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Disability Advocates, Inc. v. Paterson

March 1, 2010

DISABILITY ADVOCATES, INC., PLAINTIFF, AND THE UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR
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

In 2003, Plaintiff Disability Advocates, Inc. ("DAI") brought this action on behalf of individuals with mental illness residing in, or at risk of entry into, "impacted adult homes" in New York City.*fn1 (See Compl. (Docket Entry #1).) Adult homes are for-profit residential adult care facilities licensed by the State of New York (the "State"). Following six years of litigation and an eighteen-day bench trial, this court found that Defendants "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," and that these actions constitute discrimination in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 791 et seq. (Mem. and Order dated Sept. 8, 2009 (Docket Entry #341) ("Sept. Order") at 3.) The court assumes familiarity with that order. Although the court found that Plaintiff is entitled to injunctive relief, it directed briefing from the parties regarding the particular remedy to be imposed. (Id. at 208.)

Once a district court has found a violation of federal law, the scope of its "equitable power to remedy past wrongs is broad." Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). At the same time, principles of federalism compel a "proper respect for the integrity and function of local government institutions" in imposing a remedy. Missouri v. Jenkins, 495 U.S. 33, 51 (1990); see also Schwartz v. Dolan, 86 F.3d 315, 319 (2d Cir. 1996). Such respect does not, however, "require a court to adopt wholesale the local government's choice of remedies." United States v. Yonkers Bd. of Educ., 29 F.3d 40, 43.

Cognizant of these federalism concerns and seeking to avoid unnecessary intrusion upon the State's governance of its mental health system, the court provided Defendants an opportunity to come forward with their own proposal for remedying the civil rights violations found by the court. The court explained that Defendants' remedial proposal should be consistent with the findings of fact and conclusions of law set forth in the September Order. (Sept. Order 207.) In spite of that directive, Defendants' proposal neither affords an adequate remedy to Plaintiff's constituents, nor is it consistent with the court's findings. For the reasons that follow, the court rejects Defendants' lackluster proposal, adopting instead Plantiff's proposal, with minor modifications.

I. PROBLEMS WITH DEFENDANTS' REMEDIAL PROPOSAL

Rather than complying with the court's instructions, Defendants have submitted a proposal that scarcely begins to address the violations identified by the court. Worse still, many aspects of their proposal directly contradict the court's explicit findings of fact made after trial. The court is disappointed and, frankly, incredulous that Defendants sincerely believed this proposal would suffice: their proposed remedy is so egregiously deficient as to arouse suspicion that Defendants submitted the proposal knowing full well that the court would have to reject it, thereby raising a question as to their good faith. Some of the most glaring deficiencies are discussed below.

A. Number of Supported Housing Units

This court found that "virtually all" of Plaintiff's 4,300 constituents are not in the most integrated setting appropriate to their needs and are qualified for supported housing. (Sept. Order 3, 12, 67, 109.) Yet Defendants propose to create only 200 supported housing units per year over five years, for a total of 1,000 new units.*fn2 (Def. Proposal (Docket Entry #365) 7.) To justify their meager 200-units-per-year proposal, Defendants resurrect a number of arguments that were already rejected by the court in its September Order. They argue that the possibility of a more aggressive rate of development is foreclosed by the "current fiscal crisis," the needs of other populations, and the time required to develop new supported housing units. Even if more could be done, they argue, it would be unnecessary because, contrary to the court's finding, far less than "virtually all" of Plaintiff's constituents will actually be qualified and willing to move to supported housing.

According to Defendants, developing 1,500 units per year is simply "not feasible," given the "current fiscal crisis." (Def. Mem. (Docket Entry #368) 8.) But the court has already considered and rejected this argument, finding that "Defendants did not present any evidence showing a nexus between the current state of the economy and the specific relief DAI seeks" and that Defendants did not demonstrate that the "current economic circumstances have impacted the State's ability to develop supported housing, which requires no outlay of capital." (Sept. Order 198.) Moreover, the court concluded that the evidence at trial showed that "serving DAI's constituents in supported housing rather than Adult Homes would not increase costs to the State." (Id. at 152.) On the contrary, doing so would save money -- on average $146 dollars per resident annually, (id. at 193), a finding which Defendants doggedly refuse to accept.*fn3 (See Def. Mem. 8 ("Defendants hereby preserve their position that moving individuals from adult homes to supported housing will not be cost neutral or result in savings, in Medicaid costs or otherwise."); see also Hayes Aff. (Docket Entry #367) ¶¶ 5-7, 9-10 (ignoring, in computing cost of remedy, cost savings found by the court).)

As a second justification for their proposal, Defendants argue that developing more than the 200 supported housing units per year they propose will impede the State's ability to meet the needs of other populations, thus constituting a "fundamental alteration." (Def. Mem. 7-9 (citing Olmstead v. L.C., 527 U.S. 581, 604 (1999)).) Again, however, the problem with this argument is that it proceeds from the false assumption, already rejected by the court, that moving adult home residents to supported housing will increase costs to the State. Furthermore, Defendants unsuccessfully presented this fundamental alteration argument at trial. (See Sept. Order 128-203.) As the court found, the evidence at trial did not show that Plaintiff's requested relief would force the State to "cut back on services to other needy populations" or "prejudice others who seek supported housing." (Id. at 181.) Defendants cannot now relitigate the matter in their remedial submission.

Defendants' argument that it is incapable of developing more than 200 units per year is similarly meritless. Although Defendants point to the "difficulty of finding that number of affordable housing units in that amount of time," (Def. Mem. 8), the court credited expert testimony from Dennis Jones establishing that the State is capable of developing supported housing units "at a rate of approximately 1,500 per year for several years" and that, even in the New York City real estate market, "a sufficient number of units of appropriate housing" could be identified to achieve that rate of development.*fn4 (Sept. Order 182-83.)

Thus, all the justifications Defendants now raise for offering such a meager proposal were previously considered and rejected by the court and are plainly inconsistent with the court's findings of fact. Stripped of these excuses, which were foreclosed by the court's prior decision, Defendants neither adequately address the violations found by the court nor provide any good reason for failing to do so. This court found that "virtually all" of Plaintiff's 4,300 constituents -- including those "who might have relatively high needs" -- are qualified for supported housing and are not opposed to moving to a more integrated setting. (Id. at 3, 12, 67, 109.) By contrast, Defendants' proposal would only provide 1,000 units of supported housing, and only after five years.*fn5 A proposal that affords a remedy to only 23% of those individuals whose civil rights are currently being violated is grossly inadequate.*fn6 Although Defendants have made it abundantly clear that they disagree with the court's finding,*fn7 they are not free to ignore it in crafting a remedial proposal.

B. Education Regarding Supported Housing

Defendants' proposal is starkly inconsistent with the court's findings in its treatment of educating adult home residents about supported housing. As the court found, most adult home residents are unaware of housing alternatives to the adult homes and "the wide range of assistance that would be available to them in supported housing." (Id. at 117-18.) Comprehensive efforts to educate Plaintiff's constituents about supported housing, allowing them to make an informed choice, are crucial to a successful remedy. Defendants propose to provide a once-annual "educational opportunity" to each adult home resident in which some unidentified entity will discuss supported housing, supports and income available in supported housing, Defendants' process for determining eligibility, other ...


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