Filed Date: June 30, 2003
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This Clearinghouse entry describes two closely entwined lawsuits: O'Toole v. Cuomo, U.S. v. New York, and Disability Advocates Inc. v. Pataki.
On June 30, 2003, Disability Advocates, Inc. (DAI) filed a lawsuit on behalf of New York residents in large "adult homes," privately owned but state-funded facilities for individuals with mental illness or other disabilities, and on behalf of all individuals at risk of being institutionalized in adult homes. Plaintiffs filed their case in the U.S. District Court for the Eastern District of New York, against the Governor of New York, the State Departments of Health and Mental Health, and several other state officials. The complaint focused specifically on 26 of the adult homes in New York City, each of which housed more than 120 people and where at least 25%, and often more than 75%, of the residents had mental illnesses. The complaint compared the treatment received by mentally ill individuals who had been discharged and placed in community-based supported housing or other integrated living settings with those individuals placed in the adult homes, where personal freedom, choice, and privacy were limited, as were opportunities to interact with family and non-mentally ill persons. Recreational programming and personal rights were often non-existent. The adult homes were alleged to present frequent health, safety, and sanitation violations. The complaint also alleged instances of home operators and other staff taking financial or other improper advantage of mentally ill residents, as well participating in schemes to excessively bill the State. In addition to Plaintiff organization's own attorneys, Plaintiffs were represented by lawyers from a large private firm and from the Bazelon Center for Mental Health Law, the New York Lawyers for the Public Interest, MFY Legal Services, Inc., and the Urban Justice Center.
The DAI complaint alleged that the decision to discharge mentally ill patients from hospitals to adult homes resulted from the state's unlawfully insufficient provisioning for supported housing. Plaintiffs also contended that increasing the capacity of supported housing settings would be of equal or lower cost to the State than maintaining the adult homes. The complaint cited state and city evaluative reports and prominent newspaper articles that indicated the State had known for at least 25 years that the living conditions and quality of care and life in the adult homes were inadequate. The Plaintiffs estimated that at least half of adult home residents with mental illness could live community-integrated settings successfully.
The DAI case alleged that the State violated the Americans with Disabilities Act ("ADA") and the Rehabilitation Act by discriminating against persons with disabilities by failing to administer medically necessary services and programs in the most integrated setting, and by failing to make reasonable and appropriate accommodations for these persons, in violation of 42 U.S.C. § 12131 and 28 C.F.R. § 35.130 (Title II of the ADA and its implementing regulations) and of 29 U.S.C § 794 (Section 504 of the Rehabilitation Act). The ADA, as interpreted by the Supreme Court in the landmark decision Olmstead v. L.C., 527 U.S. 581 (1999), mandates that disabled persons, including those individuals with serious mental illnesses, not be subjected to "unjustified isolation" and that government services providing medically necessary care be provided "in the most integrated setting appropriate to [the patients'] needs." Plaintiffs sought declaratory and injunctive relief, as well as an award of attorneys' fees and costs.
On April 29, 2004, the first judge assigned, Robert M. Levy, granted Defendants' motion for recusal in light of his prior service on the Plaintiff organization's board of directors and past employment with New York Lawyers for the Public Interest. The case was reassigned.
On February 19, 2009, the Court (Judge Nicholas G. Garaufis) denied the parties' cross motions for summary judgment. The Court found that DAI had standing to bring the suit, that Title II applied to DAI's claims, and that the Governor was a proper party. On May 8, 2009, the Court ruled on various motions in limine. Disability Advocates, Inc. v. Paterson, 2009 WL 1312112 (E.D.N.Y. May 8, 2009).
Following a five week bench trial, the Court issued its Findings of Fact and Conclusions of Law on September 9, 2009. The Court found that DAI had proven by a preponderance of the evidence that its constituents were not receiving services in the most integrated setting appropriate to their needs and had thus established a violation of the integration mandate of the ADA and the Rehabilitation Act. As a result, the Court held that DAI was entitled to declaratory and injunctive relief. Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009).
In response, three parties moved to intervene in the action: the United States, represented by attorneys from the Department of Justice Civil Rights Division; the Empire State Association of Assisted Living; and the New York Coalition for Quality Assisted Living. On November 23, 2009, the Court granted the United States' motion to intervene. Disability Advocates, Inc. v. Paterson, 2009 WL 450631 (E.D.N.Y. Nov. 23, 2009). The Court denied the other two parties' motions on December 23, 2009. Disability Advocates, Inc. v. Paterson, 2009 WL 5185807 (E.D.N.Y. Dec. 23, 2009).
The Court issued a remedial order and judgment on March 1, 2010. The Order detailed Defendants' future obligations and ordered Defendants to pay Plaintiffs' attorneys fees and costs. The Court denied Defendants' motion for a stay pending appeal on March 11, 2010. Disability Advocates, Inc. v. Paterson, 2010 WL 933750 (E.D.N.Y. Mar. 11, 2010).
Defendants appealed, and on May 31, 2012, the U.S. Court of Appeals for the Second Circuit vacated the judgment of the District Court and dismissed the action. The Second Circuit found that the primary plaintiff in the case, Disability Advocates, Inc., did not have standing under Article III of the U.S. Constitution. Among other standing requirements, the Supreme Court has held that organizations seeking to assert the injuries of their members or constituents must show that they sufficiently represent the interests of those constituents and that the constituents have some control over the actions of the representative body. In New York, DAI was a contractor of the state's federally mandated Protection and Advocacy (P&A) System. Although other circuits are split on the issue of whether the state P&A can stand in for individuals with disabilities for the purpose of Article III standing, the Second Circuit found that DAI's status as a contractor of the P&A system makes it an inadequate stand-in for the people it seeks to represent. The Court also found that although the United States could sue to enforce its statutes, the federal government's late intervention in the case (nearly 7 years after it was filed) did not cure the standing problem.
The Second Circuit Court decision formally ended the DAI case. However, after that decision was announced, the plaintiffs--both DAI and the United States--decided to refile the litigation to solve the standing problem. Private plaintiffs were recruited, and DAI switched its role to be among the plaintiffs' counsel, along with Bazelon Center for Mental Health Law, Mobilization for Justice, Urban Justice Center, New York Lawyers for Public Interest, and Disability Rights New York.
Both the private plaintiffs and the United States then filed nominally new litigation on July 23, 2013: O'Toole v. Cuomo, 13-cv-04166 and United States v. New York, 13-cv-04165, simultaneously with a negotiated settlement. In addition, they filed a request that the case be assigned to Judge Garaufis, saying that the case presented nearly identical facts to that in DAI, thereby saving judicial resources.
On August 8, 2013, a group representing 19 of the impacted homes asked the court to delay its decision regarding the proposed settlement until it had time to confer with the parties. The group argued that they disagreed with the underlying premise of the proposed agreement; namely with the contention that the presence of mentally ill persons in adult homes violated the ADA and the Olmstead mandate. The potential intervenors also alleged that they were wrongfully denied the opportunity to participate in negotiation proceedings before the proposed settlement was filed. Finally, they listed several disagreements with the substantive components of the proposed settlement, claiming that it would pressure and coerce residents into leaving adult homes and would ignore the rights of adult home operators. Judge Garaufis did not respond to the adult home operators’ objections at this time.
On October 10, 2013, the court issued an order finding that the parties’ proposed agreement did not include sufficient mechanisms for the court to monitor and supervise its implementation. In accordance with the order, the parties submitted a proposed modification to the agreement on December 10, 2013. On January 14, 2014, counsel for the group of adult homes submitted a letter to the court asking it to modify the proposed consent judgment because of continued disagreement with its terms. Nonetheless, on January 30, 2014, the parties submitted an amended stipulated settlement agreement. The terms were similar to those in the original agreement, but included additional mechanisms for court monitoring.
In the meantime, on November 20, 2013, Judge Garaufis certified the plaintiff class, defined as persons with serious mental illness residing in NYC Adult Homes. After fairness hearings, on March 17, 2014, the court issued final approval of the modified settlement agreement, finding it to be fair and reasonable. Regarding the objections of the adult home operators, the court found that, as non-parties to the case who had not formally intervened, the operators did not have standing to object to the settlement. Nonetheless, Judge Garaufis addressed each of their concerns in the March 17 Order, and concluded that the Agreement adequately addressed each of them.
The terms of the court-enforced settlement provided individuals with mental illness residing in twenty-three New York City adult homes the option of transferring to community-based supported housing in the most integrated setting possible. It required that those opting for the transfers have access to flexible support services and community-based mental health care suited to their individual needs. At the time of the settlement, approximately 4000 individuals were eligible for these transfers. The State agreed to provide funding for 950 such housing units scattered throughout the Bronx and Staten Island, with 1050 more units in Queens and Kings Counties. Individuals with mental illness that rendered them a danger to themselves or others were not eligible for supported housing. The Agreement also required that all adult home residents be assessed for eligibility in the supported housing program within five years of the effective date of the settlement, with housing providers conducting “in-reach” to explain housing options to residents. It mandated that State compliance be monitored by an Independent Reviewer, who would make annual reports on the implementation of the settlement terms and who would otherwise observe, review, report findings, and make recommendations to the parties. The Court's retention of jurisdiction was set to expire after the fifth and final report of the Reviewer, unless the Plaintiffs alleged non-compliance or the parties agreed to extend the agreement. In addition, the parties were required to submit quarterly reports. Finally, the settlement provided $200,000 in attorneys' fees and costs for the DIA v. Pataki plaintiffs' legal expenses.
From the time the order was approved until April 2015, the State filed quarterly status reports on its implementation of the agreement without apparent incident. However, in May 2015, the Independent Reviewer filed a notice stating that the team had experienced difficulty obtaining access to various records it needed to accurately review the State’s progress. Accordingly, the Independent Reviewer filed a Proposed Order regarding its access to records to ensure that his team would have the records access it needed. The court issued the Order, mandating that the involved entities provide any records requested by the Independent Reviewer for monitoring and compliance purposes.
The first status report of the Independent Reviewer generally indicated that progress was slow. However, in February 2016, representatives for several of the adult homes again submitted a letter to the court claiming that various pieces of information had been withheld during status reports and status conferences. Specifically, the letter claimed that, because of pressure to move residents out of adult homes at a faster pace, some residents who were inappropriate candidates for supported living had been moved out of their group homes and suffered adverse consequences. After receiving the letter, the court ordered the parties to discuss the allegations at their next status conference.
The next annual report filed by the Independent Reviewer indicated that the State had made significant strides and that, contrary to the adult home operators’ contentions, those who had transitioned into the community were generally doing well and were happy with their decisions. As far as areas for improvement, the report indicated that the pace of transition was still lagging and that additional support for transitions and in-reach was needed.
On February 28, 2017, the New York State Office of the Attorney General (OAG) moved to withdraw as counsel for the defendants in this case and related cases, citing fundamental disagreements between counsel and Defendants and stating that Defendants had made it unreasonably difficult to represent them.
The problems cited by OAG arose out of a separate but related New York case, Doe v. Zucker, litigated in Albany, in which a former resident of an adult home moved for a temporary restraining order (TRO) enjoining the enforcement of certain regulations that arose in conjunction with the Settlement Agreement in this case, because those regulations had prevented Doe's plaintiff from returning to an adult home, even though that's what he wanted. Specifically, the challenged regulations restricted adult homes’ ability to accept new residents. OAG represented State defendants in that case. OAG claimed that the State defendants informed counsel of their intention to support the injunction against their own regulations the morning of the TRO hearing, and that the State had apparently been communicating with the adult home operators without notifying OAG. At the hearing in Doe v. Zucker, OAG counsel neither supported nor opposed the issuance of the TRO, but deferred to their clients. A week later, OAG appeared at a status conference for the present case. Judge Garaufis asked the Attorney General to explain why the office had apparently supported the TRO in the Albany case but was simultaneously defending the regulations in this case. OAG contended that it did not in fact support the implementation of the TRO in Albany, but that it had been blindsided by its clients’ actions. As such, OAG maintained that it was necessary to withdraw as counsel in the federal case.
At a hearing on March 22, 2017, Judge Garaufis expressed serious concern that matters so closely related to the settlement were being litigated at the state level without his knowledge--the State never informed him of the proceedings. He explained that it seemed that the State had conspired with the adult home operators to attempt to thwart the regulations limiting admittance to adult homes. He ordered the parties to engage in discovery regarding the OAG’s and the State’s actions leading up to the issuance of the TRO in Doe and scheduled a hearing on OAG’s motion to withdraw for May 17, 2017. He also ordered OAG to inform the state court in Doe v. Zucker about the existence of the settlement and that, because the case was moot, the TRO should be rescinded.
Further complicating matters, the TRO issued by the state court in Doe v. Zucker triggered an obligation in the Settlement Agreement for the parties to meet and confer if enforcement of any of the regulations pertinent to the Agreement was stayed. The Agreement required that, in such a case, if the parties were unable to agree on modifications within 120 days, the entire Agreement would be null and void.
For reasons that are unclear, OAG withdrew its motion to withdraw as counsel for Defendants on May 4, 2017. The same day, the parties filed a stipulated order to modify the Agreement. The stipulation indicated that the parties agreed to delete the section of the Settlement Agreement that required the parties to meet and modify the agreement in the event of a stay of enforcement of any pertinent regulations. It also indicated that the parties could continue to negotiate possible additional revisions. Judge Garaufis granted the order on May 18 in lieu of having a hearing on May 17.
As a separate matter, because Doe v. Zucker was just one of several cases brought by former residents of adult homes and adult home operators to enjoin enforcement of the regulations that arose out of the actions in NY v. U.S., Judge Garaufis became concerned that the class members in such cases were being manipulated into bringing suits against the State without fully understanding the situation or, in some cases, without consent. As a result, on June 15, 2017, he appointed guardians ad litem for the class members who were named as plaintiffs in this group of lawsuits.
In early December 2017, the parties were ordered to reenter mediation under the supervision of Magistrate Judge Steven Tiscione. While the United States and class counsel were against it, defendants wanted a short time to negotiate for a revised settlement agreement. They were directed to submit a report to Judge Garaufis no later than February 7, 2018 detailing the outcome of the negotiations. By that time, parties submitted a joint motion for extension of time to negotiate, but Judge Garaufis denied that motion.
On March 12, the United States submitted a motion to approve the settlement agreement. Four days later the U.S. submitted a supplement to the Second Amended Stipulation and Order of Settlement (from May 4, 2017). A month later, Judge Garaufis preliminarily approved the agreement, final approval pending a fairness hearing that took place in June. On September 6, 2018, the court granted final approval and the supplementary was also granted. The agreements provided for a quality assurance program, more specific timelines and thresholds for measuring task compliance, and a shift in lodging responsibilities, among many other provisions.
Relatively little has occurred in the way of litigation since the September 2018 approval. The state continues to submit monthly status reports and the Independent Review team submits yearly reports. The most recent report, the 6th Annual Report, was filed on April 1, 2020. The report states that, while some reforms have been made, "structural and process problems still exist," especially in that many members of the class do not wish to move to community services. The report claims that this is likely due to family members discouraging them from that choice.
The case is ongoing as of June 29, 2020.
Haley Waller (4/8/2011)
Beth Kurtz (4/24/2013)
Alex Colbert-Taylor (7/25/2013)
Kristen Sagar (1/1/2009)
Jack Hibbard (6/29/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/7813930/parties/otoole-v-hochul/
Barkoff, Alison (District of Columbia)
Abramowitz, Amy L. (New York)
Alessi, Robert J. (New York)
Bagenstos, Samuel R. (District of Columbia)
Barber, Hugh (Connecticut)
Cabranes, José Alberto (Connecticut)
Garaufis, Nicholas (New York)
Go, Marilyn D. (New York)
Levy, Robert M. (New York)
See docket on RECAP: https://www.courtlistener.com/docket/7813930/otoole-v-hochul/
Last updated June 30, 2023, 3:16 a.m.
State / Territory: New York
Filing Date: June 30, 2003
Case Ongoing: Yes
Disability Advocates, Inc., on behalf of New York residents in large "adult homes," i.e., privately owned and state-funded facilities for individuals with mental illness or other disabilities.
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: Up to $625,000
Order Duration: 2013 - None
Content of Injunction:
Type of Facility: