaid
Act indicates that Congress intended to require states to adopt
"reasonable standards" for determining eligibility for and the
extent of medical assistance under the plan to meet the primary
objective of Medicaid of providing necessary medical care.
42 U.S.C. § 1396a(a)(17). It also indicates that Congress intended
that states would provide comparable assistance among
recipients. See 42 U.S.C. § 1396a(a)(10)(B).
The regulations at issue here are intended to assist
plaintiffs and not merely intended to assist the state by
providing a yardstick to measure the state's performance. The
fact that the state has discretion in adopting standards for
determining the scope of the services does not render the
regulations unenforceable. See Wilder, 496 U.S. at 519-20, 110
S.Ct. 2510 ("That the [Boren] [A]mendment gives the States
substantial discretion in choosing among reasonable methods of
calculating rates may affect the standard under which a court
reviews whether the rates comply with the amendment, but it
does not render
the amendment unenforceable by a court").
The third factor, whether the regulations are too vague or
amorphous or not within the competence of the judiciary to
enforce, is a slightly more difficult question. It is within
this Court's competence, as it was within the Wilder Court's
competence, to determine if defendants have abused their
discretion in determining the scope of services to be provided
under the program. In Wilder, the Court, considering Medicaid
Act language requiring "rates the State finds are reasonable
and adequate," held that:
While there may be a range of reasonable rates,
there certainly are some rates outside that range
that no State could ever find to be reasonable and
adequate under the Act.
Wilder, 496 U.S. at 519, 110 S.Ct. 2510.
Finally, these regulations further the purpose of the
underlying Medicaid statute. For example, § 440.230(b)'s
mandate requiring that "[e]ach service be sufficient in amount,
duration, and scope to reasonably achieve its purpose," is
found in 42 U.S.C. § 1396a(a)(10)(B) and § 1396a(a)(17). Once
New York sets its goal for the home care program to maintain
the health and safety of eligible individual in their homes,
the State may not allow its services to fall below the "floor"
set by § 440.230(b). Therefore, home care services must be
"sufficient in amount, duration, and scope" to meet the goal of
maintaining eligible individuals in their homes and communities
and avoiding institutionalization. Section 440.230(b) also
implements the statutory requirement that state Medicaid plans
"include reasonable standards . . . for determining eligibility
for and the extent of medical assistance under the plan,"
42 U.S.C. § 1396a(a)(17).
The prohibition of discrimination based on diagnosis, §
440.230(c), is related to the statutory provisions regarding
"reasonable standards" and "amount, duration, and scope".
42 U.S.C. § 1396a(a)(17) and 1396a(a)(10)(B). Section 440.230(c)
also derives from the "equality principle" of the statute
mandating equal medical assistance to all recipients. See
42 U.S.C. § 1396a(a)(10)(B) and 1396d(a). Therefore, I find that
both regulations create an enforceable private right of
3. The Merits of Plaintiffs' Medicaid Claims
a. 42 U.S.C. § 1396(a)(10)(B)
As I found in the August 25 Opinion, the safety monitoring
required by mentally impaired individuals is comparable to the
services provided to physically impaired individuals.
Defendants have not presented any new arguments to convince the
Court that its previous conclusion was erroneous. I find, for
the reasons stated in the August 25 Opinion, that plaintiffs
have succeeded on the merits of their comparability claim.
Rodriguez, 177 F.R.D. at 157-161. Those reasons are deemed
incorporated into this opinion and Order.*fn17
Therefore, because safety monitoring is comparable to other
personal care services tasks, defendants' failure to separately
assess the task of safety monitoring violates the comparability
provisions of the Medicaid Act.*fn18
b. Plaintiffs' Regulatory Claims
In addition, plaintiffs succeed on the merits of their
regulatory claims. Defendants violate 42 C.F.R. § 440.230(b)
and 440.230(c) when they deny home care services to monitor the
safety of mentally impaired individuals. The stated objective
of the State's services is to provide personal care services to
enable recipients to safely reside in their homes.
Consequently, the State's current policy of excluding safety
monitoring as a recognized task violates the federal mandate
that State Medicaid plans provide services that are "sufficient
in amount, duration, and scope to achieve [the plan's]
purpose." 42 C.F.R. § 440.230(b).
In addition, the State's policy deprives persons of personal
care services because they are diagnosed with a mental rather
than a physical impairment in violation of § 440.230(c) which
prohibits discrimination on the basis of diagnosis. See White
v. Beal, 555 F.2d 1146 (3rd Cir. 1977) (state could not, based
on § 440.230(c), limit Medicaid payments for eyeglasses to
individuals whose need for eyeglasses stemmed from a pathology
as opposed to a common visual impairment).
B. Plaintiffs' Claims Under the Americans With
Disabilities Act and the Rehabilitation Act
In 1973, Congress passed the Rehabilitation Act which
included § 504 — the first civil rights bill for disabled
persons. Under §§ 04, any entity that receives federal funds is
prohibited from discriminating on the basis of disability. See
29 U.S.C. § 794. The Americans With Disabilities Act of 1990,
as amended (the "ADA"), 42 U.S.C. § 12132, borrowed heavily
from the remedies, procedures and rights available for a
violation of the Rehabilitation Act § 504. See 42 U.S.C. § 12133.
Because § 504 and the ADA impose the same requirements,
I need not consider the statutes separately. See Cercpac v.
Health and Hospitals Corp., 147 F.3d 165, 167 (2d Cir. 1998).
These anti-discrimination statutes constitute a federal
mandate to end discrimination against individuals with physical
and mental disabilities and to bring them into the mainstream
of American life. While the Rehabilitation Act prohibits
discrimination by programs receiving federal funds, Title II of
the ADA extended the anti-discrimination principle to the
instrumentalities of state and local government. See Easley v.
Snider, 36 F.3d 297, 300 (3rd Cir. 1994). The ADA provides as
No qualified individual with a disability shall,
by reason of such disability, be excluded from
participation in or be denied the benefits of the
services, programs, or activities of a public
entity, or be subjected to discrimination by any
42 U.S.C. § 12132.*fn19 To establish a cause of action under
the ADA or § 504, plaintiffs must show that: (1) plaintiffs
have a disability; (2) plaintiffs are "otherwise
qualified" for the benefit in question; and (3) plaintiffs were
excluded from the benefit because of discrimination based
solely on disability. See 29 U.S.C. § 794; 42 U.S.C. § 12132;
see also Doe v. University of Md. Medical Sys. Corp.,
50 F.3d 1261, 1264-65 (4th Cir. 1995). As a remedial statute, the ADA
must be broadly construed to effectuate its purpose. See
Tcherepnin v. Knight, 389 U.S. 332, 335, 88 S.Ct. 548, 19
L.Ed.2d 564 (1967).
1. Applicability of Anti-Discrimination Statutes to
Defendants argue that the ADA and § 504 only prohibit
discrimination against the disabled in comparison to the
non-disabled. Therefore, defendants assert, the
anti-discrimination statutes are inapplicable in this case —
where one class of disabled individuals claims it is treated
discriminatorily in comparison to another class of disabled
individuals. Citing cases from other circuit courts,
plaintiffs, in turn, contend that their anti-discrimination
claims are indeed cognizable.
While the Supreme Court has held that these
anti-discrimination statutes require "even-handed treatment" of
the disabled and non-disabled, Alexander v. Choate,
469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), it has never
explicitly held that they are inapplicable in a Rodriguez-type
context.' In Choate, Medicaid-eligible disabled individuals
raised a § 504 challenge to Tennessee's reduction of the number
of inpatient hospital days per year (from 20 to 14 days) for
which it would reimburse hospitals on behalf of Medicaid
recipients. Plaintiffs introduced statistical evidence
demonstrating that disabled patients were more likely than
non-disabled patients to require more than 14 days of
hospitalization per year. The Court upheld Tennessee's across
the board reduction, reasoning that it "will leave both
handicapped and non-handicapped Medicaid users with identical
and effective hospital services fully available for their use,
with both classes of users subject to the same durational
limitation." 469 U.S. at 302, 105 S.Ct. 712.
Choate challenged a general limitation which applied equally
to both handicapped and non-handicapped recipients. Here,
plaintiffs challenge a restriction placed only on individuals
with mental disabilities who are denied the services offered to
individuals with physical disabilities. Choate is silent
regarding the proposition advanced by defendants—that neither
the ADA nor § 504 requires a public entity to treat all persons
with disabilities in the same fashion.*fn20
In three cases following Choate, the Second Circuit has
stated that the purpose of the anti-discrimination statutes is
to bar discrimination against disabled individuals in
comparison to the non-disabled. However, each of these cases is
factually distinguishable from this case. For example, in
Cercpac v. Health & Hospitals Corp., 147 F.3d 165 (2d Cir.
1998), parents challenged the closing of a specialized health
care facility for their disabled children under § 504 and the
ADA. The closing reduced the level of care by referring the
children to another facility, farther away, which did not
provide a full panoply of services.
The Second Circuit held that plaintiffs failed to state a
claim because they were unable to show that disabled persons
had been denied equal access to a general health care service.
Plaintiffs failed to allege that any disabled child had been
denied a necessary basic medical service
provided to a non-disabled child, or that any disabled child
had been "denied some additional specialized service that might
be required as a reasonable accommodation of the child's
disability." 147 F.3d at 168. The court noted that the
disabilities statutes do not guarantee any particular level of
medical care for disabled persons, nor do they assure
maintenance of service previously provided.
In Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998), plaintiff,
who suffered from a personality disorder, received job
counseling services from the New York State Office of
Vocational and Educational Services for Individuals with
Disabilities (VESID). When plaintiffs mental health
deteriorated, VESID discontinued his job counseling benefits.
Doe filed suit alleging that VESID violated § 504 and the ADA.
The district court granted summary judgment for defendant
finding that plaintiff could not show he was "otherwise
qualified" for the benefits he sought. The Second Circuit
affirmed on different grounds — finding that while the
tailored vocational services requested by plaintiff as
`reasonable modifications' might be required by Title I of the
Rehabilitation Act, they were not required under the ADA or §
504. See id. at 82.
[I]t is important to bear in mind that the
purposes of such statutes are to eliminate
discrimination on the basis of disability and to
ensure evenhanded treatment between the disabled
and the able-bodied. . . . [I]t is clear that the
plaintiff is in essence challenging the adequacy
of his VESID services, not illegal disability
Id. at 82, 84.
In Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995), plaintiff,
who had multiple sclerosis, was restricted to a wheel chair
with limited use of his upper body. He petitioned VESID for
$10,500 to modify a van so that he could drive it. VESID
provides financial assistance to persons with disabilities to
make modifications to vehicles so that they can be used to
pursue "vocational objectives". VESID determined that Flight
was too severely disabled to drive a motor vehicle. In
addition, VESID found that Flight was not entitled to a
modification subsidy because access to a van was not necessary
for Flight's vocational objective — that of `homemaker'.
Nevertheless, VESID allotted plaintiff $4,000 — the amount
necessary to modify the van so that Flight could travel in it
as a passenger. The Second Circuit affirmed the dismissal of
plaintiff's § 504 and ADA claims, stating that the
Rehabilitation Act does
not clearly establish an obligation to meet [a
disabled person's] particular needs vis-a-vis the
needs of other handicapped individuals, but
mandates only that services provided
non-handicapped individuals not be denied [to a
disabled person] because he is handicapped.
Id. at 63 (citing P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d
Cir. 1990)). While the Second Circuit discouraged challenges to
the allocation of resources among the disabled under the
Rehabilitation Act, it rested its opinion on the fact that
plaintiff was not "otherwise qualified" to receive the benefit
because he could not drive. Id. at 64.
The instant case is distinguishable from these cases for
several reasons. First, the Rodriguez plaintiffs are "otherwise
qualified" for personal home care services. A "qualified
individual with a disability" is "an individual with a
disability*fn21 who, with or without reasonable modifications
to rules, policies, or practices . . . meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity." 42 U.S.C. § 12131(2). In the August 25 Opinion, I
found that the safety monitoring injunction would apply to
individuals with mental impairments who meet New York State's
eligibility criteria for the Medicaid personal care services
program. See Rodriguez, 177 F.R.D. at 148. Disabled
plaintiffs meet the essential eligibility requirements of the
home care program as long as they have a stable medical
condition and are self-directing. See 18 N.Y.C.R.R. §
505.14(a)(4).*fn22 Second, the decision to deny personal home
care benefits to mentally impaired individuals is motivated
`solely by reason' of their handicap and not because of any
wilfulness in their conduct. See Traynor, 485 U.S. 535, 108
S.Ct. 1372, 99 L.Ed.2d 618 (1988).
Third, the Second Circuit's own language that the
anti-discrimination statues "mandate[ ] only that services
provided non-handicapped individuals not be denied [to a
disabled person] because he is handicapped," applies to this
case. Flight, 68 F.3d at 63. This application becomes apparent
when one frames the issue not as a comparison between mentally
disabled and "physically disabled" individuals as defined under
the ADA, but rather as a comparison between the mentally
disabled and the mentally able. A physically disabled person
receiving personal home care services may not always be
"disabled" for the purposes of the ADA and § 504. Section 3(2)
of the ADA defines a "disability" as a physical or mental
impairment that substantially limits one or more of the major
life activities of an individual. See 42 U.S.C. § 12102(2)(A).
Thus, not all impairments are considered a "disability" under
the ADA. In determining whether an impairment substantially
limits a major life activity, three factors are considered: (1)
the nature and severity of the impairment; (2) the duration or
expected duration of the impairment; and (3) the permanent or
long-term impact of the impairment. See 42 U.S.C. § 12111(8) 29
C.F.R. § 1630.2(j)(1). "Intermittent, episodic impairments are
not disabilities, the standard example being a broken leg."
Vande Zande v. Wisconsin, 44 F.3d 538, 544 (7th Cir. 1995)
(citing 29 C.F.R. § 1630 app., § 1630.2(j)). A temporary or
non-chronic impairment, such as a broken hip, may not be
considered a "disability" for purposes of the ADA. If the hip
heals improperly, resulting in long-term difficulty in walking,
the individual might then be deemed "disabled". An elderly
Medicaid recipient with a broken hip may receive personal home
care services in New York State without being considered
"physically disabled" for the purposes of the ADA. Were one to
compare this individual with the mentally impaired individuals
currently denied care, it would seem that mentally impaired
individuals are then denied "even-handed" treatment vis-a-vis
Fourth, it is unlikely that the Second Circuit intended the
extreme interpretation suggested by defendants here — that the
anti-discrimination statutes offer no protection for the
mentally disabled when they are discriminated against by a
public entity which does not provide any services to healthy
individuals. Consideration of the term "mentally disabled" in
the context of the Second Circuit's logic would reveal the
following: "it is important to bear in mind that the purposes
of such statutes are to eliminate discrimination on the basis
of [mental] disability and to ensure evenhanded treatment
between the [mentally] disabled and the [mentally]
able-bodied." Pfrommer, 148 F.3d at 82.*fn23
2. The Merits of Plaintiffs' ADA and § 504
a. "Qualified Individual" With A Disability
As stated above, plaintiffs are "otherwise qualified" for the
home care program provided that they have a stable medical
condition and are self-directing. See 18 N.Y.C.R.R. §
505.14(a)(4). But the construction of this term is not so
simple. Courts have noted that it is difficult to apply the
traditional analysis for determining whether an applicant meets
the "otherwise qualified" prong of its prima facie case within
the context of public programs directed specifically at the
disabled. See, e.g., U.S. v. University Hosp., 729 F.2d 144,
156 (2d Cir. 1984) (phrase "otherwise qualified" "cannot be
applied in the comparatively fluid context of medical treatment
decisions without distorting its plain meaning"). The
traditional meaning of "otherwise qualified"
refers to a person who is qualified in spite of her
handicap and that an institution is not required to
disregard the disabilities of a handicapped
applicant, provided the handicap is relevant to
reasonable qualifications for acceptance or
to make substantial modifications in its
reasonable standards or program to accommodate
handicapped individuals but may take an
applicant's handicap into consideration, along
with all other relevant factors, in determining
whether she is qualified for admission.
Doe v. New York University, 666 F.2d 761
, 775 (2d Cir. 1981)
(emphasis in original). Where, as in the context of this case,
it is the handicap itself that gives rise to, or at least
contributes to, the need for the services in question, the
conventional meaning of "otherwise qualified" cannot be
meaningfully applied. See U.S. v. Univ. Hosp., 729 F.2d at 156.
Rather, as articulated by the Supreme Court in
Choate, "the question of who is `otherwise qualified' and what
actions constitute `discrimination' under [§ 504] would seem to
be two sides of a single coin; the ultimate question is the
extent to which a grantee is required to make reasonable
modification in its programs for the needs of the handicapped."
469 U.S. at 299 n. 19, 105 S.Ct. 712. The appropriate focus,
therefore, is not whether plaintiffs are `otherwise qualified'
for personal care services, "but the extent to which the
defendants are required by the anti-discrimination statutes to
modify their programs to meet all of [plaintiffs'] needs as a
disabled individual." Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir.
b. Plaintiffs Are Excluded from Benefits Because of
Discrimination Based on Disability
Plaintiffs allege that defendants deny mentally impaired
individuals the personal care services required for safe
maintenance in the home that are provided to others. These
services include verbal assistance to perform recognized
personal care tasks (e.g.toileting) and independent safety
monitoring. It appears to plaintiffs that individuals are
denied services solely because their need for such services
stems from a mental, rather than a physical impairment.
Defendants defend their decision to deny mentally impaired
plaintiffs the services provided to the physically impaired by
asserting that they do not provide "safety monitoring" services
to any individuals, whether physically or mentally disabled,
unless the safety monitoring is in conjunction with a
recognized `task'. As I found in the August 25 Opinion,
defendants deny individuals with mental impairments assistance
in the form of verbal direction needed to perform recognizable
personal care tasks. See 177 F.R.D. at 158-59. Moreover,
defendants deny independent safety monitoring to individuals
with cognitive impairments. See id.
c. Reasonable Accommodation
"A public entity shall make reasonable modifications in
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the
service, program, or activity." 28 C.F.R. § 35.130(b)(7). "The
test to determine the reasonableness of a modification is
whether it alters the essential nature of the program or
imposes an undue burden or hardship in light of the overall
program." Easley v. Snider, 36 F.3d 297, 305 (3rd Cir. 1994).
Defendants argue that they cannot accommodate mentally impaired
individuals because the provision of independent safety
monitoring would alter the essential nature of the program or
impose an undue burden.
i. Essential Nature of Program
The provision of independent safety monitoring would not
cause any meaningful alteration of the personal care services
program as defined in the state regulations and numerous policy
statements since at least 1985. As explained in this Court's
August 25 Opinion, "safety monitoring" for mentally impaired
individuals is comparable to the safety monitoring provided to
impaired individuals. See 177 F.R.D. at 159. Moreover, despite
defendants' assertions to the contrary, the evidence at the
hearing revealed that they have historically provided and
continue to provide safety monitoring to guard against such
dangers as wandering out of the house and turning on the stove
— both of which present dangers to cognitively impaired
individuals. See id. at n. 19.
Therefore, no alteration is required. The defendants need
simply return to their pre-TBA definition of the program which
was not limited to "hands-on" assistance with recognized tasks.
Defendants recently articulated definition of the program
limiting it to "hands-on" assistance tends to exclude people
with certain types of disabilities in contravention of the
regulations accompanying these statutes.
Regulations of the Department of Health and Human Services
provide that a recipient of federal funds may not, on the basis
(1) Deny a qualified handicapped person these
benefits or services; . . .
(3) Provide a qualified handicapped persons with
benefits or services that are not as effective
(as defined in § 84.4(b)) as the benefits or
services provided to others; . . . or
(5) Provide different or separate benefits or
services to handicapped persons except where
necessary to provide qualified handicapped
persons with benefits and services that are as
effective as those provided to others.
45 C.F.R. § 84.52(a). In addition, a recipient of federal funds
may not, on the basis of handicap:
(i) Deny a qualified handicapped person the
opportunity to participate in or benefit from the
aid, benefit, or service that is not equal to that
(ii) Afford a qualified handicapped person an
opportunity to participate in or benefit from the
aid, benefit, or service that is not equal to that
afforded others; . . .
(iv) Provide different or separate aid, benefits,
or services to handicapped persons or to any class
of handicapped persons unless such action is
necessary to provide qualified handicapped persons
with aid, benefits, or services that are as
effective as those provided to others.
45 C.F.R. § 84.4(b).
For example, in Southeastern Community College v. Davis,
442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Court
struck a balance between the statutory rights of the disabled
to be integrated into society and the legitimate interests of
federal grantees in preserving the integrity of their programs,
holding that while a grantee need not be required to make
"fundamental" or "substantial" modifications to accommodate the
handicapped, it may be required to make "reasonable" ones. See
id. 412-413, 99 S.Ct. 2361 (nursing program not required to
admit hearing disabled plaintiff because modifications
plaintiff sought — full-time, personal supervision whenever
she attended patients and elimination of clinical courses —
would have compromised essential nature of program). Following
Davis, the Choate Court specified that in providing an
otherwise qualified disabled persons with meaningful access to
a benefit, "the benefit, of course, cannot be defined in a way
that effectively denies otherwise qualified handicapped
individuals the meaningful access to which they are entitled."
Furthermore, "anti-discrimination legislation can obviously be
emptied of meaning if every discriminatory policy is
`collapsed' into one's definition of what is the relevant
benefit." Choate, 469 U.S. at 302 n. 21, 105 S.Ct. 712 (quoting
brief for the United States as Amicus Curiae 29, n. 36). Here,
defendants have impermissibly attempted to redefine the
relevant benefit to exclude individuals on the basis of a
Defendants analogize this case to Easley v. Snider, supra, to
justify their discriminatory safety monitoring policy. In
disabled plaintiffs challenged the Pennsylvania Attendant Care
Services Act ("Care Act") which was specifically designed to
"enable physically disabled persons to live in their homes
rather than institutions." Easley, 36 F.3d at 298. Plaintiffs
were denied eligibility for the program because the Care Act
required that candidates be "mentally alert". The Third Circuit
found that the state did not violate the ADA by excluding
non-mentally alert plaintiffs from the program. In contrast to
Rodriguez, the program at issue in Easley was wholly-funded by
the State and was created specifically for mentally-alert,
physically disabled individuals so that they might work and
manage their own lives. Here, New York State's program is part
of a federally approved and funded Medicaid program that was
designed to provide personal care services to impaired
individuals, even when an individual's mental impairment
necessitates the use of a self-directing individual who may or
may not be living in the same household or supervision by an
outside agency to direct the personal care attendant. See 18
N YC.R.R. §§ 505.14(a)(4)(ii)(a)-(c).
ii. Undue Burden
Defendants' justifications for denying home care services to
the mentally disabled are (1) to reduce costs and (2) to
eliminate individuals from the program who pose a "direct
threat" to themselves or others.
A permanent injunction, defendants argue, would require a
vast increase in the number of hours assessed under the
program, causing a major financial burden. It is not known how
many Medicaid recipients with Alzheimer's disease or dementia
would require home care. Defendants bear the burden of
persuasion in showing that the financial burden is "clearly
disproportionate" to the benefits it will produce. See
Borkowski v. Valley Central School District, 63 F.3d 131,
138-139 (2d Cir. 1995). "This requires an inquiry not only into
the benefits of the accommodation but into its costs as well."
Id. at 138 (citing Vande Zande v. Wisconsin Dep't of Admin.,
44 F.3d 538, 542 (7th Cir. 1995)).
The plain language of the ADA's Title II regulations, as well
as the legislative history indicate that Congress intended to
permit a cost defense only in the most limited circumstances
when an accommodation would "fundamentally alter the nature of
the service, program or activity." 28 C.F.R. § 35.130(b)(7).
The fact that it is more convenient, either
administratively or fiscally, to provide services
in a segregated manner, does not constitute a
valid justification for separate or different
services under [§ 504 or the ADA]. The existence of
such programs can never be used as a basis to . . .
refuse to provide an accommodation in a regular
H.R.Rep. No. 101-485, pt. 3 at 50, reprinted in 1990
U.S.C.C.A.N. at 473. certainly the ADA and § 504 do not require
that all mentally ill individuals be afforded home care as
opposed to institutionalization. However, the defendants have
an obligation to provide appropriately integrated services
under both the ADA and § 504. See Helen L. v. DiDario, 46 F.3d
at 336; Zimring v. Olmstead, 138 F.3d 893
, 904. In those
limited cases where the cost of maintaining a cognitively
impaired person at home exceeds the costs defendants would
incur to place the individual in a nursing home (90% of the
cost of a residential health facility), defendants can look to
the fiscal assessment law, just as they do for high cost cases
involving persons with physical impairments. See Rodriguez, 177
F.R.D. at 160-161.
Under the Attorney General's Title II ADA implementing
regulations, "[a] public entity shall administer services,
programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities." 28 C.F.R. § 35.130(d). This regulation has "the
force of law" in light of Congressional approval of the § 504
45 C.F.R. § 85.21(d). See Helen L., 46 F.3d at 332 (citing
legislative history); L.C. Zimring, 138 F.3d at 898. This
interpretation is entitled to substantial deference. See Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381,
129 L.Ed.2d 405 (1994). Similarly, the Attorney General's § 504
coordination regulations mandate that the recipients of federal
funds "administer programs and activities in the most
integrated setting appropriate to the needs of qualified
handicapped persons." 28 C.F.R. § 41.51(d) (1997). The
integration principle contained in these regulations ("the most
integrated setting appropriate") is consistent with Congress'
purpose in enacting the ADA — to combat the historic isolation
and segregation of individuals with disabilities. See
42 U.S.C. § 12101(a)(2) and (a)(5). Therefore, inappropriate or
unnecessary segregation in nursing homes is a form of illegal
discrimination against the disabled.
Defendants first argue that providing services to individuals
with mental impairments causes "wasteful down-time" that does
not occur when providing services to others. This argument
merits little attention as personal care services for the
physically impaired also involves "down time" for the
attendant, as in the 24-hour cases where the attendant is
permitted to sleep! Defendants further argue that they are
offering comparable care to the mentally and physically
disabled, except for the slight difference in the "modality by
which that care is to be delivered." See City's Mem. of Law at
7. The "modality" of care for the physically disabled is
delivered at home; and the "modality" of care for the mentally
ill is through institutional care. The problem with this
argument is that the institutionalization of mentally impaired
plaintiffs who could otherwise be cared for at home would
result in the segregation of the mentally disabled which the
ADA sought to end. See 42 U.S.C. § 12101(a)(2), (3), (5) and
(7) (findings and purpose of ADA stating that discrimination
against disabled stems from "stereotypic assumptions not truly
indicative of the individual ability of such individuals to
participate in, and contribute to society").
Defendants have not shown that the financial burden of a
permanent injunction will be "clearly disproportionate" to the
benefits it will produce in preventing the unnecessary
segregation of mentally impaired individuals.
Defendants raise the affirmative defense that eliminating
home care services for the mentally impaired is necessary to
eliminate individuals who "pose a direct threat to the health
or safety of other individuals." See 42 U.S.C. § 12113(b).
Defendants have the burden to establish that plaintiffs pose a
"direct threat" by creating "a significant risk to the health
or safety of others that cannot be eliminated by reasonable
accommodation". 42 U.S.C. § 12111(3). See New York State Assn.
for Retarded Children v. Carey, 612 F.2d 644, 650 (2d Cir.
1979) (exclusion of children who carried serum hepatitis from
regular school classes violates Rehabilitation Act because
defendant's proof revealed that health hazard was only a remote
possibility and isolating children would have detrimental
effect). Only extreme conduct will meet the burden necessary to
allow defendants to exclude handicapped individuals from a
particular program. See, e.g., Doe v. New York University,
666 F.2d 761 (2d Cir. 1981) (plaintiff with personality disorder
not "otherwise qualified" for admission to medical school due
to suicide attempts, smearing blood on office walls and
threatening violence which could result in harm to others
students, faculty and patients).
As plaintiffs demonstrated during the hearing, while
individuals with Alzheimer's may occasionally be a danger to
themselves if not monitored properly, it is exceedingly rare
for them to be a danger to others. See hearing Transcript
("Tr.") at 472, 478. Indeed the evidence tended to show that
many persons with mental impairments
are appropriate for home care. See 177 F.R.D. at 159; see also
Tr. at 469-470, 628, 634-35.
The only incident defendants could cite which arguably
demonstrated that an individual with Alzheimer's posed a danger
to herself or others concerned Mrs. Russo. According to
defendants' account of events, Mrs. Russo, an 82 year-old
woman, "physically assaulted her aide, wandered excessively and
created hazardous conditions in her home." State Supp. Me. of
Law at 8. Prior to the alleged incident, Nassau County had
reduced Mrs. Russo's services from 24 hours to four hours three
days a week after determining that the other twenty hours of
care constituted mere "supervision" — a non-task. After an
incident during which Mrs. Russo was agitated and allegedly
swung a broom either at her aide or at the bathroom door (the
details of the incident are disputed), the County terminated
her personal care services based on a finding that she could
not be safely maintained at home. See Rodriguez, 177 F.R.D. at
159 n. 20.
I am not convinced that this one contested example rises to
the level of a "a significant risk to the health or safety of
others that cannot be eliminated by reasonable accommodation"
that defendants have the burden of proving.
42 U.S.C. § 12111(3). First, had her hours not been drastically reduced,
the incident might never have happened. Moreover, the issue of
whether an individual with Alzheimer's poses a significant risk
to herself or others should be addressed on a case-by-case
basis and not by eliminating safety-monitoring for all such
individuals. For the foregoing reasons, plaintiffs have
prevailed on their ADA and § 504 claims.
C. Irreparable Harm
Having succeeded on the merits, plaintiffs are entitled to
permanent injunctive relief if they can show that they will
suffer irreparable harm absent such relief. The harm at issue
here is the inadequate authorization and denial of personal
care services to which they are otherwise entitled. Plaintiffs
are elderly, sick and frail. An inadequate home care
authorization or denial of any home care could have a
devastating effect on their health and safety, causing
irreparable harm that cannot be compensated with damages. The
Second Circuit recognizes that the denial of essential medical
benefits to Medicaid recipients constitutes irreparable harm
sufficient for the issuance of an injunction. See Shapiro v.
Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995) (affirming
issuance of preliminary injunction requiring apartment building
to provide parking space to plaintiff with multiple sclerosis
based on "risk of injury and humiliation from her inability to
walk distances and her incontinence"); see also Caldwell v.
Blum, 621 F.2d 491, 498 (2d Cir. 1980) (preliminary injunction
granted to medically needy individuals denied Medicaid benefits
who would, "absent relief, be exposed to the hardship of being
denied essential medical benefits").
Moreover, the possible alternative to home care services
— involuntary separation from one's home, family and community
and institutionalization in a nursing home — is likewise harm
that cannot be repaired by money damages. The New York State
Legislature has recognized the adverse social and medical
consequences of institutionalization.
The legislature hereby finds and declares that the
provision of high quality home care services to
residents of New York state is a priority concern.
Expanding these services to make them available
throughout the state as a viable part of the
health care system and as an alternative to
institutional care should be a primary focus of
the state's actions.
N Y Public Health Law § 3600. Therefore, plaintiffs will
suffer irreparable harm absent injunctive relief.
Because "public consequences" are implicated by the grant of
injunctive relief, the Court must balance the conveniences
and possible injuries to the parties. See Sierra Club v.
Hennessy, 695 F.2d 643, 649 (2d Cir. 1982). It is beyond cavil
that injunctive relief will impact State, County, and City
budgets, although defendants have difficulty estimating the
precise amount. Defendants anticipate the cost of implementing
safety monitoring in New York City for applicants with moderate
to severe cognitive impairments will be approximately $40.8
million for an estimated 664 new cases during the first year
that the Court Order is in effect. The City's share of this
cost is 10%, the State's share is 40% and the federal
government's share is 50%. See Affidavit of Kathleen Tyler
("Tyler Aff."), Director of Management and Support Services for
the Home Care Services Program, dated October 3, 1997, at ¶ 3.
In addition, the City estimates that it will incur $42 million
in penalties if, due to the Order, it fails to meet State
cost-containment targets. See id. at ¶ 12.
As I noted during oral argument before granting the stay,
defendants' figures are speculative. See Transcript from
October 23, 1997 ("Oct. 23 Tr.") at 5. However, even if the
Court were to accept defendants' estimates, the cost of
implementing this Order would be a mere fraction of the $2.7
billion total cost of New York State's home care program. In
addition, defendants' costs will be offset to the extent
defendants intended to substitute institutionalization in
nursing homes in place of home care which would be less
expensive in some circumstances. While defendants have provided
no estimate for the competing costs of nursing home care, it is
likely that their estimated costs of implementing this Order
will be reduced to the extent that some mentally impaired
individuals may be cared for at home at a lesser expense.
Furthermore, the injury that will result to plaintiffs' class
without safety-monitoring — involuntary separation from their
homes and unnecessary institutionalization in nursing homes —
far outweighs the potential harm incurred by defendants.*fn24
The public has an interest in protecting its most vulnerable
members from practices that do not comply with federal law.
The Court recognizes that two important policies are involved
in this case — fiscal policies at all levels of government and
the cooperation of federal, state and local governments in
providing home health care to those in need of such services.
The questions surrounding providing such care to the mentally
impaired are thorny. The answers to these questions, however,
are straightforward. Federal funds allocated to the States must
be spent in accordance with conditions required by all the
federal statutes and regulations — including the
For the foregoing reasons, plaintiffs' motion is granted. It
That defendants include safety monitoring as a separate task
on their TBA forms, assess the need for safety monitoring as a
separate task, and calculate any minutes allotted for safety
monitoring as part of the total personal care services hours
authorized, for both applicants and recipients; and it is
That the City of New York include the total number of task
hours authorized and the allocation of those hours by the
number of hours per day as a component of its initial notice,
and, to the extent this information is not already included, as
a component of its reauthorization notice.