Full opinion text
MEMORANDUM & ORDER SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW NICHOLAS G. GARAUFIS, District Judge. The Supreme Court held in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), that “[u]njustified isolation ... is properly regarded as discrimination based on disability,” observing that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” 527 U.S. at 597, 600, 119 S.Ct. 2176. The “integration mandate” of Title II of the American with Disabilities Act, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 791 et seq., as expressed in federal regulations and Olmstead, requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” The “most integrated setting,” according to the federal regulations, is “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A. Plaintiff Disability Advocates, Inc. (“DAI”), a protection and advocacy organization authorized by statute to bring suit on behalf of individuals with disabilities, brings this action on behalf of individuals with mental illness residing in, or at risk of entry into, “adult homes” in New York City with more than 120 beds and in which twenty-five residents or 25% of the resident population (whichever is fewer) have a mental illness. Adult homes are for-profit residential adult care facilities licensed by the State of New York (the “State”). Following a five-week bench trial, DAI has proven by a preponderance of the evidence that its constituents, approximately 4,300 individuals with mental illness, are not receiving services in the most integrated setting appropriate to their needs. The adult homes at issue are institutions that segregate residents from the community and impede residents’ interactions with people who do not have disabilities. DAI has proven that virtually all of its constituents are qualified to receive services in “supported housing,” a far more integrated setting in which individuals with mental illness live in apartments scattered throughout the community and receive flexible support services as needed. DAI has also proven that its constituents are not opposed to receiving services in more integrated settings. Therefore, DAI has established a violation of the integration mandate of the ADA and the Rehabilitation Act. Defendants are the New York State Department of Health (“DOH”), the New York State Office of Mental Health (“OMH”), as well as Governor David A. Paterson and the Commissioners of DOH and OMH (collectively, “Defendants”). Defendants are required under New York law “to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill.” N.Y. Mental Hyg. Law § 7.01; see id. §§ 5.07, 7.07. They administer the State’s mental health service system, plan the settings in which mental health services are provided — by both public and private entities — and allocate resources within the mental health service system. See, e.g., N.Y. Mental Hyg. Law §§ 5.07, 7.07, 41.03, 41.42, 41.39; N.Y. Comp.Codes R. & Regs. tit. 18 §§ 485-87. In carrying out these duties, Defendants have denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs. Defendants’ actions constitute discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act. Although Defendants have raised an affirmative defense, they have not satisfied their burden of proof to establish that the relief DAI seeks would constitute a “fundamental alteration” of the State’s mental health service system. Accordingly, DAI is entitled to declaratory and injunctive relief. I. BACKGROUND DAI filed this suit on June 30, 2003, seeking declaratory and injunctive relief. (Compl. ¶ 34 (Docket Entry # 1).) Discovery concluded on November 14, 2006. On February 19, 2009, the court denied the parties’ motions for summary judgment. Disability Advocates, Inc. v. Paterson (“DAI I”), 598 F.Supp.2d 289 (E.D.N.Y. 2009). After considering a voluminous factual record of over 13,000 pages and approximately 675 exhibits, this court resolved a host of legal issues raised by the parties. See id. at 293-94. As threshold matters, the court concluded that: (1) DAI has statutory and Article III standing, (2) Title II of the ADA applies to DAI’s claims in this case, and (3) the Governor is a proper party. See id. at 307-311, 313-19, 356-57. The court also discussed at length the components of the fundamental alteration defense. See id. at 333-39. In DAI I, the court identified several issues for trial. To determine whether DAI’s constituents are in the “most integrated setting appropriate for their needs,” the court would have to determine at trial (1) whether adult homes are the most integrated setting appropriate for DAI’s constituents to receive services, and (2) whether DATs constituents are “qualified” for supported housing. See id. at 319-20 (framing legal inquiry); id. at 331, 333 (concluding that issues of material fact precluded granting summary judgment to Defendants). The court also determined that issues of material fact remained as to the fundamental alteration defense, on which both sides had sought summary judgment. Id. at 349, 356. The court presided over an eighteen-day bench trial from May 11 to June 16, 2009. The court heard testimony from State officials, mental health and other experts, lay witnesses with extensive experience in State government, service providers, and current and former adult home residents, two of whom now live in supported housing. Twenty-nine witnesses testified, more than three hundred exhibits were admitted into evidence, and excerpts from the deposition transcripts of twenty-three additional witnesses were entered into the record, along with the 3,500 page trial transcript. The parties submitted proposed findings of fact and conclusions of law on July 13, 2009 and responses on July 22, 2009. The parties have engaged in numerous settlement discussions over the last six years. After a recent round of settlement conferences before Magistrate Judge Marilyn D. Go, the parties remain unable to settle the case. Accordingly, after considering all of the evidence, this court issues the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure. II. THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT DAI I explains in detail the court’s resolution of numerous legal issues in this case, including the meaning and application of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. See 598 F.Supp.2d at 311-12, 331, 333-39. Here, the court provides a brief overview of the relevant legal standards. It then sets forth the core holdings of DAI I with respect to the applicability of Title II to Plaintiffs claims. A. LEGAL STANDARDS The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress recognized that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). Congress found that “individuals with disabilities continually encounter various forms of discrimination, including ... segregation.” Id. § 12101(a)(5). Title II of the ADA prohibits discrimination in connection with access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; DAI I, 598 F.Supp.2d at 311. To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is a “qualified individual” with a disability; (2) that the defendants are subject to the ADA; and (3) that he or she was denied the opportunity to participate in or benefit from the defendants’ services, programs, or activities, or was discriminated against by defendants, by reason of his or her disability. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003); DAI I, 598 F.Supp.2d at 311. Section 504 of the Rehabilitation Act (“Section 504”) similarly prohibits disability-based discrimination: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....” 29 U.S.C. § 794(a). Claims under the two statutes are treated identically unless — unlike here — one of the “subtle differences” in the two statutes is pertinent to a claim. Accordingly, in this case the court treats the claims under Section 504 as identical to the ADA claims. Henrietta D., 331 F.3d at 272; DAI I, 598 F.Supp.2d at 311 n. 25. It is undisputed that DATs constituents are individuals with disabilities who are protected by the ADA and Section 504. One form of discrimination “by reason of ... disability” is a violation of the “integration mandate” of Title II of the ADA and Section 504. This mandate — arising out of Congress’s explicit findings in the ADA, the regulations of the Attorney General implementing Title II, and the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) — requires that when a state provides services to individuals with disabilities, it must do so “in the most integrated setting appropriate to their needs.” 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d); Olmstead, 527 U.S. at 607, 119 S.Ct. 2176. Delineating the scope of the ADA’s integration mandate, the Supreme Court in Olmstead explicitly held that “[ujnjustified isolation ... is properly regarded as discrimination based on disability.” Id. at 597, 119 S.Ct. 2176. The Court noted that “in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’ ” Id. at 600,119 S.Ct. 2176. The Court recognized that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life ... and institutional confinement severely diminishes individuals’ everyday activities.” Id. There is no federal requirement, however, “that community-based treatment be imposed on patients who do not desire it.” Id. at 602,119 S.Ct. 2176. In its analysis of the ADA’s integration mandate in Olmstead, the Supreme Court deferred to the Attorney General’s interpretation of Title II. See id. at 598, 119 S.Ct. 2176 (“It is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (internal quotation marks and citations omitted). Thus, following Olmstead, courts have looked to the language of the Attorney General’s regulations interpreting Title II, as well as the holding in Olmstead, as the standard by which to determine a violation of the ADA’s integration mandate. See DAI I, 598 F.Supp.2d at 313; Joseph S. v. Hogan, 561 F.Supp.2d 280, 289-90 (E.D.N.Y.2008); see also Townsend v. Quasim, 328 F.3d 511, 516, 520 (9th Cir.2003) (“The plain language of the integration regulation [28 C.F.R. § 35.130(d) ], coupled with the reasoning and holding of Olmstead, direct our analysis in this case.”). The Attorney General’s regulations implementing Title II provide that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d); see also 42 U.S.C. § 12134(a) (requiring the Attorney General to issue implementing regulations). The Appendix to the federal regulations defines the “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), 28 C.F.R. pt. 35 app. A. As discussed in DAI I, the court defers to these definitions and applies them as the legal standard here. A state’s failure to provide services in the most integrated setting appropriate is excused only when the state can demonstrate that the relief sought would result in a “fundamental alteration” of the state’s service system. See Olmstead, 527 U.S. at 603, 119 S.Ct. 2176. The “fundamental alteration” defense is derived from the “reasonable modifications” regulation, which states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). A plurality of the Supreme Court described the defense as follows: Sensibly construed, the fundamental-alteration component of the reasonable modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. Olmstead, 527 U.S. at 604, 119 S.Ct. 2176. As this court noted on summary judgment, evaluating the fundamental alteration defense involves a specific, fact-based inquiry to determine whether the requested relief would impose a “fundamental alteration” of the State’s programs and services, taking into account Defendants’ efforts to comply with the integration mandate with respect to the population at issue and the fiscal impact of the requested relief, including the impact on the State’s ability to provide services for other individuals with mental illness. See DAI I, 598 F.Supp.2d at 334. B. DEFENDANTS ARE SUBJECT TO THE ADA AND THE REHABILITATION ACT Title II of the ADA applies to “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1). Accordingly, all Defendants in this action are subject to the ADA. Pennsylvania Dep’t'of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir.1997) (holding that zoning decisions are subject to the ADA and noting that “programs, services, or activities” is a “catchall phrase that prohibits all discrimination by a public entity, regardless of the context.”), rev’d, on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n. 7 (2d Cir.2001). Additionally, Defendants have stipulated that their programs or activities “receiv[e] federal financial assistance.” As such, they are subject to Section 504. 29 U.S.C. § 794(a). In DAI I, the court held that Title II applies to DAI’s claims in this case. DAI I, 598 F.Supp.2d at 317; see id. at 319 (holding that DAI’s “claim falls squarely under Title II of the ADA”). In doing so, the court rejected Defendants’ argument that the State is not liable under the ADA because the adult homes are privately owned, and finding that it is “immaterial that DAI’s constituents are receiving mental health services in privately operated facilities.” Id. at 317; see Rolland v. Cellucci, 52 F.Supp.2d 231, 237 (D.Mass.1999). The ADA requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). As the court previously held, Defendants’ actions at issue here — including the allocation of State resources among various service settings — involve “administration.” Defendants, as required by New York law, administer the State’s system of mental health care, including residential and treatment services provided by both public and private entities. DAI I, 598 F.Supp.2d at 317. They plan how and where services for individuals with mental illness will be provided, and they allocate the State’s resources accordingly. Id. Defendants are also required under State law to develop a “comprehensive, integrated system of treatment and rehabilitative services for the mentally ill” that assures “the adequacy and appropriateness of residential arrangements” and relies on “institutional care only when necessary and appropriate.” N.Y. Mental Hyg. Law §§ 7.01, 7.07. As this court previously held, “[t]he State cannot evade its obligation to comply with the ADA by using private entities to deliver services that are planned, implemented, and funded as part of a statewide system of mental health care.” DAI I, 598 F.Supp.2d at 318. III. PLAINTIFF’S CLAIMS UNDER THE ADA AND REHABILITATION ACT As set forth below, DAI has proven by a preponderance of the evidence that Defendants have discriminated against DAI’s constituents by reason of their disability. DAI has established that the adult homes at issue are not the most integrated setting appropriate to the needs of DAI’s constituents: the adult homes do not “enable interactions with nondisabled persons to the fullest extent possible,” especially compared to supported housing, a far more integrated setting. DAI has established that virtually all its constituents are qualified to move to supported housing and are not opposed to receiving services in more integrated settings. A. DAI’S CONSTITUENTS ARE NOT IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR NEEDS 1. Legal Standard The law requires that public entities “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). According to the federal regulations, the “most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d); 28 C.F.R. pt. 35 app. A. In DAI /, the court resolved the parties’ dispute regarding the meaning of the federal regulations and concluded that the proper inquiry is whether the individuals at issue “are in the ‘most integrated setting appropriate to their needs,’ defined as ‘enabling] individuals with disabilities to interact with non-disabled persons to the fullest extent possible.’ ” See DAI I, 598 F.Supp.2d at 321 (citing 28 C.F.R. § 35.130(d), App. A and concluding that “the federal regulations mean what they say”). 2. Findings of Fact a. Background Adult homes are a type of adult care facility licensed by the State and authorized to provide long-term residential care, room, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator. Adult homes are privately owned, for-profit facilities. State regulations address many areas of adult home administration and operation, including resident rights, the number and qualifications of staff, physical and environmental standards, and services that must be provided in adult homes. Defendants administer the State’s system of mental health care, including residential and treatment services provided by public and private entities. Defendant OMH licenses, funds, and oversees an array of mental health housing and support service programs statewide, including community support, residential, and family care programs. OMH is also required by law to plan how and where New York’s mental health services will be delivered. In particular, OMH is obligated to “develop an effective, integrated, comprehensive system for the delivery of all services to the mentally ill” and to “create financing procedures and mechanisms to support such a system of services”; it relies on both public and private providers of those services. OMH is also responsible for planning and developing programs and services “in the areas of research, prevention, and care, treatment, rehabilitation, education, and the training of the mentally ill.” The other Defendant agency, DOH, is responsible for, among other things, promoting the “development of sufficient and appropriate residential care programs for dependent adults.” DOH issues operating certificates to establish and operate adult homes. The operating certificates must be reissued every four years. DOH also licenses and monitors adult homes and enforces the applicable statutes and regulations through unannounced inspections of each adult home every twelve or eighteen months, depending on the facility’s record. It can revoke, suspend, or terminate an operating certificate if an adult home fails to comply with State regulations, or if DOH determines that such an action is in the public interest because it would conserve resources. In 2002, there were 12,586 recipients of mental health services residing in adult homes statewide. There are currently 380 licensed adult homes in New York State, and 44 adult homes in New York City. Adult homes in which at least 25% of the residents or 25 residents (whichever is fewer) have mental disabilities are referred to as “impacted.” While the term “mental disabilities” includes both mental illness and developmental disabilities, only a few of the 12,000 individuals with mental illness who live in adult homes have developmental disabilities. The testimony and exhibits concerning “impacted” adult homes refer to those homes with the requisite number of individuals who have “mental illness,” a “mental health diagnosis,” or “history of mental health diagnosis.” Defendants rely on information reported from the adult homes themselves to identify which homes are impacted. Impacted adult homes must enter into a written agreement with a provider of mental health services for assistance with the assessment of mental health needs, the supervision of mental health care, and the provision of case management for residents enrolled in mental health programs. i. The Adult Homes at Issue According to the most recent data, the DOH Adult Care Facility Census Report for 2008 (“DOH 2008 Census Report”), there are twenty-eight impacted adult homes in New York City with more than 120 beds. These adult homes are: Anna Erika Assisted Living, Bayview Manor Home for Adults, Belle Harbor Manor, Bronxwood, Brooklyn Adult Care Center, Castle Senior Living at Forest Hills, Central Assisted Living LLC (formerly known as New Central Manor), Elm-York LLC, Garden of Eden, Lakeside Manor Home for Adults, Long Island Hebrew Living Center, Mermaid Manor Home for Adults, New Broadview Manor Home for Adults, New Gloria's Manor Home for Adults, New Haven Manor, Oceanview Manor Home for Adults, Park Inn Home for Adults, Parkview Home for Adults, Queens Adult Care Center, Riverdale Manor Home for Adults, Rockaway Manor Home for Adults, Sanford Home, Scharome Man- or, Seaview Manor LLC, S.S. Cosmas and Damian Adult Home, Surf Manor Home for Adults, Surfside Manor Home for Adults, and Wavecrest. As of December 31, 2008, each of these adult homes housed more than one hundred residents, and seven housed over two hundred residents. More than eighty percent of the residents in these twenty-eight adult homes are reported as having mental illness. In eighteen homes, more than 95% of the residents have mental illness, and in nine homes, 100% of the residents have mental illness. In only four homes do less than 50% of the residents have mental illness. According to the DOH 2008 Census Report, more than 4,300 individuals with mental illness were living in these adult homes on December 31, 2008. Certain details of operation and resident population of the adult homes may vary, but as a factual matter, there are no material differences among these adult homes with respect to the issues in this case. As used below, “Adult Homes” refers to impacted adult homes in New York City with more than 120 beds. ii. The Development of Adult Homes in New York State Adult homes in New York State were originally designed to house the “the frail elderly,” not people with psychiatric disabilities. They became a place for people with mental illness to live and receive services when the State began to deinstitutionalize its State psychiatric hospitals in the early 1970s, and State psychiatric hospitals began discharging patients directly into adult homes. As former OMH Commissioner James Stone noted, adult homes developed because “community resources weren’t up to speed with state operated bed reductions” resulting from deinstitutionalization. Thirty years ago, New York State and New York City government reports referred to adult homes as “de facto mental institutions” and “satellite mental institutions.” According to Linda Rosenberg, a former Senior Deputy Commissioner of OMH who worked in the State’s mental health system from the early 1970s to 2004, OMH’s approach to the community integration of people with severe mental health issues evolved over the years, and “it became increasingly clear that [adult homes] were neither desirable, nor would they really promote people’s recovery and integration and full social inclusion.” iii. Adult Homes Continue To Be a Discharge Option from Psychiatric Hospitals Adult homes have long been, and continue to be, a discharge option for individuals leaving psychiatric hospitals. Numerous current and former Adult Home residents testified that they were discharged from a psychiatric hospital into an Adult Home. The percentage of people discharged from psychiatric hospitals into adult homes in New York City declined significantly from the mid-1990s to 2005, which Ms. Rosenberg testified “speaks to our belief [at OMH] at that time and I think it continues now that adult homes are not desirable places to live.” Nonetheless, OMH made efforts in 2008 to facilitate discharges from State hospitals in the New York City area to adult homes in New York City, including a number of the impacted Adult Homes at issue in this litigation. In particular, OMH’s Director of Case Management Services, Mitchell Dorfman, made recommendations for referrals to adult homes, including the Adult Homes at issue in this litigation, for psychiatric patients who had been approved for supported housing. Mr. Dorfman also told adult home operators concerned about the fiscal impact of a recent legislative initiative to provide 60 beds of supported housing to Adult Home residents that “in whatever way we can help facilitate referrals to the adult home we would work with you and do that.” High-level State employees in OMH’s central office, including Robert Myers, OMH’s Senior Deputy Commissioner for Adult Services, were aware of these recent efforts to facilitate discharges from state psychiatric hospitals to impacted Adult Homes, and did not express any concerns or stop this process. b. Adult Homes Are Institutions That Segregate Individuals with Mental Illness from the Community i. Adult Homes Are Institutions The overwhelming evidence in the record compels the court to find, as a factual matter, that Adult Homes are institutions. Indeed, in its June 4, 2007 “Guiding Principles for the Redesign of the Office of Mental Health Housing & Community Support Policies,” OMH characterizes adult homes as institutions: as a consequence of poor access to community housing, inadequate levels of mental health housing, and clinical programs that do not support people in getting/keeping housing successfully, many people with mental illness are poorly housed or institutionalized. Thus, many people with mental illness are “stuck” in ... institutional settings (nursing homes, adult homes, state psychiatric centers). The court uses the term “institution” as defined by Elizabeth Jones, one of DATs experts, who explained that: “[An] [i]nstitution, in my mind, and in my experience, and in the literature, is a segregated setting for a large number of people that through its restrictive practices and its controls on individualization and independence limits a person’s ability to interact with other people who do not have a similar disability.” As set forth more fully below, the evidence demonstrates that Adult Homes have the characteristics Ms. Jones described. Witnesses for both sides testified that Adult Homes share many salient features of State psychiatric hospitals. First, Adult Homes house a large number of people with psychiatric disabilities in a congregate setting. As Defendants’ expert Alan Kaufman observed, “significant numbers of residents suffer from serious mental illness .... The number of beds in many of the larger Adult Homes, as well as their physical layout, furnishings, and decorations, also give an appearance similar to that in an institutional setting.” Second, life in the Adult Homes is highly regimented. Adult Homes, like other types of institutions, “are designed to manage and control large numbers of people ... by eliminating choice and personal autonomy, establishing inflexible routines for the convenience of staff, restricting access, implementing measures which maximize efficiency, and penalizing residents who break the rules.” In particular, there are inflexible schedules for meals, taking medication, receiving public benefits, and other daily activities. Residents are assigned roommates and are required to sit at a specific seat at a specific table in the cafeteria; they must seek permission to change these assignments. Most Adult Home residents line up to receive their medications at scheduled times. Long lines also form for receiving personal needs allowances, the portion of residents’ Supplemental Security Income allocated for the residents’ personal use. Witnesses observed that Adult Homes had the look and feel of “back wards” of State hospitals and were “reminiscent of a state psychiatric hospital and its culture.” Adult Homes are not identical in all respects to psychiatric hospitals, however. In some ways, Adult Homes are even more restrictive or “institutional” than psychiatric hospitals. For example, Plaintiffs expert Dr. Kenneth Duckworth testified that in his experience, unlike the Adult Homes, psychiatric hospitals do not have assigned seating for meals and do not necessarily distribute medication at mealtimes. Ms. Jones testified that lines at the Adult Homes, which had “200, 400 people all mingling together and standing in line for medication,” were longer than those at psychiatric hospitals, because psychiatric hospitals are divided into wards of approximately twenty people. In certain respects, however, Adult Homes are less restrictive than psychiatric hospitals. For example, Adult Homes do not have a “privilege” system that explicitly limits residents from leaving the grounds, as is common in psychiatric hospitals. In addition, because adult homes are prohibited by law from housing people who are a danger to themselves or others, they do not impose some of the restrictions psychiatric hospitals place on their patients, such as restricting access to mail, limiting smoking at certain times of day, or prohibiting them from carrying matches. Nonetheless, Adult Homes bear little resemblance to the homes in which people without disabilities normally live. As Defendants’ expert Mr. Kaufman observed, medical and mental health staff are a constant presence in Adult Homes. Meals, medication, phone calls, and mail deliveries are announced over a public address system. Privacy is extremely limited. The Adult Homes have large numbers of residents and staff, and there are few or no private spaces in which to receive visitors or talk on the phone. Residents of Adult Homes are subject to an extensive and significant set of rules. For example, Adult Homes restrict when and where residents may receive visitors; restrict when residents may be absent; and require visitors to sign in and state the purpose of their visit. In addition, while some of the Adult Homes do not have curfews, other Adult Homes have evening curfews after which doors are locked and residents must be admitted by staff. In some Adult Homes, residents are not provided keys to the front doors, and residents sometimes have trouble getting back into their buildings. Even in Adult Homes without a curfew, residents may be required to notify staff each time they leave the facility. Some Adult Homes prohibit residents from decorating their rooms, though others do not. Some residents have expressed fear that they will be subjected to retaliation if they do not follow the Adult Home’s rules or complain about the Adult Home, and some have been arbitrarily penalized. The court is persuaded by the opinion of Ms. Jones and DATs other experts, as well as lay witnesses who testified based on their personal observations, that the Adult Homes are institutions: segregated settings that impede residents’ community integration. Ms. Jones, who spent seventy-five hours in twenty-three Adult Homes in both scheduled and unannounced visits explained: I can’t state strongly enough that these facilities are institutions. These facilities are like the institutions that I worked in when I started my career. These are settings that are caught in time almost. They are not like even the psychiatric settings of today where I’ve been a director. These are outdated institutional facilities that restrict and constrain people’s freedom and their ability to learn and exercise skills. These are the buildings and the places that were here in the '70s when my career started, when the court cases were first entered into. These facilities do not represent current practice in the mental health field. As Dr. Duckworth testified, “[t]he adult homes have ... some of the elements of a homeless shelter and some of the elements of a state hospital. The culture is quite institutional in some ways, even more institutional than a state hospital in my opinion.” Similarly, former OMH Senior Deputy Commissioner Ms. Rosenberg described Adult Homes as “institutional living at, potentially, its worst.” She observed that Adult Homes “impede community integration” and are “little ghettos” with “people sitting out front [of] the adult home, smoking, going back in, sitting in the lobby, not much going on and not much exposure to the rest of the world.” Residents live in bedrooms with assigned roommates, eat meals only at set times, live exclusively with other people with serious mental illness, and are completely “defined by their illness.” ii. Much of Residents’ Daily Lives Takes Place Inside the Adult Homes Much of Adult Home residents’ daily lives takes place inside the Adult Homes. As Ms. Jones observed, “[t]here is a large number of people who seem to stay in the homes and don’t really go out a whole lot at all.” Residents spend most of their days in activities organized for them by the Adult Homes and/or mental health providers associated with the Adult Homes. Adult Homes are required to provide a program of activities in the facility as well as in the community, and DOH has cited Adult Homes for failing to provide a sufficient program of activities. Activities provided by Adult Homes in-elude games, puzzles, and other child-appropriate leisure activities. For example, activities provided on-site at Riverdale Manor through the case management program include computer games suitable “for a three-or four-year-old,” and a calendar of recreational activities at Surfside Manor lists activities such as beads, nail painting, and bingo. A former Adult Home resident testified that the activities “had you coloring, like a little kid; you play Bingo, like a little kid; you play domino, like a little kid; and you play cards, like a little kid.” When asked at trial about the Adult Home’s activities, an Adult Home resident answered, “[t]hey really don’t have too much of anything. It’s like just maybe playing cards, cribbage, puzzles, stuff like that; but they really don’t have anything much to do.” Adult Homes also arrange for religious services and musical performances inside the facilities. Many Adult Home residents also see medical and mental health professionals inside the facilities. In general, residents are assigned doctors and psychiatrists, usually on-site in the Adult Homes, and are told when to see the treatment providers. For example, Park Inn contracts with local medical facilities and psychiatric centers that provide on-site doctors, psychiatrists, and social workers, and the majority of residents of Park Inn attend on-site mental health clinics and are treated by on-site doctors and mental health professionals. Because Adult Homes almost always hold residents’ Medicaid cards, residents generally see the providers selected by the Adult Homes — many of which have a financial interest in controlling who provides medical care to residents — and residents must ask permission to access community-based care. Unless residents are involved in an off-site mental health program, they do not have much interaction with individuals outside of the Adult Home setting. When they do leave the facility to attend mental health programs, they are transported to the programs in ambulettes, buses, or vans, and their time in the programs is spent with other individuals with mental illness. While Adult Home residents have the right to “leave and return to the facility and grounds at reasonable hours,” in practice they are limited in the times that they can leave the Adult Homes, due to the rigid schedules for meals, medications, and distribution of personal needs allowances. For example, while residents are not precluded from eating outside of the Adult Home, they must be present at times when their medication is dispensed, usually at meal times and at nighttime, or they are penalized. Facility rules for another Adult Home require residents to notify a “staff supervisor” if they will miss a meal. While Adult Home residents have the right under State regulations to manage their own medications, there is overwhelming evidence that the vast majority of Adult Home residents are not permitted to administer their own medication. A few residents have successfully reclaimed their right to self-administer their medication by obtaining their doctor’s permission to do so. iii. Residents’ Access to Neighborhood Amenities There is evidence that some Adult Home residents visit, to varying extents, neighborhood amenities, such as stores, parks and/or beaches, restaurants, libraries, religious institutions, and entertainment facilities. The testimony of current and former Adult Home residents demonstrates, however, that not all residents leave the facilities, and those who go out do not do so often, nor do they spend significant amounts of time outside of the facility. For example, one resident testified that a few residents never leave the Adult Home building, and estimated that “maybe ten” of the other residents visited the nearby boardwalk. A former resident testified that he attended church outside the facility, but only on a total of three occasions during the entire time he lived in the Adult Home. Another former Adult Home resident testified that only eight of the 216 residents went to restaurants in the neighborhood; and that he has only seen a handful of residents leave the facility to go shopping, go to the park, or attend religious services. Another resident testified that residents walk around the neighborhood and go outside the facility to shop for toiletries and other items roughly ten to fifteen times per year, but no more than three residents go to a park. He also testified that residents eat out to the extent their monthly funds allow it because the food at the facility is so bad, and that while he goes out of the facility to get food, he does “most of [his] eating in the building up in [his] room.” In addition, while the Adult Homes are located near some neighborhood amenities such as stores, fast-food restaurants, libraries, parks, churches and synagogues, and beaches and/or boardwalks, accessibility depends on how far particular residents can walk. The Adult Homes are located within several blocks of public transportation, but the familiarity of Adult Home residents with public transportation varies, as does the frequency with which the residents use public transportation. Some Adult Home residents have reduced-fare Metrocards. One Adult Home resident testified that she “do[es]n’t really know the buses” in the neighborhood but has taken the bus more than twice, that she is unfamiliar with the subway and has only taken it once since living in the Adult Home, and that she mostly gets around by walking. Others are more familiar with public transportation; for example, when G.L. lived in the Adult Home, he took public transportation with his roommate approximately once per month to stores. There is evidence that a handful of residents have traveled via public transportation to entertainment or cultural events in Manhattan. When asked whether she had observed residents coming and going from the Adult Homes, Ms. Jones testified that: Some residents do; some residents are quite capable. These residents have worked around the routine of the day and make trips to the local resources, may get on a bus and go somewhere. People’s ability to go out of the adult home is impacted, of course, by the fact that they have little free money to use for those types of things. But, again, there are many, many people who don’t do that, who stay in their room, who stay in the day room, or who sit outside on the perimeter of the adult home smoking cigarettes and, you know, being with other adult home residents. She testified that the fact that some Adult Home residents come and go does not change her conclusion that Adult Homes are segregated settings, because “there is nothing in the adult home that’s contributing toward the integration of people in their communities.” She explained that “[t]he people that are going out and doing things in their community, in their neighborhood, are people who have taken that initiative upon themselves. The people that need support in doing that are not being assisted by the adult home to have those interactions ....” iv. Organized Trips The Adult Homes and mental health programs take residents on organized trips, and the regulations require adult homes to arrange for “resident participation in community-based and community-sponsored activities.” Such outings contribute little to residents’ integration into the community, however. The residents generally travel as a group, in a bus or van, and interact mainly with each other. At Park Inn Home for Adults and numerous other Adult Homes, the number of residents who can go on each trip is limited to the number of persons that can fit in a van. Before Park Inn recently acquired a van, it used ambulettes to take groups of residents on monthly outings to restaurants and movies. Seaview takes between ten and twenty residents each month to Wendy’s. Residents of River-dale Manor Home for Adults are taken by a mental health provider, the Federation of Employment and Guidance Services (“PEGS”), on “field trips” to museums and libraries, but the visits are after hours when the facilities are closed to the general public. v. The Adult Home Setting Limits Residents’ Opportunities To Interact with People Who Do Not Have Disabilities Overall, Adult Homes provide little support or encouragement for residents to interact with people who do not have disabilities or to become integrated into the community and limit opportunities for social interaction and employment. As Plaintiffs and Defendants’ experts agree, and as Adult Home residents testified, Adult Homes limit the development of relationships with people who do not have disabilities, including social contacts. While Adult Home residents form friendships and romantic relationships with other Adult Home residents, many residents testified that they lack friends outside the Adult Home, and to the extent such friendships exist, they often predate their admission to the Adult Home. While some residents have spoken to or met people on the street, other residents testified that they do not know anyone or have any friends outside of the Adult Home. For example, J.M. testified that when he lived in the Adult Home, he talked to people in the neighborhood and visited a woman in her home, but that he had never seen any other residents of the Adult Home speaking to people in the neighborhood. One resident testified that “I met one person once [in the neighborhood] and when they find where you are from, they avoid you.” Another resident testified that “[y]ou’re in program, you’re in home. All your energy is surrounded with the home, so it’s hard to meet different people.” Some residents testified that they feel isolated living in the Adult Homes. For example, one resident testified that “the first seven years I lived at [the Adult Home] I basically gained 135 pounds feeding my loneliness.” While it is possible for a person to feel isolated in any setting, including supported housing, Defendants’ expert Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated than residents of group homes. Some Adult Home residents have visitors, although as noted above, Adult Homes place significant restrictions on receiving visitors, such as visiting hours and requirements that visitors sign in. For example, a former Adult Home resident testified that his stepfather visited him in the Adult Home, but that his stepfather and others visit him more frequently now that he lives in supported housing, because in the Adult Home there was nowhere to have a private conversation, the visiting areas were small, guests could not join in meals, guests had to sign in, guests were not allowed to stay overnight, and visiting hours ended at 8 p.m. One resident testified that her sister and niece visited her “about twice” since she moved to the Adult Home and that both times, they went out to eat; she testified that she did not want to spend time with them in the Adult Home, because her roommate stays in the room most of the time, and she did not want to take her visitors “downstairs” or to the “smoking room.” Another resident testified that she receives no visitors other than family members, and that they cannot spend time with her at the Adult Home because the staff gets in the way. Another resident testified that her sister sometimes picks her up and takes her to the sister’s house, but when asked whether her sister visits with her inside the Adult Home, she answered only that her sister had “been inside” the Adult Home before. A resident testified that he never has visitors at the Adult Home, while another resident testified that no friends visit her but several relatives do, and that she sees them in the lobby. Not many Adult Home residents visit family and friends outside the Home, and the ones who leave to visit people do so to varying extents. Hinda Burstein, the administrator of Park Inn, testified that residents of Park Inn “occasionally” leave the facility to visit their families. She estimated that approximately ten percent of the residents have made weekend visits to their families, and some residents have traveled out of state to visit relatives. An Adult Home resident testified that he has visited a friend outside the Home only six times in nine years, estimated that about 25% of the residents visit their relatives outside the Adult Home (but that the most frequently anyone visited a relative outside the home is twice per month), and stated that he knew of one resident who stayed overnight at his mother’s house in the neighborhood. Another resident testified that he does not have any family and friends outside the Adult Home with whom he keeps in touch. As numerous witnesses testified, the Adult Home setting limits opportunities for residents to pursue employment opportunities. For example, Dr. Jeffrey Geller, one of Defendants’ experts, agreed that living in a place where the phone is answered “Brooklyn Adult Care Center” “diminishes your work options and social contacts.” Very few Adult Home residents are employed or have volunteer positions outside of the Adult Home, and such jobs are often short-lived. For example, one resident testified that a social worker helped him obtain a previous job as a messenger, but he was fired after seven weeks. Another resident testified that he kept his previous job at a newsstand once he was admitted to the Adult Home, but the job now occupies only three to four hours per week and no longer involves interacting with customers. Another resident “helped out” at a coffee cart as a volunteer for a year. A very small number of residents participate in vocational training; for example, eight to twelve out of the 181 residents at Park Inn participate in vocational training. There is evidence that one Adult Home resident obtained a GED since she moved to the Adult Home in 1985. vi. Mental Health Programs and Case Management Contribute Little to Residents’ Integration into the Community Many Adult Home residents with mental illness receive mental health services from a variety of sources, including clinics, continuing day treatment programs (“CDTs”), and private practitioners. Adult homes are also required to provide basic case management services, and OMH’s Case Management Initiative funds independent case managers in eleven of the Adult Homes. While some residents leave the facilities to attend CDT or other mental health programs, attending these programs contributes to residents’ isolation and separation from the mainstream of community life. The court heard testimony from service providers from nonprofit agencies that run mental health programs serving Adult Home residents. For example, Susan Bear testified about OMH-licensed CDTs run by the Jewish Board of Family and Children’s Services (“Jewish Board”), which have groups that focus on symptom management, spirituality, meditation, relationship building, medication management, cooking, and computers. Licensed CDT programs run by FEGS, serving Adult Home residents both on-site and off-site, are intended to help clients use community resources, learn self-care and self-medication, and prepare for employment. While CDT programs have laudable goals for participants, the evidence demonstrates that they have little focus on skill development. A December 2006 review by the New York State Commission on the Quality of Care for and Advocacy for Persons with Disabilities (“CQC”) of CDT programs noted a “disconnect” between participants’ life goals of gaining independent living and job skills and the goals that the programs had set for them. The CQC report found that some day treatment programs are characterized by group television and movie watching and art “programs,” which may only involve the provision of crayons, markers, and coloring books. Because Defendants concede that CDT programs are “outdated,” they are trying to make CDTs and other mental health services “more evidence-based and recovery-oriented,” while also directing funds away from these types of programs. One Adult Home resident testified that he had been attending a CDT program for fourteen years where he and seventeen or eighteen other residents “go to groups all day” in which providers “try to get us ready for the outside.” He testified that the groups offered “skills training” and that the groups “sometimes” talked about jobs, but he could not remember anything that was said about jobs, and the group leaders never talked about applying for jobs, writing resumes, or looking in classified ads. Another resident testified that the mental health program he attends, which “gives you something to do during the day,” provides arts and crafts, and sometimes movies and Bingo, but that the program does not offer any classes or self-help groups, does not talk about jobs, and has taken participants on only two trips, both to Chinese restaurants. Case management is also designed to help residents with independent living skills. Defendants’ witnesses testified that case managers work with residents to help the residents learn about shopping, accessing community resources, and taking public transportation. For example, Frances Lockhart testified that case managers from Federation of Organizations (“Federation”) teach Adult Home residents how to shop for clothes. An Adult Home resident testified, however, that while Federation takes residents shopping for clothes twice per year, “they don’t give you the money in your hand and let you buy your own clothes.” Ms. Burstein testified that at Park Inn, case managers informally assist two or three residents at a time with using the computer, and that that the “more sophisticated” residents use the internet to look for jobs, buy clothing, or enter “chat rooms.” As Mr. Jones testified, the OMH Case Management Initiative primarily “arrange[s] services within the existing setting,” it does not “deal frontally with the issue of where people live.” To the extent that mental health programs or case management aim to teach independent living skills, such as cooking, budgeting, and grocery shopping, residents have little or no opportunity to practice these skills in their present living situation. Experts for both sides testified that the most effective way for people with mental illness to recover and retain skills is to practice them in the environment in which they actually live. For example, residents are unlikely to learn to cook in the Adult Home environment simply because a training kitchen is installed. Therefore, while it is possible for Adult Home residents to benefit to some extent from these programs, the weight of the evidence shows that they are unlikely to gain a significant benefit from this type of training or develop any lasting skills. Inspections of the Adult Homes have cited violations related to residents’ rights and ability to participate in their surrounding community and to learn independent living skills. vii. Adult Homes Discourage Residents from Engaging in Activities of Daily Living and Foster “Learned Helplessness” The Adult Homes foster what witnesses for both sides have referred to as “learned helplessness”: when individuals are “treated as if they’re completely helpless, the helplessness becomes a learned phenomenon.” This is consistent with Defendant OMH Commissioner Hogan’s testimony to the Legislature that in institutions in general, “the skills of community living are eroded by the routines of institutional life.” The Adult Homes discourage— and some outright prohibit — residents from cooking, cleaning, doing their own laundry, and administering their own medication. The Adult Homes also generally manage residents’ personal needs allowances, distributing cash to residents on specified dates and times. The result is that Adult Home residents lose skills that they had prior to living in the Adult Home — such as medication management — because they are forbidden from practicing those skills in the Adult Home. As one former Adult Home resident testified, “[W]hen you go to an adult home, number one, you’re treated like a little kid. And if you stay there long enough, you’re going to act like a little kid and you ain’t going to want to leave because you being taken care of ... it’s like an institution to me.” Similarly, another former resident testified, “the adult home fosters complete dependency upon them to do everything for you, discourages independence ----” Plaintiffs expert Dennis Jones — who had been the Commissioner of Department of Mental Health in two states and a transitional receiver for the District of Columbia’s public mental health system — testified that Adult Homes are a “residency based model which means the goal there is not really to promote independence, it’s to promote dependence and sustain dependency.” That the Adult Homes are a setting that fosters learned helplessness, however, does not mean that the individuals who live in the Adult Homes are helpless, or that they cannot and do not manage their activities of daily living. To the contrary, the evidence set forth below demonstrates that Adult Home residents are not materially different from individuals with mental illness who live and receive services in the community. As Plaintiffs expert Elizabeth Jones observed, the high degree of independence exhibited by many Adult Home residents is particularly striking given the tendency of individuals to appear more dependent and disabled when they are observed in institutional settings such as Adult Homes. In addition, some of the current and former Adult Home residents who testified in this case engage in advocacy on behalf of Adult Home residents — they lobby State government, participate in rallies, and attend meetings of advocacy organizations for individuals with mental illness. viii. Defendants’ Experts Did Not Rebut the Overwhelming Evidence That Adult Homes Are Institutions, Segregated Settings That Impede Community Integration Defendants presented two experts, Alan Kaufman and Dr. Jeffery Geller, to rebut the evidence that Adult Homes are segregated settings that impede community integration. Defendants’ experts highlighted, for example, that the Adult Homes are in urban settings and that because residents are not locked in the facilities, they have opportunities to come and go. But even if the Adult Homes are not as restrictive as psychiatric hospitals in some respects, they nonetheless are segregated, institutional settings that impede integration in the community and foster learned helplessness. As described below in Part III.A.2.C, the State’s supported housing program provides far more opportunities for community integration than do Adult Homes. As explained by Michael Newman, the Director of OMH’s Bureau of Housing Development and Support, 120 people living in a congregate setting in which everyone is seriously mentally ill is a “segregated setting,” while scattered-site supported housing provides “maximum opportunities” for integration. Defendants’ experts opined that the setting in which a person with disabilities lives is irrelevant to the question of integration because it is possible for a person to feel isolated in any kind of setting. The court accords these opinions little weight. Mr. Kaufman conceded that, by and large, residents of supported housing feel that they are far more integrated into the community than residents of group homes. Dr. Geller explicitly rejected the applicable legal standard for integration. He testified that he believes the Supreme Court’s finding in Olmstead that “confinement in an institution severely diminishes the everyday life activities of individuals” was “wrong,” and that the setting in which a person lives and receives services does not determine whether he or she is “integrated.” With respect to the institutional and segregated nature of Adult Homes, Defendants’ experts and other witnesses were largely in agreement with DATs experts, current and former Adult Home residents, and other witnesses. Defendants’ experts ackn