------------------------------------------------------------------------------ New York Law Journal - 2000 - ------------------------------------------------------------------------------ Headline: Disabled Plaintiffs Win Right to In-Home Care Date: February 28, 2000 Author: Michael A. Riccardi New York Law Journal Text: Without specific evidence of program-wide difficulties in providing services, New York City and State officials may not deny accommodations to a disabled person eligible for access to a public benefit, a Manhattan Supreme Court justice has ruled. The decision by Justice Karla Moskowitz requires State and City officials to allow three disabled people to continue using Medicaid-funded in-home care. The decision in Matter of Sanon v. Wing, 402855/98, represents the first interpretation in New York State of the U.S. Supreme Court's 1999 ruling in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581. Olmstead limited the government's ability to raise a defense to demands claimed under the federal Americans With Disabilities Act. The court ruled that the ADA guaranteed access to the in-home care program for three petitioners, each of whom had several disabilities, rejecting the claims by City and State officials administering the program that it would be "fundamentally altered" if the petitioners remained in it. Moskowitz's decision annuls those by the State Department of Health and two City agencies to terminate Medicaid home care services and place the petitioners in nursing homes. The administrative agencies' rulings were challenged under Article 78 of the Civil Practice Law and Rules. The Olmstead ruling, Moskowitz reasoned, effectively raised the level of proof needed by the State and local officials to justify denial of a requested accommodation under the ADA. The Article 78 was filed after the City Human Resources Administration (HRA) decided in 1996 to terminate in-home personal care services to three disabled persons. The termination decision came after the City Department of Social Services (DSS) made a fiscal assessment that it was no longer "cost effective" to provide in-home care on a round-the-clock basis to the disabled persons. Under the requirements of the ADA, the State has an obligation to allow access to public benefit programs, such as the Medicaid-funded in-home care, to eligible persons who have disabilities, by making reasonable accommodations as necessary for the disabled. But local and State governments may raise a defense against the accommodations by saying that a modification of the program would "fundamentally alter" the service. The City DSS took the position that continued home care to the petitioners would substantially alter or modify the State's Medicaid program. But Moskowitz said that the DSS position was unsubstantiated, with no factual inquiry as to the effect of any ADA modification. It was the Olmstead Court that addressed the "fundamental alteration" defense last year, Moskowitz said. Federal courts, the U.S. Supreme Court said, should employ a balancing test in evaluating the defense. They should not simply accept the State's assertion that a "fundamental alteration" would occur as a result of the modification. Moskowitz adopted the balancing test for use by New York courts weighing the effect of ADA accommodations requested of State and local officials running public services. "The focus is ... not only on the impact on the State's budget of providing the services, but also on the competing demands of others requiring services and the State's available resources," she wrote. Moskowitz said that the City and State, in order to prove its defense, must demonstrate that the costs of accommodating disabled eligible persons would "fundamentally alter" the program as a whole. Simply stating the comparative costs with regard to the individual seeking the accommodation is not enough, she said. "Unless [the City and State] can demonstrate that accommodating Medicaid recipients who otherwise qualify for 24-hour home care would result in a fundamental alteration in the Medicaid program, respondents must provide services in 'the most integrated setting appropriate to the needs of' petitioners," Moskowitz wrote. Moskowitz annulled the decision to terminate in-home services to the petitioners and sent the issue back to the City and State agencies for further evaluation. She said that a mere allegation by the government officials that the public would be required to pay for 24-hour personal care whenever a Medicaid recipient "prefers" home care was not enough to justify termination. The City DSS, which performed the cost analysis for the three petitioners, did not "demonstrate that there would be a 'massive' change in the program," Moskowitz pointed out. Nor did it consider what would be the most integrated setting for the petitioners, she said. Lawyers from New York Legal Assistance Group Inc. represented the petitioners. ------------------------------------------------------------------------------