Opinion

Disability Advocates, Inc. v. Paterson

653 F. Supp. 2d 184
2009 U.S. Dist. LEXIS 80975
2009 WL 2872833

Court: District Court, E.D. New York
Filed: Sep 8, 2009
Status: Published
Author: Garaufis
On the bench: Garaufis
Cited by: 13 cases
Authority: More cited than 60.6%

Vacated on other grounds by Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc., 675 F.3d 149 (2012)

finding after bench trial that private congregate care facilities for people with mental illness constituted institutions and did not enable interactions with non-disabled people to the fullest extent possible

How later courts described this case

finding after bench trial that private congregate care facilities for people with mental illness constituted institutions and did not enable interactions with non-disabled people to the fullest extent possible
requiring a determination by treating professionals, who are contracted by the State, “would eviscerate the integration mandate” and “condemn the placements of [individuals with disabilities in adult homes] to the virtually unreviewable discretion” of the State and its contractors
granting the request of mentally ill plaintiffs residing in adult homes for a permanent injunction requiring New York State mental health organizations to develop a plan to expand “supported housing.”
defendants violated ADA by not providing services to mentally disabled individuals living in community-based supported housing, as well as in adult care facilities

Written by the judges who cited it.

The opinion

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

NICHOLAS G. GARAUFIS, District Judge.

The Supreme Court held in

Olmstead v. L.C.,

527 U.S. 581 , 119 S.Ct. 2176 , 144 L.Ed.2d 540 (1999), that “[u]njustified isolation ... is properly regarded as discrimination based on disability,” observing that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” 527 U.S. at 597, 600 , 119 S.Ct. 2176 . The “integration mandate” of Title II of the American with Disabilities Act, 42 U.S.C. § 12101

et seq.,

and Section 504 of the Rehabilitation Act, 29 U.S.C. § 791

et seq.,

as expressed in federal regulations and

Olmstead ,

requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” The “most integrated setting,” according to the federal regulations, is “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130 (d); 28 C.F.R. pt. 35 app. A.

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

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

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more integrated settings. Therefore, DAI has established a violation of the integration mandate of the ADA and the Rehabilitation Act.

Defendants are the New York State Department of Health (“DOH”), the New York State Office of Mental Health (“OMH”), as well as Governor David A. Paterson and the Commissioners of DOH and OMH (collectively, “Defendants”).

Defendants are required under New York law “to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill.” N.Y. Mental Hyg. Law § 7.01 ;

see id.

§§ 5.07, 7.07. They administer the State’s mental health service system, plan the settings in which mental health services are provided — by both public and private entities — and allocate resources within the mental health service system.

See, e.g.,

N.Y. Mental Hyg. Law §§ 5.07 , 7.07, 41.03, 41.42, 41.39; N.Y. Comp.Codes R. & Regs. tit. 18 §§ 485-87. In carrying out these duties, Defendants have denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs. Defendants’ actions constitute discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act. Although Defendants have raised an affirmative defense, they have not satisfied their burden of proof to establish that the relief DAI seeks would constitute a “fundamental alteration” of the State’s mental health service system. Accordingly, DAI is entitled to declaratory and injunctive relief.

I. BACKGROUND

DAI filed this suit on June 30, 2003, seeking declaratory and injunctive relief. (Compl. ¶ 34 (Docket Entry # 1).) Discovery concluded on November 14, 2006. On February 19, 2009, the court denied the parties’ motions for summary judgment.

Disability Advocates, Inc. v. Paterson (“DAI I”),

598 F.Supp.2d 289 (E.D.N.Y. 2009). After considering a voluminous factual record of over 13,000 pages and approximately 675 exhibits, this court resolved a host of legal issues raised by the parties.

See id.

at 293-94 . As threshold matters, the court concluded that: (1) DAI has statutory and Article III standing, (2) Title II of the ADA applies to DAI’s claims in this case, and (3) the Governor is a proper party.

See id.

at 307-311, 313-19, 356-57 . The court also discussed at length the components of the fundamental alteration defense.

See id.

at 333-39 .

DAI I,

the court identified several issues for trial. To determine whether DAI’s constituents are in the “most integrated setting appropriate for their needs,” the court would have to determine at trial (1) whether adult homes are the most integrated setting appropriate for DAI’s constituents to receive services, and (2) whether DATs constituents are “qualified” for supported housing.

See id.

at 319-20 (framing legal inquiry);

id.

at 331, 333 (concluding that issues of material fact precluded granting summary judgment to Defendants). The court also determined that issues of material fact remained as to the fundamental alteration defense, on which both sides had sought summary judgment.

Id.

at 349, 356 .

The court presided over an eighteen-day bench trial from May 11 to June 16, 2009. The court heard testimony from State officials, mental health and other experts, lay witnesses with extensive experience in State government, service providers, and current and former adult home residents,

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two of whom now live in supported housing. Twenty-nine witnesses testified, more than three hundred exhibits were admitted into evidence, and excerpts from the deposition transcripts of twenty-three additional witnesses were entered into the record, along with the 3,500 page trial transcript. The parties submitted proposed findings of fact and conclusions of law on July 13, 2009 and responses on July 22, 2009.

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

After a recent round of settlement conferences before Magistrate Judge Marilyn D. Go, the parties remain unable to settle the case.

Accordingly, after considering all of the evidence, this court issues the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

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

DAI I

explains in detail the court’s resolution of numerous legal issues in this case, including the meaning and application of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act.

See

598 F.Supp.2d at 311-12, 331, 333-39 . Here, the court provides a brief overview of the relevant legal standards. It then sets forth the core holdings of

DAI I

with respect to the applicability of Title II to Plaintiffs claims.

A. LEGAL STANDARDS

The ADA was enacted to “provide a clear and comprehensive national mandate

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for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101 (b)(1). Congress recognized that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.”

Id.

§ 12101(a)(2). Congress found that “individuals with disabilities continually encounter various forms of discrimination, including ... segregation.”

Id.

§ 12101(a)(5). Title II of the ADA prohibits discrimination in connection with access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 ;

DAI I,

598 F.Supp.2d at 311 .

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

See Henrietta D. v.

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

DAI I,

598 F.Supp.2d at 311 .

Section 504 of the Rehabilitation Act (“Section 504”) similarly prohibits disability-based discrimination: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....” 29 U.S.C. § 794 (a). Claims under the two statutes are treated identically unless — unlike here — one of the “subtle differences” in the two statutes is pertinent to a claim. Accordingly, in this case the court treats the claims under Section 504 as identical to the ADA claims.

Henrietta D.,

331 F.3d at 272 ;

DAI I,

598 F.Supp.2d at 311 n. 25. It is undisputed that DATs constituents are individuals with disabilities who are protected by the ADA and Section 504.

One form of discrimination “by reason of ... disability” is a violation of the “integration mandate” of Title II of the ADA and Section 504. This mandate — arising out of Congress’s explicit findings in the ADA, the regulations of the Attorney General implementing Title II, and the Supreme Court’s decision in

Olmstead v. L.C.,

527 U.S. 581 , 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.” 28 C.F.R. § 35.130 (d); 28 C.F.R. § 41.51 (d);

Olmstead,

527 U.S. at 607 , 119 S.Ct. 2176 .

Delineating the scope of the ADA’s integration mandate, the Supreme Court in

Olmstead

explicitly held that “[ujnjustified

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isolation ... is properly regarded as discrimination based on disability.”

Id.

at 597 , 119 S.Ct. 2176 . 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 . The Court recognized that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life ... and institutional confinement severely diminishes individuals’ everyday activities.”

Id.

There is no federal requirement, however, “that community-based treatment be imposed on patients who do not desire it.”

Id.

at 602 , 119 S.Ct. 2176 .

In its analysis of the ADA’s integration mandate in

Olmstead ,

the Supreme Court deferred to the Attorney General’s interpretation of Title II.

See id.

at 598 , 119 S.Ct. 2176 (“It is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (internal quotation marks and citations omitted). Thus, following

Olmstead ,

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

Olmstead ,

as the standard by which to determine a violation of the ADA’s integration mandate.

See DAI I,

598 F.Supp.2d at 313 ;

Joseph S. v. Hogan,

561 F.Supp.2d 280, 289-90 (E.D.N.Y.2008);

see also

42 U.S.C. § 12134 (a) (requiring the Attorney General to issue implementing regulations). The Appendix to the federal regulations defines the “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130 (d), 28 C.F.R. pt. 35 app. A. As discussed in

DAI I,

the court defers to these definitions and applies them as the legal standard here.

A state’s failure to provide services in the most integrated setting appropriate is excused only when the state can demonstrate that the relief sought would result in a “fundamental alteration” of the state’s service system.

See Olmstead,

527 U.S. at 603 , 119 S.Ct. 2176 . The “fundamental alteration” defense is derived from the “reasonable modifications” regulation, which states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130 (b)(7). A plurality of the Supreme Court described the defense as follows:

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

Olmstead,

527 U.S. at 604 , 119 S.Ct. 2176 . As this court noted on summary judgment, evaluating the fundamental alteration defense involves a specific, fact-based inquiry to determine whether the requested relief would impose a “fundamental alteration” of the State’s programs and services, taking into account Defendants’ efforts to comply with the integration mandate with respect to the population at issue and the fiscal impact of the requested relief, including the impact on the State’s ability to provide services for other individuals with mental illness.

See DAI I,

598 F.Supp.2d at 334 .

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

Title II of the ADA applies to “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131 (1). Accordingly, all Defendants in this action are subject to the ADA.

Pennsylvania Dep’t'of Corr. v. Yeskey,

524 U.S. 206, 209 , 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 “catchall phrase that prohibits all discrimination by a public entity, regardless of the context.”),

rev’d, on other grounds by Zervos v. Verizon New York,

252 F.3d 163 , 171 n. 7 (2d Cir.2001). Additionally, Defendants have stipulated that their programs or activities “receiv[e] federal financial assistance.”

As such, they are subject to Section 504. 29 U.S.C. § 794 (a).

DAI I,

the court held that Title II applies to DAI’s claims in this case.

DAI I,

598 F.Supp.2d at 317 ;

see id.

at 319 (holding that DAI’s “claim falls squarely under Title II of the ADA”). In doing so, the court rejected Defendants’ argument that the State is not liable under the ADA because the adult homes are privately owned, and finding that it is “immaterial that DAI’s constituents are receiving mental health services in privately operated facilities.”

Id.

at 317 ;

see Rolland v. Cellucci,

52 F.Supp.2d 231, 237 (D.Mass.1999). The ADA requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130 (d).

As the court previously held, Defendants’ actions at issue here — including the allocation of State resources among various service settings — involve “administration.” Defendants, as required by New York law, administer the State’s system of mental health care, including residential and treatment services provided by both public and private entities.

DAI I,

598 F.Supp.2d at 317 . They plan how and where services for individuals with mental illness will be provided, and they allocate the State’s resources accordingly.

Id.

Defendants are also required under State law to develop a “comprehensive, integrated system of treatment and rehabilitative services for the mentally ill” that assures “the adequacy and appropriateness of residen

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tial arrangements” and relies on “institutional care only when necessary and appropriate.” N.Y. Mental Hyg. Law §§ 7.01 , 7.07. As this court previously held, “[t]he State cannot evade its obligation to comply with the ADA by using private entities to deliver services that are planned, implemented, and funded as part of a statewide system of mental health care.”

DAI I,

598 F.Supp.2d at 318 .

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

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

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

1. Legal Standard

The law requires that public entities “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130 (d).

According to the federal regulations, the “most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130 (d); 28 C.F.R. pt. 35 app. A. In

DAI

/, the court resolved the parties’ dispute regarding the meaning of the federal regulations and concluded that the proper inquiry is whether the individuals at issue “are in the

‘most

integrated setting appropriate to their needs,’ defined as ‘enabling] individuals with disabilities to interact with non-disabled persons to the fullest extent possible.’ ”

See DAI I,

598 F.Supp.2d at 321

(citing

28 C.F.R. § 35.130 (d), App. A and concluding that “the federal regulations mean what they say”).

2. Findings of Fact

a. Background

Adult homes are a type of adult care facility licensed by the State and authorized to provide long-term residential care, room, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator.

Adult homes are privately owned, for-profit facilities.

State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, physical and environmental standards, and services that must be provided in adult homes.

Defendants administer the State’s system of mental health care, including residential and treatment services provided by public and private entities.

Defendant OMH licenses, funds, and oversees an array of mental health housing and support

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service programs statewide, including community support, residential, and family care programs.

OMH is also required by law to plan how and where New York’s mental health services will be delivered.

In particular, OMH is obligated to “develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill” and to “create financing procedures and mechanisms to support such a system of services”; it relies on both public and private providers of those services.

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

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

DOH issues operating certificates to establish and operate adult homes.

The operating certificates must be reissued every four years.

DOH also licenses and monitors adult homes and enforces the applicable statutes and regulations

through unannounced inspections of each adult home every twelve or eighteen months, depending on the facility’s record.

It can revoke, suspend, or terminate an operating certificate if an adult home fails to comply with State regulations,

or if DOH determines that such an action is in the public interest because it would conserve resources.

In 2002, there were 12,586 recipients of mental health services residing in adult homes statewide.

There are currently 380 licensed adult homes in New York State, and 44 adult homes in New York City.

Adult homes in which at least 25% of the residents or 25 residents (whichever is fewer) have mental disabilities are referred to as “impacted.”

While the term

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“mental disabilities” includes both mental illness and developmental disabilities, only a few of the 12,000 individuals with mental illness who live in adult homes have developmental disabilities.

The testimony and exhibits concerning “impacted” adult homes refer to those homes with the requisite number of individuals who have “mental illness,” a “mental health diagnosis,” or “history of mental health diagnosis.”

Defendants rely on information reported from the adult homes themselves to identify which homes are impacted.

Impacted adult homes must enter into a written agreement with a provider of mental health services for assistance with the assessment of mental health needs, the supervision of mental health care, and the provision of case management for residents enrolled in mental health programs.

i. The Adult Homes at Issue

According to the most recent data, the DOH Adult Care Facility Census Report for 2008 (“DOH 2008 Census Report”),

there are twenty-eight impacted adult homes in New York City with more than

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120 beds.

These adult homes are: Anna Erika Assisted Living, Bayview Manor Home for Adults, Belle Harbor Manor, Bronxwood, Brooklyn Adult Care Center, Castle Senior Living at Forest Hills, Central Assisted Living LLC (formerly known as New Central Manor), Elm-York LLC, Garden

Eden, Lakeside Manor Home for Adults, Long Island Hebrew Living Center, Mermaid Manor Home for Adults, New Broadview Manor Home for Adults, New Gloria's Manor Home for Adults, New Haven Manor, Oceanview Manor Home for Adults, Park Inn Home for Adults, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor Home for Adults, Rockaway Manor Home for Adults, Sanford Home, Scharome Man- or, Seaview Manor LLC, S.S. Cosmas and Damian Adult Home, Surf Manor Home for Adults, Surfside Manor Home for Adults, and Wavecrest.

As of December 31, 2008, each of these adult homes housed more than one hundred residents, and seven housed over two hundred residents.

More than eighty percent of the residents in these twenty-eight adult homes are reported as having mental illness.

In eighteen homes, more than 95% of the residents have mental illness, and in nine homes, 100% of the residents have mental illness.

In only four homes do less than 50% of the residents have mental illness.

According to the DOH 2008 Census Report, more than 4,300 individuals with mental illness were living in these adult homes on December 31, 2008.

Certain details of operation and resident population of the adult homes may vary, but as a factual matter, there are no material differences among these adult homes with respect to the issues in this case.

As used below, “Adult Homes” refers to impacted adult homes in New York City with more than 120 beds.

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ii. The Development of Adult Homes in New York State

Adult homes in New York State were originally designed to house the “the frail elderly,” not people with psychiatric disabilities.

They became a place for people with mental illness to live and receive services when the State began to deinstitutionalize its State psychiatric hospitals in the early 1970s, and State psychiatric hospitals began discharging patients directly into adult homes.

As former OMH Commissioner James Stone noted, adult homes developed because “community resources weren’t up to speed with state operated bed reductions” resulting from deinstitutionalization.

Thirty years ago, New York State and New York City government reports referred to adult homes as “de facto mental institutions” and “satellite mental institutions.”

According to Linda Rosenberg, a former Senior Deputy Commissioner of OMH who worked in the State’s mental health system from the early 1970s to 2004, OMH’s approach to the community integration of people with severe mental health issues evolved over the years, and “it became increasingly clear that [adult homes] were neither desirable, nor would they really promote people’s recovery and integration and full social inclusion.”

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

Adult homes have long been, and continue to be, a discharge option for individuals leaving psychiatric hospitals.

Numerous current and former Adult Home residents testified that they were discharged from a psychiatric hospital into an Adult Home.

The percentage of people discharged from psychiatric hospitals into adult homes in New York City declined significantly from the mid-1990s to 2005,

which Ms. Rosenberg testified “speaks to our belief [at OMH] at that time and I think it continues now that adult homes are not desirable places to live.”

Nonetheless, OMH made efforts in 2008 to

facilitate

discharges from State hospitals in the New York City area to adult homes in New York City, including a number of the impacted Adult Homes at issue in this litigation.

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In particular, OMH’s Director of Case Management Services, Mitchell Dorfman, made recommendations for referrals to adult homes, including the Adult Homes at issue in this litigation, for psychiatric patients who had been approved for supported housing.

Mr. Dorfman also told adult home operators concerned about the fiscal impact of a recent legislative initiative to provide 60 beds of supported housing to Adult Home residents

that “in whatever way we can help facilitate referrals to the adult home we would work with you and do that.”

High-level State employees in OMH’s central office, including Robert Myers, OMH’s Senior Deputy Commissioner for Adult Services, were aware of these recent efforts to facilitate discharges from state psychiatric hospitals to impacted Adult Homes, and did not express any concerns or stop this process.

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

i. Adult Homes Are Institutions

The overwhelming evidence in the record compels the court to find, as a factual matter, that Adult Homes are institutions.

Indeed, in its June 4, 2007 “Guiding Principles for the Redesign of the Office of Mental Health Housing & Community Support Policies,” OMH characterizes adult homes as institutions:

as a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with mental illness are poorly housed or institutionalized.

Thus, many people with mental illness are “stuck” in

...

institutional settings (nursing homes, adult homes, state psychiatric centers).

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

As set forth more fully below, the evidence demonstrates that Adult Homes have the characteristics Ms. Jones described. Witnesses for both sides testified that Adult Homes share many salient features of State psychiatric hospitals. First, Adult Homes house a large number of people with psychiatric disabilities in a congregate setting.

As Defendants’ expert Alan Kaufman observed, “significant numbers of residents suffer from serious mental illness .... The number of beds in many of the larger Adult Homes, as well as their physical layout, furnishings, and decorations, also give an appearance similar to that in an institutional setting.”

Second, life in the Adult Homes is highly regimented. Adult Homes, like other types of institutions, “are designed to manage and control large numbers of people ... by eliminating choice and personal autonomy, establishing inflexible routines for the convenience of staff, restricting access, implementing measures which maximize efficiency, and penalizing residents who break the rules.”

In particular, there are inflexible schedules for meals, taking medication, receiving public benefits, and other daily activities.

Residents are assigned roommates and are required to sit at a specific seat at a specific table in the cafeteria; they must seek permission to change these assignments.

Most Adult Home residents line up to receive their medications at scheduled times.

Long lines also form for receiving personal needs allowances, the portion of residents’ Supplemental Security Income allocated for the residents’ personal use.

Witnesses observed that Adult Homes had the look and feel of “back wards” of State

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hospitals and were “reminiscent of a state psychiatric hospital and its culture.”

Adult Homes are not identical in all respects to psychiatric hospitals, however. In some ways, Adult Homes are even more restrictive or “institutional” than psychiatric hospitals. For example, Plaintiffs expert Dr. Kenneth Duckworth testified that in his experience, unlike the Adult Homes, psychiatric hospitals do not have assigned seating for meals and do not necessarily distribute medication at mealtimes.

Ms. Jones testified that lines at the Adult Homes, which had “200, 400 people all mingling together and standing in line for medication,” were longer than those at psychiatric hospitals, because psychiatric hospitals are divided into wards of approximately twenty people.

In certain respects, however, Adult Homes are less restrictive than psychiatric hospitals. For example, Adult Homes do not have a “privilege” system that explicitly limits residents from leaving the grounds, as is common in psychiatric hospitals.

In addition, because adult homes are prohibited by law from housing people who are a danger to themselves or others,

they do not impose some of the restrictions psychiatric hospitals place on their patients, such as restricting access to mail, limiting smoking at certain times of day, or prohibiting them from carrying matches.

Nonetheless, Adult Homes bear little resemblance to the homes in which people without disabilities normally live.

As Defendants’ expert Mr. Kaufman observed, medical and mental health staff are a constant presence in Adult Homes.

Meals, medication, phone calls, and mail deliveries are announced over a public address system.

Privacy is extremely limited. The Adult Homes have large numbers of residents and staff, and there are few or no private spaces in which to receive visitors or talk on the phone.

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Residents of Adult Homes are subject to an extensive and significant set of rules.

For example, Adult Homes restrict when and where residents may receive visitors; restrict when residents may be absent; and require visitors to sign in and state the purpose of their visit.

In addition, while some of the Adult Homes do not have curfews,

other Adult Homes have evening curfews after which doors are locked and residents must be admitted by staff.

In some Adult Homes, residents are not provided keys to the front doors,

and residents sometimes have trouble getting back into their buildings.

Even in Adult Homes without a curfew, residents may be required to notify staff each time they leave the facility.

Some Adult Homes prohibit residents from decorating

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their rooms, though others do not.

Some residents have expressed fear that they will be subjected to retaliation if they do not follow the Adult Home’s rules or complain about the Adult Home, and some have been arbitrarily penalized.

The court is persuaded by the opinion of Ms. Jones and DATs other experts, as well as lay witnesses who testified based on their personal observations, that the Adult Homes are institutions: segregated settings that impede residents’ community integration.

Ms. Jones, who spent seven

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ty-five hours in twenty-three Adult Homes in both scheduled and unannounced visits explained:

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

As Dr. Duckworth testified, “[t]he adult homes have ... some of the elements of a homeless shelter and some of the elements of a state hospital. The culture is quite institutional in some ways, even more institutional than a state hospital in my opinion.”

Similarly, former OMH Senior Deputy Commissioner Ms. Rosenberg described Adult Homes as “institutional living at, potentially, its worst.”

She observed that Adult Homes “impede community integration” and are “little ghettos” with “people sitting out front [of] the adult home, smoking, going back in, sitting in the lobby, not much going on and not much exposure to the rest of the world.”

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

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

Much of Adult Home residents’ daily lives takes place inside the Adult Homes. As Ms. Jones observed, “[t]here is a large number of people who seem to stay in the homes and don’t really go out a whole lot at all.”

Residents spend most of their days in activities organized for them by the Adult Homes and/or mental health providers associated with the Adult Homes. Adult Homes are required to provide a program of activities in the facility as well as in the community,

and DOH has cited Adult Homes for failing to provide a sufficient program of activities.

Activities provided by Adult Homes in-

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elude games, puzzles, and other child-appropriate leisure activities.

For example, activities provided on-site at Riverdale Manor through the case management program include computer games suitable “for a three-or four-year-old,”

and a calendar of recreational activities at Surfside Manor lists activities such as beads, nail painting, and bingo.

A former Adult Home resident testified that the activities “had you coloring, like a little kid; you play Bingo, like a little kid; you play domino, like a little kid; and you play cards, like a little kid.”

When asked at trial about the Adult Home’s activities, an Adult Home resident answered, “[t]hey really don’t have too much of anything. It’s like just maybe playing cards, cribbage, puzzles, stuff like that; but they really don’t have anything much to do.”

Adult Homes also arrange for religious services and musical performances inside the facilities.

Many Adult Home residents also see medical and mental health professionals inside the facilities. In general, residents are assigned doctors and psychiatrists, usually on-site in the Adult Homes, and are told when to see the treatment providers.

For example, Park Inn contracts with local medical facilities and psychiatric centers that provide on-site doctors, psychiatrists, and social workers, and the majority of residents of Park Inn attend on-site mental health clinics and are treated by on-site doctors and mental health professionals.

Because Adult Homes almost always hold residents’ Medicaid cards, residents generally see the providers selected by the Adult Homes — many of which have a financial interest in controlling who provides medical care to residents

— and residents must ask permission to access community-based care.

100

Unless residents

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are involved in an off-site mental health program, they do not have much interaction with individuals outside of the Adult Home setting.

101

When they do leave the facility to attend mental health programs, they are transported to the programs in ambulettes, buses, or vans, and their time in the programs is spent with other individuals with mental illness.

102

While Adult Home residents have the right to “leave and return to the facility and grounds at reasonable hours,”

103

in practice they are limited in the times that they can leave the Adult Homes, due to the rigid schedules for meals, medications, and distribution of personal needs allowances.

104

For example, while residents are not precluded from eating outside of the Adult Home, they must be present at times when their medication is dispensed, usually at meal times and at nighttime, or they are penalized.

105

Facility rules for another Adult Home require residents to notify a “staff supervisor” if they will miss a meal.

106

While Adult Home residents have the right under State regulations to manage their own medications,

107

there is overwhelming evidence that the vast majority of Adult Home residents are not permitted to administer their own medication.

108

A few residents have successfully reclaimed their right to self-administer their medication by obtaining their doctor’s permission to do so.

109

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iii. Residents’ Access to Neighborhood Amenities

There is evidence that some Adult Home residents visit, to varying extents, neighborhood amenities, such as stores, parks and/or beaches, restaurants, libraries, religious institutions, and entertainment facilities.

110

The testimony of current and former Adult Home residents demonstrates, however, that not all residents leave the facilities, and those who go out do not do so often, nor do they spend significant amounts of time outside of the facility. For example, one resident testified that a few residents never leave the Adult Home building, and estimated that “maybe ten” of the other residents visited the nearby boardwalk.

111

A former resident testified that he attended church outside the facility, but only on a total of three occasions during the entire time he lived in the Adult Home.

112

Another former Adult Home resident testified that only eight of the 216 residents went to restaurants in the neighborhood; and that he has only seen a handful of residents leave the facility to go shopping, go to the park, or attend religious services.

113

Another resident testified that residents walk around the neighborhood and go outside the facility to shop for toiletries and other items roughly ten to fifteen times per year, but no more than three residents go to a park.

114

He also testified that residents eat out to the extent their monthly funds allow it because the food at the facility is so bad, and that while he goes out of the facility to get food, he does “most of [his] eating in the building up in [his] room.”

115

In addition, while the Adult Homes are located near some neighborhood amenities such as stores, fast-food restaurants, libraries, parks, churches and synagogues, and beaches and/or boardwalks,

116

accessibility depends on how far particular residents can walk.

117

The Adult Homes are located within several blocks of public transportation,

118

but the familiarity of

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Adult Home residents with public transportation varies, as does the frequency with which the residents use public transportation.

119

Some Adult Home residents have reduced-fare Metrocards.

120

One Adult Home resident testified that she “do[es]n’t really know the buses” in the neighborhood but has taken the bus more than twice, that she is unfamiliar with the subway and has only taken it once since living in the Adult Home, and that she mostly gets around by walking.

121

Others are more familiar with public transportation; for example, when G.L. lived in the Adult Home, he took public transportation with his roommate approximately once per month to stores.

122

There is evidence that a handful of residents have traveled via public transportation to entertainment or cultural events in Manhattan.

123

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

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

124

She testified that the fact that some Adult Home residents come and go does not change her conclusion that Adult Homes are segregated settings, because “there is nothing in the adult home that’s contributing toward the integration of people in their communities.”

125

She explained that “[t]he people that are going out and doing

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things in their community, in their neighborhood, are people who have taken that initiative upon themselves. The people that need support in doing that are not being assisted by the adult home to have those interactions ....”

126

iv. Organized Trips

The Adult Homes and mental health programs take residents on organized trips,

127

and the regulations require adult homes to arrange for “resident participation in community-based and community-sponsored activities.”

128

Such outings contribute little to residents’ integration into the community, however. The residents generally travel as a group, in a bus or van, and interact mainly with each other.

129

At Park Inn Home for Adults and numerous other Adult Homes, the number of residents who can go on each trip is limited to the number of persons that can fit in a van.

130

Before Park Inn recently acquired a van, it used ambulettes to take groups of residents on monthly outings to restaurants and movies.

131

Seaview takes between ten and twenty residents each month to Wendy’s.

132

Residents of River-dale Manor Home for Adults are taken by a mental health provider, the Federation of Employment and Guidance Services (“PEGS”), on “field trips” to museums and libraries, but the visits are after hours when the facilities are closed to the general public.

133

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

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

134

As Plaintiffs and Defendants’ experts agree, and as Adult Home residents testified, Adult Homes limit the development of relationships with people who do not have disabilities, including social contacts.

135

While Adult Home residents form friendships and romantic relationships with other Adult Home residents,

136

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many residents testified that they lack friends outside the Adult Home, and to the extent such friendships exist, they often predate their admission to the Adult Home.

137

While some residents have spoken to or met people on the street,

138

other residents testified that they do not know anyone or have any friends outside of the Adult Home.

139

For example, J.M. testified that when he lived in the Adult Home, he talked to people in the neighborhood and visited a woman in her home, but that he had never seen any other residents of the Adult Home speaking to people in the neighborhood.

140

One resident testified that “I met one person once [in the neighborhood] and when they find where you are from, they avoid you.”

141

Another resident testified that “[y]ou’re in program, you’re in home. All your energy is surrounded with the home, so it’s hard to meet different people.”

142

Some residents testified that they feel isolated living in the Adult Homes.

143

For example, one resident testified that “the first seven years I lived at [the Adult Home] I basically gained 135 pounds feeding my loneliness.”

144

While it is possible for a person to feel isolated in any setting, including supported housing,

145

Defen

*210

dants’ expert Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated than residents of group homes.

146

Some Adult Home residents have visitors, although as noted above, Adult Homes place significant restrictions on receiving visitors, such as visiting hours and requirements that visitors sign in.

147

For example, a former Adult Home resident testified that his stepfather visited him in the Adult Home, but that his stepfather and others visit him more frequently now that he lives in supported housing, because in the Adult Home there was nowhere to have a private conversation, the visiting areas were small, guests could not join in meals, guests had to sign in, guests were not allowed to stay overnight, and visiting hours ended at 8 p.m.

148

One resident testified that her sister and niece visited her “about twice” since she moved to the Adult Home and that both times, they went out to eat; she testified that she did not want to spend time with them in the Adult Home, because her roommate stays in the room most of the time, and she did not want to take her visitors “downstairs” or to the “smoking room.”

149

Another resident testified that she receives no visitors other than family members, and that they cannot spend time with her at the Adult Home because the staff gets in the way.

150

Another resident testified that her sister sometimes picks her up and takes her to the sister’s house, but when asked whether her sister visits with her inside the Adult Home, she answered only that her sister had “been inside” the Adult Home before.

151

A resident testified that he never has visitors at the Adult Home,

152

while another resident testified that no friends visit her but several relatives do, and that she sees them in the lobby.

153

Not many Adult Home residents visit family and friends outside the Home,

154

and the ones who leave to visit people do so to varying extents.

155

Hinda Burstein, the administrator of Park Inn, testified that residents of Park Inn “occasionally” leave the facility to visit their families.

156

She estimated that approximately ten percent of the residents have made weekend visits to their families, and some residents have traveled out of state to visit relatives.

157

An Adult Home resident testified that he has visited a friend outside the Home only six times in nine years, estimated that about 25% of the residents visit their relatives outside the Adult Home (but that the most frequently anyone visited a relative outside the home is twice per

*211

month), and stated that he knew of one resident who stayed overnight at his mother’s house in the neighborhood.

158

Another resident testified that he does not have any family and friends outside the Adult Home with whom he keeps in touch.

159

As numerous witnesses testified, the Adult Home setting limits opportunities for residents to pursue employment opportunities.

160

For example, Dr. Jeffrey Geller, one of Defendants’ experts, agreed that living in a place where the phone is answered “Brooklyn Adult Care Center” “diminishes your work options and social contacts.”

161

Very few Adult Home residents are employed or have volunteer positions outside of the Adult Home,

162

and such jobs are often short-lived. For example, one resident testified that a social worker helped him obtain a previous job as a messenger, but he was fired after seven weeks.

163

Another resident testified that he kept his previous job at a newsstand once he was admitted to the Adult Home, but the job now occupies only three to four hours per week and no longer involves interacting with customers.

164

Another resident “helped out” at a coffee cart as a volunteer for a year.

165

A very small number of residents participate in vocational training; for example, eight to twelve out of the 181 residents at Park Inn participate in vocational training.

166

There is evidence that one Adult Home resident obtained a GED since she moved to the Adult Home in 1985.

167

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

Many Adult Home residents with mental illness receive mental health services from a variety of sources, including clinics, continuing day treatment programs (“CDTs”), and private practitioners.

168

Adult homes are also required to provide basic case

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management services,

169

and OMH’s Case Management Initiative funds independent case managers in eleven of the Adult Homes.

170

While some residents leave the facilities to attend CDT or other mental health programs, attending these programs contributes to residents’ isolation and separation from the mainstream of community life.

171

The court heard testimony from service providers from nonprofit agencies that run mental health programs serving Adult Home residents. For example, Susan Bear testified about OMH-licensed CDTs run by the Jewish Board of Family and Children’s Services (“Jewish Board”), which have groups that focus on symptom management, spirituality, meditation, relationship building, medication management, cooking, and computers.

172

Licensed CDT programs run by FEGS, serving Adult Home residents both on-site and off-site, are intended to help clients use community resources, learn self-care and self-medication, and prepare for employment.

173

While CDT programs have laudable goals for participants, the evidence demonstrates that they have little focus on skill development.

174

A December 2006 review by the New York State Commission on the Quality of Care for and Advocacy for Persons with Disabilities (“CQC”)

175

of CDT programs noted a “disconnect” between participants’ life goals of gaining independent living and job skills and the goals that the programs had set for them.

176

The CQC report found that some day treatment programs are characterized by group television and movie watching and art “programs,” which may only involve the provision of crayons, markers, and coloring books.

177

Because Defendants concede that CDT programs are “outdated,” they are trying to make CDTs and other mental health services “more evidence-based and recovery-oriented,”

178

while also directing funds away from these types of programs.

179

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One Adult Home resident testified that he had been attending a CDT program for fourteen years where he and seventeen or eighteen other residents “go to groups all day” in which providers “try to get us ready for the outside.”

180

He testified that the groups offered “skills training” and that the groups “sometimes” talked about jobs, but he could not remember anything that was said about jobs, and the group leaders never talked about applying for jobs, writing resumes, or looking in classified ads.

181

Another resident testified that the mental health program he attends, which “gives you something to do during the day,” provides arts and crafts, and sometimes movies and Bingo, but that the program does not offer any classes or self-help groups, does not talk about jobs, and has taken participants on only two trips, both to Chinese restaurants.

182

Case management is also designed to help residents with independent living skills. Defendants’ witnesses testified that case managers work with residents to help the residents learn about shopping, accessing community resources, and taking public transportation.

183

For example, Frances Lockhart testified that case managers from Federation of Organizations (“Federation”) teach Adult Home residents how to shop for clothes.

184

An Adult Home resident testified, however, that while Federation takes residents shopping for clothes twice per year, “they don’t give you the money in your hand and let you buy your own clothes.”

185

Ms. Burstein testified that at Park Inn, case managers informally assist two or three residents at a time with using the computer, and that that the “more sophisticated” residents use the internet to look for jobs, buy clothing, or enter “chat rooms.”

186

As Mr. Jones testified, the OMH Case Management Initiative primarily “arrange[s] services within the existing setting,” it does not “deal frontally with the issue of where people live.”

187

To the extent that mental health programs or case management aim to teach independent living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice these skills in their present living situation.

188

Experts for both sides testified that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live.

189

For example,

*214

residents are unlikely to learn to cook in the Adult Home environment simply because a training kitchen is installed.

190

Therefore, while it is possible for Adult Home residents to benefit to some extent from these programs,

191

the weight of the evidence shows that they are unlikely to gain a significant benefit from this type of training or develop any lasting skills.

192

Inspections of the Adult Homes have cited violations related to residents’ rights and ability to participate in their surrounding community and to learn independent living skills.

193

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

The Adult Homes foster what witnesses for both sides have referred to as “learned helplessness”: when individuals are “treated as if they’re completely helpless, the helplessness becomes a learned phenomenon.”

194

This is consistent with Defendant OMH Commissioner Hogan’s testimony to the Legislature that in institutions in general, “the skills of community living are eroded by the routines of institutional life.”

195

The Adult Homes discourage— and some outright prohibit — residents from cooking,

196

cleaning,

197

doing their

*215

own laundry,

198

and administering their own medication.

199

The Adult Homes also generally manage residents’ personal needs allowances, distributing cash to residents on specified dates and times.

200

The result is that Adult Home residents lose skills that they had prior to living in the Adult Home — such as medication management — because they are forbidden from practicing those skills in the Adult Home.

201

As one former Adult Home resident testified, “[W]hen you go to an adult home, number one, you’re treated like a little kid. And if you stay there long enough, you’re going to act like a little kid and you ain’t going to want to leave because you being taken care of ... it’s like an institution to me.”

202

Similarly, another former resident testified, “the adult home fosters complete dependency upon them to do everything for you, discourages independence ----”

203

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

204

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That the Adult

Homes

are a setting that fosters learned helplessness, however, does not mean that the individuals who live in the Adult Homes are helpless, or that they cannot and do not manage their activities of daily living. To the contrary, the evidence set forth below demonstrates that Adult Home residents are not materially different from individuals with mental illness who live and receive services in the community.

205

As Plaintiffs expert Elizabeth Jones observed, the high degree of independence exhibited by many Adult Home residents is particularly striking given the tendency of individuals to appear more dependent and disabled when they are observed in institutional settings such as Adult Homes.

206

In addition, some of the current and former Adult Home residents who testified in this case engage in advocacy on behalf of Adult Home residents — they lobby State government, participate in rallies, and attend meetings of advocacy organizations for individuals with mental illness.

207

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

Defendants presented two experts, Alan Kaufman and Dr. Jeffery Geller, to rebut the evidence that Adult Homes are segregated settings that impede community integration. Defendants’ experts highlighted, for example, that the Adult Homes are in urban settings and that because residents are not locked in the facilities, they have opportunities to come and go.

208

But even if the Adult Homes are not as restrictive as psychiatric hospitals in some respects, they nonetheless are segregated, institutional settings that impede integration in the community and foster learned helplessness. As described below in Part III.A.2.C, the State’s supported housing program provides far more opportunities for community integration than do Adult Homes. As explained by Michael Newman, the Director of OMH’s Bureau of Housing Development and Support, 120 people living in a congregate setting in which everyone is seriously mentally ill is a “segregated setting,” while scattered-site supported housing provides “maximum opportunities” for integration.

209

Defendants’ experts opined that the setting in which a person with disabilities lives is irrelevant to the question of integration because it is possible for a person to feel isolated in any kind of setting.

210

The court accords these opinions little weight. Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated into the community than residents of group homes.

211

Dr. Geller explicitly rejected the applicable legal standard for integration. He testified that he believes the Supreme Court’s finding in

Olmstead

that

*217

“confinement in an institution severely diminishes the everyday life activities of individuals” was “wrong,” and that the setting in which a person lives and receives services does not determine whether he or she is “integrated.”

212

With respect to the institutional and segregated nature of Adult Homes, Defendants’ experts and other witnesses were largely in agreement with DATs experts, current and former Adult Home residents, and other witnesses.

213

Defendants’ experts acknowledged the institutional characteristics of the Adult Homes.

214

Mr. Kaufinan noted that there is generally no expectation that individuals in Adult

*218

Homes will move to another setting.

215

Defendants’ experts also acknowledged that characteristics of Adult Homes themselves impede the development of social contacts and work opportunities.

216

Given the extensive testimony from Defendants’ experts that Adult Homes have “institutional qualities,” “share[] characteristics with inpatient psychiatric facilities,” and impede residents’ development of social contacts and employment opportunities, the court rejects the fallacy that Adult Homes are not “institutions.”

217

Indeed, while Mr. Kaufman tried to draw a semantic distinction between a setting with institutional characteristics and “institutional settings per se,” he testified on direct examination that Adult Homes “were large institutions.”

218

Defendants themselves have acknowledged that Adult Homes are institutional.

219

In addition, their witness, Susan Bear, the Assistant Executive Director of a large New York City mental health provider, described the Adult Homes located in Coney Island as “community-based psychiatric ghettos in which smaller groups of individuals were located in a community, but never helped to become part of it.”

220

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

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

As relief in this case, DAI seeks an order requiring Defendants to enable DATs constituents to receive services in supported housing instead of Adult Homes. Supported housing, a type of OMH-funded “Housing for Persons with Mental Illness,”

221

is a setting in which

*219

individuals live in their own apartment and receive services to support their success as tenants and their integration into the community. OMH develops supported housing by issuing Requests for Proposals (“RFPs”) and awarding contracts to community providers who will deliver the services.

222

The providers select existing apartments in the community for their programs.

223

Most supported housing in New York is “scattered site” — that is, it is in the form of rental apartments scattered among various buildings throughout the community.

224

As used throughout, “supported housing” refers to the scattered-site supported housing that DAI seeks for its constituents.

The State is currently focusing on supported housing more than other forms of OMH housing because it is cost-effective, a best practice, and what consumers want.

225

Ms. Jones explained that the modern practice in the mental health field is to start with housing and “add and subtract the supports as that person needs them.”

226

Likewise, Ms. Rosenberg testified that supported housing reflects the most current thinking and practice in the field.

227

Consistent with that view, OMH began to implement a supported housing program in 1990.

228

Mr. Newman, the Director of OMH’s Bureau of Housing Development and Support, testified that supported housing is the current focus of OMH’s housing development because it is a “successful,” “cost-effective” program that gives residents “the same privacy rights as any other tenant in a landlord-tenant relationship.”

229

As set forth below, the evidence demonstrates that supported housing is a far more integrated setting than an Adult Home.

In supported housing, people with mental illness live much like their peers who do not have disabilities. Scattered site supported housing is a “normalized” residential setting.

230

In other words, it is a setting much like where individuals without disabilities live.

231

It is a person’s home.

232

Residents of supported housing sometimes live alone and sometimes share their apartment with one or more roommates.

233

They choose their own roommates.

234

Sometimes they lease the apart

*220

ment directly from the landlord, and sometimes they lease the apartment from the provider.

235

One of the key principles of the State’s supported housing program is to “separate] housing from support services by assisting the resident to remain in the housing of his choice while the type and intensity of services vary to meet the changing needs of the individual.”

236

Supported housing providers and other community mental health providers offer support services that vary depending upon the needs of the resident.

237

Supported housing providers offer basic case management services.

238

The number of visits from case managers can vary widely depending on the needs of the resident, from once a month to as often as twice per day.

239

In addition to the services of the supported housing provider, residents can receive additional support services, such as Assertive Community Treatment (“ACT”) or additional case management services, sometimes called “intensive” or “blended” case management.

240

Sam Tsemberis, the Executive Director of the Pathways to Housing (“Pathways”) supported housing program, testified that it is “common” for supported housing residents to have case management services in addition to those supplied by the provider.

241

As OMH’s Director of Case Management Services Mr. Dorfman testified, “[a]ll residents in [OMH] mental health housing, if appropriate, are eligible and can access all the mental health community support services.”

242

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

243

According to OMH, ACT “delivers comprehensive and flexible treatment, support, and rehabilitation services to individuals in their natural living settings.”

244

An ACT team is multi-disciplinary — it typically includes members from the fields of psychiatry, nursing, psychology, and social work, with increasing involvement of substance abuse and vocational rehabilitation specialists.

245

ACT teams provide services tailored to meet a client’s specific needs.

246

According to OMH’s ACT Program Guidelines, to be eligible for ACT services in New York State, individuals must have “a severe and persistent mental illness ... that seriously impairs their functioning in

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the community,” with a “priority” given to individuals with “continuous high service needs that are not being met in more traditional service settings.”

247

ACT teams can assist recipients with a wide range of service needs, including teaching medication management.

248

They can also assist with daily activities such as personal care and safety, grocery shopping and cooking, purchasing and caring for clothing, household chores, using transportation and other community resources, and managing finances.

249

ACT teams see clients on average about twice per week but can see individuals as often as twice per day if necessary.

250

An ACT team assigned to a person with mental illness recently discharged from the hospital would typically see that person once or twice a day.

251

Individuals in supported housing who receive ACT services are required to be visited at least six times per month by members of the ACT team.

252

For example, the Pathways program uses ACT with roughly 80% of its incoming clients; the remaining 20% receive less intensive case management.

253

Pathways routinely and successfully helps people overcome difficulties with activities of daily living such as laundry, cooking, or using public transportation, and does not regard such challenges as “difficult issues” to deal with.

254

Residents of supported housing have the same freedoms that other apartment tenants do.

255

They can control their own

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schedules and daily lives.

256

They are free to come and go when they like. They can live with a significant other, marry and live with a spouse, live with their children, invite guests for meals, decorate their own apartment, and have overnight guests.

257

They have the same privacy rights and freedoms as any other tenant in a landlord-tenant relationship,

258

including the keys to their own apartment.

259

I.K., who recently moved to supported housing after spending sixteen years in an Adult Home, testified that she loves living in her apartment.

260

She explained:

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

261

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

A. Definitely where I am now.

Q. Why is that?

A. I have much more freedom.

Q. To do what?

A. Anything, everything.

Q. Would you ever—

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

Q. Anything else?

A. Visitors can come anytime.

Q. And that means something to you? A. Yes.

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

A. No.

262

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

When people first move into an apartment that is so much the thing they appreciate the most, because many of the people that we’re housing out of shelters and hospitals, especially, have been for years told when to wake up, what to eat, when to eat, what TV channels to watch, which are selected for

*223

them, what they watch, and when they watch it, when they can make phone calls. Every tiny aspect of their life is decided by someone else and what people appreciate immediately are the ordinary day to day freedoms of things, like when you can choose to wake up or go to sleep or watch a TV channel or eat when you are hungry as opposed to when it’s time to eat. They seem ordinary and mundane and are profoundly important to build a sense of well being for the person.

263

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

264

Compared to Adult Home residents, residents of supported housing have far greater opportunities to interact with people who do not have disabilities and to be integrated into the larger community.

265

In the words of Mr. Newman, the Director of OMH’s Bureau of Housing Development and Support, supported housing provides “maximum opportunities” for community integration.

266

3. Conclusions of Law

As noted above, the law requires that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130 (d). The appropriate inquiry to determine whether a particular setting is the “most integrated setting” is whether it “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.”

DAI I,

598 F.Supp.2d at 321

(citing

28 C.F.R. § 35.130 (d); 28 C.F.R. pt. 35 app. A).

The court concludes that the large, impacted Adult Homes at issue in this case do not enable interactions with nondisabled persons to the fullest extent possible, and that the State’s supported housing programs offer a setting that enables interactions with nondisabled persons to a far greater extent.

Under the applicable standard set forth in the regulations for what constitutes the “most integrated setting,” a plaintiff need not prove that the setting at issue is an “institution” to establish a violation of the integration mandate.

See Fisher v. Okla. Health Care Auth.,

335 F.3d 1175, 1181 (10th Cir.2003) (noting that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized” and “while it is true that the plaintiffs in

Olmstead

were institutionalized at the time they brought their claim, nothing in the

Olmstead

decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements.”). Rather, a plaintiff must show that the setting does not “enable interactions with nondisabled persons to the fullest extent possible.”

DAI I,

598 F.Supp.2d at 321 ;

see also DAI I,

598 F.Supp.2d at 381 . As this court previously noted, “[n]ot every eligibility requirement is an ‘essential eligibility requirement.’ ”

DAI I,

598 F.Supp.2d at 333

(citing PGA Tour, Inc. v. Martin,

532 U.S. 661, 688 , 121 S.Ct. 1879 , 149 L.Ed.2d 904 (2001)).

2. Findings of Fact

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

As OMH’s Supported Housing Implementation Guidelines provide, supported housing provides individuals with mental illness with a permanent place to live coupled with flexible support services customized to each individual’s specific needs.

278

The State’s supported housing program already targets individuals with mental illness who have significant needs.

279

In particular, OMH has characterized supported housing as an “approach” designed to ensure that individuals with “serious and persistent mental illness”

280

can choose where they want to live.

281

In their existing supported housing program, Defendants have imposed no requirement that individuals have “minimal” support needs in order to live in supported housing.

282

To the contrary, in recent years, OMH’s Requests for Proposals (“RFPs”) for supported housing have specifically targeted those with significant needs. For example, in 2005, OMH issued an RFP targeting individuals who, according to them, are “high need,” defined as “a person who, as a result of psychiatric disability, presents some degree of enduring danger to self or others or has historically used a disproportionate amount of the most intensive level of mental health services.”

283

Similarly, OMH issued RFPs for supported housing in 2007 and 2008 for a target population that may need ACT or Blended Case Management, and may have a co-occurring substance problem.

284

Rob

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ert Myers, OMH’s Senior Deputy Commissioner, testified that there are people living in supported housing who have “extensive psychiatric needs.”

285

As Dr. Tsemberis pointed out, “you can put someone with severe mental illness in supported housing and it doesn’t matter the degree of severity of illness as long as you match the supports to what they need.”

286

Supported housing offers flexible supports; as Ms. Jones testified, “you start with a place for the person to live and you add and subtract the supports as that person needs them.”

287

Even Defendants’ expert, Dr. Geller, conceded that “those who reside in adult homes could reside in apartments with varying degrees of support.”

288

b. Supported Housing Can Serve Adult Home Residents Who Need Varying Levels of Support

New York’s supported housing programs are flexible and are more than capable of serving virtually all Adult Home residents, including those who might have relatively high needs.

289

OMH officials testified that ACT and case management services, including blended and intensive case management, are available to supported housing residents.

290

As noted above, such services are flexible; case managers can visit supported housing residents as often as once or even twice a day as necessary.

291

The evidence shows that while individuals from more institutional settings sometimes require many visits from the service provider when first moving into supported housing, those visits usually decrease in frequency as the resident becomes adjusted to more independent living.

292

Supported housing provid

*230

ers routinely do assessments as part of their work to identify the specific supports and services that their clients will require.

293

OMH’s own RFPs demonstrate the flexible nature of supported housing. The RFPs describe whom OMH expects supported housing providers to serve, and they make clear that supported housing is not limited to those with minimal support needs. For example, OMH’s 2007 RFP for supported housing for Adult Home residents states:

Recipients of Supported Housing may be able to live in the community with a minimum of staff intervention from the sponsoring agency. Others may need the provision of additional supports such as Assertive Community Treatment (ACT) team or Blended Case Management (BCM) services. Many recipients will be coping with co-occurring substance abuse disorders and be at various stages of recovery.

294

That RFP goes on to note that “[s]ervices provided by the sponsoring agency will vary, depending upon the needs of the recipient.”

295

Other OMH RFPs for supported housing contain identical or substantially similar language.

296

The responses by providers to OMH’s supported housing RFPs further demonstrate the flexible nature of the supports available to residents of supported housing.

297

In these responses, the supported housing providers make clear that they are willing and able to serve individuals in supported housing who require very high levels of support.

298

For example, one re

*231

sponse noted that the target population “will need some assistance in developing or redeveloping activities of daily living. Some will require assistance in developing or redeveloping skills in self care.”

299

Another response seeks to serve a target population that is “institutionalized” and may require a range of services, including medication management, assistance with budgeting and socialization, and substance abuse treatment.

300

Like the RFPs themselves, several of these supported housing providers specifically indicate in their RFP responses that supported housing residents with especially high service needs may need ACT while living in supported housing.

301

A response notes that the “service needs of these populations are varied” and may require ACT or intensive case management services.

302

Another response noted that the target population may need ACT services and may need service planning regarding “medication compliance, symptom awareness and management, and appropriate community integration.”

303

The availability of ACT services means that even the Adult Home residents who have the highest needs could successfully be served in supported housing.

304

As the responses to the RFPs demonstrate, a significant number of supported housing providers are committed to and capable of serving individuals with such needs.

c. Supported Housing Is Not Only for Individuals Who Need “Minimal” Supports

The evidence contradicts Defendants’ contention that to live in supported housing, individuals must be capable of seeking assistance and taking their medication independently, must demonstrate “a significant period of psychiatric stability,” must be able to “meet their own daily needs” and must “maintain their apartment” with “minimal assistance.”

305

While several supported housing providers impose such

*232

requirements for admission to their programs, the evidence shows that other supported housing providers in New York successfully serve people who have difficulties with each of these issues. For example, Ms. Jones and Dr. Tsemberis testified about the availability and options for support services to assist supported housing residents with medication.

306

OMH’s Supported Housing Guidelines target newly-discharged psychiatric hospital patients for supported housing.

307

Providers’ responses to RFPs seek to serve individuals who need assistance with medication compliance and self-care skills.

308

In addition, while Defendants contend that for “many providers” of supported housing, individuals must maintain their sobriety,

309

recent OMH RFPs have barred providers from screening out applicants on the basis of substance-abuse issues.

310

Nor does the evidence support Defendants’ contention that supported housing is only for those with “minimal” support needs.

311

First, the court does not credit the testimony of OMH employees that supported housing is only for those who need “minimal” supports,

312

as that testimony is contradicted by OMH’s RFPs and numerous other OMH documents. Second, while Defendants rely on OMH’s 1990 Supported Housing Implementation Guidelines to support their assertion, the Guidelines do not state anywhere that supported housing is only for — or even targeted to — those with minimal needs.

313

In addition, while several supported housing providers, such as FEGS

314

and

*233

Federation,

315

provide more limited supports in their supported housing programs, such evidence does not rebut the weight of the evidence that there are numerous other supported housing providers in New York City who are willing and able to serve individuals with much higher needs.

316

Nor is it significant that one agency, the Jewish Board, has considered particular Adult Home residents inappropriate for its supported housing.

317

That some supported housing providers provide more limited services does not demonstrate that supported housing is “only” for those who need minimal support, and as discussed below, supported housing providers can and do serve former Adult Home residents.

318

The only document cited by Defendants that actually uses the terms “minimal support” in reference to supported housing is a document prepared by a third party, Center for Urban Community Services (“CUCS”), which purports to describe various “supportive housing models for people with mental illness and other special needs,” though it acknowledges that “in practice and over time, variations with [each housing] model have developed.”

319

As DAI’s expert Dennis Jones explained at trial, the CUCS document describes supported housing in terms that are inconsistent with OMH’s stated approach to supported housing in other documents.

320

In any event, New York City’s Human Resources Administration (“HRA”), the local agency that approves individuals’ applications for supported housing in New York City, does not rely on the eligibility criteria set forth by CUCS in approving individuals for supported housing.

321

d. The Court Finds Credible and Persuasive the Conclusions of DAI’s Experts That Virtually All Adult Home Residents Could Move to Supported Housing

At trial, DAI presented three expert witnesses, Dr. Kenneth Duckworth, Dennis Jones, and Elizabeth Jones, all of whom testified that virtually all Adult Home residents could be appropriately served in supported housing. The court

*234

finds the conclusions of these experts to be credible and persuasive.

322

i. Dr. Duckworth

Dr. Kenneth Duckworth is a licensed psychiatrist with twenty years of experience serving people with serious mental illness. He is triple board certified by the American Board of Psychiatry and Neurology in Adult Forensics, and Child and Adolescent Psychiatry. He has worked in numerous different treatment settings, including hospital inpatient, outpatient, supported housing, day treatment,

emergency

triage and homeless outreach. Dr. Duck-worth has interviewed, directly treated, supervised, and consulted about the treatment of thousands of individuals with schizophrenia, bipolar illness, schizoaffective disorder, and depression, among other serious psychiatric disorders. Dr. Duck-worth has also served as the Medical Director and Acting Commissioner for the Massachusetts Department of Mental Health, where he was involved with, among other things, placement of hospital patients in more integrated settings and the design and implementation of Programs of Assertive Community Treatment (“PACT”) — Massachusetts’s version of New York’s ACT program — throughout Massachusetts.

323

In short, Dr. Duck-worth is an experienced medical professional with substantial professional experience directly relevant to assessing whether individuals with mental illness are capable of living in supported housing.

In this case, Dr. Duckworth undertook an extensive analysis of whether Adult Home residents could be served in supported housing. Dr. Duckworth’s analysis included a review of the mental health records of between 260 and 270 Adult Home residents, visits to five Adult Homes, interviews with approximately 38 Adult Home residents, a visit to the Pathways to Housing supported housing program, and the review of numerous documents relating to the ease, including deposition transcripts of Adult Home residents, materials concerning New York’s supported housing programs, and re

*235

sponses to RFPs issued by OMH for supported housing.

324

Based on his analysis of these voluminous materials, his visits with Adult Home residents and supported housing residents, and his extensive experience, Dr. Duck-worth concluded that “there are no material clinical differences between adult home residents and supported housing clients.”

325

He further concluded that “virtually all of the [Adult Home residents] I looked at I felt would make it in Supported Housing. I looked for things that would contraindicate a person living in Supported Housing and I found relatively few of them.”

326

Dr. Duckworth specifically considered the extent to which such contraindications — which he identified as severe cognitive vulnerabilities or dementia, extreme nursing needs, and a history of active arson — were present in the Adult Home population.

327

While Dr. Duckworth testified that his “approach” is that “most anybody can make it in independent living,”

328

which is consistent with his experience placing hospital patients in more integrated settings, Dr. Duckworth did not simply “presume” that Adult Home residents could move to supported housing.

329

Dr. Duckworth consistently and credibly testified that he reached his conclusions on the basis of his extensive research and experience.

Dr. Duckworth testified on cross-examination that for a very small number of the Adult Home residents whose records he reviewed, he would need more information to determine whether they were appropriate for supported housing.

330

He also testified that two individuals lacked the requisite mental health diagnosis to make them eligible for OMH housing,

331

that some residents were discharged to a nursing home,

332

and that several residents had personal care needs that might make them

*236

inappropriate for supported housing or require extensive supports.

333

Such testimony, when weighed against Dr. Duckworth’s detailed testimony regarding other residents who were well qualified for supported housing,

334

does not make Dr. Duckworth’s conclusion that “virtually all” Adult Home residents could be served in supported housing less credible or persuasive.

335

ii. Elizabeth Jones

DAI’s expert Elizabeth Jones has more than thirty years of experience in the field of mental disability, including positions as the superintendent/director of three institutions and the court-appointed receiver of a psychiatric institution. Ms. Jones has focused a substantial part of her work on the management of institutions and the planning, development, and management of community services for people with mental illness and developmental disabilities. She has also managed the day-to-day operations of two community mental health systems, in which she had a leadership role in planning, developing, and implementing services in integrated settings as an alternative to institutional care. Ms. Jones has served as an expert consultant regarding institutional conditions and the development of alternative community-based programs in Massachusetts, Texas, North Dakota, Iowa, Michigan, Romania, Bulgaria, and Paraguay.

336

In forming her expert opinions in this case, Ms. Jones visited twenty-three impacted Adult Homes for a total of approximately seventy-five hours. These visits included six announced, “formal” tours of Adult Homes — in which Defendants’ experts also participated — and seventeen unannounced, “informal” visits to various Adult Homes.

337

During her visits, Ms. Jones personally interviewed 179 residents, some for as long as two hours.

338

She also spoke to clinicians, nurses, social workers, and a psychiatrist at some of the Adult Homes she visited, and also had some conversations with social workers about particular residents.

339

In addition, Ms. Jones employed three social workers who observed conditions and interviewed an additional 62 residents in Seaview Man- or, Riverdale Manor and Garden of Eden and prepared summaries of their observations for her review. Ms. Jones also considered deposition transcripts and numerous other documents relating to the issues in this case in forming her expert opin

*237

ion.

340

The social workers employed by Ms. Jones also reviewed a number of resident records from three of the Adult Homes.

341

Ms. Jones then reviewed the social workers’ notes on those records, and also reviewed roughly twenty to twenty-five of those records herself. In responding to the expert report of Defendants’ expert Dr. Geller, Ms. Jones reviewed over one hundred additional records of Adult Home residents.

342

On the basis of her research and experience, Ms. Jones concluded that “virtually all” Adult Home residents could be served in a more integrated setting, including supported housing.

343

She found that “there was no reason that [Adult Home residents] couldn’t live in supported housing if the appropriate supports were provided to them,” and that she “saw nothing in [her] visits to the adult homes that would lead [her] to believe that people required more than is available already in the community in New York or that they presented any particular challenge other than what we work with every day in the field of mental health.”

344

According to Ms. Jones, while some Adult Home residents would need help with medication management, or various health related services, the “array of supports [that would be needed] are nothing unfamiliar to what’s commonly found in a mental health system today.”

345

Ms. Jones further concluded that there are “many” Adult Home residents who could live in their own apartment “with little or no support.”

346

Ms. Jones also found that Adult Homes themselves do not provide intensive support or supervision for people with high needs. To the contrary, Adult Homes “do not provide intensive supervision to people ... they have restrictive rules and practices, but they do not provide individual

*238

ized attention to people. So, many people have a place to stay and they have their meals and their medicine, but not a whole lot more than that.”

347

Ms. Jones testified that these two observations — that (1) Adult Homes do not provide intensive support and (2) Adult Home residents in supported housing would not require more support than is already available in the community in New York— provide the basis for her conclusion that virtually all Adult Home residents could move to supported housing.

348

While Ms. Jones had previously testified at deposition that her “starting point is that everyone could live in community housing ... virtually everyone could live in supported housing ... if the appropriate supports are provided,”

349

the evidence demonstrates that Ms. Jones did not simply assume in this case that Adult Home residents could be served in supported housing in reaching her opinion. Rather, she credibly and consistently testified about her extensive factual observations that formed the basis for her conclusions.

iii. Dennis Jones

DAI’s expert Dennis Jones served as the top mental health official for the state of Indiana from 1981 to 1988 and the top mental health official for the state of Texas from 1988 to 1994. He was also appointed

*239

by a federal district court as the transitional receiver for the District of Columbia’s mental health system from 2000 to 2002 and later became a federal court monitor in the same action, a position he still holds today. As part of his role as transitional receiver, Mr. Jones developed a plan to completely restructure the public mental health system in the District of Columbia. Mr. Jones also served from 1994 to 2003 as the Administrator/CEO of the largest community mental health center in Indiana.

350

Mr. Jones’s analysis and investigation in this case included review of documents,

351

visits to four Adult Homes, and conversations with Adult Home residents and visits to community mental health providers, including supported housing providers.

352

As part of his research in this case, Mr. Jones analyzed data from the Assessment Project, a study from New York Presbyterian Hospital that Defendants commissioned to collect data regarding residents of nineteen adult homes, including fifteen of the Adult Homes at issue here.

353

Mr. Jones worked with Dr. Ivor Groves, an expert in data analysis, to devise an algorithm to assess whether the Adult Home residents in the fifteen Adult Homes were not opposed to moving, and also whether those residents would need a high or low level of support.

354

That algorithm determined that of the 2,080 residents in the sample, 1,769 would be able to live in supported housing with relatively little support, and 311 would need greater support.

355

The algorithm also determined that 1,536 would not be opposed to moving to supported housing and 544 would be resistant.

356

Of those who were non-resistant, only 199 would need a high level of support.

357

Mr. Jones testified that the Assessment Project data showed “a large majority of people who, given the right situation, would choose to [move to supported housing]” and “the amount of supports that people are going to need out there are within what I would consider the range of what the New York system can accommodate.”

358

On the basis of his ex

*240

tensive experience and his investigation in this case, Mr. Jones concluded that “virtually all mentally ill adult home residents are able to live in integrated community settings such as supported housing.”

359

e. OMH’s Former Senior Deputy Commissioner Believes That Virtually All Adult Home Residents Could Move to Supported Housing

Former OMH Senior Deputy Commissioner Linda Rosenberg testified credibly and persuasively that, based on her firsthand observations from working in New York’s mental health system until 2004, virtually all Adult Home residents are qualified for supported housing. Ms. Rosenberg served from 1997 to 2004 as the Senior Deputy Commissioner for OMH, where she oversaw the “community system of care for people with serious mental illnesses,” including OMH’s housing services as well as, at one point, all of New York’s state hospitals.

360

Ms. Rosenberg has had extensive experience dating back to the 1970s with adult homes and adult home residents, including the ones at issue in this case, having met “probably literally thousands” of adult home residents as a result of her OMH position as well as previous positions with community mental health clinics and State psychiatric hospitais.

361

According to Ms. Rosenberg, Adult Home residents “by and large have similar characteristics” to residents of supported housing, and are placed in Adult Homes by “luck of the draw for the most part” rather than by any clinical determination that it is an appropriate setting.

362

Ms. Rosenberg further testified that Adult Homes offer “less support in many cases” than supported housing, “because you are left on your own devices ... the home has meals but doesn’t have much more than that going on anyway. It isn’t as if you are tak[en] care of in an intensive way, unless the home brings in a home health care agency ....”

363

Ms. Rosenberg did not do a “housing assessment” for particular Adult Home residents or review their treatment records.

364

Her opinion that Adult Home residents as a group have “similar characteristics” to residents of supported housing and other types of OMH community housing is based on her experience managing OMH community housing, in which she had an opportunity to become familiar with Adult Homes, meet thousands of adult home residents, including ones at issue in this case, and form an opinion about Adult Home residents’ qualifications to move to supported housing.

365

The court finds that, based on

*241

her years of experience as a high-ranking OMH official until 2004, including extensive experience with Adult Homes and Adult Home residents, the testimony of Ms. Rosenberg that virtually all Adult Home residents could be served in supported housing is credible and persuasive.

f. Defendants’ Own Adult Care Facilities Workgroup Concluded That Large Numbers of Adult Home Residents Could and Should Receive Services in More Integrated Settings

In response to a series of articles in 2002 about Adult Homes by Clifford Levy in The New York Times, Governor George Pataki convened the Adult Care Facilities Workgroup to conduct a comprehensive review of adult home policies, programs, and financing.

366

The Workgroup focused on 12,000 individuals with mental illness who live in adult homes, most of which are in or near New York City.

367

Joseph Reilly, who formerly held high positions at OMH and DOH and was a staff member of the Workgroup, testified that the Workgroup was convened in a “crisis atmosphere.”

368

The Workgroup was comprised of a “blue ribbon panel” of various stakeholders in the mental health system, including clinicians, mental health providers, and Adult Home operators.

369

The Workgroup members were selected by the Governor’s office and included well-known New York State experts on mental health.

370

The Governor’s office was active in shaping the Workgroup’s agenda.

371

The Workgroup was staffed by thirty-eight employees of OMH and/or DOH.

372

These employees did not merely provide ministerial assistance to the Workgroup; they made editorial and conceptual contributions to the Work-group and put together the final Work-group report.

373

The Co-Chair of the New Models Sub-workgroup, Karen Schimke, viewed the final Workgroup report as a document “submitted by the Health Department to the Health Department.”

374

In 2002, the Adult Care Facilities Work-group proposed that 6,000 of the 12,000 individuals with mental illness living in adult homes be helped to move to more integrated settings, and proposed a time-line to move them to supported housing by March 2009.

375

The 12,000 individuals on

*242

whom the Workgroup focused includes the Adult Home residents at issue in this case — the Workgroup Report noted that “most” of these 12,000 individuals with mental illness live in adult homes in or near New York City, and “a substantial proportion live in facilities with the largest capacity.”

376

The Workgroup’s proposal was based on the Workgroup’s findings that these residents had similar characteristics to individuals living more independently, a finding that was made after substantial study, deliberation, and research that included presentations from a variety of experts and field visits to various types of housing.

377

As there was “little reliable and current clinical data on these 12,000 residents,” the Workgroup members, who were selected by Defendants for their expertise and experience, developed working assumptions about the residents’ needs.

378

The Workgroup Report noted that “[t]he operational construct for [adult home residents with mental illness] was predicated on the belief that all needed congregate level care and are too fragile to live more independently.”

379

It rejected this premise, finding that “[a] great many people with many of the same issues and needs live every day in integrated, community settings across New York State.”

380

Upon its completion, the Workgroup Report was presented to the then-Commissioner of DOH, Antonia Novello, who “applauded” the Report.

381

No member of the Workgroup objected to or dissented from the Workgroup’s finding that large numbers of adult home residents with mental illness — a population that includes the Adult Home residents at issue in this case — should be served in more independent settings.

382

g. New York Presbyterian Hospital’s Assessment Project, Commissioned by Defendants, Establishes That Adult Home Residents Could Be Served in Supported Housing

In December 2002, Defendants commissioned a study from New York Presbyterian Hospital (the “Assessment Project”) that collected data regarding adult home residents, including many of the residents at issue in this litigation. Defendants paid a total of $1.3 million to New York Presbyterian Hospital for the survey.

383

Ms. Rosenberg testified that in her view, the

*243

Assessment Project was part of a mission to “deflect[ ] ... what had become a crisis for the Governor’s office.”

384

The Assessment Project was conducted by Dr. Martha Bruce, an expert in population-based survey design and sampling procedures who had previously been involved in designing between fifteen and twenty such surveys.

385

In addition, Defendants themselves had “a great deal of input” into the design of the survey.

386

The Assessment Project assessed 2,611 residents in nineteen adult homes, including fifteen of the Adult Homes at issue here.

387

One of the purposes of the Assessment Project was to assess adult home residents’ housing needs and desires.

388

Dr. Bruce testified at her deposition that one of the intended uses for the Assessment Project data was to “screen for residents who might benefit from changing housing to a more supportive or more independent” setting,

389

and that, to the best of her understanding, DOH officials such as Glenn Liebman and Lisa Wickens understood this purpose.

390

Lisa Wickens testified that the Assessment Project survey questions dealt so much with housing options that she was actually concerned that residents would believe they would be offered alternative housing if they participated in the survey.

391

Adult Home administrator Ms. Burstein testified that when the assessors from the Assessment Project came to her Adult Home, they informed the residents that “they would be interviewing them to see who would possibly qualify in the future for independent housing, and they did let them know that there would be independent housing available to them at some point.”

392

The Assessment Project data demonstrates that the vast majority of adult home residents are not seriously impaired and could be served in supported housing.

393

74.1% of residents participated in the survey, a very high response rate.

394

Although the vast majority of adult home residents had mental illness, only 7% of residents had “severe cognitive impairments”; 66.4% had no cognitive impairments.

395

The statistics regarding cognitive impairments were not self-reported; rather, they were the results of mental status examinations administered by the

*244

surveyors.

396

Only a small percentage of residents reported needing assistance with activities of daily living.

397

As Mr. Jones testified, 68.4% of those surveyed had done some meaningful work in the previous two years.

398

67% of those surveyed had one or no hospitalizations in the last three years.

399

Dr. Ivor Groves, who worked with Plaintiffs expert Mr. Jones to perform an analysis of the Assessment Project data pertaining to residents of the Adult Homes at issue in this litigation, testified that virtually all Adult Home residents could live in supported housing.

400

Dr. Groves has more than thirty-five years of experience working in mental health and related areas of human services. Dr. Groves worked in a large state hospital for nine years and managed publicly operated human services programs for fifteen years, including five years in the highest mental health position in the state of Florida. Dr. Groves has served both as a project director of program evaluations and assessments and as a consumer of evaluations and assessments of adult mental health consumers and programs. He is currently a consultant developing and evaluating mental health and related human services programs for children and adults.

401

Based on his review of the Assessment Project data, Dr. Groves found that Adult Home residents “are not a seriously impaired population in the vast majority; meaning, they don’t have severe cognitive deficits and they don’t have real significant problems in daily living skills.”

402

Dr. Groves testified that, in his view, “the vast majority” of Adult Home residents “could live in supported housing with appropriate supports.”

403

That his analysis of the Assessment Project data was for Adult Home residents in the “aggregate” — meaning that he did not evaluate individual medical or mental health records or perform in-person clinical assessments

404

— does not undermine the credibility or persuasiveness of his conclusion that the vast majority of Adult Home residents, according to the Assessment Project data, are qualified for supported housing.

405

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The court is persuaded by the testimony of Dr. Groves and Mr. Jones that the Assessment Project data is reliable. While Dr. Groves noted that there were some inconsistencies in participant responses and that some of the data was self-reported by participants,

406

Dr. Groves confirmed that overall, he considered the survey data reliable:

At one point, I sat down and said: What are all of the possible issues around the Columbia Presbyterian data? And I made a list. And those, those were the items that I thought about. In terms of the analysis we did and the data we used,

do I think that that, those limitations significantly affected that analysis in the data? The answer is no.

407

Mr. Jones similarly found the Assessment Project data reliable, testifying that “this was a very rich set of data, frankly better than you get in most decision-making projects, where you really knew something about the psychiatric history, you knew something about the level of impairment and you knew something about the physical history, the degree of cooperation, all those sorts of things.”

408

While Dr. Geller suggested that the residents who did not respond to the survey were, on average, more disabled than the responding residents, he acknowledged that some of those whom the Assessment Project missed were probably “on their own going places” and would therefore likely be less disabled that the individuals who participated in the Assessment.

409

The generally high cognitive and ability levels of Adult Home residents reflected in the Assessment Project data demonstrates “a huge mismatch” between Adult Home residents and the custodial setting in which they reside.

410

Mr. Jones — who, as noted above, has run the mental health systems of two states and the District of Columbia — credibly testified that OMH should have regarded this data as indicating “a big problem” requiring “a very serious multi-year initiative.”

411

h. There Are No Material Differences Between Adult Home Residents and Supported Housing Residents

Adult Home residents do not have more severe disabilities than individuals already served by Defendants in supported housing. As noted above, DATs constituents have one or more major mental illnesses, such as schizophrenia, bipolar disorder, and/or depression.

412

There is generally little distinction between the psychiatric characteristics of Adult Home residents and supported housing residents.

413

People with mental illness are often placed in Adult Homes not for clinical reasons, but because the Adult Home is the only housing available when they are

*246

discharged from the psychiatric hospital.

414

For example, Adult Home resident S.K. testified at trial that when she was discharged from the psychiatric hospital, although she “wanted to really get an apartment of my own,” the only option offered to her was an Adult Home.

415

Prior to being placed in the Adult Home, S.K. lived with clinical depression successfully in the community for almost twenty years.

416

S.K. raised a family of four children living in her own home on Long Island, where she cooked, cleaned, shopped, and did the yard work.

417

After her husband died, she moved to an apartment in Astoria and worked for five years as a nurse’s aide, where she took care of patients and administered their medications.

418

S.K. then moved to Georgia to live with her daughter, and worked there for five years at a supermarket deli.

419

She moved back to New York to live with her sister, but was then voluntarily hospitalized due to an episode of severe depression.

420

After her hospitalization, S.K’s sister refused to allow her to move back in with her because the sister “couldn’t cope with” S.K’s depression

421

Although S.K. wanted to live in an apartment, the psychiatric hospital instead discharged her to an Adult Home.

422

S.K. also testified about her ability to live independently. She testified that she is “well able to take care of a place on my own” and that she is able to manage her own money and do her own cleaning.

423

She testified that she would be “well able to manage [her] own medication” in a supported apartment

424

She testified that the only support she would need in her own apartment would be “somebody to call in on me once in a while just to see how things are doing. I’d like to have somebody there that I could call.”

425

Nevertheless, S.K. was placed in an Adult Home upon her discharge from the hospital. The other current and former Adult Home residents who testified at trial, including Defendants’ witness, I.K., similarly testified that they were given little or no choice about being placed in an Adult Home.

426

Nor are Adult Homes designed to provide individuals with mental illness with the intensive levels of care and supervision that Defendants claim Adult Home residents require.

427

To the contrary, because supervision in Adult Homes is minimal, individuals in Adult Homes must be able to live with some degree of

*247

independence.

428

Adult Homes are actually prohibited by State regulations from admitting people who, for example, need “continual medical or nursing care or supervision,” pose danger to themselves or others, have an “unstable” medical condition requiring “continual skilled observations,” chronically require the physical assistance of another person to walk, or have chronic unmanaged incontinence.

429

i. Supported Housing Providers Can and Do Serve Adult Home Residents

The evidence at trial also showed that numerous New York supported housing providers do not view Adult Home residents as having needs incompatible with supported housing; indeed, several of them already successfully serve former Adult Home residents. Dr. Tsemberis of the Pathways to Housing supported housing program testified that Pathways has served five former Adult Home residents, all of whom “did very well” in supported housing.

430

Another supported housing provider, Transitional Services for New York, Inc., in a response to an RFP by OMH, described its experience transitioning three Adult Home residents into supported housing as very similar to transitioning other individuals:

TSI ... successfully transitioned three individuals into Supported Housing from local Adult homes. All three of these individuals have remained successfully housed and their transition into independent living was similar to the non-adult home referrals. These three tenants required assistance at a level typical of a referral coming from a long term resident of an apartment treatment program; adjusting their budgeting to meet their monthly financial obligations, developing resources in the community to meet their treatment needs, developing a new daily routine, accessing recreational resources in their new neighborhood and developing vocational supports to return to work.

431

In 2007, seven different supported housing providers submitted proposals in response to OMH’s RFP to implement the legislative initiative for 60 supported housing beds for Adult Home residents.

432

Each of these providers sought to serve Adult Home residents in its supported housing programs.

433

OMH awarded contracts to three of these seven providers.

434

Those supported housing beds were subsequently developed, and all sixty of those beds are either filled or are in the process of being filled by Adult Home residents

435

The court also heard testimony from two former Adult Home residents who are now successfully living in supported housing: G.L. and I.K. After living in an Adult Home for five years, G.L. moved to a supported housing apartment run by Pathways to Housing in 2006.

436

Prior to living in an Adult Home, G.L. did his own cook

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ing and cleaning, managed his own medications, made and kept medical and mental health appointments, and handled his own money.

437

Now that he is in supported housing, he currently manages his own medication and finances and does his own cleaning, shopping, cooking, and laundry.

438

G.L. has been successful in supported housing without using ACT services.

439

I.K. moved to supported housing in April 2009 after sixteen years in an Adult Home. She now does her own laundry and shopping, and cooks her own meals.

440

I.K. testified that she is extremely happy living in supported housing.

441

j. Defendants’ Witnesses Conceded That Significant Numbers of Residents Could Be Served in Supported Housing

A number of Defendants’ own witnesses do not dispute that there are many Adult Home residents who could be served in supported housing with appropriate supports. Defendants’ expert, Dr. Geller, testified that “[a]bout 50 percent of the individuals who would otherwise be eligible could go to some form of supported housing either immediately, after transitional residence, with ACT, or with intensive ACT.”

442

High-level State employees testified that there are “undisputedly” Adult Home residents who could be served successfully in supported housing.

443

They also testified that Adult Home residents have been served successfully in supported housing.

444

Adult Home administrator Ms. Burstein testified that “often the [Adult Home] residents have the ability to live independently.”

445

Ms. Lockhart, who worked at Federation, which has a small supported housing program, testified that some Adult Home residents could live in supported housing.

446

Dr. Bruce, who oversaw the Assessment Project, testified that there are individuals in adult homes who are qualified and willing to move to supported housing.

447

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k. The Court Is Not Persuaded by Dr. Geller’s Claim That Only Half of Adult Home Residents Could Ever Be Served in Supported Housing

The court is not persuaded by the opinion of Defendants’ expert Dr. Geller that only about half of Adult Home residents could eventually be served in supported housing, with or without ACT services.

448

Dr. Geller’s conclusions ignore important evidence about supported housing in New York. They are also based on Dr. Geller’s mistaken belief that Adult Home residents may constitute an immediate danger to themselves or others.

Dr. Geller is a board-certified psychiatrist, the Director of Public Sector Psychiatry at the University of Massachusetts Medical School, and the Vice President of the American Psychiatric Association.

449

He has extensive experience teaching, working in psychiatric hospitals and community mental health settings, and treating patients.

450

For his initial report, Dr. Geller visited eight Adult Homes and several types of mental housing and reviewed numerous documents, including the medical and mental health records of 188 Adult Home residents from an initial list of residents Plaintiff claimed were qualified to be served in supported housing.

451

For his second report, Dr. Geller reviewed additional records as a sample from Plaintiffs list of residents from the Assessment Project data and determined what supports would be necessary in order for those residents to live in supported housing, though he disagreed with Plaintiffs view that all of those residents could be served in supported housing.

452

In his first report, Dr. Geller concluded that only 63 of the 188 residents whose records he reviewed (33.5%) were “in the residential setting most appropriate to their needs, i.e., they should remain in Adult Homes.”

453

He concluded that 16% of the sample could appropriately live in supported housing, and 21% could live in other types of mental health housing.

454

He did not consider the residents’ preferences.

455

He testified that because the sample was taken from those whom Plaintiff claimed were qualified to move, if a sample were taken of all Adult Home residents, the percentage would be lower

456

In his second report, Dr. Geller concluded that approximately 25% of the residents could live in supported housing without additional services.

457

As noted above, however, Dr. Geller testified at trial that 50% of the Adult Home residents whose records he reviewed could eventually be appropriately served in supported housing with or without ACT services, and that every single current Adult Home resident could live in apartments with varying degrees of support.

458

Dr. Geller reached his conclusions without adequately investigating the ability and willingness of New York’s supported housing providers to serve Adult Home

*250

residents. In forming his opinion about the capabilities of New York’s supported housing providers, Dr. Geller reviewed only two responses to OMH’s supported housing RFPs, both of which were seeking exclusively to serve homeless individuals and

categorically excluded

Adult Home residents from applying for beds developed under those RFPs.

459

Dr. Geller conceded that he was unaware of, and did not review a single response to, OMH’s 2007 RFP to create 60 supported housing beds specifically for Adult Home referrals.

460

In concluding from the two inapplicable RFP responses that New York’s supported housing providers could not provide the level of services that Adult Home residents purportedly would require, Dr. Geller also did not consider that supported housing residents can obtain services such as ACT or intensive case management to assist them with support needs that are beyond the capabilities of the supported housing provider.

461

Dr. Geller’s conclusion that many Adult Home residents are not appropriate candidates for supported housing is also flawed because it is based on the mistaken belief that some Adult Home residents pose an immediate danger to themselves or others.

462

For example, he testified that DATs expert failed to take into account whether Adult Home residents placed in supported housing might “jump off a roof’ or “set fires,”

463

but acknowledged on cross-examination that Adult Homes are not permitted to admit such individuals.

464

Dr. Geller’s analysis of the service needs of certain Adult Home residents likely overestimates the amount of services they would require in supported housing. Dr. Geller estimated the number of hours of services various Adult Home residents would require if they moved to supported housing without considering the extent to which the residents currently receive these services in the Adult Home.

465

DAI’s experts provided several examples of residents whom Dr. Geller had deemed unfit for supported housing but who in fact appeared to have fairly limited support needs. Ms. Jones testified that although Dr. Geller classified one Adult Home resident as needing “24/7 support,” the individual actually lived fairly independently at the Adult Home.

466

Dr. Duckworth discussed three instances in which he disagreed with Dr. Geller that particular Adult Home residents could not live in supported housing.

467

In light of the evidence that Adult Homes provide very minimal assistance with activities of daily living,

468

Dr. Geller’s conclusion likely substantially overstates the amount of services Adult Home residents would require in supported housing.

469

Dr. Geller’s testimony that it would be “inhumane” and “possibly dangerous” to place all Adult Home residents in supported housing because, for example, indi

*251

viduals might “set[] a fire while learning to cook,” and that Adult Home residents should therefore be taught independent living skills in the Adult Home before moving to more independent settings,

470

is contradicted by the weight of the evidence. Witnesses for both sides testified that independent living skills cannot effectively be taught in institutional or congregate settings, because the individuals are unable to practice the skills that are taught.

471

Dr. Geller himself testified that “the system needs to have that person exist in an environment where they can use the skills.”

472

In any event, ACT teams can assist individuals with learning independent living skills in their own homes.

473

In addition, the Pathways supported housing program, which specifically seeks out and successfully serves some of the hardest-to-serve individuals in the mental health system, is just one example of a supported housing provider that can safely serve individuals with a very wide range of support needs.

474

1. In Practice, OMH Does Not Require Individuals Leaving Institutional Settings To Proceed Through a “Linear Continuum”

Several OMH officials testified that individuals with mental illness coming from institutional settings must move through a “linear continuum” of gradually less restrictive service settings over a period of years before they may “graduate” to fully integrated housing.

475

The weight of the evidence — including Defendant OMH Commissioner Michael Hogan’s testimony to the Legislature — contradicts this self-serving and inaccurate testimony. While OMH continues to license and/or fund different types of Housing for Persons with Mental Illness,

476

individuals in OMH housing are not required to move from setting to setting. While remnants of the continuum approach may still persist in the programs of some community providers,

477

the linear continuum model is inconsistent with OMH’s own current practices and principles.

478

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Commissioner Hogan disavowed the “linear continuum” model in his recent testimony to the Legislature. He stated that while “many staff and advocates have come to believe” in the linear continuum model, that model is “inherently problematic” because “moving is especially stressful for people with psychiatric disabilities and can contribute to problems and rehospitalization.”

479

According to Commissioner Hogan, New York has now shifted its focus to creating “safe, decent and affordable housing that is available long term, linked to flexible services that can be increased or decreased as needed.”

480

As early as 1990, when OMH created its Supported Housing Implementation Guidelines, it acknowledged the limitations of the continuum model:

Although many individuals have received beneficial rehabilitation from the community residence program, which has helped them to live successfully in the community, the limitations of this approach have become apparent. People do not want to move each time they make progress in their rehabilitation; often affordable housing is not available for people to “transition” into; and many people do not want or may not require the structure of a residential program.

481

Ms. Rosenberg testified that by the time she left OMH in 2004, the linear continuum “was really being abandoned by both New York and most places.”

482

According to Ms. Rosenberg:

[t]he whole issue of a continuum is also an old idea. It used to be thought that people had to move from ... large congregate settings, to smaller congregate settings, to having a few roommates to eventually graduating to their own apartment. Nobody really thinks that much anymore. First of all, it would be like asking me to move every few months or every year or so just because I have to. So, it’s quite disruptive, and also there is no evidence to show that people do better in the long run with you going through the continuum and, in fact, [people] could be placed directly in their own apartments with the right supports [and] can be quite successful.

483

Ms. Rosenberg also made clear that OMH did not develop different types of service settings as part of any deliberate effort to create a “linear continuum” through which individuals needing housing would transition; rather, OMH over time began creating more integrated forms of housing as its thinking evolved about the best way to promote recovery.

484

There is additional evidence that OMH no longer follows the continuum model. OMH’s supported housing RFPs further demonstrate that individuals leaving institutional settings need not transition through gradually less restrictive service settings before “graduating” to supported housing. In recent years, OMH has issued

*253

several RFPs for supported housing that specifically target individuals leaving institutions such as psychiatric centers, hospitals, prisons, and Adult Homes.

485

These RFPs received numerous responses from supported housing providers eager to serve those populations.

486

DATs experts, all of whom have worked in the mental health field for decades, testified that the “linear continuum” approach is no longer widely accepted. Dr. Duckworth testified that “the idea that people need to go through transitional housing, another move, another step, I think has been debunked pretty definitively in our field.”

487

Ms. Jones testified that the continuum approach is “outdated,” and the accepted approach in the states where she has worked is to provide individuals with permanent housing and add or subtract supports based on their specific needs.

488

Mr. Jones testified that the continuum model is “archaic” and that New York’s views on it have “changed pretty significantly” in the last five to ten years.

489

Frances Lockhart — a former Federation of Organizations employee called by Defendants to testify that Federation still followed the “continuum” approach in operating its programs — acknowledged that even Federation sometimes accepts individuals into their supported housing programs directly from psychiatric centers without requiring those individuals to move through a continuum

490

Finally, to the extent the linear continuum of care model has ever been OMH policy, Adult Homes are simply not a part of that continuum.

491

The evidence shows that Adult Homes are not transitional residences designed to prepare residents for more independent living; rather, they are permanent “destinations.”

492

Even Defendants’ expert, Mr. Kaufman, agrees that OMH views Adult Homes as “permanent” placements and “does not view adult homes as rehabilitation settings designed to transition consumers from supervised to

*254

independent settings.”

493

m. Failure To File a Formal Application for Supported Housing Does Not Preclude Adult Home Residents from Being Qualified To Receive Services in Supported Housing

OMH currently requires individuals seeking to live in any OMH-funded housing in New York City to submit an application to New York City’s Human Resources Administration (“HRA”).

494

Defendants contend that Adult Home residents are not “qualified” for supported housing unless they have applied and have been approved for supported housing by HRA.

495

The court rejects this contention. The evidence shows that HRA is merely a bureaucratic “clearinghouse” for OMH-funded housing whose determinations of individuals’ suitability for a particular type of housing are often subject to change. In any event, many Adult Home residents lack a meaningful opportunity to submit an application to HRA for the housing of their choice.

Christine Madan, OMH’s Director of Housing and Adult Services, described HRA as a “clearinghouse for receiving applications for housing for persons with mental illness in the city.”

496

Based on this application — called an “HRA 2010(e)”

497

— HRA decides the types of housing for which an applicant may apply

498

In New York City, a Single Point of Access (“SPOA”) system links housing applicants who have been approved by HRA to providers who administer the type of housing for which the applicant was approved.

499

Using SPOA to apply for housing is optional; an individual can also apply directly to housing providers after receiving HRA approval.

500

If an individual uses the SPOA process, he or she is guaranteed interviews with three housing providers.

501

Individual housing providers make the final determination as to whether to accept an applicant into their residential programs.

502

The evidence at trial made clear that an HRA determination of eligibility for a particular level of housing is not a reliable indication of the type of housing in which an individual could successfully be

*255

served.

503

Kathleen Kelly of HRA also testified that HRA determinations are “not written in stone.”

504

To the contrary, it is a “flexible process,” in which a service provider can “call the reviewer” or “transmit additional information” if the service provider disagrees with HRA’s determination.

505

Ms. Kelly further acknowledged that the experience level of the reviewer may impact the type of housing for which an applicant is approved.

506

Approved HRA applications are an inappropriate measure of how many Adult Home residents are qualified for supported housing because of the inability of many residents to meaningfully utilize the HRA process.

507

It is undisputed that Adult Home residents must rely on others to complete the application and submit it to HRA.

508

The application is a complicated electronic form that is designed to be completed by a “referring agency,” not the individual seeking housing.

509

It requires detailed assessments of the applicant from both a psychiatrist and a social worker.

510

Many Adult Home residents may not have anyone to assist them in completing an application. Case managers and other mental health providers are not always willing to assist residents in completing the application or in applying for the type of housing that the resident desires.

511

The record is replete with testimony from residents explaining that, when they expressed an interest to case managers or other mental health providers in moving to more independent housing, they received no help — and often outright discouragement — in exploring and securing alternative housing options.

512

For example, D.N.

*256

testified that when she asked a social worker to help her obtain an HRA application, the social worker responded “we don’t do that here,” and told her that she should apply on her own; she testified that another social worker told her it would be “better if you stay here.”

513

Staff or social workers employed by the Adult Home also have a motive to be unhelpful to residents seeking to move: the Adult Homes are for-profit enterprises that lose revenue with each resident who secures alternative housing. Dr. Duckworth testified that case managers and other staff he observed working in the Adult Homes seemed to have “lost their professional autonomy” and “basically showed up to work and saw whoever the operator directed them to see.”

514

DOH has cited some Adult Homes for failing to follow up on residents’ expressed desire to move.

515

In sum, the evidence demonstrates that New York’s supported housing program can and does serve individuals with a wide range of support needs and that the support needs of Adult Home residents could, in virtually every case, be easily addressed in supported housing. The court therefore finds that virtually all of DAI’s constituents are qualified for supported housing.

3. Conclusions of Law

a. Virtually All of DAPs Constituents Meet the Essential Eligibility Requirements of Supported Housing

Part of the inquiry as to whether supported housing is “appropriate to the needs” of DAI’s constituents is whether DAI’s constituents are qualified to be served in supported housing. In

Olmstead,

the Supreme Court held that states have 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)). “Not every eligibility requirement is an ‘essential eligibility requirement.’ ”

DAI I,

598 F.Supp.2d at 333

(citing PGA Tour, Inc. v. Martin,

532 U.S. 661, 688 , 121 S.Ct. 1879 , 149 L.Ed.2d 904 (2001)).

Applying the law to the facts, the court concludes that DAI has proven that virtually all of its constituents meet the essential eligibility requirements of supported housing. For virtually all of DAI’s constituents, nothing about their disabilities necessitates living in the Adult Homes as opposed to supported housing, nor would they require services that are not already provided to people living in supported housing. The evidence at trial demonstrates that Defendants expect New York’s supported housing programs to serve individuals with serious mental illness who have a wide range of support needs — including individuals transitioning directly from psychiatric hospitals and inpatient psychiatric centers, whom OMH terms “high need.” The evidence at trial further demonstrates that the supports that would be needed by Adult Home residents to live independently are well within the capabilities of New York’s supported housing providers to accommodate. Indeed, many of DAI’s constituents would need only minimal supports.

*257

Voluminous evidence supports the court’s conclusion. After extensive investigations that included interviews with hundreds of residents and review of hundreds of mental health records, DAI’s experts credibly and persuasively concluded that virtually all Adult Home residents could be served in supported housing. OMH’s own former Senior Deputy Commissioner agrees with the conclusions of these experts that virtually all Adult Home residents could be appropriately served in supported housing.

In addition, OMH has issued supported housing RFPs

targeting

institutionalized individuals, including Adult Home residents themselves. Numerous responses to these RFPs by supported housing providers indicate that these providers are willing and able to serve individuals needing a wide variety of supports relating to managing them illness and learning independent living skills. Dr. Tsemberis testified that the Pathways program routinely and successfully serves individuals needing all manner of supports, and that Pathways does not regard many of the independent living issues cited by Defendants as absolute barriers to independent living to be “difficult issues” to resolve. In fact, in implementing the Legislature’s 60-bed initiative, OMH has successfully transitioned residents of Adult Homes into supported housing.

Defendants’ argument' that DAI is seeking to “change the nature of supported housing” is without merit.

516

As the court found above, supported housing is not only for those who need “minimal” supports. Rather, it is targeted at individuals with mental illness who need varying levels of support. Nor does OMH require individuals to proceed through a “linear continuum” of care. Defendant OMH Commissioner Hogan testified to the Legislature, and Ms. Rosenberg testified at trial, that OMH has abandoned that model and does not require institutionalized individuals to transition gradually through less restrictive forms of housing before moving to supported housing.

Defendants’ own studies demonstrate that many Adult Home residents are qualified to move to supported housing. The Assessment Project, which Defendants commissioned, demonstrates that Adult Home residents are not a particularly disabled population. In addition, the Adult Care Facilities Workgroup, in a 2002 report significantly shaped by Defendants, recommended that 6,000 individuals with mental illness in adult homes be moved to supported housing. While Defendants contend that the Workgroup’s recommendation of moving 6,000 adult home residents is “not based on sufficient data” to be reliable,

517

no one contends that the 6,000 figure is derived from quantitative data, because the State had not collected such data. Rather, the Workgroup Report is probative because it shows that a group of accomplished New York experts on mental health, chosen by Defendants, unanimously concluded that large numbers of individuals with mental illness in adult homes in or near New York City — a population that includes the Adult Home residents at issue in this case — could more appropriately be served in more integrated settings.

While Defendants contend that “it is impossible to know whether an individual can live safely in a particular type of housing without knowing what supports the person would need,”

518

they do not explain the basis for this assertion. Individuals

*258

residing in supported housing receive varying levels of support depending on their particular needs. While DAI must show — and has successfully shown — that its constituents meet the essential eligibility requirements for supported housing, it is not DATs burden to assess what

specific

supports each of its approximately 4,300 constituents would need once he or she is placed in supported housing. Supported housing providers routinely do assessments as part of their work to determine the specific supports their clients require.

Finally, the court concludes that failure to apply and obtain approval for supported housing is not an “essential eligibility” requirement for receiving services in supported housing.

See PGA Tour, Inc.,

532 U.S. at 688 , 121 S.Ct. 1879 . The HRA process is a bureaucratic hurdle to placement in supported housing that requires detailed evaluations from psychiatrists and social workers. The evidence demonstrates that many Adult Home residents do not have anyone to assist them in filling out the form. In any event, this procedural requirement has nothing to do with the personal characteristics and capabilities of the individuals at issue. Whether an individual has completed an HRA application is unrelated to the question posed by the law of whether supported housing would be a setting appropriate to his or her needs.

b. DAI Is Not Required To Show That Each of Its Constituents Has Been Deemed Eligible for Supported Housing by a Treatment Provider

Defendants contend that DAI has failed to show that its constituents are qualified for supported housing because DAI did not show that each of its constituents has been deemed eligible for supported housing by a treatment provider.

519

The court concludes that the law does not require DAI to do so in order to prove that its constituents are qualified.

Olmstead

holds that a state “generally may rely on the reasonable assessments of its own professionals” in determining whether an individual is qualified to be served in a more integrated setting. 527 U.S. at 602 , 119 S.Ct. 2176 . In

Olmstead

there was “no genuine dispute” as to whether the individuals at issue were “qualified” to be served in a more integrated setting, because the state’s own professionals determined that community-based treatment would be appropriate.

Id.

at 602-03, 119 S.Ct. 2176 . The court does not read

Olmstead

as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a “treatment provider” and found eligible to be served in a more integrated setting.

Joseph S. v. Hogan,

561 F.Supp.2d 280 (E.D.N.Y.2008), the district court found that no eligibility determination from the “state’s mental health professionals” is required, noting that “it is not clear whether

Olmstead

even requires a specific determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting, or whether that just happened to be what occurred in

Olmstead.” Id.

at 291. In

Frederick L. v. Department of Public Welfare,

157 F.Supp.2d 509 (E.D.Pa.2001), the district court declined to read

Olmstead

as requiring “a formal ‘recommendation’ for community placement, as that term may be used in the mental health field,” noting that

“Olmstead

does not allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.”

Id.

at 540;

see

*259

also Long v. Benson,

No. 08-cv-26 (RH/WCS), 2008 WL 4571904 , at *2 (N.D.Fla. Oct. 14, 2008) (noting that the State “cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.”);

cf. Fisher,

335 F.3d at 1181 & n. 7 (when there was no dispute as to whether community placement was appropriate, citing the standard as “when treatment professionals have determined that community placement is appropriate for disabled individuals”);

but see Martin v. Taft,

222 F.Supp.2d 940 , 972

n. 25 (S.D.Ohio 2002) (requiring plaintiffs to plead “that the state’s professionals have determined the plaintiffs are qualified for community-based care, or ... facts from which it may be inferred that the determinations of the state’s professionals are manifestly unreasonable.”).

DAI has presented persuasive evidence from a variety of sources, including the Defendants’ Assessment Project, that its constituents are qualified to receive services in the community. It need not prove “qualification” in the form of determinations from the Adult Home residents’ “treatment professionals.” To find otherwise would render the ADA’s integration mandate effectively unenforceable as to Adult Homes. The evidence demonstrates that OMH considers Adult Homes to be permanent placements. Defendants have admitted that they do not perform any ongoing assessments of Adult Home residents to determine whether they could be served in alternative settings.

520

The evidence does not demonstrate that Adult Home residents are routinely assessed by their own treatment providers as to their “qualifications” to receive services in the community. The for-profit Adult Homes (and the treatment providers employed by them) have no incentive to assist them in moving to alternative housing. Individual case managers and providers are “expected” to bring up the topic of housing with Adult Home residents and follow up with assisting residents who want to move, but there is evidence that case managers and other providers have actually

discouraged

Adult Home residents who seek to move.

Given the facts of this case, to require determinations from treatment providers would indefinitely forestall Adult Home residents who are actually qualified to receive services in the community from access to the most integrated setting appropriate to their needs, simply because their own treatment providers have not bothered to assess them. Such a result would eviscerate the integration mandate as applied to this case. It would condemn the placements of DATs constituents to the virtually unreviewable discretion of the various entities on whom the State relies to deliver services to Adult Home residents. This is not what

Olmstead

contemplates.

See Frederick L.,

157 F.Supp.2d at 540

(“Olmstead

Long,

2008 WL 4571904 , at *2. Accordingly, the court finds as a matter of law that DAI is not required to provide determinations from its constituents’ treatment providers in order to show that its constituents are qualified to move.

C. DAI’S CONSTITUENTS ARE NOT OPPOSED TO RECEIVING SERVICES IN MORE INTEGRATED SETTINGS

1. Legal Standard

As the Supreme Court explained in

Olmstead,

the ADA does not impose ac

*260

commodations on individuals who do not want them, and accordingly it does not force individuals who oppose moving to a more integrated setting to do so.

See Olmstead,

527 U.S. at 602 , 119 S.Ct. 2176 (“Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.”)

(citing

28 C.F.R. § 35.130 (e)(1), 28 C.F.R. pt. 35 app. A, at 450 (“[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation.”)).

2. Findings of Fact

The court finds that DATs constituents, as a whole, are not opposed to living in more integrated settings. Adult Home residents have expressed preferences for living in more integrated settings, and there is convincing evidence that many would choose to live in an independent setting such as supported housing if given an informed choice.

a. Most Adult Home Residents Had Little or No Choice in Moving to an Adult Home

By and large, people with mental illness come to live in Adult Homes not by choice, or because a mental health professional determines that an Adult Home is the most appropriate setting to serve their needs. Rather, most of DATs constituents entered Adult Homes because they had nowhere else to go. Ms. Rosenberg testified that, when thousands of patients were discharged from the State’s psychiatric centers, “housing was scarce” and “beds were available” in the Adult Homes.

521

As Defendants’ witness Karen Schimke testified, “[rjesidents in adult homes, particularly residents with psychiatric disabilities, often were placed there simply because it was ... four o’clock on a Friday afternoon and they had no other options, not because it was necessarily the place of choice.”

522

DAI’s expe

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