AMENDED DECISION/ORDER/JUDGMENT In this proceeding, the Petitioner Oceanview Home for Adults, Inc., d/b/a Oceanview Manor (“Oceanview”) challenges certain regulations (“Challenged Regulations”) promulgated by the Respondent Howard Zucker, M.D., in his capacity as Commissioner of the New York State Department of Health (“Respondent”), as violating, and causing Oceanview to violate, the Federal Fair Housing Act as amended (“FHAA”).1 Oceanview, a transitional adult home as defined under the Challenged Regulations, asserts that the Challenged Regulations are preempted by the FHAA because they discriminate, and cause Oceanview to discriminate, against individuals with a serious mental illness. Specifically, Oceanview alleges that the Challenged Regulations unlawfully impose a quota on the number of residents with a serious mental illness who may reside in a transitional adult home and unlawfully prohibit it from admitting an individual with a serious mental illness into its facility when doing so would cause it to exceed that quota. The Respondent contends that any discrimination against individuals with a serious mental illness benefits those individuals as a matter of public health because large congregate settings — e.g, transitional adult homes — do not promote their recovery. The Respondent also proffers that the Challenged Regulations fulfill the State’s obligations under the Americans with Disabilities Act (“ADA”) and the United States Supreme Court’s holding in Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999) (“Olmstead”), known as the Olmstead mandate. The Challenged Regulations, the Respondent contends, are lawful under the FHAA since they further, in theory and in practice, these bona fide governmental interests and are narrowly tailored to achieve these interests. Trial commenced on June 5, 2019 and continued over eighteen non-consecutive days. Numerous witnesses testified on behalf of each party, and hundreds of pages of exhibits were received into evidence. The Court also took judicial notice of certain facts and records as set forth in its decision and order dated September 24, 2019. Following trial, the parties submitted proposed findings of fact and conclusions of law together with supporting memoranda. Subsequently, on August 31, 2022, the Court opened the record for the receipt of additional evidence from both parties. The Court has carefully and thoroughly considered the evidence presented at trial as well as the arguments proffered by the parties in support of their respective positions. Summary Some decades ago, it was common and accepted practice by the State to confine people to institutions because of their mental health diagnoses and attendant behaviors. Through advocacy of these individuals and numerous groups on their behalf, the desegregation of the mentally ill in these institutions has, over time, resulted in their transition out of these facilities into the community. One housing option that developed following desegregation is the adult home, which provides long-term housing with assistance to its residents. Adult homes are found throughout the State, with many located in the greater New York City area. Oceanview is a privately-owned and operated adult care facility located at the Coney Island boardwalk in Brooklyn, New York. Oceanview is licensed by the New York State Department of Health (“DOH”) to house up to 176 adults. Many of its residents have a mental illness, such as schizophrenia, depression, and bipolar disorder. Many residents need some form of assistance — but not continuous nursing care, such as that provided by a nursing home — for their mental illness. Many residents require assistance not for a mental illness, but for other, physical conditions. The Respondent claims that adult homes such as Oceanview — now classified as “transitional adult homes” under the Challenged Regulations — are “institutions” or “institutional” in nature due to their size and the number of their residents having a serious mental illness. The Challenged Regulations are claimed to ameliorate this aspect of transitional adult homes in two ways: first, by imposing a quota upon the number of residents with a serious mental illness who may live in a transitional adult home, and second, by precluding persons with a serious mental illness from obtaining housing in a transitional adult home. According to the Respondent, community integration of persons with a serious mental illness fosters their recovery and improves their life circumstances. The Challenged Regulations divert such persons away from institutions and into alternative settings that are more integrated in the community and consequently more conducive to their recovery. Yet transitional adult homes such as Oceanview are not “institutions” for purposes of Title II of the ADA or as addressed by the Supreme Court in Olmstead when it construed Title II of the ADA and its attendant regulations. Adult homes, including transitional adult homes, are not owned, established, or operated by the State. None of the residents living in transitional adult homes are committed to or confined there against their will by the State. Rather, residents of transitional adult homes live in a setting far less restrictive than those of nursing homes and state psychiatric hospitals. Nor are transitional adult homes “institution-like.” Residents of transitional adult homes are free to come and go as they wish, and to leave altogether for other housing. Residents may seek and obtain medical treatment wherever they wish, both on site and in the community. Transitional adult homes such as Oceanview that are certified by DOH for assisted living programs (“ALPs”) receive Medicaid funding pursuant to the Federal Home and Community Based Services waiver program (“HCBS”). Oceanview, and other similar adult homes, meet the certification criteria because their housing facilities are home-like and located in a community setting. By virtue of their certifications, they are not “institutional” or “institution-like.” The Challenged Regulations are said to promote the dignity of people with a serious mental illness by discouraging their placement in transitional adult homes. The Respondent advances the theory that institutions such as transitional adult homes do not promote the recovery of the seriously mental ill. This theory is not apt because Oceanview’s housing does promote “recovery” as it was defined at trial by the Respondent’s witnesses. The Respondent put forth no empirical or factually based evidence in support of its claimed benefit of the Regulations’ limitations on the admission of people with a serious mental illness to transitional adult homes. The Respondent, in fact, provided absolutely no data to support its theory that people with a serious mental illness do not have good potential for recovery in transitional adult homes. No witness involved with the development of the Regulations could point to any literature, study, statistic, or other data that compared outcomes of people with a serious mental illness who live in transitional adult homes, such as Oceanview, to outcomes of those who do not. The Respondent also failed to address the benefit of transitional adult homes with ALPs for people with a serious mental illness having comorbidities (people with a serious mental illness having physical limitations requiring assistance that an adult home can provide). In no housing setting other than transitional adult homes — including nursing homes, homeless shelters, psychiatric hospitals, private apartment buildings — does the Respondent or other arm of State government limit housing choices for people with a serious mental illness. The Respondent also asserts that the Challenged Regulations fulfill the State’s integration mandate under Olmstead and the ADA by directing persons with a serious mental illness towards other housing alternatives in the community. However, the Challenged Regulations are not necessary for compliance with Olmstead, nor are they narrowly tailored to suit individuals’ particular needs. New York State is the only state whose response to Olmstead was to restrict a seriously mentally ill person’s choice of housing. No evidence was presented to demonstrate that persons with a serious mental illness were, in fact, diverted to settings more conducive to their needs because of the implementation of the Challenged Regulations. The Respondent has determined that transitional adult homes such as Oceanview are “institutional” and do not promote the dignity or recovery of people with a serious mental illness. The Court finds, to the contrary, based upon the credible proof, that transitional adult homes including Oceanview do not lack the indices of community integration, and the community integration of people with a serious mental illness is the stated purpose of the Challenged Regulations. The Challenged Regulations do deny persons with a serious mental illness the ability to decide which housing arrangement best suits their individual needs. For the reasons explained below, the Court concludes that the Challenged Regulations discriminate, and cause transitional adult homes like Oceanview to discriminate, against individuals with a serious mental illness by denying them their choice of housing solely due to their having a serious mental illness. The Court finds and declares the Challenged Regulations at 18 NYCRR §§487.2(c), 487.4 (c), (h), 487.10(3) and 487.13 to violate, and to be therefore preempted by, the FHAA, and accordingly they are hereby annulled. The Respondent and the Department of Health are immediately and permanently enjoined from enforcing the Challenged Regulations. Findings of Fact The following witnesses (listed alphabetically) testified for the Petitioner: Dr. Jeffrey L. Geller, a board-certified psychiatrist serving as Medical Director of the Worcester Recovery Center Hospital in Massachusetts Nancy Leveille, Executive Director of the Foundation of Quality Care of the New York State Health Facilities Association David Nikic, a licensed practical nurse and regional administrator for adult care management and former administrator at the Eliot at Erie Station adult home Kenneth Przyjemski, resident of Surfside Manor Adult Home Lisa Vider, administrator of Oceanview Home for Adults Dr. Gregory Werner, chiropractor Dr. Peyman Younesi, a physician board-certified in internal medicine serving as nursing home medical director and treating physician for adult home residents In support of its case the Respondent called the following individuals (listed alphabetically): Rebecca Briney, Director of Community Integration with the New York State Office of Mental Health Dr. Lisa Dixon, board-certified psychiatrist, professor of psychiatry at Columbia Vagelos School of Medicine, and Director of the Center for Practice Innovations Heidi Hayes, Acting Director of the Division of Adult Care Facilities and Assisted Living Surveillance with the New York State Department of Health Kevin M. Martone, licensed social worker (New Jersey) and Executive Director of the Technical Assistance Collaborative Dr. Lloyd Sederer, board-certified psychiatrist, distinguished psychiatrist advisor and former Chief Medical Officer with the New York State Office of Mental Health Valerie Deetz, who is employed by the New York State Department of Health and served as its Director for the Provision of Adult Care Facilities and Assisted Living, and Dr. Robert W. Myers, Senior Deputy Commissioner with the New York State Office of Mental Health, testified as witnesses for both parties. The Court makes the following findings of fact from the evidence produced at trial. I. The Parties Oceanview is a private, for-profit adult care housing facility located in Brooklyn, New York. Lisa Vider is Oceanview’s Administrator, having served in this capacity since 2009. Oceanview is certified for a total of 176 beds. Of these, 169 beds are certified for an Assisted Living Program (“ALP”) and the census for these ALP beds at the time of trial was 141. The Respondent serves as the Commissioner of DOH.2 In this capacity, the Respondent and DOH oversee the various residential care facilities including adult care facilities (see Social Services Law Ch. 55, article 7; 18 NYCRR Parts 485-487). The Respondent is responsible for promulgating regulations as authorized by statute (see Social Services Law §461). DOH enforces the Commissioner’s regulations, including the regulations challenged in this proceeding (see Social Services Law §461-a). II. Adult Homes An adult home is “an adult care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the operator” (18 NYCRR §487.2; see Social Services Law 461-b[1][b]). Adult homes are housing providers for individuals who are unable to live independently (see 18 NYCRR 485.2[a], [b]; see Carrier v. Salvation Army, 88 NY2d 298, 302 fn. 2 [1996])3 that are licensed, regulated and credentialed by DOH (see Social Services Law §§461 to 460-d; 18 NYCRR 485.5; 486.1).4 Adult homes may be certified for up to 200 beds (see 18 NYCRR §487.3[f][1]). This bed limitation does not apply to facilities approved for a larger capacity before September 1, 1984 (see 18 NYCRR §487.3[f][2]). Although broadly regulated by DOH, adult homes are neither owned nor operated by the State or any State agency. Rather, adult homes are privately owned and operated adult care facilities (see Social Services Law §461-b). An adult home is not a medical facility. Adult homes are also not regulated by the New York State Office of Mental Health (“OMH”). Adult homes, however, must provide specified services to persons who are substantially unable to live independently on a long-term basis (see infra, Part IV). III. The Challenged Regulations The Challenged Regulations at 18 NYCRR §§487.2(c), 487.4(c), (h), 487.10(e)(3) and 487.13 apply to adult homes with a capacity exceeding 80 beds and limit, in an adult home of such size, the number of residents having a serious mental illness to no more than 25 per cent of the resident population. A. Origins of the Challenged Regulations The origin of the Challenged Regulations can be traced to a 2003 action commenced in Federal court called Disability Advocates, Inc. v. Paterson (03-CV-3209)(“DAI”)5, commenced approximately four years after the Supreme Court issued its decision in Olmstead. In DAI the plaintiff alleged that its constituents were segregated in large adult homes in New York City but were qualified to live in supported housing, a community alternative with services.6 Following a lengthy bench trial, the Federal district court determined that the defendants — including former Governor Paterson, DOH, OMH and their respective commissioners — violated the ADA’s integration mandate and found that their actions in administering the State’s mental health system resulted in the unjustified segregation of DAI’s constituents in large adult homes. In April 2012, the district court’s judgment and order in DAI were vacated by the Second Circuit Court of Appeals for DAI’s lack of standing. The Second Circuit dismissed the case for lack of jurisdiction due to the belated intervention of the United States.7 Because of the dismissal on procedural grounds, the court did not reach other arguments advanced by the defendants. The Second Circuit did note that it was “mindful of the possibility that this litigation will continue” and expressed its hope that “an appropriate, efficient resolution” that would “consider an appropriate remedy” could be facilitated in such event (Disability Advocates, Inc., 675 F.3d at 162). To be sure, the DOJ, as well as another class of individuals known as O’Toole, pursued nearly identical claims against the State soon after DAI’s dismissal. Sometime prior to August 2012, the State was involved in negotiations with the DOJ about settling the Federal government’s claims. These negotiations included discussions about potential regulations applicable to large adult homes that would become known as “transitional adult homes.” How the Challenged Regulations would affect these “transitional adult homes” was discussed. The parties also talked about compliance with Olmstead. In August 2012 and October 2012, two clinical advisories were issued by OMH. They expressed that large adult homes meeting the definition of “transitional adult homes” were not conducive to the recovery of persons with a serious mental illness and were therefore clinically inappropriate. These clinical advisories formed the basis for the Challenged Regulations that were promulgated by the Respondent in January 2013. After the Regulations were issued, the State, DOJ and the O’Toole plaintiffs concluded settlement negotiations, culminating in what will be referred to as the O’Toole settlement. In the O’Toole settlement’s preamble, the parties reference OMH’s clinical advisory as well as the Challenged Regulations adopted by DOH in January 2013 restricting transitional adult homes from admitting persons with a serious mental illness. On July 23, 2013, both the United States DOJ and O’Toole parties filed their respective lawsuits against the State in Federal district court, together with a copy of the settlement agreement. In broad terms, the O’Toole settlement required, among other things, the State to fund a minimum number of supported housing units together with in-reach services, assessments, person-centered care planning and community services. These benefits were limited to “NYC Adult Home Residents” residing in a “NYC Impacted Adult Home,” meaning those adult homes with certified capacity of 120 or more beds and a mental health census of 25 percent or more of the resident population or 25 persons, whichever is less. A list of the twenty-three “NYC Impacted Adult Homes” in the appendix lists Oceanview as one of the affected adult homes. None of the negotiations included representatives from the impacted adult homes or any adult homes. The O’Toole settlement contained a provision in Section O, paragraph 1 requiring the parties to meet and confer in the event a court temporarily or permanently enjoined enforcement of the Challenged Regulations or invalidated them in whole or in part. In the event the parties were unable to reach an agreement after a period of 120 days, by operation of its terms the settlement would become null and void, and the parties would retain all rights to revive their respective claims and defenses in the litigation. Ms. Briney testified that she understood this provision to mean “if the regulations were impeded with in some way that the parties should discuss it to figure out if the settlement should be reconsidered in some manner.” At the time of making the agreement, the inclusion of this provision was very important to the State. Thereafter, a temporary restraining order was issued in a case entitled John Doe v. Howard Zucker, M.D., et al (Albany County Supreme Court, Index No. 7079/2016) which remained in effect from February 16, 2017, to January 4, 2019, temporarily enjoining enforcement of the Challenged Regulations. A second amended stipulation and order of settlement was then entered into by the parties in May, 2017. The language in Section O, paragraph 1 was removed in this document. The essence of the agreement, however, remained largely unchanged. Less than a year later, in March 2018, the parties entered into a “supplement” to the second amended stipulation and order of settlement. This supplement added an enhancement called a peer bridger program. Also, in paragraph 1 of Section G, the agreement was revised to cap members of the class entitled to the benefits under the agreement by limiting the class to those “NYC Adult Home Residents admitted to NYC Impacted Adult Homes on or before September 30, 2018 (the ‘Class Cap Date’)….” The parties agreed that “[i]ndividuals admitted to NYC Impacted Adult Homes after September 30, 2018 will not be entitled to the relief set forth in the Agreement and this Supplement, but the State will continue to make efforts to transition those individuals into Supported Housing as desired and appropriate.” Ms. Briney acknowledged that the O’Toole settlement limits the number of people who may become class members entitled to the benefits under the agreement. B. Promulgation of the Challenged Regulations On January 16, 2013, the Respondent promulgated and published the Challenged Regulations in the New York State Register. At the time they were published, the Respondent expressed that the Challenged Regulations fulfilled OMH’s “clinical determination that while mixed use, larger scale congregate housing is an important and viable form of community living, certain housing settings in which there are a significant number of individuals with a serious mental illness are not conducive to the recovery or rehabilitation of the residents.” According to the Respondent, limiting the number of residents with a serious mental illness in large adult homes would create a less segregated environment in such homes, thereby protecting the health and welfare of persons with mental disabilities and promoting integrated living. Additionally, the Respondent asserted that the Challenged Regulations would reduce institutional characteristics of large adult homes by requiring them to address resident needs, support independent living skills, and foster a home-like atmosphere. 1. Creation of Transitional Adult Homes The Challenged Regulations established a category of adult homes called “transitional adult homes” (see 18 NYCRR §487.13; NYS Register January 16, 2013).8 “Transitional adult homes” are defined as “an adult home with a certified capacity of 80 beds or more in which 25 percent or more of the resident population are persons with a serious mental illness as defined in section 487.2(c) of this Part” (18 NYCRR §487.13[b][1]). A “transitional adult home” did not exist prior to the Challenged Regu lations. At the time they were issued, the Challenged Regulations affected 49 adult homes due to their size and to having a mental health census of 25 percent or greater. Transitional adult homes represent less than 10 percent of all adult homes in New York. Most transitional adult homes are concentrated in the greater New York City metropolitan area.9 Oceanview qualifies as a “transitional adult home” because it is certified for more than 80 beds and, at the time of trial, more than 25 percent of its total resident population were persons who had a serious mental illness. 2. Persons with A Serious Mental Illness Cannot Obtain Housing in Transitional Adult Homes The Challenged Regulations prohibit a transitional adult home from admitting any person “whose admission will increase the mental health census of the facility” as set forth in 18 NYCRR §487.13 (see 18 NYCRR §487.4[d]). “Mental health census” means” the number of residents in a facility who are persons with a serious mental illness as defined in [18 NYCRR §487.2(c)]” (18 NYCRR §487.13[b][4]). In other words, under the Challenged Regulations, no more than 25 percent of a transitional adult home’s residents can be “persons with serious mental illness.” 3. Transitional Adult Homes Must Reduce the Number of Residents with A Serious Mental Illness to Less than 25 Percent of Their Resident Census To effect a reduction of a facility’s mental health census, the Challenged Regulations require all transitional adult homes to bring the facility’s mental health census to a level that is under 25 percent of the resident population over a reasonable period of time, through the lawful discharge of residents with appropriate community services to alternative community settings10…. (18 NYCRR §487.13[c]). Transitional adult homes must submit a compliance plan to DOH demonstrating how the facility will reduce its mental health census in accordance with the regulations (see 18 NYCRR §487.13[c]). DOH is authorized to impose a compliance plan upon an operator if one is not submitted by the adult home or if the plan submitted by the adult home is unacceptable (see 18 NYCRR §487.13[f][3]). When the Challenged Regulations were initially promulgated, DOH permitted transitional adult homes to apply for a waiver pending its acceptance of their compliance plans. Once compliance plans were accepted, DOH rescinded the waivers.11 If a transitional adult home complies with the Challenged Regulations by reducing its mental health census to less than 25 percent of its total resident population, that home is no longer considered a “transitional adult home” and may then resume admitting new residents with a serious mental illness. 4. The Challenged Regulations Apply Only to Persons with a Serious Mental Illness The Challenged Regulations apply only to individuals who have a “serious mental illness.” The Challenged Regulations define “[p]ersons with serious mental illness” as “individuals who meet criteria established by the commissioner of mental health, which shall be persons who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR, American Psychiatric Association, July 2000), and whose severity and duration of mental illness results in a substantial functional disability” (18 NYCRR §487.2[c]).12 A psychiatrist, physician, registered nurse, certified psychologist, or certified social worker approved by DOH in consultation with OMH and who is experienced with the assessment and treatment of mental illness must evaluate a prospective resident’s mental health history and current conditions, including whether the person has a serious mental illness (18 NYCRR §487.4[h]). On January 16, 2013, DOH issued a “Dear Adult Home Administrator” letter (“DAL”)13 advising adult homes about the Respondent’s new regulations and providing guidance about applying the definition of a “person with serious mental illness.” The guidance refers to and incorporates the new definition of serious mental illness; however, the guidance instructs that reference to the most current DSM should be made, noting that the DSM-IV was in effect when the Regulations were published. The DAL was intended to provide information outside of the Challenged Regulations regarding whether a mental illness qualifies as “serious”: A designated diagnosis of mental illness is “serious” if its severity and duration results in “substantial functional disability.” “Substantial functional disability” is defined in OMH supported housing guidelines as follows: Extended impairment in Functioning Due to Mental Illness: a) Documentation that the individual has experienced two of the following four functional limitations due to a designated mental illness over the past 12 months on a continuous or intermittent basis: i. Marked difficulties in self-care ii. Marked restriction of activities of daily living iii. Marked difficulties in maintaining social functioning iv. Frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner OR b) Reliance on Psychiatric Treatment, Rehabilitation and Supports A documented history shows that the individual at some prior time met the threshold for extended impairment in functioning due to mental illness, but the symptoms and/or functioning problems are currently attenuated by medication or psychiatric rehabilitation and supports. Medication refers to psychotropic medications which may control certain primary manifestations of mental disorder; e.g., hallucinations, but may or may not affect functional limitations imposed by the mental disorder. Generally, persons with a serious mental illness are individuals with a persistent mental illness requiring regular treatment over a period of time from a mental health services provider operated, licensed or funded by OMH or provided by a licensed mental health professional. Mild or episodic depression is unlikely to be a serious mental illness, but depression may be a serious mental illness if it results in a substantial functional disability. Although the January 16, 2013 DAL refers to “persistent mental illness requiring regular treatment over a period of time,” there is no definition of “a period of time” or for what length of time it represents. Ms. Deetz explained that the phrase is intended to mean persistent but acknowledged that the DAL guidance does not provide any explanation. 5. Transitional Adult Homes Must Screen Prospective Residents for A Serious Mental Illness Oceanview developed, in accordance with 18 NYCRR §487.4(g) and (h), an approved mental health evaluation form used in its admissions process for the sole purpose of screening persons to determine whether they are eligible for admission pursuant to the Challenged Regulations. Other transitional adult homes, such as The Eliot at Troy and The Eliot at Erie, use similar forms to ensure their compliance with the Challenged Regulations. 6. DOH Enforces the Challenged Regulations without Clinical Guidance When enforcing the regulations, DOH does not consult with OMH about whether a person has a diagnosis of a serious mental illness. Instead, DOH decides whether such person’s diagnosis meets the criteria of the condition as defined in the DSM-IV. DOH does not rely on an opinion rendered by a licensed professional. DOH dispatches surveyors who are contracted to work with DOH in enforcing the Challenged Regulations. Many of DOH’s survey staff are comprised of social workers and nurses. Oceanview was cited for violating the Challenged Regulations when it admitted persons who DOH asserted had a serious mental illness diagnoses. Oceanview, however, produced documentation from referred certifying sources that the persons did not have a serious mental illness but had diagnoses such as dementia, or who no longer had a mental illness, or who did not have a functional disability as the result of the mental illness. One such resident had a diagnosis of worsening dementia for which that person was taking Depakote for behavioral disturbances, although dementia is not considered a serious mental illness. Despite documentation, DOH cited Oceanview for violating the Challenged Regulations for admitting such persons. IV. Other Regulations Applicable to Adult Homes The following overview of statutes and regulations — applicable to all adult homes, including those qualifying as “transitional adult homes” under the Challenged Regulations — is relevant to the claims made by both parties. A. Admissions Process Adult home admissions are governed by 18 NYCRR §487.4. These regulations generally require the operator of an adult home to “admit, retain and care for only those individuals who do not require services beyond those the operator is permitted by law and regulation to provide” (18 NYCRR §487.4[a]). Every prospective resident must be interviewed by the adult home to ensure that the person meets admission standards and that his or her needs can be met by the adult home (18 NYCRR §487.4[g][2], [j]). The person must undergo a medical evaluation and, when appropriate, a mental health evaluation. Prior to admission, the treatment provider of the prospective resident must complete the mental health evaluation and the medical evaluation certifying that the person is appropriate for an adult home level of care (18 NYCRR §487.4[f], [g], [h] [3]). A medical evaluation must show that person is eligible for admission into an adult home and that the person does not require a nursing home level of care services or acute inpatient psychiatric treatment (see Social Services Law §461-c[6]). The person must need some assistance with an activity of daily living such as grooming, hygiene, dressing and bathing. Although people with medical conditions reside there, an adult home is not a medical facility; it is a housing facility that by law must provide certain supports. Individuals who, among other things, require continuous medical or nursing care, suffer from chronic illnesses or conditions, suffer from a “serious and persistent mental disability sufficient to warrant placement in residential facility” licensed by OMH, or pose a danger to themselves or others, are not suitable or eligible for admission into an adult home (see 18 NYCRR §487.4[c][1]-[15]). 1. Mental Health Diagnosis Many residents have a mental health diagnosis such as schizophrenia, schizoaffective disorder, or bipolar disorder. As a result of a mental health diagnosis, a resident may require some level of assistance provided by an adult home. 2. Physical Medical Conditions and Comorbidities Residents may have serious physical medical conditions that require a level of nursing care, supervision, and assistance, although not full-time care such as that offered in a nursing home. Residents may have, for example, chronic obstructive pulmonary disease (COPD), chronic kidney disease, heart disease and high blood pressure, among many others. Additionally, residents may have both a mental health diagnosis and serious physical medical condition, known as a comorbidity. In other words, in addition to having a mental health diagnosis, a person may have serious physical medical issues that require a level of care, supervision, and assistance that can be provided by the adult home. These include the same serious physical medical conditions described above and herein. An individual’s physical medical comorbidities, rather than mental illness, may necessitate the individual’s need for the level of services offered by an adult home such as Oceanview. Comorbidities may be uncontrolled or high-risk, meaning that if they are not controlled or treated, other comorbidities or even death may result. An example would be diabetes, which, if not controlled, could lead to nerve damage, neuropathies, blindness, and kidney failure. B. Support Services Provided by Adult Homes In conjunction with housing, adult homes must provide designated support services to residents who, by reason of age or infirmity or both, need a certain level of care, supervision, or assistance with activities of daily living (see 18 NYCRR §§487.7). These provisions ensure that the health, safety, and well-being of adult home residents are maintained. Support services that adult homes must provide to residents include case management, food and nutritional services, assistance with medication, maintenance, housekeeping, personal care, and supervision (see 18 NYCRR §§487.7; 487.8; 487.9; 487.11). These support services are for the protection of adult home residents’ health, safety, and well-being. 1. Case Management Adult homes must employ case managers. The number of case managers depends upon the size of the adult home. Case managers must be approved by DOH. Adult home case managers work “with the resident and with the resident’s responsible party to make sure [the adult home is] meeting the needs of the resident, to make sure…that appointments are being made to identify any changes in condition that need to be reported to the physician (see 18 NYCRR §487.7[g]). Case managers work with residents to obtain services from the providers of the residents’ choice. Examples of other needs include social needs in the event a resident shows signs of isolation and depression, or if a resident gets into an altercation with another resident or staff. Case managers are required, at least annually, to evaluate the needs of the residents, to assist a resident in adjusting to life at the adult home, to encourage resident participation in activities at the adult home and in the community, and to assist arranging for various medical and non-medical services needed by residents. Case managers ensure that the adult home is providing appropriate services to residents to prevent them from becoming sick and having to move to a higher level of care. 2. Food and Nutritional Services Adult homes must provide three regularly scheduled nutritious meals daily plus an evening snack for all residents (see 18 NYCRR §487.8[b]). Adult homes must account for each resident’s dietary needs and any food allergies (see id., [c]) and adhere to food group and beverage requirements (see id., [d]). The regulations also require adult homes to plan menus three weeks in advance, and to make menus available to residents in conspicuous places (see id.). Adult homes are required to supervise residents’ “attendance at meals and maintenance of appropriate nutritional intake” (18 NYCRR §487.7[d][iv][a]). To ensure compliance with these DOH regulations, many adult homes have seating charts for their residents at mealtimes. By DOH regulation, residents are prohibited from entering the kitchen or cooking their own meals, whether in the kitchen or in their own rooms (see 18 NYCRR §§487.8[8][e][1], 487.11[f][19]). Residents are also not permitted to have hot plates or coffee makers in their rooms (see 18 NYCRR §487.11[f] [19]). 3. Medication Administration DOH regulations specify requirements of adult homes in the administration of medications to residents (see 18 NYCRR §487.7[f]). Adult homes cannot prescribe or administer medication but are required to assist those residents who are not able to self-administer their medication by preparing the medication for the resident and ensuring that the resident has the correct medication (see id.). Adult homes must provide the resident with the correct dosage of medication at the correct time and in the manner prescribed by the physician (see id.), and adult home staff must observe that the resident ingests the medication (see id.). The adult home must also document or record each time a resident is assisted with medication in a medication administration record; these records must be maintained by the adult home and are periodically reviewed by DOH (see id.). Adult homes must store residents’ medications unless a resident is permitted to self-administer his or her own medication (see id., [f][1], [11]). 4. Mental Health Services DOH regulations require adult homes having at least 25 percent of the resident population or 25 residents, whichever is less, who are mentally disabled persons, to contract with a mental health services provider that must be reviewed and approved by the Office of Mental Hygiene prior to execution (see 18 NYCRR §487.7[b]). 5. Supervision DOH regulations obligate adult homes to provide a level of supervision of their residents (see 18 NYCRR §487.7[d]). Adult homes must know the general whereabouts of each resident, record a daily census, monitor resident behavior, and monitor and assist residents with performing basic activities of daily living and other basic needs (see id.). Notwithstanding this, residents are free to leave an adult home and return at any time. If a resident’s whereabouts are unknown for a period of 24 hours, however, the adult home is required to file a missing person’s report as well as an incident report with DOH (see id., [d] [11], [12] [iii]). All adult homes must have policies and procedures in case of an emergency. If an adult home notices a change in the condition of a resident warranting medical attention, the adult home is required to contract the resident’s primary care physician or to call for an ambulance in an emergency (see 18 NYCRR §487.7[d][6]). 6. Housekeeping Adult homes must provide housekeeping and maintain their facilities in a clean and orderly manner (see 18 NYCRR §487.11[j]). Adult homes must do laundry, including clothing and linens, for their residents (see id.). 7. Resident Activities DOH regulations require adult homes to schedule, post notice of and conduct daily activities for residents (see 18 NYCRR §487.7[h]). Adult homes must offer a minimum of ten hours of activities per week in a monthly schedule prepared at least one week in advance (see id.). The activities must consist of diversified programs of group and individual activities, both passive and active, and include community-based and community-sponsored activities (see id.). 8. Medical Services Although not licensed medical facilities or providers, adult homes are allowed, and sometimes bring in, outside professionals into their facilities to provide services to their residents. Oceanview provides access to outside providers who come in and provide on-site health care services to its residents. These professionals include a primary care physician as well as specialty physicians such as vascular doctors, urologists, eye doctors, podiatrists, psychiatrists, and psychologists. Residents at Oceanview are not, however, required to see these providers and are free to choose to go to other providers in the community. 9. Residents Rights All adult home residents enjoy minimum rights guaranteed by regulation, including the right to privacy, to be free from restraint including being locked in a room, and to manage his or her own financial affairs (see 18 NYCRR §487.5[a][3]). C. Assisted Living Programs (“ALP” or “ALPs”) Adult homes may be certified by DOH to provide Assisted Living Programs to eligible persons (“ALP” or “ALPs”) (see Social Services Law §461-1). An ALP is a Medicaid-funded program that provides more services and supports than an adult home is required to provide and permits the individual to avoid a more costly and restrictive setting such as a nursing home or residential health care facility. An ALP must be an integrated, home-like setting, such as that of an adult home (see Social Services Law §461-1[1][d]; 18 NYCRR §494[d]). There are adult home residents who have a serious mental illness but are in an ALP for its supports related to their physical medical comorbidities, such as COPD, diabetes, and high blood pressure, for which assistance with activities of daily living (“ADLs”) is needed. It is not always the serious mental illness diagnosis that necessitates a person’s need for an ALP. Medical management of comorbidities is required to prevent the development of additional comorbidities and even death. DOH requires ALPs to comply with the Federal government’s Home and Community Based Services (“HCBS”) Final Rule and waiver program (see 42 USC §1396n; 18 NYCRR §494.1[b]). Compliance with the Rule allows the State to receive Medicare and Medicaid and Medicaid funding for the furnishing of designated services to residents in an ALP.14 The HCBS Final Rule sets forth criteria that DOH must consider when determining whether an adult home is community-based and offers a home-like environment (see 42 CFR §441.530). Either the adult home completes and submits a self-assessment to DOH, or DOH may conduct an on-site assessment to determine the home’s compliance with the Rule. The Rule explicitly disqualifies from its waiver program settings that are “nursing facilities, an institution for mental diseases, an intermediate care facility for [those] with intellectual disabilities, a hospital providing long-term care services,” and “[a]ny locations that have qualities of an institutional setting, as determined by the Secretary” (id., [a][2][i]-[iv]). The Rule further provides that [a]ny setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS will be presumed to be a setting that has the qualities of an institution unless the Secretary determines through heightened scrutiny, based on information presented by the State or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings. (id., [a][2][v]). To be eligible for the ALP, an individual must both be admitted to the adult home and qualify for the ALP. A candidate for an ALP must require more care and services to meet his or her daily health or functional needs than can be directly provided by an adult care facility, and although medically eligible for placement in a residential health care facility, can be appropriately cared for in an ALP.15 Medically necessary services rendered to an individual in the ALP are paid for by New York State Medicaid (see 18 NYCRR §494.3[b]). These services include home health aide services, personal care aide services, wound care and nursing services through a Certified Home Health Agency, increased supervision and personal care, and constant monitoring of ALP residents to ensure their needs are being met. An adult home with an ALP must contract with a certified home health agency or licensed home care services agency to provide nursing and rehabilitation services (see 18 NYCRR §494.3[b]). DOH regulations require an adult home with an ALP to interview a prospective resident and to give the prospective resident a tour of the adult home; the processes ensure that the prospective resident is appropriate for the adult home’s ALP, and that the adult home’s ALP can meet the needs of such prospective resident (see 18 NYCRR §494.4[g][2]). A nurse, in accordance with a plan of care created in conjunction with a medical provider, makes a clinical determination whether a prospective resident is appropriate for an ALP level of care (see 18 NYCRR §494.4[g][3]). D. Sources of Resident Referrals Adult homes received resident referrals from a variety of sources. These sources included general hospitals, psychiatric hospitals operated by OMH, nursing homes, rehabilitation facilities, homeless shelters, families, and self-referrals. Before the Challenged Regulations were implemented, no statute or regulation had limited the size or type of an adult home to which a person with a serious mental illness could go. E. Private-Pay Adult Homes and Adult Homes Accepting Public Assistance Residents pay adult homes for housing and support services either with private funds (private pay) or Supplemental Security Income (“SSI”). Adult homes accepting SSI cannot charge more than the SSI rate. The State does not impose any limit or cap charged by adult homes that are private pay. Approximately 188 of the more than 400 adult homes in the State are private pay only. Of these, 161 of adult homes that are private pay do not accept persons diagnosed with a serious mental illness. Consequently, only approximately 27 adult homes that are private pay accept persons with a serious mental illness. The remaining adult homes, including Oceanview, accept persons who receive SSI. The overwhelming majority of persons living in a transitional adult home receive SSI. Prior to the promulgation of the Challenged Regulations, approximately 212 adult homes accepting SSI also accepted persons with a serious mental illness. V. The Challenged Regulations: Facial Discrimination and Discriminatory Impact A. On Their Face, the Challenged Regulations Discriminate against Persons with a Serious Mental Illness by Prohibiting Such Persons from Obtaining Housing in Transitional Adult Homes By their express text the Challenged Regulations prohibit a person with a serious mental illness from moving into a transitional adult home. A person with a serious mental illness cannot move from another adult home or from supported housing into a transitional adult home. A person with a serious mental illness living in a homeless shelter is prohibited from obtaining housing in a transitional adult home. A transitional adult home cannot accept a person with a serious mental illness who seeks a discharge from a nursing home, a hospital, or an OMH-run psychiatric facility. The Challenged Regulations prohibit a person with a serious mental illness from moving into a transitional adult home, even if his or her physician opines that a transitional adult home is the most appropriate setting to meet his or her needs and such person desires to move into the transitional adult home. The Challenged Regulations do not allow for the individual’s need or desire to reside in a transitional adult home. A person’s medical, social, familial, or other circumstances are irrelevant; the sole criteria preventing a person from being admitted to and housed in a transitional adult home is their having a serious mental illness. A person with a serious mental illness who has a physical medical comorbidity and who desires housing in a transitional adult home for supports related to the comorbidity is prohibited from being admitted under the Challenged Regulations. The Regulations prohibit the admission into a transitional adult home a person with a serious mental illness who seeks the services of the home’s ALP, even though the individual is otherwise eligible for the ALP. B. The Challenged Regulations Have Adversely Impacted Persons with a Serious Mental Illness by Preventing Them from Obtaining Housing in Transitional Adult Homes Several witnesses credibly testified about how the Challenged Regulations prevented persons with a serious mental illness from obtaining housing in transitional adult homes. 1. The Challenged Regulations Prevent Oceanview from Admitting Any Person with a Seriously Mentally Illness Oceanview provides housing and support services to their residents, many of whom are individuals with a serious mental illness. Oceanview also provides housing and services to residents who have both a serious mental illness and physical medical comorbidities. The Challenged Regulations prohibit Oceanview, a transitional adult home, from admitting any persons with a serious mental illness. Prior to the Challenged Regulations, Oceanview regularly admitted persons who had mental health diagnoses. Oceanview received resident referrals from a variety of sources, including homeless shelters, supported housing, hospitals, nursing homes, psychiatric hospitals operated by OMH, family, and self-referrals. Ms. Vider, Oceanview’s administrator, frequently received referrals from agencies overseeing supported housing because prospective residents were unable to live more independently in such settings and needed the additional supports offered by Oceanview. After the Challenged Regulations went into effect, most of those sources of referrals did not and could not continue. The Respondent instead promoted an increase of ALP beds to assist transitional adult homes, including Oceanview, to change their business model. In 2010, DOH awarded Oceanview 68 ALP beds. In 2015 or 2016 DOH awarded Oceanview an additional 116 ALP beds. In 2018, DOH awarded Oceanview 9 additional ALP beds. At the time of trial, out of Oceanview’s total of 176 beds, 169 were ALP beds. Of these, Oceanview had 141 residents in its ALP. Although certified for 169 ALP beds, Oceanview is prohibited by the Challenged Regulations from admitting any person desiring or needing its ALP if such person has a serious mental illness, even if he or she otherwise qualifies for the program. 2. Other Persons with a Serious Mental Illness Have Been Adversely Impacted by the Challenged Regulations The parties do not dispute that housing is part of treatment. A treatment team determines appropriate housing in a discharge plan or other plan of care for an individual with a serious mental illness. People with a serious mental illness do well in the adult homes because of support services, which, in turn, promote adherence with treatment plans. Transitional adult homes may serve as an appropriate housing option in a discharge plan for people with acute medical conditions because of the support services on site. For purposes of discharge planning, the decision about what type of housing a person should be discharged to is based on appropriate treatment, continuity of care, location, and the person’s expressed choice. Contrary to the Respondent’s contention, the Challenged Regulations have indeed caused real harm to persons with a serious mental illness. The ability to discharge persons with a serious mental illness from general hospitals and nursing homes to transitional adult homes has been restricted as a result of the Challenged Regulations. Dr. Peyman Younesi described a 42-year-old woman with schizophrenia who was admitted to a nursing home for physical therapy. When her therapy concluded, she could not be discharged to a transitional adult home due to her mental health diagnosis. She ultimately became so depressed in her surroundings at the nursing home that she destabilized and ultimately had to be taken to the psychiatric ward in a hospital. Previously, before needing physical therapy — and unable to leave the nursing home where she received it for lack of appropriate housing — she had been compliant with her medications and was stable. Dr. Gregory Werner, a chiropractor living in New Rochelle, described how the Challenged Regulations tremendously harmed his family. His uncle, a paranoid schizophrenic, lived with him for twenty-five years, until his care became unmanageable following a psychotic break.16 After spending time in New York Presbyterian Hospital in New York City, his uncle was transferred to White Plains so he could have family close to him. He stayed there for about one month. When he was ready to be discharged, an assisted living facility was recommended. Dr. Werner wanted his uncle to live in the New Rochelle Home for Adults, located just one mile from his home and situated across the street from the hospital and near his uncle’s doctor. His uncle had become familiar with New Rochelle over the previous 13 years. However, New Rochelle Home for Adults could not accept his uncle because of the number of seriously mentally ill people already living at the home. The facility was a “transitional adult home” that had reached its quota and was prohibited from accepting Dr. Werner’s uncle under the Challenged Regulations. Consequently, his uncle had to remain at the hospital for another eight to ten days for further discharge planning. At one point, the hospital advised that it was discharging his uncle “no matter what” and it remained Dr. Werner’s responsibility to find someplace suitable. Dr. Werner had extreme difficulty finding an appropriate place for his uncle because his treatment providers advised that his uncle could no longer live independently due to his paranoia, schizophrenia, and age. Ultimately, his uncle moved to Evergreen Court, another adult home, located in Rockland County. Evergreen Court, however, is very inconvenient for visiting; because of the extensive commute times and distance, Dr. Warner can only visit his uncle once a week, and he is otherwise unable to see his uncle when his uncle needs him. Dr. Werner testified that his uncle has not done well at Evergreen Court. His uncle’s routine was disrupted by being far away from the neighborhood where he would walk. He is far from his nephew and his nephew’s family who loved and cared for him. Ultimately Dr. Warner’s uncle stopped going out of his room very much, had two falls, and become paranoid. Persons with both a serious mental illness and physical medical comorbidities have sought but were denied housing in transitional adult homes. David Nikic, who currently serves as regional administrator overseeing The Eliot at Erie Station (“Erie Station”) and eight other adult homes, has worked with many residents with comorbidities such as diabetes, hypertension, cardiac disorders requiring daily monitoring, COPD and end-stage renal disease. At Erie Station, the population of people with a serious mental illness was about 40 percent, qualifying it as a “transitional adult home” under the Challenged Regulations. He explained that its residents need the home’s ALP services not because of their mental illnesses, but for their physical medical problems. According to Mr. Nikic, the Challenged Regulations impact Erie Station’s admission process because the home is unable to accept a prospective resident with a serious mental illness. For example, Erie Station was required to refuse admission to a prospective resident who had essential hypertension, diabetes, kidney failure, kidney disease, hypercholesterolemia, hyperthyroidism, and cataracts and needed a level of care that could be provided by the home. This prospective resident was denied admission because he had a paranoid schizophrenia diagnosis, even though this diagnosis not a primary or secondary diagnosis — in other words, the mental illness was not the reason for this individual’s referral. While this person’s comorbidities necessitated a level of care that could be provided by Erie Station, his having a “serious mental illness” — precluded his admission. Mr. Nikic also described a prospective resident referred to the Eliot at Troy, another transitional adult home, whose primary diagnosis was bipolar disorder with psychosis but who also suffered from chronic hypertension, neuropathy, chronic knee pain and had an indwelling Foley catheter. This individual could not be accepted to the Eliot at Troy because of the person’s serious mental illness diagnosis. Nancy Leveille testified about nursing homes and discharge processes. Nursing home care involves skilled nursing care on a 24-hour basis. She described the “continuum of care” and the examination of the resident’s needs, and the goal of returning the resident to the community at the lowest level of care required while ensuring a smooth transition. A nursing home’s discharge process involves speaking with the individual and taking into account his or her needs and where he or she would like to go. The process also considers the individual’s diagnosis, medical needs, and the individual’s ability to access needed resources. Nursing homes will discharge residents into a variety of housing settings, including adult homes, assisted living programs, homes with home care and sometimes shelters. Discharging such individuals close to friends and family and to a setting where they are receiving follow-up care is important; location is therefore an important issue. The setting also must be in an area where their needs can be serviced so they may be maintained at their highest practical level. For example, it is critical to make sure they are maintaining any medication regimen and following up with their treatment providers such as a psychiatrist, psychologist, or social worker. Nursing homes will also look to ALPs for persons without financial resources but who need of a higher level of care, because ALPs are Medicaid-supported. Nursing homes struggle to find appropriate housing for people who have a mental illness because not all facilities accept people with a mental health diagnosis. Some people are admitted to nursing homes for medical reasons from hospitals and from homeless shelters. When a patient from a shelter cannot be maintained in a nursing home, the nursing home discharges the patient back to a shelter for lack of any better housing arrangement. Finding housing for people with mental health and medical issues in certain parts of the State is difficult. The issue of availability of appropriate, least restrictive housing is particularly acute downstate, where a larger population of people with a serious mental illness are in nursing homes when they should be placed in a lower level of care. Nursing homes seeking to discharge people with a mental illness into the lower level of care they require but have difficulty doing so because some ALPs do not accept them. These individuals stay longer in a nursing home than they should. This is problematic for the nursing homes because regulations dictate that they have only residents who require skilled nursing care. Since the Challenged Regulations were implemented in 2013, nursing homes have faced increased difficulty discharging residents with mental illness into appropriate settings due to the lack of places willing to accept them. Yet individuals with a serious mental illness who are eligible for an ALP but cannot be accepted because the home is a transitional adult home may be placed in a nursing home. Nursing homes, however, are more restrictive settings than an ALP due to Medicare and Medicaid rules and regulations. There are, for example, restrictions upon visitors and visiting hours, a resident’s ability to leave the facility, as well as regarding meals and supervision. A nursing home’s doors must be locked at night. A nursing home resident must have a physician’s permission to leave, and any sojourn is for a limited time. Both Ms. Briney and Dr. Robert Myers testified that they were not aware of problems discharging people with a serious mental illness from a psychiatric hospital caused by the Challenged Regulations. Their experience, however, was limited to those persons being discharged from a State (OMH) psychiatric facility; Dr. Myers’ knowledge was further limited to a particular 18-month period. No testimony was elicited that Dr. Myers was not similarly aware of issues for persons who were being referred to a transitional adult home from other sources, such as families, self-referrals, homeless shelters, nursing homes, physicians, or private hospitals. VI. The Respondent’s Justifications for the Challenged Regulations The Respondent asserts that the Challenged Regulations are justified. First, the regulations are claimed to improve the living conditions and chances for recovery of persons with a serious mental illness. In this respect the Respondent contend that “transitional adult homes” are “institutions” or “institutional” because they are large, congregate settings that result in the isolation of such persons with a serious mental illness and hinder their recovery. Second, the Challenged Regulations are said to fulfill the State’s obligations under Olmstead by (a) preventing the segregation of persons with a serious mental illness in institutional settings and (b) promoting their integration into the community. A. The Respondent Failed to Establish that Transitional Adult Homes are “Institutions” or “Institutional” The Court finds that transitional adult homes are not “institutions,” nor are they “institutional-like.” 1. Adult Homes Are Not Owned, Established or Operated by the State All adult homes are privately owned and operated facilities, including Oceanview. No adult home, no transitional adult home, is owned, established, or operated by the State of New York or by any State agency or municipal entity. While witnesses for both parties testified that transitional adult homes received some referrals from OMH-operated psychiatric facilities, there was no proof that the State solely or predominantly discharged, placed, or referred persons with a serious mental illness, to transitional adult homes. No proof was adduced that it was the State’s practice of discharging, placing, or referring persons with a serious mental illness to transitional adult homes, or that any such referrals or discharges were unjustified or against the will of persons with a serious mental illness. Ultimately, no evidence was presented to show that the State’s actions, systems, or practices led to the alleged unjustified segregation of persons with a serious mental illness in transitional adult homes. Rather, Dr. Myers testified that transitional adult homes were not “a major discharge source for state hospitals” at the time the Challenged Regulations were being developed. According to Mr. Nikic, referrals to Erie Station came from a “wide array” of sources, including Rehabilitation Support Services (“RSS”), nursing homes, short-term nursing rehabilitations, hospitals, people servicing the mentally ill, and OMH. Similarly, no evidence was adduced that residents were restrained in adult homes, including transitional adult homes, by the State or any State agency. 2. Transitional Adult Homes are Not “Institutional” or “Institution-Like” (a) All Adult Home Residents Enjoy a Variety of Freedoms All adult home residents, including those with a serious mental illness, enjoy virtually all the same freedoms that those who live in other types of housing enjoy. Residents of adult homes may exercise choice and autonomy to the extent not otherwise affected by DOH regulations. Residents may come and go at reasonable hours and may go out overnight. While an adult home is obliged by regulation to ask a resident where he or she is going, the home cannot veto the resident’s choice. The resident is not required to inform the adult home where he or she is going, although they are encouraged to provide that information. In every case, the adult home must try to ensure that the resident is safe from harm and that they have everything that they need, including medications, so that they can remain safe. Residents are permitted to have visitors. Adult homes may not interfere with visitors. Residents of adult homes are free to form personal relationships with other residents. Additionally, residents are free to form intimate relationships with one another. Residents of adult homes are not restricted to communicating or interacting only with persons with mental illness; there is no limitation on persons with whom residents can interact, meet, or become friends. Residents have the right to confidentiality in their conversations, to privacy, and to receive unopened mail. Residents may be employed, seek entertainment outside of the adult home, worship where desired, and go out to restaurants, among other things. No evidence was presented of any restriction on a resident’s access to any service, benefit, or amenity to which any other person in the community has access. Residents of adult homes are free to exercise a religion of their choice and may attend a house of worship of their choice. Adult homes do not limit the right of a resident to have or use a cell phone; residents may call whomever they wish, and adult homes such as Oceanview provide pay phones. Many older adult homes have landlines in each room. While by regulation residents may not cook in their rooms, or have coffee pots or hot plates, or have access to the kitchen, facilities have “country kitchens” where food is available to residents. Residents may ask staff for food 24 hours per day. Residents of adult homes are not restricted to the meals served by an adult home; they may order out and call for delivery of, e.g., Chinese food, pizza, and chicken wings. Residents are free to go out to restaurants to eat. Residents of adult homes can request or have access to an alternative meal if the meal planned by the adult home is not desired by the resident. Mr. Nikic acknowledged that residents have assigned seats for meals due to dietary restrictions to ensure that the correct meals are brought to each resident. But residents are free to change their seating provided there was a space at their preferred table. In most transitional adult homes accepting SSI, residents share a room with a roommate. Roommates are assigned but matched according to their compatibility and agreement. Residents may change roommates but, pursuant to DOH regulations, only with the knowledge of the staff. Some residents live in rooms with bathrooms; some rooms do not have bathrooms and must use bathrooms in common areas. Some residents may choose to do their own laundry and may go off-site and use laundromats. Residents may, and some do, watch TV in a common area all day. Many facilities have a TV in each resident’s room. Many aspects of transitional adult homes asserted by the Respondent to imbue them with “institutional” qualities stem from DOH regulations. These regulations affect mealtimes, assigned seating, signing in and out, visiting hours, laundry, housekeeping, and cooking. Further, these same characteristics are present in non-transitional adult homes. The Court’s conclusion is further supported by the testimony of the following witnesses. Kenneth Przyjemski, a resident of Sufside Manor Kenneth Przyjemski described his life as a resident at Surfside Manor (“Surfside”), a transitional adult home in Rockaway Beach, Queens, New York. He has resided at Surfside since 2005. After graduating from the Citadel with a degree in economics and a 3.5 grade point average, Mr. Przyjemski was successfully employed for many years, including, for example, on Wall Street. One morning Mr. Przyiemski woke up paralyzed from the waist down. Following his months-long hospitalization, he moved in with his mother and lived with her until she died in 2002. He attempted to live at home and operate a business out of his home making and selling cheesecakes, but his business attempt was unsuccessful. He attempted suicide in 2004 and was hospitalized. He attributed his depression to a life without family or people who were supportive. When he was ready to be discharged, Mr. Przjemski was shown several housing options. Mr. Przyjemski chose Surfside because it was near the beach and public transportation. He has opportunities to move into apartments, but he chooses to remain where he is for the supports offered. Mr. Przyjemski has fallen and been unable to get up, so he prefers not to live alone. If “God forbid” anything happens, he said, someone knows where he is. Social workers and psychiatrists are at the facility. In an apartment there is “no outside connection to the world.” He prefers that someone else keep track of his medication, and he enjoys having a roommate. He appreciates that there is always someone to talk to and that there is always some activity going on in the facility. He is not taking any medication for mental illness. Mr. Przyjemski works at the Board of Elections as a greeter. He has been elected president of the residents’ council at the adult home for six or seven years. With regard to the regimented aspects of transitional adult home life, Mr. Przyjemski stated the following. Set times for meals and medications do not bother him, nor does having assigned seating. That visitors must sign in to the facility makes it more secure, in his view. The fact that people must be supervised if they wish to use the laundry room does not bother him because he drops off his laundry to be done for him. As to the negative aspects of life at a transitional adult home, Mr. Przyjemski acknowledged, for one, that residents are not permitted in the kitchen. But there is a room with a microwave, ice maker, water, coffee, tea, and snacks. Residents do line up to receive their monthly personal-needs allowance. The police are called to Surfside once or twice a month: he explained that residents call the police because they have lost their cigarettes or something else. Once or twice a year the police are called to break up disputes. About once every two months residents are sent to the hospital following an altercation. Lisa Vider, Oceanview’s Administrator Ms. Vider testified about Oceanview and its operations, its residents, and its facility. Ms. Vider has worked at Oceanview since 1998. Ms. Vider, as had her father before her, manages Oceanview. Ms. Vider enjoys the company of the people she takes care of and feels that they are good people. Her facility is “next of kin” to many residents, and she and the other staff at the facility “are their family.” Residents also form relationships with one another at Oceanview. Petitioner’s exhibits 84 A-N depict residences on the boardwalk and beach. One shows Oceanview and the others show the nearby construction of condo buildings with retail spaces such as Gristede’s. Lifeguards patrol the beach, which can be accessed by wheelchair and walker. Two or three blocks away from Oceanview is a gated community run by a rabbi who offers to the larger senior community an opportunity to engage in arts and crafts, senior programming, and playing pool. Residents of Oceanview participate in these activities. At the time of trial, renovations to Oceanview’s lobby were underway. Other photos received in evidence depicted the dining room with four residents per table. Residents are permitting to bring anything non-hazardous to their rooms. The hallway of each floor is painted a different color, as in a private home, where spaces are treated visually differently. The difference in paint colors also serves the purpose of quickly identifying the floor being observed on security cameras. Oceanview residents are not limited regarding the people with whom they wish to interact at the home. They also have no restrictions on where they may go or at what times they may leave Oceanview. However, if they plan to be out overnight, they must sign in and out and inform Oceanview of their whereabouts. (Regulations require that the facility file a missing person report if a resident has been absent for 24 hours.) Residents may, and do, go to work, to the movies, churches, the beach, library, and stores. They also go to restaurants and order take-out (all residents have mobile phones and free WiFi). The residents walk or take subways, cabs, buses, or ambulettes to access these attractions. Residents of Oceanview may use the nearby beach at any time and its residents may access the boardwalk. Oceanview residents who are unable to or do not wish to attend off-site religious services have access to on-site services. They also have access to free legal services through a local advocacy group. Primary care physicians rent space at Oceanview to see patients. Doctors specializing in, for example, vascular, podiatric, and psychiatric medicine visit patients on site. Daily housekeeping of the residents’ rooms consists of making beds, removing garbage, and washing floors. Linen is changed weekly or as needed. Once a week there is a extensive cleaning. When required, Oceanview staff prepares each resident’s medication, watches the resident take it, and records the administration of medication. (A doctor may permit residents to administer their own medication.) The medication is given as needed, as ordered by a doctor, or at four specific hours throughout the day and evening. Residents at Oceanview do not stand in line to receive their medication. Oceanview provides its residents with computers in its recreation area. The free Wi-Fi is provided throughout the building. Residents may have their own computers, and there is no restriction upon a resident’s right to have a computer in his or her room. Residents of adult homes including Oceanview are free to access and use computers and Wi-Fi in their rooms and in the recreation area. Oceanview provides a television in each of its residents’ rooms. Each room at Oceanview has its own bathroom. Residents may choose what types of personal effects to have in their rooms. (b) The Certification of ALP Programs in Transitional Adult Homes Demonstrates that These Homes are Not Institutional Settings Transitional adult homes having ALP beds must comply with the Federal government’s HCBS Final Rule showing that their facilities have a home-like setting and are not institutions. According to DOH, all ALPs must comply with the HCBS Rule. To qualify for the additional ALP beds, Ms. Vider submitted a certificate of need as well as a document certifying compliance with the HCBS Rule attesting that Oceanview is a community-based setting and has a home-like environment. The Respondent did not prove or even suggest at trial that DOH ever refused to certify Oceanview for its ALP because it was not home-like or was an institutional setting. No proof was offered that Oceanview’s certification was revoked at any time for these reasons. Similarly, no evidence was proffered that DOH would not certify ALPs in any other transitional adult homes for lack of a home-like environment or having institutional settings, or that their certifications were revoked for these reasons. The Respondent’s assertion that transitional adult homes having ALPs are “institutional” for purposes of the Challenged Regulations, but not so for certification purposes under the HCBS Final Rule, wholly lacks merit. B. None of the Respondent’s Witnesses Established that Transitional Adult Homes are Clinically Inappropriate for and Not Conducive to the Recovery of Persons with a Serious Mental Illness None of the Respondent’s witnesses — Dr. Lloyd Sederer, Dr. Myers, Dr. Lisa Dixon, or Valerie Deetz — credibly testified that transitional adult homes are clinically inappropriate for and not conducive to the recovery of persons with a serious mental illness. The Court concludes that the rationale expressed for the Challenged Regulations has no factual or evidentiary basis. 1. Dr. Sederer During the State’s negotiations with the DOJ, DOH sought guidance from OMH regarding the possibility of regulations that would serve to prevent large adult homes from becoming segregated settings. Dr. Sederer, who at the time was OMH’s Chief Medical Officer17, responded with the issuance of two clinical advisories.18 In his first clinical advisory, dated August 8, 2012, Dr. Sederer opined: Mixed use, larger scale congregate housing is an important and viable form of community living. However, there are times when the numbers of individuals with serious mental illness residing in certain types of housing result in housing experiences that are not clinically appropriate to the needs of such persons and are not conducive to their rehabilitation or recovery, particularly when there is a large concentration of significant numbers of people with mental illnesses in settings which: Are not specifically designed to serve people with serious mental illness; Are not under the license and clinical quality control of the New York State Office of Mental Health (OMH); Do not foster independent living as a result of institutional practices of congregate meals, ritualized medication administration, and programming that is often not individually tailored; or Have an absence of specifically designed rehabilitative and recovery-oriented programs conducive [to] meeting the clinical needs of persons with serious mental illness. Adult homes licensed by the Department of Health (DOH) which have been determined by DOH to be “Transitional Adult Homes” or “Impacted Adult Homes” are not clinically appropriate settings for the significant number of persons with serious mental illness who reside in such settings, nor are they conducive to the rehabilitation or recovery of such persons. Dr. Sederer issued a second clinical advisory (or “update”) on October 1, 2012, clarifying that the August 2012 clinical advisory would apply to adult homes that are “transitional adult homes,” those with 80 beds or more having 25 per cent or more of the resident population having a serious mental illness. At trial, Dr. Sederer testified about effective treatment of people with a serious mental illness and the rationale for the regulations. “Public Health,” he explained, is a population-based approach to health care. As a public health doctor, Dr. Sederer said, it was his duty to limit housing settings that are not conducive to recovery. He explained that recovery means that a person has an illness [and] they have learned to understand their illness, to manage their illness to the extent they can…and to get the kind of help they can to do that in order to have a life that meets some of what they want. That’s the person-first dimension…it’s not what the doctor wants, it’s what the person wants. And that recovery orientation is about recognizing that people as a rule want to be able to have normal lives with relationships, with a feeling that they’re of value, that they can take some pride and have some dignity in their life, and that it’s our job to help them fashion such a life with illness. That’s my understanding of recovery. Recovery, Dr. Sederer explained, does not mean cure but instead means improvement in certain aspects of a person’s life. In pursuit of the recovery of a patient, Dr. Sederer conceded that the patient’s choice is “very important.” But, Dr. Sederer cautioned, “public health concerns can override individual choice,” and cited as an example of this the law requiring seatbelts to be worn in cars. Settings not conducive to recovery include those that he described as “institutional.” Dr. Sederer recounted the change in his profession’s understanding of recovery, beginning in the 1970′s, when people with a serious mental illness were thought to have a dismal future and there was no treatment that could change their prospects. Over the past two to three decades, it became clear that people with a serious mental illness can get better. The mental health community placed greater emphasis on recovery and began to develop treatments that related to specific ways social, cognitive, and executive functioning could be improved. There was a move away from institutions and toward settings that permitted self-agency and autonomy. Dr. Sederer defined autonomy in these circumstances as the ability to make decisions, go about one’s life believing one is effective, to feel dignity, to achieve relationships, to work, and to make a contribution. He described institutions as settings in which meals are routinized, medication is administered to the residents, and the programming seldom focuses on recovery, or social, cognitive, or work skills. According to Dr. Sederer, such institutional settings foster “learned helplessness…When you can’t be your own agent, that is a bad state of mind.” Treatment plans must be based on an individual’s needs, and housing is “probably one of the best predictors of how somebody will function, their quality of life, and their capacity to engage in treatment.” Dr. Sederer has advocated for the movement of long-term patients out of OMH psychiatric centers because they are institutional settings where people are “segregated from the rest of their community” and because their capacity to take care of themselves is diminished as a result of “the tasks of everyday life — shopping, feeding, transporting themselves, [and] managing their own health” being performed for them. Diminished capacity to take care of one’s self is “not good for people.” Therefore, according to Dr. Sederer, living in the community is integral to recovery. Having some tasks creates normalcy, such as shopping and taking transportation. This, he testified, doesn’t happen in an institution. Dr. Sederer opined at trial that adult homes are institutional settings, and that people are languishing in them. He bases his opinion on decades of clinical experience and clinical administrative experience. According to Dr. Sederer, factors demonstrating that a housing facility is “institutional” include the size and the concentration of people with a serious mental illness. In adult homes, Dr. Sederer said, residents experience regimented meals and medication dispensation, and that such routinization segregates them from other people and results in forms of anonymity that promote a learned helplessness. Over time such routines erode a person’s ability to make personal choices, such as whether to buy food, make meals, travel, to feel as if they are people with dignity rather than lost souls in an institutional setting. Dr. Sederer developed his opinion that adult homes are institutional from having visited a couple of them in New York City sometime between 2002 and 2007. These visits, however, did not at the time compel him to attempt to regulate the flow of patients from hospitals to adult homes. Dr. Sederer described “normative experiences — all of our lives proceeding in a normative manner: a place to live that is safe and reliable; relationships, work or other contributions, being part of the community.” It includes the ability to go to baseball games, movie theaters, and diners, for example. Transitional adult homes are not conducive to normative experience, he opined, although he did not know if residents of transitional adult homes were free to engage in the activities he described. Dr. Sederer was not aware of any evidence-based study or publication assessing the extent to which residents recover while living in an adult home. He has not seen any research demonstrating that adult homes are inconsistent with or otherwise prohibit a seriously mentally ill resident’s recovery. He was not aware of any evidence-based study, analysis, or report about how well residents who leave an adult home to supported housing have done. Nor has OMH conducted any studies comparing outcomes of residents living in an adult home versus in supported housing. He was also not aware of any studies or reports conducted by the City of New York comparing outcomes of residents living in an adult home versus in supported housing. He was aware of two individuals who studied supported housing in the last ten to twenty years; however, Dr. Sederer did not know whether their studies included a discussion or analysis of any differences in recovery of a patient in an adult home versus in supported housing. Dr. Sederer was familiar with the New York/New York III Supported Housing Agreement.19 He testified that there is nothing referenced in the document evaluating outcomes for residents of adult homes versus residents in supported housing. This includes no evaluation comparing recovery of residents in adult homes versus residents in supported housing, or mental health treatment of residents in adult homes versus residents in supported housing. There was no evaluation comparing such residents in categories such as time spent in jail, or being victims of crimes, or the commission of crimes, rehospitalizations, compliance with treatment regiments, or of any other measure for which outcomes were assessed between residents of adult homes and residents of supported housing. Dr. Sederer conceded that, particularly in New York City, there was a lack of housing options for people with disabilities. He said that OMH was going to “keep pushing for more housing.” Lack of appropriate housing for someone being discharged from a psychiatric hospital was “a persistent resource problem” but that “the answer to a persistent resource problem is not to use a setting or solution that you think is not good for someone.” If a person with a serious mental illness desired housing in a transitional adult home that had a vacant bed, that bed could not be a resource for that individual. Dr. Sederer remarked, “What this policy does is to try to look at an entire group of people affected by serious mental illness and settings that are going to be more likely to give them the kind of milieu and the kind of hope and movement into a much more normal life. **** I’m not in a position to talk about any individual patient. I’m taking about how to maxim[ize] the lives of populations of people.” As a public health doctor, Dr. Sederer did not provide direct patient care for people with mental illness. Consequently, Dr. Sederer had no interaction with residents or the family of residents of either adult homes of any size or of supported housing. He has never spoken with the treating clinician of a mentally ill resident of an adult home. He had no direct information about what befell or benefitted a person who had transitioned to supported housing from adult homes. At the time of this litigation, Dr. Sederer did not know that adult homes provided assisted living services (ALPs) to people with mental illness or even to people without a mental illness. He was not aware of assisted living programs in adult homes at the time he formulated and issued the Clinical Advisories in 2012. Dr. Sederer is not aware of the Federal standards or criteria used that define whether an adult home or other residential setting is an “institution” or becomes “institutional.” He is also not aware of any such standards set by his own Office of Mental Health. Dr. Sederer explained how he came to help draft the two clinical advisories issued by OMH. Several months before August 2012, Dr. Foster Gesten, a senior medical officer at the Department of Health, called Dr. Sederer to ask if OMH would consider issuing a memo making a clinical or policy statement about adult homes. Dr. Sederer discussed this with OMH general counsel and the OMH commissioner. Dr. Sederer knew that regulations were going to be drafted and he believed the clinical advisories were meant to support the Regulations. The first clinical advisory, issued in August 2012, did not contain the parameters set forth in the disputed regulations. Because of the lack of specificity, OMH issued a second clinical advisory in October 2012, which did set forth the parameters now embodied in the Challenged Regulations. “The evidence is overwhelming over decades that institutions are bad for people. And I was being asked to protect the population of people from institutionalization and that’s what I was trying to do,” Dr. Sederer testified. Dr. Sederer, however, admitted having no basis for the formulation of the specific numerical parameters that now restrict admissions of persons with serious mental illness to transitional adult homes. When asked about these parameters, Dr. Sederer testified: The context within which I approached this determination and trying to come to some specificity about at what point is there a tipping point here for this population, at what point can we say that this is more of an institutional setting than it is a residence. And from a public health point of view, that was my task and that was how I in the end came to these particular measures. DOH sought OMH’s consultation in defining that capacity and that percentage. Dr. Sederer believed that, once the threshold of 80 beds was reached with a 25 percent mental health population or more, it was no longer clinically appropriate for a person with an SMI to live in that adult home. Dr. Sederer admitted, however, that there was no published evidence for this number. There was no professional literature recommending that maximum number of beds, and Dr. Sederer could not point to anything he had read or observed that supported 80 beds as a criterion for the maximum number of beds. Rather, the 80-bed threshold came from his “clinical judgment about when settings have increasing numbers of individuals and where a significant population of them had a serious mental illness and the general environment, then, starts to feel large and institutional and is not conducive to recovery.” Yet his clinical opinion is not based upon anything: no professional literature, no empirical research, and no first-hand experience. Dr. Sederer had never visited any adult home with more than 80 beds and population of 25 percent or more residents with serious mental illness other than one such adult home located near the ocean. The number 80 came from conversations with Dr. Gesten, the OMH Commissioner, and counsel. He did not recall anyone specifically suggesting the number to him, but the 80-bed limit was decided upon before the issuance of the August clinical advisory. “Eighty beds and 25 percent is a clinical position that I can hold to and my agency can take a position about,” he explained. Similarly, when asked how he came up with the number of 25 per cent and if this percentage originated from somewhere in particular, Dr. Sederer was unable to recall. Dr. Sederer explained that the 25 percent came out of a discussion with his commissioner, Dr. Hogan, Dr. Geston, OMH general counsel and himself, and that it was his final decision to say 80 beds and 25 percent. He did not recall seeing any published work or other professional source concluding that not more than 25 percent of persons with serious mental illness should live in the same congregate setting. He had neither received any evidence-based information to support the 25 percent threshold, nor was aware at the time of his testimony of any such evidence-based information to support this percentage. Rather, Dr. Sederer’s opinions, upon which the clinical advisories and, ultimately, the Challenged Regulations are based, are grounded in his understanding that “institutional” settings are not conducive to recovery and “that institutionalization is bad for people,” whereas residential settings in which people with a mental illness could be integrated into the community do promote recovery. Yet Dr. Sederer knew of no publication that addressed the proper treatment or the extent to which people can recover in adult homes, or that addressed any comparison of outcomes or of the potential for recovery in adult homes compared to those in supported housing. No literature, no evidence-based programs, no studies, and no professional guidelines suggested these or any numerical parameters. There was no factual or evidence-supported basis offered by Dr. Sederer to support the conclusion that people with serious mental illness do not recover in a transitional adult home. Consequently, the Court accords no weight to Dr. Sederer’s testimony regarding people with a serious mental illness residing in a transitional adult home. His testimony about the reasons he established the 80 beds/25 percent census is wholly unconvincing. 2. Dr. Myers Dr. Myers has held the position of the Senior Deputy Commissioner of Community Operations and Managed Care at the Department of Health since 2004. He is responsible for the oversight and management of service delivery and for policy and licensing of homes for adults and children. In 2013 he oversaw state psychiatric centers. Dr. Myers has worked on housing issues since 2004, and his PhD dissertation was about the trend, begun in the 1970′s, toward moving people with a serious mental illness out of institutional settings and into community-based housing and into other facilities. He explained that the notion of integrating people into the community went back at least to the 1980s, and the Olmstead decision became the impetus for increased community-based housing. Dr. Myers was part of settlement discussions in the O’Toole cases about how “from a policy perspective…these orders for these adult homes [could] come into compliance with Olmstead.” He explained that the individual plaintiffs (and U.S. Department of Justice) bringing the cases alleged an Olmstead violation by 22 or 23 large adult homes located throughout the five boroughs of New York City. In these settlement discussions, Dr. Myers was the lead programmatic person from OMH. The O’Toole settlement “put a process in place to give people in those settings the opportunity to move into more integrated settings” and then the discussion came about how to work with adult homes in “a gradual way” to reduce the census of people having mental illness living in adult homes. This discussion took place sometime soon after Governor Cuomo took office, and his administration desired to settle the O’Toole cases rather than re-litigate them. He testified that one of the remedies for the O’Toole class members was the provision of supported housing. Funding was specifically designated for that purpose by the settlement. Anyone in that class could move to supported housing. But the class did not include individuals who did not live in New York City-impacted adult homes. He also did not know if or when the O’Toole cases were publicly disclosed before the parties finalized the settlement agreement. Dr. Myers opined that transitional adult homes are not conducive to recovery because of their institutional nature, which is segregating, isolating, and regimented. He believes that larger adult homes, such as transitional adult homes, have institutional-like settings and people living in those settings “over time develop dependency on the structured environment.” The goal for people with a serious mental illness is community inclusion and so they should live outside of institutions such as transitional adult homes and receive services in the community. Thus, Dr. Myers opined, supported housing is preferable. Dr. Myers had no role in developing either clinical advisory. He did agree with the clinical advisories and agreed with their characterization of large adult homes and the effect they have on seriously mentally ill individuals living in such settings. The clinical advisories reflected the position of OMH that persons with serious mental illness should not be admitted into transitional adult homes. Although he was involved in settlement negotiations, he was not involved in the development of the Challenged Regulations or in discussions between the OMH and DOH about transitional adult homes. He acknowledged there were discussions during the settlement of the cases about creating the Challenged Regulations, including limiting the number of admissions into transitional adult homes. Dr. Myers did not believe he was involved in discussions with DOH personnel regarding the objectives of the Challenged Regulations. Dr. Myers has seen evidence-based studies on environments that are institution-like or institutional. He said that, in an institution, people eat at certain times and line up for medications. These issues, he acknowledged, are a function of how many people reside in the facility, not how many people have a serious mental illness. He also conceded that, to the extent that it exists in adult homes, people line up for medications in adult homes that are not transitional. Further, for some people living in a single room occupancy (“SRO”) or supported housing a home care aide will, under the supervision of a nurse, go into the home to assist a person with medication “for the extent of time the person needs” such help. According to Dr. Myers, the concept of recovery from serious mental illness means living with the illness or condition but being able to fully participate in society. A person who has a serious mental illness and moves from a transitional adult home to an apartment does not automatically recover. He testified that there is evidence from the work done on the adult home settlement that “many people have experienced aspects of recovery as they moved” into the community because they followed their progress. He could not, however, point to evidence-based research comparing recovery in individuals in a non-transitional adult home setting versus a transitional adult home because he is not a researcher. Dr. Myers was not aware of any such research conducted by OMH. He acknowledged that there were approximately 4,500 to 6,000 individuals living in transitional adult homes who received in-reach counseling, and of those 800 moved out of the transitional adult home. He was not aware of any formal study of these 800 individuals, except for some questions they were asked and the independent review’s work on it. To his knowledge, no research-based or empirical studies have been done concerning persons who have moved out of transitional adult homes and who are now preparing their own meals, obtaining employment, doing their own laundry, receiving travel training, or learning to navigate their community. He was also not aware of any study having been conducted of individuals in transitional adult homes who have their own jobs, do their own laundry, or know how to travel. Nor have any studies or reviews been done comparing incidents involving police and rates of incarceration for persons in transitional adult homes versus individuals who moved out of transitional adult homes. He acknowledged that some individuals experienced adverse results from having moved, and that some individuals returned to transitional adult homes. OMH does not license supported housing beds, although OMH has guidelines governing the management of the supportive housing program and has contracts with the supported housing provider. Dr. Myers acknowledged that housing is a part of a plan of care for an individual. He acknowledged that under the Challenged Regulations, a person hospitalized and treated for cardiovascular disease who also has a serious mental illness cannot be accepted for housing in a transitional adult home. He conceded the same would be true if the individual with a serious mental illness also suffered from a stroke, or had diabetes, or had asthma. Dr. Myers explained that, for an individual who has a serious mental illness and a physical comorbidity being discharged from a psychiatric hospital, the discharger’s plan of care for such individual must deal with both issues, including by ensuring that the person is connected to services relating to their comorbidities. Dr. Myers explained that persons with serious mental illness living in the community should receive support services via person-centered planning. When such a person is discharged from a state psychiatric hospital, the hospital treatment team develops a plan of care and the individual is connected to care management in the community. He conceded that the plan of care always had to consider what is in the individual’s best interests as well as the individual’s choice. During the time the Challenged Regulations were temporarily enjoined from enforcement, state psychiatric centers utilized transitional adult homes as resources for discharged patients. When the TRO was put in place, OMH advised general hospitals that they could discharge individuals into transitional adult homes. Although testifying that OMH initially took the position that transitional adult homes were not appropriate settings for individuals, and instructed state hospitals not to discharge people into transitional adult homes notwithstanding the TRO, Dr. Myers conceded that OMH relented to allow discharges from state psychiatric centers to transitional adult homes on a temporary basis. Such discharges were made while the TRO was in place, notwithstanding the clinical advisories. Dr. Myers explained that the Challenged Regulations, together with the O’Toole Settlement, are meant to “close the front door” on the admission of people with a serious mental illness into transitional adult home until the population of mentally ill residents drops to below 25 percent. He admitted there are no restrictions preventing a person with a serious mental illness from being admitted to a nursing home or a homeless shelter should they choose to do so, or to live with family or to live on the street. Dr. Myers believes that a person’s plan of care must be individualized. He explained that “each person is different and has different needs and just as in the physical health care, you would think that one person’s diabetes plan of care is different from another’s based upon their living circumstances, their physical health, their genetic makeup, and the progression of the illness. It’s the same with mental illness.” Plans need to be individualized to address a person’s different needs, histories, and medical conditions. Mental illness includes multiple diagnoses, and people behave differently and have different symptomology just like physical illnesses. Dr. Myers conceded that there were no evidence-based studies concerning the recovery outcomes for people with a serious mental illness who live in transitional adult homes. He never conducted any evidence-based studies about transitional adult homes. He admitted that people can decompensate in supported housing: they do not take their medication, or go to appointments, or take care of their nutrition. 3. Dr. Dixon Dr. Dixon is an OMH employee, Professor and Division Director of Behavioral Health Services and Policy Research in the Department of Psychiatry at Columbia University Medical School, and Director of the Center for Practical Innovations at the New York State Psychiatric Institute. The Court finds Dr. Dixon’s testimony about how the Challenged Regulations defined “serious mental illness” to be credible. Dr. Dixon said that the fact that a person is receiving OMH services does not mean they have a functional disability. All disorders in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) can cause a functional disability in theory, but not necessarily in practice. Her definition is the diagnosis plus a “real impact of the diagnosis on the person’s life.” For this reason, she thought that the definition used in the Challenged Regulations was “weird.” The Court otherwise accords no weight to her expert testimony given her admitted lack of experience with adult homes, residents living in adult homes, and residents who have a serious mental illness who live in adult homes. Dr. Dixon agreed to testify in this case on behalf of the State because she thought it would be “interesting and a challenge.” Her opinion of transitional adult homes was not informed by her experience prior to this assignment. She had not heard of transitional adult homes before and acknowledged having no expertise in the area. Dr. Dixon therefore decided to do “homework” to learn about them: she read the testimony that had been taken before hers, visited two adult homes including Oceanview, interviewed two residents, reached out to various academics, and read professional articles in an attempt to discuss the Challenged Regulations at trial. Dr. Dixon described transitional adult homes in New York as anomalous compared to the rest of the country and Europe. She said that most of the developed world focuses on small settings for the housing of people with a mental illness. She learned this information from having done research in preparation for trial. Dr. Dixon visited Oceanview for about ten minutes. She did not speak with any residents, did not observe a medication administration, and did not stay for a meal, although invited to do all three. Still, Dr. Dixon found the dining area at Oceanview to be institutional in that there was assigned seating and planned meals. She observed a medication cart there. The recreation space was small and there was no recreation going on in the facility. The rooms granted no privacy because they are shared with a roommate and the person in charge of the facility has a key. While at Kings Adult Care Center, Dr. Dixon observed 15-20 people smoking outside the facility. She observed several large rooms where people were sitting in front of a television and nodding off. It felt oppressive, like an old institutional setting. She described a smell of urine in an elevator. A patient reported to her that there were altercations and fights, which conformed to some of what she has read: that size of the facility is associated with lack of safety. Dr. Dixon also observed the residents’ rooms being cleaned, and reported, “it’s like a hotel. But a hotel is not where you feel good.” Dr. Dixon testified about a range of topics related to housing and the treatment of people with mental illness, opining that housing is central to recovery. She opined that the housing situations most conducive to recovery are smaller, independent, or supported housing situations. This is because they allow people to exercise autonomy, learn skills, and allow people to have a life with meaning and purpose. Large institutional settings do no support recovery. She testified that consumers greatly prefer housing that is “normal,” that is, where other people live as well. Dr. Dixon opined that housing that permits integration into the community is conducive to recovery because this permits people with a mental illness to interact with people who do not have a mental illness. Deinstitutionalization is necessary, she said, because it used to be that people were sentenced to a lifetime of doom, hardly a life at all, when they were placed in large facilities. Small settings are better for people with a serious mental illness. Dr. Dixon was not aware of any definition of “institutional” or of any definition or standard of what characteristics cause a residential setting to be “institutional.” But her opinion is that size and regimentation are the characteristics of transitional adult homes that render them institutional. In her opinion, such housing promotes a lack of autonomy, isolation, a lack of appropriate skill-building, and an inability to imagine a future. She acknowledged that some people who don’t have a serious mental illness dislike or avoid interaction with people with a serious mental illness, and that there is stigma attached to having a serious mental illness. Dr. Dixon defined the term “evidence-based practice” as one in which there is some evidence that the practice has some effectiveness. One such practice is Assertive Community Treatment (“ACT”), which is a team-based multidisciplinary model that delivers care in the community. This model has decreased hospitalizations and homelessness and has increased functioning for people with a serious mental illness. She has not, however, seen any data on people in supported housing compared to those who live in a transitional adult home. Dr. Dixon’s definition of recovery includes a connection to a community where “people care about you; not staff, real people.” While Dr. Dixon recognized that Ms. Vider cares for her residents, she said Ms. Vider was “mistaking caring for providing appropriate services,” and caring does not lead to self-sufficiency. She was troubled by Ms. Vider’s lack of formal training in the field of mental health; however, she acknowledged that administrators and other managers of supported housing agencies and mental health shelters do not need formal training in the field of mental health to obtain their positions. While acknowledging that an individual’s autonomy and preference are important and consideration of a patient’s preference critical, Dr. Dixon opined that a person who chooses to live in a transitional adult home has not made an informed choice. She did not offer any evidence-based data in support of such assertion. Ultimately, Dr. Dixon was not able to provide a credible rationale for the Challenged Regulations. On the contrary, she revealed that one of the people with whom she spoke and on whose opinion she relied (Dr. Howard Goldman), advised her “there is little empirical evidence available to guide the setting of an absolute standard” regarding the number of people with a serious mental illness who ought to live in an adult home setting. 4. Ms. Deetz Ms. Deetz testified as the former Director of DOH’s Adult Care Division, a position she held for six years commencing in May 2013. The Court finds that Ms. Deetz’s testimony also failed to establish any credible justification for the Respondent’s Challenged Regulations. During her tenure as Director of the Adult Care Division, Ms. Deetz’s responsibilities included the surveillance and licensure of about 550 adult care facilities across New York State. There are approximately 151 ALP programs across the state; less than 24 of these are in transitional adult homes. According to Ms. Deetz, one goal of the Challenged Regulations is to create a less segregated setting for adult home residents with serious mental illness by reducing large populations of persons with serious mental illness living together. She testified that the other purpose is to promote their integration into the community. Ms. Deetz testified that fulfilling the objectives of the Challenged Regulations accords with the obligations under Olmstead and the ADA. Between 2013 and December 2018 the number of transitional adult homes was reduced from 49 to 35. Ms. Deetz explained that transitional adult homes lowered their mental health census through discharge into the community or moving on to a higher level of care. A couple of facilities closed. One adult home facility remained uninhabitable due to Hurricane Sandy. Ms. Deetz testified that it is not the size of the transitional adult home that affects quality of life but the numbers of serious mental illness living there. She explained that it does not appear that there are enough activities and “not a really meaningful type of life for those individuals.” Ms. Deetz defined “institutional” as a place where “things are very regimented and prescribed.” She said a nursing home is institutional because “things are being done for individuals” and are “very regimented, very prescribed.” She believes transitional adult homes are more institutional than adult homes due to large concentrations of people “with the same type of illness or disability living in these facilities” and “not a lot of stuff going on.” She added that transitional adult homes are regimented because people stand in lines for medication and people congregate in the same area at mealtimes. She did not believe that the institutional character of transitional adult homes resulted from the policies and regulations of DOH. She testified that DOH encourages adult homes to be more home-like, particularly when working with them regarding the HCBS services under Medicaid. The HCBS Rule applying to individuals receiving Medicaid-funded services in an ALP requires persons living in these settings to have informed decision-making, access to the greater community, and a care plan that is person-centered. Ms. Deetz acknowledged that it was not the purpose of the Challenged Regulations to facilitate compliance with the HCBS waiver standards, but to reduce the mental health census in transitional adult homes. Ms. Deetz believes the Challenged Regulations are a good idea, because they allow a person the right and opportunity to integrate into the community if he or she desires. The purpose of the Regulations is to divert people with serious mental illness into other housing in the community such as supported housing. She testified there were other housing alternatives to living in a transitional adult home. These options included a non-transitional adult home, an enriched housing program, a community residence, a single-room occupancy (SRO) and senior housing. Ms. Deetz acknowledged that it was important to protect the health and welfare of residents in supported housing. She conceded, however, that DOH does not regulate supported housing and does not conduct any kind of inspection of supported housing, community residences, SROs, shelters or mental health shelters. DOH does not have any oversight of the care managers who are responsible for these types of settings. She also did not believe that any State agency regulates supported housing, although OMH has issued non-binding guidelines. Homeless shelters are regulated by the Office of Temporary and Disability Assistance. Ms. Deetz testified about the requirements of compliance plans, including requirements that transitional adult homes improve their living environments to be more home-like, assist residents with independent living skills, and promote community integrations. Several transitional adult homes have added leisure space where residents can meet, added country kitchens where residents can access food at any time and renovated bedrooms for residents. She explained that transitional adult homes are required to teach skills to enable residents to live more independently in another setting, including managing finances, laundering clothes, basic cooking skills, housekeeping, and shopping. These requirements are in section 487.13 of the Challenged Regulations. She explained that the required components of the compliance plans help the individual become more independent with life skills to gain confidence if he or she decided to move out of the adult home. She conceded, however, that no other facility such as a nursing home or hospital are under similar legal obligations. According to Ms. Deetz, the one significant difference between transitional adult homes and other adult homes is their large size. She added that the Regulations reduce the mental health census of adult homes so that an adult home does not resemble “a mini institution for [the] mentally disabled.” She testified that transitional adult homes tended to have certain types of problems more frequently than other adult homes, such as lack of supervision, environmental issues, unsafe smoking leading to fires, and altercations between residents. However, no evidence was adduced demonstrating that any of these issues were caused by a person’s serious mental illness or that a reduction in the census of persons with serious mental illness has led to the elimination of these problems. Further, these are not the stated reasons for the Challenged Regulations or the premise for the clinical advisories. Ms. Deetz conceded that the sole factor upon which an otherwise-eligible person would be denied the ability to live in a transitional adult home is the individual’s serious mental illness. The following factors would not otherwise qualify a person with serious mental illness for admission into a transitional adult home, including in such home’s ALP: age, comorbidities, the treating physician’s opinion, the fact that a loved one or intimate partner already resides there, or the wishes of the individual’s family. She acknowledged that any reason why the individual wants to reside in a transitional adult home is not a factor. Ms. Deetz acknowledged that, before the Challenged Regulations were promulgated, DOH had not conducted any studies comparing how people with serious mental illness recover in large adult homes versus small adult homes. She was not aware of any studies ever having been done by DOH comparing the recovery of persons with serious mental illness in transitional adult homes versus non-transitional adult homes. She was not aware of any studies by DOH or OMH regarding how well people with serious mental illness recover in transitional adult homes versus in supported housing. Moreover, since the adoption of the Challenged Regulations and reduction in the mental health census in transitional adult homes, Ms. Deetz conceded that DOH has not conducted any studies comparing the recovery of persons in transitional adult homes versus non-transitional adult homes. Ms. Deetz conceded that, since their promulgation, no published studies or analyses were done by DOH or OMH comparing outcomes of persons with serious mental illness in transitional adult homes versus supported housing. DOH has not published any studies or analyses comparing outcomes of persons with serious mental illness in transitional adult homes versus any other housing setting. Ms. Deetz was not aware of any such studies having been conducted by OMH. She was not aware of any such studies conducted by anyone that compared the outcomes of persons with serious mental illness in transitional adult homes versus any other setting. She also acknowledged that she is aware of individuals with serious mental illness who have failed in supported housing because they stopped taking their medication. Ms. Deetz agreed that the majority of individuals with serious mental illness receive SSI. She conceded that such individuals would likely not be accepted into an adult home that takes only private pay or excludes persons with mental illness. She was not sure whether, at the time the Challenged Regulations were being drafted, anyone considered the number and location of adult homes that do not accept persons with mental illness. Ms. Deetz agreed that many adult home residents are vulnerable because they are substantially unable to live independently and require a certain amount of personal care and supervision. For example, such residents are unable to take medications without reminders, or to manage their own finances, or unable to sufficiently groom themselves without reminders or assistance. These residents include those with serious mental illness. She conceded that she would consider these persons to be vulnerable if they lived in other residential settings. She conceded that non-transitional adult homes could also have medication lines and serve meals in congregate settings. She admitted that the reduction of the mental health census would not obviate medication lines and that persons having complex medical conditions receiving medications would still have to stand in line for such medications. She admitted that, to her knowledge, the reduction in number of residents with serious mental illness has not had any direct effect on medication lines. Ms. Deetz is not aware of any study, review, analysis, or investigation to determine whether people with serious mental illness living in transitional adult homes have recovered better from their serious mental illness because less people with serious mental illness are being admitted. She could not say whether the choice of a person with serious mental illness to reside in a transitional adult home would affect the mental health of other residents in the home. She acknowledged that a treating physician who also provides treatment in the facility may want a patient in such facility for continuity of care. Ms. Deetz could not say whether the reductions in the mental health census in adult homes has improved the mental health of persons living in the adult homes. She also had no knowledge whether the mental health of persons denied housing in transitional adult homes has improved in those persons. Ms. Deetz agreed that the Challenged Regulations are removing a choice of housing for an individual with serious mental illness. She admitted that, by removing a choice of housing because a person has a serious mental illness, such person is being treated differently than someone else because of that person’s mental illness. C. The Challenged Regulations Originated from Sources Other Than Clinical Data A series of emails received in evidence when the trial record was reopened20 demonstrates that the Challenged Regulations were unrelated to considerations about how persons with a serious mental illness fared in transitional adult homes. The development of the clinical advisories, which formed the very basis for the Challenged Regulations, and the numerical parameters that were ultimately incorporated into these rules, were shown to come from other government sources. As referenced above, negotiations between the State and the DOJ to settle the latter’s Olmstead claims were taking place prior to August, 2012. Ms. Briney testified that negotiations between the State and DOJ included discussions about the settlement and the regulations and that “they were very often talked about together…in tandem.” She acknowledged that the original settlement agreement would cover not only persons with a serious mental illness who were already living in transitional adult homes, but also those moving into these homes after the settlement date. On May 10, 2012, Dr. Gesten forwarded an email to Dr. Sederer that attached a “draft plan” referencing a “clinical advisory” concerning mentally ill residents of adult homes and for which the governor’s office was requesting an immediate update. Dr. Gesten informed Dr. Sederer that he did not know “anything about this but Gov’s office believes you and I have been working on this?!?” Dr. Sederer responded to Dr. Gesten that I heard abt this last night from omh legal counsel I said yes Enuf wiggle room Plus no choice Emails dated May 14, 2012 reveal that DOH legal affairs had already determined that the Challenged Regulations would be affecting “impacted” adult homes “in which 25 percent of the population or 25 individuals, whichever is less, are persons with mental illness.” The emails describe the Challenged Regulations as “a Governor’s priority.” DOH requested that Dr. Gesten assist in developing a clinical advisory to support the Challenged Regulations. Dr. Gesten advised DOH counsel, however: As I said to Jim Dering and Rick Z (and Dr. Sederer from OMH), this (a judgment about ideal percentage of individuals in an adult home with SMI) is not based on clinical evidence or expertise. This is a policy decision which, if the Gov’s office wants the two agencies to jointly endorse, so be it[.] Dr. Gesten emailed Dr. Sederer the same afternoon verifying that DOH counsel was urgently looking for a ‘clinical advisory’…which provides clinical justification for reduction in numbers of SMI in adult homes to something like 20-25 percent that seems to be targeted. [t]hey want both agencies to agree. I’m hoping that you and others at OMH can take the lead in such an advisory, we can look at it and discuss, with the lawyers, and make sure it meets their needs. **** They need this asap…today/tomorrow. Dr. Sederer responded that “we will take a crack at drafting something” and that OMH’s general counsel will contact DOH’s attorney. These emails reinforce the conclusion that these parameters are unsupported by any evidence-based data or clinical research about persons with a serious mental illness. D. The Respondent’s Purported Olmstead Obligations Do Not Justify its Discrimination Against People with a Serious Mental Illness Who Seek or Desire Housing in Transitional Adult Homes As a second justification for the Challenged Regulations, the Respondent relies on the integration mandate set forth in Title II of the ADA and Olmstead. In November 2012, former Governor Cuomo established, by executive order, the State’s Olmstead Plan Development and Implementation Cabinet (see 9 NYCRR §8.84). In October 2013, the State published its Olmstead plan entitled the “Report and Recommendation of the Olmstead Cabinet: A Comprehensive Plan for Serving New Yorkers with Disabilities in the Most Integrated Setting” (“Olmstead plan”). The Court took judicial notice of the fact that New York State issued an Olmstead plan. The Olmstead plan references the Challenged Regulations, and states that the Challenged Regulations are based upon the 2012 OMH Clinical Advisory which declared that transitional adult homes are neither clinically appropriate for the significant number of people with serious mental illness residing in them nor are they conducive to these individuals’ recovery. The Respondent’s reliance on the Olmstead plan for justification of the Challenged Regulations is, however, misplaced. 1. Olmstead Does Not Apply to Any Adult Home, Including Transitional Adult Homes As explained in the conclusions of law, neither Olmstead nor Title II of the ADA applies to adult homes, including transitional adult homes. Adult homes are privately owned and operated. No adult home was established by or is owned or operated by the State or any State agency or other branch of government. Further, as determined above, no evidence was adduced demonstrating that State actions or systems, or that of any State agency or other branch of government, either solely or predominantly caused an unjustified placement, discharge and/or retention of persons with serious mental illness in transitional adult homes. Put differently, there was no proof that the State, any State agency, or other branch of government relied on transitional adult homes causing unjustified placements, discharges and/or retention of persons with serious mental illness in such homes. 2. Kevin Martone’s Expert Testimony about the State’s Olmstead Obligations is Fundamentally Flawed Kevin Martone testified for the Respondent regarding states’ Olmstead obligations. While the Court credits certain aspects of his testimony, the Court accords no weight to his expert opinion that the restrictions imposed by the Challenged Regulations are a reasonable approach for compliance with Olmstead. Mr. Martone serves as the Executive Director of Technical Assistance Collaborative (“TAC”), a national not-for-profit consulting group based in Boston. He consults with state governments and state agencies across the country about Olmstead compliance strategies, including assisting states developing Olmstead plans and complying with Olmstead settlement agreements. TAC has worked with states to develop strategic supported housing plans to meet supported housing requirements in an Olmstead settlement agreement. Mr. Martone works with secretary or commissioner-level teams to develop and draft a plan and convene stakeholder meetings. TAC has also worked with Federal agencies, including the U.S. Department of Justice, SAMHSA, CMS and HUD. Before joining TAC in 2011, Mr. Martone served as the Deputy Commissioner of the New Jersey Department of Human Services for which he oversaw that state’s mental health system. He understands Olmstead as standing for the right of people to live in the most integrated settings possible, and that segregation equals discrimination and states must prohibit this. States have an obligation or a mandate to ensure that people live in the most integrated setting possible. He believed that the Olmstead decision requires states to modify their policies to eliminate discrimination against individuals placed in institutional settings. The ADA’s integration mandate requires public entities or states to ensure that people with disabilities are served in the most integrated settings possible or appropriate to their needs. He described the de-institutionalization movement of the 1960s and stated that what happened was that people were moving from locked psychiatric hospitals into “trans-institutionalized settings” that were segregated in nature and imposed restrictions on people. These settings, he said, were populated primarily with people with disabilities. In his experience, people have a greater opportunity to experience recovery in smaller settings, because there is a greater opportunity for relationships in a smaller setting, and those settings tend to be more integrated in communities. Mr. Martone explained that people in smaller settings can learn independent living skills, such as cooking, cleaning, and budgeting. Supported housing is a type of smaller housing setting. In his experience, most people with serious mental illness are capable of living in supported housing. In his opinion, discharge planning professionals rely on a “traditional linear approach that you go from the most supervised setting like a state hospital” to a still a more supervised setting, and persons in the mental health system are not really given a choice to move into the most integrated setting possible. It is this “continuum of care” that Mr. Martone opines is outdated, because it does not always work for people and gets in the way of recovery. It is not necessary for people to go through the continuum of care to obtain independence. Mr. Martone understood an adult home in New York to be a congregate facility licensed by DOH; a congregate facility is a single-site property where multiple people with a disability live together. He explained that a transitional adult home is under the Challenged Regulations a facility with 80 or more beds with a population of residents with serious mental illness greater than 25 per cent. According to Mr. Martone, every state has large congregate facilities. Mr. Martone explained that the phrase “community-based housing” is a broad definition and is “the alternative to institutionalization.” He acknowledged that an adult home, including a transitional adult home, was still a community-based setting, as are independent supported housing arrangements. As he understood the issue, the United States Supreme Court has said that a defense to an ADA violation allegation could be that the state has an Olmstead plan. Compliance with an Olmstead plan means the state is doing everything possible to ensure that the population at issue is living in the “most integrated settings possible” and it is for the state to define this standard. States have expanded supported housing as the primary way to achieve compliance under Olmstead and the ADA regarding housing for people with disabilities. In his view, a state government is Olmstead-compliant when it is “doing everything they can to ensure that individuals are living in the most integrated settings possible” including developing programs and policies as well as financial supports to enable such persons to live in the most integrated settings possible. He explained that the primary remedy used in Olmstead plans and settlement agreements is supported housing. As part of developing an Olmstead plan, Mr. Martone explained, a state should perform a needs assessment of its system to assess types of housing options that exist or do not exist in the system. He described what that process should entail, including developing, funding or expanding programs in the system that would comply with Olmstead to meet the integration mandate. It also includes assessing what types of programs and services that the system should move away from. Mr. Martone explained that, based upon assessments and data about a state’s existing system, an Olmstead plan will be developed. These plans typically expand supported housing and other types of programs as well as mechanisms to financially support these best practices to ensure success in the community. Mr. Martone explained the importance of a state’s having stakeholder involvement — including people with serious mental illness, those who receive services in the system, family members, and providers of mental health services — when it develops an Olmstead plan. He clarified that well-developed Olmstead plans require the involvement of multiple state agencies and multiple stakeholders to assess the system, identify the problems in it, and explore potential solutions. He reviewed the O’Toole Settlement, the DAI decision and the Department of Justice’s complaint as well as the Challenged Regulations. He had not seen percentage thresholds higher than 25 percent used to define an integrated setting. He frequently refers to a document called The Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act in Olmstead v. L.C. when working with states on Olmstead issues. A state can refer to the document to understand how the Department of Justice interprets or defines a segregated versus an integrated setting. Integrated settings are generally in the 20 to 25 percent range. Mr. Martone opined that, for Olmstead purposes, a 25 percent threshold used to define an integrated setting is reasonable. He explained that, when state systems were grappling with what integration means and trying to quantify numbers, a 20 to 25 percent number is reasonable. “If I think about something that’s over 50 percent or primarily populated with people with disabilities I think of that as a more segregated setting.” According to its guidance, the Department of Justice indicates that integrated settings include scattered-site housing with supportive services; in contrast, segregated settings include congregate settings populated exclusively or primarily with individuals with disabilities or congregate settings characterized by a regimentation of daily activities, lack of privacy or autonomy, a limitation on visitors or limits on an individual’s ability to engage freely in community activities and manage their own activities of daily living. Mr. Martone opined that “New York’s use of transitional adult homes” would likely raise Olmstead compliance concerns. He explained that “[i]n administering the system the state should be working to develop a system that serves people in the most integrated setting possible, and relying on a large congregate setting as a primary housing option for people with serious mental illness is to me discriminatory. It basically sets up that as the primary choice in the system. Again, it’s populated primarily with people with disabilities. People don’t have the opportunities to interact with people with non-disabilities to the extent possible. People’s daily activities are primarily with others with disabilities….to me the practice of realigning that as your housing option in the system is discriminatory.” He described the implementation of the Challenged Regulations as the State having “made a policy choice that large transitional adult homes are not the best practice that they want to have in their system.” When asked how people end up in large congregate facilities like transitional adult homes, Mr. Martone explained they come from various referral sources, such as nursing homes, homeless shelters, a local inpatient unit, and self-referrals. Mr. Martone opined that the Challenged Regulations’ restrictions on admissions of people with serious mental illness into transitional adult homes is a reasonable approach to complying with Olmstead. He stated that New York is not only expanding supported housing opportunities but addressing “front-door” issues by reducing the admission of seriously mentally ill people into institutional settings. He acknowledged that a person’s choice about where to live is important and that people want choice. In the context of choice, Mr. Martone testified that under the Challenged Regulations, a person could still exercise a choice about going to a transitional adult home, but only if the home were at a threshold of 25 percent or less. A person with a serious mental illness still had other housing options. He was not aware of any mandate, however, to provide supported housing, community residence, SRO, or other appropriate community-based living arrangement to a person with serious mental illness who is denied admission into a transitional adult home due to the Challenged Regulations. Mr. Martone was not aware of any settlement agreement of any state with which he was familiar that prohibited a person with a serious mental illness from being admitted in a facility similar to an adult home. Mr. Martone described other states’ Olmstead plans that were designed to settle litigation. TAC has worked with Massachusetts, Nebraska, Pennsylvania, New Jersey, Georgia, and North Carolina. Each state’s Olmstead issue is unique, and “there’s no prescription on how a state can address its own state compliance issues.” Yet he knew of no state other than New York that prevented people with a serious mental illness from making their own decisions about where to reside. North Carolina, whose plan was approved by the federal government, offers consumers a choice in housing, and permits them to reside in an adult home if they choose to do so. There is nothing in North Carolina’s plan that precludes people with a serious mental illness from being admitted into an adult home. This is true of the Kentucky plan as well: people may be admitted into adult homes if they choose, and thereafter, monitoring and transition planning services are provided. The Connecticut plan requires a determination as to whether an individual meets the medical admission criteria but, unlike New York State, does not single out mentally ill people for denial of entry into an adult home. New Jersey’s settlement agreement similarly does not prohibit people with a serious mental illness from choosing to live in an adult home. In terms of Olmstead remedies, Mr. Martone explained that several states such as North Carolina, Kentucky and Connecticut focused on the expansion of supported housing. He opined that providing only for supported housing, however, does not address “front-door” issues, in other words, the filling of beds by people with serious mental illness in a segregated setting. Mr. Martone stated that a person’s choice about where he or she would like to live is important; however, at times a state’s policy directive to facilitate the most integrated settings as possible could interfere with a person’s choice. He cited Kentucky as an example, where his staff worked with the state to set up diversionary services to offer supported housing to individuals up front. He said that admissions into personal care assistance homes have slowed. He was not aware, however, of any Olmstead plan of any other state that precluded admission of persons with serious mental illness into any housing setting whatsoever. In North Carolina’s Olmstead settlement agreement, a person with a serious mental illness is permitted to go into an adult home as long as such person is presented with available housing options and his or her choice is an informed one. If steps are taken to provide a person with information, the choice of the individual is respected. Kentucky’s settlement agreement also does not preclude persons with serious mental illness from being admitted into personal care homes and similarly requires efforts to educate such persons about housing options. Mr. Martone expressed that, in his experience, states, including New York, “have developed a reliance on some of the larger facilities” with respect to the issue of housing. The objective is to rebalance this one-sided system and “create more integrated opportunities” by expanding choices. He stated, “I do think there should be a choice of housing options for people in systems.” Mr. Martone also acknowledged that there are people with a serious mental illness who are not suitable for supported housing and conceded that the wrong residential setting can cause harm to people suffering from mental illness. He acknowledged that success in supported housing depends on the person and his or her unique needs. He conceded that people with mental illness can decompensate and have poor insight into their illness, causing them to go off their medications. A person may also not have the skills to succeed in a more autonomous environment. The Court is unpersuaded by Mr. Martone’s expert opinion concerning the Challenged Regulations. Mr. Martone did not visit any adult home in New York State, including any transitional adult home, instead acquiring information from the DAI case, and speaking with unidentified mental health professionals about transitional adult homes. He did not know what actual data the State looked at when it developed the Challenged Regulations. More importantly, he acknowledged that adult homes are not regulated or operated by OMH. Fundamentally, he did not appear to know that transitional adult homes are privately owned and operated. His opinions were clearly premised on the assumption that the State relies on transitional adult homes for placement of persons with serious mental illness. There was no evidence, however, that people with serious mental illness were placed, discharged or referred to transitional adult homes solely or predominantly by the State or any State agency, or that the State’s referral practices or systems have led to the unjustified segregation of persons with serious mental illness in transitional adult homes. There was also no evidence that the State unjustifiably retained people with serious mental illness in adult homes. While he opined that a person’s choice to live in transitional adult home perpetuates the alleged segregated discriminatory practice that exists in the State, Olmstead was not about whether individuals’ choices result in discriminatory segregation, but instead whether the State’s actions or inactions cause unjustified segregation. Mr. Martone also opined that any restrictions on admissions to a state psychiatric hospital or nursing home would be inappropriate because they are treatment-oriented facilities. The Court is unconvinced with this attempted distinction. Witnesses for both parties also agreed with the premise that housing is part of a person’s treatment. Admissions to psychiatric hospitals and nursing homes may be voluntary, just as admissions to adult homes are. Mr. Martone further conceded that ALPs provide treatment for an individual. Moreover, adult homes provide certain supports to individuals just as these psychiatric hospitals and nursing homes do, including some level of supervision, assistance with medication when required, meals and activities, in addition to a living space (see generally 10 NYCRR Part 415 [nursing homes]; 14 NYCRR Parts 527 & 580 [facilities regulated by OMH]). 3. No Evidence was Presented of Actual Integration of Persons with a Serious Mental Illness into the Community “Integration” into the community of persons with serious mental illness, as well as the benefits derived from such integration, were espoused as key reasons for the Challenged Regulations. Ms. Deetz testified that, since the Challenged Regulations’ adoption, the number of transitional adult homes has declined, and the number of persons with serious mental illness living in transitional adult homes has declined. Even in those homes that continue to be considered transitional, the percentage of residents with serious mental illness has declined. Ms. Deetz explained that these results demonstrate DOH’s goal of integration. Yet, the Respondent made no evidentiary connection between a decline in a transitional adult home’s mental health census and the actual integration of persons with serious mental illness into alternative community settings. None of the Respondent’s witnesses testified that the Challenged Regulations have, in fact, resulted in the integration of persons with serious mental illness into community alternatives. The Respondent presented no evidence about where in the community persons with serious mental illness went after they were denied admission into transitional adult homes. Although acknowledging that persons with serious mental illness are vulnerable members of society, Ms. Deetz testified,” [t]he Department of Health is not in the business of placing individuals with any type of disability.” DOH will provide a person with a serious mental illness denied admission to a transitional adult home with a link to a website or a list where he or she can look at other adult homes having similar services. DOH can also refer the person to one of its regional offices for assistance. If that person cannot find another adult home, Ms. Deetz stated that the person may live in supported housing or in any other arrangement; however, Ms. Deetz did not testify that DOH provides a person with information about other community alternatives such as supported housing, only other adult homes. Moreover, DOH does not monitor or follow up with any person with a serious mental illness precluded from admission to a transitional adult home, or otherwise track or ensure alternative housing was obtained. In other words, the DOH does not ascertain where any persons with serious mental illness ultimately goes. Ms. Briney testified about various housing options that would or could be available to persons with serious mental illness. She also developed a handbook describing these housing options and services available to persons with serious mental illness. But the handbook was not transmitted to anyone other than class members of a lawsuit called Joseph S, which involved nursing home residents. She stated that there is no mechanism for transmitting this information to every person who has a mental illness. While persons with serious mental illness could be eligible for what is described in the handbook, she acknowledged that the government has no legal obligation to ensure that these individuals have knowledge of or access to the housing and services mentioned. There are no court orders that require OMH or DOH to provide persons with serious mental illness the same benefits to which the O’Toole class members are entitled. None of the individuals described by the Petitioner’s witnesses who were denied admission to a transitional adult home received any assistance from DOH or OMH to find a housing alternative appropriate for their needs. Dr. Werner’s uncle needed an adult home setting because his treatment providers determined he could not live independently, but the Challenged Regulations precluded his placement in an adult home near family, resulting in his uncle’s placement in another adult home in a different county. Nor are persons with serious mental illness residing in non-transitional adult homes, i.e., those with less than 80 beds, being integrated into the community. According to Ms. Briney, Olmstead made clear that people have a right to receive needed services in the most integrated setting possible and that it is the State’s obligation to provide such setting. A non-transitional adult home having up to 79 beds may fill those beds 100 percent with persons with serious mental illness. These are persons who are not only excluded from any benefits of the O’Toole settlement, but, as Ms. Briney acknowledged, there are no efforts by the State to integrate these residents into alternative community settings. E. The Challenged Regulations Are Unnecessary To any extent Olmstead applies, the credible evidence established that laws or regulations limiting or “shutting the front door” to housing alternatives are not required for purposes of or compliance with Olmstead. Other states’ Olmstead plans and litigation settlements did not require or employ regulations like the Challenged Regulations. Olmstead (or Title II of the ADA) does not require a state to limit a disabled person’s access to any alternative or limit a disabled person’s choice. Ms. Deetz acknowledged she was not aware of any language in Olmstead requiring persons with serious mental illness to be excluded from living in large adult homes. As discussed further in the conclusions of law, Olmstead expressly acknowledged the need for states to have an array of options for mentally disabled persons; that such individuals should be able to choose what suits their needs best; and that such individuals should be given the option to decline alternatives. The Challenged Regulations concededly eliminate transitional adult homes as an option for persons with serious mental illness, preclude such persons from exercising choice about whether to reside in a transitional adult home, and fail to provide such persons with the ability to decline housing in a transitional adult home. F. The Challenged Regulations Are Not Narrowly Tailored The credible proof adduced at trial established that the Challenged Regulations are not narrowly tailored and that other, less discriminatory alternatives exist to promote the State’s interests in promoting community integration of persons with serious mental illness. On their face, the Challenged Regulations apply to a broad category of persons who have been or were at some time diagnosed with a “serious mental illness,” without regard to any individual circumstances or needs. 1. Less Discriminatory Alternatives Exist to Promote the State’s Interests Witnesses for the Respondent testified that no less discriminatory alternatives exist to the Challenged Regulations. Ms. Deetz acknowledged that everyone should have a choice about where they want to live, but that is not the overarching goal of the Challenged Regulations. She did not believe that giving choice will accomplish the Regulations’ objective. Mr. Martone offered opinions about whether less discriminatory options existed to the Challenged Regulations, assuming the State’s goal of integration. Alternatives such as, for example, giving someone choice, carving out exceptions for ALPs for persons having physical medical issues, refining the definition of serious mental illness in the regulations, and permitting individualized assessments about whether a transitional adult would be appropriate would still impede the State’s goal of promoting integrated housing because the facility would still be populated with disabled people and people with mental illness. But the Respondent’s witnesses acknowledged that other valid or appropriate reasons could exist why a person with a serious mental illness seeks placement in a transitional adult home. Ms. Deetz conceded that a person’s comorbidities rather than his or her mental illness could be a reason why such person is seeking an adult home level of care, including seeking an ALP within an adult home. She conceded that ALPs provide nursing and personal care services to individuals to permit people to age in an environment less restrictive than in a nursing home. Mr. Martone also acknowledged that Olmstead requires consideration of recommendations made by a person’s treatment professional, but that nothing in the Challenged Regulations requires such consideration in determining what housing would be suitable for a person with serious mental illness. The credible proof established that less discriminatory options exist to promote the State’s interests in integrating persons with serious mental illness in other community alternatives and reducing any asserted “institutional” characteristics of transitional adult homes. The Court does not assign any credibility to witnesses testifying that no less discriminatory alternatives exist, because, to any extent Olmstead applies, Olmstead does not require states to limit options for disabled persons. Further, Olmstead explicitly requires consideration of a disabled person’s choice and individual needs. One less discriminatory alternative would be allowing a prospective resident to decide about living in a transitional adult home. The Respondent could require adult homes to provide residents and prospective residents information about alternatives in the community to allow an informed choice. The Respondent could model what is required of nursing homes at the time a person is admitted (see 10 NYCRR §415.3[c][1]); the provision of information about housing alternatives could also be required of case managers employed by adult homes. The Respondent and OMH could train treatment providers and clinicians about alternative choices in the community and disseminate information about such alternatives so that they may discuss same with clients who have serious mental illness. In this way the State could make a proactive effort to alter referral patterns. The Respondent could require transitional adult homes to consider factors such as the prospective resident’s choice, family’s choice, and medical needs including comorbidities. Ms. Deetz acknowledged that allowing a person into an ALP because of medical conditions and not mental illness would be a less discriminatory alternative to the Challenged Regulations. The Respondent could facilitate OMH’s inspection of adult homes in which there is a 25 percent or more census of residents with serious mental illness to identify issues or needs so that OMH may propose standards for adoption by DOH for the protection, health, safety, and well-being of mentally disabled residents, as already permitted by regulation (see 18 NYCRR §485.3[b][2]).21 OMH could coordinate for the provision of job training or cognitive diminution services to adult home residents. OMH could also assess adult home residents who could attend mental health clinics for social function training. The Respondent could relax regulations regarding census-taking at mealtimes and medication administration. The Respondent could concomitantly relax other regulations that impose purportedly “institution-like” characteristics upon adult homes. For example, Ms. Deetz conceded that regulations could be issued directing adult homes to refrain from having residents line up for medications. She testified that DOH could also issue regulations requiring smaller dining areas for resident meals as well as country kitchens where residents can cook. The Respondent could provide funding to transitional adult homes to increase opportunities for individualized recreation. The Respondent and OMH could provide funding to transitional adult homes to provide training to persons with serious mental illness about skills needed for more independent living in the community and to address social skills. In sum, numerous less discriminatory options exist to address the Respondent’s interests. 2. Waivers Do Not Remedy the Discriminatory Effect of the Challenged Regulations DOH may waive non-statutory requirements of Part 487 upon submission of an application for written approval (18 NYCRR 487.3[g][1]). This general waiver provision was in existence at the time the Challenged Regulations were issued in 2013. Blanket waivers — i.e., exemption from the Challenged Regulations — are not permitted and are denied by DOH. DOH has never advised transitional adult homes in a “Dear Administrator Letter” or other official communique that a waiver of the regulations under this provision could be obtained to allow admission of a person with a serious mental illness into a transitional adult home, notwithstanding its mental health census. A transitional adult home cannot use the waiver to increase census of serious mental illness. After the TRO was lifted, DOH sent transitional adult home administrators DAL 19-03 dated January 25, 2019. The DAL advised that transitional adult homes that DOH was adding a waiver process specific to the Challenged Regulations permitting them to admit a prospective resident with serious mental illness, but only if that person had previously been a resident of the transitional adult home and the home could meet the needs of such person. Since January 2019, DOH has granted all waiver requests submitted by transitional adult homes that sought admission of a person with a serious mental illness that had previously been a resident of that transitional adult home and had otherwise met all other general requirements for admission. Both Ms. Deetz and Ms. Hayes explained that the waiver is resident-specific, applying only to people who went into supported housing but who then desired to return to the transitional adult home. Ms. Deetz also testified about DOH’s unwritten policy of “Never tell a resident to apply for a waiver.” Waivers submitted for persons who did not previously reside in the requesting transitional adult home were denied. Nothing in either the general waiver or resident-specific waiver processes ameliorates the discriminatory effect of the Challenged Regulations. The general waiver cannot be used to bypass the quota imposed on transitional adult homes or to allow an admission that would lead to an increase in a home’s resident mental health census. The alternate waiver process applies only to a former resident of a transitional adult home who resided in supported housing but desired to return to the adult home. Neither process considers a person’s choice or individual needs. G. No Other Laws or Regulations Limit Housing Choices for People with a Serious Mental Illness in Any Other Housing Setting Although the Respondent indicates that its goal for persons with serious mental illness is integration into the community, other than transitional adult homes, there is no similar limitation placed on the admission or resident census of people with a serious mental illness applicable to nursing homes, homeless shelters, or any other regulated congregate care settings. H. The Challenged Regulations Harm Persons with a Serious Mental Illness Oceanview offered its expert witness, Dr. Geller, a board-certified psychiatrist22 who opined that the Challenged Regulations are overly broad and lack the empirical data to support them. The Court found Dr. Geller to be credible in all respects. According to Dr. Geller, the definition of a “serious mental illness” as utilized in the field of psychiatry is limited to a small group of disorders that cause a significant functional disability: schizophrenia, schizoaffective disorder, bipolar disorder, major depression, post-traumatic stress disorder, complex post-traumatic stress disorder, and obsessive-compulsive disorder. Dr. Geller contrasted this with the State’s definition of “serious mental illness,” which he says is not consistent with the professionally acceptable definition. In his experience, New York State’s use of this definition is unique. Dr. Geller found the State’s definition to be so broad and inclusive as to capture, for example, between 30 and 60 per cent of students at a college campus, who might suffer from anxiety or depression and a substantial number of those have a functional disability as defined by the Regulations. Dr. Geller opined that the Challenged Regulations are similarly overbroad, yet do not apply to facilities that would fit in the State’s witnesses’ description of an “institution.” For example, Dr. Geller described a mental health shelter in New York City known as The Times Square, which is a single building housing 652 units in which all residents have a serious mental illness. In these shelters, which are like large dorms, residents’ abilities to choose their living circumstances and to come and go freely are significantly limited, unlike in a transitional adult home. Dr. Geller further noted the inconsistent position of the State with respect to its criticism of transitional adult homes: nine mental health shelters in New York City have 200 beds, and all residents have a serious mental illness. The residents are segregated into these housing facilities, in contrast with adult homes, which have a mixed population. Dr. Geller testified that the main population served by transitional adult homes consists of people with comorbidities. There are no adequate alternatives to transitional adult homes for people with both serious mental illness and co-morbidities. People with serious mental illness living in homeless shelters cannot access more appropriate housing because there are an insufficient number of options for these individuals. People in state hospitals in New York State are unable to leave them because there is no place for them to go, even though they do not require hospital-level care. Dr. Geller visited Oceanview on December 31, 2018, for three and a half hours. He observed medicine deliveries. He observed that residents must sit in assigned seats at breakfast for medicine administration. He spoke with residents and toured the facility, including the congregate areas. He observed that there were four to eight bedrooms on each floor, and he observed a bathroom in one of the bedrooms. He did not find these aspects of life at Oceanview to render Oceanview “institutional” such that its resident census of mentally ill residents required reduction to foster recovery. During his visit to Oceanview Manor, Dr. Geller found that the majority of residents had significant comorbidities, including diabetes, dementia, significantly impaired vision, amputations, and osteoarthritis that caused difficulty in ambulation and necessitated the use of walkers due to risk of falling. Dr. Geller found the transitional adult homes in New York that he visited to be safe housing, which fosters recovery, and to have the resources to meet the needs of people with comorbidities. Dr. Geller knows of no evidence-based studies, such as demonstration trials, empirical studies, or analyses, that support the numerical limitations of the 80 bed/25 percent standard as demonstrably improving the welfare of the seriously mentally ill. On the contrary. Dr. Geller opined that the Challenged Regulations interfere with recovery because they disempower a person with a serious mental illness by depriving him or her of a choice in housing; such lack of choice, in turn, also deprives these individuals of hope, which is a fundamental pillar of recovery. He explained that, for an individual with a serious mental illness, choice of housing is fundamental to the concept of recovery: “If we’re talking about individuals with serious mental illness functioning to the maximum extent possible for each one of them in mainstream society and we’re talking about them feeling good about themselves and having a sense of self-efficacy, then, one, a choice of where they live is fundamental to all of those things; and, two, if they’re deprived of the choice, then they’re not being treated like everybody else in society.” Dr. Geller explained that a transitional adult home can foster recovery for a person with a serious mental illness if such home is a choice for the individual, and the deprivation of choice is antithetical to a person’s recovery. Transitional adult homes as a housing option should not be excluded from a person’s choice of pathways to recovery. Dr. Geller opined that Dr. Sederer’s Clinical Advisory (Exhibit 46) was fundamentally incorrect. It stated that certain types of housing are not conducive to the rehabilitation or recovery of persons with serious mental illness where there is a concentration of significant numbers of such persons in those settings. Dr. Geller noted that, if such were the case, then no state should have a state hospital treating any significant number of patients because on its face the hospital could not possibly be recovery-oriented. Dr. Geller also opined that the theory of “learned helplessness” — one of the bases asserted by Dr. Sederer for the Challenged Regulations — was discredited; he explained since that time the substantial research has identified what are known as positive symptoms and negative symptoms in patients who are seriously mentally ill. He explained that negative symptoms, such as apathy, difficulties engaging with others, and lack of social skills, were mistakenly attributed to effects of an institution for people with serious mental illness. Dr. Geller opined that transitional adult homes do not cause behaviors associated with institutionalization. He further noted that older individuals make up a substantial part of the resident population in adult homes, and that such individuals are already well-established in their behavior patterns: Their behavior is “not going to change of necessity because I live in an adult home, and it’s not going to change if the adult home sees as one of its mandates to maximize people’s level of functioning.” Rather, Dr. Geller opined that recovery of a serious mentally ill person is supported through relationships and social networks. He opined that removing a seriously mentally ill person from a traditional institution and moving him or her into an apartment is not tantamount to such person being able “to accrue the benefits of living in the community.” He explained that the individual’s negative symptoms, social skills deficits and cognitive impairments precludes his or her ability to realize such benefits on his or her own. Further, Dr. Geller testified that the respect for an individual with serious mental illness and the elimination of discrimination against persons with serious mental illness is crucial to recovery. Precluding a person with a serious mental illness from moving into a transitional adult home only because such person has a serious mental illness is not only disrespectful, but harmful because such exclusion will remind that person how he or she was discriminated against because of having a serious mental illness. Dr. Geller opined that supported housing cannot always meet the needs of persons with serious mental illness, because such persons do not necessarily have the skill sets, such as organization and recollection, to permit them to reside safely in such housing. Supported housing cannot always meet the needs of persons with serious mental illness who also have comorbidities because the deficits arising from the serious mental illness could impair that person’s ability to tend to his or her medical comorbidities. The overriding consideration should be the individual’s needs and where those needs can safely be met, in view of the individual’s choices, his or her negative symptoms, and social competence or skills. Dr. Geller’s expert opinion was highlighted by Ms. Vider’s testimony about a resident referred to as John Doe, who is schizophrenic and has hoarding issues. He has hypertension and walks using a cane. Mr. Doe was one of the first residents to move from Oceanview to supported housing in approximately 2014. Approximately two years later, in 2016, Mr. Doe desired to return to Oceanview. Ms. Vider told Mr. Doe’s case manager that Oceanview could not allow him to return and that she would need to contact DOH for approval. Mr. Doe did not, however, receive approval from DOH to move back to Oceanview. In approximately June 2017 Ms. Vider, along with her former DPS, went to Mr. Doe’s apartment. Mr. Doe had pinkeye infections in both eyes, he was sweating, and he looked tired. Ms. Vider described his apartment as “completely unlivable”: it was filthy, garbage including food and food container waste, was strewn all over, and there were flies. The bathroom had not been cleaned, there was no toilet paper, and the toilet and the tub were filthy. Two mattresses with no sheets were on the floor in one of the rooms. Mr. Doe’s apartment was also hot because it had no air conditioning. Ms. Vider explained that Mr. Doe had been off his psychiatric medication while living in supported housing. His eye infections also led to a medical condition for which a procedure is needed, but Mr. Doe refuses the procedure. Mr. Doe was eventually permitted to return to Oceanview when the restraining order was in effect. Oceanview monitors his condition and, whenever an eye infection develops, they provide medication for it. Ms. Vider testified about other residents with serious mental illness who moved into supported housing but who were unable to successfully reside on their own and ultimately returned to Oceanview. Dr. Geller concluded that the Challenged Regulations are inhumane because they totally disregard any needs, including medical needs such as comorbidities, of people with serious mental illness and preclude these individuals from exercising choice about where they live. A person with a serious mental illness seeking housing in a transitional adult home due to a medical comorbidity but who cannot live there due to the Challenged Regulations has limited other choices in housing. In contrast, persons without serious mental illness are free to decide to live in a transitional adult home and are not prohibited from living in one. Conclusions of Law Relief Requested and Standard of Review This is a hybrid article 78 and declaratory judgment proceeding in which Oceanview seeks the following relief on its third cause of action: (a) a judgment and order annulling or invalidating the Challenged Regulations as being contrary to law, i.e., the Federal Fair Housing Act as amended; and (b) a judgment and order declaring the Challenged Regulations void, invalid and unenforceable because they conflict with and are preempted by the Federal Fair Housing Act as amended. Oceanview also seeks a judgment and order permanently enjoining the Respondent from enforcement of the Challenged Regulations. Among questions properly raised in an article 78 proceeding is whether a determination “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion….” (CPLR §7803[3]). Where regulations are concerned, the Court remains mindful that “‘[t]he Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation’” (Matter of New York State Land Tit. Assn., Inc. v. New York State Dept. of Fin. Servs., 169 AD3d 18, 30 [1st Dept 2019], quoting Matter of General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004] [internal quotation marks and citation omitted]). “‘It is well-settled that a [s]tate regulation should be upheld if it has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated’” (Matter of NYC C.L.A.S.H., Inc. v. New York State Off. of Parks, Recreation & Historic Preserv., 125 AD3d 105, 111 [3d Dept 2014], aff’d 27 NY3d 174 [2016], quoting Kuppersmith v. Dowling, 93 NY2d 90, 96 [1999] [citations omitted]). “‘Under the doctrine of federal preemption, Congress may preempt state laws, either expressly or impliedly’” (Trezza v. Trezza, 104 AD3d 37, 45 [2d Dept 2012], quoting Sharabani v. Simon Prop. Group, Inc., 96 AD3d 24, 28 [2d Dept 2012] [additional case citation omitted]). “The Supremacy Clause of the United States Constitution, directing that Federal laws ‘shall be the supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’ (US Const, art VI, cl [2]), thereby vests in Congress the power to supersede…State statutory or regulatory law…” as well as state common law (Guice v. Charles Schwab & Co., 89 NY2d 31, 39 [1996]). “Federal preemption of state laws generally can occur in three ways: ‘where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law’” (Sharabani, 96 AD3d at 28, quoting Wachovia Bank, N.A. v. Burke, 414 F3d 305, 313 [2005], cert denied 550 US 913 [2007]). The pre-emption doctrine requires a court to examine the language in a Federal statute to ascertain whether there is “an explicit congressional intent to pre-empt state law” (Barnett Bank, N.A. v. Nelson, 517 US 25, 31 [1996]). In other words, “‘[i]n determining whether federal law preempts state law, the United States Supreme Court has instructed that a court’s sole task is to ascertain the intent of Congress’” (Trezza, 104 AD3d at 46, quoting People v. First Am. Corp., 18 NY3d 173, 179 [2011] [internal quotations and citation omitted]). The Federal Fair Housing Act was originally enacted as Title VIII of the Civil Rights Act in 1968 to prohibit discrimination in housing on the basis of, inter alia, race, color, gender and national origin. In 1988, the Act was amended to extend coverage to persons with disabilities, including persons with mental illness or other mental disabilities (42 USC §3601 et seq)(“FHAA”). Under the FHAA, Congress expressed its intent that “any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this title shall to that extent be invalid” (42 USC §3615). Against the foregoing standards, the Court makes the following conclusions of law. I. The FHAA The FHAA makes it illegal: (1) To discriminate in the sale or rental, or to otherwise make unavailable or deny a dwelling to any buyer or renter because of a handicap of – (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; [or] (C) any person associated with that buyer or renter; or (2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person. (42 USC §3604[f][1], [2]; 24 CFR §100.202[a], [b]). Courts “have broadly interpreted the FHAA, so as to fully effectuate Congress’ remedial purpose” (Cmty. Hous. Trust v. Dep’t of Consumer & Regulatory Affairs, 257 F Supp 2d 208, 220 [D DC 2003]). The United States Supreme Court has held that the FHAA as amended should likewise be given the same generous construction as the original Act (id., citing City of Edmonds v. Oxford House, Inc., 514 US 725, 731 [1995]). “[T]he Act’s provisions are designed “to eliminate all traces of discrimination within the housing field’” (Francis v. King Park Manor, Inc., 917 F.3d 109, 117 [2d Cir. 2019], quoting Cabrera v. Jakabovitz, 24 F3d 372, 390 [2d Cir 1994] [quotation marks omitted]). In this respect the FHA as amended conveys “a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals” (Bronk v. Ineichen, 54 F3d 425, 428 [7th Cir 1995]). “The extension of FHA[A] protections to individuals with disabilities in the 1988 amendments was a recognition of the principle that a person’s disability, no less than his or her race or sex, is an impermissible reason to deny equal access to housing opportunities” (LaFlamme v. New Horizons, Inc., 605 F Supp 2d 378, 386 [D Conn 2009], citing Shapiro v. Cadman Towers, Inc., 51 F3d 328, 333 [2d Cir. 1995]). The amendments to the FHA to include persons with a handicap or disability represented a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion. (id., citing HR Rep. No. 100-711, at 18 [1988], reprinted in 1988 U.S.C.C.A.N. 2173, 2179). According to the House Committee Report accompanying the original FHAA: The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community. (Familystyle of St. Paul, Inc. v. St. Paul, 728 F Supp 1396, 1400-1401 [D Mn 1990] [quoting House Report, 1988 U.S. Code Cong. & Admin. News at 2185], aff’d 923 F.2d 91 [8th Cir 1991]). A. The FHAA Applies to the Respondent The FHAA applies to a state and its political subdivisions (United States v. Parma, 661 F2d 562, 572 [6th Cir 1981], reh’g den 669 F2d 100, cert denied 456 US 926 [1982], reh’g denied, 456 US 1012 [1982]). The FHAA prohibits “governmental entities from implementing or enforcing housing policies in a discriminatory manner against persons with disabilities” (Tsombanidis v. W. Haven Fire Dep’t, 352 F3d 565, 573 [2d Cir 2003]). The Court finds, and the parties did not dispute, that the FHAA applies to the Respondent in his official capacity as Commissioner of DOH, because the Commissioner was authorized by State law to, and did, promulgate the Challenged Regulations (see Social Services Law §461). B. The FHAA Applies to Transitional Adult Homes Including Oceanview The FHAA defines “dwelling” as any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof (42 USC §3602 [b]) (see United States v. Hushes Memorial Home, 396 F Supp 544 [WD Va 1975]). Under the regulations at 24 CFR §100.201, a “dwelling unit” includes “other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling,” with examples “including dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons.” The parties did not dispute the FHAA’s applicability to transitional adult homes as defined in the Challenged Regulations. The Court concludes that transitional adult homes, including Oceanview, are “dwellings” or have “dwelling units” for purposes of the FHAA. C. Serious Mental Illness and Comorbidities are Handicaps under the FHAA Under the FHAA, a “handicap” is defined as a “physical or mental impairment which substantially limits one or more of such person’s major life activities, or a record of having such an impairment or being regarding as having such impairment” (42 USC §3602[h]). A major life activity “means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working” (24 CFR §100.201). A physical or mental impairment includes “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities” (24 CFR §100.201). Mental illness qualifies as a handicap or disability under the FHAA (see Cason v. Rochester Housing Authority, 748 F Supp 1002, 1007 [WD NY 1990]). The Court finds, and the parties did not dispute, that persons with a serious mental illness have a “handicap” for purposes of the FHAA. Persons with a serious mental illness who are residents of transitional adult homes or who seek admission into transitional adult homes, including Oceanview, therefore have a “handicap” for purposes of the FHAA. A physical impairment includes “any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine” (24 CFR §100.201). A comorbidity is a physical condition or impairment that substantially limits one or more of a person’s major life activities, or having had a record of such impairment, or being regarded as having such impairment. A person who has a serious mental illness and a co-morbidity has a “handicap” for purposes of the FHAA. The proof established, and the parties did not dispute, that residents of transitional adult homes, or persons seeking admission into transitional adult homes, including Oceanview, who have a serious mental illness and a comorbidity have a “handicap” for purposes of the FHAA. II. Analysis under the FHAA Because they require a transitional adult home to engage in a discriminatory housing practice, the Challenged Regulations are preempted by the FHAA and are therefore void and unenforceable. Discrimination in housing on the basis of disability can be shown in one of three ways: first, as the result of a disparate treatment, i.e., where a policy or program explicitly affects a member of a protected class or where treatment of a person is intentionally due to his or her disability; second, from facially-neutral law, policy or rule that, when applied, has a disparate impact upon disabled persons; or, third, by demonstrating that the defendant failed to provide reasonable accommodations in rules, policies or practices so as to afford people with disabilities an equal opportunity to live in a dwelling (Human Res. Research & Mgmt. Group v. County of Suffolk, 687 F Supp 2d 237, 254 [ED NY 2010]). The matter now before the Court is a disparate treatment case under the FHAA. There are two types of disparate treatment cases: the first involves adverse treatment in housing because of a protected characteristic, while the other “encompasses allegations that a policy or statute is facially discriminatory, meaning that its terms ‘appl[y] less favorably to a protected group’” (Ariz. Recovery Hous. Ass’n v. Ariz. Dep’t of Health Servs., 462 F Supp 3d 990, 1001 [D Az 2020], quoting Cmty. House, Inc. v. City of Boise, 490 F3d 1041, 1048 [9th Cir 2007]). The former type of intentional discrimination, involving adverse treatment with respect to housing due to a protected characteristic, entails a burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 US 792 (1973) (see Reg’l Econ. Cmty. Action Program v. City of Middletown, 294 F3d 35, 48-49 [2d Cir 2002]; but cf. Human Res. Research & Mgmt. Group v. County of Suffolk, 687 F Supp. 2d at 254 [applying McDonnell Douglas analysis to local law that was discriminatory on its face]). For the latter type of disparate treatment, courts apply the rubric set forth in International Union, United Auto., Aerospace & Agric. Implement Workers v. Johnson Controls, Inc., 499 US 187, 199-201 (1991) (“Johnson Controls”) (see Larkin v. Michigan Dep’t of Social Servs., 89 F3d 285, 289-290 [6th Cir 1996]; Cmty. House, Inc. v. City of Boise, 490 F3d at 1049; Bangerter v. Orem City Corp., 46 F3d 1491, fn. 16 [10th Cir 1995]). “Within this rubric, plaintiffs need not prove malevolent intent and any benign purpose behind the policy does not cure facial discrimination” (Ariz. Recovery Hous. Ass’n, 462 F Supp 3d at 1002, citing Cmty. House, Inc., 490 F3d at 1049).23 This disparate treatment case involves a facially discriminatory regulation. Therefore, the Johnson Controls analysis is appropriate. This requires a plaintiff to establish a prima facie case of intentional discrimination under the FHA by showing that a protected group has been subjected to explicitly differential — i.e., discriminatory — treatment under the statute or rule, compared to others who are similarly situated. The burden then shifts to the defendant to justify the facially discriminatory policy or rule under one of the exceptions permitting facial discrimination by the FHAA: a defendant may demonstrate that the restrictions either (1) respond to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals (see 42 USC §3604[f][9]); or (2) benefit, rather than discriminate against, a protected class (see 42 USC §3604[a]; Bangerter v. Orem City Corp., 46 F3d at 1491, 1503-1504 [10th Cir 1995]). A. Oceanview Has Established Prima Facie that the Challenged Regulations Are Facially Discriminatory Oceanview has established that the Challenged Regulations are facially discriminatory, and the Respondents did not argue otherwise. “A facially discriminatory policy is one which on its face applies less favorably to a protected group” (Cmty. House, Inc. v. City of Boise, 490 F3d at 1048; Bangerter v. Orem City Corp., supra). “With respect to facially discriminatory ordinances, “[d]ifferential treatment on the face of an ordinance demonstrates an intent to discriminate; additional evidence of discriminatory animus is not required’” (Rehabilitation Support Services, Inc. v. City of Albany, 2017 US Dist LEXIS 118324 at *9 [ND NY 2017], quoting Children’s All. v. City of Bellevue, 950 F Supp 2d 1491, 1495 [WD Wash 1997] [citing Bangerter, 46 F.3d at 1500-1501). Motives or reasons underlying a facially discriminatory policy, even benevolent ones, are wholly irrelevant to an "intentionally discriminatory character of the policy" (Johnson Controls, Inc., 499 US at 199; see also Bischoff v. Brittain, 183 F Supp 3d 1080, 1090 [ED Ca 2016]). The Challenged Regulations impose upon transitional adult homes quotas which, once reached, explicitly preclude persons with serious mental illness from applying for or obtaining housing in such home. The Challenged Regulations require transitional adult homes to discriminate against people with a serious mental illness because they must refuse housing to these persons solely due to their disability. The Challenged Regulations on their face deny and make unavailable to a person with a serious mental illness housing in a transitional adult home. The Challenged Regulations, on the other hand, do not similarly affect persons who do not have a serious mental illness, as those without a serious mental illness are free to obtain housing in transitional adult homes. B. The Respondent Failed to Meet Its Burden to Justify the Challenged Regulations24 1. The Respondent’s Evidence Failed to Show that the Challenged Regulations Furthered, in Theory and in Practice, Bona Fide Governmental Interests and that No Alternative Would Serve those Interests with Less Discriminatory Effect In evaluating whether the Challenged Regulations are beneficial to persons with a serious mental illness, the Court adopts a heightened level of scrutiny to determine whether the Commissioner’s underlying rationales pass muster. “[W]here, in the case of the FHA[A], Congress has promulgated a more specific prohibition addressed to a more specific protected class — here, [the handicapped] — a more heightened scrutiny is appropriate in order to assure that Congress’s specific mandate is not thwarted” (Sierra v. City of New York, 552 F Supp 2d 428, 430 [SD NY 2008], citing Cmty. House, 490 F3d at 1050; and Bengerter, 46 F3d at 1503). As stated in the Court’s decision and order on motion for summary judgment, this standard requires the Respondent to prove that the Challenged Regulations further, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect (see Sierra, 552 F. Supp.2d at 431, citing Huntington Branch NAACP v. Huntington, 844 F2d 926, 936 [2d Cir 1988]). Here, the two reasons advanced by the Respondents lack an evidentiary basis. (a) The Respondent Presented No Credible Proof that Transitional Adult Homes are Clinically Inappropriate for or Not Conducive to the Recovery of Persons with a Serious Mental Illness The Respondent failed to adduce any credible evidence demonstrating that the Challenged Regulations, in theory and in practice, further legitimate governmental interests. The Court finds that the Respondent did not have a bone fide governmental interest in reducing populations of seriously mentally ill persons in transitional adult homes. The articulated basis for this alleged interest is that transitional adult homes are neither clinically appropriate for nor conducive to the recovery of such individuals.25 The Respondent failed completely to present credible evidence to support this proposition. The Respondent relies on the two clinical advisories issued by Dr. Sederer on behalf of OMH to justify the Challenged Regulations. The Respondent’s experts attempted to demonstrate that transitional adult homes were “institutions” or an “institution-like” setting and that such settings adversely affected persons with serious mental illness. Transitional adult homes are neither “institutions” nor “institution-like.” The Commissioner’s own rules (separate from and pre-existing to the Challenged Regulations) ensure that adult homes, including transitional adult homes, are not “institutions” or “institution-like.” Pursuant to these rules, residents of adult homes, including transitional adult homes, enjoy numerous freedoms, including the freedom to come and go, exercise autonomy and decision-making, and leave the transitional adult home for other community alternatives. Although the Respondent’s experts complain of regimentation in certain aspects of residential life in a transitional adult home, these aspects are a function of the Respondent’s regulations. Further, these aspects are present in non-transitional adult homes. Transitional adult homes with ALPs are also required to maintain a home-like and non-institutional setting for purposes of the HCBS Rule. No evidence was proffered that any transitional adult home, including Oceanview, were not certified or lost certification for ALP beds because any home was “institutional” or lacked the necessary attributes under the Rule. The Respondent failed to support its assertion that the “institutional” characteristics of a transitional adult home adversely impacted any seriously mentally ill resident’s ability to recover or to otherwise thrive in such home. None of the Respondent’s expert witnesses, including Dr. Sederer, could point to any empirical clinical research, data, scientific articles, or other fact-based studies showing that transitional adult homes are clinically inappropriate housing for persons with serious mental illness and that these adult homes were not conducive to such persons’ recovery. None of the Respondent’s expert witnesses could point to any empirical clinical research, data, studies, scientific articles, or other fact-based studies showing that living in transitional adult homes causes persons with serious mental illness to suffer declines in their mental and physical health. To the contrary, the credible evidence demonstrated that transitional adult homes can and do provide appropriate residential settings for persons with a serious mental illness as well as for persons with dual diagnoses. Transitional adult homes offer not only housing but also services in the form of medication assistance, meals, activities, and housekeeping. The Respondent did not present any proof that a person’s residency in a transitional adult home adversely affected their condition. (b) The Challenged Regulations Originated from Sources Other Than Clinical Data The credible evidence established that the numerical parameters incorporated in the Challenged Regulations originated from sources other than evidence-based research or clinical data. This proof reinforces the findings and conclusion that the clinical advisories forming the basis of the Challenged Regulations were not, in fact, derived from evidence-based research or clinical studies about persons with a serious mental illness living in large adult homes. (c) The Respondent’s Reliance on Complying with the Olmstead Mandate is Misplaced The Respondent asserts that the Challenged Regulations further the government’s bona fide interest in integrating persons with serious mental illness into the most integrated setting possible appropriate for their mental health needs, as required by Title II of the ADA and Olmstead. As explained below, the Respondent’s reliance upon Olmstead is misplaced. i. Olmstead Does Not Apply to Privately Owned and Operated Adult Homes Title II of the ADA proscribes discrimination in the provision of public services and specifies, inter alia, that no qualified individual with a disability shall “by reason of such disability,” be excluded from participation in, or be denied the benefits of, a public entity’s services, programs, or activities. The ADA’s integration regulation requires a “public entity [to] administer…programs…in the most integrated setting appropriate to the needs of qualified individuals with disabilities” (28 CFR §35.130[d]). Public entities are also required to “make reasonable modifications” to avoid “discrimination on the basis of disability” but does not require measures that would “fundamentally alter’ the nature of the entity’s programs (28 CFR §35.130[b][7])(“reasonable modifications regulation”). In Olmstead, the Supreme Court was confronted with interpreting the provisions of Title II of the ADA. Olmstead involved two plaintiffs who were mentally disabled and confined to the psychiatric unit (a locked ward) at Georgia Regional Hospital, a state mental institution.26 Although the individuals had been stabilized, the state hospital refused to release them, despite their treatment teams’ professional assessment that in-patient treatment was no longer required and that the plaintiffs’ treatment needs could be met in a state supported, community-based program.27 The state claimed that it could not release the plaintiffs due to lack of funding for community placement. Both plaintiffs sued to compel their release, asserting, inter alia, that the state officials’ actions violated Title II of the ADA. During the pendency of the action, one plaintiff was released to a community support program. However, she contended that she was not receiving appropriate services and was at high risk of developing problems that would lead her to be re-institutionalized.28 The first question the Court addressed was whether the plaintiffs’ continued segregation in the hospital constituted discrimination for purposes of Title II of the ADA. The second issue the Court addressed concerned the state’s obligations to the plaintiffs as disabled persons. Affirming in part the 11th Circuit’s decision, the Supreme Court held that unjustified institutional isolation constitutes a form of discrimination based on disability prohibited by 42 USC §12132 (Olmstead v. L.C., 527 US at 597, 600). While the terms “institution” and “institutional” were not expressly defined, it is clear that the Court’s holding applies to a state (or other public entity as defined in Title II of the ADA) when it unduly confines disabled individuals in publicly owned and operated facilities (such as the state-run psychiatric hospital in Olmstead). As a corollary, the Supreme Court further held that “States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities” (id. at 607). This latter holding is often referred to as the Olmstead mandate. Title II of the ADA does not apply to adult homes or transitional adult homes such as Oceanview. Title II applies to a “public entity,” defined as “any State or local government” or “any department, agency, special purpose district, or other instrumentality of a State or States or local government” (42 USC §12131[1][A], [B]). Adult homes are privately owned and operated facilities, although they are licensed by the State, are subject to regulatory oversight, and receive public funding in the form of public assistance payments made on behalf of residents. Adult homes were not created or established by the State or state agency or any governmental entity. The conclusion that adult homes, including transitional adult homes, are not “public entities” for purposes of Title II of the ADA accords with several Federal court decisions, including from the Second and Eleventh Circuits. A private hospital having a contract with New York City for certain services is not a public entity for purposes of liability under Title II of the ADA (see Green v. City of New York, 465 F3d 65, 78 [2d Cir 2006]). Likewise, a private entity in receipt of Federal funds does not transform it into a public entity for the same purposes (see Schiavo ex rel. Schindler v. Schiavo, 403 F3d 1289, 1293 [11th Cir 2005] [affirming district court's holding that hospice agency is not a "public entity" even though it receives Federal funding]; see also Edison v. Douberly, 604 F3d 1307 [11th Cir 2010] [discussing Green, supra]). In another case, the Federal district court held that a private group home for intellectually disabled people that received substantial funding from the State, including funds from Medicaid’s HCBS Waiver program, is not a “public entity” for purposes of Title II of the ADA (see Sherkat v. New Eng. Vill., Inc., 2015 US Dist. LEXIS 164379 [D Mass 2015]; see also Doe v. Adkins, 110 Ohio App 427, 434-435 [4th App District 1996] [private not-for-profit mental health agency is not a "public entity" for purposes of Title II of the ADA, even though most of its funding comes from public sources]).29 Additionally, there was no evidence of any state action (or that of a state agency or other public entity) in the placement, discharge, or retention of persons with a serious mental illness in transitional adult homes. Nothing in the record showed that the state’s systems or policies resulted in a person’s unjustified placement, discharge, or retention. Referrals to transitional adult homes come from various sources, including hospitals, nursing homes, self-referrals, and family. While OMH-operated psychiatric facilities discharged persons with serious mental illness to transitional adult homes30, there was no evidence that such discharges or placements were unjustified or that any person with a serious mental illness was retained or confined to a transitional adult home by the State or public entity. Nor was there any evidence that OMH (or any other state agency) was the sole or predominant source of placements or discharges of seriously mentally ill persons to transitional adult homes. The DOJ describes an Olmstead Plan as “a public entity’s plan for implementing its obligation to provide individuals with disabilities opportunities to live, work, and be served in integrated settings” (Exhibit BI) According to the DOJ, 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” (id.). The DOJ acknowledges that the “ADA’s integration mandate is implicated where a public entity administers its programs in a manner that results in unjustified segregation of persons with disabilities”; more specifically, “a public entity may violate the ADA’s integration when it (1) directly or indirectly operates facilities and/or programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities; and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs” (id.)(emphasis added). Olmstead’s integration mandate is aimed directly at public entities, not private facilities. ii. Olmstead Requires Integration on an Individualized Basis and Ensures that the Disabled Person Has a Choice The Respondent asserts that the State retains a bona fide governmental interest in promoting and fostering community integration for persons with a serious mental illness. The Respondent opines that the United States Department of Justice has “targeted” certain housing settings such as transitional adult homes for the purpose of integrating disabled persons into the community, thereby providing further justification for the Challenged Regulations. Assuming arguendo that Olmstead applies, its integration mandate cannot be interpreted in the way the Respondent does for purposes of justifying the Challenged Regulations. The mandate comes into play when state-sanctioned segregation of disabled individuals is “unjustified.” As Olmstead expressly counsels, a determination whether a disabled person is “unjustifiably” segregated and is qualified for other community-based alternatives rests with such person’s treatment providers. These determinations clearly must be made on an individualized basis. The regulations at 28 CFR §35.130(d) provide that a public entity must “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities” (emphasis added). The mandate cannot be read to mean “integration” into the community based solely upon a single, generalized characterization of a group of persons such as here — persons with a serious mental illness — without regard to any individualized assessment of a person’s clinical needs to ascertain whether such person is qualified for other community-based alternatives. The Challenged Regulations needlessly preclude an entire class of persons, based solely upon a serious mental health diagnosis, from obtaining housing in a transitional adult home, without any regard to their individual and clinical needs. This is not the intention of the integration mandate. The Challenged Regulations also preclude persons with a serious mental illness from obtaining housing in a transitional adult home when, although clinically appropriate for other alternatives such a non-transitional adult home or even supported housing, such persons do not agree to the alternatives and would prefer to reside in a transitional adult home. The Challenged Regulations do not provide the opportunity for a person with a serious mental illness to decline housing in a transitional adult home; the option is simply made unavailable by virtue of their having a serious mental illness. There is no federal requirement that community-based treatment be imposed on patients who do not desire it (Olmstead, supra at 602, citing 28 CFR §35.130[e][1] [1998] ["Nothing in this part shall be construed to require an individual with a disability to accept an accommodation…which such individual chooses not to accept"]; and 28 CFR pt. 35, App A, p. 450(1998)(“Persons with disabilities must be provided the option of declining to accept a particular accommodation”]).31 In sum, the Respondent’s reliance on Olmstead in defense of the Challenged Regulations is unjustified. iii. The Respondent Offered No Evidence Demonstrating that the Challenged Regulations Resulted in the Integration of Persons with a Serious Mental Illness into the Community First, the Court rejects the Respondent’s theory that the goal of integration justifies the permanent imposition of quotas of persons with serious mental illness living in transitional adult homes. “[I]ntegration is not a sufficient justification for maintaining permanent quotas under the…FHAA…where…the burden of the quota falls on the disadvantaged minority” (Larkin v. Michigan Dep’t of Social Servs., 89 F3d 285, 291 [6th Cir 1996]). The burden of the Challenged Regulations falls only upon persons with serious mental illness who want to live in a transitional adult home. “The FHAA protects the right of individuals to live in the residence of their choice in the community” (id., citing Marbrunak, Inc. v. City of Stow, Ohio, 974 F2d 43, 45 [6th Cir 1992]). Excluding persons with a serious mental illness from living in transitional adult homes vitiates this right. Second, the Respondent has not demonstrated that the Challenged Regulations furthered, in practice, its asserted goal of community integration. Even assuming that reliance on Olmstead and the integration mandate are proper, the Respondent failed to adduce any evidence that persons with a serious mental illness who were denied admission into a transitional adult home were, in fact, integrated into other community alternatives. iv. The Challenged Regulations Are Unnecessary for Compliance with Olmstead Nothing in Title II of the ADA or its regulations, or in Olmstead, requires the State to limit or restrict availability of housing in private facilities such as adult homes, including transitional adult homes. Rather, the mandate requires a state to make services, programs, and activities available to qualified disabled individuals in the most integrated setting appropriate to the needs of such individuals (see 28 CFR 35.130[d]) — in other words, to expand opportunities for integration in the community. This interpretation is consonant with Olmstead, wherein the Supreme Court emphasized the state’s need to retain flexibility in resources available to disabled persons: “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings” (Olmstead, supra at pp. 601-602). To the extent Olmstead applies, the credible proof established that a regulation that “shuts the front door” to a housing option for persons with serious mental illness is not required. Olmstead expressly indicates that states must be afforded an array of options for caring for and treating persons with mental disabilities and that its decision was not to be interpreted as requiring the closures of psychiatric institutions (Olmstead, 527 US at 597, 601-602). No other state was required to enact a law or regulation prohibiting admission of persons with serious mental illness into settings similar to adult homes in order to settle Olmstead litigation. 2. The Respondent Failed to Prove the Absence of an Alternative that Could Serve the Governmental Interest with Less Discriminatory Effect The Respondent has failed to prove that the Challenged Regulations are narrowly tailored to achieve the State’s interests. In this respect, the Respondent failed to prove the absence of alternatives to the Challenged Regulations that could serve these interests with less discriminatory effect. (a) The Challenged Regulations Are Not Narrowly Tailored The Challenged Regulations are not narrowly tailored to meet the specific needs of any individual resident or prospective resident with a serious mental illness. The Challenged Regulations require no individual clinical assessment of a prospective resident with a serious mental illness about whether a transitional adult home would be an appropriate setting and would serve the person’s needs. The Challenged Regulations do not permit transitional adult homes to accept persons with a serious mental illness who also have a physical medical comorbidity that necessitates the supports offered by the home. There is no provision excepting such persons from the effects of the Challenged Regulations, or otherwise permitting consideration of a medical or clinical assessment regarding the individual’s needs. The Challenged Regulations group all persons with a serious mental illness into one, category without regard to their individual disability or disabilities, housing needs, supports needs, or treatment requirements. The Challenged Regulations preclude a person with a serious mental illness from living in a transitional adult home, even though such housing would be appropriate for his or her needs and such person desires or consents to such housing. The Challenged Regulations fail to provide the opportunity for a prospective resident any choice about living in a transitional adult home. The Challenged Regulations unduly burden persons with a serious mental illness who wish to reside in a transitional adult home but cannot and cause transitional adult homes to refuse housing to such persons even though otherwise appropriate for their needs. (b) The Respondent Failed to Prove that Less Discriminatory Alternatives Do Not Exist As found herein (see infra at IV.E.I), the record proof established that numerous alternatives exist to address the State’s interests that would have less discriminatory effect than that imposed by the Challenged Regulations. (c) Waivers Do not Remedy the Discriminatory Effect of the Challenged Regulations The record proof established that the waivers do not remedy the discriminatory effect of the Challenged Regulations. The general waiver provision is not available to a person with a serious mental illness wishes to reside in a transitional adult home. The waiver process specific to the Challenged Regulations is available only to former residents of a transitional adult home, not to prospective residents, with a serious mental illness. Even though DOH instituted a practice of granting waivers to persons who were former residents of such transitional adult home, the granting of a waiver under 18 NYCRR 487.4(e)(3)(ii)(b) is entirely in DOH’s discretion and does not guarantee a person the ability to live in a transitional adult home (see Doe v. Zucker, 2020 U.S. Dist. LEXIS 222650 [ND NY 2020]). C. FHAA Preempts the Challenged Regulations The FHAA expressly preempts any law “of a State, political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter [and] shall to that extent be invalid” (42 USC §3615). The Challenged Regulations explicitly prohibit a transitional adult home such as Oceanview from admitting a prospective resident with a serious mental illness if the home’s mental health census is 25 percent or more of its total resident population. The Challenged Regulations require transitional adult homes to reduce their mental health census to no more than 25 percent of their resident population and, until such time as they meet this quota, to refuse housing to persons with a serious mental illness. The sole, disqualifying criteria is a person’s “serious mental illness.” The Challenged Regulations do not impact any other groups of persons. No consideration of an individual’s clinical needs, including a physical medical comorbidity that would otherwise render living in a transitional adult home necessary and appropriate, is afforded. The Challenged Regulations remove a disabled individual’s ability to decide whether a transitional adult home meets his or her needs. By requiring a transitional adult home to decline housing to an eligible individual with a serious mental illness solely because of that person’s having a serious mental illness, the Challenged Regulations violate the FHAA. The Court finds and concludes that the Challenged Regulations are preempted by the FHAA, and that the Respondent and DOH must be immediately and permanently enjoined from enforcing the Challenged Regulations. III. For the same reasons articulated above, the Court finds and concludes, that the Challenged Regulations must be annulled because they are irrational, arbitrary, and capricious, and contrary to law as they violate the FHAA. Conclusion As evidenced by the DAI and O’Toole litigation, numerous individuals with serious mental illness or other disabilities do not wish to reside in a large adult home (or continue to reside in one), preferring another setting in the community in which to receive services. Yet the availability of supported housing and other community alternatives to persons with a serious mental illness has remained a persistent problem, although the State has committed to developing additional options and services as evidenced by the O’Toole settlement.32 While it expressed a desire to see an “end [to] practices that steer persons with serious mental illness into adult homes,” DAI never sought, as a remedy on behalf of its constituents, an imposition of a quota upon the number of persons with serious mental illness who could live in a large adult home (see Disability Advocates, Inc., 653 F Supp 2d at 313). Nor did DAI request that persons with serious mental illness be prevented from living in a large adult home (id.). Rather, the objective of DAI’s lawsuit was to compel the State to increase and improve the availability of community alternatives to enable qualified persons with a serious mental illness or other disabilities to receive services in other community settings. (The DOJ’s complaint sought, among other things, a judgment declaring that the State violated Title II of the ADA and Section 504 of the RA by failing to modify “services, programs and supports for persons with mental illness residing in, and at risk of entry into Adult Homes to enable them to receive services in the most integrated setting appropriate to their needs”.) Moreover, DAI’s proposed remedy considered whether each constituent was qualified to live in a community alternative; in other words, that further integration into the community needed to be assessed individually and not be based on a single criterion. Indeed, alternative housing that might be desirable and appropriate for an O’Toole class member, or any other individual, may not be desirable or appropriate for someone with a serious mental illness looking for housing and supports offered by a transitional adult home. There is no “one size fits all” housing arrangement for everyone. In short, the State’s development and provision of supported housing and similar community alternatives do not require restrictions on admissions into transitional adult homes or quotas upon the number of persons with serious mental illness residing in these homes. For the reasons stated above, the Court finds that the Challenged Regulations violate and are preempted by the FHAA and that they are arbitrary and capricious and contrary to law. Those arguments not specifically addressed herein were found to be unpersuasive or were otherwise rendered academic. Accordingly, it is hereby ORDERED AND ADJUDGED, that the Petition is GRANTED as to the third cause of action relative to the Respondent’s regulations at 18 NYCRR §§487.2(c), 487.4 (d), (i), 487.10(3) and 487.13; and it is therefore ORDERED AND ADJUDGED, that the Respondent’s regulations at 18 NYCRR §§487.2(c), 487.4 (d), (i), 487.10(3) and 487.13 are hereby declared to violate, and to be therefore preempted by, the Federal Housing Act as Amended; and it is further ORDERED AND ADJUDGED, the Respondent’s regulations at 18 NYCRR §§487.2(c), 487.4 (d), (i), 487.10(3) and 487.13 are annulled; and it is further ORDERED AND ADJUDGED, that the Respondent, his agents, successors, employees, and all those acting in concert with them are immediately and permanently enjoined from enforcing the regulations at 18 NYCRR §§487.2(c), 487.4(d), (i), 487.10(3) and 487.13. The constitutes the Decision/Order/Judgment of the court. The original Decision/Order/Judgment signed by the Hon. Margaret Walsh, Supreme Court Justice, is being uploaded to the case record in this matter maintained on the NYSCEF website whereupon it is to be entered and filed by the Office of the Albany County Clerk. The Petitioner is not relieved from the applicable provisions of CPLR 2220 and 202.5b(h)(2) of the Uniform Rules of Supreme and County Courts insofar as they relate to service and notice of entry of the filed document upon all other parties to the proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party. (Please note that section 202.5b(b)(2)(I) of the Uniform Rules of Supreme and County Courts directs that service upon non-participating parties must be made in hard copy.) Dated: October 18, 2022
