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Disability Advocates, Inc. v. Paterson

September 8, 2009

DISABILITY ADVOCATES, INC., PLAINTIFF,
v.
DAVID A. PATERSON, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, RICHARD F. DAINES, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, MICHAEL F. HOGAN, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE OFFICE OF MENTAL HEALTH, THE NEW YORK STATE DEPARTMENT OF HEALTH, AND THE NEW YORK STATE OFFICE OF MENTAL HEALTH, DEFENDANTS.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge

MEMORANDUM & ORDER SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Supreme Court held in Olmstead v. L.C., 527 U.S. 581 (1999), that "[u]njustified isolation... is properly regarded as discrimination based on disability," observing that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life." 527 U.S. at 597, 600. The "integration mandate" of Title II of the American with Disabilities Act, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 791 et seq., as expressed in federal regulations and Olmstead, requires that when a state provides services to individuals with disabilities, it must do so "in the most integrated setting appropriate to their needs." The "most integrated setting," according to the federal regulations, is "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A.

Plaintiff Disability Advocates, Inc. ("DAI"), a protection and advocacy organization authorized by statute to bring suit on behalf of individuals with disabilities, brings this action on behalf of individuals with mental illness residing in, or at risk of entry into, "adult homes" in New York City with more than 120 beds and in which twenty-five residents or 25% of the resident population (whichever is fewer) have a mental illness. Adult homes are for-profit residential adult care facilities licensed by the State of New York (the "State").

Following a five-week bench trial, DAI has proven by a preponderance of the evidence that its constituents, approximately 4,300 individuals with mental illness, are not receiving services in the most integrated setting appropriate to their needs. The adult homes at issue are institutions that segregate residents from the community and impede residents' interactions with people who do not have disabilities. DAI has proven that virtually all of its constituents are qualified to receive services in "supported housing," a far more integrated setting in which individuals with mental illness live in apartments scattered throughout the community and receive flexible support services as needed. DAI has also proven that its constituents are not opposed to receiving services in more integrated settings. Therefore, DAI has established a violation of the integration mandate of the ADA and the Rehabilitation Act.

Defendants are the New York State Department of Health ("DOH"), the New York State Office of Mental Health ("OMH"), as well as Governor David A. Paterson and the Commissioners of DOH and OMH (collectively, "Defendants").*fn1 Defendants are required under New York law "to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill." N.Y. Mental Hyg. Law § 7.01; see id. §§ 5.07, 7.07. They administer the State's mental health service system, plan the settings in which mental health services are provided -- by both public and private entities -- and allocate resources within the mental health service system. See, e.g., N.Y. Mental Hyg. Law §§ 5.07, 7.07, 41.03, 41.42, 41.39; N.Y. Comp. Codes R. & Regs. tit. 18 §§ 485-87. In carrying out these duties, Defendants have denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs. Defendants' actions constitute discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act. Although Defendants have raised an affirmative defense, they have not satisfied their burden of proof to establish that the relief DAI seeks would constitute a "fundamental alteration" of the State's mental health service system. Accordingly, DAI is entitled to declaratory and injunctive relief.

I. BACKGROUND

DAI filed this suit on June 30, 2003, seeking declaratory and injunctive relief. (Compl. ¶ 34(Docket Entry #1).) Discovery concluded on November 14, 2006. On February 19, 2009, the court denied the parties' motions for summary judgment. Disability Advocates, Inc. v. Paterson ("DAI I"), 598 F. Supp. 2d 289 (E.D.N.Y. 2009). After considering a voluminous factual record of over 13,000 pages and approximately 675 exhibits, this court resolved a host of legal issues raised by the parties. See id. at 293-94. As threshold matters, the court concluded that: (1) DAI has statutory and Article III standing, (2) Title II of the ADA applies to DAI's claims in this case, and (3) the Governor is a proper party. See id. at 307-311, 313-19, 356-57. The court also discussed at length the components of the fundamental alteration defense. See id. at 333-39.

In DAI I, the court identified several issues for trial. To determine whether DAI's constituents are in the "most integrated setting appropriate for their needs," the court would have to determine at trial (1) whether adult homes are the most integrated setting appropriatefor DAI's constituents to receive services, and (2) whether DAI's constituents are "qualified" for supported housing. See id. at 319-20 (framing legal inquiry); id. at 331, 333 (concluding that issues of material fact precluded granting summary judgment to Defendants). The court also determined that issues of material fact remained as to the fundamental alteration defense, on which both sides had sought summary judgment. Id. at 349, 356.

The court presided over an eighteen-day bench trial from May 11 to June 16, 2009. The court heard testimony from State officials, mental health and other experts, lay witnesses with extensive experience in State government, service providers, and current and former adult home residents, two of whom now live in supported housing. Twenty-nine witnesses testified, more than three hundred exhibits were admitted into evidence, and excerpts from the deposition transcripts of twenty-three additional witnesses were entered into the record, along with the 3,500 page trial transcript. The parties submitted proposed findings of fact and conclusions of law on July 13, 2009 and responses on July 22, 2009.*fn2

The parties have engaged in numerous settlement discussions over the last six years.*fn3

After a recent round of settlement conferences before Magistrate Judge Marilyn D. Go, the parties remain unable to settle the case.*fn4 Accordingly, after considering all of the evidence, this court issues the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.*fn5

II. THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT

DAI I explains in detail the court's resolution of numerous legal issues in this case, including the meaning and application of Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act. See 589 F. Supp. 2d at 311-12, 331, 333-39. Here, the court provides a brief overview of the relevant legal standards. It then sets forth the core holdings of DAI I with respect to the applicability of Title II to Plaintiff's claims.

A. LEGAL STANDARDS

The ADA was enacted to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Congress recognized that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." Id. § 12101(a)(2). Congress found that "individuals with disabilities continually encounter various forms of discrimination, including... segregation." Id. § 12101(a)(5). Title II of the ADA prohibits discrimination in connection with access to public services, requiring that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; DAI I, 598 F. Supp. 2d at 311.

To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is a "qualified individual" with a disability; (2) that the defendants are subject to the ADA; and (3) that he or she was denied the opportunity to participate in or benefit from the defendants' services, programs, or activities, or was discriminated against by defendants, by reason of his or her disability. See Henrietta D. v. Bloomberg, 331 F. 3d 261, 272 (2d Cir. 2003); DAI I, 598 F. Supp. 2d at 311.

Section 504 of the Rehabilitation Act ("Section 504") similarly prohibits disability-based discrimination: "No otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). Claims under the two statutes are treated identically unless -- unlike here -- one of the "subtle differences" in the two statutes is pertinent to a claim. Accordingly, in this case the court treats the claims under Section 504 as identical to the ADA claims. Henrietta D., 331 F.3d at 272; DAI I, 598 F. Supp. 2d at 311 n.25. It is undisputed that DAI's constituents are individuals with disabilities who are protected by the ADA and Section 504.*fn6

One form of discrimination "by reason of... disability" is a violation of the "integration mandate" of Title II of the ADA and Section 504. This mandate -- arising out of Congress's explicit findings in the ADA, the regulations of the Attorney General implementing Title II, and the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999) -- requires that when a state provides services to individuals with disabilities, it must do so "in the most integrated setting appropriate to their needs." 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d); Olmstead, 527 U.S. at 607.

Delineating the scope of the ADA's integration mandate, the Supreme Court in Olmsteadexplicitly held that "[u]njustified isolation... is properly regarded as discrimination based on disability." Id. at 597. The Court noted that "in findings applicable to the entire statute, Congress explicitly identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination.'" Id. at 600. The Court recognized that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life... and institutional confinement severely diminishes individuals' everyday activities." Id. There is no federal requirement, however, "that community-based treatment be imposed on patients who do not desire it." Id. at 602.

In its analysis of the ADA's integration mandate in Olmstead, the Supreme Court deferred to the Attorney General's interpretation of Title II. See id. at 598 ("It is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.") (internal quotation marks and citations omitted). Thus, following Olmstead, courts have looked to the language of the Attorney General's regulations interpreting Title II, as well as the holding in Olmstead,as the standard by which to determine a violation of the ADA's integration mandate. See DAI I, 598 F. Supp. 2d at 313; Joseph S. v. Hogan, 561 F. Supp. 2d 280, 289-90 (E.D.N.Y. 2009); see also Townsend v. Quasim, 328 F.3d 511, 516, 520 (9th Cir. 2003) ("The plain language of the integration regulation [28 C.F.R. § 35.130(d)], coupled with the reasoning and holding of Olmstead, direct our analysis in this case.").

The Attorney General's regulations implementing Title II provide that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."*fn7 28 C.F.R. § 35.130(d); see also42 U.S.C. § 12134(a) (requiring the Attorney General to issue implementing regulations). The Appendix to the federal regulations defines the "most integrated setting" as "a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." 28 C.F.R. § 35.130(d), 28 C.F.R. pt. 35 app. A. As discussed in DAI I, the court defers to these definitions and applies them as the legal standard here.

A state's failure to provide services in the most integrated setting appropriate is excused only when the state can demonstrate that the relief sought would result in a "fundamental alteration" of the state's service system. See Olmstead, 527 U.S. at 603. The "fundamental alteration" defense is derived from the "reasonable modifications" regulation, which states that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7). A plurality of the Supreme Court described the defense as follows:

Sensibly construed, the fundamental-alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.

Olmstead, 527 U.S. at 604. As this court noted on summary judgment, evaluating the fundamental alteration defense involves a specific, fact-based inquiry to determine whether the requested relief would impose a "fundamental alteration" of the State's programs and services, taking into account Defendants' efforts to comply with the integration mandate with respect to the population at issue and the fiscal impact of the requested relief, including the impact on the State's ability to provide services for other individuals with mental illness. See DAI I, 598 F. Supp. 2d at 334.

B. DEFENDANTS ARE SUBJECT TO THE ADA AND THE REHABILITATION ACT

Title II of the ADA applies to "any State or local government" and "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1). Accordingly, all Defendants in this action are subject to the ADA. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209 (1998); see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997) (holding that zoning decisions are subject to the ADA and noting that "programs, services, or activities" is a "catch-all phrase that prohibits all discrimination by a public entity, regardless of the context."), rev'd on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n.7 (2d Cir. 2001).

Additionally, Defendants have stipulated that their programs or activities "receiv[e] federal financial assistance."*fn8 As such, they are subject to Section 504. 29 U.S.C. § 794(a).

In DAI I, the court held that Title II applies to DAI's claims in this case. DAI I, 598 F. Supp. 2d at 317; see id. at 319 (holding that DAI's "claim falls squarely under Title II of the ADA"). In doing so, the court rejected Defendants' argument that the State is not liable under the ADA because the adult homes are privately owned, and finding that it is "immaterial that DAI's constituents are receiving mental health services in privately operated facilities." Id. at 317; see Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999). The ADA requires public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d).

As the court previously held, Defendants' actions at issue here -- including the allocation of State resources among various service settings -- involve "administration." Defendants, as required by New York law, administer the State's system of mental health care, including residential and treatment services provided by both public and private entities. DAI I, 598 F. Supp. 2d at 317. They plan how and where services for individuals with mental illness will be provided, and they allocate the State's resources accordingly. Id. Defendants are also required under State law to develop a "comprehensive, integrated system of treatment and rehabilitative services for the mentally ill" that assures "the adequacy and appropriateness of residential arrangements" and relies on "institutional care only when necessary and appropriate." N.Y. Mental Hyg. Law §§ 7.01, 7.07. As this court previously held, "[t]he State cannot evade its obligation to comply with the ADA by using private entities to deliver services that are planned, implemented, and funded as part of a statewide system of mental health care." DAI I, 598 F. Supp. 2d at 318.

III. PLAINTIFF'S CLAIMS UNDER THE ADA AND REHABILITATION ACT

As set forth below, DAI has proven by a preponderance of the evidence that Defendants have discriminated against DAI's constituents by reason of their disability. DAI has established that the adult homes at issue are not the most integrated setting appropriate to the needs of DAI's constituents: the adult homes do not "enable interactions with nondisabled persons to the fullest extent possible," especially compared to supported housing, a far more integrated setting. DAI has established that virtually all its constituents are qualified to move to supported housing and are not opposed to receiving services in more integrated settings.

A. DAI'S CONSTITUENTS ARE NOT IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR NEEDS

1. Legal Standard

The law requires that public entities "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). According to the federal regulations, the "most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A. In DAI I, the court resolved the parties' dispute regarding the meaning of the federal regulations and concluded that the proper inquiry is whether the individuals at issue "are in the 'most integrated setting appropriate to their needs,' defined as 'enabl[ing] individuals with disabilities to interact with nondisabled persons to the fullest extent possible.'" See DAI I, 598 F. Supp. 2d at 321 (citing 28 C.F.R. § 35.130(d), App. A and concluding that "the federal regulations mean what they say").

2. Findings of Fact

a. Background

Adult homes are a type of adult care facility licensed by the State and authorized to provide long-term residential care, room, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator.*fn9 Adult homes are privately owned, for-profit facilities.*fn10 State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, physical and environmental standards, and services that must be provided in adult homes.*fn11

Defendants administer the State's system of mental health care, including residential and treatment services provided by public and private entities.*fn12 Defendant OMH licenses, funds, and oversees an array of mental health housing and support service programs statewide, including community support, residential, and family care programs.*fn13 OMH is also required by law to plan how and where New York's mental health services will be delivered.*fn14 In particular, OMH is obligated to "develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill" and to "create financing procedures and mechanisms to support such a system of services"; it relies on both public and private providers of those services.*fn15

OMH is also responsible for planning and developing programs and services "in the areas of research, prevention, and care, treatment, rehabilitation, education, and the training of the mentally ill."*fn16

The other Defendant agency, DOH, is responsible for, among other things, promoting the "development of sufficient and appropriate residential care programs for dependent adults."*fn17

DOH issues operating certificates to establish and operate adult homes.*fn18 The operating certificates must be reissued every four years.*fn19 DOH also licenses and monitors adult homes and enforces the applicable statutes and regulations*fn20 through unannounced inspections of each adult home every twelve or eighteen months, depending on the facility's record.*fn21 It can revoke, suspend, or terminate an operating certificate if an adult home fails to comply with State regulations,*fn22 or if DOH determines that such an action is in the public interest because it would conserve resources.*fn23

In 2002, there were 12,586 recipients of mental health services residing in adult homes statewide.*fn24 There are currently 380 licensed adult homes in New York State, and 44 adult homes in New York City.*fn25 Adult homes in which at least 25% of the residents or 25 residents (whichever is fewer) have mental disabilities are referred to as "impacted."*fn26 While the term "mental disabilities" includes both mental illness and developmental disabilities, only a few of the 12,000 individuals with mental illness who live in adult homes have developmental disabilities.*fn27 The testimony and exhibits concerning "impacted" adult homes refer to those homes with the requisite number of individuals who have "mental illness," a "mental health diagnosis," or "history of mental health diagnosis."*fn28 Defendants rely on information reported from the adult homes themselves to identify which homes are impacted.*fn29 Impacted adult homes must enter into a written agreement with a provider of mental health services for assistance with the assessment of mental health needs, the supervision of mental health care, and the provision of case management for residents enrolled in mental health programs.*fn30

i. The Adult Homes at Issue

According to the most recent data, the DOH Adult Care Facility Census Report for 2008 ("DOH 2008 Census Report"),*fn31 there are twenty-eight impacted adult homes in New York City with more than 120 beds.*fn32 These adult homes are: Anna Erika Assisted Living, Bayview Manor Home for Adults, Belle Harbor Manor, Bronxwood, Brooklyn Adult Care Center, Castle Senior Living at Forest Hills, Central Assisted Living LLC (formerly known as New Central Manor), Elm-York LLC, Garden of Eden, Lakeside Manor Home for Adults, Long Island Hebrew Living Center, Mermaid Manor Home for Adults, New Broadview Manor Home for Adults, New Gloria's Manor Home for Adults, New Haven Manor, Oceanview Manor Home for Adults, Park Inn Home for Adults, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor Home for Adults, Rockaway Manor Home for Adults, Sanford Home, Scharome Manor, Seaview Manor LLC, S.S. Cosmas and Damian Adult Home, Surf Manor Home for Adults, Surfside Manor Home for Adults, and Wavecrest.

Reports).) During the testimony of Defendants' witness Mary Hart, the court asked Defendants to provide the current census data. (See Tr. 3044.) Defense counsel stated that "[w]e can... I think it would be possible for us to stipulate on the final '08 figures for those homes." (Id.) Following trial, Defendants produced P-774, but would not stipulate to its admission. (See Decl. of Liad Levinson, Exs. A, E, & F (Docket Entry #324).)

The DOH 2008 Census Report is admissible as a business record under Rule 803(6) of the Federal Rules of Evidence, because census reports reflecting the number of residents with mental illness living in adult homes are regularly compiled and maintained by DOH in the course of business, and the data contained in the reports is audited by DOH. (Tr. 3042-43 (Hart).) The court rejects the contention that admitting the DOH 2008 Census Report into evidence would prejudice Defendants by effectively permitting DAI to amend its Complaint to include additional adult homes. (Defs. Opp. (Docket Entry #327).) Defendants have been on notice for more than six years that the adult homes at issue in this litigation are impacted adult homes in New York City with more than 120 beds. (Compl. ¶ 34.) It is Defendants -- not Plaintiff -- that determine whether particular adult homes are "impacted" based on the adult homes' annual reported data. (Tr. 2996-97 (Hart).) Whether there are additional adult homes in addition to the "approximately 26 adult homes" listed in the Complaint in 2003 (id. ¶ 35 (emphasis added)) that DOH now identifies as impacted does not materially affect the resolution of Plaintiff's claim. In any event, Defendants did not object to the admission of the 2004, 2005, and 2006 DOH Census Reports, which also indicate that certain adult homes in New York City not listed in the Complaint are impacted and have more than 120 beds. (See P-283.) The Complaint does not allege that any particular adult home is itself liable under the ADA and Rehabilitation Act; instead, it challenges Defendants' use of large, impacted adult homes in New York City as a setting in which individuals with mental illness receive services. Accordingly, Plaintiff's Motion To Admit P-774 in Evidence is GRANTED.

As of December 31, 2008, each of these adult homes housed more than one hundred residents, and seven housed over two hundred residents.*fn33 More than eighty percent of the residents in these twenty-eight adult homes are reported as having mental illness.*fn34 In eighteen homes, more than 95% of the residents have mental illness, and in nine homes, 100% of the residents have mental illness.*fn35 In only four homes do less than 50% of the residents have mental illness.*fn36 According to the DOH 2008 Census Report, more than 4,300 individuals with mental illness were living in these adult homes on December 31, 2008.*fn37

Certain details of operation and resident population of the adult homes may vary, but as a factual matter, there are no material differences among these adult homes with respect to the issues in this case.*fn38 As used below, "Adult Homes" refers to impacted adult homes in New York City with more than 120 beds.

ii. The Development of Adult Homes in New York State

Adult homes in New York State were originally designed to house the "the frail elderly," not people with psychiatric disabilities.*fn39 They became a place for people with mental illness to live and receive services when the State began to deinstitutionalize its State psychiatric hospitals in the early 1970s, and State psychiatric hospitals began discharging patients directly into adult homes.*fn40 As former OMH Commissioner James Stone noted, adult homes developed because "community resources weren't up to speed with state operated bed reductions" resulting from deinstitutionalization.*fn41 Thirty years ago, New York State and New York City government reports referred to adult homes as "de facto mental institutions" and "satellite mental institutions."*fn42 According to Linda Rosenberg, a former Senior Deputy Commissioner of OMH who worked in the State's mental health system from the early 1970s to 2004, OMH's approach to the community integration of people with severe mental health issues evolved over the years, and "it became increasingly clear that [adult homes] were neither desirable, nor would they really promote people's recovery and integration and full social inclusion."*fn43

iii. Adult Homes Continue To Be a Discharge Option from Psychiatric Hospitals

Adult homes have long been, and continue to be, a discharge option for individuals leaving psychiatric hospitals.*fn44 Numerous current and former Adult Home residents testified that they were discharged from a psychiatric hospital into an Adult Home.*fn45 The percentage of people discharged from psychiatric hospitals into adult homes in New York City declined significantly from the mid-1990s to 2005,*fn46 which Ms. Rosenberg testified "speaks to our belief [at OMH] at that time and I think it continues now that adult homes are not desirable places to live."*fn47 Nonetheless, OMH made efforts in 2008 to facilitate discharges from State hospitals in the New York City area to adult homes in New York City, including a number of the impacted Adult Homes at issue in this litigation.*fn48 In particular, OMH's Director of Case Management Services, Mitchell Dorfman, made recommendations for referrals to adult homes, including the Adult Homes at issue in this litigation, for psychiatric patients who had been approved for supported housing.*fn49 Mr. Dorfman also told adult home operators concerned about the fiscal impact of a recent legislative initiative to provide 60 beds of supported housing to Adult Home residents*fn50 that "in whatever way we can help facilitate referrals to the adult home we would work with you and do that."*fn51 High-level State employees in OMH's central office, including Robert Myers, OMH's Senior Deputy Commissioner for Adult Services, were aware of these recent efforts to facilitate discharges from state psychiatric hospitals to impacted Adult Homes, and did not express any concerns or stop this process.*fn52

b. Adult Homes Are Institutions That Segregate Individuals with Mental Illness from the Community

i. Adult Homes Are Institutions

The overwhelming evidence in the record compels the court to find, as a factual matter, that Adult Homes are institutions.*fn53 Indeed, in its June 4, 2007 "Guiding Principles for the Redesign of the Office of Mental Health Housing & Community Support Policies," OMH characterizes adult homes as institutions: as a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with mental illness are poorly housed or institutionalized. Thus, many people with mental illness are "stuck" in... institutional settings (nursing homes, adult homes, state psychiatric centers).*fn54

The court uses the term "institution" as defined by Elizabeth Jones, one of DAI's experts, who explained that: "[An] [i]nstitution, in my mind, and in my experience, and in the literature, is a segregated setting for a large number of people that through its restrictive practices and its controls on individualization and independence limits a person's ability to interact with other people who do not have a similar disability."*fn55

As set forth more fully below, the evidence demonstrates that Adult Homes have the characteristics Ms. Jones described. Witnesses for both sides testified that Adult Homes share many salient features of State psychiatric hospitals. First, Adult Homes house a large number of people with psychiatric disabilities in a congregate setting.*fn56 As Defendants' expert Alan Kaufman observed, "significant numbers of residents suffer from serious mental illness.... The number of beds in many of the larger Adult Homes, as well as their physical layout, furnishings, and decorations, also give an appearance similar to that in an institutional setting."*fn57

Second, life in the Adult Homes is highly regimented. Adult Homes, like other types of institutions, "are designed to manage and control large numbers of people... by eliminating choice and personal autonomy, establishing inflexible routines for the convenience of staff, restricting access, implementing measures which maximize efficiency, and penalizing residents who break the rules."*fn58 In particular, there are inflexible schedules for meals, taking medication, receiving public benefits, and other daily activities.*fn59 Residents are assigned roommates and are required to sit at a specific seat at a specific table in the cafeteria; they must seek permission to change these assignments.*fn60 Most Adult Home residents line up to receive their medications at scheduled times.*fn61 Long lines also form for receiving personal needs allowances, the portion of residents' Supplemental Security Income allocated for the residents' personal use.*fn62 Witnesses observed that Adult Homes had the look and feel of "back wards" of State hospitals and were "reminiscent of a state psychiatric hospital and its culture."*fn63

Adult Homes are not identical in all respects to psychiatric hospitals, however. In some ways, Adult Homes are even more restrictive or "institutional" than psychiatric hospitals. For example, Plaintiff's expert Dr. Kenneth Duckworth testified that in his experience, unlike the Adult Homes, psychiatric hospitals do not have assigned seating for meals and do not necessarily distribute medication at mealtimes.*fn64 Ms. Jones testified that lines at the Adult Homes, which had "200, 400 people all mingling together and standing in line for medication," were longer than those at psychiatric hospitals, because psychiatric hospitals are divided into wards of approximately twenty people.*fn65 In certain respects, however, Adult Homes are less restrictive than psychiatric hospitals. For example, Adult Homes do not have a "privilege" system that explicitly limits residents from leaving the grounds, as is common in psychiatric hospitals.*fn66 In addition, because adult homes are prohibited by law from housing people who are a danger to themselves or others,*fn67 they do not impose some of the restrictions psychiatric hospitals place on their patients, such as restricting access to mail, limiting smoking at certain times of day, or prohibiting them from carrying matches.*fn68

Nonetheless, Adult Homes bear little resemblance to the homes in which people without disabilities normally live.*fn69 As Defendants' expert Mr. Kaufman observed, medical and mental health staff are a constant presence in Adult Homes.*fn70 Meals, medication, phone calls, and mail deliveries are announced over a public address system.*fn71 Privacy is extremely limited. The Adult Homes have large numbers of residents and staff, and there are few or no private spaces in which to receive visitors or talk on the phone.*fn72

Residents of Adult Homes are subject to an extensive and significant set of rules.*fn73 For example, Adult Homes restrict when and where residents may receive visitors; restrict when residents may be absent; and require visitors to sign in and state the purpose of their visit.*fn74 In addition, while some of the Adult Homes do not have curfews,*fn75 other Adult Homes have evening curfews after which doors are locked and residents must be admitted by staff.*fn76 In some Adult Homes, residents are not provided keys to the front doors,*fn77 and residents sometimes have trouble getting back into their buildings.*fn78 Even in Adult Homes without a curfew, residents may be required to notify staff each time they leave the facility.*fn79 Some Adult Homes prohibit residents from decorating their rooms, though others do not.*fn80 Some residents have expressed fear that they will be subjected to retaliation if they do not follow the Adult Home's rules or complain about the Adult Home, and some have been arbitrarily penalized.*fn81

The court is persuaded by the opinion of Ms. Jones and DAI's other experts, as well as lay witnesses who testified based on their personal observations, that the Adult Homes are institutions: segregated settings that impede residents' community integration.*fn82 Ms. Jones, who spent seventy-five hours in twenty-three Adult Homes in both scheduled and unannounced visits explained:

I can't state strongly enough that these facilities are institutions. These facilities are like the institutions that I worked in when I started my career. These are settings that are caught in time almost. They are not like even the psychiatric settings of today where I've been a director. These are outdated institutional facilities that restrict and constrain people's freedom and their ability to learn and exercise skills. These are the buildings and the places that were here in the '70s when my career started, when the court cases were first entered into. These facilities do not represent current practice in the mental health field.*fn83

As Dr. Duckworth testified, "[t]he adult homes have... some of the elements of a homeless shelter and some of the elements of a state hospital. The culture is quite institutional in some ways, even more institutional than a state hospital in my opinion."*fn84 Similarly, former OMH Senior Deputy Commissioner Ms. Rosenberg described Adult Homes as "institutional living at, potentially, its worst."*fn85 She observed that Adult Homes "impede community integration" and are "little ghettos" with "people sitting out front [of] the adult home, smoking, going back in, sitting in the lobby, not much going on and not much exposure to the rest of the world."*fn86

Residents live in bedrooms with assigned roommates, eat meals only at set times, live exclusively with other people with serious mental illness, and are completely "defined by their illness."*fn87

ii. Much of Residents' Daily Lives Takes Place Inside the Adult Homes

Much of Adult Home residents' daily lives takes place inside the Adult Homes. As Ms. Jones observed, "[t]here is a large number of people who seem to stay in the homes and don't really go out a whole lot at all."*fn88 Residents spend most of their days in activities organized for them by the Adult Homes and/or mental health providers associated with the Adult Homes. Adult Homes are required to provide a program of activities in the facility as well as in the community,*fn89 and DOH has cited Adult Homes for failing to provide a sufficient program of activities.*fn90 Activities provided by Adult Homes include games, puzzles, and other child-appropriate leisure activities.*fn91 For example, activities provided on-site at Riverdale Manor through the case management program include computer games suitable "for a three- or four-year-old,"*fn92 and a calendar of recreational activities at Surfside Manor lists activities such as beads, nail painting, and bingo.*fn93 A former Adult Home resident testified that the activities "had you coloring, like a little kid; you play Bingo, like a little kid; you play domino, like a little kid; and you play cards, like a little kid."*fn94 When asked at trial about the Adult Home's activities, an Adult Home resident answered, "[t]hey really don't have too much of anything. It's like just maybe playing cards, cribbage, puzzles, stuff like that; but they really don't have anything much to do."*fn95 Adult Homes also arrange for religious services and musical performances inside the facilities.*fn96

Many Adult Home residents also see medical and mental health professionals inside the facilities. In general, residents are assigned doctors and psychiatrists, usually on-site in the Adult Homes, and are told when to see the treatment providers.*fn97 For example, Park Inn contracts with local medical facilities and psychiatric centers that provide on-site doctors, psychiatrists, and social workers, and the majority of residents of Park Inn attend on-site mental health clinics and are treated by on-site doctors and mental health professionals.*fn98 Because Adult Homes almost always hold residents' Medicaid cards, residents generally see the providers selected by the Adult Homes -- many of which have a financial interest in controlling who provides medical care to residents*fn99 -- and residents must ask permission to access community-based care.*fn100 Unless residents are involved in an off-site mental health program, they do not have much interaction with individuals outside of the Adult Home setting.*fn101 When they do leave the facility to attend mental health programs, they are transported to the programs in ambulettes, buses, or vans, and their time in the programs is spent with other individuals with mental illness.*fn102

While Adult Home residents have the right to "leave and return to the facility and grounds at reasonable hours,"*fn103 in practice they are limited in the times that they can leave the Adult Homes, due to the rigid schedules for meals, medications, and distribution of personal needs allowances.*fn104 For example, while residents are not precluded from eating outside of the Adult Home, they must be present at times when their medication is dispensed, usually at meal times and at nighttime, or they are penalized.*fn105 Facility rules for another Adult Home require residents to notify a "staff supervisor" if they will miss a meal.*fn106 While Adult Home residents have the right under State regulations to manage their own medications,*fn107 there is overwhelming evidence that the vast majority of Adult Home residents are not permitted to administer their own medication.*fn108 A few residents have successfully reclaimed their right to self-administer their medication by obtaining their doctor's permission to do so.*fn109

iii. Residents' Access to Neighborhood Amenities

There is evidence that some Adult Home residents visit, to varying extents, neighborhood amenities, such as stores, parks and/or beaches, restaurants, libraries, religious institutions, and entertainment facilities.*fn110 The testimony of current and former Adult Home residents demonstrates, however, that not all residents leave the facilities, and those who go out do not do so often, nor do they spend significant amounts of time outside of the facility. For example, one resident testified that a few residents never leave the Adult Home building, and estimated that "maybe ten" of the other residents visited the nearby boardwalk.*fn111 A former resident testified that he attended church outside the facility, but only on a total of three occasions during the entire time he lived in the Adult Home.*fn112 Another former Adult Home resident testified that only eight of the 216 residents went to restaurants in the neighborhood; and that he has only seen a handful of residents leave the facility to go shopping, go to the park, or attend religious services.*fn113 Another resident testified that residents walk around the neighborhood and go outside the facility to shop for toiletries and other items roughly ten to fifteen times per year, but no more than three residents go to a park.*fn114 He also testified that residents eat out to the extent their monthly funds allow it because the food at the facility is so bad, and that while he goes out of the facility to get food, he does "most of [his] eating in the building up in [his] room."*fn115

In addition, while the Adult Homes are located near some neighborhood amenities such as stores, fast-food restaurants, libraries, parks, churches and synagogues, and beaches and/or boardwalks,*fn116 accessibility depends on how far particular residents can walk.*fn117 The Adult Homes are located within several blocks of public transportation,*fn118 but the familiarity of Adult Home residents with public transportation varies, as does the frequency with which the residents use public transportation.*fn119 Some Adult Home residents have reduced-fare Metrocards.*fn120 One Adult Home resident testified that she "do[es]n't really know the buses" in the neighborhood but has taken the bus more than twice, that she is unfamiliar with the subway and has only taken it once since living in the Adult Home, and that she mostly gets around by walking.*fn121 Others are more familiar with public transportation; for example, when G.L. lived in the Adult Home, he took public transportation with his roommate approximately once per month to stores.*fn122 There is evidence that a handful of residents have traveled via public transportation to entertainment or cultural events in Manhattan.*fn123

When asked whether she had observed residents coming and going from the Adult Homes, Ms. Jones testified that:

Some residents do; some residents are quite capable. These residents have worked around the routine of the day and make trips to the local resources, may get on a bus and go somewhere. People's ability to go out of the adult home is impacted, of course, by the fact that they have little free money to use for those types of things. But, again, there are many, many people who don't do that, who stay in their room, who stay in the day room, or who sit outside on the perimeter of the adult home smoking cigarettes and, you know, being with other adult home residents.*fn124

She testified that the fact that some Adult Home residents come and go does not change her conclusion that Adult Homes are segregated settings, because "there is nothing in the adult home that's contributing toward the integration of people in their communities."*fn125 She explained that "[t]he people that are going out and doing things in their community, in their neighborhood, are people who have taken that initiative upon themselves. The people that need support in doing that are not being assisted by the adult home to have those interactions...."*fn126

iv. Organized Trips

The Adult Homes and mental health programs take residents on organized trips,*fn127 and the regulations require adult homes to arrange for "resident participation in community-based and community-sponsored activities."*fn128 Such outings contribute little to residents' integration into the community, however. The residents generally travel as a group, in a bus or van, and interact mainly with each other.*fn129 At Park Inn Home for Adults and numerous other Adult Homes, the number of residents who can go on each trip is limited to the number of persons that can fit in a van.*fn130 Before Park Inn recently acquired a van, it used ambulettes to take groups of residents on monthly outings to restaurants and movies.*fn131 Seaview takes between ten and twenty residents each month to Wendy's.*fn132 Residents of Riverdale Manor Home for Adults are taken by a mental health provider, the Federation of Employment and Guidance Services ("FEGS"), on "field trips" to museums and libraries, but the visits are after hours when the facilities are closed to the general public.*fn133

v. The Adult Home Setting Limits Residents' Opportunities To Interact with People Who Do Not Have Disabilities

Overall, Adult Homes provide little support or encouragement for residents to interact with people who do not have disabilities or to become integrated into the community and limit opportunities for social interaction and employment.*fn134

As Plaintiff's and Defendants' experts agree, and as Adult Home residents testified, Adult Homes limit the development of relationships with people who do not have disabilities, including social contacts.*fn135 While Adult Home residents form friendships and romantic relationships with other Adult Home residents,*fn136 many residents testified that they lack friends outside the Adult Home, and to the extent such friendships exist, they often predate their admission to the Adult Home.*fn137 While some residents have spoken to or met people on the street,*fn138 other residents testified that they do not know anyone or have any friends outside of the Adult Home.*fn139 For example, J.M. testified that when he lived in the Adult Home, he talked to people in the neighborhood and visited a woman in her home, but that he had never seen any other residents of the Adult Home speaking to people in the neighborhood.*fn140 One resident testified that "I met one person once [in the neighborhood] and when they find where you are from, they avoid you."*fn141 Another resident testified that "[y]ou're in program, you're in home. All your energy is surrounded with the home, so it's hard to meet different people."*fn142

Some residents testified that they feel isolated living in the Adult Homes.*fn143 For example, one resident testified that "the first seven years I lived at [the Adult Home] I basically gained 135 pounds feeding my loneliness."*fn144 While it is possible for a person to feel isolated in any setting, including supported housing,*fn145 Defendants' expert Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated than residents of group homes.*fn146

Some Adult Home residents have visitors, although as noted above, Adult Homes place significant restrictions on receiving visitors, such as visiting hours and requirements that visitors sign in.*fn147 For example, a former Adult Home resident testified that his stepfather visited him in the Adult Home, but that his stepfather and others visit him more frequently now that he lives in supported housing, because in the Adult Home there was nowhere to have a private conversation, the visiting areas were small, guests could not join in meals, guests had to sign in, guests were not allowed to stay overnight, and visiting hours ended at 8 p.m.*fn148 One resident testified that her sister and niece visited her "about twice" since she moved to the Adult Home and that both times, they went out to eat; she testified that she did not want to spend time with them in the Adult Home, because her roommate stays in the room most of the time, and she did not want to take her visitors "downstairs" or to the "smoking room."*fn149 Another resident testified that she receives no visitors other than family members, and that they cannot spend time with her at the Adult Home because the staff gets in the way.*fn150 Another resident testified that her sister sometimes picks her up and takes her to the sister's house, but when asked whether her sister visits with her inside the Adult Home, she answered only that her sister had "been inside" the Adult Home before.*fn151 A resident testified that he never has visitors at the Adult Home,*fn152 while another resident testified that no friends visit her but several relatives do, and that she sees them in the lobby.*fn153

Not many Adult Home residents visit family and friends outside the Home,*fn154 and the ones who leave to visit people do so to varying extents.*fn155 Hinda Burstein, the administrator of Park Inn, testified that residents of Park Inn "occasionally" leave the facility to visit their families.*fn156 She estimated that approximately ten percent of the residents have made weekend visits to their families, and some residents have traveled out of state to visit relatives.*fn157 An Adult Home resident testified that he has visited a friend outside the Home only six times in nine years, estimated that about 25% of the residents visit their relatives outside the Adult Home (but that the most frequently anyone visited a relative outside the home is twice per month), and stated that he knew of one resident who stayed overnight at his mother's house in the neighborhood.*fn158 Another resident testified that he does not have any family and friends outside the Adult Home with whom he keeps in touch.*fn159

As numerous witnesses testified, the Adult Home setting limits opportunities for residents to pursue employment opportunities.*fn160 For example, Dr. Jeffrey Geller, one of Defendants' experts, agreed that living in a place where the phone is answered "Brooklyn Adult Care Center" "diminishes your work options and social contacts."*fn161 Very few Adult Home residents are employed or have volunteer positions outside of the Adult Home,*fn162 and such jobs are often short-lived. For example, one resident testified that a social worker helped him obtain a previous job as a messenger, but he was fired after seven weeks.*fn163 Another resident testified that he kept his previous job at a newsstand once he was admitted to the Adult Home, but the job now occupies only three to four hours per week and no longer involves interacting with customers.*fn164

Another resident "helped out" at a coffee cart as a volunteer for a year.*fn165 A very small number of residents participate in vocational training; for example, eight to twelve out of the 181 residents at Park Inn participate in vocational training.*fn166 There is evidence that one Adult Home resident obtained a GED since she moved to the Adult Home in 1985.*fn167

vi. Mental Health Programs and Case Management Contribute Little to Residents' Integration into the Community

Many Adult Home residents with mental illness receive mental health services from a variety of sources, including clinics, continuing day treatment programs ("CDTs"), and private practitioners.*fn168 Adult homes are also required to provide basic case management services,*fn169 and OMH's Case Management Initiative funds independent case managers in eleven of the Adult Homes.*fn170 While some residents leave the facilities to attend CDT or other mental health programs, attending these programs contributes to residents' isolation and separation from the mainstream of community life.*fn171

The court heard testimony from service providers from nonprofit agencies that run mental health programs serving Adult Home residents. For example, Susan Bear testified about OMH-licensed CDTs run by the Jewish Board of Family and Children's Services ("Jewish Board"), which have groups that focus on symptom management, spirituality, meditation, relationship building, medication management, cooking, and computers.*fn172 Licensed CDT programs run by FEGS, serving Adult Home residents both on-site and off-site, are intended to help clients use community resources, learn self-care and self-medication, and prepare for employment.*fn173

While CDT programs have laudable goals for participants, the evidence demonstrates that they have little focus on skill development.*fn174 A December 2006 review by the New York State Commission on the Quality of Care for and Advocacy for Persons with Disabilities ("CQC")*fn175 of CDT programs noted a "disconnect" between participants' life goals of gaining independent living and job skills and the goals that the programs had set for them.*fn176 The CQC report found that some day treatment programs are characterized by group television and movie watching and art "programs," which may only involve the provision of crayons, markers, and coloring books.*fn177 Because Defendants concede that CDT programs are "outdated," they are trying to make CDTs and other mental health services "more evidence-based and recovery-oriented,"*fn178 while also directing funds away from these types of programs.*fn179

One Adult Home resident testified that he had been attending a CDT program for fourteen years where he and seventeen or eighteen other residents "go to groups all day" in which providers "try to get us ready for the outside."*fn180 He testified that the groups offered "skills training" and that the groups "sometimes" talked about jobs, but he could not remember anything that was said about jobs, and the group leaders never talked about applying for jobs, writing resumes, or looking in classified ads.*fn181 Another resident testified that the mental health program he attends, which "gives you something to do during the day," provides arts and crafts, and sometimes movies and Bingo, but that the program does not offer any classes or self-help groups, does not talk about jobs, and has taken participants on only two trips, both to Chinese restaurants.*fn182

Case management is also designed to help residents with independent living skills. Defendants' witnesses testified that case managers work with residents to help the residents learn about shopping, accessing community resources, and taking public transportation.*fn183 For example, Frances Lockhart testified that case managers from Federation of Organizations ("Federation") teach Adult Home residents how to shop for clothes.*fn184 An Adult Home resident testified, however, that while Federation takes residents shopping for clothes twice per year, "they don't give you the money in your hand and let you buy your own clothes."*fn185 Ms. Burstein testified that at Park Inn, case managers informally assist two or three residents at a time with using the computer, and that that the "more sophisticated" residents use the internet to look for jobs, buy clothing, or enter "chat rooms."*fn186 As Mr. Jones testified, the OMH Case Management Initiative primarily "arrange[s] services within the existing setting," it does not "deal frontally with the issue of where people live."*fn187

To the extent that mental health programs or case management aim to teach independent living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice these skills in their present living situation.*fn188 Experts for both sides testified that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live.*fn189 For example, residents are unlikely to learn to cook in the Adult Home environment simply because a training kitchen is installed.*fn190 Therefore, while it is possible for Adult Home residents to benefit to some extent from these programs,*fn191 the weight of the evidence shows that they are unlikely to gain a significant benefit from this type of training or develop any lasting skills.*fn192 Inspections of the Adult Homes have cited violations related to residents' rights and ability to participate in their surrounding community and to learn independent living skills.*fn193

vii. Adult Homes Discourage Residents from Engaging in Activities of Daily Living and Foster "Learned Helplessness"

The Adult Homes foster what witnesses for both sides have referred to as "learned helplessness": when individuals are "treated as if they're completely helpless, the helplessness becomes a learned phenomenon."*fn194 This is consistent with Defendant OMH Commissioner Hogan's testimony to the Legislature that in institutions in general, "the skills of community living are eroded by the routines of institutional life."*fn195 The Adult Homes discourage -- and some outright prohibit -- residents from cooking,*fn196 cleaning,*fn197 doing their own laundry,*fn198 and administering their own medication.*fn199 The Adult Homes also generally manage residents' personal needs allowances, distributing cash to residents on specified dates and times.*fn200 The result is that Adult Home residents lose skills that they had prior to living in the Adult Home -- such as medication management -- because they are forbidden from practicing those skills in the Adult Home.*fn201 As one former Adult Home resident testified, "[W]hen you go to an adult home, number one, you're treated like a little kid. And if you stay there long enough, you're going to act like a little kid and you ain't going to want to leave because you being taken care of... it's like an institution to me."*fn202 Similarly, another former resident testified, "the adult home fosters complete dependency upon them to do everything for you, discourages independence...."*fn203

Plaintiff's expert Dennis Jones -- who had been the Commissioner of Department of Mental Health in two states and a transitional receiver for the District of Columbia's public mental health system -- testified that Adult Homes are a "residency based model which means the goal there is not really to promote independence, it's to promote dependence and sustain dependency."*fn204

That the Adult Homes are a setting that fosters learned helplessness, however, does not mean that the individuals who live in the Adult Homes are helpless, or that they cannot and do not manage their activities of daily living. To the contrary, the evidence set forth below demonstrates that Adult Home residents are not materially different from individuals with mental illness who live and receive services in the community.*fn205 As Plaintiff's expert Elizabeth Jonesobserved, the high degree of independence exhibited by many Adult Home residents is particularly striking given the tendency of individuals to appear more dependent and disabled when they are observed in institutional settings such as Adult Homes.*fn206 In addition, some of the current and former Adult Home residents who testified in this case engage in advocacy on behalf of Adult Home residents -- they lobby State government, participate in rallies, and attend meetings of advocacy organizations for individuals with mental illness.*fn207

viii. Defendants' Experts Did Not Rebut the Overwhelming Evidence That Adult Homes Are Institutions, Segregated Settings That Impede Community Integration

Defendants presented two experts, Alan Kaufman and Dr. Jeffery Geller, to rebut the evidence that Adult Homes are segregated settings that impede community integration. Defendants' experts highlighted, for example, that the Adult Homes are in urban settings and that because residents are not locked in the facilities, they have opportunities to come and go.*fn208 But even if the Adult Homes are not as restrictive as psychiatric hospitals in some respects, they nonetheless are segregated, institutional settings that impede integration in the community and foster learned helplessness. As described below in Part III.A.2.c, the State's supported housing program provides far more opportunities for community integration than do Adult Homes. As explained by Michael Newman, the Director of OMH's Bureau of Housing Development and Support, 120 people living in a congregate setting in which everyone is seriously mentally ill is a "segregated setting," while scattered-site supported housing provides "maximum opportunities" for integration.*fn209

Defendants' experts opined that the setting in which a person with disabilities lives is irrelevant to the question of integration because it is possible for a person to feel isolated in any kind of setting.*fn210 The court accords these opinions little weight. Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated into the community than residents of group homes.*fn211 Dr. Geller explicitly rejected the applicable legal standard for integration. He testified that he believes the Supreme Court's finding in Olmstead that "confinement in an institution severely diminishes the everyday life activities of individuals" was "wrong," and that the setting in which a person lives and receives services does not determine whether he or she is "integrated."*fn212

With respect to the institutional and segregated nature of Adult Homes, Defendants' experts and other witnesses were largely in agreement with DAI's experts, current and former Adult Home residents, and other witnesses.*fn213 Defendants' experts acknowledged the institutional characteristics of the Adult Homes.*fn214 Mr. Kaufman noted that there is generally no expectation that individuals in Adult Homes will move to another setting.*fn215 Defendants' experts also acknowledged that characteristics of Adult Homes themselves impede the development of social contacts and work opportunities.*fn216 Given the extensive testimony from Defendants' experts that Adult Homes have "institutional qualities," "share[] characteristics with inpatient psychiatric facilities," and impede residents' development of social contacts and employment opportunities, the court rejects the fallacy that Adult Homes are not "institutions."*fn217 Indeed, while Mr. Kaufman tried to draw a semantic distinction between a setting with institutional characteristics and "institutional settings per se," he testified on direct examination that Adult Homes "were large institutions."*fn218

Defendants themselves have acknowledged that Adult Homes are institutional.*fn219 In addition, their witness, Susan Bear, the Assistant Executive Director of a large New York City mental health provider, described the Adult Homes located in Coney Island as "community-based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it."*fn220

In sum, the court finds that the overwhelming weight of the evidence demonstrates that Adult Homes are institutions that impede residents' interaction with individuals in the community who do not have disabilities.

c. Supported Housing Is a More Integrated Setting Than an Adult Home

As relief in this case, DAI seeks an order requiring Defendants to enable DAI's constituents to receive services in supported housing instead of Adult Homes. Supported housing, a type of OMH-funded "Housing for Persons with Mental Illness,"*fn221 is a setting in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community. OMH develops supported housing by issuing Requests for Proposals ("RFPs") and awarding contracts to community providers who will deliver the services.*fn222 The providers select existing apartments in the community for their programs.*fn223 Most supported housing in New York is "scattered site" -- that is, it is in the form of rental apartments scattered among various buildings throughout the community.*fn224 As used throughout, "supported housing" refers to the scattered-site supported housing that DAI seeks for its constituents.

The State is currently focusing on supported housing more than other forms of OMH housing because it is cost-effective, a best practice, and what consumers want.*fn225 Ms. Jones explained that the modern practice in the mental health field is to start with housing and "add and subtract the supports as that person needs them."*fn226 Likewise, Ms. Rosenberg testified that supported housing reflects the most current thinking and practice in the field.*fn227 Consistent with that view, OMH began to implement a supported housing program in 1990.*fn228 Mr. Newman, the Director of OMH's Bureau of Housing Development and Support, testified that supported housing is the current focus of OMH's housing development because it is a "successful," "cost-effective" program that gives residents "the same privacy rights as any other tenant in a landlord-tenant relationship."*fn229 As set forth below, the evidence demonstrates that supported housing is a far more integrated setting than an Adult Home.

In supported housing, people with mental illness live much like their peers who do not have disabilities. Scattered site supported housing is a "normalized" residential setting.*fn230 In other words, it is a setting much like where individuals without disabilities live.*fn231 It is a person's home.*fn232 Residents of supported housing sometimes live alone and sometimes share their apartment with one or more roommates.*fn233 They choose their own roommates.*fn234 Sometimes they lease the apartment directly from the landlord, and sometimes they lease the apartment from the provider.*fn235

One of the key principles of the State's supported housing program is to "separat[e] housing from support services by assisting the resident to remain in the housing of his choice while the type and intensity of services vary to meet the changing needs of the individual."*fn236

Supported housing providers and other community mental health providers offer support services that vary depending upon the needs of the resident.*fn237 Supported housing providers offer basic case management services.*fn238 The number of visits from case managers can vary widely depending on the needs of the resident, from once a month to as often as twice per day.*fn239

In addition to the services of the supported housing provider, residents can receive additional support services, such as Assertive Community Treatment ("ACT") or additional case management services, sometimes called "intensive" or "blended" case management.*fn240 Sam Tsemberis, the Executive Director of the Pathways to Housing ("Pathways") supported housing program, testified that it is "common" for supported housing residents to have case management services in addition to those supplied by the provider.*fn241 As OMH's Director of Case Management Services Mr. Dorfman testified, "[a]ll residents in [OMH]mental health housing, if appropriate, are eligible and can access all the mental health community support services."*fn242

High-level OMH officials similarly testified that ACT and case management services, including blended and intensive case management, are currently available to supported housing residents.*fn243

According to OMH, ACT "delivers comprehensive and flexible treatment, support, and rehabilitation services to individuals in their natural living settings."*fn244 An ACT team is multi- disciplinary -- it typically includes members from the fields of psychiatry, nursing, psychology, and social work, with increasing involvement of substance abuse and vocational rehabilitation specialists.*fn245 ACT teams provide services tailored to meet a client's specific needs.*fn246 According to OMH's ACT Program Guidelines, to be eligible for ACT services in New York State, individuals must have "a severe and persistent mental illness... that seriously impairs their functioning in the community," with a "priority" given to individuals with "continuous high service needs that are not being met in more traditional service settings."*fn247

ACT teams can assist recipients with a wide range of service needs, including teaching medication management.*fn248 They can also assist with daily activities such as personal care and safety, grocery shopping and cooking, purchasing and caring for clothing, household chores, using transportation and other community resources, and managing finances.*fn249 ACT teams see clients on average about twice per week but can see individuals as often as twice per day if necessary.*fn250 An ACT team assigned to a person with mental illness recently discharged from the hospital would typically see that person once or twice a day.*fn251 Individuals in supported housing who receive ACT services are required to be visited at least six times per month by members of the ACT team.*fn252

For example, the Pathways program uses ACT with roughly 80% of its incoming clients; the remaining 20% receive less intensive case management.*fn253 Pathways routinely and successfully helps people overcome difficulties with activities of daily living such as laundry, cooking, or using public transportation, and does not regard such challenges as "difficult issues" to deal with.*fn254

Residents of supported housing have the same freedoms that other apartment tenants do.*fn255 They can control their own schedules and daily lives.*fn256 They are free to come and go when they like. They can live with a significant other, marry and live with a spouse, live with their children, invite guests for meals, decorate their own apartment, and have overnight guests.*fn257 They have the same privacy rights and freedoms as any other tenant in a landlord-tenant relationship,*fn258 including the keys to their own apartment.*fn259 I.K., who recently moved to supported housingafter spending sixteenyears in an Adult Home, testified that she loves living in her apartment.*fn260 She explained:

I can limit what I eat or I can expand my choices. I can have as much salad as I like. I can have as little grease as I like. I can eat foods that were not permitted in the home.... I do my own shopping. I do my own food selection. It's free. It's freedom for me. It's freedom. It's being able to actually live like a human being again.*fn261

When asked whether he had a preference between the Adult Home, where he lived for five years, and supported housing, where he has been living for the last two years, G.L. explained:

A: Definitely where I am now.

Q: Why is that?

A: I have much more freedom.

Q: To do what?

A: Anything, everything.

Q: Would you ever --

A: I can have people stay overnight. I can entertain. I couldn't do that in the adult home.

Q: Anything else?

A: Visitors can come anytime.

Q: And that means something to you?

A: Yes.

Q: Would you ever voluntarily come back to an adult home?

A: No.*fn262

Dr. Tsemberis explained that it is the very ordinariness of supported housing that residents appreciate:

When people first move into an apartment that is so much the thing they appreciate the most, because many of the people that we're housing out of shelters and hospitals, especially, have been for years told when to wake up, what to eat, when to eat, what TV channels to watch, which are selected for them, what they watch, and when they watch it, when they can make phone calls. Every tiny aspect of their life is decided by someone else and what people appreciate immediately are the ordinary day to day freedoms of things, like when you can choose to wake up or go to sleep or watch a TV channel or eat when you are hungry as opposed to when it's time to eat. They seem ordinary and mundane and are profoundly important to build a sense of well being for the person.*fn263

Residents of supported housing live and receive services in integrated settings.*fn264

Compared to Adult Home residents, residents of supported housing have far greater opportunities to interact with people who do not have disabilities and to be integrated into the larger community.*fn265 In the words of Mr. Newman, the Director of OMH's Bureau of Housing Development and Support, supported housing provides "maximum opportunities" for community integration.*fn266

3. Conclusions of Law

As noted above,the law requires that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The appropriate inquiry to determine whether a particular setting is the "most integrated setting" is whether it "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." DAI I, 598 F. Supp. 2d at 321 (citing 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A). The court concludes that the large, impacted Adult Homes at issue in this case do not enable interactions with nondisabled persons to the fullest extent possible, and that the State's supported housing programs offer a setting that enables interactions with nondisabled persons to a far greater extent.

Under the applicable standard set forth in the regulations for what constitutes the "most integrated setting," a plaintiff need not prove that the setting at issue is an "institution" to establish a violation of the integration mandate. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (noting that "there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized" and "while it is true that the plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA's integration requirements."). Rather, a plaintiff must show that the setting does not "enable interactions with nondisabled persons to the fullest extent possible." DAI I, 598 F. Supp. 2d at 321; see also Joseph S., 561 F. Supp. 2d at 289-290 ("A failure to provide placement in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible violates the ADA's integration mandate.") (internal quotation marks and citation omitted).

Whether a particular setting is an institution is nonetheless a relevant consideration in determining whether it enables interactions with nondisabled persons to the fullest extent possible. It is clear that, "where appropriate for the patient, both the ADA and the RA favor integrated, community-based treatment over institutionalization." Frederick L. v. Dep't of Pub. Welfare ("Frederick L. I"), 364 F.3d 487, 491-92 (3d Cir. 2004). This echoes Olmstead's recognition that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life... and institutional confinement severely diminishes individuals' everyday activities." 527 U.S. at 600.

The court's factual finding that the Adult Homes are institutions is compelling evidence supporting the conclusion that such a setting does not enable interactions with nondisabled people to the fullest extent possible. Adult Homes are institutions that house well over 100 people, all of whom have disabilities and most of whom have mental illness. Adult Homesare designed to manage and control large numbers of people and do so by establishinginflexible routines, restricting access, and limiting personal choice and autonomy. Residents line up to receive meals, medication, and money at inflexiblyscheduled times during the day. They are assigned seats in thecafeteria, roommates, and treatment providers. They have next tono privacy or autonomy in their own daily lives, and they are discouraged, and most oftenprohibited, from managing their own activities of daily living, such as cooking, takingmedication, cleaning, and budgeting.

These institutional qualities of the Adult Homes are relevant to the issue of integration because they influence the extent to which residents can interact with individuals who do not have disabilities. The large population of the Adult Homes is relevant because many people with mental illness living together in one setting with few or no nondisabled persons contributes to the segregation of Adult Home residents from the community. As the Director of OMH's Bureau of Housing Development and Support testified, a housing setting shared by 120 people, all of whom have serious mental illness, is a "segregated" setting.*fn267 The rules and routines of the Adult Homes place many practical limits on when residents can come and go from the facility. Given the lack of privacy and the restrictions on when and where visitors can bereceived, the residents' ability to develop and maintain relationships with people outsidethe Adult Home is limited.

The lack of autonomy and isolation fostered by the Adult Home setting also influences residents' opportunities to interact with people who do not have disabilities. Contrary to Defendants' assertion that autonomy and isolation are not functions of where a person lives,*fn268 the Adult Home setting impedes the opportunity for contacts with nondisabled persons. As one resident testified, "[y]ou're in program, you're in home. All your energy is surrounded with the home, so it's hard to meet different people."*fn269 Given the very nature of theAdult Homes, the opportunities to develop social and employment contacts are extremelylimited. As Defendants' experts conceded, living in a place where the phone is answered "Brooklyn Adult Care Center" diminishes work options and social contacts, and being subject to visiting hours diminishes opportunities to cultivate social or family relationships.

Regardless of whether the Adult Homes at issue are "institutions" per se or merely a setting with "institutional characteristics," as Defendants contend, the overwhelming evidence demonstrates that the institutional characteristics of Adult Homes impede residents' ability to develop relationships with nondisabled persons. Thus, the Adult Homes do not enable interactions with nondisabled persons "to the fullest extent possible."*fn270

Defendants nonetheless contend that the Adult Homes enable interactions with nondisabled persons to the fullest extent possible because: (1) Adult Homes are located in "residential areas" close to neighborhood amenities such as stores, restaurants, libraries, beaches, and/or parks, (2) Adult Home residents come and go from the facilities, (3) OMH-funded case managers and other mental health providers available to Adult Home residents "facilitate integration," and (4) Adult Homes organize outings and on-site entertainment and activities.*fn271

These factors do not render Adult Homes integrated settings or settings that enable interaction with nondisabled persons to the fullest extent possible, either on their own or as compared to supported housing.

First, the argument that Adult Homes are the "most integrated setting" because they are close to neighborhood amenities is unpersuasive. By that measure, any large psychiatric facility located in an urban setting would be an integrated setting, no matter how institutional. As described by Defendants' witness Susan Bear, the Assistant Executive Director of the Jewish Board, Adult Homes are "community-based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it."*fn272 The urban locations of the Adult Homes do not render them the "most integrated setting" for DAI's constituents to receive services.

Second, that some Adult Home residents come and go from the facilities to varying extents does not persuade the court that Adult Homes are the "most" integrated setting. Viewed in its entirety, the record evidence establishes that Adult Homes impede the ability of Adult Home residents to participate in their communities outside the Homes. The inflexible schedules for medications and meals limit the times when residents can be absent from the Adult Homes. The large numbers of residents, lack of privacy, and restrictions on visitors also limit the development of relationships with individuals outside the Adult Homes.

While Defendants assert that the Adult Home setting is not as segregated as the hospital at issue in Olmstead because Adult Home residents are not locked in the facilities,*fn273 that does not demonstrate that Adult Home residents are in the most integrated setting, as the law requires. The existence of a less integrated setting does not demonstrate that the Adult Homes are the most integrated setting. See DAI I, 598 F. Supp. 2d at 331 n.42. As the court previously noted, even the plaintiff L.C. in Olmstead left the institution on a regular basis:

[L.C.] [r]eceive[d] a wide variety of community-care services... leaving during the day... via public transportation for persons with disabilities, to attend a daily community-based program that included social activities, vocational opportunities and field trips; L.C. returned on the bus each evening to the institution.

DAI I, 598 F. Supp. 2d 321 n.36 (quoting Pet. Reply Br., Olmstead v. L.C., No. 98-536, 1999 WL 220130, at *17--18 (S.Ct. Apr. 14, 1999)).

Third, the argument that mental health providers "facilitate integration" of Adult Home residents is without persuasive factual support in the record. The weight of the evidence is to the contrary. Experts for both sides agreed that teaching skills in a setting in which they cannot be applied or practiced is ineffective and does not foster independent living skills or integration.

Even if the mental health providers did facilitate integration to some extent, that would not render the Adult Homes the "most" integrated setting, especially compared to supported housing, where residents can learn and practice skills in their own homes. Similarly, OMH's Case Management Initiative, which places OMH-funded case managers in less than half of the Adult Homes at issue in this litigation, does not alter the segregated nature of the setting in which DAI's constituents receive services; the case managers simply arrange services within the existing setting.

Fourth, Defendants' assertion that Adult Homes enable integration because residents are occasionally taken on trips outside the Adult Homes and provided with on-site recreational activities and entertainment fails to alter the court's conclusion. The evidence at trial shows that outings outside the Homes contribute little to residents' integration into the community, because the residents generally travel as a group -- sometimes in ambulettes -- and interact mainly with each other. To cite just one example, that FEGS takes residents on "field trips" to museums and libraries after hours, when the facilities are closed to the general public, does not enable interactions with people who do not have disabilities. Nor do the activities and entertainment provided inside the Adult Homes.

Defendants additionally contend that the residents' degree of interaction with individuals who do not have disabilities is a matter of choice, or at most, a function of the quality and effectiveness of the services offered by particular mental health providers, which are outside of the scope of the enforcement provisions of the ADA and Rehabilitation Act.*fn274 See Olmstead, 527 U.S. at 603 n.14 ("We do not... hold that the ADA imposes on the States a 'standard of care' for whatever medical services they render, or that the ADA requires States to "provide a certain level of benefits to individuals with disabilities.'"); Doe v. Pfrommer, 148 F.3d 73, 84 (2d Cir. 1998) (rejecting challenge to the substance of services provided by a nonprofit organization, where plaintiff's "challenge is not illegal discrimination against the disabled, but the substance of the services provided to him through [the nonprofit organization]"); P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990) ("The [Rehabilitation] Act does not require all handicapped persons to be provided with identical benefits."). Defendants assert that while they monitor compliance with State regulations, they cannot be held responsible under the ADA or Rehabilitation Act for ineffective or low-quality services, or a particular provider's failure to facilitate and encourage community involvement.*fn275

This argument is inapposite. DAI does not seek a particular standard of care for its constituents. Nor does DAI seek increased enforcement of State regulations applicable to Adult Homes.*fn276 Rather, DAI seeks to have Defendants administer their services to DAI's constituents in the most integrated setting appropriate to their needs. While Olmstead does not impose a "'standard of care' for whatever medical services [states] render," it requires states to adhere to the ADA's nondiscrimination mandate and administer their services to individuals in the most integrated setting appropriate to their needs. 527 U.S. at 603 n.14 ("We do hold... that States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide."). As large, highly regimented facilities that house many people with mental illness in a congregate setting, Adult Homes have inherent institutional qualities that -- regardless of the quality of services provided to their residents-- impede opportunities for Adult Home residents to interact with nondisabled people.

The existence of supported housing -- a more integrated setting -- further proves that the Adult Home setting does not enable DAI's constituents to interact with nondisabled persons to the fullest extent possible. Supported housing is an integrated, community-based setting that enables interaction with nondisabled persons to the fullest extent possible. People who live in supported housing have the autonomy to live and participate in their communities in essentially the same ways as people without disabilities. Simply put, residents of supported housing are not defined by the setting in which they receive services. Residents of supported housing have far greater opportunities to interact with nondisabled persons and be integrated into the larger community. As the Director of OMH's Bureau of Housing Development and Support testified, supported housing provides "maximum opportunities" for integration into the community.*fn277

In sum, DAI has established that Defendants are not serving DAI's constituents in the most integrated setting appropriate to their needs. As set forth below, virtually all of DAI's constituents could be appropriately served in supported housing.

B. VIRTUALLY ALL OF DAI'S CONSTITUENTS ARE QUALIFIED FOR SUPPORTED HOUSING

1. Legal Standard

The ADA and Rehabilitation Act provide that individuals with disabilities are entitled toreceive services in the most integrated setting that is "appropriate" to their needs. 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(a). In Olmstead, the Supreme Court held that asetting is "appropriate" for individuals if those individuals meet the "essential eligibilityrequirements for habilitation in a community based program." 527 U.S. at 603; see alsoDAI I, 598 F. Supp. 2d at 331. Asthis court previously noted, "[n]ot everyeligibility requirement is an 'essential eligibility requirement.'" DAI I, 598 F. Supp. 2d at 333 (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001)).

2. Findings of Fact

a. Supported Housing Targets Individuals with Mental Illness Who Have Significant Needs

As OMH's Supported Housing Implementation Guidelines provide, supported housing provides individuals with mental illness with a permanent place to live coupled with flexible support services customized to each individual's specific needs.*fn278 The State's supported housing program already targets individuals with mental illness who have significant needs.*fn279

In particular, OMH has characterized supported housing as an "approach" designed to ensure that individuals with "serious and persistent mental illness"*fn280 can choose where they want to live.*fn281 In their existing supported housing program, Defendants have imposed no requirement that individuals have "minimal" support needs in order to live in supported housing.*fn282 To the contrary, in recent years, OMH's Requests for Proposals ("RFPs") for supported housing have specifically targeted those with significant needs. For example, in 2005, OMH issued an RFPtargeting individuals who, according to them, are "high need," defined as "a person who, as a result of psychiatric disability, presents some degree of enduring danger to self or others or has historically used a disproportionate amount of the most intensive level of mental health services."*fn283 Similarly, OMH issued RFPs for supported housing in 2007 and 2008 for a target population that may ...


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