“Claims arising from a shared set of facts” that have been explicitly included in a settlement release of liability provision “will not be precluded [in a later action] where class plaintiffs have not adequately represented the interests of class members.”
How later courts described this case
- “Claims arising from a shared set of facts” that have been explicitly included in a settlement release of liability provision “will not be precluded [in a later action] where class plaintiffs have not adequately represented the interests of class members.”
- acknowledging the “higher degree of scrutiny” courts apply in reviewing class action settlements reached prior to class certification (citing D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001))
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
C.K. through his next friend P.K.; C.W. through her
next friend P.W.; C.X. through her next friend P.X.; C.Y.
through his next friend P.Y., for themselves and those
similarly situated,
Plaintiffs,
2:22-cv-1791
-v- (NJC) (JMW)
James V. McDonald, in his official capacity as the
Commissioner of the New York State Department of
Health; Ann Marie T. Sullivan, in her official
capacity as Commissioner of the New York State Office of
Mental Health,
Defendants.
AMENDED OPINION AND ORDER1
NUSRAT J. CHOUDHURY, District Judge:
This class action is brought by four minors, each of whom proceed through their “Next
Friend,” on behalf of themselves and as representatives of two certified classes of Medicaid-
eligible children with mental health conditions who have been determined by a licensed
practitioner to require intensive home and community-based mental health services in order to
correct or ameliorate their conditions while remaining safely at home and in their communities.
The Amended Complaint seeks declaratory and injunctive relief on behalf of themselves and the
two classes of similarly-situated children against the Commissioners of the New York State
Department of Health (“DOH”) and the Office of Mental Health (“OMH”) in their official
1 This Opinion and Order was originally issued on August 18, 2025. It is being refiled today with
the additional procedures governing any request to seal information in any objections to the
proposed Settlement Agreement filed with the Court as set forth in footnote 6.
capacities (together “Defendants”). (Am. Compl., ECF No. 34.) The four “Named Plaintiffs” are
C.K. through his Next Friend P.K.; C.W. through her Next Friend P.W.; C.X. through her Next
Friend P.X.; and C.Y. through his Next Friend P.Y.
The Amended Complaint alleges that Defendants are responsible for systemic violations
of the Medicaid Act (specifically, the Early and Periodic Screening, Diagnostic, and Treatment
Services (“EPSDT”) and reasonable promptness provisions), Title II of the Americans with
Disabilities Act (the “ADA”), and Section 504 of the Rehabilitation Act (“Section 504”). (Am.
Compl. ¶¶ 4– 5, 9–10, 212–37.) The Amended Complaint alleges that the Named Plaintiffs were
not timely receiving the intensive home and community-based mental health services that they
need to correct or ameliorate their mental health conditions. (Id. ¶¶ 18–82.) They further allege
that because they were not receiving such services, each of the Named Plaintiffs has been
previously institutionalized or was at risk of institutionalization. (Id. ¶¶ 34, 50, 64, 81.)
On February 22, 2024, the Court certified the case as a class action on behalf of two
classes (hereinafter “the Classes,” and members thereof, the “Class Members”):
1. The “EPSDT Class[,]” . . . defined as consisting of all current or future
Medicaid- eligible children in New York State under the age of 21 (a) who
have been diagnosed with a mental health or behavioral health condition, not
attributable to an intellectual or developmental disability, and (b) for whom a
licensed practitioner of the healing arts acting within the scope of practice
under state law has recommended intensive home and community-based
mental health services (“IHCB-EPSDT Services”) to correct or ameliorate
their conditions.
2. The “ADA Class[,]” . . . defined as consisting of all current or future
Medicaid-eligible children in New York State under the age of 21 (a) who
have been diagnosed with a mental health or behavioral health condition, not
attributable to an intellectual or developmental disability, that substantially
limits one or more major life activities, (b) for whom a licensed practitioner of
the healing arts acting within the scope of practice under state law has
recommended IHCB-EPSDT Services to correct or ameliorate their conditions
or who have been determined eligible for HCBS Waiver Services (as defined
in the Amended Complaint, ECF No. 34, ¶ 10), and (c) who are segregated,
institutionalized, or at serious risk of becoming institutionalized due to their
mental health or behavioral health condition.
(Mem. & Order Certifying Classes (“Cert. Order”) at 3–4, ECF No. 73.) Following certification
of the Classes, the Court stayed the litigation to permit the parties to explore a potential
settlement of the case. (Id. at 12–13.)
Before the Court is the Parties’ Joint Motion for Preliminary Approval of Class Action
Settlement Agreement and for Other Relief (“Joint Motion for Preliminary Approval”). (Joint
Mot., ECF No. 77.) After nearly two years of litigation and another one and a half years of
extensive negotiations between the Parties on their own and with the assistance of this Court as
mediator, the Parties have entered into a proposed Settlement Agreement. The proposed
Settlement Agreement seeks to settle all claims on behalf of the EPSDT Class and the ADA
Class. The Joint Motion for Preliminary Approval requests that the Court: (1) grant preliminary
approval of the proposed Settlement Agreement; (2) approve the Parties’ jointly proposed Notice
Plan addressing the proposed Notice to Class Members and the manner of providing that notice
to Class Members; and (3) set a date for fairness hearing on the anticipated motion for final
settlement approval. (Joint Mot. at 1.)
For the reasons discussed below, the Court grants the Motion in its entirety. The proposed
Settlement Agreement meets the requirements for preliminary approval of a class action
settlement under Rule 23(e) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) and
governing authority from the Second Circuit in Moses v. New York Times Company, 79 F.4th
235, 242 (2d Cir. 2023), and subsequent cases. The Court therefore preliminarily approves the
proposed Settlement Agreement and approves the Parties’ Proposed Class Action Notice Plan
with Instructions for Posting and Distribution (“Notice Plan”) (ECF No. 77-4). The Court has
modified the Parties’ Proposed Class Action Settlement Notice (“Proposed Notice”) (ECF No.
77-3) to make it easier for laypeople to understand, including members of the Classes, their
parents and guardians, and service providers. The modified Notice is approved and set forth as
Appendix I to this Opinion and Order. Finally, the Court schedules a fairness hearing to take
place on January 6, 2026 and sets associated pre-hearing deadlines as detailed below.
BACKGROUND AND PROCEDURAL HISTORY
I. Litigation and Settlement History
On March 31, 2022, certain Named Plaintiffs filed a Complaint (ECF No. 1) against
Mary T. Bassett, in her official capacity as the Commissioner of the New York State Department
of Health and Ann Marie T. Sullivan, in her official capacity as the Commissioner of the New
York State Office of Mental Health. James V. McDonald, the current Commissioner of the New
York State Department of Health, was automatically substituted for former Commissioner Basset
pursuant to Rule 25(d), Fed. R. Civ. P. (Defendants Sullivan and McDonald, and former
Defendant Bassett, are collectively referred to as the “Defendants.”). On October 31, 2022, all of
the Named Plaintiffs filed an Amended Complaint against Defendants, alleging that Defendants’
policies and practices fail to ensure compliance with the Medicaid Act, ADA, and Section 504
requirements to timely provide, or arrange for, the provision of intensive home and community-
based mental health services for children in New York State. (Am. Compl.)
The Parties engaged in substantial discovery and negotiated a Proposed Schedule (ECF
No. 20), a Protective Order (ECF No. 25), an ESI Protocol (ECF No. 29), and five revised
discovery schedules. (Decl. Daniele Gerard Supp. Joint Mot. Prelim. Approval Settlement
Agreement (“Gerard Decl.”) ¶ 11.) Both Parties produced hundreds of thousands of pages of
documents through initial and supplemental disclosures and in response to requests for
production, interrogatories, and rulings by Magistrate Judge James M. Wicks resolving several
discovery disputes and motions. (Id.) Named Plaintiffs deposed nine fact witnesses and four
additional witnesses designated by Defendants under Rule 30(b)(6). (Id.) In addition to
producing documents, Defendants produced extensive data and deposed three witnesses. (Id.) On
November 16, 2023, Named Plaintiffs filed a motion for class certification supported by a
memorandum of law, several declarations, hundreds of pages of exhibits, and five expert reports
by national leaders in their fields. (ECF Nos. 52–55.)
On January 17, 2024, the Court held a status conference at which the parties reported on
their discussions to resolve Named Plaintiffs’ class certification motion without a court ruling.
(Min. Entry, Jan. 18, 2024.) The Parties reported on their efforts to reach a stipulation as to the
definitions of Named Plaintiffs’ proposed classes and a stay of discovery to allow the Parties to
engage in settlement negotiations. (Id.) The Parties further reported their agreement that, if the
Court were to oversee settlement negotiations, neither Party would ask for the Court to recuse
from adjudicating a bench trial on the merits in the event negotiations did not fully resolve this
matter. (Id.)
On February 8, 2024, the Parties filed a joint motion to certify Named Plaintiffs’
proposed classes, extend litigation deadlines, and stay litigation activity for three months to
enable settlement discussions. (Joint Mot. Certify Class, ECF No. 71.) The Parties confirmed that
they sought to explore settlement with the Court’s assistance (id. at 1–2) and filed a stipulation
concerning facts material to class certification (Stip. & Proposed Order Class Cert., ECF No. 72.)
On February 22, 2024, the Court granted the joint motion and certified the case as a class action
brought by the Named Plaintiffs on behalf of the EPSDT and ADA Classes. (Cert. Order.)
From late February 2024 to August 2025, the Parties engaged in frequent and intensive
settlement discussions both on their own and with the Court’s assistance as mediator on eleven
separate occasions. Based on its own observation of the Parties’ good faith and the significant
progress made between and during each of the Court-mediated settlement discussions, the Court
granted the Parties’ joint requests to extend the initial three-month litigation stay for additional
periods of time. (Cert Order at 12–13; Min. Entry, Apr. 15, 2024; Elec. Order, Oct. 17, 2024;
Elec. Order, Mar. 7, 2025.) During this period of around eighteen months, the Parties held
meetings to discuss, draft, review, and negotiate the terms of the proposed Settlement
Agreement. (Gerard Decl. ¶¶ 14, 15.) Before each settlement conference with the Court, the
Parties submitted separate or joint settlement statements, updating the Court on the status of
negotiations and highlighting areas where the Court’s input would be most helpful. (Id. ¶ 14.)
The Parties executed a final proposed Settlement Agreement on August 7, 2025. (Id.
¶ 15.) They filed the Joint Motion for Preliminary Approval the following day, on August 8,
2025. (Joint Mot.)
II. Preliminary Approval Submissions
In support of the Joint Motion for Preliminary Approval, the Parties filed a memorandum
in support of the Joint Motion for Preliminary Approval of the Parties’ Settlement Agreement
and the Parties’ Plan to Provide Notice of the Settlement to the Class (ECF No. 77-1), the
proposed Settlement Agreement (Settlement Agreement, ECF No. 77-2), the Proposed Notice
(ECF No. 77-3), the Notice Plan (ECF No. 77-4), a Proposed Order preliminarily approving the
class action settlement (ECF No. 77-5), the Declaration of Brandy L.L. Tomlinson (Tomlinson
Decl., ECF No. 77-6), the Declaration of Daniele Gerard (Gerard Decl., ECF No. 77-7), the
Declaration of Kimberly Lewis (Lewis Decl., ECF No. 77-8), the Declaration of Steven H.
Holinstat (Holinstat Decl., ECF No. 77-9).
III. The Proposed Settlement Agreement
Pursuant to the proposed Settlement Agreement, the Parties agree to work together to
develop and implement a multi-year plan to provide timely access to intensive home and
community-based mental health services across New York to children in the Classes in a
manner consistent with the Parties’ shared Goals and Objectives outlined in Section I of the
proposed Settlement Agreement. (Settlement Agreement § I.) The proposed Settlement
Agreement requires that Defendants, among other things, to provide the following Medicaid-
covered services to members of the Classes for whom such services are necessary to correct
or ameliorate a behavioral or mental health condition: (1) Intensive Care Coordination, (2)
Intensive Home- Based Behavioral Health Services, and (3) Mobile Crisis Services, which
foster the decriminalization of mental health by resulting in decreased contacts between law
enforcement and people with mental health conditions. (Settlement Agreement ¶ 12; Joint
Mot. at 5.) The proposed Settlement Agreement also requires Defendants to redesign the
current Children and Family Treatment and Support Services (“CFTSS”) program and the
Home and Community-Based Services (“HCBS”) Waiver Services program to meet the
needs of members of the Classes who are eligible for the services. (Id.) These services are
collectively referred to as the “Relevant Services” in the proposed Settlement Agreement and
they are each defined in Appendix A to the Settlement Agreement (Id. ¶ 14; Appendix I, ECF
No. 77-2 at 41–47.)
The proposed Settlement Agreement requires that Defendants: (a) execute the
commitments and processes in the Unified Implementation and Improvement Plan for the
Relevant Services (the “Implementation Plan”), including how the Relevant Services will be
developed and rolled out; (b) ensure that the Relevant Services are available in a timely
manner statewide to all Medicaid-enrolled children eligible to receive them; (c) identify
eligibility criteria for each of the Relevant Services and identify and implement a
standardized assessment process or processes to determine eligibility for the Relevant
Services; and (d) develop data reporting and quality assurance processes to ensure the
Relevant Services are being provided on a timely basis in accordance with the terms of the
Settlement Agreement. (Id. at ¶¶ 14, 16, 35–40, 44–46, 62–80.)
According to the terms of the proposed Settlement Agreement, Defendants have
engaged Suzanne Fields, MSW, LICSW, a clinical social worker with decades of experience
as a national behavioral health expert, as the “Independent Reviewer” that will work with the
Parties to develop the Implementation Plan, monitor Defendants’ progress, and mediate
disputes concerning adherence to the terms of the Settlement Agreement. (Id. ¶ 11; Gerard
Decl. ¶ 15.) Ms. Fields has extensive experience implementing statewide changes to systems
relating to Medicaid, managed care, mental health and substance use, child and adult
services, and child welfare. (Id.)
1. Redesign of the Relevant Services
Central to the proposed Settlement Agreement is Defendants’ commitment to
substantially redesign their offering of mental and behavioral health services to more
specifically and appropriately address the needs of children in the Classes. The redesign will
draw from and adapt effective practices from Washington, Massachusetts, Ohio, and
California, four states that have implemented intensive home and community-based services
in response to litigation or system reforms similar to this case, and will respond to Named
Plaintiffs’ concerns and experiences. (Joint. Mot. at 6.) In the proposed Settlement
Agreement, Defendants commit to ensuring provision of the Relevant Services in accordance
with each child’s needs in a timely manner and at the intensity (including frequency and
duration) necessary to meet the individual needs of eligible children and their families.
(Settlement Agreement ¶ 14.) Defendants also commit to ensuring that sufficient numbers of
service providers are available to provide the Relevant Services to meet the needs of eligible
children on a timely basis throughout New York State. (Settlement Agreement ¶ 15.)
2. The Implementation Plan
In the proposed Settlement Agreement, the Parties agree to work closely and
collaboratively to develop an Implementation Plan that will provide a roadmap for how
Defendants will provide timely access to the Relevant Services to Medicaid-enrolled children
in New York State. (Id. § IV.) Defendants will develop the Implementation Plan over the
next 18 months with the collaboration and assistance of Named Plaintiffs and the
Independent Reviewer. (Id.; Appendix B, ECF No. 77-2 at 48.) The Implementation Plan will
identify specific steps that Defendants will take to develop and deliver the Relevant Services
to eligible children statewide, and will include:
a. detailed standards and requirements and eligibility criteria for each of the
Relevant Services;
b. proposed reimbursement rates to be set at amounts to ensure that payments to
providers are sufficient to enlist enough providers to meet the needs of eligible
children on a timely basis throughout New York State, at least to the extent that
they are available to the general population in the geographic area, and network
adequacy requirements;
c. an initial quality improvement plan (“QIP”) that will establish a system of data-
driven quality improvement that reviews, measures, and reports on a set of
performance indicators related to the Relevant Services; subsequent annual QIPs
will report on these performance indicators (see below);
d. the targeted strategies Defendants will undertake for providing all Class Members
with medically necessary mental or behavioral health services in the least
restrictive setting appropriate to their needs; and
e. a description of how Defendants will inform eligible children and their
families/caregivers, and educate and involve the provider community and relevant
state and local public child-serving agencies, regarding availability and delivery
of the Relevant Services.
(Id. ¶¶ 20, 42, 47, 53–56, 62–63, 66–72.)
3. The Quality Improvement Plan
The proposed Settlement Agreement requires the consistent assessment of Defendants’
progress toward providing the Relevant Services to members of the Classes in order to identify
the need for any appropriate corrective action and promote continued improvement as necessary
to ensure that the Relevant Services are timely provided. (Id. ¶¶ 59, 66–80.) It requires
Defendants to conduct an initial Quality Improvement Plan (“QIP”) and to issue, on an annual
basis, an updated QIP developed in consultation with the Independent Reviewer, Named
Plaintiffs, and relevant stakeholders and state agencies as set forth in the Settlement Agreement.
(Id. ¶¶ 62, 64.) The QIPs will include: (1) performance indicators measuring the provision,
timeliness, sufficiency, and effectiveness of the Relevant Services; (2) benchmarks and interim
utilization targets during the rollout; and (3) quality improvement procedures. (Id. ¶¶ 62, 65–80.)
Under the terms of the proposed Settlement Agreement, Defendants will also develop a
publicly available and regularly updated data dashboard to provide transparency and track key
statewide data related to the provision of the Relevant Services. (Id. ¶ 46.)
4. The Audit & Exit Criteria
Under the proposed Settlement Agreement, Defendants must conduct annual audits of the
provision of the Relevant Services, during both the rollout period and afterwards, to evaluate
whether Class Members are timely receiving the Relevant Services at the required intensity
(including frequency and duration), and in the child’s home or where the child is otherwise
naturally located¸ and that recipients of the Relevant Services have received appropriate
assessments related to such Services. (See generally id. § VI.) The purpose of the annual audits is
also to allow the Independent Reviewer and the Parties to evaluate, among other things: (a) the
performance indicators agreed upon in the QIP and to determine the extent to which Defendants
have met any specified utilization targets; (b) whether providers are providing Relevant Services
in accordance with the Standards and Requirements for the Services; (c) whether the members of
the Classes receiving the Relevant Services are timely receiving them at the required intensity
(including frequency and duration); and d) whether corrective action is required under the quality
improvement plan then in effect or otherwise under the Settlement Agreement. (Id. ¶ 81.)
Under the proposed Settlement Agreement, the Parties will agree upon clear exit criteria
consisting of objective measures to determine whether Defendants have achieved substantial
compliance, which will then result in Defendants’ exit from this Court’s jurisdiction. (Id. ¶ 106.)
The exit criteria will be established by the Parties in consultation with the Independent Reviewer
based on, among other things, a post rollout audit evaluating the provision of the Relevant
Services. (Id. ¶ 107.)
5. Dispute Resolution and Enforcement
Pursuant to the terms of the proposed Settlement Agreement, six months following the
period for rolling out the Relevant Services, the Independent Reviewer will provide the Court
annual reports regarding the status of the Settlement Agreement and the Implementation Plan.
(Id. ¶¶ 94, 114.)
The proposed Settlement Agreement requires the Parties to mediate all disputes arising
out of or in connection with the agreement or the Implementation Plan with the Independent
Reviewer before seeking relief from the Court. (Id. ¶ 109.) If the Parties cannot achieve a
resolution during the time period for mediating a dispute, the Independent Reviewer will prepare
a recommendation as to how to resolve the dispute, and the Parties may respond to that
recommendation within twenty days prior to submission of the recommendation to the Court.
(Id. ¶ 113.) The Independent Reviewer will simultaneously submit any such recommendations
and the Parties’ responses to the Court. (Id.)
Under the proposed Settlement Agreement, the Court retains all legal and equitable
powers to enforce the terms of the agreement. (Id. ¶ 116.) Any party may seek relief from the
Court regarding any recommendation of compliance, noncompliance, or remedy by the
Independent Reviewer. (Id.) Upon a finding of Defendants’ noncompliance with the proposed
Settlement Agreement, the Court may issue an Order setting forth its finding of noncompliance
and adopting any remedy within the Court’s discretion following receipt of the Independent
Reviewer’s recommendation as to a resolution of the dispute and the Parties’ responses to that
recommendation. (Id. ¶¶ 113, 116.) The Court shall retain jurisdiction to enforce its Order to
remedy noncompliance through its power of contempt. (Id. ¶ 116(b).)
DISCUSSION
I. Class Action Settlement Approval
A. Legal Standard
Where parties seek to settle claims brought by a plaintiff on behalf of a proposed class,
the court must review the proposed class action settlement to ensure it is “fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2); Kurtz v. Kimberly-Clark Corp., 142 F.4th 112, 117 (2d Cir.
2025). Courts apply a three-step process of review. See Fed. R. Civ. P. 23(e)(1)–(2). The court
first conducts a preliminary evaluation of the fairness of the proposed settlement agreement to
determine whether to give notice of the proposal to all class members. Fed. R. Civ. P.
23(e)(1)(A). The second step consists of providing “notice of a hearing . . . to class members”
and holding a hearing to ensure that “class members and settling parties are provided the
opportunity to be heard[.]” In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.,
330 F.R.D. 11, 27 (E.D.N.Y. 2019) (hereinafter “Payment Card”) (brackets and quotation marks
omitted); see also Whelan v. Diligent Corp., 349 F.R.D. 79, 84 (S.D.N.Y. 2025). The court turns
to the third step—final approval—only if the Court has granted preliminary approval and
afforded notice of the hearing and an opportunity to be heard to all class members. See id.
i. Preliminary Approval Standard
During the preliminary approval stage, the court must analyze whether it “will likely be
able to: (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of
judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B). “The Court’s role in reviewing the
proposed settlement ‘is demanding . . . because the adversariness of litigation is often lost after
the agreement to settle.’” Whelan, 349 F.R.D. at 84 (quoting Zink v. First Niagara Bank, N.A.,
155 F. Supp. 3d 297, 308 (W.D.N.Y. 2016)). To approve a settlement before class certification,
courts “demand a clearer showing of a settlement’s fairness, reasonableness and adequacy and
the propriety of the negotiations leading to it.” Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.
1982); see also Calibuso v. Bank of Am. Corp., 299 F.R.D. 359, 366 (E.D.N.Y. 2014)
(acknowledging the “higher degree of scrutiny” courts apply in reviewing class action
settlements reached prior to class certification (citing D’Amato v. Deutsche Bank, 236 F.3d 78,
85 (2d Cir. 2001))).
A district court cannot grant preliminary approval of a class action settlement unless it is
“likely to able to” grant final approval under Rule 23(e)(2). Fed. R. Civ. P. 23(e)(1)(B); see
Payment Card, 330 F.R.D. at 28 (“[C]ourts must assess at the preliminary approval stage
whether the parties have shown that the court will likely find that the factors weigh in favor of
final settlement approval.”). Prior to its 2018 amendment, Rule 23 did not provide specific
factors for courts to consider in determining whether a proposed class action settlement was
“fair, reasonable, and adequate” under Rule 23(e)(2). Id. At that time, courts in the Second
Circuit considered both the “negotiating process leading up to the settlement, i.e., procedural
fairness, as well as the settlement’s substantive terms, i.e., substantive fairness.” McReynolds v.
Richards-Cantave, 588 F.3d 790, 803–04 (2d Cir. 2009) (quotation marks and brackets omitted).
To evaluate the procedural fairness of a proposed class action settlement, courts in this Circuit
assessed whether “the settlement resulted from arm’s-length negotiations, and [whether]
plaintiffs’ counsel possessed the necessary experience and ability, and have engaged in the
discovery[] necessary to effective representation of the class’s interests.” Id. at 804 (quotation
marks and brackets omitted). Courts evaluating the substantive fairness of a proposed class
action settlement also considered the nine factors in City of Detroit v. Grinnell Corporation:
(1) the complexity, expense and likely duration of the litigation;
(2) the reaction of the class to the settlement;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the risks of establishing liability;
(5) the risks of establishing damages;
(6) the risks of maintaining the class action through the trial;
(7) the ability of the defendants to withstand a greater judgment;
(8) the range of reasonableness of the settlement fund in light of the best possible
recovery; [and]
(9) the range of reasonableness of the settlement fund to a possible recovery in
light of all the attendant risks of litigation.
McReynolds, 588 F.3d at 804 (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.
1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.
2000)).
In 2018, Congress amended Rule 23(e) to identify four “primary procedural
considerations and substantive qualities that should always matter to the decision whether to
approve [a settlement] proposal.” Fed. R. Civ. P. 23(e)(2) advisory committee’s note to 2018
amendment. Under Rule 23(e)(2), a court must explicitly consider whether:
(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class,
including the method of processing class-member claims;
(iii) the terms of any proposed award of attorney’s fees, including timing of
payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
Fed. R. Civ. P. 23(e)(2).2 “The first two factors are procedural in nature and the latter two guide
the substantive review of a proposed settlement.” Moses v. New York Times Co., 79 F.4th 235,
242 (2d Cir. 2023).
In Moses v. New York Times Company, the Second Circuit emphasized that district courts
“must consider the four factors outlined in Rule 23(e)(2) holistically” in addition to the Grinnell
factors when evaluating a proposed class action settlement. Moses, 79 F.4th at 243. It clarified
that:
[T]he revised Rule 23(e)(2) does not displace our traditional Grinnell factors,
which remain a useful framework for considering the substantive fairness of a
settlement. But the rule now mandates courts to evaluate factors that may not have
been highlighted in our prior case law, and its terms prevail over any prior
analysis that are inconsistent with its requirements.
2 Rule 23(e)(1)(B) requires a court considering preliminary approval of a class settlement to find
that it “will likely be able to . . . certify the class for purposes of judgment on the proposal.” Fed.
R. Civ. P. 23(e)(1)(B). This requirement is inapplicable here were the Court has already certified
two classes: the EPSDT Class and the ADA Class. (Cert. Order.)
Id. The Second Circuit also held that courts may no longer presume a settlement to be
substantively fair where it arose from an arms-length bargaining process. Id. at 243. Moses thus
confirmed that courts must consider both the Rule 23(e) factors and the Grinnell factors—to the
extent that they differ—in determining whether to approve the proposed settlement of class
action claims, as district courts had done following the 2018 amendment of Rule 23(e). See e.g.,
Payment Card, 330 F.R.D. at 29; LoCurto v. AT&T Mobility Servs. LLC, No. 13-cv-4303, 2020
WL 13859604, at *4 (S.D.N.Y. June 22, 2020).
Courts have found that Rule 23(e)(2) does not otherwise address the following Grinnell
factors: the reaction of the class to the settlement (second factor); the stage of the proceedings
and the amount of discovery completed (third factor); the ability of the defendants to withstand a
greater judgment (seventh factor); the range of reasonableness of the settlement fund in light of
the best possible recovery (eighth factor); and the range of reasonableness of the settlement fund
to a possible recovery in light of all the attendant risks of litigation (ninth factor). See, e.g.,
Payment Card, 330 F.R.D. at 30 n.22 (discussing the seventh, eighth and ninth Grinnell factors);
Amigon v. Safeway Constr. Enters. LLC, No. 20-cv-5222, 2024 WL 5040436, at *6 (E.D.N.Y.
Dec. 9, 2024) (discussing the second, third, seventh, eighth, and ninth Grinnell factors).
Accordingly, courts continue to analyze these Grinnell factors in combination with the
Rule 23(e)(2) factors in evaluating settlement agreements in class actions whether the actions are
brought under Rule 23(b)(2) for declaratory and injunctive relief or under Rule 23(b)(3) for
damages. See, e.g., In re Payment Card, 2024 WL 3236614, at *1, *13 (considering Grinnell
factors in the Rule 23(b)(2) context); Amigon, 2024 WL 5040436, at *3, *6, *10 (considering
Grinnell factors in the Rule 23(b)(3) context.). Courts differ, however, as to whether certain
Grinnell factors relating to monetary damages—including the risks of establishing damages
(fifth factor) and the amount of damages (seventh, eighth, and ninth factors)—are inapplicable or
carry less weight in the context of class actions seeking only injunctive and declaratory relief.
See In re Payment Card, 2024 WL 3236614, at *26 (collecting cases on both sides).
Named Plaintiffs brought this class action seeking injunctive and declaratory relief to
ensure that Defendants comply with federal civil rights laws. The proposed Settlement
Agreement seeks to enact systemic changes in the provision of certain mental and behavioral
health services across New York State so that members of the Classes receive tangible services
to which they are legally entitled to correct or ameliorate their mental health conditions.
Accordingly, the Grinnell fifth, seventh, eighth, and ninth factors, which concern monetary
damages, need not be analyzed separately from the Rule 23(e)(2) factors and the other, relevant
Grinnell factors. See In re Payment Card, 2024 WL 3236614, at *26 (“In [civil rights] cases, the
ability of the defendant to withstand a greater judgment is essentially a non-issue because the
defendant need only stop violating the law.”); United States v. New York, Nos. 13-cv-4165 & 13-
cv-4166, 2014 WL 1028982, at *8 (“When, as here, the settlement offers the class members the
most important, most tangible form of relief sought by plaintiffs, these [range of reasonableness]
factors,” the eighth and ninth Grinnell factors, “weigh in favor of approval of the settlement.”).
B. Analysis
The Court grants preliminary approval of the proposed Settlement Agreement as a
settlement of the Named Plaintiffs’ claims on behalf of themselves and the EPSDT and ADA
Classes. The Joint Motion for Preliminary Approval and supporting documents demonstrate that
the proposed Settlement Agreement is procedurally or substantively fair, reasonable, and
adequate in light of the Rule 23(e)(2) factors and the applicable Grinnell factors. Additionally,
the Notice Plan is designed to ensure that members of the Classes are notified of the proposed
Settlement Agreement and have the opportunity to voice any objections and participate in a
fairness hearing before the Court before. The Court has modified the Parties’ Proposed Notice as
set forth in Appendix I of this Opinion and Order to make it easier for laypeople to understand,
including members of the Classes, their parents and guardians, and service providers, who will
play a vital role in ensuring that members of the Classes are notified of the proposed Settlement
Agreement and their rights to submit objections and participate in a fairness hearing, among
other rights.
i. Procedural and Substantive Fairness Under Rule 23(e)(2) and
Grinnell
All of the Rule 23(e) and relevant Grinnell factors either weigh in favor of the
determination that the proposed Settlement Agreement is fair, reasonable, and adequate, and
merits preliminary approval, or are neutral, as discussed in detail below.
a. Adequate Representation
Prior to certifying the Classes, this Court determined that the Named Plaintiffs and Class
Counsel would adequately and fairly represent the interests of the then proposed Classes as
required by Rule 23(a)(4), Fed. R. Civ. P. (Cert. Order at 9–10.) To determine whether “the class
representatives and class counsel have adequately represented the class” under Rule 23(e)(2)(A),
courts consider “whether (1) plaintiff’s interests are antagonistic to the interests of other
members of the class and (2) plaintiff’s attorneys are qualified, experienced and able to conduct
the litigation.” Rosenfeld v. Lenich, No. 18-cv-6720, 2021 WL 508339, at *4 (E.D.N.Y. Feb. 11,
2021) (citing Cordes & Co. Fin. Servs. v. AG. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir.
2007)).
(1) Adequate Class Representatives
In addition to the requirements of Rule 23(e)(2)(A), “[t]he Due Process
Clause . . . requires that the named plaintiff at all times adequately represent the interests of the
absent class members.” In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig.,
827 F.3d 223, 231 (2d Cir. 2016) (hereinafter “Payment Card II”) (quoting Phillips Petroleum
Co. v. Shutts, 472 U.S. 797 (1985)). As noted in the Court’s order certifying the Classes, the
“named Class Representatives are teenage Medicaid recipients located throughout New York
who have various mental and behavioral conditions requiring mental health care.” (Cert. Order at
10 (citing Am. Compl. ¶¶ 18–82).) “The Next Friends are Named Plaintiffs’ parents, family
members, and guardians.” (Id. (citing Am. Compl. ¶¶ 18, 36, 52, 66).) The members of the
EPSDT and ADA Classes, along with Named Plaintiffs, who serve as class representatives, share
an identical interest in attaining the requested injunctive and declaratory relief to ensure that
Defendants are complying with their obligations under the Medicaid Act, the ADA, and Section
504 to timely provide, or arrange for, the provision of intensive home and community-based
mental health services for children in New York. (Id. (citing Stip. & Prop. Order Class Cert. at
6).) “Additionally, the Next Friends are dedicated to representing the best interests of the four
minor named Class Representatives.” (Id.)
Here, there is no conflict of interest between the members of the Classes and the Named
Plaintiffs and Next Friends. Moreover, the Named Plaintiffs and Next Friends have adequately
represented the Classes since this action has been pending, including since the Court’s
certification of the Classes in February 2024. (Cert. Order.) The Next Friends have reviewed the
language of the proposed Settlement Agreement with Class Counsel at Children’s Rights and
support its terms and provisions. (Gerard Decl. ¶ 20.) This review demonstrates continued
engagement and participation by the Next Friends as required to ensure that the Named
Plaintiffs, who are teenagers, adequately represent the Classes.
(2) Adequate Class Counsel
“A court reviewing a proposed settlement must pay close attention to the negotiating
process, to ensure that . . . plaintiffs’ counsel have possessed the experience and ability, and have
engaged in the discovery[] necessary to effective representation of the class’s interests.”
D’Amato, 236 F.3d at 85 (citation and quotation marks omitted); see also Fed. R. Civ. P. 23
advisory committee’s note to 2018 amendment (“[T]he nature and amount of discovery in this or
other cases, or the actual outcomes of other cases, may indicate whether counsel negotiating on
behalf of the class had an adequate information base . . . .”). A court may determine that class
counsel is adequate based on findings concerning counsel’s experience, involvement in other
similar litigation, and knowledge in the area of complex class actions. See D’Amato, 236 F.3d at
85–86 (upholding district court’s adequacy of class counsel finding based on these factors).
Class Counsel have provided exemplary representation to the Named Plaintiffs and the
Classes in investigating and bringing this class action and throughout the more than three and a
half years that this litigation has been pending. Class Counsel have extraordinary experience
litigating class actions involving Medicaid, disability rights, and children’s rights as documented
in detail by the Gerard, Tomlinson, Lewis, and Holinstat Declarations. Children’s Rights, whose
staff serve as Lead Class Counsel, is a national advocacy organization that represents children in
impact litigation across the country under a variety of federal constitutional and statutory laws,
including Medicaid and ADA law. (Gerard Decl. ¶ 3.) Lead Counsel at Children’s Rights have
extensive experience in litigating complex class actions on behalf of children in Medicaid
systems. (Id. ¶¶ 6, 8–9.) Disability Rights New York is the federally designated protection and
advocacy organization for individuals with disabilities in New York and routinely litigates on
behalf of children and adults with disabilities. (Tomlinson Decl. ¶¶ 5–7.) It has authority under
federal law to gain broad access to facilities, individuals, and their records in order to investigate
and address, among other things, the violation of the rights of individuals with disabilities. (Id.
¶ 7.) Class Counsel from Disability Rights New York have deep experience litigating on behalf
of people with disabilities, including people with mental illness. (Id. ¶¶ 11–13.) The National
Health Law Program is a nationally recognized expert in Medicaid, the ADA, and Section 504,
and has extensive experience litigating and negotiating settlements in similar class actions
brought across the country on behalf of children who need intensive home and community-based
mental health services. (Lewis Decl. ¶¶ 4–5, 7–9.) Class Counsel at the National Health Law
Program has extensive expertise in Medicaid and intensive home and community-based mental
health services. (Id. ¶¶ 7–12.) Proskauer Rose LLP is a global law firm engaged in pro bono
litigation, including complex civil rights cases. (Holinstat Decl. ¶¶ 3–4.)
For more than one and a half years prior to the commencement of this litigation, Class
Counsel at Children’s Rights and Disability Rights New York engaged in a resource-intensive
and lengthy investigation of the potential claims at issue in this case, conducting interviews
across New York State, including interviews of impacted children and families. (Gerard Decl.
¶ 10.) Class Counsel at Children’s Rights conducted legal and factual research and analysis and
public records work to inform the litigation that was filed. (Id.)
The collective expertise of Class Counsel in investigating, litigating, and negotiating the
resolution of the claims in this class action has been apparent in the high quality oral and written
advocacy and successful motion practice conducted by Class Counsel since the commencement
of this action. Class Counsel engaged in significant and successful advocacy in the discovery
process, negotiating discovery schedules, a Protective Order (ECF No. 25), and an ESI protocol
(ECF No. 29), securing hundreds of thousands of pages of documents, defending three
depositions of the Next Friends by Defendants, and conducting thirteen depositions, including
depositions of DOH and OMH personnel and a stakeholder psychiatrist. (Gerard Decl. ¶ 11.)
Named Plaintiffs filed a robust Motion for Class Certification, supported by an extensive legal
brief and several hundred pages of exhibits, five expert reports, deposition excerpts, and two
declarations from local advocates. (ECF Nos. 52–55.) Class Counsel secured reports from five
experts in support of the motion, which examined: (a) the extent to which New York’s Medicaid-
enrolled children are receiving mental health services, and the relevant policies and practices of
DOH and OMH; (b) the effectiveness of intensive home and community-based services; (c) the
implementation and assessment of New York’s public mental health systems and programs; (d)
the services provided to the four Named Plaintiffs; and (e) Defendants’ data systems related to
the provision of mental health services to Class Members. (ECF Nos. 54-2–54-6.) Class Counsel
also filed a motion to compel the depositions of Defendant Commissioners of DOH and OMH,
which was granted by Magistrate Judge Wicks (ECF No. 64), and affirmed by this Court (ECF
No. 67).
Class Counsel continued to provide effective advocacy on behalf of the Named Plaintiffs
and members of the Classes on complex issues of substantive and procedural law in initial
settlement discussions leading to the Parties’ agreement to stipulate to the class definitions and to
file a joint motion for the Court to certify the Parties’ agreed-upon class definitions and stay the
litigation to facilitate settlement negotiations overseen by the Court. (Gerard Decl. ¶ 13.) Finally,
in the course of settlement negotiations, Class Counsel contributed their extensive expertise in
Medicaid, disability law, and the drafting and enforcement of settlement agreements involving
systemic changes to the provision of mental health services for children, thereby fostering good
faith, serious, and productive settlement negotiations. In short, the declarations from Class
Counsel underscore that Class Counsel have dedicated thousands of hours to pre-filing
investigation and post-filing litigation and discovery work and intensive settlement negotiations,
ensuring exemplary and effective representation for the Classes.
Accordingly, Class Counsel exceed the requirements of Rule 23(e)(2)(A) to adequately
represent the Classes based on their deep experience, involvement in similar, complex litigation
concerning the rights of children under the relevant federal statutes, and investment of thousands
of hours to effectively investigate and litigate this case. See D’Amato, 236 F.3d at 85–86.
b. Arms-Length Negotiations
A court must consider whether “the proposal was negotiated at arm’s length” in assessing
the fairness of a proposed class action settlement. Fed. R. Civ. P. 23(e)(2)(B). It is legal error,
however, for a district court to “presume[] that [a] proposed settlement [is] fair, reasonable, and
adequate because it was reached in an arms length negotiation,” even where “the arms-length
quality of the negotiations remain[s] a factor in favor of approving the settlement.” Moses, 79
F.4th at 243.
Here, before reaching the proposed Settlement Agreement in August 2025, the parties
engaged in nearly two years of active litigation, which included written fact and expert
discovery, depositions, and class certification motion practice. As discussed above, the parties
conducted extensive discovery through initial and supplemental disclosures, requests for
production, and interrogatories, participated in discovery-related negotiations, and litigated
motions to compel certain discovery, which ultimately resulted in the production of more than
900,000 documents. See supra Discussion § 1; Gerard Decl. ¶ 11. Named Plaintiffs conducted
nine fact depositions of DOH and OMH personnel and a stakeholder psychiatrist, four
depositions of Defendants’ 30(b)(6) witnesses, and Defendants conducted three depositions of
Next Friends and produced voluminous electronic data. (Id.) The Parties’ vigorously litigated
Named Plaintiffs’ motion to compel the depositions of Defendant Commissioners of DOH and
OMH, which was granted by Magistrate Judge Wicks (ECF No. 64), and affirmed by this Court
(ECF No. 67). (Gerard Decl. ¶ 12.) As discussed, Named Plaintiffs filed a substantial Motion for
Class Certification, which was accompanied by five expert reports, seven declarations from
stakeholders, and several hundred pages of exhibits, and Defendants were poised to oppose that
motion when the Parties reached an agreement to ask for a stay of the litigation to enable
settlement discussions. (See ECF Nos. 52–55; Min. Entry, Dec. 13, 2023.)
As previously discussed, the Parties also engaged in nearly eighteen months of extensive
settlement discussions on their own and with the participation of the Court as mediator. The
Court-mediated negotiations took place on the following dates: April 11, 2024; May 30, 2024;
July 10, 2024; August 15, 2024; October 17, 2024; December 13, 2024; March 5, 2025; April 11,
2025; May 9, 2025; June 18, 2025; and July 18, 2025.3 In between each of these Court-involved
settlement discussions, the Parties met additional times to explore resolution of the claims in this
action and to narrow disputes for the Court’s assistance. (See Gerard Decl. ¶ 14) The Parties
engaged in arms-length negotiations regarding the terms, structure, and implementation posture
for the proposed Settlement Agreement throughout this process. (Id. ¶ 15.) The Court directly
observed how the issues identified by the Parties for discussion with the Court in advance of
Court-mediated discussions were the subject of vigorous advocacy by both sides even if
ultimately resolved through lengthy negotiations with and without the Court’s assistance. The
3 Min. Entry, Apr. 11, 2024; Min. Entry, May 30, 2024; Min. Entry, July 10, 2024; Min. Entry,
August 15, 2024; Min. Entry, October 17, 2024; Min. Entry, December 13, 2024; Min. Entry,
March 5, 2025, Min. Entry, April 11, 2025; Min. Entry, May 9, 2025; Min. Entry, June 18, 2025;
Min. Entry, July 18, 2025.
Parties also regularly met with, and sought guidance from, Suzanne Fields, a clinical social
worker with decades of experience in Medicaid, managed care, child and adult services, child
welfare, and child and adult mental health systems, to help craft proposed reforms. (Id.)
There is no indication in the record, and the Court has not observed, any bad faith or
collusion between the Parties. Accordingly, this factor weighs in favor of preliminary approval
of the proposed Settlement Agreement.
c. Adequate Relief for the Class
A court must also consider whether relief for the class is adequate under Rule 23(e)(2),
taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including
the method of processing class-member claims;
(iii) the terms of any proposed award of attorney’s fees, including timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3).
Fed. R. Civ. P. 23(e)(2)(C). Because a proposed settlement agreement’s provision setting forth a
release of liability “affects the determination of the fairness, reasonableness, and adequacy of
class relief,” the Court will consider the proposed release of liability under this section. Payment
Card, 330 F.R.D. at 36; see also Zaslavskiy v. Weltman, Weinberg & Reis Co., LPA, No. 18-cv-
4747, 2020 WL 9814083, at *9–10 (E.D.N.Y. Oct. 19, 2020), report and recommendation
adopted, Elec. Order, Dec. 1, 2020.
(1) Costs, Risks, and Delay of Trial and Appeal
In assessing the costs, risks, and delay of trial and appeal, “courts may need to forecast
the likely range of possible classwide recoveries and the likelihood of success in obtaining such
results.” Payment Card, 330 F.R.D. at 36 (citing Fed. R. Civ. P. advisory committee’s note to
2018 amendment). “This assessment implicates several Grinnell factors, including: (i) the
complexity, expense and likely duration of the litigation; (ii) the risks of establishing
liability . . . and (iv) the risks of maintaining the class through the trial.” Id. (citing Grinnell, 495
F.2d at 463); see also Cymbalista v. JPMorgan Chase Bank, N.A., No. 20-cv-456, 2021 WL
7906584, at *6 (E.D.N.Y. May 25, 2021). Accordingly, courts “use[] these Grinnell factors to
guide [the] assessment” of costs, risks and delay under Rule 23(e)(2)(C). Payment Card, 330
F.R.D. at 36.
(A) Complexity, Expense, and Likely Duration of the Litigation
“Courts favor settlement when litigation is likely to be complex, expensive, or drawn
out.” In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d 686, 693 (S.D.N.Y. 2019). The expense,
complexity, and likely lengthy duration of the litigation weigh heavily in favor of preliminary
approval of the proposed Settlement Agreement for the reasons discussed in detail below.
As demonstrated by the Amended Complaint and Named Plaintiffs’ Motion for Class
Certification, this case involves complex issues of substantive and procedural law relating to
children’s rights to mental and behavioral health services under the Medicaid Act, the ADA, and
Section 504 of the Rehabilitation Act. (Am. Compl; ECF Nos. 52–55.) As discussed the length,
this case has involved significant pre-litigation investigation over the course of one and a half
years as well as nearly two years of vigorous pre-trial litigation, which involved numerous
discovery disputes, the commencement of class certification motion practice, and the marshalling
of expert evidence.4 According to the Joint Motion for Preliminary Approval, if the case were to
continue, “the Parties would need to resume discovery and prepare for trial,” which would
require further extensive discovery because the significant volume of discovery regarding New
York’s mental and behavioral health system for children and youth already exchanged “is now
4 See supra Background § I for a review of the litigation history in this case.
stale.” (Joint Mot. at 18.) The Parties agree that resuming litigation would require extensive
additional discovery, including updated expert reports. (Id.)
Accordingly, the Parties agree that settling the case now serves their mutual interest in
ensuring that the Relevant Services are delivered to all members of the Classes as expeditiously
as possible, as opposed to continuing with protracted, lengthy, expensive, and uncertain
litigation. The proposed Settlement Agreement provides immediate, substantial, and enforceable
commitments by Defendants to develop an Implementation Plan informed by the expertise and
input of the Independent Reviewer, Named Plaintiffs, and Class Counsel to timely deliver the
Relevant Services to members of the Classes and thereby address the violations that led Named
Plaintiffs to file this suit. The mental health service delivery systems that Defendants commit to
systemically improving across New York State are complex. In agreeing to the proposed
Settlement Agreement’s requirements regarding the development of an Implementation Plan
followed by a period for rolling out the Relevant Services and conducting consistent quality
improvement plans and audits to identify areas for improvement and correction until specific exit
criteria are met, the Parties convey their agreement that this course of action is best placed to
ensure that the Relevant Services are provided as quickly as possible to children in the Classes.
(See Joint. Mot. at 17–18.)
(B) The Risks of Establishing Liability
A court considering the risks of establishing liability “need only assess the risks of
litigation against the certainty of recovery under the proposed settlement.” In re Payment, 330
F.R.D. at 36–7 (quotation marks omitted). Named Plaintiffs maintain that they have a strong case
on the merits, but that proceeding to trial would delay needed relief to members of the Classes
who lack access to the mental and behavioral health services they need. (Joint Mot. at 18.)
Without deciding the merits of the claims, the Court recognizes that a trial in this case
would involve significant risks to Named Plaintiffs and members of the Classes because the
Medicaid Act, ADA, and Section 504 claims in this case are complex and require the evaluation
of expert testimony and voluminous facts relating to the provision of mental health services to
children across New York State. Named Plaintiffs have carefully weighed the risk of proceeding
to trial as well as the resources and time required to litigate such complex claims in deciding to
reach a settlement. Additionally, Class Counsel were fully informed about the facts and
circumstances of this case when they entered settlement negotiations with Defendants on behalf
of Named Plaintiffs and the Classes. (Gerard Decl. ¶ 16; Lewis Decl. ¶ 13; Tomlinson Decl.
¶ 19; Holinstat Decl. ¶ 9.) Indeed, were this case to continue, Named Plaintiffs would need to
secure updated expert reports and the Parties would need to engage in additional fact and expert
discovery and likely engage in additional motion practice.
Accordingly, the Court finds that there is sufficient risk of establishing liability and that
this factor weighs in favor of granting preliminary approval.
(C) The Risks of Maintaining the Class Through Trial
The risks of maintaining a class through trial, while “present in every class
action . . . nevertheless weigh[] in favor of settlement where it is likely that defendants would
oppose class certification if the case were to be litigated.” Payment Card, 330 F.R.D. at 39–40
(quotation marks and brackets omitted).
Here, the Court has already certified two Classes under Rule 23(b)(2) following the
Parties’ stipulation to the class definitions. (See Cert. Order; Stip. & Proposed Order Class Cert;
Joint Mot. Certify Class.) In light of the fact that Defendants ultimately joined Named Plaintiffs’
Motion for Class Certification and stipulated to the class definitions, it is unlikely, although not
impossible, that Defendants would move for decertification before any final judgment. See Fed.
R. Civ. P. 23(c)(1)(C) (providing that, before final judgment, a court may alter or amend any
order granting or denying class certification). As a result, the Court finds that the Grinnell factor
concerning the risks of maintaining the class through trial is either neutral or weighs in favor of
granting preliminary approval. See Payment Card, 330 F.R.D. at 40 (finding that this factor
likely weighs in favor of preliminary approval where defendants would likely move for
decertification given that they had agreed to certification of a settlement class “for settlement
purposes only”); Warren v. Xerox Corp., No. 01-cv-2909, 2008 WL 4371367, at *5 (E.D.N.Y.
Sept. 19, 2008).
(2) Effectiveness of Distributing Relief to the Class
To assess whether the settlement of a putative class action affords adequate relief for the
proposed class, courts must also examine “the effectiveness of any proposed method of
distributing relief to the class, including the method of processing class-member claims.” Fed. R.
Civ. P. 23(e)(2)(C)(ii). Typically, this consideration involves evaluating the parties’ proposed
plan for distributing damages to class members. See e.g., Johnson, 333 F.R.D. at 321 (indicating
approval for a process by which checks would be mailed to each class member based on their
proportion of the damages incurred by the entire class). In In re Payment Card, another judge of
this Court found that the effectiveness of any proposed method of distributing relief to the class
need not be considered in a class action seeking only equitable relief where “relief will be
effectuated by the settlement terms alone.” See In re Payment Card Interchange Fee & Merch.
Disc. Antitrust Litig, No. 05-md-1720, 2024 WL 3236614, at *29 (E.D.N.Y. June 28, 2024)
(relying on Newkirk v. Pierre, No. 19-cv-4283, 2022 WL 20358182, at *4–7 (E.D.N.Y. Oct. 25,
2022) (lacking any discussion of this factor when assessing settlement for equitable relief)).
Here, where Named Plaintiffs’ claims on behalf of the Classes seek solely declaratory
and injunctive relief, this factor is not considered. The terms of the proposed Settlement
Agreement will effect relief to members of the Classes in requiring Defendants to develop an
Implementation Plan and roll out the Relevant Services to children in the Classes across New
York State such that members of the Classes timely receive the Relevant Services “at the
intensity (including frequency and duration) necessary to meet the individual needs of eligible
children and their families.” (Joint. Mot. at 6.) Like the agreement at issue in In Re Payment
Card, because this relief is equitable in nature, “relief will be effectuated by the settlement terms
alone” and the effectiveness of any proposed method of distributing relief to the class need not
be considered as a separate issue. 2024 WL 3236614, at *29.
(3) Attorneys’ Fees
“[W]hen reviewing the substantive fairness of a proposed settlement, the district court is
required to review both the terms of the settlement and any fee award encompassed in a
settlement agreement in tandem.” Moses, 79 F.4th at 244 (quotation marks omitted); see also
Fed. R. Civ. P. 23(e)(2)(c)(iii). “This review provides a backstop that prevents unscrupulous
counsel from quickly settling a class’s claims to cut a check.” Moses, 79 F.4th at 244 (quotation
marks omitted). Indeed, “the relief actually delivered to the class can be a significant factor in
determining the appropriate fee award.” Fed. R. Civ. P. 23(e)(3) advisory committee’s note to
the 2018 amendment.
The proposed Settlement Agreement reserves the determination of attorneys’ fees, costs,
and expenses to the Court. (Settlement Agreement ¶ 124.) To avoid any conflict of interest, the
Parties agreed to conduct any negotiations for attorneys’ fees separate from the negotiations
concerning the provisions of the proposed Settlement Agreement. (Joint Mot. at 17; Pls.’ Oct. 2,
2024 Settlement Statement at 2; Gerard Decl. ¶ 17.) Named Plaintiffs anticipate that they will
separately seek a reasonable award of attorneys’ fees and costs only after the Court rules on the
Joint Motion for Preliminary Approval of the Settlement Agreement. (Gerard Decl. ¶ 17.)
Moreover, this Court will “tak[e] into account . . . the terms of any proposed award of attorney’s
fees, including timing of payment” prior to approving the final settlement. Fed. R. Civ. P.
23(e)(2)(C)(iii).
Accordingly, the fact that attorney’s fees are not awarded in the proposed Settlement
Agreement but will instead be handled separately—and likely through motion practice—weighs
in favor of preliminary approval.
(4) Agreement under Rule 23(e)(3)
Rule 23 additionally requires the parties to “file a statement identifying any agreement
made in connection with the proposal.” Fed. R. Civ. P. 23(e)(3). A court must consider any such
agreement in assessing whether “the relief provided for the class is adequate” under the proposed
settlement agreement. Fed. R. Civ. P. 23(e)(2)(C). The Court need not address this factor, as the
parties have not indicated that they made any separate agreement in connection with the
proposed Settlement Agreement.
(5) Release of Liability
It is “well-established . . . that class action releases may include claims not presented and
even those which could not have been presented as long as the released conduct arises out of the
‘identical factual predicate’ as the settled conduct.” Payment Card, 330 F.R.D. at 42 (citing Wal-
Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 107 (2d Cir. 2005)) (quotation marks
omitted). Accordingly, “[c]ourts have denied preliminary approval where releases from liability
are deemed to be overly broad.” Payment Card, 330 F.R.D. at 42. For example, in Karvaly v.
eBay, Incorporated, the court found that:
a general release that purport[ed] to strip millions of individuals of their rights to
sue the defendants upon a wide range of offenses that have nothing to do with the
misconduct alleged in the present action, for no more consideration than [the
defendant’s] agreement to make certain superficial changes to its website, is an
offense to the principle of due process so egregious as to render the proposed
settlement untenable even at this preliminary stage.
245 F.R.D. 71, 88–89 (E.D.N.Y. 2007). Release of liability provisions in class action settlement
agreements are further “limited by . . . [the] adequacy of representation doctrine[].” Payment
Card II, 827 F.3d at 236–37 (citing Wal-Mart Stores, 396 F.3d at 106) (quotation marks
omitted). Courts will not enforce releases where class plaintiffs were inadequately represented at
the time the release was negotiated. Cf. Payment Card II, 827 F.3d. at 236 (“[M]embers of a
class not present as parties to the litigation may be bound by the judgment where they are in fact
adequately represented by parties who are present consistent with the requirements of due
process and full faith and credit.” (citing Hansberry v. Lee, 311 U.S. 32, 42–43 (1940))
(quotation marks omitted)); see also Wal-Mart Stores, Inc., 396 F.3d at 109 (“Claims arising
from a shared set of facts” that have been explicitly included in a settlement release of liability
provision “will not be precluded [in a later action] where class plaintiffs have not adequately
represented the interests of class members.”).
Here, the proposed Settlement Agreement provides that “Nothing in this Settlement
Agreement shall limit the ability of any individual Plaintiff or Class Member to pursue any legal
or administrative remedies to which they would otherwise be entitled under state or federal law
other than the claims for systemic injunctive and declaratory relief adjudicated by this action.”
(Settlement Agreement ¶ 142.) Neither this provision nor any other in the proposed Settlement
Agreement accomplishes the type of overbroad, general release of liability in Karvaly, which
“render[ed] the proposed settlement [in that action] untenable.” 245 F.R.D. at 88–89. By
contrast, paragraph 142 of the proposed Settlement Agreement only releases members of the
Classes from bringing identical claims for systemic changes to the DOH and OMH’s provision of
mental and behavioral health services to Medicaid-eligible children under 21 in New York State
as those brought in this action.
Accordingly, this factor also weighs in favor of granting preliminary approval.
d. Equitable Treatment of Class Members
Before approving a class settlement, “the court must take into account whether the
‘proposal treats class members equitably relative to each other.’” Moses, 79 F.4th at 244 (quoting
Fed. R. Civ. P. 23(e)(2)(D)). When analyzing this Rule 23(e)(2) factor, courts may consider
“whether the apportionment of relief among class members takes appropriate account of
differences among their claims, and whether the scope of the release may affect class members in
different ways that bear on the apportionment of relief.” Payment Card, 330 F.R.D. at 47
(quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment).
The proposed Settlement Agreement satisfies Rule 23(e)(2)(D) because it secures a
realistic if ambitious path to bring about the systemic relief sought by Named Plaintiffs in the
Amended Complaint to ensure that Medicaid-eligible children under age 21 in New York State
receive individualized intensive home and community-based mental and behavioral health
services that are necessary and appropriate for their needs while remaining safely at home and in
their communities. (Am. Compl. ¶¶ 1–6.) As discussed at length, the proposed Settlement
Agreement requires the development of a detailed and comprehensive Implementation Plan to
substantially overhaul the Relevant Services available to members of the Classes, who live
across New York State. (Settlement Agreement § IV; Appendix B.) It also requires Defendants
to improve care coordination through the development of Intensive Care Coordination services
(Settlement Agreement ¶¶ 22–25), expand intensive home-based behavioral health services (id.
¶¶ 26–29); strengthen mobile crisis services (id. ¶¶ 30–31), standardize screening and assessment
processes (id. ¶¶ 37–38), address provider capacity challenges (id. ¶¶ 53–55), develop a public
set of data reporting (id. ¶ 46), and implement a robust quality improvement and accountability
framework to ensure timely access to the Relevant Services across the State (id. § V). Moreover,
the proposed Settlement Agreement includes a specific timeline by which the interim steps
required to develop the Implementation Plan must be completed and projects that this entire
process, which will involve the Parties, numerous government agencies, the Independent
Reviewer, stakeholders, and the Court will take eighteen months. (Id. ¶ 52; Appendix B.) Once
approved by the Court, Defendants must roll out the Implementation Plan and, starting as early
as the rollout period, conduct required quality improvement plans to assess Defendants’ progress
toward providing the Relevant Services. (Id. ¶¶ 62–65 (QIP), 85–87 (Rollout provisions.)
Defendants must also conduct consistent audits to identify the need for any corrective action to
ensure provision of the Relevant Services to members of the Classes. (Id. ¶¶ 81–84.) Finally, the
proposed Settlement Agreement requires that the Independent Reviewer to oversee
implementation of the Settlement Agreement and the development of exit criteria that
Defendants must meet in order to exit from the Court’s jurisdiction. (id. § VIII and ¶ 106.)
The proposed Settlement Agreement thus seeks to provide all members of the Classes
relief by achieving widespread, systemic changes in how Defendants provide access to the
Relevant Services, and thereby equitably treats all members of the EPSDT and ADA Classes.
See Moses, 79 F.4th at 245 (noting that “Rule 23(e)(2)(D) requires that class members be treated
equitably, not identically”) (emphasis in original)); Payment Card, 2024 WL 3236614, at *36
(explaining that in a Rule 23(b)(2) class action, “different class members can benefit differently
from an injunction – but no matter what, they must stand to benefit (it cannot be the case that
some members receive no benefit while others receive some)”) (emphasis in original; citation
omitted). Here, the Settlement does not grant preferential treatment to any member or subset of
the EPDST or ADA Classes.
e. Reaction of the Class to the Settlement
A fourth Grinnell factor not otherwise codified in Rule 23(e)(2) is the class’s reaction to
the proposed settlement. See McReynolds, 588 F.3d at 804 (citing Grinnell, 495 F.2d at 463).
Courts have long considered this factor to be “perhaps the most significant factor to be weighted
in considering [a class action settlement’s] adequacy.” In re Facebook, Inc., IPO Sec. &
Derivative Litig., 343 F. Supp. 3d 394, 410 (S.D.N.Y. 2018), aff’d sub nom. In re Facebook, Inc.,
822 F. App’x 40 (2d Cir. 2020). Courts do not typically consider this factor at the preliminary
approval stage because notice has not yet been provided to the class. Mikhlin v. Oasmia Pharm.
AB, No. 19-cv-4349, 2021 WL 1259559, at *4 n.2 (E.D.N.Y. Jan. 6, 2021).
Accordingly, at this stage of the proceedings, this factor does not weigh in favor of, or
against, preliminary approval of the proposed Settlement Agreement. See Rodriguez v. CPI
Aerostructures, Inc., No. 20-cv-982, 2023 WL 2184496, at *15 (E.D.N.Y. Feb. 16, 2023) (“The
Court could not address the reaction of the Class to the settlement during the preliminary
approval stage . . . .”).
f. Proposed Settlement Agreement Meets the Requirements for
Preliminary Approval
For all of the aforementioned reasons, all of the Rule 23(e) and relevant Grinnell factors
either weigh in favor of the determination that the proposed Settlement Agreement is fair,
reasonable, and adequate, and merits preliminary approval, or are neutral at the preliminary
approval stage. Named Plaintiffs and Class Counsel have adequately represented the interests of
the Classes through extensive pre-litigation investigation, vigorous and skilled advocacy in the
course of this litigation, and the devotion of thousands of hours to the development and
prosecution of this action. The resulting proposed Settlement Agreement would provide
substantial benefits to the Classes while removing the delay, risk, and expense inherent in the
trial of such a complex case. Under the terms of the proposed Settlement Agreement, Defendants
commit to developing an implementation plan in the next 18 months and to rolling out that plan
to ensure that Defendants provide Medicaid-eligible children in New York State with timely
access to the intensive home and community-based mental and behavioral health services
identified in the Amended Complaint. If approved by the Court, the proposed Settlement
Agreement would resolve all claims in this lawsuit with Defendants’ commitment to provide
timely access to medically necessary services for Medicaid-eligible children under age 21 with
mental and behavioral health conditions. The proposed Agreement thereby merits preliminary
approval.
II. The Modified Notice and Notice Plan Are Sufficient
In preliminarily approving a class action settlement, the Court “must direct notice in a
reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ.
P. 23(e)(1)(B). The notice must be “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Phillips, 472 U.S. at 812 (internal citations omitted). “[T]he court
has virtually complete discretion as to the manner of giving notice to class members.”
Handschu v. Special Servs. Div., 787 F.2d 828, 833 (2d Cir. 1986); see also Caballero v.
Senior Health Partners, Inc., No. 16-cv-326 & 18-cv-2380, 2018 WL 4210136, at *13
(E.D.N.Y. Sept. 4, 2018); In re MetLife Demutualization Litig., 689 F. Supp. 2d 297, 345
(E.D.N.Y. 2010). “Notice need not be perfect, but must be the best notice practicable under
the circumstances, and each and every class member need not receive actual notice, so long
as class counsel acted reasonably in choosing the means likely to inform potential Class
Members.” Oladipo v. Cargo Airport Servs. USA, LLC, No. 16-cv-6165, 2019 WL 2775785,
at *10 (E.D.N.Y. July 2, 2019).
The Proposed Notice adequately summarizes the litigation and describes the
Settlement Agreement. However, it uses compound sentences, block text, and legal and
technical terms that may be difficult for members of the Classes to understand.5 The Court
has modified the Proposed Notice to better foster the provision of clear instructions on how
members of the Classes may obtain more information about the Settlement Agreement and
voice objections, while also using plain language and formatting that help make the
information more accessible to lay people and easier to understand. The modified Notice is
set forth below in Appendix I. With these modifications, the Notice meets the Rule 23
5 For example, the Proposed Notice provides in block text:
The Relevant Services include: (1) Intensive Care Coordination; (2) Intensive
Home-Based Behavioral Health Services; (3) Mobile Crisis Services; and (4)
Medicaid Home and Community-Based Waiver Services. These services are
defined in more detail in the attached “Appendix A” from the Settlement
Agreement, and are referred to as the Relevant Services. Under the Agreement,
DOH and OMH have agreed to, among other things, (a) make changes to the
standards and requirements in delivery of these services; (b) make changes to the
eligibility criteria for access to these services; (c) increase the pathways available
for accessing these services; (d) regularly review Medicaid reimbursement rates
for these services; and (e) ensure that these Relevant Services are available
throughout New York State and provided to class members of the Classes who
need them.
(Proposed Notice at 4.) The information contained in this block of text is important, but may be
had for a layperson to digest because it includes compound sentences, dense and technical
language, and lists that are embedded in paragraph form rather than separated out to promote
easy reading and understanding. The Court’s modified Notice seeks to address these issues.
requirements. See Oladipo, 2019 WL 2775785, at *11 (approving notice that set forth options
available to class members, including if a member objected to the settlement). If the Parties
object to any of the Court’s modifications or seek to make any additional changes to the
Notice, they will file a joint letter on ECF with a redlined revision of the Court’s modified
Notice by August 20, 2025.
Likewise, the Notice Plan is reasonable and adequately meets the due process
requirements of Rule 23. The Notice Plan provides that both Parties will post copies of the
Notice and the Settlement Agreement on their websites and in their offices. (Id.) The Notice
Plan describes the manner in which the Parties will distribute the Notice, along with the
proposed Settlement Agreement, to a list of specified individuals, agencies, and organizations
likely to work with members of the Classes and their families, so that these entities may
provide the Notice to potential members of the Classes. Id. These individuals and entities
include, among others, managed care organizations, New York county mental hygiene
directors and other county officials, community mental health providers, hospitals,
institutional providers, legal organizations, and mental health advocacy organizations. Id.
The Notice Plan also requires Named Plaintiffs to maintain dedicated lines of communication
for members of both Classes to request further information or to ask questions or provide
comments about the proposed Settlement Agreement. Id.
Here, individual notice to members of the Classes is not practicable because
individual Class Members have not yet been referred for the Relevant Services and are
therefore not yet easily identified. This is particularly true because the proposed Settlement
Agreement requires Defendants to develop eligibility criteria for the Relevant Services.
(Settlement Agreement ¶ 35–40.) Because there are presently millions of Medicaid-enrolled
children under age 21 in New York State, providing individual notice to each of these
children by mail would be extremely expensive. Where individual members of the Classes
cannot be easily identified, and “where individual notice would be burdensome or
expensive,” notice by publication is appropriate. See MetLife, 689 F. Supp. 2d at 345
(citations omitted).
III. Timeline
The Court adopts the following timeline for distribution of the Notice and scheduling of a
final approval hearing:
Event Date
Completion of Notice Plan and Distribution of October 20, 2025
Notice
Named Plaintiffs to submit to Court their November 10, 2024
application for fees and costs
Objection Deadline November 24, 2025
Motion for Final Settlement Approval December 19, 2025
Named Plaintiffs to submit to Court all December 19, 2025
submissions in support and objections to the
settlement, filed publicly and/or under seal
with an accompanying sealing motion6
6 In light of the fact that the proposed Settlement Agreement concerns the provision of mental
health care to children, there is a risk that an objection by a member of the Classes or a member
of the public may include information about minors and their protected health information. It
may be that certain portions of the objections containing such information warrant being filed
under seal to protect privacy concerns. “A court’s decision to seal documents may be justified
only with specific, on-the-record findings that sealing is necessary to preserve higher values and
only if the sealing order is narrowly tailored to achieve that aim.” Brown v. Maxwell, 929 F.3d
41, 47 (2d Cir. 2019). Accordingly the Parties will meet and confer and propose to the Court a
procedure by which they will determine which objections will be publicly filed when submitted
to the Court and which objections, if any, will be included in a sealed submission accompanied
by a letter motion providing legal authority for a court order sealing part or all of the contents of
Final Approval Hearing January 6, 2026 at 10:00 AM
CONCLUSION
For the reasons set forth above, the Court grants the Parties’ Joint Motion for Preliminary
Approval of Class Action Settlement Agreement and for Other Relief (ECF No. 77) in its
entirety. The Parties’ proposed Settlement Agreement is preliminarily approved.
The Court approves the form and content of the modified Notice set forth as
Appendix I to this Opinion and Order. If the Parties object to any of the Court’s
modifications to the Proposed Notice or seek to make any additional changes to the modified
Notice, they will file a joint letter on ECF with a redlined revision of the Court’s modified
Notice by August 20, 2025.
The Court approves the proposed Notice Plan (ECF No. 77-4.) The Notice must be
distributed by October 20, 2025.
Class Members and other interested parties shall submit any comments or objections to
the proposed Settlement Agreement by November 21, 2025. Objections shall be submitted in
accordance with the procedure set forth in the Notice.
The Parties may file a brief (a) in support of final approval of the Settlement Agreement,
and (b) addressing any objections and comments by December 19, 2025. Named Plaintiffs will
also submit to the Court all submissions objecting or in support of the proposed Settlement
the objection due to the privacy interests at stake. The Parties’ proposal shall also identify how
the Parties will publicly document the filing of any objections that are entirely sealed due to the
nature of the information at issue. The Parties are reminded that a request to redact information
from an objection or to seek sealing of the entire objection must be “narrowly tailored” to protect
any privacy interests and any other “higher values.” Brown, 929 F.3d at 47.
Agreement, filed publicly and/or under seal with an accompanying sealing motion, by December
19, 2025.
The Final Approval Hearing concerning approval of the Settlement Agreement and
Named Plaintiffs’ request for attorney’s fees and costs will be held on January 6, 2026 at 10:00
am in Courtroom 1040 of the Alfonse D’Amato Courthouse, 100 Federal Plaza, Central Islip,
New York.
Dated: Central Islip, New York
August 19, 2025
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge
**PLEASE READ**
IMPORTANT NOTICE THAT MAY AFFECT YOUR RIGHTS
PROPOSED CLASS ACTION SETTLEMENT
This Notice is about a proposed settlement of the class action lawsuit C.K v. McDonald.
PURPOSE OF THIS NOTICE
This notice informs you about the proposed settlement of legal claims in a class action
lawsuit against James V. McDonald, the Commissioner of the New York State Department of
Health (“DOH”) and Ann Marie T. Sullivan, the Commissioner of the New York State Office of
Mental Health (“OMH”).
DOH is the state agency responsible for administering the Medicaid program. OMH helps
DOH administer Medicaid for people with serious mental illness, including children and teenagers
with serious emotional disturbances and other mental or behavioral health conditions. OMH also
has sole responsibility for licensing and overseeing the delivery of specialized services for these
groups of people. DOH and OMH’s collaboration to administer mental and behavioral health
programs relevant to this lawsuit is referred to as “New York Medicaid.”
This notice summarizes the Settlement Agreement (“Agreement”) and tells you what you
must do if you object to the Agreement. You are receiving this notice because you may be a
member of the Classes or a person who may act in the interest of members of the Classes.
BRIEF DESCRIPTION OF THE LAWSUIT
This class action lawsuit is about New York Medicaid’s provision of intensive home and
community-based mental health services to Medicaid-eligible children in New York State under
the age of 21 who have a mental or behavioral health condition. The lawsuit was filed on March
31, 2022 in federal court in the Eastern District of New York. It alleges that DOH and OMH fail
to provide required services in violation of federal Medicaid laws, the Americans with Disabilities
Act, and Section 504 of the Rehabilitation Act.
The lawsuit does not seek to recover any money.
The parties agreed to settle the lawsuit. They entered into this Agreement to improve the
provision of mental health services to children and youth in New York’s Medicaid program. The
lawsuit also requests that Defendants pay Plaintiffs’ counsel reasonable attorney’s fees and costs
for their work on this case. This Agreement does not include those fees and costs for Plaintiffs’
counsel. Any fees and costs for counsel will be negotiated separately from the Agreement.
DESCRIPTION OF THE CLASSES
This case has been certified as a class action against DOH and OMH on behalf of two
Classes of children and youth in New York State:
1. All current or future Medicaid-eligible children in New York State under the age of 21
(a) who have been diagnosed with a mental health or behavioral health condition, not
attributable to an intellectual or developmental disability, and (b) for whom a licensed
practitioner of the healing arts acting within the scope of practice under state law has
recommended intensive home and community-based mental health services (as defined
in Appendix A of this Settlement Agreement) to correct or ameliorate their conditions.
2. An ADA Class of all current or future Medicaid-eligible children in New York State
under the age of 21 (a) who have been diagnosed with a mental health or behavioral
health condition, not attributable to an intellectual or developmental disability, that
substantially limits one or more major life activities, (b) for whom a licensed
practitioner of the healing arts acting within the scope of practice under state law has
recommended intensive home and community-based mental health services (as
defined in Appendix A of this Settlement Agreement) to correct or ameliorate their
conditions or who have been determined eligible for HCBS Waiver Services (as
defined in Appendix A of this Settlement Agreement), and (c) who are segregated,
institutionalized, or at serious risk of becoming institutionalized due to their mental
health or behavioral health condition.
In other words, the Classes include children and youth with mental or behavioral health
conditions who need intensive home and community-based services. They also include children
and youth who might become institutionalized if they don’t get these services. The Classes do not
include people with addiction disorders or intellectual or developmental disabilities without a
mental health diagnosis.
SUMMARY OF THE SETTLEMENT AGREEMENT
The main objective of the Agreement is to ensure that New York Medicaid develops and
delivers intensive home and community-based mental health services to children and youth in the
Classes. These are referred to as the “Relevant Services.”
The Relevant Services include:
(1) Intensive Care Coordination,
(2) Intensive Home-Based Behavioral Health Services,
(3) Mobile Crisis Services, and
(4) Medicaid Home and Community- Based Waiver Services.
The Relevant Services are defined in the attached “Appendix A” from the Settlement
Agreement. Under the Agreement, DOH and OMH have agreed to, among other things:
(a) make changes to the standards and requirements for delivering these services;
(b) make changes to the eligibility criteria for access to these services;
(c) increase the pathways available for accessing these services;
(d) regularly review Medicaid reimbursement rates for these services; and
(e) ensure that these Relevant Services are available throughout New York State and
provided to members of the Classes who need them.
As part of the Agreement, New York Medicaid has agreed to make additional changes to
their mental and behavioral health services, including:
• Screening and assessing potential Class Members statewide for eligibility for the
Relevant Services;
• Ensuring sufficient numbers of providers are available to deliver the Relevant Services
in a timely manner;
• Providing public data related to those receiving the Relevant Services;
• Tracking and reviewing the quality of the Medicaid mental and behavioral health
system to make sure that the children who need these services get them;
• Hiring an expert in children and family services to review New York Medicaid’s
progress in meeting the Agreement’s requirements and reporting to the Court; and
• Developing a plan to inform potential referring providers and eligible children and their
families/caregivers about the availability of the Relevant Services.
This lawsuit does not seek money damages for the Classes. The Agreement does not
include any money for Class Members.
PROCEDURES FOR OBJECTING TO THE SETTLEMENT
If you agree with the Agreement between Plaintiffs and New York Medicaid, you DO
NOT need to do anything. You may attend the public hearing on the Agreement (called the
“Fairness Hearing”) where the Judge will determine whether the Agreement is fair, reasonable,
and adequate as to members of the Classes.
If you have objections to the Proposed Agreement, please mail or email them by the
November 21, 2025 deadline to Plaintiffs’ counsel at:
CHILDREN’S RIGHTS, INC.
Attn: Daniele Gerard
88 Pine Street, Suite 800
New York, NY 10005
OR
Email: NYMedicaid@childrensrights.org
Your objection should include your name and address. Please be specific about the basis
for your objection. If you do not mail or email your objection by the November 21, 2025 deadline,
the Court is not required to consider your objection and can stop you from speaking at the Fairness
Hearing.
HEARING ON THE FAIRNESS OF THE AGREEMENT
The Court will hold the Fairness Hearing to review the proposed Agreement and decide
whether it is fair, reasonable, and adequate as to members of the Classes and should be approved.
If the Court approves the Agreement after the Fairness Hearing, the Agreement will be
binding upon all members of the Classes.
The Fairness Hearing will be held on January 6, 2026 at 10:00 am in the Courtroom of
the Honorable Nusrat J. Choudhury of the U.S. District Court for the Eastern District of New York.
The Courtroom address is:
United States District Court
Eastern District of New York
Long Island Courthouse
100 Federal Plaza
Central Islip, NY 11722
If you wish to speak at the Fairness Hearing to support or oppose the Agreement, you must
mail or email a letter stating your name, mailing address, and desire to speak at the hearing by
November 21, 2025 to Plaintiffs’ counsel Children’s Rights at the mail and email addresses
provided above. Plaintiffs’ counsel will send your request to the Court.
The Court will either grant or deny your request. You will then receive notice of the Court’s
decision before the Fairness Hearing.
OBTAINING ADDITIONAL INFORMATION
A copy of the Agreement is located at the following websites: www.________.com. If you
would like to receive a printed copy in the mail, please email the lawyers for Plaintiffs at
NYMedicaid@childrensrights.org. If you have questions about this notice or the Agreement, you
may also contact the lawyers for Plaintiffs by (1) sending a letter to the address above or (2)
sending an email to NYMedicaid@childrensrights.org.
**PLEASE DO NOT CALL JUDGE CHOUDHURY
OR THE CLERK OF THE COURT**
The Court will NOT be able to answer your questions about the class action lawsuit or the
Agreement. If you have questions, you may contact the lawyers for Plaintiffs at the email
provided above.
APPENDIX A
Intensive Home and Community-Based Mental and Behavioral Health
Services, the “Relevant Services,” for the Classes
As described in the Amended Complaint and Plaintiffs’ expert reports, children with serious
mental and behavioral health conditions benefit from specific intensive mental and behavioral
health services, provided in their homes and communities, to correct or ameliorate their
conditions. These Medicaid-required services, collectively referred to as Intensive Home and
Community-Based Services, include Intensive Care Coordination (“ICC”), Intensive In-Home
Services, sometimes referred to as Intensive Home-Based Behavioral Health Services
(“IHBBHS”), and Mobile Crisis Services.
A. Intensive Home and Community-Based Services
1. Intensive Care Coordination
ICC is an assessment and service planning process conducted through a child and family team
that coordinates services across multiple systems that serve the child and family, and manages
the care and services they need. This includes assessment and service planning, assistance in
accessing and arranging for mental or behavioral health services, coordinating multiple mental or
behavioral health services, advocating for the child and the child’s family, monitoring the child’s
progress, and transition planning.
• A single point of accountability for ensuring that medically necessary Medicaid
services are accessed, coordinated, and delivered in a strength-based, individualized,
family-driven, child-guided, culturally and linguistically relevant manner;
• Services and supports that are guided by the needs of the child;
• Facilitation of a collaborative relationship among a child, the family, and child-
serving systems;
• Support for the family/caregiver in meeting the child’s needs;
• A care planning process that ensures that a single, consistent care coordinator
coordinates care across providers and child-serving systems to allow the child to be
served in the home and community; and
• Facilitated development of an individual’s child and family team, including
individuals selected by the child and family who are committed to them through
informal, formal, and community support and service relationships. ICC will
facilitate cross-system involvement and a child and family team.
ICC service components consist of:
Assessment: The ICC performs or coordinates the performance of assessments and assessment-
based care coordination activities, including, but not limited to:
• A strengths-based, needs-driven, comprehensive assessment that identifies the needs
of the child for medical, school-related, social, or mental or behavioral health
services, to organize and guide the development of a Person-Centered Plan and a risk
management/safety plan;
• Planning and coordination of urgent needs before the comprehensive assessment is
completed; and
• Further assessments as necessary within the scope of ICC.
Planning and Development of a Family-Driven, Child-Guided, Person-Centered Plan (“PCP”):
ICC providers will maintain a family-driven, child-guided, person-centered planning process,
which includes:
• Having the care coordinator use the information collected through an assessment, to
convene and facilitate the child and family team meetings;
• Having the child and family team develop a child-guided and family-driven PCP that
specifies the goals and actions to address the medical, school-related, social, mental
or behavioral health, and other services needed by the child and family; and
• Ensuring that the care coordinator works directly with the child, the family, and
others significant to the child to identify strengths, goals, and needs of the child and
family, to inform the PCP.
Crisis Planning: The ICC provider will provide or coordinate crisis planning that, based on the
child’s history and needs, (a) anticipates the types of crises that may occur, (b) identifies
potential precipitants and creates a crisis plan to reduce or eliminate them, and (c) establishes
responsive strategies by family or caregivers and members of the child’s team to minimize crises
and ensure safety through the development of the risk management/safety plan.
Referral, monitoring, and related activities: The ICC provider must do the following:
• Work directly with the child and family team to implement elements of the PCP;
• Prepare, monitor, and modify the PCP in concert with the child and family team and
determine whether services are being provided in accordance with the PCP and
whether services in the PCP are adequate to meet the child’s needs; and if not, or if
there are changes in the needs or status of the child, adjust the PCP as necessary, in
concert with the child and family team; and
• Actively assist the child and family to obtain available services, including medical,
school-related, mental or behavioral health, social, therapeutic and other services, and
monitor the provision of such services, including by ensuring receipt of available
services in accordance with the PCP.
• Coordinate with local governmental units (the counties) to ensure that children
receive available services.
Transition: The ICC provider will:
• Develop a transition plan with the child and family team, and implement such plan
when the child has achieved the goals of the PCP; and
• Collaborate with the other service providers and agencies on behalf of the child and
family in order to effectuate the transition plan.
Settings: ICC may be provided to children living and receiving services at home and in the
community, including foster care placements, as well as to children who are currently in a
hospital, group home, or other congregate or institutional placement as part of discharge or
transition planning. Notwithstanding the foregoing, ICC will not be provided to children in
juvenile detention centers.
Providers: ICC is provided by a qualified provider.
2. Intensive Home-Based Behavioral Health Services
IHBBHS are intensive behavioral health services and supports, including individualized
therapeutic interventions, provided on a frequent and consistent basis and delivered to children
and families in the child’s home or appropriate community-based setting. Interventions help the
child to build skills necessary for successful functioning in the home and community and improve
the family’s or caregiver’s ability to help the child successfully function in the home and
community.
IHBBHS are delivered according to a care plan developed by the child and family team. The
IHBBHS treatment plan shall develop goals and objectives for all life domains in which the child’s
mental or behavioral health condition causes impaired functioning, including family life,
community life, education, vocation, and independent living, and identifies the specific
interventions that will be implemented to meet those goals and objectives.
Providers of IHBBHS should engage the child and other family members or caregivers in home
and community activities where the child has an opportunity to work towards identified goals and
objectives in the child’s home or appropriate community-based setting.
IHBBHS may be provided by telehealth, as appropriate and where identified in the individual’s
IHBBHS treatment plan.
IHBBHS include, but are not limited to:
• Educating the child’s family about, and training the family in addressing, the child’s
needs;
• Comprehensive mental health assessments;
• Behavioral supports, provided based on the PCP, which offer interventions, supports,
and modeling for the child’s family and others on how to implement strategies to
guide and support a child’s positive behaviors. These services provided by in-home
non-licensed practitioners, assist in implementing the goals of the treatment plan,
monitor its effectiveness, and report the interventions’ effectiveness to clinical
professionals;
• Therapeutic services delivered in the child’s home and community, including, but not
limited to, therapeutic interventions such as individual and/or family therapy,
including evidence-based practices. These services:
o Improve wellness, including addressing behaviors and social skills deficits
that limit the child’s ability to function in the child’s natural environment;
o Improve self-management of symptoms, including teaching self-
administration of medications, as developmentally appropriate;
o Improve psychosocial functioning, including addressing social skills deficits,
anger management, and emotional regulation skills, as developmentally
appropriate;
o Support the development and maintenance of social support networks and the
use of community resources, as developmentally appropriate;
o Support identifying and addressing behaviors that interfere with success in
other settings, such as employment or school; and
o Support independent living objectives by identifying and addressing
behaviors that interfere with seeking and maintaining housing and living
independently, as developmentally appropriate.
Settings: IHBBHS may be provided to children living and receiving services at home and in the
community, including foster care placements.
Providers: IHBBHS are provided by a qualified provider.
3. Mobile Crisis Services
Mobile crisis services (“MCS”) are mental or behavioral health services designed to interrupt and
ameliorate a child or youth’s crisis episode, wherever the crisis occurs outside of an institutional
setting, through crisis intervention and/or resolution, de-escalation, and safety planning. Mobile
crisis services work to stabilize the child by providing interventions to minimize or prevent the
crisis in the future, with the intent of diverting emergency room visits or inpatient admissions,
and/or avoiding other behavior-related disruptions. Prior approval by a managed care plan or any
other entity shall not be required for a child to receive MCS.
Services include, but are not limited to:
• Responding to the immediate crisis and assessing child and family safety, and the
resources available to address immediate problems;
• Stabilization of functioning by reducing or eliminating immediate stressors and
providing counseling to assist the child, family, and caregivers in de-escalating
behaviors and interactions;
• Referral and coordination with (a) other services and supports necessary to continue
stabilization or prevent future crises from occurring, and (b) any current providers
and team members, including, but not limited to, the care coordinator, therapists,
family members, primary care practitioners, and school personnel; and
• Follow-up mobile crisis services, which include:
o Therapeutic communication and interactions to maintain stabilization
following a crisis episode and prevent escalation of mental and behavioral
health symptoms;
o Facilitation of engagement in mental and behavioral health services, care
coordination, medical health, or basic needs related to the original crisis
service; and
o Confirmation with service providers to ensure crisis services are in place
while the child/youth is awaiting initiation or resumption of other services.
Settings: During a crisis, MCS should be provided at the location where the crisis is occurring,
including the home (biological, foster, relative, or adoptive) or any other setting where the child
is naturally located, including schools, recreational settings, child-care centers, and other
community settings.
Availability: MCS are available 24 hours a day, seven days a week, 365 days a year.
Providers: MCS are provided by a trained and experienced mobile crisis professional or team.
MCS providers include both licensed and unlicensed staff.
B. Waiver Services to Ensure Receipt of Services in the Least Restrictive Setting
These services are used in conjunction with covered EPSDT services to support children with
serious emotional disturbances and to help maintain them in their homes and communities and
avoid higher levels of care and out-of-home placements. These services are currently authorized
through a waiver under Section 1915(c) of the Social Security Act and in conjunction with the
Section 1115 Demonstration Waiver, allowing New York State to spend federal Medicaid dollars
on these services.
These services improve a child’s, family’s, or caregiver’s ability to help the child successfully
function in the home and community. Such services include services or supports not required to
be covered under Medicaid EPSDT provisions. The specific services provided by New York’s
Home and Community Based Services (“HCBS”) Waiver will include services such as respite,
caregiver support and training, in-home response, and additional intensive services that may be
identified in connection with the development of the Implementation Plan.
Children receiving waiver services must have an individualized service plan developed
collaboratively with the child and family team. This plan documents the agreed upon goals,
objectives, and service activities. The individualized service plan must be reviewed and updated
to meet the needs of the child and family. The child and family team consists of the child, the
child’s parents or legal guardians, care coordinator, mental health professionals, and any other
persons that the child and family choose to include. The team meets to plan the supports a child
and family need to safely maintain the child in the home and community.