Joseph S. v. Hogan
| Decision Date | 23 May 2008 |
| Docket Number | No. CV-06-1042 (BMC)(SMG).,CV-06-1042 (BMC)(SMG). |
| Citation | 561 F.Supp.2d 280 |
| Parties | JOSEPH S. and Steven W.; Disability Advocates, Inc.; and Sidney Hirschfeld, Director, Mental Hygiene Legal Service, Second Judicial Department, Plaintiffs, v. Michael F. HOGAN, in his official capacity as Commissioner of the New York State Office of Mental Health; The New York State Office of Mental Health; Richard F. Daines, in his official capacity as Commissioner of the New York State Department of Health; The New York State Department of Health; and David A. Paterson, in his official capacity as Governor of the State of New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Beth D. Jacob, Lori D. Greendorfer, Schiff, Hardin & Waite, New York, NY, Cliff Zucker, Roger A. Bearden, Amy E. Lowenstein, Disability Advocates, Inc., Albany, NY, Dennis Bruce Feld, Lisa Volpe, Mental Hygiene Legal Service, Mineola, NY, Marianne Engelman Lado, Nisha Suresh Agarwal, Sandra Del Valle, Lawyers for the Public Interest, New York, NY, for Plaintiffs.
Deborah Hochhauser, Joanne Skolnick, Office of the Attorney General, New York, NY, John P. Gasior, Assistant Attorney General, New York, NY, for Defendants.
This case is before me on the Report & Recommendation of Magistrate Judge Steven M. Gold dated April 21, 2008[93], in which he recommended denial of defendants' motion to dismiss, except as to the Nursing Home Reform Act ("NHRA") claims that he found time-barred. Plaintiffs and defendants have timely objected. Having conducted a de novo review, I adopt the Report & Recommendation as the Order of this Court and overrule the parties' objections, as I agree with the analysis of each point addressed by Judge Gold. The only issue warranting additional comment is plaintiffs' hyperbolic invocation of Muller v. State, 179 Misc.2d 980, 686 N.Y.S.2d 652 (1999), which plaintiffs describe as the progenitor of a "Muller line of cases." There is no "Muller line of cases," and a single Court of Claims decision cannot be said to constitute the law of New York. See King v. Order of United Commercial Travelers, 333 U.S. 153, 160-61, 68 S.Ct. 488, 492-93, 92 L.Ed. 608 (1948); Singleton v. City of New York, 632 F.2d 185, 199 (2d Cir.1980). I agree with Judge Gold that the reasoning of that case is not persuasive.
It is therefore ORDERED that defendants' motion to dismiss is denied except as to the time-barred NHRA claims.
SO ORDERED.
REPORT and RECOMMENDATION
INTRODUCTION
This case concerns New York state's obligation to provide mental health services and treatment to individuals with mental illness in the most integrated setting appropriate to their individual needs. Approximately 400,000 adults are served by New York state's public mental health system.1 These individuals are treated in hospitals, residential facilities, outpatient clinics, and other community-based treatment settings. Finding the proper placement within the spectrum of services available for an individual with mental illness is no doubt often a difficult and complex problem. According to plaintiffs, hundreds and perhaps thousands, of individuals with mental illness are residing in nursing homes who could be residing and receiving treatment in less restrictive, community-based programs.
Plaintiffs have filed a second amended complaint asserting claims pursuant to three federal statutes on behalf of individuals with mental illness residing in nursing homes: Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, 12132; Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794; and the Federal Nursing Home Reform Act ("NHRA"), 42 U.S.C. § 1396r.2 Generally, the ADA and Section 504 prohibit discrimination against individuals with disabilities, including individuals with mental illness. The ADA was passed, in part, to combat discrimination against individuals with disabilities, including discrimination in the form of unnecessary segregation of those with disabilities in nursing homes and other institutions. See Kathleen S. v. Dep't of Pub. Welfare of Pa., 10 F.Supp.2d 460, 468 (E.D.Pa.1998) (citing 134 Cong. Rec. 9384 (1988)). The federal regulations implementing both the ADA and Section 504 have specific provisions, referred to as "integration" regulations or mandates, that require public entities to treat individuals with disabilities in the "most integrated setting appropriate to the[ir] needs." 28 C.F.R. §§ 35.130(d), 41.51(d). In Olmstead v. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court held that these integration mandates require a state to provide services to individuals in community settings rather than institutions whenever the relevant professionals conclude that the services required by the individual may appropriately be rendered in a community setting, unless the expense involved would fundamentally alter the state's overall services and programs.
The NHRA was passed specifically to end the practice of inappropriately institutionalizing individuals with mental illness or mental retardation in nursing homes. The NHRA imposes stringent procedures that states and nursing homes must follow before and after an individual with mental illness or mental retardation is admitted to a nursing home.
Defendants move to dismiss the complaint on various grounds pursuant to Federal Rule of Civil Procedure 12(b). For the reasons and with the limited exception stated below, I respectfully recommend that defendants' motion be denied.
On March 8, 2006, Disability Advocates, Inc. ("DAI") and Sidney Hirschfeld, Director of Mental Hygiene Legal Service, Second Judicial Department ("MHLS"), together with individual plaintiffs, filed a complaint against Sharon E. Carpinello, in her official capacity as Commissioner of the New York State Office of Mental Health, the New York State Office of Mental Health ("OMH"), Antonia C. Novello, in her official capacity as Commissioner of the New York State Department of Health, the New York State Department of Health ("DOH"), and George Pataki, in his official capacity as Governor of the State of New York.3 On June 29, 2007 defendants requested a pre-motion conference with, respect to their anticipated motion to dismiss. The Honorable Brian M. Cogan then referred the motion to me for a report and recommendation. During a conference held on July 10, 2007, I granted plaintiffs an opportunity to file an amended complaint that might address some of the deficiencies identified by the defendants prior to the filing of any motions. On July 24, 2007, DAI and MHLS, together with three individual plaintiffs — Edwin T., Joseph S., and Steven W. — filed their amended complaint against Michael F. Hogan, who replaced Sharon Carpinello as Commissioner of OMH, Richard F. Daines, who replaced Antonia Novello as Commissioner of DOH, and Eliot Spitzer, who replaced George Pataki as Governor, as well as against two state agencies, OMH and DOH. Defendants filed their motion to dismiss the amended complaint on September 18, 2007.
I heard argument on defendants' motion on February 21, 2008. During the oral argument, I granted plaintiffs an opportunity to amend their complaint again to address defendants' contentions, including the argument that some claims lacked sufficient specificity. Plaintiffs filed a Second Amended Complaint ("Sec.Am.Compl."), together with a post-hearing letter ("Pl.Letter"), on March 5, 2008, Docket Entry 89, and defendants filed a response ("Def.Letter") on March 12, 2008, Docket Entry 91.4
As noted above, plaintiffs bring this action on behalf of individuals with mental illness who have been or will be unlawfully discharged from psychiatric hospitals and hospital psychiatric wards to nursing homes, and seek declaratory and injunctive relief on their behalf. According to plaintiffs, New York State's flawed mental health system has the effect of warehousing individuals with mental illness in nursing homes in violation of federal laws. Plaintiffs allege that New York State has failed to provide these individuals with programs and services in the most integrated setting appropriate to their needs. Moreover, plaintiffs contend that, once placed in the nursing homes, individuals do not receive the rehabilitative services or mental health treatment they need, and therefore are unable to transfer to community-based treatment programs. Essentially, plaintiffs argue that thousands of New York residents with mental illness are languishing for years in nursing homes, some of them outside of New York State or far away from family members, on locked wards or otherwise unable to leave the facility, without receiving the mental health treatment they need and despite the fact that they do not require a nursing home's level of care. Plaintiffs allege that these nursing homes have become de facto psychiatric hospitals, but without the psychiatric services that a hospital setting' provides.
The state, and more specifically, OMH and DOH, are required by state law to care for and treat individuals with mental illness. The NHRA's Preadmission Screening and Resident Review ("PASRR") process imposes additional responsibilities on the defendants.
Pursuant to New York Mental Hygiene Law,
The state of New York and its local governments have a responsibility for the comprehensively planned care, treatment and rehabilitation of their mentally ill citizens. Therefore, it shall be the policy of the state ... to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill. Such a system should include, whenever possible, the provision of necessary treatment services to people in their home communities; it should assure the adequacy and appropriateness of residential arrangements for people...
To continue reading
Request your trial
-
State Of Conn. Office Of Prot. And Advocacy For Persons With Disabilities v. The State Of Conn.
...economic independence, educational advancement, and cultural enrichment.” Id. at 600-01, 119 S.Ct. 2176. See also Joseph S. v. Hogan, 561 F.Supp.2d 280, 290 (E.D.N.Y.2008)(“Thus, unnecessary segregation of individuals with mental illness is discrimination per se and a violation of the ADA; ......
-
Baum v. Northern Dutchess Hosp.
...with regard to the recovery of compensatory damages for the failure to meet a standard of medical care. Compare Joseph S. v. Hogan, 561 F.Supp.2d 280 (E.D.N.Y.2008).21 This Court declines to adopt the holding of Grammer, 570 F.3d 520. Rather, the Court is obliged to following the persuasive......
-
Day v. Dist. of Columbia
...existing service system such that more than 12,000 adults are receiving the State's services in adult homes”); Joseph S. v. Hogan, 561 F.Supp.2d 280, 293 (E.D.N.Y.2008) (rejecting State's claim, on motion to dismiss, that plaintiffs had to show that the State was specifically responsible fo......
-
Roll v. Howard
...must always provide more segregated treatment than is appropriate or necessary at a patient's request. See also Joseph S. v. Hogan , 561 F. Supp. 2d 280 (E.D.N.Y. 2008) (denying motion to dismiss plaintiff class' claims that New York was essentially warehousing individuals with mental-healt......
-
Beyond Residential Segregation: the Application of Olmstead to Segregated Employment Settings
...F.3d 771 (7th Cir. 2007) (denying motion to intervene); Rolland v. Celluci, 52 F. Supp. 2d 231 (D. Mass. 1999); Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N. Y. 2008). 875 876 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:3 congregate settings that purport to be community-based but functio......