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