Case 1:22-cv-05045 Document 1 Filed 06/16/22 Page 1 of 52
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`------------------------------------------------------------- x
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`Case No. 1:22-cv-05045
`
`CLASS ACTION COMPLAINT
`AND JURY DEMAND
`
`:::::::::::::::::::::
`
`T.C. by his next friend D.S., A.H. by her next
`friend E.H, R.D. by her next friend M.D., J.D. by
`his next friend D.D., H.L., A.B., J.S., and M.L., on
`behalf of themselves and all others similarly
`situated, DISABILITY RIGHTS NEW YORK,
`
`Plaintiffs,
`
`- against -
`
`NEW YORK STATE DEPARTMENT OF
`HEALTH; MARY BASSETT, in her official
`capacity as Commissioner of the New York State
`Department of Health; NEW YORK STATE
`OFFICE FOR PEOPLE WITH
`DEVELOPMENTAL DISABILITIES; and KERRI
`NEIFELD, in her official capacity as
`Commissioner of the New York State Office for
`People with Developmental Disabilities,
`
`Defendants.
`------------------------------------------------------------- x
`
`Plaintiffs T.C. by his next friend D.S., A.H., by her next friend E.H., R.D. by her next
`
`friend M.D., J.D. by his next friend D.D., H.L., A.B., J.S., and M.L., on behalf of themselves and
`
`all others similarly situated, and Disability Advocates, Inc. d/b/a Disability Rights New York,
`
`allege for their class action complaint against Defendants New York State Department of Health
`
`(“DOH”), Mary Bassett (“Bassett”) in her official capacity as Commissioner of DOH, New York
`
`State Office for People with Developmental Disabilities (“OPWDD”), and Kerri Neifeld
`
`(“Neifeld”), in her official capacity as Commissioner of OPWDD, as follows:
`
`1
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`Case 1:22-cv-05045 Document 1 Filed 06/16/22 Page 2 of 52
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`NATURE OF THE CASE
`
`1.
`
`Defendants have flagrantly violated, and continue to violate, Plaintiffs’ federal
`
`statutory right to reside in less-restrictive community-based residential settings, rather than being
`
`wrongly and illegally institutionalized in hospitals, nursing homes, and intermediate care facilities
`
`(“ICFs”).
`
`2.
`
`Plaintiffs are all Medicaid recipients with developmental disabilities who are
`
`currently confined to institutional settings despite being ready, willing, and able to leave those
`
`settings and reside in community-based settings that would allow them to live fuller and richer
`
`lives.
`
`3.
`
`In order to live in the community, Plaintiffs wish to receive Home and Community
`
`Based Waiver (“HCBS Waiver”) services and certified residential opportunities. HCBS Waiver
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`services include case management services, habilitation services, pre-vocational services, and
`
`pathways to employment, none of which can be furnished to individuals who remain in
`
`institutional settings.
`
`4.
`
`Defendants are charged with administering the programs that provide Plaintiffs
`
`with HCBS Waiver services and certified residential opportunities. However, despite determining
`
`that Plaintiffs are eligible to receive those community-based services and certified residential
`
`opportunities, Defendants have failed to provide such services and opportunities to Plaintiffs,
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`which has resulted in their long-term wrongful confinement to institutional settings.
`
`5.
`
`Defendants have also failed to provide Plaintiffs with their statutorily guaranteed
`
`right to a fair hearing, triggered by their failure to provide Plaintiffs with a meaningful opportunity
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`to choose appropriate certified residential opportunities and HCBS Waiver services as opposed to
`
`institutionalization.
`
`2
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`6.
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`Defendants have failed to develop an adequate method to administer certified
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`community-based residential opportunities and HCBS Waiver services. Instead, Defendants have
`
`adopted a practice of requesting that certified residential opportunity providers voluntarily agree
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`to provide placements to eligible individuals, rather than incentivizing or compelling providers to
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`do so. This practice has resulted in a crisis of needless and widespread long-term
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`institutionalization.
`
`7.
`
`Plaintiffs bring this action on behalf of themselves and all individuals similarly
`
`situated to obtain declaratory and injunctive relief compelling Defendants to fulfill their statutory
`
`obligations and allow Plaintiffs and all members of the putative class to be placed in residential
`
`alternatives to their current institutional confinement and live their best lives in the community.
`
`8.
`
`Information obtained under the New York Freedom of Information Law (“FOIL”)
`
`reveals that Plaintiffs are far from alone in their circumstances; to the contrary, thousands of
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`similarly-eligible individuals with developmental disabilities have been denied certified residential
`
`opportunities and HCBS Waiver services, which has left them confined to institutional settings
`
`indefinitely without an opportunity to challenge their confinement. These individuals have
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`languished in institutional settings for unreasonably long periods of time, with some—such as
`
`Plaintiff H.L.—remaining institutionalized while waiting more than six years for a certified
`
`residential opportunity and HCBS Waiver services.
`
`9.
`
`As detailed herein, Defendants’ failure to provide certified residential opportunities
`
`and HCBS Waiver services to Plaintiffs and all persons similarly situated violates the Medicaid
`
`Act, 42 U.S.C. § 1396 et seq.; Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101
`
`et seq.; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
`
`3
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`10.
`
`Plaintiffs seek to ensure that people with developmental disabilities are not
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`unnecessarily institutionalized, but instead can be transferred to certified residential opportunities
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`where they can live fuller lives and receive the panoply of HCBS Waiver services to which they
`
`are entitled.
`
`I.
`
`PLAINTIFFS
`
`PARTIES
`
`11.
`
`Plaintiff T.C. is a 21-year-old man who is hospitalized at North Central Bronx
`
`Hospital in Bronx, New York while awaiting access to community-based residential opportunities
`
`and HCBS Waiver services. He is diagnosed with autism spectrum disorder and moderate
`
`intellectual disability and is a qualified individual with a disability. T.C. is a Medicaid recipient
`
`approved by OPWDD to receive HCBS Waiver services. He brings this action by his next friend
`
`D.S. who is his legal guardian.
`
`12.
`
`Plaintiff A.H. is a 23-year-old woman who is hospitalized at Montefiore Hospital
`
`in Bronx, New York while awaiting access to community-based residential opportunities and
`
`HCBS Waiver services. She is diagnosed with autism spectrum disorder and moderate intellectual
`
`disability and is a qualified individual with a disability. A.H. is a Medicaid recipient approved by
`
`OPWDD to receive HCBS Waiver services. She brings this action by her next friend E.H. who is
`
`her grandmother.
`
`13.
`
`Plaintiff R.D. is a 29-year-old woman who is currently living at Northeast
`
`Rehabilitation Center in Lake Katrine, New York while awaiting access to community-based
`
`residential opportunities and HCBS Waiver services. She is diagnosed with a traumatic brain
`
`injury, mild intellectual disability, mood disorder, and anxiety, and is a qualified individual with a
`
`disability. R.D. is a Medicaid recipient approved by OPWDD to receive HCBS Waiver services.
`
`She brings this action by her next friend M.D. who is her legal guardian.
`
`4
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`

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`14.
`
`Plaintiff J.D. is a 38-year-old man who is currently living at Northeast
`
`Rehabilitation Center in Lake Katrine, New York while awaiting access to community-based
`
`residential opportunities and HCBS Waiver services. He is diagnosed with traumatic brain injury
`
`and is a qualified individual with a disability. J.D. is a Medicaid recipient approved by OPWDD
`
`to receive HCBS Waiver services. He brings this action by his next friend D.D. who is his legal
`
`guardian.
`
`15.
`
`Plaintiff H.L. is a 57-year-old man who is currently living at Sunmount
`
`Developmental Center in Tupper Lake, New York (“Sunmount”) while awaiting access to
`
`community-based residential opportunities and HCBS Waiver services. He is diagnosed with
`
`bipolar disorder, autism spectrum disorder, mild intellectual disability, is deaf, and is a qualified
`
`individual with a disability. H.L is a Medicaid recipient approved by OPWDD to receive HCBS
`
`Waiver services.
`
`16.
`
`Plaintiff A.B. is a 28-year-old man who is currently living at Sunmount while
`
`awaiting access to community-based residential opportunities and HCBS Waiver services. He is
`
`diagnosed with mild intellectual disability, schizophrenia, autism spectrum disorder, and a
`
`provisional diagnosis of Post-Traumatic Stress Disorder, and is a qualified individual with a
`
`disability. A.B. is a Medicaid recipient approved by OPWDD to receive HCBS Waiver services.
`
`17.
`
`Plaintiff J.S. is a 25-year-old man who is currently living at Sunmount while
`
`awaiting access to community-based residential opportunities and HCBS Waiver services. He is
`
`diagnosed with autism spectrum disorder and diabetes and is a qualified individual with a
`
`disability. J.S. is a Medicaid recipient approved by OPWDD to receive HCBS Waiver services.
`
`18.
`
`Plaintiff M.L. is a 32-year-old woman who is currently living at Sunmount while
`
`awaiting access to community-based residential opportunities and HCBS Waiver services. She is
`
`5
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`Case 1:22-cv-05045 Document 1 Filed 06/16/22 Page 6 of 52
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`diagnosed with mild intellectual disability, childhood traumatic brain injury, bipolar disorder, post-
`
`traumatic stress disorder and borderline personality disorder. M.L is a Medicaid recipient
`
`approved by OPWDD to receive HCBS Waiver services.
`
`19.
`
`Plaintiff Disability Advocates, Inc., is an independent corporation organized under
`
`the laws of the State of New York, and maintains an office at 25 Chapel Street, Brooklyn, New
`
`York 11201. Disability Advocates, Inc. is authorized to conduct business under the name
`
`Disability Rights New York (“DRNY”).
`
`20.
`
`DRNY is a Protection and Advocacy system, as that term is defined under the
`
`Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15041 et seq., the
`
`Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. § 10801 et
`
`seq., and the Protection and Advocacy of Individual Rights Act, 29 U.S.C. § 794e et seq. As New
`
`York State’s Protection & Advocacy system, DRNY is specifically authorized to pursue legal,
`
`administrative, and other appropriate remedies or approaches to ensure the protection of, and
`
`advocacy for, the rights of individuals with disabilities.
`
`21.
`
`Pursuant to the authority vested in it by Congress to file claims of abuse, neglect,
`
`and rights violations on behalf of individuals with disabilities, DRNY brings claims on behalf of
`
`individuals with disabilities, including the individuals named herein, whose rights have been
`
`violated pursuant to the Medicaid Act, 42 U.S.C. § 1396 et seq.; Title II of the Americans with
`
`Disabilities Act, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
`
`II.
`
`DEFENDANTS
`
`22.
`
`Defendant DOH is an agency of the State of New York, which maintains an office
`
`at 90 Church Street - 14th Floor New York, NY 10007-2919. DOH is a public entity as defined
`
`by 42 U.S.C § 12131(1)(A) and is a recipient of federal funds.
`
`6
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`23.
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`Defendant Mary T. Bassett is the Commissioner of DOH, with all powers and duties
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`set forth in and otherwise prescribed by law, statutes, rules and regulations. Commissioner Bassett
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`is responsible for the operation and administration of DOH, including oversight over the HCBS
`
`Waiver services administered by OPWDD, and is sued in her official capacity as Commissioner
`
`of DOH.
`
`24.
`
`Defendant OPWDD is an agency of the State of New York, which maintains an
`
`office at 2400 Halsey Street, Bronx, New York 10461. OPWDD is a public entity as defined by
`
`42 U.S.C. § 1231(1)(B) and is a recipient of federal funds.
`
`25.
`
`Defendant Kerri Neifeld is the Commissioner of OPWDD, with all powers and
`
`duties set forth in Mental Hygiene Law § 13.09 and otherwise prescribed by law, statutes, rules
`
`and regulations. Commissioner Neifeld is responsible for the operation and administration of
`
`OPWDD, including its planning, programs and services for individuals with disabilities in New
`
`York, and is sued in her official capacity.
`
`JURISDICTION AND VENUE
`
`26.
`
`This Court has jurisdiction over the subject matter of this action pursuant to 28
`
`U.S.C. §§ 1331 and 1343(a)(3). This action is authorized by 42 U.S.C. § 1983 as an action seeking
`
`redress of the deprivation of statutory and Constitutional rights under color of law. It is also
`
`authorized by the Medicaid Act, 42 U.S.C. § 1396 et seq., the Americans with Disabilities Act, 42
`
`U.S.C. § 12101, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794a(2), as an action
`
`seeking redress for discrimination on the basis of disability.
`
`27.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because Defendants
`
`perform their official duties by and through offices within this District and thus reside therein, and
`
`a substantial part of the events and omissions giving rise to the claims herein occurred in this
`
`District. Two of the Plaintiffs are currently hospitalized in this District.
`7
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`I.
`
`MANDATES OF THE MEDICAID PROGRAM
`
`LEGAL FRAMEWORK
`
`28. Medicaid is a joint federal-state program established under the Medicaid Act in
`
`order to ensure that rehabilitation, medical care, nursing, and other services are provided to low-
`
`income individuals who are unable to pay for such care. 42 U.S.C. § 1396 et seq.
`
`29.
`
`States may choose whether to participate in the Medicaid program. However, once
`
`a State has chosen to participate in the Medicaid program, it must comply with all requirements
`
`set out in federal statutes and regulations to be eligible for federal funds. 42 U.S.C. §§ 1396a,
`
`1396c.
`
`30.
`
`As detailed below and as relevant to the dispute here, these requirements include
`
`the obligation to (i) provide “medical assistance” with “reasonable promptness to all eligible
`
`individuals,” (ii) provide an administrative fair hearing whenever a claim for medical assistance is
`
`denied or not acted upon with reasonable promptness, (iii) identify a single state agency to
`
`administer Medicaid programs, (iv) administer Medicaid programs pursuant to a federally-
`
`approved plan, and (v) where a State has elected to designate HCBS Waiver services as “medical
`
`assistance,” comply with related federal regulatory requirements for that program.
`
`31.
`
`First, states must provide “medical assistance” with “reasonable promptness to all
`
`eligible individuals.” 42 U.S.C. § 1396a(a)(8).
`
`32.
`
`This requirement obligates entities such as DOH and OPWDD to furnish services
`
`without any delay caused by the agency’s administrative procedures. 42 C.F.R. § 435.930.
`
`33.
`
`Federal regulations require that the determination of eligibility for any applicant
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`may not exceed ninety days for applicants who apply for Medicaid on the basis of disability. 42
`
`CFR § 435.912(3).
`
`8
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`34.
`
`The Centers for Medicare and Medicaid Services (“CMS”) has issued guidance on
`
`the reasonable promptness standard. CMS’ guidance states:
`
`the promptness with which a State must provide a needed and covered waiver
`service must be governed by a test of reasonableness. The urgency of an
`individual’s need, the health and welfare concerns of the individual, the nature of
`the services required, the potential need to increase the supply of providers, the
`availability of similar or alternative services, and similar variables merit
`consideration in such a test of reasonableness. The complexity of ‘reasonable
`promptness’ issues may be particularly evident when a change of living
`arrangement is required. Where the need for such a change is very urgent (e.g., as
`in the case of abuse in a person's current living arrangement), then ‘reasonable
`promptness’ could mean ‘immediate.’
`
`Department of Health and Human Services Olmstead Update #4, available at
`
`https://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/smd011001a.pdf.
`
`35.
`
`Second, federal law mandates that Medicaid recipients have the right to an
`
`administrative fair hearing whenever their claim for medical assistance is denied or not acted upon
`
`with reasonable promptness. 42 U.S.C. § 1396a(a)(3).
`
`36.
`
`New York is required to provide the opportunity for a fair hearing to any individuals
`
`“who are not given the choice of home and community-based services as an alternative to the
`
`institutional
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`care.”
`
` See HCBS Waiver Application, page 219, available at
`
`https://opwdd.ny.gov/system/files/documents/2021/06/cms-approved-7-1-21-amendment.pdf.
`
`37.
`
`Third, federal law requires participating states to administer their Medicaid
`
`programs through a “single state agency.” 42 U.S.C. § 1396a(a)(5).
`
`38. While the single state agency may delegate certain functions, it is prohibited from
`
`delegating “the authority to supervise the plan or to develop or issue policies, rules, and regulations
`
`on program matters.” 42 C.F.R. § 431.10(c), (e).
`
`39.
`
`In New York State, DOH acts as the “single state agency” for administering
`
`Medicaid programs. N.Y. Soc. Serv. L. § 363-a(1).
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`40.
`
`Fourth, participating states must administer the Medicaid program according to a
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`plan that has been federally approved. 42 C.F.R. §§ 430.12, 430.14.
`
`41.
`
`Fifth, where a State has elected to designate HCBS Waiver services as “medical
`
`assistance,” it is obligated to comply with related federal requirements for that program. New
`
`York has made such an election. 42 U.S.C. § 1396n et seq.
`
`42.
`
`One such requirement is that participating states must inform individuals who are
`
`eligible for the HCBS Waiver program of the “feasible alternatives” to institutional care and give
`
`such individuals the opportunity to choose such alternatives. 42 U.S.C. § 1396n(c)(2)(C), 42
`
`C.F.R. § 441.302(d).
`
`II.
`
`NEW YORK’S HCBS WAIVER PROGRAM
`
`43.
`
`The HCBS Waiver program was created through Congress’ 1981 addition of
`
`Section 1915(c) to the Social Security Act, which permitted the Secretary of the Department of
`
`Health and Human Services to waive certain Medicaid requirements for States receiving federal
`
`funding in order to enable the development of specialized community-based programs and services
`
`for people with intellectual and developmental disabilities, among others. 42 U.S.C. § 1396n.
`
`44.
`
`The purpose of the HCBS Waiver program is to encourage States to provide
`
`community-based supports and services to ensure that people with disabilities are not
`
`unnecessarily institutionalized or segregated. See 42 C.F.R. 440.180.
`
`45.
`
`Because
`
`the point of
`
`the HCBS Waiver
`
`is
`
`to prevent unnecessary
`
`institutionalization, to be eligible, a Medicaid recipient must be determined to require the level of
`
`care provided in a hospital, nursing home, or ICF. 42 U.S.C. § 1396n(c)(1).
`
`46.
`
`Likewise, HCBS Waiver services cannot be furnished to individuals who are
`
`inpatients of a hospital, nursing facility or an intermediate care facility for individuals with
`
`intellectual disabilities (“ICF/IID”). 42 C.F.R. § 441.301(b)(1)(ii).
`10
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`47.
`
`To participate in the HCBS Waiver, states must provide necessary safeguards to
`
`protect the health and welfare of individuals provided services thereunder. 42 U.S.C.
`
`§ 1396n(c)(2)(A).
`
`48.
`
`New York has adopted the HCBS Waiver program, which provides Plaintiffs
`
`numerous rights under federal law and places numerous obligations on DOH and OPWDD
`
`concerning Plaintiffs’ requests to access that program.
`
`49.
`
`In its application for the HCBS Waiver program, New York State documented its
`
`assurance that it would provide to all individuals determined eligible for institutional care, “the
`
`choice of either institutional or home and community-based waiver services.” HCBS Waiver
`
`Application, page 8.
`
`50.
`
`In New York State, HCBS Waiver services include, among other things, case
`
`management services, habilitation services, prevocational services, supported employment
`
`services, environmental modifications, adaptive technologies, respite services, pathways to
`
`employment, and community transition services. 14 N.Y.C.R.R. § 635-10.4.
`
`51.
`
`These services are necessary for individuals with developmental disabilities, such
`
`as Plaintiffs, to live successfully in community settings.
`
`52.
`
`In New York State, the intent of HCBS Waiver services is to create an
`
`individualized service environment meeting the person’s needs, preferences, and personal goals.
`
`The individualized service environment, in turn, provides the supports or services necessary to
`
`enable a person with a developmental disability to live, work, socialize, and participate in the
`
`community. 14 N.Y.C.R.R. § 635-10.2(a).
`
`53.
`
`In order to establish eligibility for HCBS Waiver services in New York State, an
`
`individual must document that they are an individual who: (a) has a diagnosis of developmental
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`disability; (b) is eligible for ICF/IID level of care (i.e., placement in an ICF/IID); (c) is an enrolled
`
`Medicaid recipient or is eligible for enrollment; (d) exercised freedom of choice between receipt
`
`of waiver services or placement in an ICF/IID; and (e) will reside in an appropriate living
`
`arrangement (i.e., his/her own home or that of relatives, a supervised or supportive community
`
`residence, a certified Individualized Residential Alternative (“IRA”), or in a certified family care
`
`home) at the time of enrollment. A person may not reside in an ICF/IID, or if he or she has resided
`
`in an ICF/IID (including a developmental center), he or she must be fully discharged from that
`
`setting prior to receipt of HCBS Waiver services. 14 N.Y.C.R.R. § 635-10.3(b).
`
`54.
`
`Each individual who is approved for participation in the HCBS Waiver must be
`
`“assisted by a specific case manager” who is responsible for working with the individual to create
`
`and sustain an “individualized service environment.” 14 N.Y.C.R.R. § 635-10.4(a)(1), (2).
`
`55.
`
`New York State does not limit or cap the number of individuals it is able to serve
`
`with HCBS Waiver services in any given year. HCBS Waiver Application, p. 19.
`
`56.
`
`As the designated single state agency for the administration of Medicaid in New
`
`York, DOH remains responsible for the oversight of OPWDD’s operation of the HCBS Waiver
`
`program.
`
`57.
`
`DOH and OPWDD have entered into a Memorandum of Understanding (“MOU”)
`
`governing the administration and operation of the HCBS Waiver program. The MOU establishes
`
`that “OPWDD maintains the successful day-to-day operation of the HCBS Waiver, while DOH,
`
`as the oversight agency, is responsible for evaluating OPWDD’s performance in accomplishing its
`
`operational and administrative functions.” HCBS Waiver Application, p. 2.
`
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`58.
`
`New York is also required to provide the opportunity for a fair hearing to any
`
`individuals “who are not given the choice of home and community-based services as an alternative
`
`to the institutional care.” HCBS Waiver Application, page 219.
`
`59.
`
`DOH is responsible for the system of administrative fair hearings which exists in
`
`part to adjudicate any disputes related to eligibility for HBCS Waiver Services.
`
`60.
`
`DOH establishes the monetary rates payable from Medicaid funds for HCBS
`
`Waiver services.
`
`61.
`
`DOH establishes monetary caps on HCBS Waiver services based on an individual’s
`
`functional ability and needs.
`
`62.
`
`Both OPWDD and DOH are responsible for the lawful administration of the HCBS
`
`Waiver program in New York as a condition of receipt of federal Medicaid funds.
`
`III.
`
`THE AMERICANS WITH DISABILITIES ACT, THE REHABILITATION ACT,
`AND THE INTEGRATION MANDATE
`
`63.
`
`Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12131 et seq.,
`
`provides 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.
`
`64.
`
`Implementing regulations for Title II of the ADA require 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).
`
`65.
`
`The ADA defines a “public entity” as “any department, agency, special purpose
`
`district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B).
`
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`66.
`
`DOH and OPWDD are public entities subject to the requirements of Title II of the
`
`ADA and, therefore, HCBS Waiver services must be provided in the most integrated setting
`
`appropriate to an individual’s needs.
`
`67.
`
`Additionally, “a public entity may not, directly or through contractual or other
`
`arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting
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`qualified individuals with disabilities to discrimination on the basis of disability; or (ii) That have
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`the purpose or effect of defeating or substantially impairing accomplishment of the objectives of
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`the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3).
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`68.
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`Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, imposes identical
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`requirements on programs and activities that receive federal financial assistance. See, e.g., 45
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`C.F.R. § 84.4(b)(2) (“most integrated setting” regulation).
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`69. Medicaid is subject to the requirements of Section 504 of the Rehabilitation Act
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`because it is a federally funded program. 42 U.S.C. § 1396-1.
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`70.
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`Because “unjustified institutional isolation of persons with disabilities is a form of
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`discrimination,” the Rehabilitation Act requires that individuals with disabilities receive public
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`services in the most integrated settings appropriate. 28 C.F.R. §§ 41.51(d), 84.4(b)(2).
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`71.
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`In 1999, the Supreme Court of the United States decided Olmstead v. L.C., 527 U.S.
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`581 (1999), which held that “unjustified institutional isolation of persons with disabilities is a form
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`of discrimination.” Id. at 597, 600-02.
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`72.
`
`The combined requirements of the ADA, Section 504 of the Rehabilitation Act, and
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`Olmstead are often referred to as the “integration mandate.”
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`73.
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`An “integrated setting” is one that “enables individuals with disabilities to interact
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`with nondisabled persons to the fullest extent possible.” 28 C.F.R. part 35, App. B.
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`Case 1:22-cv-05045 Document 1 Filed 06/16/22 Page 15 of 52
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`74.
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`The Department of Justice has further defined “segregated settings” under
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`Olmstead as having the “qualities of an institutional nature” and include, but are not limited to:
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`(1) congregate settings populated exclusively or primarily with individuals with disabilities;
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`(2) congregate settings characterized by regimentation in daily activities, lack of privacy or
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`autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely in community
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`activities and to manage their own activities of daily living; or (3) settings that provide for daytime
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`activities primarily with other individuals with disabilities.
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`75.
`
`As a result of the Supreme Court’s decision in Olmstead, New York State
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`developed an “Olmstead Plan” which “identifies specific actions state agencies responsible for
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`providing services to people with disabilities will take to serve people with disabilities in the most
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`integrated setting.” Report and Recommendations of the Olmstead Cabinet, available at
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`https://www.ny.gov/sites/default/files/atoms/files/Olmstead_Final_Report_2013.pdf.
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`76.
`
`The United States Department of Justice has defined what an Olmstead Plan is in
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`the following way:
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`An Olmstead plan is a public entity’s plan for implementing its obligation to
`provide individuals with disabilities opportunities to live, work, and be served in
`integrated settings. A comprehensive, effectively working plan must do more than
`provide vague assurances of future integrated options or describe the entity’s
`general history of increased funding for community services and decreased
`institutional populations. Instead, it must reflect an analysis of the extent to which
`the public entity is providing services in the most integrated setting and must
`contain concrete and reliable commitments to expand integrated opportunities. The
`plan must have specific and reasonable timeframes and measurable goals for which
`the public entity may be held accountable, and there must be funding to support the
`plan, which may come from reallocating existing service dollars. The plan should
`include commitments for each group of persons who are unnecessarily segregated,
`such as individuals residing in facilities for individuals with developmental
`disabilities, psychiatric hospitals, nursing homes and board and care homes, or
`individuals spending their days in sheltered workshops or segregated day
`programs. To be effective, the plan must have demonstrated success in actually
`moving individuals to integrated settings in accordance with the plan. A public
`entity cannot rely on its Olmstead plan as part of its defense unless it can prove that
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`Case 1:22-cv-05045 Document 1 Filed 06/16/22 Page 16 of 52
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`its plan comprehensively and effectively addresses the needless segregation of the
`group at issue in the case. Any plan should be evaluated in light of the length of
`time that has passed since the Supreme Court’s decision in Olmstead, including a
`fact-specific inquiry into what the public entity could have accomplished in the past
`and what it could accomplish in the future.
`
`See Statement of the Department of Justice on Enforcement of the Integration Mandate of
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`Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at
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`https://www.ada.gov/olmstead/q&a_olmstead.htm.
`
`FACTS
`
`I.
`
`THE HCBS WAIVER SERVICES CRISIS FOR PEOPLE WITH
`DEVELOPMENTAL DISABILITIES IN NEW YORK
`
`77.
`
`DOH and OPWDD’s mismanagement of the HCBS Waiver program has led to a
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`crisis for people with developmental disabilities in New York who must rely on HCBS Waiver
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`services to live in the community, including Plaintiffs.
`
`A.
`
`The Crisis For The Named Plaintiffs
`
`1.
`
`Plaintiff T.C.
`
`78.
`
`79.
`
`T.C. is a 21-year-old man who is a resident of New York State.
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`T.C. wants to live in a community-based home where he can receive the services
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`he needs to maximize his independence.
`
`80.
`
`T.C. is autistic and has a moderate intellectual disability and is unable to care for
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`himself without significant assistance.
`
`81.
`
`T.C. knows approximately 5-10 words, and otherwise uses basic signs and gestures,
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`body language, and vocalizations to communicate his wants and needs.
`
`82.
`
`T.C. also has a sensory processing disorder and can exhibit impulsive and
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`challenging behaviors when there are sudden changes in his routine or environment.
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`Case 1:22-cv-05045 Document 1 Filed 06/16/22 Page 17 of 52
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`83.
`
`Because he sometimes engages in unsafe behaviors, T.C. needs to be supervised 24
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`hours per day.
`
`84.
`
`Before December 10, 2021, T.C. lived with his mother, D.S., in their home in
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`Bronx, New York. D.S, his next friend, is his legal guardian.
`
`85.
`
`On December 10, 2021, T.C. exhibited a behavioral episode prompting D.S. to
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`bring him to North Central Bronx Hospital.
`
`86.
`
`North Central Bronx Hospital is a medical institution as defined by 42 C.F.R. §
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`435.1010.
`
`87.
`
`88.
`
`T.C. has remained in the hospital since his admission on December 10, 2021.
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`T.C.’s treatment team at the hospital determined that he was ready for discharge
`
`app