In the Matter of The Friends of P.S. 163, Inc., et al., Appellants,v.Jewish Home Lifecare, Manhattan, Respondent, New York State Department of Health, et al., Respondents.---------------------------------In the Matter of Daisy Wright, et al., Appellants, v. New York State Department of Health, et al., Respondents, Jewish Home Lifecare, Manhattan, Respondent.

Brief

N.Y.November 16, 2017

APL-2017-00099 New York County Clerk’s Index Nos. 100546/15 and 100641/15 (Emtrt of Jkppeals STATE OF NEW YORK Index No. 100546/15 In the Matter of the Application of THE FRIENDS OF P.S. 163, INC.; THE PS. 163 SCHOOL LEADERSHIP TEAM; JOSHUA KROSS; MILES KROSS, by his father, Joshua Kross; STELLA KROSS, by her father, Joshua Kross; EUGENIA FINGERMAN; ELIJAH FINGERMAN, by his mother, Eugenia Fingerman; GISELLE SANCHEZ; GIOVANNI FELICIANO, by his mother, Giselle Sanchez; LUCINDY CUEVAS; ANNELI LOPEZ, by her mother, Lucindy Cuevas; KEVIN RICHARDSON; CAMERON RICHARDSON, by his father, Kevin Richardson; DANIEL WEBSTER; DANIEL J. WEBSTER, by his father, Daniel Webster; DANIEL HOLT; and RACHEL BAKER-HOLT, by her father, Daniel Holt, Petitioners-Appellants, for a Judgment under Article 78, — against— JEWISH HOME LIFECARE, MANHATTAN, Respondent-Respondent, NEW YORK STATE DEPARTMENT OF HEALTH, 156 W. 106TH STREET HOLDING CORP., 102 W. 107TH CORP., and PWV OWNER, LLC, Respondents. (<Caption continued on inside cover) BRIEF FOR AMICI CURIAE CARDOZO BET TZEDEK LEGAL SERVICES AND NEW YORK LAWYERS FOR THE PUBLIC INTEREST IN SUPPORT OF PETITIONERS-APPELLANTS KEVIN CREMIN, ESQ. NAHID SOROOSHYARI, ESQ. Of Counsel to Jeanette Zelhof Esq. MOBILIZATION FOR JUSTICE (FORMERLY MFY LEGAL SERVICES) 100 William Street, 6th Floor New York, New York 10038 Telephone: (212) 417-3700 Facsimile: (212) 417-3891 Attorneys for Amici CuriaeOctober 6, 2017 Index No. 100641/15 In the Matter of the Application of DAISY WRIGHT; NATHANIEL ROBERT LIVINGSTON, by his parent Daisy Wright; OLIVER WRIGHT LIVINGSTON, by his parent Daisy Wright; ELIZABETH WRIGHT; BERNIE WRIGHT, by his parent Elizabeth Wright; VIVIAN DEE; SONIA GARCIA; JOAN HEITNER; PATRICIA LOFTMAN; LILLIAN PRYOR; EILEEN SALZIG; VALERIA SPANN, and WALTER REINHARDT, Petitioners-Appellants, for a Judgment under Article 78, — against— NEW YORK STATE DEPARTMENT OF HEALTH, HOWARD ZUCKER, as Acting Commissioner of the New York State Department of Health, PWV OWNER, LLC, 156 W. 106TH STREET HOLDING CORPORATION, and 102 W. 107TH CORPORATION, Respondents, JEWISH HOME LIFECARE, MANHATTAN, Respondent-Respondent. TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT PRELIMINARY STATEMENT ARGUMENT . I. This Court should review the DOH’s evaluation of JHL’s construction plan with scrutiny because the DOH regularly fails to properly review plans by the long-term care industry, putting thousands of individuals with disabilities at risk A. DOH fails to properly review emergency plans created by nursing homes and adult homes, putting thousands of individuals with disabilities at risk 1. DOH’s negligent review of nursing home emergency plans 2. DOH rubberstamps inadequate and incomplete emergency plans by adult homes B. DOH does not properly review closure plans by nursing homes and adult homes, putting hundreds of individuals with disabilities at risk . 1. DOH rubberstamps retroactive nursing home closure plans 2. DOH rubberstamps inadequate and incomplete adult home closure plans II. DOH’s approval of JHL’s construction plan is an example of how DOH advances the interests of the long-term care industry at the expense of those it is supposed to serve A. When it approved JHL’s construction of a large, vertical institution, the DOH betrayed its commitment to comply with the ADA by serving individuals with disabilities in the most integrated setting appropriate to their needs 1. Most residents of New York City nursing homes are “qualified individuals with a disability” under the ADA 21 1 2 3 3 4 5 9 12 12 16 19 20 -i- TABLE OF CONTENTS (continued) Page 2. Large, vertical institutions are not the most integrated setting for most individuals with disabilities B. DOH fails to properly review complaints by nursing home and adult home residents against their facilities, putting the long¬ term care industry ahead of residents 22 25 CONCLUSION 28 -ii- TABLE OF AUTHORITIES Page(s) Cases Berger et al. v. Prospect Park et al. , Index No. 6639/2014 (N.Y. Sup. Ct. Nov. 21, 2014). Berger et al, v. Prospect Park Residence et al., 2017 WL 3269090 (N.Y. Sup. Ct. Jul. 21, 2017) Disability Advocates v. Patterson, 653 F.Supp.2d 184 (E.D.N.Y. 2009) MFY Legal Services v. N.Y. State Dep’t of Health, Index No. 154273/2017 (N.Y. Sup. Ct. May 8, 2017), Olmstead v. L.C., 527 U.S. 581 (1999) 17 18 2 15 20, 22, 23 Statutes 28 C.F.R. § 35.130(d) 28 C.F.R. § 35.130(d), App. A, p. 450 (1998) 10 N.Y.C.R.R. § 401.3(g) 10 N.Y.C.R.R. §415.3 10 N.Y.C.R.R. § 415.26(f) 18 N.Y.C.R.R. § 485(j)(2)(iv) 18 N.Y.C.R.R. § 485.50(2) 18 N.Y.C.R.R. § 485.5(j)(2)(ii) 18 N.Y.C.R.R. § 485.5(j)(2)(iii) 18 N.Y.C.R.R. § 485.5(j)(2)(iv) 18 N.Y.C.R.R. § 486.2(e) 22 22 12 25 5 18 16 17 18 18 25 iii 18 N.Y.C.R.R. § 486.2(o). 27 18 N.Y.C.R.R. § 487.2(a) 2 18 N.Y.C.R.R. § 487.5 18 N.Y.C.R.R. § 487.7 25 2 18 N.Y.C.R.R. § 487.12(a). 18 N.Y.C.R.R. §487.12(b). 18 N.Y.C.R.R. §490.12(b). 22 N.Y.C.R.R. § 500.1(f)... 22 N.Y.C.R.R. § 500.23(a). 42 U.S.C. § 12101(a)(2) 42U.S.C. § 12101(a)(5) 9, 10 10 10 1 1 20, 23 23 42 U.S.C. § 12102(1), 42 U.S.C. § 12131 21 20 Americans with Disabilities Act. passim N.Y. Exec. Law § 23-b N.Y. Pub. Health Law § 2801(2) 5 22 State Environmental Quality Review Act 2, 19, 28 Other Authorities A5586, 2015-2016 Gen. Assem. (N.Y. 2015) 8 Caitlin Ostroff and David J. Neal, 8 dead, others evacuated at Hollywood nursing home without power after Irma, MIAMI HERALD, Sept. 13, 2017, http://miamiherald.com/news/weather/hurricane/articlel 7309111.h 5tml iv Catherine Unsino et al., JHL at the Crossroads - A New Direction: An Open Letter to its Board of Trustees, available at https://www.pwvta.org Cindy Rodriguez, Nursing Home Owner in de Blasio Investigations Flouted State Rules that Protect Patients, WNYC News (Aug. 29, 2016), http://www.wnyc.org/story/nursing-home-de-blasio-flouted- state-rules/ 8 13 Cindy Rodriguez, State Health Department to Investigate Allegations of Improper Discharges, WNYC NEWS (Aug. 31, 2016), http://www.wnyc.org/story/state-investigate-allegations-improper- discharges-two-nursing-homes/ Freedom of Information Law Request Letter (Nov. 21, 2014) Greg B. Smith, AG investigating nursing home operator to see if it misled health officials before it turned Bedford-Stuyvesant property into luxury condos, N.Y. DAILY NEWS (Apr. 7, 2016), http://www.nydailynews.com/new-york/ag-probing-nursing-home- tumed-condos-bed-stuy-article-1.2592560 Ina Jaffee, Move Over Nursing Homes - There’s Something Different, NPR, July 24, 2013, http://www.npr.org/2013/07/24/196249703/move-over-nursing- homes-theres-something-different Jennifer Flynn, Nat’l Fire Protection Assn., US Structure Fires in Nursing Homes 3 (Sept. 2008) Jennifer Preston et al., Behind a Call That Kept Nursing Home Patients in Storm’s Path, N.Y. TIMES, Dec. 2, 2012, http://www.nytimes.com/2012/12/03/nyregion/call-that-kept- nursing-home-patients-in-sandys-path.html?mcubz=3 Letter from Danielle L. Levine, Records Access Office, N.Y. State Dep’t of Health (May 8, 2015) and corresponding materials Life After Sandy Proving Difficult For Queens Seniors Stuck In Temporary Housing, CBS NEW YORK, Jan. 25, 2013, http://newyork.cbslocal.com/2013/01/25/life-after-sandy-proving- difficult-for-queens-seniors-stuck-in-temporary-housing/ 14 10, 15 14 24 8 8 10 11 v N.Y. State Dep’t of Health, Dear Administration Letter #14-06, Revised ACF Closure Guidelines (Mar. 19, 2014), https://www.health.ny.gov/facilities/adult_care/dear_administrator _letters/acf_closure_guidelines.htm N.Y. State Dep’t of Health, Dear Administrator Letter #06-13, Inspection Review Process (Sept. 12, 2006) N.Y. State Dep’t of Health, Dear Administrator Letter #06-13, Inspection Review Process (Sept. 12, 2006), https://www.nyscal.org/dear-administrator-letters-dals-2006/ N.Y. State Dep’t of Health, Dear Administrator Letter #06-13 Nursing Home Closure Guidelines (Aug. 7, 2006), https://www.health.ny.gov/professionals/nursing_home_administra tor/letters.htm 16 27 27 12, 13 N.Y. State Dep’t of Health, State Environmental Quality Review Draft Scoping Document for the Jewish Home Lifecare, Manhattan Replacement Nursing Facility Project 2 (June 5, 2013) N.Y. State Dep’t of Health, Superstorm Sandy Response After-Action Report and Improvement Plan 10 (Dec. 2013) N.Y. State Dep’t of Health, When Your Home is Inspected: The New York State Department of Health’s Annual Inspection and Your Rights as an Adult Home Resident, https://www.health.ny.gov/publications/1494/ N.Y. State Office of the State Comptroller, Department of Health Nursing Home Complaints 9- 10 (2001) N.Y. State Office of the State Comptroller, Nursing Home Surveillance 6 (Feb. 2016) N.Y. State Office of the State Comptroller Page, New York’s Oversight of Adult Care Facilities 19 (Nov. 1999) N.Y. State, Report and Recommendations of the Olmstead Cabinet 14 - 15 (Oct. 2013), https://www.ny.gov/programs/olmstead- community-integration-every-new-yorker 8 11 27 26 26 26 21 vi NY State Dep’t of Health, Hospitals, Nursing Homes, Home Care, Hospice & Other Health Care Facilities, https://www.health.ny.gov/facilities/ NY State Dep’t of Health, Mission, Vision, Values, https://www.health.ny.gov/commissioner/mvv.htm Office of Manhattan Borough President Scott M. Stringer, No Way Out: An Analysis of the New York State Department of Health’s Role in Preparing Nursing Homes for Emergencies (Dec. 2006) ... Prospect Park Residency Closure Plan (Jan. 22, 2016) . Richard L. Brodsky, Chairman, Comm, on Corps., Auths., and Comms., N. Y. State Assembly, The Final Report on New York City Emergency Response and Evacuation Plans in the Event of a Weather-Related Emergency (Mar. 2006) Richard L. Brodsky, Chairman, Comm, on Corps., Auths., and Comms., N. Y. State Assembly, The Final Report on New York City Emergency Response and Evacuation Plans in the Event of a Weather-Related Emergency (Mar. 2006) 3 2 5 18 5 7 State of N.Y. Pub. Health and Health Planning Council, Agenda 7-8 (Aug. 1,2013), https://www.health.ny.gov/facilities/public_health_and_health_pla nning_council/meetings/2013-08-01/ 7 Vivian Yee, Closing on Short Notice, Brooklyn Assisted-Living Home Angers Families, N.Y. TIMES, March 24, 2014, https://www.nytimes.com/2014/03/25/nyregion/residents-left- scrambling-as-brooklyn-assisted-living-home-prepares-to- close.html?mcubz=3 16 Vivian Yee, Residents Sue to Halt Closing of Brooklyn Assisted- Living Home, N.Y. TIMES, May 2, 2014, https://www.nytimes.com/2014/05/03/nyregion/residents-sue- brooklyn-assisted-living-home-seeking-to-halt-its- closing.html?mcubz=3&_r=0 ! 16 vii CORPORATE DISCLOSURE STATEMENT Pursuant to the Rules of Practice of the New York Court of Appeals, 22 N.Y.C.R.R. § 500.1(f) & 500.23(a), Amicus Curiae Cardozo Bet Tzedek Legal Services states that it is a legal clinic within the Benjamin N. Cardozo School of Law, whose parent is Yeshiva University, a not-for-profit corporation incorporated under the laws of the State of New York. Cardozo Bet Tzedek Legal Services has no other parents, subsidiaries or affiliates. Amicus Curiae New York Lawyers for the Public Interest states that is a not-for-profit corporation incorporated under the laws of the State of New York. It states it has no parents, subsidiaries or affiliates. 1 PRELIMINARY STATEMENT The New York State Department of Health (the “DOH”) is entrusted to “protect, improve and promote the health, productivity and well being of all New Yorkers.”1 That mission includes regulating long-term care facilities, such as nursing homes and adult homes,2 and protecting the public through compliance with the State Environmental Quality Review Act (“SEQRA”). Unfortunately, the DOH’s efficacy and mission are sometimes compromised because of regulatory capture by the long-term care industry. Amici believe that the DOH’s history of regulatory capture is relevant to a central issue in this case: the DOH’s ability to adequately evaluate an environmental impact statement that was prepared by the long-term care industry. Therefore, in deciding whether the DOH complied with SEQRA when it approved a plan by Jewish Home Lifecare (“JHL”) to construct a 20-story, 414-bed nursing home next to an elementary school, this Court should consider the DOH’s 1 See NY State Dep’t of Health, Mission, Vision, Values, https://www.health.ny.gov/commissioner/mvv.htm (last visited Sept. 18, 2017). 2 Adult homes are congregate care facilities “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(a). Adult homes must provide a variety of services to residents, including supervision, assistance with medication administration, and a range of individualized case management services. Unlike nursing homes, adult homes do not provide skilled nursing services. See 18 NYCRR § 487.7. In New York City, adult homes often house a large percentage of people with mental illness - in many cases, the homes have a mental health population as high as 90% or 100%. These adult homes have been found to be institutions by a federal court. See Disability Advocates v. Patterson, 653 F.Supp.2d 184, 187 (E.D.N.Y. 2009). 2 history of regulatory capture. This Brief will provide a summary of that history. Section I will explain how the DOH fails to scrutinize regulatory documents submitted to it by the long-term care industry- specifically, emergency plans and facility closure plans prepared by the long-term care industry. Section II will show how the DOH regularly advances the interests of the long-term care industry at the expense of those it is supposed to serve. Based on amici' s experiences, this Court should be wary of deferring to the DOH’s pronouncement that it has taken any kind of “hard look” at substantive issues that are contrary to the interests of the long-term care industry. In this instance, the Court must use its powers of judicial review to scrutinize the DOH’s decision-making. ARGUMENT I. This Court should review the DOH’s evaluation of JHL’s construction plan with scrutiny because the DOH regularly fails to properly review plans by the long-term care industry, putting thousands of individuals with disabilities at risk As the governmental entity that oversees long-term care facilities,3 one of the DOH’s fundamental responsibilities is to ensure that residents of those facilities are safe. To that end, the DOH must ensure that facilities have adequate plans in place for emergencies and facility closures, events that can cause death, trauma, 3 See NY State Dep’t of Health, Hospitals, Nursing Homes, Home Care, Hospice & Other Health Care Facilities, https://www.health.ny.gov/facilities/. 3 and chaos without proper preparation. Although the DOH is entrusted with ensuring these plans are sufficient to protect residents, it does not do so; instead, the DOH regularly puts thousands of individuals with disabilities at risk by failing to properly review or rubberstamping inadequate or incomplete plans submitted to them by facilities. When determining whether the DOH properly reviewed the environmental impact of JHL’s construction plan, this Court should consider that DOH has a history of failing to properly review other regulatory plans submitted to it by the long-term care industry. This is particularly important given that— unlike its exclusive responsibility to review long-term care facility emergency and closure plans— the DOH is very rarely the lead agency reviewing environmental impact statements.4 A. DOH fails to properly review emergency plans created by nursing homes and adult homes, putting thousands of individuals with disabilities at risk Responding to emergencies and disasters is one of the most basic and critical governmental functions. Emergencies, whether occurring as a result of natural forces or the actions of human beings, can cause death, displacement, trauma, and extensive property damage. As we have seen through many tragedies— including, most recently, at least eight nursing home residents dying in the wake of Hurricane 4 A review of the DOH’s website shows only two instances in the past ten years where the DOH was the lead agency on such an environmental review. 4 Irma5— adequate planning by the government, in advance, is the best way to prevent or mitigate these harms. Although the DOH requires nursing homes and adult homes to have written plans for emergencies, the DOH fails to properly review these plans, putting thousands of individuals with disabilities at risk. 1. DOH’s negligent review of nursing home emergency plans New York State law requires nursing homes to have written plans that address how the facility will maintain food and water, access generators, evacuate residents to an alternative site, maintain necessary staffing, and more, during an emergency.6 DOH regulations go even further to require that nursing homes update their written plans twice a year, train employees on the plan at least annually, and have staff complete drills in accordance with the plan at least twice a year.7 Despite these requirements, numerous investigations have revealed that nursing home disaster plans are seriously deficient, incomplete and— most alarmingly— not even reviewed by the DOH.8 Unfortunately, little has changed since those investigations were conducted. 5 See Caitlin Ostroff and David J. Neal, 8 dead, others evacuated at Hollywood nursing home without power after Irma, MIAMI HERALD, Sept. 13, 2017, http://www.miamiherald.com/news/weather/hurricane/articlel 73019111.html. 6 See N.Y. Exec. Law § 23-b. 7 See 10 NYCRR§ 415.26(f). 8 See, e.g., Office of Manhattan Borough President Scott M. Stringer, No Way Out: An Analysis of the New York State Department of Health’s Role in Preparing Nursing Homes for Emergencies (Dec. 2006) and Richard L. Brodsky, Chairman, Comm, on Corps., Auths., and Comms., N. Y. State Assembly, The Final Report on New York City Emergency Response and Evacuation Plans in the Event of a Weather-Related Emergency (Mar. 2006). 5 Hurricane Katrina’s devastation on the Gulf States motivated New York to examine its disaster and emergency preparedness. In 2006, the office of the Manhattan Borough President reviewed emergency evacuation plans submitted to the DOH by nursing homes in New York City.9 The investigation found, and the DOH itself admitted, that the plans were not reviewed for adequacy, but were merely checked to ensure that nursing homes had put down answers to a preset list of questions.10 The report states that, for the DOH’s purposes, “as long as something is on the page, a nursing home has an acceptable evacuation plan.”11 “Something on the page” does not even mean complete; the investigation found that 88% of the plans were incomplete.12 The New York State Assembly also reviewed these plans and found them lacking in many respects, including that many plans would evacuate residents to facilities which were over 50 miles away 9 The DOH refused to provide the plans for review, but forty nursing homes voluntarily provided their plans directly to the Office of Manhattan Borough President. See Office of Manhattan Borough President Scott M. Stringer, No Way Out: An Analysis of the New York State Department of Health’s Role in Preparing Nursing Homes for Emergencies 5-6 (Dec. 2006). 10 See id. at 6 (stating “DOH reviewed [the plans] to ensure that each item had a corresponding answer; however, the plans were not reviewed for adequacy . . . [DOH] maintained that they do not have enough staff or resources in place to qualitatively assess each nursing home’s evacuation plan beyond compliance with the original request” (emphasis in original). 11 Id. 12 Id. at 7. 6 or also in evacuation zones.13 That report found “no realistic probability of a successful evacuation” of nursing homes.14 Unfortunately for nursing home residents during Hurricane Sandy, not much changed after Hurricane Katrina. During a 2013 meeting of the Public Health and Health Planning Council, the DOH Executive Deputy Commissioner Sue Kelly reported on the alarming failures of her agency in evacuating thousands of nursing home residents during Hurricane Sandy. For instance, the DOH was unable to track evacuated residents and their health statuses or tell families where their loved ones were. Many residents were evacuated without health records or medical information, making caring for their complex health needs nearly impossible.15 The DOH’s failure to properly review nursing home emergency plans, and that failure’s effect on thousands of nursing home residents during Hurricane Sandy, prompted New York State Assembly Members to introduce a bill requiring the 13 See Richard L. Brodsky, Chairman, Comm, on Corps., Auths., and Comms., N. Y. State Assembly, The Final Report on New York City Emergency Response and Evacuation Plans in the Event of a Weather-Related Emergency § IIIB (Mar. 2006). Other problems found by the report include that, “. . . there are multiple hospitals and nursing homes relying on the same transportation assets” and “[i]n many cases, institutions . . . fail to specify where patients would be moved to in the event of an evacuation.” Id. 14 Id. 15 State of N.Y. Pub. Health and Health Planning Council, Agenda 7-8 (Aug. 1, 2013), available at https://www.health.ny.gov/facilities/public_health_and_health_planning_council/meetings/2013- 08-01/. She also stated that some evacuating facilities did not know where their residents were being sent and that facilities receiving evacuated residents did not know who showed up at their door or where they were from. Id. 7 DOH to, among other things, inspect nursing homes for compliance with emergency regulations.16 JHL’s residents will be in even greater danger. JHL’s proposed 20-story nursing home would be the tallest nursing home in the world.17 Because of the unprecedented height of this facility, JHL residents would face unique and difficult circumstances during an emergency. JHL proposes to have long-term residents live on the higher floors, with administrative offices, physical therapy, and short¬ term residents on the lower floors.18 In an emergency, such as a natural disaster or structural fire,19 therefore, long-term residents will have to evacuate with elevators, which are often dangerous or powered off during emergencies. Although sheltering in place-where resident remain at the facility during the worst of the emergency-can sometimes be safe, it can also be disastrous, especially if a nursing home has not properly planned to stay open during an emergency, as was the case for many nursing homes during Hurricane Sandy.20 Given the DOH’s 16 See A5586, 2015-2016 Gen. Assem. (N.Y. 2015). 17 See Catherine Unsino et al., JHL at the Crossroads -A New Direction: An Open Letter to its Board of Trustees, available at https://www.pwvta.org/ (stating that if JHL is constructed, it will be the tallest nursing home in the world). See N.Y. State Dep’t of Health, State Environmental Quality Review Draft Scoping Document for the Jewish Home Lifecare, Manhattan Replacement Nursing Facility Project 2 (June 5, 2013). 19 JHL could be more prone to fires than other nursing homes because each floor would have kitchen appliances and the kitchen has been found to be the leading area of origin for structural fires in nursing homes. See Jennifer Flynn, Nat’l Fire Protection Assn., US Structure Fires in Nursing Homes 3 (Sept. 2008). 20 See Jennifer Preston et al., Behind a Call That Kept Nursing Home Patients in Storm’s Path, N.Y. TIMES, Dec. 2, 2012, available at http://www.nytimes.com/2012/12/03/nyregion/call-that- 18 8 failure to review emergency preparedness plans submitted to it by nursing homes, and the horrific experiences of nursing home residents during Hurricane Sandy, it would be naive to expect that the DOH will require JHL— or any nursing hom< to prepare residents for emergencies. Further, because of its unprecedented height, JHL will struggle to evacuate residents in an emergency more than any other nursing home to date. The DOH’s approval of JHL’s proposed facility may therefore lead to catastrophic consequences for its potential residents. 2. DOH rubberstamps inadequate and incomplete emergency plans by adult homes The DOH’s failure to properly review emergency plans is not limited to nursing homes. The DOH requires adult homes to create written emergency plans that “detail[] the procedures to be followed for the proper protection of residents and staff in the event of an actual or threatened emergency or disaster which interrupts normal service.”21 These plans must include, among other things, “procedures for full and partial evacuation of the facility,” “preliminary plans for relocation of residents, if necessary,” and “coordination of the facility plan with kept-nursing-home-patients-in-sandys-path.html?mcubz=3 (stating of Hurricane Sandy, “[t]he recommendation that thousands of elderly, disabled and mentally ill residents remain in more than 40 nursing homes and adult homes in flood-prone areas of New York City had calamitous consequences. At least 29 facilities in Queens and Brooklyn were severely flooded. Generators failed or were absent. Buildings were plunged into a cold, wet darkness, with no access to power, water, heat and food.” Further, eight Florida nursing home residents died while sheltering in place during Hurricane Irma. See supra note 5. 21 18 NYCRR§ 487.12(a). 9 such community resources and local disaster and emergency planning organizations as may be able to provide temporary shelter, food and clothing, and other essential services.”22 The DOH must review and approve these plans.23 Despite these requirements, adult home emergency plans are deficient in a number of respects, and the DOH merely rubberstamps inadequate and incomplete plans. In 2014, Mobilization for Justice submitted Freedom of Information Law (FOIL) requests for emergency preparedness plans submitted to the DOH by adult homes, the DOH’s responses to those plans, subsequent responses by adult homes, and any final plans.24 From a review of the plans and other documents produced by the DOH, it is clear that the DOH failed to properly review adult home emergency plans for the years leading up to Hurricane Sandy. For instance, the DOH did not ensure that adult homes had adequate systems to maintain and transport necessary medical records with residents. Although the DOH allowed facilities to evacuate to other facilities, it did not adequately account for the needs of the evacuees or residents of the facilities that served as shelters. The DOH did not ensure the homes had adequate generators or that they were prepared for the flooding that occurred in the homes.25 22 18 NYCRR. § 487.12(b), 18 NYCRR 490.12(b). 23 See 18 NYCRR. § 487.12(a), 18 NYCRR 490.12(a). 24 See Freedom of Information Law Request Letter (Nov. 21, 2014) (on file with Mobilization for Justice). 25 See Letter from Danielle L. Levine, Records Access Office, N.Y. State Dep’t of Health (May 8, 2015) and corresponding materials (on file with Mobilization for Justice). 10 From our extensive work with adult home residents in the aftermath of Hurricane Sandy, it is clear that the DOH’s failure to properly review emergency plans had disastrous consequences for residents. One resident of a Rockaway Park adult home reported to Mobilization for Justice that, during Hurricane Sandy, residents on lower floor rooms were doubled and tripled up with residents in rooms on higher floors because of flooding. Residents stayed in the facility, without electricity, for several days and eventually had to wade through water in the home, and one city block, to reach MTA buses and be evacuated. Residents at another adult home were displaced for months, first at the Park Slope Armory and later at Creedmore Psychiatric Center in Queens, sleeping in cots and storing their belongings in plastic bags.26 The DOH itself noted that it lacked a system for tracking adult home residents during an emergency, and that a “patient tracking system is a critical need.”27 It also admitted that due to planning failures, adult homes lacked generators, supplies, and adequate staffing.28 The DOH puts thousands of individuals with disabilities at risk by failing to properly review or rubberstamping inadequate or incomplete emergency plans submitted to them by nursing homes and adult homes. When determining whether 26 See Life After Sandy Proving Difficult For Queens Seniors Stuck In Temporary Housing, CBS NEW YORK, Jan. 25, 2013, available at http://newyork.cbslocal.com/2013/01/25/life-after-sandy- proving-difficult-for-queens-seniors-stuck-in-temporary-housing/. 27 See N.Y. State Dep’t of Health, Superstorm Sandy Response After-Action Report and Improvement Plan 10 (Dec. 2013). 28 Id. at 37 -38. 11 the DOH properly reviewed the environmental impact of JHL’s construction plan, this Court should consider that DOH has a history of failing to properly review emergency plans submitted to it by the long-term care industry. B. DOH does not properly review closure plans by nursing homes and adult homes, putting hundreds of individuals with disabilities at risk In addition to emergency plans, the DOH has failed in its responsibility to review plans for closing existing nursing homes and adult homes. Since 2014, at least three long-term care facilities in New York City have closed without the DOH properly reviewing their closure plans, thereby putting residents at risk during and after these transitions. This shows the DOH’s propensity to rubberstamp plans submitted to it by the long-term care industry. 1. DOH rubberstamps retroactive nursing home closure plans Any nursing home seeking to cease operation must notify the DOH and submit a written closure plan. The closure plan must be approved by the DOH, in writing, before the facility can implement it or notify anyone of their intent to close.29 The DOH requires that a nursing home’s closure plan contain answers to a preset list of questions, including the process for identifying appropriate alternative 29 See 10 NYCRR § 401.3(g) and N.Y. State Dep’t of Health, Dear Administrator Letter #06-13 Nursing Home Closure Guidelines (Aug. 7, 2006), https://www.health.ny.gov/professionals/nursing_home_administrator/letters.htm. 12 placement for residents and how the facility will ensure continued care prior to closure.30 Recently, however, the DOH approved the closure of two nursing homes without a semblance of adherence to its own regulations and guidance. Hundreds of residents of the former Rivington House on the Lower East Side and CABS Nursing Home in Bedford Stuyvesant suffered trauma and displacement when the DOH failed to exercise oversight over the facilities’ closures. Both nursing homes were bought by the Allure Group, operated for a short time as nursing homes, and then hastily emptied of residents and converted to luxury apartments, all without closure plans.31 In the case of Rivington House, the nursing home was completely emptied of residents before the DOH learned of its closure.32 The DOH allowed Rivington House to submit a closure plan after it was already closed, and approved that closure plan.33 Describing the closure, one former resident reported that despite his limited mobility and inability to independently eat, he was discharged from 30 N.Y. State Dep’t of Health, Dear Administrator Letter #06-13, Nursing Home Closure Guidelines (Aug. 7, 2006), https://www.health.ny.gov/professionals/nursing_horne_administrator/letters.htm. 31 See Cindy Rodriguez, Nursing Home Owner in de Blasio Investigations Flouted State Rules that Protect Patients, WNYC News (Aug. 29, 2016), http://www.wnyc.org/story/nursing-home- de-blasio-flouted-state-rules/. 32 See id. 33 .See id. 13 Rivington House to his fifth floor walkup apartment.34 The former resident describes crawling up the stairs to his apartment, which was later found unsafe by Visiting Nurse Services.35 It took nine months for the former resident to move to an elevator building and obtain the home care services necessary for him to live safely— things his nursing home should have done before discharging him.36 After approving Rivington House’s retroactive closure plan, the DOH opted to cite, but not fine, the operator for submitting a late closure plan.37 A similar story unfolded at the former CABS nursing home in Bedford Stuyvesant, Brooklyn. After Allure bought the facility in the summer of 2015, it applied to the DOH for a transfer of ownership and permission to run a new nursing home; the DOH approved both requests.38 By October 2015, residents were being discharged from the facility in mass, without an explanation as to why.39 Although the nursing home dismissed rumors of closure when residents arranged a group meeting, it had already asked the city for a demolition permit for 34 See id. 35 See id. 36 See id. 37 See Cindy Rodriguez, State Health Department to Investigate Allegations of Improper- Discharges, WNYCNEWS (Aug. 31, 2016), http://www.wnyc.org/story/state-investigate- allegations-improper-discharges-two-nursing-homes/. 38 See id. and Greg B. Smith, AG investigating nursing home operator to see if it misled health officials before it turned Bedford-Stuyvesant property into luxury condos, N.Y. DAILY NEWS (Apr. 7, 2016), available at http://www.nydailynews.com/new-york/ag-probing-nursing-home- turned-condos-bed-stuy-article-1.2592560. 39 See supra note 31. 14 the nursing home in September 2015.40 CABS did not submit a closure plan or even tell the DOH of its intent to close until December 2015, months after it applied for a demolition permit and discharged many of its residents. 41 When CAB finally submitted a closure plan to the DOH in December 2015, the DOH approved it within three months.42 By accepting closure plans after-the-fact and, in the case of Rivington House, failing to fine the nursing home for closing before submitting a closure plan, the DOH has rendered the whole purpose of closure plan meaningless. 43 Clearly, the DOH rubberstamps closure plans without regard for health and safety of residents. This is part of a DOH pattern of accepting plans and proposals by the long-term care industry without proper, or sometimes any, review. 40 See id. 41 See id. 42 See supra note 38. 43 Mobilization for Justice attempted to access records related to DOH’s approval of these closure plans in order to further investigate what happened. Although the Freedom of Information Law (FOIL) requires disclosure of our requested records unless a specific FOIL exemption applies, DOH denied our original FOIL request and subsequent appeal without any specific justification. See Memorandum of Law in Support of Verified Petition, MFY Legal Services v. N.Y. State Dep’t of Health, 2 -3, Index No. 154273/2017 (N.Y. Sup. Ct. May 8, 2017). 15 2. DOH rubberstamps inadequate and incomplete adult home closure plans Similar to nursing homes, adult homes seeking to cease operation are supposed to submit a written closure plan to the DOH. The adult home’s closure plan must: Describe the procedures and actions the operator will take to: (i) notify residents of the closure, including provisions for termination of admission agreements and involuntary discharge; (ii) assess the needs and preferences of individual residents; (iii) assist residents in locating and transferring to appropriate alternative settings; and (iv) maintain compliance with these regulations until all residents have relocated.44 DOH guidance goes further to require adult homes to describe how they will “notify residents, patients, next of kin, sponsors, staff and physicians of the closure plan,” involve the facility's New York State Long Term Care Ombudsman, and more.45 Just as with nursing homes, the DOH rubberstamps inadequate plans and puts individuals with disabilities at risk. For example, the closure of Prospect Park Residency (“PPR”) has spurred lawsuits and community outrage.46 PPR was an 44 18 NYCRR § 485.5(j)(2). 45 See N.Y. State Dep’t of Health, Dear Administration Letter #14-06, Revised ACF Closure Guidelines (Mar. 19, 2014), https://www.health.ny.gov/facilities/adult_care/dear_administrator_letters/acf_closure_guideline s.htm. 46 See, e.g., Vivian Yee, Residents Sue to Halt Closing of Brooklyn Assisted-Living Home, N.Y. TIMES, May 2, 2014, available at https://www.nytimes.com/2014/05/03/nyregion/residents-sue- brooklyn-assisted-living-home-seeking-to-halt-its-closing.html?mcubz=3&_r=0 and Vivian Yee, 16 adult home with DOH permission to provide enhanced services to people with dementia and significant physical needs, including the inability to walk, use stairs and transfer from a wheelchair. In September 2013, PPR— wanting to sell the property to luxury apartment developers— submitted a closure plan to the DOH.47 In February 2014, the DOH approved PPR’s closure plan.48 A state court judge found that the plan was essentially a pro forma document, often paraphrasing DOH guidelines and regulations rather than providing any actual strategies.49 The plan also failed to comply with DOH regulations by neglecting to: 1) state how PPR would assess residents’ preferences and needs as part of the process for finding alternate facilities;50 2) detail how PPR would assist residents in finding and Closing on Short Notice, Brooklyn Assisted-Living Home Angers Families, N.Y. TIMES, March 24, 2014, available at https://www.nytimes.com/2014/03/25/nyregion/residents-left-scrambling- as-brooklyn-assisted-living-home-prepares-to-close.html?mcubz=3. 47 See Berger et al. v. Prospect Park et al., Index No. 6639/2014 at 5 (N.Y. Sup. Ct. Nov. 21, 2014) (stating PPR sought to “close the Residence and convert it to unregulated residential apartments”) and Berger et al. v. Prospect Park Residence et al., Index No. 6639/2014 at 3 (N.Y. Sup. Ct. Jul. 1, 2015) (stating that PPR submitted its first closure plan to the DOH on September 27,2013). 48 Berger et al. v. Prospect Park Residence et al., Index No. 6639/2014 at 3 (N.Y. Sup. Ct. Jul. 1, 2015). 49 See Berger et al. v. Prospect Park et al., Index No. 6639/2014 at 11 (N.Y. Sup. Ct. Nov. 21, 2014) (stating “[t]he closure plan approved by DOH does not give a timetable or list the procedures the operator would take to relocate residents, but merely states, ‘All residents will be relocated to appropriate facilities. Staff will find appropriate facilities, and arrange for the relocation of each resident. Every effort will be made to work with the residents and families to find the best facilities.’ The statement simply paraphrases the language of the statute but provides no specifics or timetables. Similarly, instead of detailing the timetables and procedures for assessing the needs and preferences of the residents in terms of relocation, the plan simply states that ‘An assessment of each resident’s needs will be completed by the case manager or her designee by reviewing and updating the resident’s ISP.’). 50 18 NYCRR 485.5(j)(2)(ii). 17 transferring to appropriate alternate settings;51 and, 3) detail how PPR would continue the level of service required by law until all residents relocated.52 In February 2017, the receiver appointed to operate PPR submitted a second closure plan.53 The DOH also approved this second plan,54 despite several glaring defects. For instance, the second closure plan fails to explain how PPR would comply with DOFI regulations pending the relocation of all residents.55 The second closure plan also fails to explain how next of kin will be notified, as required by the DOH’s own regulatory guidance.56 The second closure plan did not even have the correct name or address for the New York Long Term Care Ombudsman Program, which PPR is supposed to notify of its closure.57 Yet, the DOH still approved this second closure plan.58 The DOH clearly rubberstamped PPR’s closure plan— both times. This rubberstamping is part of a DOH pattern of accepting plans and proposals by the 51 18 NYCRR 485.5(j)(2)(iii). 52 18 NYCRR 485G)(2)(iv). 53 See Berger etal., v. Prospect Park Residence et al., 2017 WL 3269090 at 2 (N.Y. Sup. Ct. Jul. 21,2017). 54 See id. 55 See 18 NYCRR 485.5(j)(2)(iv) and Prospect Park Residency Closure Plan (Jan. 22, 2016) (on file with Mobilization for Justice). 56 See supra note 45. 57 See supra note 45. 58 Although the residents settled their case against the operator of the adult home for millions of dollars and more time to move, they are still pursuing their case against the DOH. In denying the DOH’s second motion to dismiss, the court noted that “[t]he NYSDOH policies create a situation in which elderly people in need of assistance in the activities of daily living are faced with an extremely short period of time to find new homes . . . .” See Berger et al., v. Prospect Park Residence et al,2017 WL 3269090 at 2 (N.Y. Sup. Ct. Jul. 21, 2017). 18 long-term care industry without proper, or sometimes any, review. Considering that the DOH has repeatedly failed in its role to review plans and protect residents’ safety in existing nursing homes or when closing nursing homes, this Court should scrutinize the DOH’s review here of regulatory documents submitted by the long¬ term care industry in support of opening a new nursing home. Further, DOH’s rubberstamping tendencies are likely to be worse in a SEQRA case like this where, unlike its exclusive responsibility to review emergency and closure plans, the DOH very rarely acts as the lead agency reviewing environmental impact statements.59 II. DOH’s approval of JHL’s construction plan is an example of how DOH advances the interests of the long-term care industry at the expense of those it is supposed to serve The DOH has a long history of advancing the interests of the long-term care industry at the expense of those it is supposed to serve, especially nursing home and adult home residents. This section will examine the DOH’s approval of JHL’s nursing home-a large, vertical institution that will segregate people with disabilities from their communities-and then describe the DOH’s history of failing to properly review and remedy complaints by nursing home and adult home residents against their facilities as evidence of its regulatory capture. In determining whether the DOH complied with SEQRA’s requirements before approving JFIL’s proposal to construct a 20-story nursing home next to an 59 See supra note 4. 19 elementary school, this Court should consider the DOH’s history and review its actions here with the scrutiny appropriate given that history. A. When it approved JHL’s construction of a large, vertical institution, the DOH betrayed its commitment to comply with the ADA by serving individuals with disabilities in the most integrated setting appropriate to their needs The Americans with Disabilities Act (“ADA”) prohibits segregation of individuals with disabilities by public entities. A “public entity” is a state or local government or “any department, agency, special purpose district, or other instrumentality of a State or States or local government.”60 New York State and the DOH are “public entities” covered by the ADA. In passing the ADA, Congress noted 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.”61 One crucial way to ensure integration for people with disabilities is to provide services in the community or, when that is not appropriate, to provide services in a facility where residents can readily access and interact with the community.62 The DOH has 60 42 U.S.C. § 12131. 61 42 U.S.C, § 12101(a)(2). 62 See Olmstead v. L.C., 527 U.S. 581, 600 (1999) (stating “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. . . .) 20 committed to “support community living for people with disabilities residing in, or at risk of placement in, nursing homes” and to “reduce the long-stay population in nursing homes.”63 This comports with the DOH’s mission to serve the best interests of individuals with disabilities. However, by approving JHL’s construction of a large, vertical institution, the DOH betrayed that mission and advanced the interests of the long-term care industry instead of those it is supposed to serve. Most residents of New York City nursing homes are “qualified individuals with a disability” under the ADA People are “disabled,” and thus eligible for ADA protection, if they: (1) have 1. a physical or mental impairment that substantially limits one or more major life activities, (2) have a record of that impairment, or (3) are “regarded as” having that impairment.64 In 2009, Congress unanimously passed the ADA Amendments Act, which includes a non-exclusive list of examples of major life activities relevant to determine whether an individual is disabled.65 Although many people think of nursing homes as places where older people live, they are actually places where people with disabilities live. A significant 63 See N.Y. State, Report and Recommendations of the Olmstead Cabinet 14-15 (Oct. 2013), https://www.ny.gov/programs/olmstead-community-integration-every-new-yorker. 64 42 U.S.C. § 12102(1). 65 See id. ( “[Mjajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”). 21 percentage of nursing home residents are younger than sixty and, in order to qualify to live in a nursing home, a person has to have a physical or mental impairment that substantially limits one or more major life activity.66 It is therefore more accurate to describe people who live in nursing homes as people with disabilities than to describe them as older people. As such, most people who live in nursing homes qualify for protections under the ADA. 2. Large, vertical institutions are not the most integrated setting for most individuals with disabilities Regulations for Title II elaborate on the ADA’s promise of full and equal participation in civil society for individuals with disabilities by, in part, requiring that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”67 The preamble to the Title II regulations explains that the “most integrated setting” for an individual is “a setting that enables individuals with »68disabilities to interact with non-disabled persons to the fullest extent possible. The meaning of this regulation, which is generally referred to as the ADA’s “integration mandate,” is at the heart of the Supreme Court’s landmark decision in Olmstead v. L.C.69 The Supreme Court’s decision in Olmstead relied on the 66 See N.Y. Pub. Health Law § 2801(2). 67 28 C.F.R. § 35.130(d). 68 28 C.F.R. § 35.130(d), App. A, p. 450 (1998). 69 527 U.S. 581 (1999). 22 ADA’s recognition that “unjustified ‘segregation’ of persons with disabilities [is] a >»70‘for[m] of discrimination. Unjustified institutional isolation discriminates against people with disabilities by making them choose between receiving necessary medical services and “participating] in community life.”71 Most nursing homes are not integrated settings, because they house exclusively people with disabilities and, often, residents do not interact with the outside community: residents eat meals in the nursing home, see medical providers in the nursing home, engage in recreation in the nursing home, and so on. This is especially true in large nursing homes. At a proposed size of 414 beds,72 JHL will be the type of large, segregated, institutional setting that the ADA abhors. Further, JHL’s sheer height— it would be the tallest nursing home in the world73— would breed unnecessary isolation. JHL proposes to have long-term residents live on the higher floors, with administrative offices, physical therapy, and short term residents on the lower floors.74 All long-term residents would therefore have to rely on elevators to get outside. From Mobilization for Justice’s years of work with nursing home residents, including much time spent visiting residents in nursing homes, we know that nursing home elevators are often 70 Id. at 600 (citing 42 U.S.C. § 12101(a)(2) and § 12101(a)(5)). 71 Id. at 601. 72 See supra note 18 73 See supra note 17. 74 See supra note 18. 23 congested, leading to long delays, and frequently out of order due to overuse, stranding residents who cannot use stairs on their respective floors. Many nursing homes also require residents to be accompanied by staff on elevators, or to receive permission to use elevators, further restricting residents’ movement. We therefore expect that because the long-term residents JHL-all on the high floors-will have to rely on elevators to get outside, they will face great difficulty in accessing the outdoors and the community. Originally, JHL submitted- and the DOH approved-plans for a lower-rise “Greenhouse Model” nursing home on a larger property.75 This type of home is renowned for its community integration.76 However, a real estate developer asked JHL to swap its 106th Street property with the much smaller 97th Street property and $35 million dollars. Now, what JHL proposes-and what the DOH has approved - is nowhere close to the most integrated setting for people with disabilities.77 By approving this large, vertical institutional setting for people with disabilities, the DOH advanced the interests of the long-term care industry, but betrayed its commitment to the ADA and those it is intended to serve. When this Court determines whether the DOH erred in approving JHL’s construction plan, it 75 See supra note 17. 76 See, e.g., Ina Jaffee, Move Over Nursing Homes - There’s Something Different, NPR, July 24, 2013, available at http://www.npr.org/2013/07/24/196249703/move-over-nursing-homes-theres- something-different 77 See supra note 17. 24 should consider the DOH’s history of putting the interests of the long-term care industry before the public and those it is intended to serve. B. DOH fails to properly review complaints by nursing home and adult home residents against their facilities, putting the long-term care industry ahead of residents The DOH must ensure that nursing homes and adult homes comply with federal and state regulations. These regulations cover a range of topics and are intended to ensure the highest quality of care for residents.78 The DOH is supposed to ensure compliance with regulations by regularly inspecting facilities and investigating complaints and incidents reported by residents or third parties on behalf of residents.79 Yet, the DOH fails to properly investigate resident complaints. Even if they do investigate and find a violation, the DOH fails to penalize nursing homes and adult homes, financially benefitting the facilities while dis-incentivizing adherence to regulations that protect residents. An investigation by the New York State Comptroller in 2001 found that the DOH failed to properly investigate nearly half of all nursing home complaints. Sometimes the DOH conducted no investigation at all because it merely relied on 78 See e.g., 18 NYCRR § 487.5 (on adult home resident protections) and 10 NYCRR 415.3 (on nursing home resident rights). 79 18 NYCRR 486.2(e). A “complaint inspection” is an investigation conducted by the Department, through each of its regional offices, to assess the validity of a complaint concerning a facility and issue corrective action orders when necessary. Id. at (4). 25 the facility’s internal investigation.80 The report concluded that “the health and ”81safety of nursing home residents are not being adequately protected. Not much has changed since 2001. Between 2007 and 2015, 79,804 complaints or incidents at nursing homes were reported. Of those, only 37,303-— less than half — were investigated by the DOH.82 Mobilization for Justice regularly assists nursing home residents in filing complaints and often finds that they are not investigated, or found to be unsubstantiated without the DOH even bothering to speak to the complaining resident. Further, DOH’s main source of enforcement- levying fines - is underutilizing. A 2015 State Comptroller Report found that “[a]s a matter of policy, [the DOH] does not utilize the full array of enforcement actions available to it . . . choosing to not levy fines for well over 80 percent of the violations it cites.” The report notes that this “appear[s] to undermine the incentive that fines can have as a deterrent to deficient practices . . .”83 The DOH fails to properly investigate complaints by adult home residents as well. A 1998 investigation found that sixty percent of complaints by adult home residents in New York City were not thoroughly investigated.84 Mobilization for 80 See N.Y. State Office of the State Comptroller, Department of Health Nursing Home Complaints 9- 10 (2001). 81 Id. at Executive Summary. 82 See N.Y. State Office of the State Comptroller, Nursing Home Surveillance 6 (Feb. 2016). 83 See id. 84 See N.Y. State Office of the State Comptroller Page, New York’s Oversight of Adult Care Facilities 19 (Nov. 1999). 26 Justice regularly assists adult home residents in filing complaints, and often these complaints are unsubstantiated without the DOH even speaking to the complaining resident. Further, even if the DOH finds a violation of regulations, it lets adult homes sidestep the consequences. The DOH allows adult homes that receive violations to participate in an Inspection Review Process (IRP), a closed-door appellate proceeding at which the adult home can lobby the DOH to reverse, rescind or revise their findings and any corrective action ordered following the inspection.85 Meanwhile, Defendants prevent the disclosure of the DOH’s inspection reports to residents in the manner required by DOH regulations.86 Adult home residents are not given any similar mechanism to challenge the results of an investigation. Adult home residents also do not have the opportunity to know what was said in an IRP, or even how the IRP might have changed the results of the investigation.87 The DOH’s failure to properly investigate and remedy the complaints of nursing home and adult home residents allows the long-term care industry to avoid 85 See N.Y. State Dep’t of Health, Dear Administrator Letter #06-13, Inspection Review Process (Sept. 12, 2006), https://www.nyscal.org/dear-administrator-letters-dals-2006/. 86 See 18 NYCRR § 486.2(o) and see N.Y. State Dep’t of Health, Deaf Administrator Letter #06- 13, Inspection Review Process (Sept. 12, 2006) (“[t]he operator is not required to post the inspection report until after the meeting has been held and notice given of the outcome.). 87 See N.Y. State Dep’t of Health, When Your Home is Inspected: The New York State Department of Health’s Annual Inspection and Your Rights as an Adult Home Resident, available at https://www.health.ny.gov/publications/1494/ (describing the inspection process without mention of the IRP). 27 fines and rules while residents live in substandard conditions. This is only one example of the DOH’s history of putting the interests of the long-term care industry over those of the individuals it is supposed to serve. When determining whether the DOH properly reviewed the environmental impact statement prepared by JHL’s consultants and the public’s comments criticizing that statement, this Court should consider the DOH’s history and review its actions here with the scrutiny appropriate given that history. CONCLUSION The DOH regularly fails to properly review emergency and closure plans submitted to it by the long-term care industry, putting thousands of individuals with disabilities at risk. The DOH is also an example of regulatory capture— frequently advancing the interests of the long-term care industry at the expense of those it is supposed to serve. In deciding whether the DOH evaluated JHL’s plan to construct a 20-story, 414-bed nursing home next to an elementary school in compliance with SEQRA, this Court should be aware of and consider the DOH’s history of inattentiveness to documents prepared by the long-term care industry and regulatory capture by the long-term care industry. Amici's experience suggest this Court should be wary in upholding a determination that the DOH took a “hard look” at substantive issues that are contrary to the interests of the long-term care 28 industry. This Court should review the DOH’s actions here with appropriate scrutiny. Dated: New York, New York October 3, 2017 Respectfully submitted, MOBILIZATION FOR JUSTICE (formerly MFY Legal Services) By: Kevin Cremin, Esq. Nahid Sorooshyari, Esq. Of Counsel to Jeanette Zelhof, Esq. 100 William Street, 6th Floor New York, New York 10038 Tel: (212)417-3807 Fax: (212)417-3891 Attorneys for Amici Curiae Cardozo Bet Tzedek Legal Services and New York Lawyers for the Public Interest 29 PRINTING SPECIFICATION STATEMENT This brief was prepared with Microsoft Word 2016, suing Times New Roman 14 point font for the body and Times New Roman 12 point font for the footnotes. According to the aforementioned processing system, the portions of the brief that must be included in a word count pursuant to 22 N.Y.C.R.R. § 500.13(c)(1) contain 6,985 words. 30