Opinion

Disability Advocates, Inc. v. Paterson

598 F. Supp. 2d 289
2009 U.S. Dist. LEXIS 13126
2009 WL 414682

Court: District Court, E.D. New York
Filed: Feb 19, 2009
Status: Published
Author: Garaufis
On the bench: Nicholas G. Garaufis
Cited by: 17 cases
Authority: More cited than 69.6%

ruling that Title II covered a state entity that licensed private entities to operate adult homes for individuals with disabilities

How later courts described this case

ruling that Title II covered a state entity that licensed private entities to operate adult homes for individuals with disabilities
noting that “Olmstead instructed the trial court on remand to conduct an assessment of the state’s actual savings from implementing the relief plaintiffs sought, rather than simply comparing the cost of community placement with the cost of institutional care”
holding that “assessing and moving” plaintiffs to integrated setting in which the state already provides services to others not a fundamental alteration
concluding that issues of material fact precluded granting summary judgment to Defendants

Written by the judges who cited it.

The opinion

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

The “integration mandate” of Title II of the American with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”), as expressed in federal regulations and

Olmstead v. L.C.,

527 U.S. 581 , 119 S.Ct. 2176 , 144 L.Ed.2d 540 (1999), requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” The Supreme Court explicitly held in

Olmstead

that “[u]njustified isolation ... is properly regarded as discrimination based on disability,” observing that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” 527 U.S. at 600 , 119 S.Ct. 2176 .

Plaintiff Disability Advocates, Inc. (“Plaintiff’ or “DAI”) is a protection and advocacy organization authorized by statute to bring suits on behalf of individuals with disabilities. It brings this suit on behalf of adults with mental illness who live in twenty-one “adult homes.” Adult homes are residential adult care facilities licensed by the State of New York (the “State”) to provide long-term care and supervision to people with disabilities and/or mental illness. DAI alleges that these particular adult homes — all of which are located in New York City and have more than 120 residents, more than 25% of whom have mental disabilities — are segregated settings akin to psychiatric institutions. According to DAI, many of its constituents are qualified to live in “supported housing,” an alternative form of housing in which individuals with mental illness live in their own apartments scattered throughout the community and receive supportive services. DAI thus alleges a violation of the integration mandate, claiming that its constituents are not receiving services in the “most integrated setting appropriate for their needs.”

DAI has named as defendants the New York State Department of Health (“DOH”) and the New York State Office of Mental Health (“OMH”), as well as Governor David A. Paterson and the Commissioners of DOH and OMH (collectively, “Defendants”), each sued in their official capacities.

DAI seeks declaratory and injunctive relief requiring Defendants “to take such steps as are necessary to enable Plaintiffs constituents to receive services in the most integrated setting appropriate to their needs” (Compl. 34 (Docket Entry # 1)), and proposes an order requiring Defendants to offer supported housing to those of DATs constituents who are qualified to move. (PI. Mem. Opp. Summ. J. (“PL Opp.”) 27 (Docket Entry # 202).)

Defendants have brought a Motion for Summary Judgment. (Def. Mot. Summ. J.

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(Docket Entry # 145); Def. Mem. Supp. Summ. J. (“Def. Mem.”) (Docket # 172).) First, Defendants contend that DAI lacks standing to bring these claims and to seek system-wide injunctive relief. Second, they argue that Title II of the ADA does not apply to DATs claims, because the adult homes are privately operated and the State merely licenses and inspects them. Third, they claim that adult home residents are already in the “most integrated setting,” because adult homes and supported housing are “equally integrated” with the community. Fourth, they argue that DAI has not established that adult home residents are qualified to move to alternative housing. Fifth, they contend that the Governor is not a proper defendant.

(See

Def. Mem. 35, 44, 65, 82.)

In addition to these arguments on the merits of DATs case, Defendants also seek summary judgment on their “fundamental alteration” affirmative defense. This defense, described in the regulations and discussed in

Olmstead ,

provides that even if the individuals whose placement is at issue are not in the most integrated settings appropriate to their needs, the State need not take a particular action that would constitute a “fundamental alteration” of its programs and services, taking into account the State’s available resources and its obligations to provide services to others with disabilities. Defendants contend that even if DAI could establish a violation of the integration mandate, Defendants should not be required to move adult home residents to alternative settings because doing so would impose a fundamental alteration.

(See id.

at 70-71.)

DAI has also brought a Motion for Partial Summary Judgment solely on the fundamental alteration defense. (PI. Mot. Partial Summ. J. (Docket Entry # 176).) It contends that Defendants have failed to develop an effective plan to comply with the integration mandate of Title II and

Olmstead

— an

“Olmstead

plan” — with respect to adult home residents, and that this failure precludes Defendants from asserting a fundamental alteration defense. (PI. Mem. Supp. Partial Summ. J. (“PI. Mem.”) (Docket Entry # 176).)

For the reasons below, the parties’ Motions are DENIED. The court concludes that DAI has standing, that Title II applies to DATs claims, and that the Governor is a proper party. Regarding whether DAI’s constituents are in the “most integrated setting appropriate to their needs,” including whether they are qualified to move to alternative settings, Defendants have not met their burden for summary judgment. On the fundamental alteration defense, summary judgment is denied to both Plaintiff and Defendants; the issues for trial are set forth below.

I. PROCEDURAL HISTORY

Plaintiff filed this case on July 1, 2003. (Docket Entry # 1.) Discovery concluded on November 14, 2006. (Status Conf. before Magistrate Judge Marilyn D. Go, Nov. 14, 2006.) The parties filed their Motions for Summary Judgment on August 10, 2007, with opposition and reply memoranda to follow. (Scheduling Order dated Aug. 7, 2007 (Docket Entry # 179).) The parties requested extensions of time, and the two Motions were fully briefed on January 31, 2008.

(Docket Entries # 221-223.)

In conjunction with the Motions for Summary Judgment, Defendants also sub

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xnitted two evidentiary motions seeking to exclude portions of Plaintiffs evidence. (Docket Entries # 173, 219.) One was fully briefed on January 31, 2008; the other was fully briefed on February 29, 2008. (Docket Entries #218, 229.) The court ruled on these motions on December 22, 2008 and presumes familiarity with that Memorandum

Order.

See Disability Advocates, Inc. v. Paterson

(“December M & O”), No. 03-CV-3209 (NGG)(MDG), 2008 WL 5378365 (E.D.N.Y. Dec. 22, 2008).

Currently before the court are the parties’ Motions for Summary Judgment. The claims on which the parties seek summary judgment are fact-intensive and rely on a voluminous and comprehensive record containing more than 13,000 pages. The parties have provided hundreds of pages of briefing on the factual and legal issues and have submitted approximately 675 exhibits, including affidavits and declarations of fact and expert witnesses, government reports, and deposition testimony. The court wishes to compliment the parties on their extensive and thoughtful analysis of the complex legal and factual issues in this case. While the court is not required to look beyond the evidence cited in the parties’ Rule 56.1 Statements and responses,

see Morisseau v. DLA Piper,

532 F.Supp.2d 595, 618 (S.D.N.Y.2008) (discussing Local Civ. R. 56.1), it has considered additional evidence cited in the parties’ memoranda of law in the interest of thoroughness.

II. STANDARD OF REVIEW

Summary judgment is appropriate when no genuine issue of material fact exists.

See

Fed.R.Civ.P. 56(c);

D’Amico v. City of New York,

132 F.3d 145 , 149 (2d Cir.1998),

cert. denied,

524 U.S. 911 , 118 S.Ct. 2075 , 141 L.Ed.2d 151 (1998). The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment.

See Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970);

Gallo v. Prudential Residential Sens., L.P.,

22 F.3d 1219, 1223-24 (2d Cir.1994).

The substantive law governing the case will identify those facts that are material and “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). The court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson,

477 U.S. at 251-252 , 106 S.Ct. 2505 . A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Id.

at 248 , 106 S.Ct. 2505 . “Therefore, summary judgment is improper if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.”

Lucente v. Int’l Bus. Machines Corp.,

310 F.3d 243, 254 (2d Cir.2002) (citation omitted).

In ruling on a motion for summary judgment, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments----”

Weyant v. Okst,

101 F.3d 845, 854 (2d Cir.1996) (citations omitted). As such, the non-movant “will have [his or her] allegations taken as true, and will receive the benefit of the doubt when [his or her] assertions conflict with those of the movant.”

Samuels v. Mockry,

77 F.3d 34, 35 (2d Cir.1996) (internal quotation marks and citation omitted). “Stated more succinctly, “[t]he evidence of the non-movant is to be believed.” ”

Lucente,

310 F.3d at

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254

(citing Anderson, 477

U.S. at 255, 106 S.Ct. 2505 ).

When parties have filed cross-motions for summary judgment, “the court ‘must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’ ”

Bronx Household of Faith v. Bd. of Educ.,

492 F.3d 89, 96 (2d Cir.2007) (citation omitted). When there is no issue of fact as to an affirmative defense, courts have granted partial summary judgment striking that defense.

See, e.g., Northwestern Mut. Life Ins. Co. v. Fogel,

78 F.Supp.2d 70 (E.D.N.Y.1999).

III. BACKGROUND

The following background sets forth only some of the relevant evidence. More detail is provided in the discussion and analysis of each claim.

A. Adult Homes

Adult homes are a type of adult care facility licensed by the State of New York and authorized “to provide long-term residential care, room, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator.” N.Y. Comp.Codes R. & Regs. tit. 18, §§ 485.2(b), 487.2(a). All of the adult homes in New York State are populated entirely by people with disabilities and/or mental illness. (DOH, Adult Care Facility Census Rep. 2006 (Declaration of Anne S. Raish (“Raish Decl.”) Ex. 2 (Docket Entries # 182-83)); DOH, Adult Care Facility Census Rep. 2004-2005 (Raish Decl. Ex. 31).) The adult homes are privately owned.

(See, e.g.,

Affidavit of David V. Wollner (“Wollner Aff.”) ¶ 2 (Docket Entry # 164); Affidavit of Leon Hofman (“Hofman Aff.”) ¶ 3 (Docket Entry # 151).) Defendant agencies DOH and OMH license, certify, and monitor the adult homes as well as the mental health services provided; the adult homes are subject to a comprehensive statutory and regulatory scheme, discussed in Section IV.A below.

There are currently 380 licensed adult homes in New York State, 44 of which are in New York City. (Def. 56.1 Statement ¶¶ 12, 13 (Docket Entry # 171).) While the State does not require anyone to live in an adult home, a State statute provides that State hospitals and other psychiatric facilities licensed by the State will use adult homes for discharge.

See

N.Y. Mental Hyg. L. § 29.15 (i)(2)(II). According to Plaintiffs evidence, many individuals currently living in adult homes have come to live there following their discharge from State psychiatric centers and hospitals and other institutional settings, such as nursing homes.

(See, e.g.,

Affidavit of Clarence Sundram (“Sundram Aff.”) ¶¶ 8-11 (Docket Entry # 211); B.R. Decl. ¶¶ 7-8; N.B. Decl. ¶¶ 9; S.B. Dep. 136-38; Declaration of Dennis Jones (“D. Jones Decl.”) Ex. A at 5-7 (Docket Entry # 207); Ocean House Resident Matrix (Declaration of Francine N. Murray (“Murray Deck”) Ex. 124 (Docket Entry # 214)) (indicating that 65 out of 107 residents who were at Ocean House at the time of its closure had been admitted from State psychiatric hospitals, including one as recently as 2005).)

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recent years, however, a much smaller percentage of patients discharged from State hospitals have gone to adult homes; since 2003, less than 5% of such patients have been discharged to adult homes. (Def. 56.1 Statement ¶ 11.) In addition to State hospitals and psychiatric centers, adult home residents have also come to live in the adult homes from other venues, including private hospitals, the New York City shelter system, other adult homes in the State, and their families’ homes.

(Id.

¶ 10.)

In 2002, there were 12,586 recipients of mental health services residing in adult homes statewide. (OMH, 2004-2008 Statewide Comprehensive Plan for Mental Health Servs. (“OMH 2004-2008 Plan”) 69 (Raish Decl. Ex. 56).) 10, 971 of these were in “impacted” adult homes

(id.);

“impacted” refers to adult homes in which at least 25% or 25 residents, whichever is fewer, have mental disabilities. The number of individuals in impacted adult homes is more than twice the number of adults with mental illness in State-operated hospital inpatient programs.

In New York City, there are are approximately 4,000 adults with mental illness currently living in adult homes. (PI. 56.1 Statement ¶ 70 (Docket Entry # 177).) Of the forty-four adult homes in New York City, thirty-eight are impacted.

(Def. 56.1 Statement ¶ 13.) Of these thirty-eight homes, twenty-eight are certified for more than 120 beds.

(Id.

¶ 14.) The relief DAI seeks is directed exclusively at twenty-one impacted adult homes in New York City with more than 120 beds.

(Compl. ¶ 35.) At the end of 2006, in fifteen of those homes, 95% or more of the residents had mental illness, and four of the homes were populated entirely by individuals with mental illness. (PL 56.1 Statement ¶¶ 5, 6.)

B. The Development of Adult Homes

According to several former State officials, the placement of large numbers of individuals with mental illness in adult homes developed in response to the State’s deinstitutionalization movement of the 1970s and 1980s, when the State reduced the number of mentally ill individuals in State psychiatric hospitals.

Linda Rosenberg attested that when New York State deinstitutionalized, the State made a “policy decision” to serve large numbers of

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former patients in adult homes. (Affidavit of Linda Rosenberg (“Rosenberg Aff.”) ¶ 5 (Docket Entry #206).) Ms. Rosenberg worked in positions of responsibility in New York’s mental health system for thirty years and served as the Deputy Commissioner of OMH from 1997 to 2004. Similarly, Clarence Sundram served from 1978 to 1998 as the Chairman and Chief Executive Officer of the New York State Commission on the Quality of Care for the Mentally Disabled (now the Commission on Quality of Care and Advocacy for Persons with Disabilities) (“CQC”), an independent State agency. (Sundram Aff. ¶ 3.) He attested that the placement of large numbers of people with mental illness into adult homes was the result of a “conscious State policy” to discharge patients from psychiatric hospitals into these facilities “due to the absence of other housing alternatives at a time when psychiatric centers were under pressure to downsize.”

(Id.

¶ 8.) According to Mr. Sundram, to meet the growing need for housing created by the large numbers of discharges from state psychiatric hospitals, the state licensed private providers to create adult homes using under-utilized facilities, such as hotels, motels, YMCAs, and other similar buildings.

(Id.

¶ 9.) James Stone, the defendant Commissioner of OMH when this suit was filed, similarly noted in a memorandum that “[ajdult homes developed in a response to a need — lack of community based housing resources.... Deinstitutionalization happened and the community resources weren’t up to speed with state operated bed reductions.” (Mem. to Members of Mental Health Servs. Council from OMH Comm’r James Stone (Nov. 22, 2002) (Raish Decl. Ex. 38).)

Plaintiff points out that the State has long characterized adult homes as institutions. In government reports published in 1979, New York State and New York City officials referred to these adult homes as “de facto mental institutions” and “satellite mental institutions.” (Deputy Att’y Gen. Charles J. Hynes, Private Proprietary Homes for Adults 38 (Mar. 31, 1979) (Murray Decl. Ex. 69); New York City Council Subcomm. on Adult Homes, The Adult Home Industry: A Preliminary Report 14 (Murray Decl. Ex. 70).) On its website, OMH currently characterizes adult homes as an “institutional setting!]” in which people with mental illness are “stuck”:

[T]he unmet need for decent, safe and affordable housing — often with supports — is very substantial for people with mental illness. As a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with a mental illness are poorly housed or institutionalized. Thus, many people with a mental illness are ‘stuck’ in ... institutional settings (nursing homes, adult homes, state psychiatric centers).

(OMH, Guiding Principles for the Redesign of the OMH Housing and Community Support Policies 1 (Murray Decl. Ex. 71).)

C. Facts and Characteristics about the Adult Homes at Issue

On the issue of whether adult home residents are in the most integrated setting appropriate to their needs, the parties have submitted voluminous evidence about the characteristics of adult homes.

Both parties have submitted evidence on the extent to which the adult homes share characteristics of institutions, opportunities for adult home residents to interact with people outside the adult homes, and programs and services offered in the

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homes. Some evidence is set forth here as background and other evidence is discussed in the analysis of the parties’ claims below. The parties rely on expert testimony;

depositions and declarations of twenty-three individuals who live (or have lived) in adult homes;

and affidavits and depositions of numerous fact witnesses, including former and current New York state officials, mental health service providers, and staff in adult homes and supported housing programs.

While it is undisputed that the adult homes share certain characteristics of medical facilities and inpatient psychiatric facilities, the parties’ expert and fact witnesses ultimately disagree as to whether the homes are akin to “institutions.” Defendants characterize adult homes as facilities that “provide a place to live, meals, housekeeping and laundry services,” as well as “assistance with self-administration of medications, and some assistance with personal needs such as grooming and dressing.” (Affidavit of Mary E. Hart (“Hart Aff.”) ¶ 7 (Docket Entry # 149).) DATs and Defendants’ experts observed that adult homes share characteristics of medical facilities and inpatient psychiatric facilities. (Decl. Alan G. Kaufman (“Kaufman Deck”) Ex. Kaufman-A at 8 (Docket Entry # 152);

see

Affidavit of Elizabeth Jones (“E. Jones. Aff.”) Ex. A at 8 (Docket Entry # 208); D. Jones Deck Ex. A at 9-10; Rosenberg Aff. ¶ 12; Sundram Aff. ¶ 7; Schwartz Dep. 297-300.

)

Plaintiff has provided evidence about the regimented nature of the adult homes. For example, individuals with mental illness in the adult homes reside in close quarters entirely with other persons with disabilities and with significant numbers of other persons with mental illness. (E. Jones Aff. Ex. A at 8; D. Jones Deck Ex. A at 9; Sundram Aff. ¶ 7; Rosenberg Aff. ¶ 12.) Residents have testified that they receive treatment from on-site doctors and nurses. (S.B. Dep. 88-89, 45; P.B. Dep. 132; N.B. Deck ¶28.) At some adult homes, residents line up to receive medications from adult home staff, and self-administration of medication is discouraged. (Schwartz Dep. 319-320; S.B. Dep. 124-125; D.N. Dep. 89; G.L. Dep. 202-204; P.B. Dep. 131; S.P. Dep. 64; Affidavit of Kenneth Duckworth (“Duckworth Aff.”) Ex. A at 9, 13 (Docket Entry # 209).) According to one adult home resident, aides instruct residents as to what to do at various times of the day, including when to eat, bathe, and take medications. (O.J. Deck ¶¶ 17-20.) Another resident stated that at her adult home, all residents with diabetes must eat together a half-hour before everyone else takes their meal. (B.R. Deck ¶ 12.) Residents testified that they are assigned roommates and lack privacy. (S.P. Dep.

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134-136; O.J. Decl. ¶ 13; H.S. Decl. ¶ 11; G.H. Dep. 128; E. Jones Aff. Ex. A at 5.) Adult home residents have testified that they can only receive calls coming through the adult home switchboard and/or on extensions or pay phones in common areas (B.J. Dep. 125-126; S.P. Dep. 68-69) that lack privacy and are often chaotic (L.G. Dep. 116-118; J.M. Dep. 53-54; D.N. Dep. 238-244).

Plaintiff has provided evidence that adult homes have visiting hours (E. Jones Aff. Ex. A at 3; P.B. Dep. 109; G.L. Dep. 227; D.W. Dep. 132; S.P. Dep. 118), and visitors must identify themselves and sign in with the home (E. Jones Aff. Ex. A at 3, 8; D.W. Dep. 132; B.J. Dep. 115; L.G. Dep. 146). Visitors are received in noisy common areas (D.N. Dep. 238-41; D.W. Dep. 131-132; E. Jones Aff. Ex. A at 3), unless the resident’s roommate or management grants permission for visitors to enter their bedroom (E. Jones Aff. Ex. A at 3; L.G. Dep. 149-150). Some residents have testified that their adult homes do not permit visitors to join in meals or stay overnight. (B.J. Dep. 115, 121; D.W. Dep. 132.)

D. Discharge Planning and/or Information About Alternative Housing Options

The parties dispute whether and to what extent residents of adult homes receive discharge planning or information about alternative housing options. Defendants assert that adult home residents receive information about alternative housing and assistance in filling out forms to apply for alternative housing.

(See

Bear Dep. 53-54 (testifying that staff would help an adult home resident obtain alternative housing “if a client identifies that they want to move”); Aff. Jonas Waizer ¶ 67 (Docket Entry # 163) (attesting that staff helped one resident fill out application forms); Affidavit of Flora Bienstock (“Bienstock Aff.”) ¶ 6 (Docket Entry # 146) (attesting that staff assisted “a number of adult home residents with the application and interview process” for alternative living arrangements); Burstein Dep. 127-129 (testifying that when she reviews case management records and sees a notation about a resident wanting to move, she finds out whether the social worker has completed an application for alternative housing); Lockhart Dep. 70-87, 35-38, 49, 26 (testifying that staff: (1) informs residents about alternative housing, including supported housing, (2) provides residents with HRA 2000 application forms for supported housing, and (3) has helped approximately five residents fill out HRA 2000 forms).)

According to Plaintiffs witnesses, and even Defendants’ expert, Dr. Jeffrey Geller, adult home residents are not adequately informed about what their options are regarding housing.

(E. Jones Aff. Ex. A at 10; Geller Dep. 181 (testifying that

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residents are unable to make informed choices about their housing options because they are not adequately informed about the available alternatives).) Plaintiffs experts have observed that adult homes are permanent placements, and that “comprehensive discharge planning is nonexistent.” (E. Jones Aff. Ex. A at 3, 5; Duckworth Aff. Ex. A at 9; Duckworth Dep. 119-120.)

Adult home residents have testified that they have not received assistance in making or executing sound discharge or transfer plans. (R.A. Decl. ¶¶ 13-16; N.B. Deck ¶¶11, 23-30; O.J. Deck ¶¶ 22-24; B.R. Deck

6,19-22; H.S. Deck ¶¶ 7,12-19; P.B. Dep. 184-187; S.P. Dep. 105-107; S.B. Dep. 119-120.) Residents have testified that they are not provided with information about supported housing or other resources and benefits that might be available to them. (D.N. Dep. 136-137, 255; P.B. Dep. 175, 102-103; S.B. Dep. 90-92; L.G. Dep. 105-107; S.H. Dep. 102, 133-145; A.M. Dep. 134-136; S.P. Dep. 107, 110, 111; C.H. Dep. 119.) One of DAPs experts, Dr. Kenneth Duckworth, observed that mental health program staff are ill-informed about supported housing. (Duckworth Aff. Ex. A at 14;

see also

Mendel Dep. 63-65 (associate administrator of adult home testifying that he did not know whether there were different models of supportive housing, who generally operates supportive housing, or whether any residents have moved to supportive housing).) Residents have testified that they are discouraged by staff from expressing an interest in moving out.

(See, e.g.,

G.L. Dep. 102-103,105-107,123-124.)

One administrator testified that she was “not sure” whether, when she worked directly with residents as a social worker, she had been aware of supported housing being available to adult home residents. (Levine Dep. 71-75.) She also testified, however, that the social workers helped residents apply for “less restrictive housing,” and that she assisted two residents with applications, both of which were accepted.

(Id.

at 173-77.) She testified that there were other residents besides who were interested in other housing, but that she did not work with them to pursue it because “[t]here might have been other things that at the time were more pressing” to those residents.

(Id.

at 177.)

Plaintiff has provided testimony from adult home residents describing unsuccessful attempts to obtain assistance from social workers or treatment professionals in applying for housing. A former adult home resident testified that it took six months for his social worker from the day treatment program to complete his housing application. (A.M. Dep. 128-132.) Another former adult home resident testified that while his social worker helped him fill out a housing application, the application was never filed because the social worker did not complete the form before leaving his job. (M.B. Dep. 116-121.) One resident testified that she talked to her therapist about wanting to move out of the adult home, but the therapist never told her about supported housing, OMH housing, or applying for housing. (L.G. Dep. 105-106.)

E. Desire of Adult Home Residents to Move Out of the Adult Homes

Plaintiff has provided evidence in the form of deposition testimony, a study commissioned by DOH, and expert testimony indicating that a large percentage of adult home residents want to move out of the adult homes.

For example, many adult

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home residents have expressed a desire to move out of their adult home.

(See

R.A. Decl. ¶ 9 (“I want to move out of this place. I feel stuck here.”); N.B. Decl. ¶¶ 11-18; O.J. Decl. ¶ 7 (“I would like to move because I want to do my own cooking, cleaning, decorating, and shopping, and I want to handle my own money.”); B.R. Decl. ¶ 6 (“I would like to move out. I want to experience being out in life again.”); H.S. Decl. ¶¶ 10-11; S.B. Dep. 98, 111; L.G. Dep. 102; L.H. Dep. 121-122; G.H. Dep. 8-10; C.H. Dep. 127-129; I.K. Dep. 94-95; G.L. Dep. 101-102; D.N. Dep. 155; T.M. Dep. 98; S.P. Dep. 106-107, 137; D.W. Dep. 144,187.)

Plaintiff has also provided evidence that some adult home residents have expressed feelings of isolation in the adult home.

(See, e.g.,

R.A. Decl. ¶ 9 (“I feel stuck here.”)); N.B. DeclY 15 (“There isn’t any opportunity to interact with people who aren’t patients here.”); O.J. Decl. ¶ 16 (“[T]he area over here feels deserted.”); B.R. Decl. ¶ 18 (“I don’t know anyone in the neighborhood outside of Garden of Eden”); T.M. Dep. 110 (“It’s difficult to meet different people now ... [because yjou’re in program, you’re in home.”); S.P. Dep. 58 (stating that he feels “isolated” living in his adult home because “they don’t do anything [and everybody’s like indoors on top of one another.”)

Plaintiff also points to a study commissioned by DOH as evidence that adult llóme residents want to move. In December 2002, officials at DOH paid New York Presbyterian Hospital (“NYPH”) $1 million to conduct an assessment of residents in various adult homes in New York City, resulting in the New York State Adult Home Assessment Project (“Assessment Project”). (PI. 56.1 Statement ¶¶ 16-18.) The Assessment Project assessed 2,611 residents in nineteen adult homes, including fifteen of the homes at issue in this case.

(PI. 56.1 Statement ¶ 19.) According to Assessment Project data documentation, 35% of the adult home residents with mental illness who were assessed stated that they wanted to move to their own apartment, and another 21.2% stated that they wanted to move in with their family.

(Bruce Dep. 94-95; Adult Home Assessment Project Data Documentation, 2003-2005 (Raish Decl. Ex. 7).) Glenn Liebman, the DOH official who was principally charged with overseeing the Assessment Project, testified that the percentage of residents wanting their own apartment was 44%. (Liebman Dep. 100.)

One of Plaintiffs experts, Dr. Ivor Groves, analyzed the Assessment Project data, excluding the four homes not at issue in the litigation, and concluded that that a significant number of those assessed want to move out of an adult home. Dr. Groves determined that 2,080 of those assessed in the Assessment Project lived in fifteen of the adult homes at issue in this case.

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(Groves Aff. Ex. A at 2.) Analyzing the data for those 2,080 residents, Dr. Groves concluded that “1,536 expressed either (A) explicit interest in living elsewhere, including in an apartment, in supported living, or with family and relatives, or (B) did not express a preference for living in the Adult Home where they were residing.” (Groves Aff. Ex. A at 4.) Lisa Wickens, the Deputy Director of DOH’s Office of Health Systems Management, testified that when she explained the Assessment Project to adult home residents at “town hall” meetings, residents asked her, “When do I do the assessment, when can I leave?” (Wickens Dep. 74.)

In addition, Plaintiffs experts have opined that the Assessment Project data “greatly underestimates those who would want to move if given a meaningful choice.” (Duckworth Aff. Ex. A at 14;

see

E. Jones Aff. Ex. A at 10; Groves Aff. Ex. A at 4-5.) Dr. Duckworth noted that when residents answered questions as part of the Assessment Project, they “were never told about what alternatives would be available or what supports could be offered to meeting their needs in the community.” (Duckworth Aff. Ex. A at 14;

see also

Bruce Dep. 97 (testifying that when participants were asked about their own apartment, there was no effort to educate them about the availability of supported housing as an option).)

In addition to analyses of the Assessment Project data, Plaintiff has provided other expert testimony that a significant number of adult home residents want to move. One of Plaintiffs experts, Elizabeth Jones, found that roughly 90% of the 179 adult home residents whom she interviewed expressed a desire to live somewhere else if there were other options available. (E. Jones Aff. Ex. A at 3; E. Jones Dep. 130.) Plaintiff points out that even Defendants’ expert, Dr. Geller, concluded that 67 out of 134 residents whose records he reviewed want to live in a place other than the adult home. (Geller Dep. 209.)

F. Supported Housing and Other Types of OMH Housing for Persons with Mental Illness

The alternative housing that DAI seeks for its constituents is supported housing. This section provides a brief background on supported housing and other types of OMH-funded and/or OMH-licensed housing for individuals with mental illness, referred to collectively as “Housing for Persons with Mental Illness.” OMH currently provides 29,050 units of Housing for Persons with Mental Illness and has committed funds to develop an additional 9,800 supported housing beds.

(See, e.g.,

Affidavit of Robert Myers (“Myers Aff.”) ¶¶ 68-69 (Docket Entry # 156).)

1. Supported Housing

OMH funds supported housing, which is a category of Housing for Persons with Mental Illness in which residents live in apartments that are generally “scattered-site.” That is, the apartments are scattered throughout the community in numerous apartment buildings. (Bear Dep. 109, 150; Schwartz Dep. 198-199; Tsemberis Dep. 20.) Service provider Raymond Schwartz has testified that residents in supported housing can do “what anyone else can or cannot do in their apartment as an adult.” (Schwartz Dep. 202.) OMH official Christine Madan attested that there is only a two percent vacancy rate for scattered-site supported housing, which has “very little turnover” and “high demand.” (Affidavit of Christine S. Madan (“Madan Aff.”) ¶ 14 (Docket Entry # 154).)

In addition to scattered-site housing, supported housing also includes single-site housing, such as single-room occupancy (“SRO”) or single-site apartments, in which there are a number of apartments

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within one building, all occupied by persons with mental illness. (Aff. Michael A. Newman (“Newman Aff.”) ¶¶ 34, 36 (Docket Entry # 157); Madan Aff. ¶ 10.) Plaintiff has provided evidence that some providers of “single site” supported housing try not to have more than a certain percentage of apartments in one building occupied by people with mental illness. (Tsemberis Dep. 20-23.)

Plaintiff has provided evidence that supported housing is permanent housing, and that the residents either lease the apartment themselves or are sub-tenants of the housing provider. (Tsemberis Dep. 46-47;

see also

NYS OMH, NYC Field Office, Request for Proposals, Supported Housing for Adult Home Referrals 8 (Jan. 2007) (“OMH January 2007 RFP”) (Murray Decl. Ex. 81) (indicating that a “key principle” of supported housing is that it is “considered extended stay/long term.”).) According to OMH, supported housing providers may not impose exclusionary admission criteria related to past or current substance abuse.

(Id.)

The parties dispute what level of services supported housing is designed to provide, and what that means in practice. According to Defendants’ witnesses, supported housing is designed to provide only minimal support. OMH official Christine Madan attested that supported housing is “designed for the most independent individuals, who are expected to have good independent living skills and need only minimal staff assistance.” (Madan Aff. ¶ 10.) Literature from the Center for Urban Community Services (“CUCS”), an organization providing housing services, describes supported housing as “[ejxclusively for people with mental illness who are able to live independently with minimal support services.” (Affidavit of Jan Tacaronti (“Tacaronti Aff.”) Ex. Tacaronti-B (CUCS, Supportive Housing Options NYC) at 7 (Docket Entry # 162).) Michael Newman, the Director of OMH’s Housing Services Unit, attested that the supported housing scattered-site apartment model is “designed for individuals who typically have a high level of independent living skills and need only minimal case management support.” (Newman Aff. ¶ 38.)

According to Plaintiffs witnesses and OMH literature, on the other hand, supported housing is designed for people who need varying levels of support. (Rosenberg Aff. ¶ 13; Tsemberis Dep. 48; OMH January 2007 RFP 4-5 (“Many recipients will be ... at various stages of recovery” and “[services provided by the sponsoring agency will vary, depending upon the needs of the recipient”).) OMH’s January 2007 RFP provides that “[rjecipients of supported housing may be able to live in the community with a minimum of staff intervention from the sponsoring agency,” while “[o]thers may need the provision of additional supports,” such as an Assertive Community Treatment (ACT) team of Blended Case Management (BCM) services.

(Id.)

“It is expected that the need for services provided by the sponsoring agency will decrease over time as the recipient is more fully integrated into the community.”

(Id.

at 5.) An OMH description of residential programs in New York City and OMH’s Housing Development Manual for New York City describes the target population of scattered-site supported housing as “individuals who can live independently in generic housing with some community supports.” (Newman Aff. Exs. Newman-I, Newman-J.)

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According to Plaintiffs evidence, the services provided with supported housing are designed to be flexible, so that residents may receive help with cooking, shopping, budgeting, medication management and making appointments as needed, but can do all of these things themselves if they are able to. (Schwartz Dep. 191,193-196, 288-290; Tsemberis Dep. 28-29, 48; Lasicki Dep. 68, 70; Duckworth Aff. Ex. A at 10.) Service providers have testified that the flexibility of services for residents of supported housing means that the services can be increased or withdrawn as necessary and are usually more intensive when a person first moves in. (Bear Dep. 108-109; Schwartz Dep. 187-188; Lasicki Dep. 68; Tsemberis Dep. 76.)

Defendants point to evidence that, in practice, scattered-site supported housing residents receive as little as one or two visits per month from staff. (Bear Dep. 108, 115 (describing “graduate supported housing,” the “least restrictive of all the apartment programs”); Madan Aff. ¶ 10.) In contrast, Plaintiff points to evidence that residents in supported housing may receive case management services from a multi-disciplinary ACT team. (OMH, Assertive Community Treatment 1-2 (Murray Decl. Ex. 72);

see also

OMH Jan. 2007 Supported Housing RFP (Murray Decl. Ex. 81).) ACT services are “adjusted] over time to meet the recipient’s changing needs.” (OMH, Assertive Community Treatment.) A proposal to operate a supported housing program for adult home referrals states that program staff remain on-call and available to supported housing recipients 24 hours per day. (Proposal to Operate 20-Bed Supportive Housing Program for Adult Home Referrals 7 (Murray Decl. Ex. 137).)

2. Additional Types of OMH Housing for Persons with Mental Illness

In addition to supported housing, OMH also funds and/or licenses other types of Housing for Persons with Mental Illness. (Def. 56.1 Statement ¶ 41.) Licensed housing programs include: (1) congregate treatment programs (referred to as group homes or supervised community residences), (2) apartment treatment programs, and (3) community residence single-room occupancy (“CR-SRO”) programs.

(Id.

¶ 42.) Group homes are single-site facilities that provide meals, on-site rehabilitative services, and 24-hour staff coverage for up to forty-eight people.

(Id.

¶ 43.) Group homes generally range in size from eight to forty-eight beds. (Lasicki Dep. 60-61; Association for Community Living, Licensed Housing (Murray Decl. Ex. 126).) According to OMH, group homes average 14.6 people per home. (OMH, Guiding Principles for the Redesign of the Office of Mental Health Housing and Community Support Policies (May 16, 2007) (Murray Decl. Ex. 71).)

Apartment treatment programs provide transitional housing in shared apartments that usually house two to four people, and can be scattered-site units or occupy an entire building. (Def. 56.1 Statement ¶ 44.) Plaintiff has provided evidence that according to Agency for Community Living New York State (“ACLNYS”) — a statewide membership organization of not-for-profit agencies that provide housing and rehabilitation services to more than 20,000 people with psychiatric disabilities — licensed apartment treatment programs offer “staff visits as necessary to provide rehabilitative services designed to improve functioning and develop greater independence.” (ACLNYS, Licensed Residential Program Descriptions (Murray Decl. Ex. 126).)

CR-SRO programs provide extended-stay housing in which residents have their own rooms designed as studio apartments or as suites with single bedrooms around shared living spaces. (Def. 56.1 Statement

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¶45.) ACLNYS describes CR-SROs as “geared toward maintaining or improving functioning.” (ACLNYS, Licensed Residential Program Descriptions.) CR-SROs are usually located in one building and house up to one hundred individuals. (Def. 56.1 Statement ¶ 46), although Plaintiff has provided evidence that CR-SROs generally average thirty-five to sixty-five units (CUCS, Supportive Housing Options NYC (Murray Decl. Ex. 136)).

Defendants have provided evidence that some housing providers of group homes, apartment treatment programs, or CR-SRO programs set their own rules and policies and may have admission criteria, for example, a period of sobriety prior to admission. (Madan Aff. ¶¶ 12-13

Exs. A & B.) DAI has provided evidence that apartment treatment programs do not have curfews or visiting hours. (Lasicki Dep. 70, 71.)

3. Obtaining OMH Housing for Persons with Mental Illness

Regarding how individuals with mental illness obtain OMH Housing for Persons with Mental Illness, Defendants have provided testimony from State officials that individuals seeking such housing must submit a formal application — known as the “HRA 2000” — to the New York City Human Resources Administration (“HRA”), which determines eligibility and the level of services to be provided. (Madan Aff. ¶ 11.) In contrast, Plaintiff has provided testimony from supported housing providers that the HRA 2000 application is not required and that individuals often enter OMH housing programs without completing the HRA 2000 application. (Tsemberis Dep. 32-36 (testifying that the HRA 2000 application is not required for his agency providing supported housing and that agencies have contracts with hospitals and shelter programs to receive residents directly from those programs); Schwartz Dep. 145-147.) OMH’s Supported Housing Implementation Guidelines do not mention a requirement of an application. (OMH, Supported Housing Implementation Guidelines (Raish Decl. Ex. 50).) In addition to the HRA process, OMH has also created a Single Point of Access (“SPOA”) system for OMH housing programs in New York City, in which all applications for OMH Housing for Persons with Mental Illness are sent to a centralized source rather than to every housing provider. (Affidavit of Keith Simons (“Simons Aff.”) ¶¶ 75-78 (Docket Entry #160); Myers Aff. ¶ 89.)

G. Whether Adult Home Residents with Mental Illness Are Qualified for Supported Housing

The parties dispute whether, and how many, adult home residents with mental illness are qualified for supported housing. DAPs four experts, Dr. Kenneth Duck-worth, Elizabeth Jones, Dennis Jones, and Dr. Ivor Groves, concluded that almost all adult home residents with mental illness are qualified for supported housing. Specifically, Dr. Duckworth concluded, based on his review of residents’ records and in-person interviews, that “existing supported housing programs in New York could appropriately serve virtually all of the adult home residents with mental illness in the homes that are the subject of this litigation.” (Duckworth Aff. Ex. B at 2; Duck-worth Aff. Ex. A at 5 (“There are no material clinical differences between adult home residents and supported housing clients.”).) Based on her interviews of 179 residents of twenty-three impacted adult homes in New York City, Ms. Jones similarly opined that the vast majority of those residents were qualified for supported housing with appropriate supports. (E. Jones Aff. Ex. A at 1, 3; E. Jones Dep. 78, 88, 93-94.) Based on his analysis of the Assessment Project data, Dr. Groves concluded that of the 2,080 residents assessed who are or were in the adult homes at

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issue, “most, if not all, of the residents of Adult Homes could live in the community with appropriate levels of support.” (Groves Aff. Ex. A at 4.) DAI has also provided what appears to be an internal draft of a State presentation from November 2006 indicating that of the 1,688 residents examined in the Assessment Project for whom mental health diagnoses and complete cognitive scores were available, 650(39%) were judged to have sufficient cognitive functioning for independent living. (Adult Home Assessments, PowerPoint Presentation — Draft 28 (Nov. 2006) (Murray Decl. Ex. 74).)

DAI has provided additional evidence indicating that a substantial number of adult home residents with mental illness are qualified to move out of the adult homes. Plaintiff points out that Defendants’ expert, Dr. Geller, testified that 66.5% out of a group of 188 adult home residents are not in the “most appropriate residential setting appropriate for their needs.” (Geller Dep. 135;

see

Declaration of Jeffrey L. Geller (“Geller Decl.”) Ex. A at 44 (Docket Entry # 148) (indicating that 33.5% of the 188 adult home residents should remain in Adult Homes).) In a separate analysis of a group of 206 residents, Dr. Geller found that 134 residents were eligible for OMH’s community housing programs.

(Geller Decl. Ex. B at 6-7.) Of those 134 residents, sixty-six could leave the adult home and go into supportive housing, including fifty-nine who could go to supported housing, with or without ACT, and seven who could go to supportive housing after transitional residence. (Geller Dep. 196-199; 210.) A report submitted to the Commissioner of DOH by the Adult Care Facilities Workgroup concluded that of the 12,000 residents with psychiatric disabilities in adult care facilities, 6,000 “could reside in a more integrated setting.”

(Report of the Adult Care Facilities Workgroup (“Workgroup Report”) 30 (Oct. 2002) (Raish Decl. Ex. 57).) Plaintiff has provided testimony from state officials that there are residents of adult homes with mental illness who “could live in more integrated settings” (Wickens Dep. 46), in supported housing or apartments (Tacaronti Dep. 225-226;

see also

Affidavit of Joseph Reilly (“Reilly Aff.”) ¶ 25 (Docket Entry # 158)).

In response, Defendants dispute the opinions of Plaintiffs experts. They rely on evidence that the experts did not do clinical assessments of each individual with an evaluation by a multi-disciplinary treatment team.

(See, e.g.,

Def. 56.1 Statement ¶¶ 67, 68, 70;

id.

¶ 64 and Response (disputing whether Dr. Duckworth conducted clinical assessments).) They argue that because DAPs experts did not conduct clinical assessments with a multi-disciplinary team, they did not follow the “well-accepted methodology” for determining whether a person is qualified to live in a particular setting. The court has ruled that this challenge relates to the weight, not the admissibility, of the evidence.

See

Dec. M

O, 2008 WL 5378365 . Defen

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dants also point to evidence that some of DATs constituents are not qualified for supported housing based on notations from treatment providers in the records of six adult home residents indicating that those residents are not ready for discharge from the adult home. (Declaration of Barbara K. Hathaway (“Hathaway Decl.”) Exs. Hathaway-L, Hathaway-M, Hathaway-N, Hathaway-O, Hathaway-P, Hathaway-Q (Docket Entry # 150).)

IV. STANDING

The threshold issue on which Defendants seek summary judgment is standing. DAI is an authorized protection and advocacy (“P

A”) organization pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. § 10801

et seq.

(Affidavit of Cliff Zucker (“Zucker Aff.”) ¶ 4 (Docket Entry # 205); Ans. ¶ 8.) DATs mission is “to protect and advance the rights of adults and children who have disabilities so that they can freely exercise their own life choices, enforce their rights, and fully participate in their community life.” (Disability Advocates, Inc. (Murray Decl. Ex. 52).) Its constituents consist of “individuals with mental illness,” as defined under PAIMI.

42 U.S.C. § 10802 (4). PAIMI authorizes P & A organizations to advance the rights of individuals with disabilities.

See

42 U.S.C. § 10801

et seq.

By its terms, Section 10805(a)(1)(B) allows agencies with statutory authority to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness.... ”

It is well-established in this district that P

A organizations have standing to sue on behalf of their constituents, provided they meet the constitutional requirements for associational standing.

See, e.g., Joseph S. v. Hogan,

561 F.Supp.2d 280, 307 (E.D.N.Y.2008) (holding that DAI has standing to bring lawsuits to protect the rights of individuals with mental illness in New York);

Monaco v. Stone,

No. 98-CV-3386 (CPS), 2002 WL 32984617 , at *21 (E.D.N.Y. Dec. 20, 2002) (“Congress has authorized [P

A] organizations ... to bring suit on behalf of their constituents if they can meet the traditional test of associational standing.”);

Brown v. Stone,

66 F.Supp.2d 412 (E.D.N.Y.1999) (finding that plaintiff P & A organization had standing under Section 10805(a)(1)(B) to sue on behalf of current residents of state hospital).

Defendants make several arguments challenging DATs standing to bring this action. They argue that Section 10805(a)(1)(B) does not authorize P

A organizations to sue on behalf of their constituents. They also assert that DAI lacks associational standing to bring the claims asserted. Finally, they argue that DAI lacks standing to pursue system-wide relief. Considering these arguments in turn, the court rejects Defendants’ contention that DAI lacks standing.

A. DAI’s Enabling Statute

Defendants argue that DAI lacks standing under Section 10805(a)(1)(B) of its enabling statute. They argue that Section 10805(a)(1)(C) is “the only provision that authorizes PAIMI groups to bring actions ‘on behalf of its constituents,’ ” and that, therefore, Section 10805(a)(1)(B) does not confer standing on DAI to bring this suit.

(Def. Mem. 43.)

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Defendants have cited no authority for the proposition that lawsuits may

only

be brought under Section 10805(a)(1)(C), and as noted above, Section 10805(a)(1)(B) explicitly authorizes P & A organizations to “pursue administrative,

legal,

and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805 (a)(1)(B) (emphasis added). Indeed, courts in this circuit and elsewhere have explicitly rejected Defendants’ view.

See Joseph S.,

561 F.Supp.2d at 306-308 (holding that DAI had associational standing to bring claims on behalf of constituents under § 10805(a)(1)(B));

Brown,

66 F.Supp.2d at 425 (finding P & A plaintiff had standing under § 10805(a)(1)(B) to sue on behalf of current residents of state hospital);

Trautz v. Weisman,

846 F.Supp. 1160, 1163 (S.D.N.Y.1994) (“[I]f Congress merely intended for state systems to act as advocates [and not as plaintiff] on behalf of mentally [ill] individuals, it would not have included (a)(1)(B) in the statute in addition to (a)(1)(C).”);

see also Univ. Legal Servs., Inc. v. St. Elizabeths Hosp.,

No. 05-CV-00585 (TFH), 2005 WL 3275915 , at *5 (D.D.C. July 22, 2005) (“PAIMI authorizes organizations like ULS to pursue claims for system-wide change on their own behalf as an advocacy organization under § 10805(a)(1)(B).”);

Oregon Advocacy Ctr. v. Mink,

322 F.3d 1101 , 1113 (9th Cir.2003) (citing Section 10805(a)(1)(B) and holding that “Congress clearly intended PAIMI to confer standing on [P & A organizations] to litigate on behalf of those suffering from mental illness”). The court concludes, in accordance with the case law, that DAI has statutory authority to represent its constituents in this suit.

B. Associational Standing

An association has standing to bring claims on behalf of its members if the following three criteria are met: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Wash. State Apple Adver. Comm’n,

432 U.S. 333, 343 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977). The first two elements of this test are constitutionally required, while the third element is a prudential consideration.

See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc.,

517 U.S. 544, 555 , 116 S.Ct. 1529 , 134 L.Ed.2d 758 (1996). Only the first element is at issue here.

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Defendants argue that DAI lacks standing under

Hunt

because it has not established that a single one of its constituents has standing to sue in his or her own right. To establish standing, a plaintiff must show that he or she suffered an injury-in-fact that is fairly traceable to the defendants’ allegedly unlawful action, and which is likely to be redressed by a favorable decision.

Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992). The “injury-in-fact” alleged here is that DATs constituents are not in the “most integrated settings appropriate to their needs” — that is, that they are subject to unjustified segregation and are qualified to receive services in a more integrated setting. DAI has put forth substantial evidence in support of its claim that more than one thousand of its constituents are suffering this injury as a result of the State’s policies, procedures, and activities.

(See

Def. Mem. 65 (“DAI produced a list of 1536 residents who they claim are qualified to move to purportedly more integrated settings.”);

see also

Duckworth Aff. Ex. A at 5; E. Jones Aff. Ex. A at 11.) In terms of redressability, DAI seeks an order compelling Defendants to change the manner in which they administer New York’s mental health service system so as to enable adult home residents to live and receive services in the most integrated setting appropriate to their needs. (Compl. 34.) If Plaintiff prevails on its claims, the requested relief would redress the alleged injury.

See Int’l Union, United Auto., Aerospace & Agrie. Implement Workers v. Brock,

477 U.S. 274, 283-84 , 106 S.Ct. 2523 , 91 L.Ed.2d 228 (1986) (plaintiff union had associational standing because it did not seek the Court’s determination that benefits are due each of its members, but an order compelling defendant correctly to determine such benefits). DAI has thus satisfied the requirements of

Lujan

and the first element of associational standing in

Hunt .

Defendants also argue that DAI cannot establish injury-in-fact with respect to adult home residents who have not filed formal applications — HRA 2000s — to move to alternative housing programs. The court rejects this argument. First, standing to bring an ADA integration claim does not depend on whether a plaintiff has submitted an application for an agency program, service, or activity.

Olmstead,

527 U.S. at 601-603 , 119 S.Ct. 2176 (defining “qualified” as able to “meet[ ] the essential eligibility requirements” to receive community-based services with or without reasonable accommodation). Moreover, contrary to Defendants’ assertions, DAI has submitted evidence indicating that participation in the HRA 2000 application process is not a prerequisite for obtaining more integrated residential services, and

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that individuals can be placed in supported housing without completing an HRA 2000 application.

(See

Tsemberis Dep. 32-33; Schwartz Dep. 146-47, 167;

see also

OMH, Supported Housing Implementation Guidelines (Raish Decl. Ex. 50).) Second, Defendants concede that some of DAI’s constituents filed HRA 2000 applications. (Def. Mem. 37 (noting that their expert did a random sample of the 1,536 residents whom DAI claims are qualified to move and found that eighteen of the 206 residents in the sample had filed HRA 2000 applications).) Associational standing simply requires that

“one

or more of [the association’s] members has suffered a concrete and particularized injury.”

Building & Const. Trades Council v. Downtown Dev., Inc.,

448 F.3d 138 , 145 (2d Cir.2006) (emphasis added). DAI has met this requirement.

C. Standing to Seek System-Wide Injunctive Relief

Defendants also contend that even if DAI could show that any of its constituents have standing, DAI lacks standing to obtain

system-wide

relief, claiming that the “scope of DAI’s standing, and the corresponding remedy it may seek, is limited by the number of DAI’s constituents who meet the

Olmstead-required

elements of being qualified and having a desire to move to alternate housing.” (Def. Mem. 39.) In response, DAI contends that Defendants conflate two distinct issues: (1) whether DAI has standing to seek injunctive relief, and (2) the scope of the relief ultimately ordered, should DAI prevail. The court agrees that this distinction is significant here. Whether DAI may ultimately be entitled to the requested injunctive relief is not the same question as whether DAI has standing to seek injunctive relief.

Defendants cite cases addressing whether a plaintiff had standing to seek

any

prospective injunctive relief, not whether the relief could be system-wide. For example, in

Small v. General Nutrition Companies, Inc.,

388 F.Supp.2d 83 (E.D.N.Y.2005), in which an individual plaintiff and a plaintiff organization alleged discrimination based on the inaccessibility ■of a retailer’s stores to wheelchair users, the court found that the plaintiff organization failed to satisfy the first prong of

Hunt .

The organization failed to allege that a single one of its members had encountered barriers in the retailer’s stores or would have been likely to visit those stores in the future but for those barriers.

Id.

at 96-97. The organizational plaintiff in

Small

did not have standing because it failed to allege that its constituents had been subject to harm or would be in the future, and, therefore, could not seek an injunction.

Id.-, see also Clark v. Burger King Corp.,

255 F.Supp.2d 334, 345 (D.N.J.2003) (plaintiff failed to allege when any constituent visited allegedly inaccessi

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ble restaurant and when any constituent planned to return);

City of Los Angeles v. Lyons,

461 U.S. 95, 105-06 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983) (plaintiff lacked standing to seek prospective injunctive relief; fact that he was illegally stopped and choked by police did not establish an immediate threat that he would be stopped and illegally choked in the future). Here, however, DAI has alleged and provided evidence of an ongoing, system-wide harm to its constituents that could be redressed by the injunctive relief it seeks — an order requiring Defendants to move DATs constituents to alternative housing.

Other cases on which Defendants rely are similarly inapposite. Defendants rely on several cases that refused to order system-wide injunctive relief. (See Def. Mem. 41-42; Def. Reply Mem. Supp. Summ. J. (“Def. Reply Mem”) 3 (Docket Entry # 218).) In those cases, however, the issue was whether system-wide relief was warranted based on the evidence presented at trial. None addresses whether the plaintiffs had standing to bring a claim seeking system-wide relief.

Lewis v. Casey,

518 U.S. 343, 359 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996) (holding that two instances of unlawful conduct were an inadequate basis for system-wide relief);

Rizzo v. Goode,

423 U.S. 362, 379 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976);

Warth v. Seldin,

422 U.S. 490, 515 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975) (noting that declaratory and/or injunctive relief are prospective in nature, and that “it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.”).

V. TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION MANDATE

The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101 (b)(1). Title II of the ADA prohibits discrimination in access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 .

To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is a “qualified individual” with a disability; (2) that the defendants are subject to the ADA; and (3) that he or she was denied the opportunity to participate in or benefit from the defendants’ services, programs, or activities, or was discriminated against by defendants, by reason of his or her disability.

Henrietta D. v. Bloomberg,

331 F.3d 261, 272 (2d Cir.2003).

One form of discrimination “by reason of ... disability” is a violation of the ADA’s so-called “integration mandate.” This mandate — arising out of Congress’s explicit findings in the ADA, regulations of the Attorney General implementing Title II, and the Supreme Court’s decision in

Olmstead v. L.C.,

527 U.S. 581 , 119 S.Ct. 2176 ,

*312

144 L.Ed.2d 540 (1999) — requires that people with disabilities receive services in the “most integrated setting appropriate to their needs.”

In enacting the ADA, Congress explicitly found that “individuals with disabilities continually encounter various forms of discrimination, including ... segregation.” 42 U.S.C. § 12101 (a)(5);

see also

42 U.S.C. § 12134 (a) (requiring Attorney General to issue implementing regulations). The regulations define “most integrated setting” in Section 35.130(d) as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130 (d), App. A.

The Supreme Court addressed the scope of the integration mandate in

Olmstead .

At issue in that case was “whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than institutions.” 527 U.S. at 587 , 119 S.Ct. 2176 . The Court concluded that the answer was “a qualified yes.”

Id.

The Court noted that “in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’”

Id.

at 600 , 119 S.Ct. 2176 . It noted that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”

Id.

The Supreme Court thus held explicitly that “[ujnjustified isolation ... is properly regarded as discrimination based on disability.”

Id.

A state’s obligation under the integration mandate is not limitless, however.

Id.

at 603 , 119 S.Ct. 2176 . Under Title II’s implementing regulations, a state must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination,” but it need not do so if it “can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130 (b)(7). The plurality in

Olmstead

thus concluded that the integration mandate is violated when:

the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.

527 U.S. at 587 , 119 S.Ct. 2176 .

In its analysis of the integration mandate, the Supreme Court deferred to the Attorney General’s interpretation of Title II.

See id.

at 597-98 , 119 S.Ct. 2176 (“[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and

*313

informed judgment to which courts and litigants may properly resort for guidance”) (internal quotation marks and citations omitted). Thus, following

Olmstead ,

courts have looked to the language of the Attorney General’s regulations, as well as the holding in

Olmstead

as the standard by which to determine a violation of the integration mandate of the ADA. For example, the Ninth Circuit has explained that “[t]he plain language of the integration regulation [ 28 C.F.R. § 35.130 (d) ], coupled with the reasoning and holding of

Olmstead ,

direct our analysis in this case.”

Townsend v. Quasim,

328 F.3d 511, 516, 520 (9th Cir.2003). Similarly, in

Joseph S.,

561 F.Supp.2d at 289-290 , the court observed that “[a] failure to provide placement in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible violates the ADA’s integration mandate.”

see also

N.Y. Mental Hygiene L. §§ 41.03 , 41.42, 41.39 (defining community support services, family support programs, and vocational programs and sheltered workshops)). To fund various services, such as housing programs, OMH contracts with private providers by issuing requests for proposals (“RFPs”).

(See, e.g.,

Newman Aff. ¶¶ 60-63; Supported Housing RFPs (Murray Decl. Exs. 128, 55, 56, 81).)

OMH is responsible for planning what mental health services the State will provide, and allocating resources to those services. OMH is also required by law to plan how and where New York’s mental health services will be delivered. N.Y. Mental Hyg. L. § 7.07 . In particular, OMH is obligated to “develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill and ... create financing procedures and mechanisms to support such a system of services ... [and] shall make full use of existing services in the community including those provided by voluntary organizations.” N.Y. Mental Hyg. L. § 7.07 . OMH is also responsible for “assuring the development of comprehensive plans, programs, and services in the areas of research, prevention, and care, treatment, rehabilitation, education, and the training of the mentally ill.”

N.Y. Mental Hyg. L. § 7.07 (a).

Moreover, each year, OMH must “formulate a statewide comprehensive five-year plan for the provision of all state and local services for the mentally ill,” known as the “5.07 Plan,” which includes “establishing] priorities for resource allocation” and “analyzing] current and anticipated utilization of state and local, and public and private facilities and programs.”

Id.

§ 5.07. For example, in its Statewide Comprehensive Plan for Mental Health Services 2004-2008, OMH emphasizes its “accountability for results” regarding the design and delivery of services, as well as “coordination of care,” referring to a “coordinated, comprehensive networks of providers [that] deliver a balanced array of medical, self-help, social, supportive, and rehabilitative services and programs.” (OMH 2004-2008 Plan (Raish Decl. Ex. 56).)

The other Defendant agency, the Department of Health (“DOH”) is responsible for, among other things, promoting the “development of sufficient and appropriate residential care programs for dependent adults.” N.Y. Comp.Codes R. & Regs. tit. 18, §§ 485.3(a)(1), 487.1(b). In particular, DOH licenses and monitors adult homes and enforces the statutes and regulations applicable to adult homes. (PI. 56.1 Statement ¶ 10.) Specifically, DOH issues operating certificates to establish and operate adult homes. N.Y. Comp.Codes R.

Regs. tit. 18, § 485.3(a)(3). These operating certificates must be reissued at least every four years and may be revoked or suspended if the DOH determines that if the facility does not comply with State regulations.

Id.

§§ 485.5(c), (Z), (m). DOH can also revoke, suspend, or terminate an operating certificate if it determines that such an action is in the public interest because it would conserve resources.

Id.

§ 485.5(m)(l)(i). In addition, DOH has the authority to seek appointment of a receiver to take over operation of an adult home,

id.

§ 485.9, and DOH

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has exercised that authority to replace operators and appoint temporary operators at Brooklyn Manor and Ocean House, two of the homes at issue in this litigation (Hart Aff. ¶ 61).

Both DOH and OMH monitor and inspect adult homes.

See

N.Y. Const. Art. XVII, § 4 (providing that the “department of mental hygiene shall visit and inspect ... all institutions either public or private used for the care and treatment of persons suffering from mental disorder or defect”); N.Y. Comp.Codes R.

Regs. tit. 18, § 485.3(b)(1) (stating that DOH has statutory authority to inspect adult homes and that OMH may participate in inspections). DOH is required by statute to conduct at least one unannounced full inspection of all adult care facilities, including adult homes, every twelve or eighteen months, depending on the facility’s record. N.Y. Soc. Serv. L. § 461 -a(2)(a). DOH may bring enforcement proceedings to assess civil fines, or to suspend, modify, limit or revoke an operating certificate. N.Y. Comp. Codes R. & Regs. tit. 18, § 486.4 . Regulations added in 2002 permit DOH to assess fines immediately for the more serious violations, those which endanger residents (known as endangerment violations). (Def. 56.1 Statement ¶ 29.) According to OMH official Jan Tacaronti, who directed OMH’s Adult Home Monitoring and Training Team (the “Adult Home team”) from 2003 to 2006, the Adult Home Team responds to and investigates complaints and incidents by adult home residents about services provided by mental health providers certified by OMH, and participates in joint inspections of adult homes with DOH and the Commission on Quality of Care and Advocacy for Persons with Disabilities (“CQC”), an independent State agency.

(Tacaronti Aff. ¶¶ 8, 16, 20-22;

see also

Reilly Aff. ¶ 13 & Ex. Reilly-A (stating that OMH participates in inspections of adult homes).)

State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, and physical and environmental standards.

(Def. 56.1 Statement ¶ 5.) In particular, the regulations provide that adult home residents “shall be permitted to leave and return to the facility and grounds at reasonable hours.” N.Y. Comp.Codes R. & Regs. tit. 18, § 487.5(a)(3)(xii). Adult homes are required to provide case management services “as are necessary to support the resident in maintaining independence of function and personal choice,” including “assisting each resident to maintain family and community ties and to develop new ones,” “encouraging resident participation in facility and community activities” and “assisting residents in need of alternative living arrangements to make and execute sound discharge or transfer plans.”

Id.

§ 487.7(g). The regulations also require adult homes to provide a program of activities in the facility and the community, and must include “arrangement for resident participation in community-based and community-sponsored activities.”

Id.

§ 487.7(h).

In addition, OMH funds, oversees, licenses and credentials mental health care providers who provide services for people with mental illness in adult homes. (PI. 56.1 Statement ¶ 13.) Impacted adult homes must enter into a written agree

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ment with a provider of mental health services for assistance with the assessment of mental health needs, the supervision of mental health care, and the provision of case management for residents enrolled in mental health programs. N.Y. Comp. Codes R. & Regs. tit. 18 § 487.7(b). In addition to approving contracts between impacted adult homes and service provides, OMH also provides treatment services directly inside some adult homes. (OMH, South Beach Psychiatric Center (Murray Decl. Ex. 62); OMH, Creedmoor Psychiatric Center Outpatient Servs. (Murray Decl. Ex. 63); S.P. Dep. 16-17; N.Y. Comp.Codes R. & Regs. tit. 18, §§ 487.7(b).)

B. Scope of Title II

Title II covers all programs, services, and activities of a state or local government entity

“without

any exception.”

Pennsylvania Dep’t of Corrections v. Yeskey,

524 U.S. 206, 209 , 118 S.Ct. 1952 , 141 L.Ed.2d 215 (1998);

see also Innovative Health Sys., Inc. v. City of White Plains,

117 F.3d 37 , 45 (2d Cir.1997) (holding that zoning decisions are subject to the ADA and noting that “programs, services, or activities” is a “catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.”),

overruled on other grounds by Zervos v. Verizon New York,

252 F.3d 163 , 171 n. 7 (2d Cir.2001). Federal regulations provide that “[a] public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability,” but “[t]he programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” 28 C.F.R. § 35.130 (b)(6).

Olmstead

itself concerned the obligation of Georgia’s Department of Human Resources (“Department”) to comply with the ADA’s integration mandate. Because the Department delivered services in segregated state hospitals as well as integrated community settings, the Supreme Court found that the Department had an obligation to ensure that the plaintiffs were not unnecessarily hospitalized when they could be served instead in community facilities, unless doing so would fundamentally alter the service system.

See id.

While the plaintiffs in that case were institutionalized in a state hospital, DAI has pointed out that the community facilities that were part of the state’s service system were privately operated. (PI. Opp. 51;

Olmstead v. L.C.,

Resp. Br., 1999 WL 144128 , at *5 (noting that “the Georgia legislature amended its laws to allow state funds appropriated for mental disability programs to be transferred from institutional to community services” and “restructured the state service delivery system and gave it authority to contract with private providers of such services in the community.”).)

Olmstead

thus imposes an obligation on states, which are responsible for providing services, 527 U.S. at 607 , 119 S.Ct. 2176 , not on the particular facilities in which service recipients are alleged to be segregated.

While the Second Circuit has not yet addressed the applicability of the Title II’s integration mandate to cases where a state’s service system relied on privately operated facilities, other courts have applied the ADA’s integration mandate to contexts where a state uses private entities to deliver services to people with disabilities. In

Radaszewski v. Maram,

383 F.3d 599 (7th Cir.2004), the Seventh Circuit considered whether Title II of the ADA and the RA required Illinois to fund private at-home care for a person with disabilities. In discussing the state’s “fundamental alteration” defense under Title II, the court assumed that the state would have to pay for some type of private care for the plaintiff, whether at a private insti

*317

tutional facility reimbursed by the state, or at the plaintiffs home.

See id.

at 614 (“If the state would have to pay a private facility to care for Eric ... and the cost of that placement equaled or exceeded the cost of caring for him at home, then it would be difficult to see how requiring the State to pay for at-home care would amount to an unreasonable, fundamental alteration of its programs and services.”).

Similarly, other courts have focused on a state’s obligation to administer its services for people with disabilities in the most integrated setting appropriate for their needs, finding irrelevant the ownership of the facilities where the individuals were allegedly segregated.

See Martin v. Taft, 222

F.Supp.2d 940, 946, 981 (S.D.Ohio 2002) (denying motion to dismiss

Olmstead

claims where plaintiffs were institutionalized in both public and private facilities and noting that “liability does not hinge upon whether the setting in question is owned or run directly by the State”);

Rolland v. Cellucci,

52 F.Supp.2d 231, 237 (D.Mass.1999) (finding it immaterial for purposes of

Olmstead

claim against state that many of the plaintiffs lived in private rather than government-operated nursing facilities).

C. Applicability of Title II

The court concludes that Title II of the ADA applies to the claims in this case. An

Olmstead

claim concerns a public entity’s obligation to make reasonable modifications to its service system to enable individuals with disabilities to receive services in the most integrated setting appropriate to their needs. Defendants, as required by New York law, administer the State’s mental health service system, plan the settings in which mental health services are provided, and allocate resources within the mental health service system. Accordingly, Defendants’ contention that DAI has failed to identify any State service, program, or activity related to DAI’s claim that is subject to the ADA is without merit.

It is immaterial that DAI’s constituents are receiving mental health services in privately operated facilities.

Cellucci,

52 F.Supp.2d at 237 . Public entities are required under the ADA to

“administer

services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130 (d) (emphasis added). Discrimination, in the form of unjustified segregation of individuals with disabilities

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in institutions, is thus prohibited in the

administration

of state programs. The statutory and regulatory framework governing the administration, funding, and oversight of New York’s mental health services — including the allocation of State resources for the housing programs at issue here — involves “administration” on the part of Defendants. The State cannot evade its obligation to comply with the ADA by using private entities to deliver some of those services.

The essence of Defendants’ argument to the contrary is that they cannot be held responsible under Title II for actions of the adult homes themselves.

(See

Def. Mem. 45; Def. Reply Mem. 5-6.) Although this proposition is correct,

see

28 C.F.R. § 35.130 (b)(6) (“The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part”),

it is inapposite in the context of DATs

Olmstead

claim. DAI does not challenge the conduct of adult homes licensed and certified by the State; instead, it challenges the manner in which

Defendants

administer New York’s mental health service system. In other words, DAI challenges the State’s choice to plan and administer its mental health services in a manner that results in thousands of individuals with mental illness living and receiving services in allegedly segregated settings. This suit does not challenge the conduct of any particular adult home.

Accordingly, Defendants’ reliance on cases addressing whether a public entity must correct discriminatory conduct by service providers it licenses is misplaced, because those eases concern discrimination by the licensees, not the public entity itself.

See, e.g., Tyler v. City of Manhattan,

849 F.Supp. 1429, 1441-42 (D.Kan.1994) (holding that city had no duty under Title II of the ADA to force restaurants and stores that it licensed and inspected to comply with the businesses’ obligation under the ADA to provide wheelchair access);

Reeves v. Queen City Transp., Inc.,

10 F.Supp.2d 1181, 1183-88 (D.Colo.1998) (holding that the public utility commission that issued a certifícate to a bus company was not liable under Title II for the bus company’s disability discrimination).

Defendants additionally contend that Title II is in applicable because “the State does not require that anyone live in an adult home or receive services in adult homes.” (Def. Mem. 49.) They argue that adult home residents “could move out of the adult home or remain and choose to receive services elsewhere.”

(Id.)

In a similar vein, Defendants further contend that DAI has failed to articulate a specific act or policy that requires individuals to receive services in adult homes. They rely on cases challenging specific state policies providing different services in institutions than were available in the community.

(Id., citing Fisher v. Okla. Health Care

*319

Auth.,

335 F.3d 1175, 1181 (10th Cir.2003) (challenging policy of funding more prescription drugs in nursing homes than in the community); Def. Reply Mem. 11,

citing Townsend,

328 F.3d 511 (challenging policy failing to provide community-based services to “medically needy” persons, while providing such care for “categorically needy” persons).)

These contentions are without merit. As described in detail above, it is clear that Defendants are required by State law to determine the settings in which New York provides and funds mental health services. Defendants do so by controlling the State’s funding for services in various settings, including adult homes and supported housing, and effectively control how many adults receive services in any particular setting. This is more than a “general obligation to provide services,” as Defendants contend. While State officials do not require anyone to be in an adult home, Defendants plan, fund and administer the State’s existing service system such that more than 12,000 adults are receiving the State’s services in adult homes. (OMH 2004-2008 Plan 69 (Raish Decl. Ex. 56).)

Defendants argue that DAI must point to a “specific act or policy” causing discrimination, relying on the Supreme Court’s decision in a Title VII disparate-impact case,

Wards Cove Packing Company, Inc. v. Atonio,

490 U.S. 642, 656 , 109 S.Ct. 2115 , 104 L.Ed.2d 733 (1989). (Def. Reply Mem. 7-8.) That case held that a plaintiff in a Title VII disparate-impact case is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities [in the employment of minorities],” and that to hold otherwise would result in potential liability for “the myriad of innocent causes that may lead to statistical imbalances in the composition of them work forces.” 490 U.S. 642, 656 , 109 S.Ct. 2115 , 104 L.Ed.2d 733 (citation omitted). Defendants note that while aspects of

Ward’s Cove

were overruled by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(k)(B)(I), in particular, the requirement of identifying a particular practice if the elements of a decisionmaking process are not capable of separation for analysis, the ADA has had no such amendment. (Def. Reply Mem. 8 & n. 3.)

The court will not read into Title II a new requirement that Plaintiff must prove a “specific act or policy” on the basis of a partially overruled Title VII disparate-impact case. The ADA prohibits discrimination in the

administration

of programs. 28 C.F.R. § 35.130 (b)(6). Title II covers all programs, services, and activities of public entities “without any exception,” and “prohibits all discrimination by a public entity, regardless of the context.”

Yeskey,

524 U.S. at 206 , 118 S.Ct. 1952 ;

Innovative Health Sys., Inc.,

117 F.3d at 45. Defendants, and no other entities, are responsible for determining what services to provide, in what settings to provide them, and how to allocate funds for each program. This particular role is more than “the totality of defendants’ choices and policies in overseeing the entire system,” as Defendants contend.

In sum, Plaintiff alleges that Defendants’ administration of services discriminates against adult home residents by unnecessarily segregating them, and claims that if Defendants allocated their resources differently, adult home residents could receive services in a more integrated setting. This claim falls squarely under Title II of the ADA.

VII. MOST INTEGRATED SETTING APPROPRIATE

In seeking summary judgment, Defendants contend that DAI’s constituents are already in the “most integrated setting appropriate to their needs,” be

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cause adult homes are integrated settings and the adult home residents are not qualified to move to supported housing. The court first evaluates the parties’ claims regarding whether DAI’s constituents are in the “most integrated setting” and then turns to whether supported housing is “appropriate to the[ ] needs” of DAI’s constituents, that is, whether they are qualified for supported housing.

A. Most Integrated Setting

Defendants contend that even if the integration mandate of Title II and

Olmstead

applies to adult homes, adult homes are “integrated,” community-based settings unlike the psychiatric hospital at issue in

Olmstead,

because adult home residents have “virtually unlimited opportunities to interact with nondisabled persons,” and adult homes facilitate these interactions through community-based programs. (Def. Mem. 51-52.) Defendants • further contend that adult homes and scattered-site supported housing models “offer equal opportunities for interaction with others in the community.” (Def. Rep. Mem. 14.) In response, Plaintiff contends that the record evidence demonstrates that residents of the large, impacted adult homes at issue are not receiving services in the “most integrated setting” appropriate to their needs, because “most integrated setting” is defined in the regulations as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible,” and that supported housing is more integrated than adult homes. (PI. Opp. 53, 58.) The parties dispute the scope of the ADA’s integration mandate, the extent to which adult home residents have opportunities for interaction with non-disabled people, and whether supported housing is a more integrated setting than adult homes. For the reasons below, the court concludes that the regulations set forth the proper inquiry, and that Defendants have failed to meet their burden for summary judgment.

1. Definition and Scope of the Integration Mandate

The parties do not dispute that the federal regulations, discussed above, define Title II’s “integration mandate.” They differ in their interpretation of what this definition means, and what these regulations and

Olmstead

require a plaintiff to show. Defendants contend that “under the regulatory definition of integration, the key is

whether persons with disabilities have opportunities for contact with non-disabled persons,

rather than the number of actual contacts.” (Def. Mem. 52) (emphasis added). In contrast, DAI contends that, given the regulations’ “most integrated setting” language, the proper inquiry is not simply whether a setting is “integrated” or not. Rather, “providing services in settings with some opportunities for interaction is unlawful if another appropriate setting would provide more opportunities, and the individual in question does not oppose the more integrated setting.” (PI. Opp. 56-57.) For the reasons discussed below, the court concludes that the proper interpretation of the regulations’ definition of “most integrated setting” is set forth in the regulations themselves: whether a particular setting “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130 (d), App. A.

Nowhere in Title II, its implementing regulations, or in

Olmstead

is there a definition of what constitutes an “institution” or “community-based” setting. While it is clear that, “where appropriate for the patient, both the ADA and the RA favor integrated, community-based treatment over institutionalization,”

Frederick L. v. Department of Public Welfare (Frederick L. I),

364 F.3d 487 , 491-92 (3d Cir.2004),

Olmstead

and lower courts considering

*321

Olmstead

claims have typically confronted situations in which the “institutional” or “community-based” nature of particular settings was not in dispute. In

Olmstead,

for example, plaintiff L.C. had already been removed from the psychiatric hospital — in which she had undisputedly been “institutionalized” — and placed in a “community-based program,” but the opinion did not describe the nature of the community-based program.

527 U.S. at 593-94 , 119 S.Ct. 2176 ;

see also

Levine Dep. 255 (describing trips limited to seven or eight adult home residents).) Two residents of Parkview, which is certified for 134 residents, testified that five or six residents had gone on each outing. (R.H. Dep. 49; S.P. Dep. 22-23.) A former resident of Sanford testified when he lived in the adult home, he made one trip to the zoo, attended one baseball game with about five other residents, and went to the movies “a couple of times.” (R.H. Dep. 48-49, 126-127.) A former resident of Brooklyn Manor testified that although the facility had a van, he could only remember the facility organizing one trip, which involved eight or nine residents. (J.M. Dep. 43-44.)

d. Residents’ Opportunities to Interact with Non-Residents

The parties also dispute to what extent adult home residents have opportunities to interact with people who do not live in the adult homes. Defendants have provided evidence that adult home residents met acquaintances on the street. (M.B. Dep. 97-102 (testifying that when he lived at Oceanview, he had “lots” of “street acquaintances”); A.M. Dep. 79-80 (testifying that when he lived at Sanford, he had two friends who lived outside the adult home, one of whom he met while she was walking her dog in the park); J.M. Dep. 64-67 (testifying when he lived at Brooklyn Man- or, he talked to people on the street “[a]ll

*325

the time” and that they were kind to him); D.W. Dep. 29-32 (testifying that he speaks and waves to people on the street and that a deli employee knows him by name).)

Plaintiff has provided evidence that adult homes do not encourage residents to interact with non-residents, or provide them with such opportunities. (N.B. Decl. ¶¶ 15-20; B.R. Deck ¶1¶ 16-18;

see also

R.H. Dep. 96 (stating that he does not know any people who live in the neighborhood).) Based on their visits to numerous adult homes and interviews with adult home residents and staff, DAI’s experts Elizabeth Jones and Dennis Jones observed that the adult homes do not encourage interaction with non-disabled members of the community. (E. Jones Aff. Ex. A at 3, 8; D. Jones Deck Ex. A at 9.) Plaintiff has also provided evidence from Defendants’ expert Alan Kaufman, who observed that for some adult home residents, “choices in friends/acquaintances were likely limited by the very location and nature of the home in which they resided.” (Deck Ex. Kaufman-A at 10-11.) Some adult home residents have testified that their friendships and romantic relationships either predated their admission to the adult home or were developed at the home with fellow residents. (R.H. Dep. 96-97; G.H. Dep. 120-124, 126-128, 240; B.J. Dep. 53; D.N. Dep. 15-16, 29, 26.)

The parties have provided conflicting evidence on the extent to which adult home residents visit their family and friends outside the home. Defendants have provided evidence that some adult home residents visit their family and friends outside the home. (P.B. Dep. 56-57; P.C. Dep. 101; L.G. Dep. 135-136; G.H. Dep. 117-127 (testifying that he has visited a friend outside the home six times in nine years, that he knows of a resident who stayed overnight with his mother who lived in the neighborhood, and that more than fifty of the two hundred residents visit their relatives outside the adult home); L.H. Dep. 54-55; B.J. Dep. 51-52, 72; D.N. Dep. 26 (testifying that he takes four buses each way to visit his uncle once per month); see

also

Yunger Dep. 22; Davis Dep. 199 (testifying that “quite a few” Oceanview Man- or residents visit friends outside the home).) In contrast, Plaintiff has provided evidence that some adult home residents do not visit their family and friends outside the home. For example, R.H. testified that he does not have any family and friends with whom he keeps in touch. (R.H. Dep. 96.) Another resident testified that she has stayed overnight at a friend’s house but has not done so in years. (I.K. Dep. 71.) One resident estimated that the most frequently anyone visited a relative outside the home is twice per month. (G.H. Dep. 117.)

e. Residents’ Employment

The parties dispute the extent to which adult home residents have volunteer or paid employment outside the adult home. Defendants have provided testimony that some adult home residents have paid employment or volunteer positions.

(See, e.g.,

G.L. Dep. 78-79 (testifying that he works for an advocacy organization as a community organizer for adult home residents); Burstein Dep. 82-84 (testifying that four or five adult home residents had jobs); A.M. Dep. 144-145 (testifying that the “helped out” at a coffee cart as a volunteer for a year); Rosado Dep. 166-68 (testifying that a resident of Surf Manor volunteered at the Botanical Garden); S.P. Dep. 16-22, 29-31 (testifying that he found a “training job” by asking Bronx Psychiatric Center clinical staff stationed at his adult home, and his responsibilities involved housekeeping assignments inside the adult home and later at the state hospital itself).)

Plaintiff has provided evidence that only a few residents had jobs or volunteer positions, and many of those jobs were

*326

short-lived. For example, a service provider testified that she could only recall one resident of Queens Adult Care becoming employed. (Rosado Dep. 166-168.) One resident at Parkview testified that only he and two other residents hold jobs. (S.P. Dep. 31-32.) A Seaview resident testified that a social worker had helped him obtain a part-time job as a messenger, but that he was fired after seven weeks. (S.B. Dep. 40-42.) A resident of Surf Manor testified that he had held a job at a newsstand since prior to his admission to the adult home, but that the job occupies about three or four hours per week and no longer involved interacting with customers. (G.H. Dep. 102-103, 105.)

f. Voting

As evidence that some residents interact with the people outside the adult homes, Defendants have provided testimony that some adult home residents vote.

(See

I.K. Dep. 60 (testifying that she votes at a school a block and a half away from the adult home and that other residents are registered to vote); R.H. Dep. 127-128 (testifying that he votes across the street from the adult home).) Plaintiff has provided evidence indicating that other residents vote by absentee ballot or infrequently.

(See

G.L. 57-58 (testifying that he and other adult home residents generally vote by absentee ballot but that he went to the poll for the presidential election, and that “not many” other residents voted, “maybe” 25%); G.H. Dep. 145-147 (testifying that he is registered to vote but had gone to the polls only once in the nineteen years he had been living in the adult home).)

g. Continuing Day Treatment Programs for Rehabilitation and Training in Supportive Skills

The parties dispute to what extent the continuing day treatment programs offered in adult homes promote rehabilitation and foster independence.

Defendants have provided evidence that the programs offered to adult home residents allow the residents to receive rehabilitative services. OMH official Joseph Reilly,

attested that “[wjhile OMH has taken steps in recent years to improve such programs and strengthen their focus on recovery, opportunities existed for adult home residents to receive rehabilitative services apart from those efforts.” (Reilly Aff. ¶ 32.) The clinical director of an agency that provides continuing day treatment to about 112 adult home residents, attested that her agency’s program provides, among other things, medication education, symptom management, supportive skills training, and social skills training; and that the program assists residents in developing cooking, cleaning, and shopping skills. (Bienstock Aff. ¶ 5.) The so

*327

cial work supervisor at Oceanview testified that some of the residents attended a continuing day treatment program at a YMCA that provided an art group, a spirituality group, and life skills group offering training in money management. (Levine Dep. 162-165.) Another service provider testified that her agency offers continuing day treatment at Mermaid Manor, but could not identify any of the types of groups, other than that “there may be a group for ADLs [Activities of Daily Living] to train consumers about adult daily living skills. There may be a group on wellness.” (Bear Dep. 24-25.)

Plaintiff has provided evidence that the treatment programs do not consist of meaningful activities. A December 2006 report from the CQC concludes that some day treatment programs serving individuals with mental illness are characterized by group television and movie watching and art “programs,” which may only involve the provision of crayons, markers, and coloring books. (NYS CQC, Continuing Day Treatment Review 1, 4-5,19 (Dec. 2006) (Murray Decl. Ex. 78).) The CQC report found that less than twenty percent of the participants in the continuing day treatment programs analyzed in the report had a treatment objective for finding work and about fourteen percent had an objective to obtain vocational training.

(Id.

at 13.)

Plaintiff has provided testimony from adult home residents about the programs. One adult home resident testified that some of the day programs offered in his adult home are “very child like, very, very very low kind of things” and that the activities were “mostly coloring books and pictures ... little easy sewing things ... but no intelligent talk groups or anything.” (M.B. Dep. 54-55.) Another resident testified that the adult home she lived in offered no “socialization group” and had only “very minimal” arts and crafts consisting of “crayons, magic markers, [and] paper” provided at set times two or three times per week. (G.L. Dep. 40-41.) A former adult home resident testified that the activities at the adult home, which were only offered on weekdays, “had you coloring, like a little kid; you play Bingo, like a little kid; you play domino, like a little kid; and you play cards, like a little kid.” (A.M. Dep. 34.)

The parties dispute to what extent adult home residents receive training in supportive skills. Defendants have provided evidence that the programs teach such skills. Mr. Reilly attested that “many programs provide opportunities to learn skills which could assist an individual in finding employment or volunteer opportunities. Many programs offer seminars or groups on medication management, budgeting, and nutrition and cooking.” (Reilly Aff. ¶ 34

Exs. J, K, L (brochures from service providers indicating that they offer programs designed to teach skills including cooking, vocational skills, computer training, and budgeting at adult homes and to adult home residents).) The director of an organization providing case management and other services at Queens Adult Care and Brooklyn Manor testified that the organization offers a variety of services for adult home residents, including medication training, cooking skills, shopping, and training in how to use public transportation, and supported employment. (Lock-hart Dep. 19-24, 55-57;

see also

Rosado Dep. 108-12 (describing ADL group for Queens Adult Care residents as teaching “hygiene, eating, sleeping, how to take care of yourself ... basic 101 living skills,” including cooking and shopping).) A social work supervisor testified that when residents at Oceanview participated in the continuing day treatment program, the social worker and adult home resident would establish personal goals, including money management skills, feeling more comforta

*328

ble going out into the community, and wanting to get vocational training. (Levine Dep. 166-168.) One adult home resident testified that he and seven other residents participated in a budgeting money group, and he and six residents participated in an ADL group that talked about grooming and hygiene. (S.P. Dep. 27-28.)

Defendants also provided evidence that the programs offer educational and/or vocational training. An adult home administrator testified that the adult home referred its residents to three “prevocational programs” that teach “life skills and job skills, and if they follow through they are actually placed on a job site,” although only three or four residents attended each program at any given time, and she was not familiar with the “specific things” the programs teach. (Burstein Dep. 49-50.) A service provider testified that her agency provided a “computer skills group” for adult home residents. (Rosado Dep. 158-160.) Another service provider attested that her agency’s program offers pre-vocational training, work-related skills training, and computer and GED classes, and that there is an on-site thrift shop that is run and staffed by the residents. (Bienstock Aff. ¶ 5.)

Plaintiff has provided evidence that the programs do not teach such skills, pointing to testimony of adult home residents and administrators. For example, Ms. Rosado testified that the computer group she described “really didn’t teach computer skills, put it that way .... the way those groups were run needed a lot of improvement. I mean, it would have been nice to meet the needs of the clients who wanted a higher level of learning.” (Rosado Dep. 158-160.) One adult home resident testified that he had been attending a day treatment program for fourteen years where he and seventeen or eighteen other residents “go to groups all day” and providers “try to get us ready for the outside,” but when asked to describe what he does in the ADL group, he testified, “I go to these groups a hundred times, I don’t know what the heck they’re talking about, but I go.” (C.H. Dep. 24-33.) He also testified that the ADL group stopped teaching cooking skills because “[t]hey probably thought it was a waste of time,” that his Budgeting/Money Management group did not teach any skills related to budgeting, and while the skills therapy groups “sometimes” talked about jobs, he could not remember anything that was said about jobs, and the group leaders never talked about applying for jobs, writing resumes, or looking in classified ads.

{Id.

at 29-33.) One resident testified that while he participated in a budgeting and ADL group, there were no groups that discussed cooking, computers, jobs, or living in alternative places. (S.P. Dep. 27-28.) An associate administrator at an adult home that houses 186 residents did not know of any resident who had obtained a GED since he became associated with the home as a volunteer at age 18. (Mendel Dep. 6-7, 14, 76.) An administrator at Park Inn testified that the residents at Oeeanview do not take classes or pursue their educations in any way. (Davis Dep. 111.)

DATs experts Elizabeth Jones and Dr. Kenneth Duckworth, as well as Raymond Schwartz, a manager of a private mental health agency in New York City who spent time visiting and monitoring adult homes in his previous employment with the New York City Department of Mental Health, observed that there is no emphasis in adult homes on the development or maintenance of basic living skills such as cooking, doing laundry, housekeeping, grocery shopping, and self-medicating. (E. Jones Aff. Ex. A at 5; Duckworth Aff. Ex. A at 9; Duck-worth Dep. 119-120, 142-143; Schwartz Dep. 15, 59, 331-332.)

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Moreover, several adult home residents have declared that they would like to manage their own daily activities.

(See

R.A. Decl. ¶¶ 17-24; N.B. Decl. ¶¶ 31-33; B.R. Decl. ¶¶ 22-23; H.S. Decl. ¶¶ 20-22.) DATs and Defendants’ experts both testified that the adult homes foster “learned helplessness” among residents. (Duck-worth Aff. Ex. A at 9; Geller Dep. 158-59.) For example, adult home residents have testified that they are not allowed to administer their own medications. (A.M. Dep. 95-96; S.P. Dep. 64-65; G.L. Dep. 203-204.)

3. Whether the Adult Homes Enable Interaction with Individuals Without Disabilities to the Fullest Extent Possible

Numerous witnesses, including DAI’s and Defendants’ experts, observed that adult homes share characteristics of psychiatric institutions.

(See

D. Jones Decl. Ex. A at 9-10; E. Jones Aff. Ex. A at 8; E. Jones Dep. 159-161; Kaufman Aff. Ex. A at 8-9 (describing institutional characteristics of adult homes, including “inflexible schedules for meals and other daily activities; assigned roommates; rigid medication administration procedures and medication dispensing lines”);

see also

A.M. Dep. 154-155 (testifying that the adult home was no different from the state hospital other than that he could leave the grounds).) In particular, Defendants’ expert, Alan Kaufman, reported that the adult homes’ “provision ... of laundry services, food services, housekeeping, and other daily living services — and the resident’s lack of choice in performing these tasks him/herself — is characteristic of mental health institutional settings.” (Kaufman Aff. Ex. A at 8-9.) He concluded that “a large Adult home setting coupled with a high proportion of residents with mental illness can artificially limit the interactions of residents and constrict the diversity of friends and acquaintances.” (Kaufman Aff. Ex. A at 10;

see also

Schwartz Dep. 297, 298-300; Rosenberg Aff. ¶ 12 (the adult homes “are more like institutions than community settings[, and] they impede the community integration of people with mental illness.”).)

As described above, DAI has provided evidence that most aspects of the residents’ lives take place inside the adult homes (E. Jones Aff. Ex. A at 8), and that the residents are limited in the times they can leave the homes, given rigid schedules for meals, medications, and distribution of personal need allowances (Levine Dep. 250-51; Schwartz Dep. 317-318; O.J. Decl. ¶¶ 17-20; E. Jones Aff. Ex. A at 5-6, 8; D.W. Dep. 75-77). DAI has provided evidence that the homes limit residents’ ability to interact and maintain relationships with non-disabled individuals.

(See, e.g.,

N.B. Decl. ¶¶ 15-16,19-20; B.R. Decl. ¶¶ 16-18; E. Jones Aff. Ex. A at 3, 8; D. Jones Decl. Ex. A at 9; Kaufman Aff. Ex. A at 10-11; Schwartz Dep. 297-300.)

Defendants assert that the residents’ degree of interaction with individuals who do not have disabilities is a matter of choice, or at most, a function of the quality and effectiveness of the services offered by particular mental health providers, which are outside of the scope of the enforcement provisions of the ADA and RA.

See Olmstead,

527 U.S. at 603 n. 14, 119 S.Ct. 2176 (“We do not ... hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with disabilities.” ”);

P.C. v. McLaughlin,

913 F.2d 1033, 1041 (2d Cir.1990) (“The [Rehabilitation] Act does not require all handicapped persons to be provided with identical benefits.”). As described above in Section VI.A, State regulations require adult homes to: (1) permit residents to come and go at reasonable hours; and (2) encourage participation in commu

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nity-based activities and assist residents in maintaining family and community ties. N.Y. Comp.Codes R. & Regs. tit. 18, §§ 487.5(a)(3)(xii), 487.7(g). Defendants assert that while they monitor the compliance of the adult homes with these regulatory provisions, they cannot be held responsible under the ADA for ineffective or low-quality services.

In response, DAI has provided evidence that even if all of the large, impacted adult homes at issue complied with State regulations, they could not overcome the institutional qualities inherent in a large facility. For example, Ms. Jones observed that in adult homes, “[t]he physical environment is institutional” and that the homes “are designed to manage or control large numbers of people ... by eliminating choice and personal autonomy, establishing inflexible routines for the convenience of staff, restricting access, implementing measures that maximize efficiency, and penalizing residents who break the rules.” (E. Jones Aff. Ex. A at 4.) Defendants’ expert, Mr. Kaufman, similarly observed that “[Significant numbers of residents suffer from serious mental illness.... The number of beds in many of the larger Adult Homes, as well as their physical layout, furnishings, and decorations, also give an appearance similar to that of an institutional setting.” (Kaufman Aff. Ex. A at 8.)

Defendants assert that “the size of the home and independence of the residents are irrelevant to opportunities for contact with nondisabled persons.” (Def. Reply Mem. 14.) While Defendants may present evidence supporting this proposition at trial, the court declines, at the summary judgment stage, to foreclose the possibility that a reasonable finder of fact could conclude that a large, regimented adult home in which nearly all the residents have mental illness does not

enable

residents’ interaction with non-disabled individuals to the fullest extent possible, given the evidence regarding adult homes and supported housing. While size may not be a dispositive factor, it is not irrelevant. Nor is the adult home residents’ degree of independence irrelevant. A reasonable finder of fact could conclude that a setting that fosters “learned helplessness,” a term that DATs and Defendants’ experts have used in referring to the adult homes, does not

enable

opportunities with non-disabled persons to the fullest extent possible.

Defendants similarly assert that DATs evidence regarding the institutional nature of adult homes, such as the set meal and medication times and medication lines, fails to establish that “these factors affect opportunities for interaction” with non-disabled persons, contending that DAI relies on “conclusory” rather than “empirical” evidence. (Def. Reply Mem. 15 & n. 7.) The court need not consider whether DAI has “established” its claims for purposes of Defendants’ Motion for Summary Judgment; DATs evidence is sufficient to raise an issue of disputed fact. DAI’s expert Elizabeth Jones based her observations and opinion on visits to twenty-three adult homes and interviews with 179 adult home residents; her testimony is consistent with other evidence DAI has also presented from service providers and adult home residents themselves. While Defendants contend that the institution-like features of adult homes do not significantly limit opportunities for interaction with non-disabled individuals and have provided evidence that some adult residents can and do leave the adult homes, DAI has nonetheless raised an issue of disputed material fact as to whether the adult homes “enable interactions with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130 (d), App. A.

In addition to DAI’s evidence concerning the characteristics of adult homes, DAI

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has also provided evidence from which the finder of fact could conclude that the large, impacted adult homes at issue do not provide services in the “most” integrated setting, because it could find that supported housing enables interaction with non-disabled persons to a greater extent than do the adult homes.

DAI has provided evidence that residents of scattered-site supported housing live in apartment buildings with people who do not have disabilities and often have their own apartments or share with one or two others.

(See

Schwartz Dep. 188, 198-99; 179-180; Tsemberis Dep. 101-102.) According to DAI’s witnesses, residents of supported housing set their own schedules and leave their apartments to conduct the activities of daily living — including grocery shopping, doing laundry, and seeing doctors. (E. Jones Dep. 231.) Mr. Jones observed that “[sjupported housing is ... a home, not a residential treatment setting.” (D. Jones Decl. Ex. A at 25);

see also

Tsemberis Dep. 109 (supported housing is “real housing”);

see also

Duckworth Aff. 8 (“in contrast to the apartments in the supported housing model, adult homes have the look and feel of large custodial institutions”). As described above, adult home residents have testified that they want to move out of the adult homes and into their own apartments. O.J., for example, declared that “I would like to move because I want to do my own cooking, cleaning, decorating, and shopping, and I want to handle my own money.” (O.J. Decl. 57 7.)

The court is skeptical of Defendants’ assertion that adult homes and supported housing are “equally integrated because both are community placements that offer substantially similar opportunities for access to nondisabled persons.” (Def. Reply Mem. 16.) In any event, viewing the evidence in the light most favorable to DAI, Defendants have failed to show an absence of a genuine issue of material fact that would entitle them to summary judgment.

B. Whether DAI’s Constituents Are Qualified for Supported Housing

Olmstead,

the Supreme Court held that the State has an obligation to provide services and programs in community-based settings only if the individual with disabilities “meets the ‘essential eligibility requirements’ for habilitation in a community-based program,” referring to the “most integrated setting

appropriate

” language in the regulations. 527 U.S. at 602 , 119 S.Ct. 2176

(citing

28 C.F.R. 35.130(d) (emphasis in original).) The parties dispute whether supported housing is “appropriate” for adult home residents, that is, whether DAI’s constituents are qualified to live and receive services in supported housing. Viewing the evidence in the light most favorable to DAI, the court concludes that DAI has provided sufficient evidence from which the finder of fact could conclude that at least some of DAI’s constituents are qualified for supported housing.

DAI has provided evidence that large numbers of the residents of the adult homes at issue are qualified to live and receive services in supported housing. DAI’s experts concluded that most, if not all of the adult home residents at issue could live in the community with appropriate supports.

(See, e.g.,

Duckworth Aff. Ex. A at 2; E. Jones Aff. Ex. A at 3, 9;

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Groves Aff. Ex. A at 4). DAI notes that even Defendants’ expert, Dr. Geller, found that approximately two-thirds of the residents in the group that he assessed were not in the “most appropriate residential setting appropriate for their needs,” and in a separate analysis, more than thirty percent of the residents assessed were qualified to go into supportive housing. (Geller Decl. Ex. B at 6-7; Geller Dep. 196, 210.) In addition, the report of the Adult Care Facilities Workgroup concluded that 6,000 of the 12,000 residents with psychiatric disabilities in adult care facilities (“could reside in a more integrated setting.”) (Workgroup Report 30;

see also

Schimke Dep. 114-117 (testimony of Workgroup member that approximately eighty percent of the adults with mental illness living in adult homes “could benefit” from supported housing and other community-based programs with appropriate supports).) State officials have also testified that there are residents of adult homes with mental illness who “could live in more integrated settings” (Wickens Dep. 46), in supported housing or apartments (Tacaronti Dep. 225-226; Reilly Aff. ¶ 25). This evidence is sufficient to preclude a grant of summary judgment to Defendants.

Defendants contend that although DAI has submitted the names of 1,536 adult home residents whom it contends are qualified to move to supported housing, Plaintiff has failed to “establish” that any of them are actually qualified to move. (Def. Mem. 65.) Defendants base their arguments on a critique of the methodologies of DATs experts, and further argue that DATs constituents fail to meet the “essential eligibility requirements” of supported housing, asserting that residents of supported housing need only “minimal” support, and that the HRA 2000 application is required to move to supported housing.

(Id.

at 67; Def. Reply Mem. 21.)

The court concludes that these are factual questions that turn on the weight of the evidence and preclude granting summary judgment to Defendants. Regarding the experts, the court accepts the opinions of Plaintiffs experts as true for purposes of summary judgment, because Plaintiff is the non-moving party.

Anderson,

477 U.S. at 255 , 106 S.Ct. 2505 ;

see also

Dec. M

O, 2008 WL 5378365 (holding that the opinions of Plaintiffs experts regarding adult home residents’ qualifications to move are admissible).

Regarding the nature of supported housing, Plaintiff has produced evidence that it is designed to provide varying — and not just “minimal” — levels of support and can thus accommodate individuals who require different levels of assistance, including those who initially require more intensive services. OMH itself has stated that supported housing is designed to provide “varying” levels of support, including an ACT team with case management services, an intensive form of support.

(See

OMH

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January 2007 RFP (Murray Decl. Ex. 81);

see also

Rosenberg Aff. ¶ 13; Tsemberis Dep. 48, 51 (“We basically offer the services of the [ACT] team to the tenant and the tenant selects among the available array. ... Whatever the person needs, we are basically there to provide it.”); E. Jones Dep. 35-37 (testifying that the number of contacts an ACT team has with a client each month is “highly variable” and that the team “might see the person every day ... or they may come and see the person once a month, once a week.”).) Residents may receive help with cooking, shopping, budgeting, medication management, and making appointments as needed, but can do those things themselves if they are able. (Schwartz Dep. 191, 193-196, 288, 289-290; Lasicki Dep. 70.) Services are flexible, and they are usually more intensive at first. (Bear Dep. 108-109; Schwartz Dep. 187-188; Lasicki Dep. 68.) One provider testified that 21% of supported housing residents have case managers to assist them in addition to the case management provided by the supported housing provider. (Lasicki Dep. 99-100.) What level of services can be provided in supported housing is an issue of material fact that must be resolved at trial.

Defendants’ argument that DATs constituents have not met the “essential eligibility requirements” of supported housing because some of them failed to file HRA 2000 applications is without merit. Under the ADA, a “qualified individual with a disability ... with or without reasonable modifications to rules, policies, or practices ... meets the

essential eligibility requirements

for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131 (2). Not every eligibility requirement is an

“essential

eligibility requirement.”

PGA Tour, Inc. v. Martin,

532 U.S. 661, 688 , 121 S.Ct. 1879 , 149 L.Ed.2d 904 (2001). It does not appear to be so here, given DAI’s evidence that individuals obtain OMH housing without HRA 2000 applications.

(See, e.g.,

Tsemberis Dep. 32-36.) In any event, Defendants acknowledge in their memorandum of law that some of DATs constituents have filed this application. (Def. Mem. 37).

In sum, Defendants have not met their burden for summary judgment.

VIII. FUNDAMENTAL ALTERATION DEFENSE

The ADA’s integration requirement may be excused only where a state demonstrates that compliance would result in a “fundamental alteration” of its services and programs.

Olmstead,

527 U.S. at 603 , 119 S.Ct. 2176 . States are required to make “reasonable modifications” to comply with the integration mandate, but they need not take an action that would constitute a “fundamental alteration.”

See id.

at 604 , 119 S.Ct. 2176 . Defendants have raised the “fundamental alteration” affirmative defense here, which the court will only reach if DAI establishes that its constituents are not in the most integrated setting appropriate to their needs.

See Messier v. Southbury Training Sch.,

562 F.Supp.2d 294, 323 (D.Conn.2008) (noting that the fundamental alteration defense is

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used to rebut a prima facie case of discrimination under the ADA);