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HENRIETTA D. v. GIULIANI

United States District Court, Eastern District of New York


September 18, 2000

HENRIETTA D., NIDIA S., SIMONE A., EZZARD S., JOHN R., AND PEDRO R., ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
V.
RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, MARVA HAMMONS, ADMINISTRATOR OF THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION AND COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, AND MARY E. GLASS, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS.

The opinion of the court was delivered by: Johnson, District Judge.

    MEMORANDUM AND ORDER

This class action is brought by New York City residents with AIDS or HIV-related illnesses seeking equal and meaningful access to publicly subsidized benefits. Plaintiffs sued city and state officials, claiming violations of the Americans with Disabilities Act ("ADA"), the Medicaid Act, Section 504 of the Rehabilitation Act of 1974, and other violations of state and federal laws. After a lengthy period of discovery and motion practice, this Court held a bench trial on the merits of this case on May 1, 2000, May 2, 2000, June 20, 2000, June 21, 2000, and June 22, 2000. Based on the evidence and testimony presented at trial, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

Nature of the Case

1. Plaintiffs commenced this action against defendants for failure to provide meaningful and equal access to public benefits and services as required by the Americans with Disabilities Act and the Rehabilitation Act, and for failure to comply with numerous federal and state laws, including the Social Security Act, the Medicaid Act, the New York Social Services Law, and various regulations under these acts. Second Am. Compl. ¶¶ 1-2.

2. This Court has subject matter jurisdiction over the federal law claims against both City and State defendants pursuant to 28 U.S.C. § 1331 and exercises supplemental jurisdiction over the state law claims against only the City defendants pursuant to 28 U.S.C. § 1367(a). See Second Am. Compl. ¶¶ 6-8; Joint Pre-Trial Order at 3; Henrietta D. v. Giuliani, 81 F. Supp.2d 425, 428 (E.D.N.Y. 2000).

3. The Division of AIDS Services and Income Support ("DASIS"), a division of the New York City Human Resources Administration ("HRA"), is the means for indigent individuals living with AIDS or clinical/symptomatic HIV to access critical subsistence benefits and services offered by City and State defendants. Rather than requiring persons with AIDS or clinical/symptomatic HIV illness to access the many programs administered by HRA on their own, DASIS case managers are responsible for assisting clients in applying for and maintaining public assistance, Medicaid, Food Stamps, housing, Social Security benefits, and other benefits and services. DASIS was known as the Division of AIDS Services ("DAS") until it was consolidated with HRA's Income Support division in 1997.

Plaintiff Class

4. This Court certified the original named plaintiffs as representatives of a class of "all DAS-eligible persons" who seek public assistance benefits and services. In order to be a DASIS client, an individual must be: a New York City resident who is "Medicaid eligible," and has been diagnosed with clinical/systematic HIV illness or AIDS. Henrietta D. v. Giuliani, 1996 U.S. Dist. LEXIS 22373 at *47; Tr. at 662: 9-12.

5. Pursuant to stipulation between the parties, Henry Bradley, Owen-Pahl Greene and Richard Torres intervened in this action "as representative named plaintiffs." Pre-Trial Odr. at 10 and Ex. 4.*fn1

AIDS and the Need for Reasonable Modifications

6. People living with HIV and AIDS develop numerous illnesses and physical conditions not found in the general population, and experience manifestations of common illnesses that are much more aggressive, recurrent, and difficult to treat. Infections and cancers spread rapidly in a person whose immune system has been compromised, and the effectiveness of medicine is diminished by nutritional problems that limit the body's ability to absorb what is ingested. Illnesses that are not lethal to the general population can kill an HIV-infected person. For all these reasons, persons with AIDS and HIV-related disease experience serious functional limitations that make it extremely difficult, if not impossible in some cases, to negotiate the complicated City social service system on their own. See Henrietta D. v. Giuliani, 1996 U.S.Dist. LEXIS 22373 at *4-5; Tr. at 435:12-444:21.

7. As the immune system deteriorates, persons infected with HIV progress from being asymptomatic to developing symptoms such as weight loss, severe gynecological infections, chronic diarrhea, and fatigue. Eventually, HIV and AIDS strips the body of all defenses, leaving the infected person unable to fend off or combat new and existing infection and illness. At this later stage of HIV infection, patients commonly develop "opportunistic infections" such as PCP pneumonia, cryptococcal meningitis, and Kaposi's Sarcoma, diseases particular to persons with compromised immune systems. These illnesses and infections eventually cause death. Tr. at 435:12-444:21.

8. The opportunistic infections and chronic conditions that result from a weakened immune system limit the HIV-infected person's ability to engage in regular activities of daily life such as traveling, standing in line, attending scheduled appointments, completing paper work, and otherwise negotiating medical and social service bureaucracies. Some examples of these conditions include: cytomegalovirus (CMV) retinitis, a visual impairment that often results in blindness; severe wasting syndrome, which causes chronic diarrhea, extreme fatigue and, in some instances, gait impairment; peripheral neuropathy, a disturbance of the peripheral nervous system that causes numbness or tingling of the hands and feet, weakness in the legs, arms and hands, and severe pain that can interfere with the ability to walk; and AIDS dementia complex, a neurocognitive dysfunction that can interfere with the ability to understand written materials and/or fill out forms. Tr. at 435:12-444:21.

9. Functional limitations also develop from the primary drugs used to combat AIDS and HIV-related disease, among them AZT, DDI, ddC, protease inhibitors, and anti-neoplastic agents. These medications result in anemia and other side effects, with concomitant fatigue, shortness of breath, and other physical limitations. An individual receiving this common regime of prescription drugs likely will be restricted in his or her ability to walk, stand, or travel. Other side effects include enhanced neuropathy, diarrhea, nausea, and vomiting. Tr. at 442:6-21.

10. The latest medical development in the fight against HIV disease is the prescription of so-called "drug cocktails," which consist of two older AIDS drugs, such as AZT and 3TC, and the latest antiviral drugs, protease inhibitors. These drugs create added complications for patients including extremely cumbersome treatment regimens and serious side effects, such as nausea and gastrointestinal symptoms. The drugs must be taken several times a day, some on an empty stomach and some after meals, and treatment regimens can include up to sixty pills a day. Additionally, some of these drugs require refrigeration. Tr. at 441:24-444:11.

11. People living with AIDS and HIV also have a particularly hard time obtaining adequate nutrition. Illness and infection often limit the appetite and the body's ability to absorb nutrients, and common HIV-related conditions like oral thrush can physically limit the ability to swallow. Nausea, a common side effect of drugs used to treat AIDS and HIV infection, can also result in an inability to eat properly. Due to HIV-related disease, many HIV-infected persons have dietary restrictions. These nutritional restrictions can be difficult or impossible to maintain. Poverty, limited mobility, and limited resources result in limited access to fresh, high-quality food, and necessary dietary supplements. Pl.Ex. 13, at 3-4.

12. Stress is another critical problem faced by people living with AIDS and HIV. HIV-infected persons necessarily struggle with many stresses in their lives, including the likelihood of early death, management of a multitude of symptoms and medications, the future welfare of their children, rejection of friends and family, stigma, and discrimination. The added stress of lack of housing, food, medical care, or other basic survival services that indigent people face poses a serious threat to health. Medical evidence suggests that stress causes further weakening of the immune system in HIV-infected persons, making it even more difficult to fight illnesses and infections. Tr. at 444:12-21.

13. The requirement that persons with AIDS and advanced HIV disease travel to and wait in infection-ridden public waiting rooms can be dangerous, and even life-threatening, for this population, all of whom suffer from severely weakened immune systems. Persons with AIDS, for example, are highly susceptible to tuberculosis and other infectious diseases. Thus, persons with AIDS and advanced HIV disease require medically appropriate conditions in which to establish, receive, and maintain their benefits, as well as medically appropriate housing. Tr. at 436:5-440:23.

Witnesses at Trial

Henry Bradley

14. Henry Bradley is a fifty-one year old man who has been disabled with AIDS since 1983. Tr. at 40:15-22. As a result of his disability, he suffers from symptoms including numbness in his extremities, fungal infections that cause his teeth and nails to fall out, and severe rashes. To control the disease, Mr. Bradley currently follows a medication regimen that requires taking fifty-one different tablets, plus liquid supplements, daily. Mr. Bradley experiences certain side effects from the medication, including loss of bowel control, blurred vision, and occasional loss of short-term memory. Tr. at 41:6-43:9. While a DASIS client, Mr. Bradley has slept poorly, suffering from chills and sweats during the night, and he has lost over thirty pounds. See Def. Ex. S at ¶ 24.

15. In 1993 and 1994, Mr. Bradley resided at 775 Riverside Drive. Tr. at 45:7-9. After initially funding Mr. Bradley's housing, DASIS closed his case without notice in February, 1994. Tr. at 50:16-51:1. See P.Ex. 33. Mr. Bradley sought a conference with DASIS, but was refused and instead had to file for a fair hearing. The fair hearing decision in his favor ordered DASIS to reopen the case, pay the benefits due retroactively, and to notify Mr. Bradley about any further decisions. Tr. at 51:20-53:2.

16. Despite the fair hearing decision, DASIS did not pay the rent arrears and Mr. Bradley lost his apartment. Tr. at 53:9-14. During this time, Mr. Bradley's Medicaid was not active, and he was unable to maintain his medication regimen. Tr. at 54:1-4.

17. In November 1994, DASIS did pay the overdue benefits to Mr. Bradley. However, DASIS then immediately closed his case again without notice.*fn2 Tr. at 54:14-55:23. During this time, DASIS knew where to reach Mr. Bradley. 56:7-14. See Pl.Ex. 33.

18. From November 1994 to April 1995, Mr. Bradley was without shelter allowance, cash assistance, food stamps, or medical assistance. During this time without public benefits, Mr. Bradley relied primarily on church charity in order to live. Again he was unable to maintain his medication regimen for this time period, and his health deteriorated from the constant worry about day-to-day survival. Tr. at 56:25-57:20. See Def. Ex. S at ¶¶ 8, 24.

19. Each time Mr. Bradley won a fair hearing decision, DASIS employees would direct Mr. Bradley to take his complaints to a noncompliance center to file a complaint. Mr. Bradley was forced to wait upon arrival and would eventually receive a computer printout that would describe what should be done to achieve DASIS' compliance. Then, he would be instructed by the staff to take the printout to the liaison office and to await further contact. This further contact never occurred. Mr. Bradley would do this once every twenty or thirty days with no result. Tr. at 58:21-59:11.

20. Although Mr. Bradley sought DASIS' assistance in securing a permanent apartment, no help was forthcoming. When he independently found an apartment, he brought the lease to his case manager at DASIS shortly before mid-August 1995; Mr. Bradley understood that his application would be processed. Tr. at 59:17-60:12. Instead, his case was closed for a third time, without notice, on August 14, 1995. Mr. Bradley did not learn of this closure until he discovered that he lost the apartment because DASIS had not processed the application. Tr. at 61:21-62:8.

21. Mr. Bradley again contacted more than twenty people at DASIS in an attempt to have a conference and avoid the delays caused by seeking a fair hearing and then seeking to force compliance with the decisions; DASIS refused him every time without explanation. Tr. at 63:3-14. From August 1995 to July 1996, Mr. Bradley did not receive any benefits. Mr. Bradley survived by depending on different charitable organizations and churches. His Medicaid was affected by the case closing and he was not able to follow his medication regime for over two years. As a result, his health deteriorated, affecting his vision, and multiplying his regimen from 3 tablets per day to seventeen tablets three times per day. Tr. at 64:18-65:23. See Def. Ex. S at ¶ 24.

22. Mr. Bradley sought a fair hearing and received a favorable determination in July, 1996. DASIS was ordered to restore his benefits retroactively, reversing the discontinuance of his medical assistance benefits and food stamps. However, in September 1996 DASIS complied with the decision for only one day and then closed the case the next day for a fourth time without notice to Mr. Bradley. Tr. at 69:14-70:15.

23. Mr. Bradley did not know why his case was closed yet again. Tr. at 71:6-15. In questioning different people at DASIS, he received different answers regarding his case status. Tr. at 71:25-72:12. When he sought help from the noncompliance unit, he received the same chain of instructions as before: receive a computer printout from the noncompliance unit, deliver it to the liaison unit and await contact. As before, that contact never came. Tr. at 73:2-25. See Pl.Ex. 69.

24. Mr. Bradley's complaints to the noncompliance unit in Albany did not resolve the issue. Tr. at 77:16-20; 78:1-9. See Pl.Ex. 70. Mr. Bradley did not seek another fair hearing in 1996 or 1997 because DASIS employees told him that it was unnecessary and useless to seek a new fair hearing merely to enforce the original decision. Tr. at 78:24-79:21.

25. In 1996, DASIS approved rental assistance for an apartment for Mr. Bradley but failed to make payments after he moved into the apartment. Tr. at 85:12-24. As a result, Mr. Bradley was forced to pay the rent out of his social security payments, and to get by otherwise with almost no income. Tr. at 88:3-19. Finally in April 1998, Mr. Bradley received notice from DASIS that they would comply with the 1996 fair hearing order and repay part of the back rent that had accrued. Tr. at 89:13-20. Defendants were compelled to reimburse Mr. Bradley $7,132.00 in public assistance benefits that defendants wrongfully withheld during the period from July 1, 1995 to April 12, 1998, almost three years of welfare benefits. Tr. at 121-22. However, DASIS did not repay over four thousand dollars in rent that Mr. Bradley paid out of his SSI payments.*fn3 Tr. at 89:13-20, 121:8-122:6. See Pl. Exs. 73, 51, 38.

26. The same April 1998 letter from the noncompliance unit stated that Mr. Bradley would receive the food stamps due from August 1996 until March 1998. During this time without food stamps, Mr. Bradley was forced to go from church to church in search of food. However, even after April 1998, Mr. Bradley did not receive his food stamps consistently. Tr. at 89:25-90:19. See Pl.Ex. 73.

27. In 1998, Mr. Bradley's DASIS case was closed yet again and he was transferred to regular public assistance. Tr. at 91:9-20. He did not know that his new case manager, Ms. Davis, was not a DASIS employee until he called her. When he responded in person to a letter setting an appointment with Ms. Davis, she told him through a phone bank that she never sent the notice and that she did not handle DASIS clients. Tr. at 92:24-93:24, 100:3-10, 101:15-24. See Pl. Exs. 71, 72.

28. Before Mr. Bradley was allowed back to DASIS, he received another letter from a Mark Limerick of DASIS stating that, in order to become a client, he had to resubmit documents he had already submitted to DASIS. Mr. Limerick arranged to meet Mr. Bradley at his home to get the paperwork but failed to show up for the appointment. Mr. Bradley then went to DASIS' office in person and resubmitted the documents. Tr. at 96:24-97:24. Although Mr. Limerick told Mr. Bradley that the transfer back to DASIS would take a week, Mr. Bradley was not transferred back for three to four weeks. 99:1-3. See Pl.Ex. 56.

29. In 1998, DASIS sent Mr. Bradley notice of an award of food stamps for the month of September only. Tr. at 104:10-12. The same day, Mr. Bradley received a letter stating that DASIS intended to terminate his public assistance on September 11, 1998, and to reduce his food stamps to only ten dollars per month. Tr. at 105:17-106:16. No one at DASIS could explain to Mr. Bradley why the notices were sent. Tr. at 107:7-10. See Pl. Exs. 64, 62.

30. In response, Mr. Bradley requested a fair hearing. On September 8, 1998, the hearing officer reversed DASIS' computation of benefits and directed DASIS to restore lost public assistance and food stamp benefits retroactive to August 1996. Tr. at 110:9-23. Despite the fair hearing decision, DASIS did not restore the lost housing benefits, and has not paid for the lost benefits since then. Nor did DASIS pay a nutrition and transportation allowance following this decision. Tr. at 114:11-20. See Pl.Ex. 67 at 5.

31. Mr. Bradley then received a notice informing him that DASIS intended to close his public assistance case yet again on September 15, 1998, for reason "21-5." Tr. at 111:9-14, 111:21-112:6. No one at DASIS could explain what the numerical notation meant. Tr. at 112:13-113:14. See Pl.Ex. 66.

32. Mr. Bradley first sought to gain compliance with the 1998 fair hearing decision by following instructions to contact the noncompliance unit and take their printouts to the liaison office, where he was told that he would be contacted. Mr. Bradley was never contacted. Tr. at 114:9-115:9. After he contacted the State compliance unit, a director at that unit told him that he would be contacted when compliance was achieved. Mr. Bradley was never again contacted about compliance with the fair hearing, and the retroactive benefits were never paid. Tr. at 117:18-118:6. See Pl.Ex. 74.

33. DASIS' own records noted that in May 1998 Mr. Bradley's case was open and "in fine shape," but then closed as of October 1998. This notation added that sufficient income to meet needs should not have caused the closure, since Mr. Bradley's income had not changed. The discrepancy was not explained. Tr. at 119:8-120:5, 120:9-21. See Pl.Ex. 45.

34. In 1999, Mr. Bradley brought in a lease with a request for moving expenses, and a supervisor at DASIS accompanied him to view the apartment. However, a few weeks later, in May 1999, Mr. Bradley's case was closed without notice for a fifth time. Tr. at 125:9-23. Again Mr. Bradley sought conferences that were refused. Tr. at 126:3-127:23. See Pl.Ex. 143.

35. Mr. Bradley had informed DASIS of his new address and had received correspondence from DASIS at the new apartment. Tr. at 130:2-12. In fact, DASIS had approved the apartment and was paying the rent for the apartment directly to the new address. Nonetheless, in August 1999, DASIS erroneously mailed a letter to Mr. Bradley's prior address scheduling a face-to-face appointment for September 1, 1999. Tr. at 131:1-9. Mr. Bradley only learned of the appointment in a phone call with DASIS when he learned that his case had been closed for failure to attend the appointment. 131:14-132:17. See Pl.Ex. 141.

36. In November 1999, Mr. Bradley reached an agreement with DASIS to retire alleged utility arrears from the apartment that DASIS had required him to move out of in 1994. Mr. Bradley followed the required steps and secured DASIS' agreement and approval to pay the arrears in November 1999. DASIS failed to pay the arrears, however, and Mr. Bradley's utilities were terminated suddenly and without notice in January 2000. The electricity cut-off spoiled the refrigeration of his medicines and liquid supplements. Tr. at 133:9-134:4.

37. This year (2000), Mr. Bradley was again forced to seek a fair hearing when DASIS issued a notice of intent to reduce his benefits by recoupment of half of the money being paid in rent. Mr Bradley prevailed again; the order reversed the recoupment and directed DASIS to continue benefits. Tr. at 139:1-140:23. See Pl. Ex. 138.

38. On March 3, 2000, DASIS again erroneously mailed a letter to Mr. Bradley's old address requiring Mr. Bradley to report for recertification. DASIS had mailed the envelope to his old Manhattan address, yet the notice inside listed his correct new address in Brooklyn. Mr. Bradley only learned of this letter after he contacted DASIS in late March, 2000. Tr. at 141:7-12, 142:14-143:22. Despite knowing Mr. Bradley's correct address, despite paying rent on the current address, and despite the fact that Mr. Bradley corrected this same mistake in 1999, this was the second time DASIS mailed a notice critical to Mr. Bradley's continued receipt of benefits to the wrong address. See supra, ¶ 35. Mr. Bradley's case was closed as a result of the mistake and yet again had to be reopened. Ptf. Mem at ¶ 39. See Pl.Ex. 136.

39. In sum, because DASIS' failed to properly assist Mr. Bradley, he was deprived of critical subsistence benefits, to which he was fully entitled, for years. As a result of DASIS' unwillingness or inability to correct his case, Mr. Bradley was repeatedly unable to access his Medicaid benefits, at one point for approximately two years. See infra ¶¶ 14-15, 19-20, 21-22. Without Medicaid, he was unable to take his medication, causing his toenails, fingernails, and even his teeth to fall out. See infra ¶ 14. DASIS failed to make any rent payments on behalf of Mr. Bradley for almost two years, and DASIS failed to provide Mr. Bradley with any food stamps for almost two years. See infra ¶¶ 24, 26. During this time, Mr. Bradley was unfairly compelled to pay nearly three-quarters of his monthly SSI income toward rent, leaving him little money on which to live and forcing him, inter alia, to go to soup kitchens merely to survive. See infra ¶¶ 20, 25.

40. Mr. Bradley's right to these benefits was unequivocally established in fair hearing proceedings,*fn4 which DASIS repeatedly chose to ignore. See infra ¶¶ 19, 21, 24, 29, 31, 45.

41. DASIS' repeated failures continued virtually to the date of trial. In failing to register the correct address for Mr. Bradley in 1999, DASIS erroneously mailed him a recertification notice at his old address, and then cut off his much-needed public benefits. See infra ¶¶ 33, 34. After Mr. Bradley corrected the Agency's error, moreover, DASIS repeated the mistake in 2000, see infra ¶¶ 35, 37, although it appears that DASIS had Mr. Bradley's correct address all along; that DASIS was, in fact, simultaneously mailing rent checks to Mr. Bradley's correct address; and that DASIS even entered the correct address on the notice contained in an envelope mailed to the incorrect address. See infra ¶¶ 35-36, 38. These were subsistence benefits upon which Mr. Bradley depended for his maintenance. Mr. Bradley testified that he was forced "to go to different churches and sit around the street and wait for people to come with bags so that you could get something to eat because I didn't know what I was going to do." Tr. at 57:11-13.

Owen Pahl-Greene

42. Owen-Pahl Greene is a forty-five year old man who lives with full-blown AIDS. Because of AIDS and the medications he uses, Mr. Greene suffers from a number of secondary symptoms and illnesses, including chronic fatigue, wasting syndrome, cryptoceriotis, problems with his respiratory tract and his skin and skeletal structure, and opportunistic infections and infestations, as well as blurred vision, headaches, diarrhea, constipation, vomiting, and infections on his fingernails and toenails. Tr. at 187:15-188:22. His T-cell count fluctuates and has fallen as low as twenty-two. He uses up to eleven different types of medication for AIDS. Tr. at 188:24-189:7, 189:20-190:5.

43. Mr. Greene applied for benefits through DASIS in October 1997, while homeless, and became a client in November 1997. Tr. at 191:6-13. DASIS did not provide any permanent housing to him at that time, but placed Mr. Greene in the Allerton Hotel, in a room which was vermin and cockroach-infested, and lacked adequate heat or suitable bedding. Tr. at 194:10-17, 196:22-197:24, 201:11-202-17.

44. Although some of Mr. Greene's medication required refrigeration, the Allerton Hotel did not provide any. When Mr. Greene informed his DASIS case manager about this issue and his concerns that the medicine would spoil, his DASIS case manager instructed him to place it outside the window in the snow. As a result, the medicine froze and was ruined. When Mr. Greene sought to replace his needed medicine, his case manager accused Mr. Greene of deliberately selling the medicine and seeking a replacement. Tr. at 199:5-200:5.

45. The day before Thanksgiving 1997, DASIS failed to renew Mr. Greene's temporary housing. When he returned to the hotel, Mr. Greene was locked out and was not allowed to retrieve his clothing or medication, forcing him to go homeless on the streets without adequate clothing and without medication for three days and nights. Tr. at 198:16-23, 205:5-206:2. When he was unable to reach his case manager the following Monday and no one at the case management level seemed able to help, Mr. Greene went directly to Gregory Caldwell, the Commissioner of DASIS, who promised that Mr. Greene would be admitted to the hotel that evening. Mr. Caldwell also asked for a copy of the notes that Mr. Greene was keeping. Tr. at 208:18-23,209:20-210:17. Mr. Greene stayed at a Kinko's branch late into the night transcribing the notes and faxing them to Mr. Caldwell. Tr. at 211:24-212:2. The Allerton Hotel then refused admittance to Mr. Greene based on an unstated curfew policy, and again refused him access to his clothes or his medication. Because of the breakdown in communication and service from DASIS, Mr. Greene spent yet another night homeless. Tr. at 213:7-8, 214:20-215:25. See Pl. Exs. 118, 117, 116.

46. On New Year's Eve, December 31, 1997, DASIS moved Mr. Greene from the Allerton to the McBurney YMCA. Tr. at 222:17-22. When Mr. Greene arrived, however, no room was immediately available for him. Tr. at 223:21-24. Eventually, he was placed in a room with no heat, a broken window, and no refrigeration. Tr. at 224:19-225:7. Although his DASIS case manager promised to locate appropriate housing the next day, he failed to do so. Tr. at 225:15-23. Although Mr. Greene complained, DASIS failed to move Mr. Greene to habitable living quarters or to fix his room. Tr. at 226:23-227:17. See Pl.Ex. 150.

47. Following DASIS' failure to assist him in securing permanent housing, Mr. Greene suffered a breakdown and was hospitalized at St. Vincent's Hospital in January, 1998. Tr. at 240:20-241:22. Mr. Greene undertook a hunger strike while hospitalized to draw attention to DASIS' failure to assist his search for housing. Tr. at 241:8-242:17.

48. Mr. Greene left the hospital after being told by DASIS that housing was available, only to discover after discharge that DASIS did not have any such available housing. Tr. at 244:12-14, 244:25-245:2.

49. DASIS later placed Mr. Greene into a room at the Crown Hotel, in which (i) raw sewage backed up the bathtub and toilet, (ii) vermin infested the facility, (iii) only soiled carpets, beds, and linens were available, and (iv) no refrigeration for his medication was available. Tr. at 247:3-20, 248:2-3. Although he reported the sewage problems to DASIS, no one from DASIS ever visited the hotel or sought to move Mr. Greene elsewhere. Tr. at 248:15-249:7. See Pl.Ex. 119.

50. In November 1998, Mr. Greene discovered that DASIS had closed his case without notice. Mr. Greene requested a fair hearing which he won. Tr. at 252:2-7. The judge ordered DASIS to restore the lost benefits and continue Mr. Greene's case. Tr. at 253:3-18.

51. Before trial, Mr. Greene decided to stop using DASIS' services because he felt that dealing with the agency was detrimental to his health. Mr. Greene today continues to subsist on SSI benefits and private charity. Tr. at 254:15-19.

52. In sum, DASIS' failure to renew his emergency housing placement, in late November and early December 1997, led Mr. Greene to spend three consecutive nights homeless on the streets and in the subways of New York, without proper clothing and without his medication. See infra ¶ 44. Furthermore, DASIS placed Mr. Greene in, and failed to move him out of, emergency housing without heat or refrigeration for his medications, and with an open window, for one month in the middle of winter See infra ¶ 45. DASIS also placed Mr. Greene in, and failed to move him out of, emergency housing with, among other things, two inches of raw sewage backed up in the bathtub. See infra ¶ 49; Tr. at 249:1-2; Pl.Ex. 119.

Richard Torres

53. Richard Torres is a forty-six year old man who was diagnosed with AIDS in 1988. Mr. Torres has been a DASIS client since at least 1995. At present, his primary symptoms are fatigue, depression, and anxiety. His most recent T-cell count was 134. Tr. at 302:19-303:16, 304:9-12. Before trial, Mr. Torres stopped using DASIS because of the stress involved in dealing with the agency and his doctor's advice that his viral load and T-cell count were detrimentally affected during his periods of stress while dealing with DASIS. Tr. at 344:19-345:4. See Def. Ex. M at ¶ 2.

54. In 1996, Mr. Torres left the apartment in which he was living in Bushwick, Brooklyn, due to water leaks so bad they rendered it uninhabitable. Although he informed his DASIS case manager about the problem, DASIS did not do anything directly about the problem, nor did they assist Mr. Torres in locating or securing a new apartment. Tr. at 305:14-306:7, 306:13-19.

55. Mr. Torres then sought emergency housing from DASIS. On several occasions, DASIS failed to provide Mr. Torres with emergency housing. On such occasions, Mr. Torres' case manager sent him to barracks-style shelters without individual rooms or refrigeration, unsuitable for persons with AIDS. Tr. at 308:14-309:19, 310:13-14, 312:19-21. At other times, Mr. Torres was forced to stay on the streets despite having sought DASIS' assistance. Tr. at 311: 14-16.

56. Because of the stress of dealing with DASIS and trying to secure emergency housing, Mr. Torres stopped dealing with DASIS in 1996. He privately located shelter through a VA shelter and then an establishment called Gift of Love, run by nuns for people living with AIDS. Tr. at 311:21-312:14.

57. In December 1997, Mr. Torres independently located permanent housing in Coney Island and asked DASIS for assistance. Although he submitted all required paperwork, DASIS did not act on the lease for over two months and Mr. Torres consequently lost the apartment. Tr. at 312:23-318:3.

58. Again, in January 1998, Mr. Torres sought help from DASIS and completed an application for permanent housing. In February, Mr. Torres brought another Conney Island apartment to DASIS' attention and asked for assistance. DASIS failed to act on the apartment, and Mr. Torres lost that apartment as well. At no time did his case manager or anyone at DASIS tell Mr. Torres that any further paperwork was necessary, that his case was closed, or that the application was incomplete. Tr. at 315:16-318:11.

59. On July 30, 1998, Mr. Torres missed curfew at the Gift of Love and went to the DASIS center in Brooklyn to seek emergency housing. Tr. at 322:10-323:324:7. His case manager referred him to an address in Upper Manhattan; however, no such address existed and he was again forced to be homeless for the night. Tr. at 323:21-325:15, 325:22-23. Another worker at DASIS confirmed in a phone call that the address Mr. Torres sought was in fact the address to which his case manager had referred him. Tr. at 325:25-326:9, 326:14-327:17.

60. In July 1998, Mr. Torres inquired of DASIS as to the status of his application for permanent housing. Although Mr. Torres had applied for permanent housing in January 1998, his case manager stated that he could not locate the application and required Mr. Torres to fill out a new application. After filling out the application, Mr. Torres sought a receipt but was told by the case manager that receipts were not given. The DASIS Law requires that receipts be furnished. N.Y. City Admin. Code § 21-128(c)(1). No one at DASIS at that time informed Mr. Torres that his application was incomplete or that his case was closed. Tr. at 329:16-331:12; See Pl. Ex. 32, at 3.

61. In August 1998, Mr. Torres found new housing at Casa Betsaida, a residence for people living with AIDS in Williamsburg, Brooklyn. Tr. at 333:14-19. When he contacted DASIS about his application for permanent housing, he was again told that it was lost and was asked to fill out yet another application. Tr. at 334:7-16. In September 1998, Mr. Torres submitted a lease for Casa Betsaida to his new case manager at DASIS, who informed him that the application would take some time. Mr. Torres again asked for a receipt but his case manager at DASIS refused to provide one. Tr. at 337:4-338:7. Even after Mr. Torres told the case manager that he was threatened with eviction, his case manager did not do anything other than say that it would take time. Tr. at 338:18-339:15. When Mr. Torres and his landlord jointly spoke to the case manager, the DASIS case manager again gave the same response. Only then was Mr. Torres told for the first time that he needed to submit additional documents regarding his SSI award. At no time during this period from September 1998 to December 1998 did anyone inform Mr. Torres that his public assistance case was closed. Tr. at 339:20-340:18.

62. In December 1998, Mr. Torres went to see his case manager about the pending application. He discovered from another case manager, Ms. McCray, that his case had been closed for about a year. Tr. at 341:13-20. At no point prior to this had anyone informed him that the case was closed; Mr. Torres had been waiting since January for DASIS to act on his application for permanent housing. Tr. at 342:5-6. He had brought apartments to DASIS' attention in January and February, only to lose them through DASIS' delay. He had reapplied for permanent housing in July because DASIS lost the original application. Mr. Torres had waited months, facing eviction from Casa Betsaida, for DASIS to pay his current rent. All along, his DASIS case manager consistently told Mr. Torres that DASIS was working on the permanent housing application. Suddenly, in December, DASIS told Mr. Torres that he would have to reapply yet again. When Mr. Torres asked why he had not been informed, Ms. McCray stated that the case managers were not properly trained. Tr. at 342:17-25.

63. In April 1999, DASIS had opened his case, following his intervention in the instant case. Nonetheless, Mr. Torres discovered that his case was closed again only when he went to pick up his benefits. When he called to find out about the closure, he was told that he should have received a notice sent to him at his residence. Although he had provided DASIS with his address at Casa Betsaida and had submitted an application to DASIS for the lease there, Mr. Torres never received any such notice. Tr. at 343:21-344:18.

64. Mr. Torres never received the legally required nutrition and transportation supplement from DASIS. Tr. at 352:19-353:2.

65. Throughout, although Mr. Torres alerted DASIS to the deterioration of his apartment that left it uninhabitable, DASIS repeatedly failed to assist him in locating permanent housing, or even emergency housing. See infra ¶¶ 54-55. For a year, when Mr. Torres would submit permanent housing applications, DASIS failed to secure the apartments. See infra ¶¶ 57-58, 60-62. In fact, DASIS had failed for the entire year, despite Mr. Torres' numerous applications for permanent housing, to inform him that he needed to reapply for public assistance because his case had been closed for over a year. See infra ¶ 62. After DASIS finally reopened his case, DASIS closed his case again without notice. See infra ¶ 63.

Joy Lafontaine

66. Joy Lafontaine is a twenty-seven year old woman who was diagnosed with HIV in June 1996 and currently lives with AIDS. She suffers from symptoms including chronic diarrhea, weight loss, severe headaches and fainting spells. In April 1998, she was hospitalized for two to three weeks with pneumonia. She initially took a set of medicines, but stopped because they exacerbated her headaches. She is currently receiving Social Security as income. Tr. at 376:19-378:5.

67. Ms. Lafontaine became a DASIS client in January 1999 upon receiving an acceptance letter from the agency. She understood that the agency provided intensive case management to its clients. Ms. Lafontaine called the phone number provided in the acceptance letter and was told that she was assigned to the Kingsbridge Center in the Bronx, and was told that the name of her case manager was Ms. Isabell. Tr. at 378:22-380:14. See Pl.Ex. 155.

68. In March 1999, Ms. Isabell called Ms. Lafontaine at her new residence on West 111th Street in Manhattan and asked her to come in for an appointment and to bring documents regarding her current housing situation. Ms. Lafontaine did so, but did not receive any receipt for this. Tr. at 380:18-381:13. The case manager said that she could not do anything because of a pending fair hearing case regarding the termination of benefits before she became a DASIS client. Ms. Lafontaine informed Ms. Isabell that she had moved to the new address because she lost her electricity. Tr. at 381:16-382:11. Ms. Isabell did not explain any of DASIS' services or its nutrition and transportation supplement to Ms. Lafontaine. Tr. at 384:7-14. DASIS never told Ms. Lafontaine that she could apply for a grant to clear up the utility arrears created by the termination. Tr. at 384:22-385:15.

69. At this time in March, 1999, Ms. Lafontaine was living in her aunt's apartment with seven other people in only three bedrooms. She explained this situation to Ms. Isabell, who did not offer any assistance in locating other housing, but instructed Ms. Lafontaine to bring in the paperwork for any apartment she might find.*fn5 Tr. at 385:16-386:1.

70. In August, 1999, Ms. Lafontaine received a second acceptance letter from DASIS that was sent to her old address, and then forwarded to her aunt's address. The only difference between this letter and the one received in January was the date on the letter. No one at DASIS explained to her why DASIS sent two acceptance letters, or why the second letter was sent to her old address. Tr. at 387:5-388:3, Pl.Ex. 159.

71. In September 1999, Ms. Lafontaine located an apartment and brought the paperwork to Ms. Isabell. No receipt was given for the paperwork. Ms. Isabell had not assisted in finding the apartment, and two weeks after the papers were submitted, she called Ms. Lafontaine to tell her that the apartment was gone. Since then, Ms. Isabell has not assisted Ms. Lafontaine in looking for housing. Tr. at 388:11-389:17.

72. On November 16, 1999, Ms. Lafontaine received the nutritional and transportation supplements that she was entitled to upon acceptance to DASIS. However, DASIS did not explain the meaning of the grant; Ms. Lafontaine, who works as a peer counselor, learned about the supplement from her coworkers. Tr. at 389:20-390:11. Similarly, no one ever explained the letter she received on October 6, 1999, that purported to reduce her public assistance from $308.50 to $165. Tr. at 390:23-391:16. As a result of this reduction, Ms. Lafontaine went without Food Stamps for October and part of November. However, the change in Ms. Lafontaine's grant was never explained. Tr. at 392:2-14.

73. In sum, Joy Lafontaine testified to numerous instances where DASIS failed to provide intensive case management. Although she was accepted as a client in January 1999, and although she provided her DASIS case manager with documents and her new address when requested in March 1999, DASIS failed to pursue her public benefits case, mailed another acceptance letter to her old address five months later, and did not begin delivering benefits until November 1999. See infra ¶¶ 67-68, 70, 72. Her case manager never explained to her what benefits and services, such as nutrition and transportation supplements, might be available; never assisted her with a permanent housing application that Ms. Lafontaine procured individually; and never provided Ms. Lafontaine with receipts for her benefit and service requests. See infra ¶¶ 68, 71.

Service Providers' Testimony Concerning DASIS

74. Plaintiffs presented the testimony of Cynthia Knox and Catherine Bowman, two representatives of service-providing agencies for people with AIDS. These witnesses interact daily with many DASIS-eligible people in the course of their regular work.

75. Cynthia Knox is the Director of the Legal Advocacy Program of Bronx AIDS Services. Tr. at 479:14-16. Bronx AIDS Services is the largest non-medical based provider offering HIV/AIDS services in the Bronx. Tr. at 479:22-23. Ms. Knox estimates that 85% of Bronx AIDS Services' clients are also clients of DASIS. Tr. at 480:20.

76. Ms. Knox is involved on a daily basis in assisting her clients accessing benefits and services from DASIS. Tr. at 480:25-481:4.

77. Ms. Knox has experienced "[e]xtensive problems in working with clients trying to access benefits and services through DASIS." Tr. at 484:22-485:4. She testified that (i) there are problems reaching case workers, (ii) her clients' public assistance cases have been improperly terminated without notice or adequate notice, and (iii) she had experience significant problems with regard to relocating clients, including having clients lose apartments or face eviction because of DASIS' failure timely to assist the clients. Tr. at 485:13-15, 485:20-486:2, 486:7-9.

78. Ms. Knox testified that she has daily problems reaching case managers that include calling but the case manager's phone is off the hook, not having her calls returned or not receiving a response to written correspondence or waiting several hours at a DASIS office to speak to someone concerning one of her clients. Tr. at 490:2-8, 490:11-18, 491:12-14, 492:9-14, 510:9-17.

79. Ms. Knox has been "told by case workers that they carry too many cases and are not able to do the work required of them to provide the services to clients." Tr. at 512:6-8.

80. Ms. Knox testified that on a daily basis DASIS case managers fail to make required home and hospital visits to her clients, sometimes for more than a year. As a result, desperately ill clients are not able to access benefits or end up on the brink of eviction. Tr. at 492:20-493:23, 494:21-495:3.

81. Ms. Knox also testified that DASIS case managers rarely fulfill their responsibility to assist clients in securing apartments and, in fact "it's the exception rather than rule" when they do — an exceptional case manager may fulfill responsibility. More often than not, and on a daily basis, DASIS case managers do not assist clients. Tr. at 496:11-497:2.

82. The failure to fulfill their responsibility to assist clients in finding permanent housing means that her "clients are faced with eviction and have no place to go." Tr. at 497:3-14.

83. Ms. Knox also testified that DASIS case managers, who are also supposed to assist with exceptions to policy, routinely do not provide such assistance. If the exceptions to policy are not processed, it may force clients to the brink of eviction or it could prevent clients from relocating or getting a new apartment. Tr. at 498:12-20, 499:10-18, 499:21-500:6.

84. Ms. Knox testified that though case managers have responsibility to provide receipts that state date application submitted and what papers are still required to complete an application, "[i]n [her] experience [she has] not had a single client who received a receipt from DASIS with regard to an application." Tr. at 501:6-16; 501:21-502:1.

85. Ms. Knox further testified that she has experienced significant ongoing problems with DASIS budgeting a clients' case improperly. The consequence of the improper budgeting is that "the client doesn't get the money entitled to to [sic] buy food, buy necessities of daily living, toilet paper and soap. Shelter can become a problem . . . clients are [left] trying to rely on charity of friends. . . ." Tr. at 503:25-504:5, 505:9-18.

86. As part of intensive case management, DASIS case managers have responsibility to make sure clients' cases are not closed. "For example, if papers are needed for recertification . . . and client can't come in, it is the responsibility [of the DASIS case manager] to go to the home or hospital and obtain the documentation necessary to recertify." Tr. at 506:2-14. However, in Ms. Knox's experience there have been many times where her clients' cases are closed without notice. Tr. at 506:24-507:1.

87. Ms. Knox also testified that, in her experience, there are many instances where DASIS fails to comply with fair hearing decision, sometimes for more than a year. Tr. at 509:20-24.

88. Ms. Knox testified that she "had many, many cases where clients' cases had been terminated and they [the clients] had not been given notice." Tr. at 515:4-6.

89. Ms. Knox also testified that despite DASIS' responsibility to provide intensive case management, her "clients rarely get intensive case management from DASIS." Tr. at 489:17-18. Her trial testimony echoed her deposition testimony that her "experience is that the majority of [her] clients do not receive the benefits of the intensive case management services to which they are entitled." Tr. at 520:11-13.

90. Catherine Bowman is the Deputy Director of the HIV Project at Brooklyn Legal Services Corporation B. Tr. at 529:16-17. Ms. Bowman "was a case manager at DAS from August of 1989 through August of 1990." Tr. at 531:7-8.

91. Ms. Bowman has a current case load of approximately 30 clients, of which approximately 90% are also DASIS clients, and she deals with client issues relating to DASIS on a daily basis. Tr. at 533:11-18; 534:2-5.

92. Ms. Bowman testified that her "clients are generally there to see [her] because they are having problems accessing their benefits. So [she is] regularly seeing people who are experiencing a great deal of difficulty in getting the benefits to which they are entitled." Tr. at 537:25-538:3.

93. Ms. Bowman described a "wide variety of problems. Some of those relate to what is the failure of DASIS to provide intensive case management for people, which is required under The DASIS Law. There are also problems with people getting the precise benefits that they are entitled to. We see a lot of people who are getting the wrong amount of cash benefits, the wrong amount of food stamps; people who are living in inappropriate housing; people who are having difficulties accessing all sorts of services." Tr. at 538:7-15.

94. Ms. Bowman testified that she has seen cases in the last year where clients requiring home or hospital visits from DASIS did not receive those visits. In some cases, the result of the failure to make those home visits meant that her clients failed to recertify and their public assistance cases were closed. Tr. at 541:11-19; 542:2-8.

95. Ms. Bowman testified that the failure of DASIS to assist clients in locating and securing permanent housing is a "very big problem," and is a daily problem. In any given time in their office they will have 40 people in need of permanent housing. Tr. at 548:2-13. Tellingly, Ms. Bowman, who has worked on many cases testified that she has "actually never seen a DASIS caseworker help someone find a permanent residence." Tr. at 548:14-15.

96. Ms. Bowman described the consequences of DASIS' failure: "[W]e do have a few people who get evicted, despite the fact that we're trying to represent them. So, those people end up in SROs. More often, though, what this does is, it puts a burden on other agencies, ours included, and a lot of other community-based organizations that are providing case management for clients. And, in fact, this is such a pervasive problem for us that we have designed a booklet to give to clients, that has the names and phone numbers of all the community-based organizations that provide these services. And we actually also have realtor lists that we give out to clients. . . ." Tr. at 548:20-549:11.

97. Ms. Bowman testified that in all her experience working with DASIS clients, she has never seen a receipt. Tr. at 550:23.

98. Ms. Bowman also testified that 80% of her benefits cases have problems with DASIS not properly budgeting their cases. Tr. at 553:2-9.

99. Ms. Bowman further testified about the problem of having clients' public assistance cases closed, including that when a client's case is closed, "they don't have any money. . . ." Tr. at 555:24-556:5. Moreover, Ms. Bowman estimated that, "in about thirty percent of the cases that I see, the clients have no idea why their case was closed." Tr. at 555:22-23.

100. Additionally, once a public assistance case is closed, it can be difficult to reopen. "[I]t can be very easy or incredibly difficult, depending on the situation. Sometimes you can call a caseworker, and the case does get reopened quickly. And sometimes, you know, you can call fifty people and try to get it reopened, and no one can tell you why it was closed. And, you know, it's very difficult to get cases reopened, and sometimes we have to go to a fair hearing to have them reopened." Tr. at 556:6-17.

101. However, even winning a fair hearing for her clients does not necessarily get her clients' cases reopened. With respect to the City's compliance with fair hearing decisions, Ms. Bowman testified: "[W]e have a lot of difficulty with compliance. I would say in about seventy-five percent of the cases that we win fair hearings, that we have to struggle to get compliance." Tr. at 557:20-558:1.

102. Ms. Bowman explained to the Court her experience with defendants failure to comply:

THE COURT: So, if a judge says, open the case, reopen the case, and give the client $100 a month, have you had trouble enforcing decisions such as that?

WITNESS: Yes

THE COURT: How many times, what percentage of the time?

WITNESS: Well, I would say we see it — getting the cases reopened, but getting things adequately budgeted, I would say about half*fn6 the time it takes a lot of effort on our part to follow up and make sure that the budgeting is done properly.

THE COURT: Notwithstanding this court order?

WITNESS: Yes

Tr. at 558:2-14.

103. Mr. John Maher, the deputy director of field operations for DASIS, claimed to have reviewed the case files of the plaintiffs who testified. Although he claimed to see "some" receipts in those files, he admitted that there were not always receipts. Tr. at 838:21-22.

104. The closure of the service aspects of a DASIS case are not reviewed by the State defendant by fair hearings or otherwise. Tr. at 751:5-9.

105. Furthermore, Mr. Maher admitted that when DASIS disagrees with a fair hearing decision, it will reduce or close a case again and force the client to seek another fair hearing. Tr. at 759:24-760:6, 761:15-762:8.

106. In summary, Cynthia Knox and Cathy Bowman provide advocacy on behalf of DASIS clients at two of the city's largest community-based providers of advocacy and services to persons living with AIDS. Ms. Knox and Ms. Bowman provided testimony, through their extensive, daily experiences with DASIS, that the problems experienced by the individual class members are part of a systemic and widespread problem at DASIS. Ms. Knox testified that she has experienced "[e]xtensive problems in working with clients trying to access benefits and services through DASIS," tr. at 484:22-485:3, an observation echoed by Ms. Bowman. Tr. at 538:1-3 ("So I'm regularly seeing people who are experiencing a great deal of difficulty in getting the benefits to which they are entitled.") Both witnesses provided specific examples of the sorts of recurrent problems that DASIS clients face as a result of DASIS' failure to provide the assistance, and the reasonable modifications, that DASIS is supposed to provide: improper termination of cases without adequate notice, failure to timely process requests for assistance, and lack of intensive case management. See infra ¶¶ 87-88, 99-100, 77, 78-80, 89, 92-93. Both testified that DASIS case managers fail to make home visits, in some cases for an entire year, with tragic consequences. See infra ¶¶ 80, 94. Both testified that DASIS case managers rarely assist clients to obtain permanent housing. See infra ¶¶ 81, 95-96.*fn7 Both noted significant ongoing problems with misbudgeting a client's needs, depriving the client of the ability to buy the necessities of life, including food, toilet paper, and soap. See infra ¶¶ 85, 98. DASIS case managers "carry too many cases and are not able to do the work required of them to provide the services to clients," tr. at 512, and are unresponsive and out of reach. See infra ¶¶ 78-79. Even when a client obtains a fair hearing ordering DASIS to reopen a client's case and restore ongoing benefits, both testified that ensuring compliance was a struggle in up to seventy-five percent of cases. See infra ¶¶ 87, 100-102. Defendants, in fact, admitted in open court that such determinations were frequently flaunted. Mr. John Maher, DASIS' deputy director of field operations, admitted that even where a DASIS client wins a fair hearing concluding that DASIS wrongfully reduced or terminated the client's benefits, if "we believe we did the right thing, we take the action again." See infra ¶ 105.

Statistical Evidence of Systemic Problems With DASIS

107. At trial, plaintiffs presented an expert witness, Dr. Ernest Drucker, to address the statistical basis for plaintiffs' claims that DASIS experienced broad-based, systemic failure in achieving its mandate. Dr. Ernest Drucker is a professor of epidemiology and social medicine at Montefiore Medical Center who specializes in examining AIDS and its effects on the New York City population. He regularly uses and teaches about statistics in medical school. His curriculum vitae lists extensive publications regarding HIV and AIDS, as well as public health issues about homelessness and drug use. He has served on a number of advisory boards of HIV service organizations and he works for the Mayor's Office on AIDS Policy. Epidemiology is the field of medicine and public health that studies patterns of disease and populations. The science relies upon statistical analysis to examine differences in population and case incidences of disease. Tr. at 574:16-576:4, 580:20-22. See Pl.Ex.9.

108. From September to December 1997, Dr. Drucker conducted a case study of all applicants for housing at one specific housing facility who applied to DASIS for rental approval. Dr. Drucker examined the length of time from the date that a completed application was submitted to DASIS to the date the initial benefits were issued, or the date the application was denied. Out of 37 consecutive applicants, only 31 submitted completed applications, of which 21 were approved. Eight remained pending on the date the study ended, and two were denied. Dr. Drucker measured the applications that were still pending to the date that the study closed; this estimate of the length of the time was therefore a conservative measurement of how long it took for the benefit to be issued. Tr. at 583:2-586:6, 588:6-14. See Pl. Exs. 8, at 3-5, 8A.

109. In over 77% of those 31 cases, the City failed to meet its own mandated time frames of 20 business days or approximately 30 calendar days. For those applicants who were not acted upon with the legally mandated time frames, the median length of time was 63 days but the range for applicants was up to 132 calendar days. The considerable delays in the approval of rental assistance shown in this report provide probative evidence of delays that are typical and systemic. Tr. at 586:4-20, 588:21-589:8. See Pl.Ex. 8, at 4, 8A.

110. Shortly before trial, the City produced a report that claims to report the average timeliness of DASIS in providing certain benefits and services.*fn8 This data was a roster dated May 12, 2000, of over 2,500 applications for a certain class of benefits referred to as "Case-by-Case Financial Assistance" (CBCFA) that were received at DASIS' central office from October 1, 1999, to December 31, 1999, and that were in fact approved by the central office. The types of benefits listed include, inter alia, new apartment rents, rent increases and ongoing rent requests, rent arrears, clothing allotments, and home establishment. This data listed by client and by DASIS center when the client first requested the benefit, when a completed application was received at central office, when it was approved, when the benefit issued, and what benefit or service was requested. Tr. at 593:10-595:3, 869:15-20, 871:4-9, 871:10-14, 871:15-17. See Pl.Ex. 202.

111. When no date is reported for the issuance of a benefit, either no benefit had yet issued as of the date of the report or else DASIS' Control Unit had no record that the benefit was in fact issued. Although City defendants alleged that for some cases no record will ever exist, e.g. because the client has passed away, City defendants submitted no evidence that this was more than a de minimis number. Accordingly, given that the run date is over four months after the close of the quarter, this Court finds that relying upon the run date of the report is an adequate substitute for the date the benefit or service is issued for those applications for which nothing is yet reported. Tr. at 880: 9-18.

112. The DASIS Law*fn9 requires that Where no statute, law, regulation or rule provides a time period within which a benefit or service shall be provided to an eligible person who requests such a benefit or service, such benefit or service shall be provided no later than twenty business days following submission of all information or documentation required to determine eligibility.

N Y Admin. Code § 21-128(c)(2). In other words, if a person applies for a benefit or service and is determined to be eligible, DASIS must provide the benefit or service within twenty business days from the date the application is complete. Thus, using the City defendants' backup data, it is appropriate to determine timeliness by comparing when the completed application was submitted and when the benefit issued. Although Deputy Commissioner Caldwell stated he would use the "Approval" date for this purpose, the municipal law is clear. Furthermore, the testimony of Lloyd Kass, DASIS' Director of Quality Assurance, indicates that "Date In" is the last measuring date that could be used, since the operative legal date is the date the completed application was submitted, not when it is subsequently approved, and since all applications in question were in fact approved and thus eligible. More importantly, the date of the submission of the completed application is appropriately used because at that point the applicant has no more control over the processing and issuance of the benefit, and the onus rests with DASIS to perform in a timely manner. Tr. at 869:12-870:14. See Pl.Ex. 32.

113. To circumvent the vagaries in computing business days, and because twenty business days will include eight weekend days, the Court finds that thirty calendar days is a legitimate — and conservative — measurement for the twenty business day rule.

114. A manually tabulated summary of the data provided by City defendants revealed that throughout all of New York City, for all of the benefits and services tracked in the database, 32.9% of all eligible requests were not issued within thirty calendar days. In other words, approximately one-third of all benefits took more than thirty days to issue. As such, and by admission, DASIS is not complying with its own mandates and is violating the DASIS Law. Tr. at 598:9-13, 700:22-701:3, 701:17-702:15. See Pl. Exs. 202 and 203 at Col. 5.

115. Even more egregious, the Amsterdam, Kingsbridge and IHSU Waverly centers all failed timely to deliver benefits 44.6%, 45.4% and 46.9% of the time, respectively. The summary of timeliness of delivery of benefits for all applications at the various centers is set forth below:

Summary of CBCFA Data Provided By DASIS

Data Run Dated Friday, May 12, 2000

"Benefit Issued — Reporting Dates 10/1/99 To 12/31/99"

Total Calendar Days*fn* Percentage Range Center Applications ≤ 30 Days >30 Days >30 Days >30 Days

Amsterdam 148 82 66 44.6% 31-212 Bergen 294 232 62 21.1% 31-205 Brownsville 483 303 180 37.3% 31-221 Greenwood 349 226 123 35.2% 31-221 IHSU (Waverly) 256 136 120 46.9% 31-217 Kingsbridge 355 194 161 45.4% 31-224 Queensboro 261 209 52 19.9% 31-224 St. Nicholas 233 180 53 22.7% 31-205 Staten Island 67 61 6 9.0% 33-45 Waverly 122 100 22 18.0% 36-211

Total 2568 1723 845 32.9% 31-224


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