The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff the Mental Disability Law Clinic at Touro Law Center ("Law Clinic") brings this as yet uncertified plaintiff and defendant class actions on behalf of its constituents*fn1 under the Protection and Advocacy for Mentally Ill Individuals Act. 42 U.S.C. § 10801 et seq. ("PAMII Act").*fn2 Plaintiff alleges that New York Mental Hygiene Law ("MHL") § 9.60 ("Kendra's Law")*fn3 violates the Equal Protection Clause of the Fourteenth Amendment and the American with Disabilities Act. 42 U.S.C. § 12101 et seq. Plaintiff seeks declaratory and injunctive relief against the following defendants: Paul Hogan, in his official capacity as Commissioner of the New York State Office of Mental Health ("OMH") on behalf of himself and government operated inpatient and outpatient treatment programs; Thomas MacGilvray, in his official capacity as Director of Suffolk County Division of Community Mental Hygiene Services, on behalf of himself and all other community based providers of outpatient treatment; Marc Sedler, in his official capacity as Chairman of the Department of Psychiatry at University Hospital of the State University of New York at Stony Brook, on behalf of himself and state and local government operators of inpatient and outpatient treatment programs; and Paul Connors, in his official capacity as President and Chief Executive Officer of Eastern Long Island Hospital ("ELIH"), on behalf of himself and all other non-governmental inpatient providers of psychiatric treatment services (collectively "defendants").
Now before this Court are defendants' motions to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted and plaintiff's motion for class certification. For the reasons set forth below, defendants Hogan's, Sedler's, and MacGilvray's motions to dismiss pursuant to Rule 12(b)(1) are denied and their Rule 12(b)(6) motions are granted in part and denied in part. Defendant Connor's 12(b)(1) motion to dismiss is granted. Plaintiff's motion for class certification is granted in part and denied in part.
Except as otherwise noted, the following facts are taken from plaintiff's First Amended Complaint and the papers submitted by the parties in connection with these motions. For the purposes of defendants' Rule 12(b)(6) motions, the facts in the Amended Complaint are presumed to be true, as required by applicable case law. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
New York Mental Hygiene Law § 9.60, Kendra's Law as it is commonly known, was enacted, as briefly noted in footnote 3, supra, in 1999 to respond to the public outcry which arose following the death of Kendra Webdale, who was pushed off a subway platform by a mentally ill individual. The statute provides for court ordered "assisted" outpatient mental health treatment ("AOT") for persons who have been hospitalized twice within the past three years or who have acted violently towards themselves or others as a result of mental illness.
MHL § 9.60(a)(1) defines "assisted outpatient treatment" to mean: categories of outpatient services which have been ordered by the court pursuant to this section. Such treatment shall include case management services or assertive community treatment team services to provide care coordination, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local or unified services plan developed pursuant to article forty-one of this chapter, prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization.
New York Mental Hygiene Law § 9.60(c) states: A person may be ordered to receive assisted outpatient treatment if the court finds that such person:
(1) is eighteen years of age or older; and
(2) is suffering from a mental illness; and
(3) is unlikely to survive safely in the community without supervision, based on a clinical determination; and
(4) has a history of lack of compliance with treatment for mental illness that has:
(i) prior to the filing of the petition, at least twice within the last thirty-six months been a significant factor in necessitating hospitalization in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any current period, or period ending within the last six months, during which the person was or is hospitalized or incarcerated; or
(ii) prior to the filing of the petition, resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any current period, or period ending within the last six months, in which the person was or is hospitalized or incarcerated; and
(5) is, as a result of his or her mental illness, unlikely to voluntarily participate in outpatient treatment that would enable him or her to live safely in the community; and
(6) in view of his or her treatment history and current behavior, is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others as defined in section 9.01 of this article; and
(7) is likely to benefit from assisted outpatient treatment.
A treatment provider that wishes to provide compulsory outpatient treatment under Kendra's Law may do so only pursuant to an order of New York Supreme or County Court after the presentation of evidence. MHL § 9.60(e)-(j).
If an assisted outpatient fails or refuses to comply with treatment as ordered by the court; if efforts to solicit voluntary compliance are made without success; and if in the clinical judgment of a physician, the patient may be in need of either involuntary admission to a hospital or immediate observation, care and treatment pursuant to standards set forth in the Mental Hygiene Law,*fn4 then a physician may seek the patient's temporary removal to a hospital for examination to determine whether hospitalization is required. MHL § 9.60(n).
Plaintiff purports to represent a class ("Plaintiff Class") of "all individuals who (1) suffer from mental illness, (2) would pose a substantial threat of physical harm to themselves or others in the absence of compulsory treatment in the community but would not pose a substantial threat of physical harm to themselves or others if forced to undergo a regimen of outpatient treatment and (3) are not eligible for services under MHL § 9.60 because they do not meet the eligibility criteria for services." Brooks' Decl. in Supp. of Mot. for Class Cert. ("Brooks' Decl.") ¶ 6.*fn5
Plaintiff seeks to divide this purported class into two subclasses. The first, the State-Wide Subclass, is the same as the overarching Plaintiff Class. Brooks' Decl. ¶ 7. The second, the Suffolk County Subclass, consists of mentally ill individuals in Suffolk County who could avoid involuntary hospitalization if attempts were made to facilitate the provision of outpatient treatment pursuant to Kendra's Law as an alternative to inpatient care. Id. This subclass consists of individuals who are members of the Plaintiff Class and who are subject to involuntary hospitalization in facilities located in Suffolk County. Id.
Plaintiff also seeks to certify two defendant classes. The first would be comprised of all individuals responsible for the operation of treatment programs in New York State, by state or municipal governments, that, under Mental Hygiene Law article 9, provide treatment to individuals who suffer from mental illness on either an inpatient or outpatient basis (the "State and Local Government Class"). Id. ¶ 8. Plaintiff seeks to have defendants Hogan, MacGilvray and Sedler serve as the representatives of this class. FAC ¶ 27. The second defendant class would be comprised of individuals responsible for the operation of these treatment programs operated by non-governmental entities (the "Public Accommodation Class"). Brooks' Decl. ¶ 8. Plaintiff seeks to have defendant Connor serve as representative of this class. FAC ¶ 28. Lastly, plaintiff seeks to create a Suffolk County Defendant Subclass consisting of individuals in each defendant class who provide mental health treatment services in Suffolk County. Brooks' Decl. ¶ 9.
C. Individual Factual Allegations
Mary Jo C. ("Mary Jo") is an individual who suffers from a mental illness and is a constituent of the Law Clinic under the PAMII Act.
Mary Jo has suffered from mental illness for numerous years, but, until recently, had never been treated as an inpatient. Her condition, however, has deteriorated.
As a result of the deterioration of Mary Jo's condition, clinicians employed by a mobile crisis unit ("MCU") operated by Pilgrim Psychiatric Center, an OMH operated facility, visited Mary Jo and conducted psychiatric evaluations over a period of time. The MCU determined that a regime of psychotropic medication was necessary to treat Mary Jo. Mary Jo, however, failed to recognize that medication could help improve her clinical condition and refused to take medication.
During the period that Mary Jo's condition had been deteriorating, her brother, Harry, notified the Suffolk County Division of Community Mental Health Services ("CMHS") and requested that CMHS initiate proceedings that would culminate in outpatient treatment for Mary Jo pursuant to Kendra's Law. Harry, however, informed CMHS that Mary Jo had not been hospitalized within the last 36 months. Nor had she caused any physical harm to herself or others.
Instead of taking steps to effectuate outpatient treatment pursuant to Kendra's Law, the MCU transported Mary Jo to the Emergency Room at the University Hospital of Stony Brook. Doctors at Stony Brook concluded that Mary Jo required inpatient treatment and transported her to Eastern Long Island Hospital ("ELIH"). Mary Jo was admitted as an inpatient on September 15, 2007. She was discharged on October 3, 2007.*fn6
D. Plaintiff Class and State-wide Subclass Allegations
Generally, an assessment of dangerousness is a probability assessment in that it is a determination of the likelihood of an individual who suffers from mental illness causing harm to oneself or others. When making this assessment, a mental health professional applies a number of factors to determine whether the individual poses a substantial threat of causing harm to oneself or others.
An important factor when assessing whether a mentally ill person poses a substantial threat of causing harm is whether the individual will take medication to treat symptoms of mental illness. The likelihood of a mentally ill person taking medication frequently depends upon the existence of adequate supervision that will help ensure that the person takes medication. Case management services that are provided under Kendra's Law help ensure that a mentally ill individual continues to comply with a regimen of psychotropic medication.
E. Suffolk County Subclass Allegations
There has been little collaborative effort between Stony Brook, CMHS, mobile crisis units in Suffolk County and local psychiatric hospitals to develop a system in which outpatient treatment pursuant to Kendra's Law can be used as an alternative to involuntary hospitalization. There is accordingly little effort to determine if a person who is eligible for Kendra's law can receive outpatient treatment in lieu of involuntary hospitalization.
Many individuals subject to involuntary hospitalization are not causing harm or at immediate risk of causing harm at the moment that supervised inpatient care is deemed necessary. Rather, many individuals, including Mary Jo, begin to manifest an increased number of symptoms of mental illness over a period of time and are monitored by mobile crisis units.
Rarely to do these mobile crisis units utilize Kendra's law to facilitate outpatient treatment for individuals in lieu of inpatient treatment, although the dangerousness of many individuals could be alleviated through a regimen of drug and other therapy on an outpatient basis.
In considering a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must generally accept as true the factual allegations stated in the complaint, Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), and draw all reasonable inferences in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993). In addition to examining the complaint, however, a "court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated for reconsideration on other grounds, 505 U.S. 1215 (1992), reaff'd on remand, 999 F.2d 33 (2d Cir. 1993).
Congress has authorized PAMII organizations, such as plaintiff Law Clinic, to bring suit on behalf of their constituents if they can meet the traditional test of associational standing. See, e.g., Doe v. Stincer, 175 F.3d 879, 886 (11 Cir. 1999) (holding that, because a PAMII organization "represents the State's [individuals with mental illness] and provides the means by which they express their collective views and protect their collective interests," it "may sue on behalf of its constituents like a more traditional association may sue on behalf of its members"); Aiken v. Nixon, 236 F. Supp.2d 211 (N.D.N.Y. 2002).
To demonstrate associational standing, a PAMII organization must show that: (1) its constituents "would otherwise have standing to sue in their own right," (2) "the interests it seeks to protect are germane to [its] purpose,"*fn7 and (3) neither the claim asserted nor the relief requested requires the participation of individual [constituents] in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); see also Stincer, 175 F.3d at 885 ("The right to sue on behalf of its constituents, however, does not relieve [an] Advocacy Center of its obligation to satisfy Hunt's first prong by showing that one of its constituents otherwise had standing to sue . . .").*fn8 Plaintiff points to only one constituent who it alleges has standing to sue in her own right: Mary Jo. Defendants argue that Mary Jo does not have standing to seek the injunctive and declaratory relief requested in the Amended Complaint.
Initially, plaintiff, as it did before this Court in Monaco v. Stone, 2002 WL 32984617 (E.D.N.Y. Dec. 20, 2002), argues that, as a non-traditional plaintiff, prosecution of these claims by the Law Clinic, even if there were no constituent with standing, would satisfy the case and controversy requirement of Article III of the United States Constitution. I have rejected this argument once, writing:
Plaintiff Law Clinic rightly points out that the contours of the justiciability doctrine must be shaped with "reference to the purpose of the case-or-controversy requirements," United States Parole Comm'n v. Geraghty, 445 U.S. 388, 402, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), but it proceeds to argue its position by offering a limited view of that purpose. More than simply a means of assuring vigorous advocacy, the justiciability requirements are also designed to circumscribe the "role assigned to the judiciary," Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), to conserve judicial resources, see Erwin Chemerinsky, Federal Jurisdiction § 2.1 (3d ed. 1999), and to promote fairness by limiting courts' ability to adjudicate the rights of those who are not parties to an action, id. None of these objectives is served by carving out a special exception for plaintiff Law Clinic.
Nor does plaintiff Law Clinic's statutory mandate affect the outcome. While Congress may abrogate prudential limits on standing, the requirements of Article III remain. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 ...