Woods v. Tompkins County et al

Filing 72

Summary Judgment ORDERED, that Plaintiffs Summary Judgment (Dkt. No. 61) is DENIED; and it is further ORDERED, that Defendants Summary Judgment (Dkt. No. 62) is GRANTED; and it is further ORDERED, that Plaintiffs Amended Complaint (Dkt. No. 11) is DISMISSED. Signed by Senior Judge Lawrence E. Kahn on March 28, 2019. (Copy served via regular and certified mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LANE WOODS,
Plaintiff,
-against-

5:16-CV-0007 (LEK/TWD)

TOMPKINS COUNTY,
Defendant.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On January 4, 2016, pro se plaintiff Lane Woods commenced this action against

Tompkins County. Dkt. No. 1 (“Complaint”); see also Dkt. No. 11 (“Amended Complaint”).1
Following the Court’s September 20, 2016 decision granting in part and denying in part
Defendant’s motion to dismiss, only Plaintiff’s per se discrimination claim remains, brought
pursuant to Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101,
et seq. Sept. 2016 Order.
Now before the Court are the parties’ fully-briefed cross-motions for summary judgment.
Dkt. Nos. 61 (“Plaintiff’s SJM”), 61-1 (“Plaintiff’s Memorandum”), 61-2 (“Plaintiff’s SMF”),
63 (“Opposition to Plaintiff’s SJM”), 63-2 (“Response to Plaintiff’s SMF”), 66 (“Reply to
Plaintiff’s SJM”), 62 (“Defendant’s SJM”), 62-1 (“Defendant’s Memorandum”),
62-2 (“Defendant’s SMF”), 62-3 at 5–50 (“Plaintiff’s Deposition”), 64 (“Opposition to
1

In her original Complaint, Plaintiff also named Stafkings Health Care Systems, Inc. as a
defendant. Compl. However, Plaintiff’s claims against Stafkings were dismissed with prejudice
by the Court’s February 29, 2016 order, which adopted the January 7, 2016
report-recommendation provided by the Honorable Thérèse Wiley Dancks, U.S. Magistrate
Judge. Dkt. Nos. 10 (“February 2016 Order”), 5 (“Report-Recommendation”).

Defendant’s SJM”), 67 (“Reply to Defendant’s SJM”), 68 (“Sur-Reply to Defendant’s SJM”).
For the reasons set forth below, Plaintiff’s SJM is denied, Defendant’s SJM is granted, and
Plaintiff’s case is dismissed.
II.

BACKGROUND
A. Competence of Plaintiff’s Documentary Evidence
As a preliminary matter, Defendant asks the Court to disregard all of the evidentiary

materials submitted by Plaintiff in connection with the pending motions. Opp’n Pl.’s SJM at 3.2
Defendant contends that “none of th[os]e documents”—which include, among other things,
multiple affidavits, letters, and medical records—“are competent, as they are not sworn to by
anyone.” Id. (citation omitted). The Court finds Defendant’s argument unavailing.
Defendant cites as support only Douglas v. Victor Group Capital, in which the district
court for the Southern District of New York found that, because “[t]he only medical evidence
[the plaintiff] submitted[—]several doctors letters[—]are inadmissible hearsay, [they] may not be
considered in opposition to a summary judgment motion.” 21 F. Supp. 2d 379, 391–92
(S.D.N.Y. 1998) (citations omitted). In making that determination, the court in Douglas relied on
Rule 56(e) of the Federal Rules of Civil Procedure, which has since been substantially amended
and renumbered as Rule 56(c). Fed. R. Civ. P. 56(c) advisory committee’s note to 2010
amendment. Rule 56(c)(2) still allows “[a] party [to] object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.” But
Defendant does not argue—and the Court sees no reason to find—that any of the materials

2

Cited page numbers refer to those generated by the Court’s Electronic Filing System
(“ECF”) unless otherwise noted.
2

submitted by Plaintiff should be disqualified under that provision. Therefore, the Court will not
strike Plaintiff’s evidentiary materials from the record on those grounds.
Additionally, Defendant’s argument that Plaintiff’s materials are “not sworn,” Opp’n Pl.’s
SJM at 3, appears to overlook 28 U.S.C. § 1746, which has long allowed parties to “support[],
evidence[], establish[], or prove[]” matters to be considered at summary judgment through
unsworn “declaration[s], certificate[s], verification[s], or statement[s].” § 1746. Of course,
§ 1746 still requires all such writings to be signed, “subscribed by [the writer] as true under
penalty of perjury, and dated.” Defendant could have objected to multiple of Plaintiff’s
evidentiary materials on those grounds.3 However, since Defendant failed to raise, much less
provide any support for, that argument, and because the relevant materials largely present facts
not disputed by the parties, the Court will exercise its discretion to consider those materials while
deciding the pending motions. Fed. Trade. Comm’n v. Vantage Point Servs., LLC, 266 F. Supp.
3d 648, 654 (W.D.N.Y. 2017) (“[S]triking a declaration from the record is at the court’s
discretion.” (citation omitted)); Verser v. Elyea, 80 F. App’x 522, 525 (7th Cir. 2003) (“[A]
refusal to strike or disregard portions of an affidavit in a motion for summary judgment is

3

For example, it appears that the following of Plaintiff’s evidentiary documents have not
been signed, subscribed to, and/or dated: (1) Exhibit D to Plaintiff’s SJM—an affidavit
purportedly from Plaintiff, Dkt. No. 61-4 at 3–7 (“Plaintiff’s Undated Affidavit”); (2) Exhibit F
to Plaintiff’s SJM—an April 4, 2018 letter from Dr. Michael Waters, Dkt. No. 61-4 at 8 (“Waters
2018 Letter”); (3) Exhibit H of Plaintiff’s SJM—a summary of Plaintiff’s September 9, 2016
medical appointment with Dr. John-Paul Mead, Dkt. No. 61-4 at 11–13 (“September 2016
Appointment Summary”); (4) Exhibit N to Plaintiff’s SJM—an April 6, 2018 letter from
Dr. Zaneb Yaseen, Dkt. No. 61-4 at 23 (“Yaseen Letter”); (5) the second exhibit attached to
Plaintiff’s Opposition to Defendant’s SJM—an August 9, 2018 email exchange between Plaintiff
and Tammy Papperman, Dkt. No. 64 at 11 (“2018 Papperman Email”); and (6) the first exhibit
attached to Plaintiff’s Reply to Plaintiff’s SJM—a November 21, 2017 letter from Dr. Kelly Uhl,
Dkt. No. 66 at 4–5 (“Uhl Letter”).
3

reviewed for an abuse of discretion, and as the defendants observe, [the plaintiff] admitted to the
relevant portions of the unsigned statements.”).
B. Factual Background
Unless otherwise specified, the facts set forth below are not disputed by the parties.
1. Plaintiff’s Personal and Medical History
Plaintiff is a seventy-one year old woman who has lived in Tompkins County since May
6, 2014, when she moved there from Niagara County. Def.’s SMF ¶ 3; Opp’n Def.’s SJM at 4.
From that date until sometime in the first half of 2016, Plaintiff lived in Trumansburg, a village
located outside the City of Ithaca. Pl.’s Dep. at 20, 24–25.4 Plaintiff then moved to Ithaca, into a
private apartment located at 108 Aster Lane, where she lived at the time the pending SJMs were
filed. Def.’s SMF ¶ 1; Opp’n Def.’s SJM at 4. On February 21, 2019, Plaintiff notified the Court
that her home address had changed again, and that she now lived in a different private apartment
complex in Ithaca, located at 106 Village Circle. Dkt. No. 71.
The parties agree that Plaintiff suffers from a variety of physical, mental, and emotional
conditions, though there appears to be some confusion around the specifics of Plaintiff’s medical
history. See Opp’n Def.’s SJM at 4 (claiming that “Defendant[’s SMF] incorrectly lists
[Plaintiff’s] disabilities with several errors,” but failing to describe those errors). The Court has
therefore conducted an independent review of the record, which indicates that Plaintiff suffers
from the following: (1) morbid obesity, Def.’s SMF ¶ 1; Dkt. No. 70 at 3 (“Yaseen January 2018
Treatment Note”); (2) a birth defect in her “lower spine with half-formed vertebrae,” Def.’s SMF

4

The cited page numbers for this document refer to its internal pagination, not the page
numbers generated by ECF.
4

¶ 1; Pl.’s Dep. at 16; (3) two artificial shoulders, one of which is permanently dislocated, Def.’s
SMF ¶ 1; Pl.’s Dep. at 16; Yaseen Jan. 2018 Treatment Note; (4) several herniated and
degenerative discs in her spinal column, Def.’s SMF ¶ 1; Pl.’s Dep. at 16; (5) multiple
hemangiomas of the spine, Pl.’s Dep. at 16; (6) syringomyelia of the spinal cord, id.;
(7) Madelung’s deformity of the wrists, id. at 16–17; Dkt. No. 70 at 5 (“Waters March 2018
Treatment Note”); (8) diabetes, Def.’s SMF ¶ 1; Pl.’s Dep. at 17; (9) arthritis, Def.’s SMF ¶ 1;
Pl.’s Dep. at 17; (10) “venous insufficiency of the limbs,” Pl.’s Dep. at 17; (11) paroxysmal
fibrillation of the heart, Def.’s SMF ¶ 1; Pl.’s Dep. at 17; (12) depression, Def.’s SMF ¶ 1; Pl.’s
Dep. at 18; (13) post-traumatic stress disorder (“PTSD”), Def.’s SMF ¶ 1; Pl.’s Dep. at 18;
(14) developmental trauma disorder, Def.’s SMF ¶ 1; Pl.’s Dep. at 18; and (15) obsessive
compulsive disorder (“OCD”), Def.’s SMF ¶ 1; Pl.’s Dep. at 18.
2. Public Services and Benefits Available to Plaintiff
Plaintiff’s conditions entitle her to a variety of benefits through a number of different
government programs and agencies.
For example, Plaintiff participates in the New York State Nursing Home Transition and
Diversion (“NHTD”) program, which is designed “to help people stay out of” nursing homes and
other clinical institutions. Pl.’s Dep. at 12, 14. Through that program, Plaintiff’s 108 Aster Lane
apartment was equipped with a collection of adaptive medical equipment, including a queen size
hospital bed, a lift chair, an automatic door, and grab bars in the bathrooms. Id. at 15–16; Def.’s
SMF ¶ 4. Plaintiff also had (1) a personal emergency response system installed in her apartment
by Defendant’s Office for the Aging, Pl.’s Dep. at 34; Def.’s SMF ¶ 4; (2) access to subsidized
transportation services through Defendant’s Gadabout program, Pl.’s Dep. at 32; Def.’s SMF ¶ 4;
5

and (3) access to Defendant’s Meals on Wheels program, though she did not utilize that service
since her OCD “prevent[ed her] from eating” the food it provided, Pl.’s Dep. at 33–34, Def.’s
SMF ¶ 4.5
Plaintiff also qualifies for Medicaid through the operation of “a supplemental needs
trust.” Pl.’s Dep. at 12. As part of its Medicaid program, New York offers beneficiaries the
opportunity to procure personal care services (“PCS”), whereby qualified individuals can obtain
the services of an in-home personal care aide to provide “some or total assistance with personal
hygiene, dressing[,] and feeding; nutritional and environmental support functions; and
health-related tasks.” N.Y. Soc. Serv. Law § 365–a(2)(e); 18 N.Y.C.R.R. § 505.14(a). “As a
Social Services Department, [Defendant] administers the Medicaid program in Tompkins
County, including the provision of [PCS] to qualifying individuals.” Def.’s SMF ¶ 7; Dkt.
No. 62-4 at 1–5 (“First Bergman Affidavit”) ¶ 8; N.Y. Soc. Serv. Law § 62(1).
During the first stage of the PCS-provision process—triggered by Defendant’s receipt of
a physician’s order requesting aide services for a beneficiary—Defendant assigns a nurse to
perform a medical evaluation of the individual. Pl.’s Dep. at 28–29. The goal of those
evaluations—which must recur twice annually as long as the individual continues to request
PCS, id.; First Bergman Aff. ¶ 8—is to “determine [the individual’s] eligibility” for services and
to “develop[] a care plan,” Def.’s SMF ¶ 7; First Bergman Aff. ¶ 8; Pl.’s Dep. at 28–29; Opp’n
5

The record does not indicate whether Plaintiff also had/has access to these services and
equipment at her Trumansburg residence or in her new 106 Village Circle apartment. However,
since neither party has notified the Court of any substantive changes in Plaintiff’s living situation
as a result of Plaintiff’s address changes, the Court will assume for the purposes of this
Memorandum-Decision and Order that all of Plaintiff’s Tompkins County residences had the
same medical equipment as her 108 Aster Lane apartment, and that her moves did not disrupt
Defendant’s provision of the above-listed services.
6

Def.’s SMF at 5. The individual’s health and risk factors are evaluated using the “Uniform
Assessment System,” which scores his/her “need [for] a nursing home level of care.” Dkt. No.
61-4 at 24–25 (“Papperman Letter”). “Nursing home level of care is confirmed for candidates
scoring a [five] or higher on this assessment.” Id. at 24.
However, Defendant is not itself “a licensed provider of [PCS] and has no employees
licensed or qualified to provide such services.” Def.’s SMF ¶ 7; First Bergman Aff. ¶¶ 8–9.
Therefore, if Defendant deems an individual eligible for an in-home aide (i.e., if the individual
scores a five or higher on the Uniform Assessment System), Defendant must refer the individual
to one of the two private entities in Tompkins County licensed by the state to provide
PCS—Stafkings and CareGivers. Def.’s SMF ¶ 8; First Bergman Aff. ¶ 16; Pl.’s Dep. at 24; Pl.’s
Undated Aff. at 4. After notifying those entities of the individual’s needs, Defendant can then
directly “authorize[] payment for the benefits in the exact amount approved for such services by
Medicaid.” Def.’s SMF ¶ 7; First Bergman Aff. ¶ 8.
According to Defendant, “[t]here are two other possible sources of aides” for Medicaid
beneficiaries, but they cannot be provided directly by Defendant either. Def.’s SMF ¶ 14. First,
Medicaid-reimbursed services can be obtained through Visiting Nurse Services (“VNS”). Id. But
New York’s Medicaid regulations classify VNS as a provider of “home health services,” not
PCS, and therefore require a referral from a treating physician as a prerequisite to obtaining
VNS’s services. 18 N.Y.C.R.R. § 505.23(2); Def.’s SMF ¶ 14. Second, qualified individuals can
receive PCS through the Consumer Directed Personal Attendant Program (“CDPAP”), a
statewide Medicaid program administered locally by the Finger Lakes Independence Center.

7

18 N.Y.C.R.R. § 505.28; Def.’s SMF ¶ 15;6 Pl.’s Dep. at 22. The CDPAP allows qualified
beneficiaries to personally hire their own aide, then obtain reimbursement directly for the PCS
that aide provides. § 505.28; Def.’s SMF ¶ 15; Pl.’s Dep. at 22.
3. Plaintiff’s In-Home Aide Services
The parties agree that Defendant has consistently performed Plaintiff’s required in-home
aide evaluations every six months. Pl.’s Dep. at 28; Dkt. No. 63-1 at 1–2 (“Second Bergman
Affidavit”) ¶ 4; Uniform Assessment Reports. And though Plaintiff accuses Defendant’s
representatives of “deliberately skew[ing]” her evaluations “to reduce the apparent level of care
required,” Dkt. No. 66-1 (“Plaintiff’s 2018 Affidavit”) at 3, the parties also agree that Defendant
has deemed Plaintiff eligible to receive PCS throughout the entire period of her residency in
Tompkins County, First Bergman Aff. ¶ 10; Dkt. No. 63-1 at 4–19 (“Uniform Assessment
Reports”); Pl.’s Undated Aff. at 4.
However, Plaintiff has actually received PCS during only a small fraction of her time in
Tompkins County—for seventeen months from May 2014 to October 2015, and for another
approximately five months during the summer and fall of 2016. Def.’s SMF ¶¶ 10–12; Pl.’s Dep.
at 27. Although Plaintiff did receive home health services through VNS for an additional
twenty-two months—from November 2015 to September 2017—she has not had an in-home aide
of any kind for the last year and a half. Def.’s SMF ¶ 16; Pl.’s Dep. at 19–21.

6

Due to a typographical error, the last two paragraphs in Defendant’s SMF have both
been numbered “15.” To avoid confusion, the Court will refer to the first of these as paragraph 15
and the second as paragraph 16.
8

a. Stafkings—May 2014 to October 2015
From approximately May 6, 2014 until October 5, 2015, Plaintiff received PCS through
Defendant, provided by Stafkings. Pl.’s Dep. at 27; Dkt. No. 62-4 at 9–10 (“Stafkings Emails”).
During most of that time, Stafkings provided Plaintiff with a “very satisfactory aide.” Opp’n
Def.’s SJM at 4. However, after that aide left to attend nursing school, Stafkings struggled to find
a permanent replacement to service Plaintiff. Id.; Stafkings Emails.
According to two contemporaneous emails sent by Stafkings personnel to Plaintiff and
Defendant, Stafkings provided Plaintiff with five aides following the nursing student’s departure,
but all five complained about Plaintiff’s “demanding” and “stressful” manner, and four of them
quit without notice. Stafkings Emails. Plaintiff objects to that version of events. Opp’n Def.’s
SJM at 4. Although she admits that she “had a personality conflict with [Stafkings’s]
coordinator,” Pl.’s Dep. at 26, Plaintiff claims that she “dismissed one aide for eloping when sent
on an errand . . . , another decided to stay home and care for her mother . . . , and one was only a
temp,” Opp’n Def.’s SJM at 4. Regardless, both parties agree that, as of early October 2015,
Stafkings “ha[d] no available staff willing and able to service” Plaintiff. Def.’s SMF ¶¶ 11–12;
Stafkings Emails; Pl.’s Dep. at 27; Opp’n Def.’s SJM at 4; Pl.’s Undated Aff. at 4.
b. CareGivers—Summer 2016 to November 2016
After Stafkings terminated Plaintiff’s aide services, she communicated continuously with
Defendant about the possibility of obtaining PCS from CareGivers, the only other private entity
with which Defendant could contract to provide such services. Pl.’s Dep. at 24–25; Pl.’s Undated
Aff. at 4. Finally, after Plaintiff moved from Trumansburg to Ithaca during the first half of 2016,
“CareGivers did step in” to provide her PCS “for a couple hours a week.” Pl.’s Dep. at 24–25. In
9

total, CareGivers provided Plaintiff with PCS for no more than five months, from the summer of
2016 until the following November. Id.; Dkt. No. 62-4 at 7 (“CareGivers Letter”).
However, on November 16, 2016, CareGivers wrote Defendant to provide “formal
notice” of the discontinuation of Plaintiff’s services. CareGivers Ltr. In that letter, CareGivers
accused Plaintiff of being “rude” and “threatening” to CareGivers staff following a disagreement
over the scheduling of Plaintiff’s services, and stated that CareGivers “w[ould] not service
client[s] that are threatening” to its employees. Id. Plaintiff agrees that she grew frustrated over
the agency’s failure to properly schedule her PCS, and admits that she told a CareGivers staff
member: “[Y]ou know what? I know the County doesn’t care how you treat me, but maybe the
lawyer will.” Pl.’s Dep. at 26. According to Plaintiff, “as soon as [she] said the word
[‘]lawyer[’], . . . [CareGivers] wouldn’t deal with [her] anymore, even though [she was] entitled
to make a complaint about any treatment.” Id.
c. VNS—November 2015 to September 2017
Approximately one month after Stafkings’s October 2015 termination of Plaintiff’s PCS,
Plaintiff started obtaining home health services through VNS. Pl.’s Dep. at 19–20.
Once again, Plaintiff claims that VNS initially staffed her with “a satisfactory aide.” Id.
at 19. But at some point during Plaintiff’s two-year relationship with VNS, the agency “switched
all [its] aides around,” leaving Plaintiff with “a ringer” who “caused [her] more distress than
help.” Id. Specifically, Plaintiff accused the second aide of incompetence, because “[s]he
couldn’t keep any directions straight about [Plaintiff’s] laundry,” and found her both “lazy” and
“not very helpful.” Id. at 20–21. Therefore, in September 2017, Plaintiff asked the second aide
not to come back, in the hope that VNS “would try [to] give [her] another aide.” Id. at 21.
10

However, VNS did not have any other Medicaid-qualified aides on staff and had to discontinue
Plaintiff’s service altogether. Id.
d. The CDPAP
Plaintiff previously received PCS through New York’s CDPAP while living in Niagara
County. Pl.’s Dep. at 22, 31. Defendant has notified Plaintiff that she is still eligible to receive
aide services through that program while living in Tompkins County, Def.’s SMF ¶ 15, but
Plaintiff has never done so, Pl.’s Dep. at 23–24.
Plaintiff claims that she “has made several attempts to find an aide by using the list [of
caregivers] maintained by the Finger Lakes Independence Center,” but that “th[o]se efforts ended
in tears and frustration . . . because the list is poorly maintained. After many calls which were
wrong numbers, where people were not looking for employment, or failed to call back after
messages, Plaintiff did succeed in interviewing one potential aide, who turned out to be a
convict.” Opp’n Def.’s SJM at 5; Pl.’s Dep. at 23. Plaintiff also claims that the CDPAP is poorly
maintained in Tompkins County, and that “the agency [in Ithaca] is just ripping off the system.”
Pl.’s Dep. at 23.
4. Plaintiff’s Health Post-September 2017
The parties disagree as to the changes in Plaintiff’s health, if any, that resulted from her
inability to access PCS through Defendant.
Plaintiff claims that her physical condition “has deteriorated since [Defendant] has failed
to provide” her with “the required [services].” Pl.’s SMF ¶ 4. Specifically, Plaintiff points to her
development of “three new disabling conditions in her hands and wrists” since her aide services
were discontinued, and claims that her permanently dislocated shoulder condition “worsened”
11

during that time. Id.; Pl.’s Undated Aff. at 6. Plaintiff also asserts that, since losing her Stafkings
aide in 2015, she has “not been able to put on a pair of socks or boots in winter weather,” which
has led her to “suffer a great deal from the cold while walking [her emotional support animal],
traveling to medical appointments, grocery shopping, etc.” Pl.’s Undated Aff. at 5. Finally,
Plaintiff claims that she is unable to dress or wash herself, safely cook for herself, or use the
toilet without assistance, problems which are exacerbated by the unavailability of PCS. Pl.’s
2018 Aff. ¶¶ 12–15.
Plaintiff also claims that her mental and emotional well-being has suffered since
Stafkings and CareGivers ceased providing her PCS, and that her “depression sometimes
becomes so severe that the issue of suicide surfaces repeatedly.” Pl.’s Undated Aff. at 5. As
support for that claim, Plaintiff submits two letters from her treating psychotherapist, Dr. Karen
R. Burlew, dated February 6, 2016 and August 20, 2018. Dkt. No. 61-4 at 9 (“2016 Burlew
Letter”); Dkt. No. 64 at 10 (“2018 Burlew Letter”). Both letters report that, following the
termination of Plaintiff’s relationship with Stafkings and CareGivers, Dr. Burlew has “observed a
marked deterioration in [Plaintiff’s] emotional and physical states, including severe symptoms of
depression, anxiety, and intensified symptoms of PTSD.” 2016 Burlew Ltr; 2018 Burlew Ltr.
Multiple of Plaintiff’s treating physicians have commented that her medical conditions
“mak[e] it difficult [for Plaintiff] to perform basic activities of daily living,” 2018 Waters Ltr.,
and have recommended that she be provided with an in-home aide, id.; Yaseen Letter; Waters
Mar. 2018 Treatment Note. One such physician, Dr. John-Paul D. Mead, even recommended in
late 2016 that Plaintiff consider “apply[ing] for short-term rehabilitation stay” in a nursing home,

12

where she could be afforded “a higher level of care.” Dkt. No. 61-4 at 11–13 (“Mead Treatment
Note”).
Defendant, on the other hand, contends that Plaintiff’s lack of access to PCS “has not
affected [Plaintiff’s] ability to maintain [herself] in her own apartment, with a significant amount
of equipment and services provided to her.” Def.’s SMF ¶ 13. Defendant points to the results of
Plaintiff’s twice-annual care evaluations—as reflected in her Uniform Assessment Reports—as
proof that Plaintiff’s health has not declined and that she faces no increased risk of
institutionalization. Opp’n Pl.’s SJM at 4. The scores Plaintiff achieved on those evaluations
improved substantially between January 2016 and August 2016, Uniform Assessment Reports
at 8–11 (showing that Plaintiff scored a sixteen in January 2016, but a ten in August 2016), and
have since held steady, id. at 12–19.
C. Procedural History
Plaintiff filed her Complaint on January 4, 2016, alleging discrimination and failure to
accommodate in violation of Title II of the ADA. Compl. On January 29, 2016, after receiving
Judge Dancks’s Report-Recommendation, Plaintiff amended her complaint to remove Stafkings
as a defendant and to correct certain typographical errors contained in her original pleading. Am.
Compl.; see also Sept. 2016 Order at 3. The Court’s February 2016 Order accepted the Amended
Complaint for filing, deemed it the operative pleading, reviewed it pursuant to 28 U.S.C. § 1915,
and determined that the claims set forth therein merited a response. Feb. 2016 Order at 2–3.
On April 26, 2016, Defendant filed a motion to dismiss. Dkt. No. 16 (“Motion to
Dismiss”). The Court granted that Motion as to Plaintiff’s failure to accommodate claim,
Sept. 2016 Order at 9–11, but also (1) rejected Defendant’s exhaustion argument, finding that
13

“Plaintiff need not have [had] a fair hearing before bringing this action in federal court,” id.
at 5–6; and (2) denied the Motion as to Plaintiff’s discrimination claim, since the Amended
Complaint plausibly alleged “that Defendant engaged in per se discrimination by putting Plaintiff
at risk of being institutionalized,” id. at 6–9; see also Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581, 597 (1999) (finding that the “unjustified isolation” of disabled persons in institutionalized
care facilities can give rise to an actionable discrimination claim under the ADA).
Following discovery and a failed mediation, Plaintiff filed for summary judgment on
July 30, 2018. Pl.’s SJM. In the memorandum attached to that motion, Plaintiff argues that
“both . . . Plaintiff and Defendant agree on the material facts of [her] case,” which prove that she
“has been denied the benefits of . . . Defendant’s Long Term Care Program, and has suffered
significant deterioration in health which places her at risk of institutionalization, a category of
discrimination under the ADA.” Pl.’s Mem. at 5. In its Opposition to Plaintiff’s SJM, Defendant
only challenges one aspect of Plaintiff’s argument: her representation that she faces a serious risk
of institutionalization. Opp’n Pl.’s SJM at 3–4. Specifically, Defendant contends that (1) “none
of the medical reports cited by [P]laintiff say that [she] is at serious risk of institutionalization;
they merely opine that [P]laintiff would be better off with the assistance of nursing aides,” id.
at 4; (2) “none of the reports cited by [P]laintiff are made by people who even purport to be
competent to determine whether a person should be placed in a nursing home,” id.; and (3) the
“objective evaluations” performed by UAS “absolutely refute” Plaintiff’s claim that she is at
serious risk of institutionalization, id.
Defendant then cross-moved for summary judgment on August 3, 2018, arguing that
Plaintiff cannot maintain her ADA discrimination claim because Defendant “took no action that
14

placed [her] at an increased risk of institutionalization.” Def.’s Mem. at 8–10. Rather, Defendant
argues that “[i]t [wa]s the mistreatment of aides by [P]laintiff that result[ed] in [her] not
receiving personal care aides,” meaning Defendant cannot be held liable. Id. Defendant also
reiterates the arguments contained in its Opposition to Plaintiff’s SJM, which contend that
“Plaintiff does not face the risk of institutionalization as contemplated by Olmstead and its
progeny.” Id. at 10–11. In her opposition papers, Plaintiff (1) cites to the statement of interest
filed by the United States in Ball by Burba v. Kasich, 244 F. Supp. 3d 662 (S.D. Ohio 2017),
which she interprets as supporting her claim that “her deterioration in health, safety[,] and
welfare subsequent to Defendant’s withdrawal of services has placed [Plaintiff] at risk of
institutionalization,” Opp’n Def.’s SJM at 6–8; and (2) argues that Defendant “is responsible for
it’s contractees’ [sic] disability discrimination,” id. at 8–9.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and a dispute is “‘genuine’ . . . if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or
unnecessary” will not preclude summary judgment, “summary judgment will not lie if . . . the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see
also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact
could find in favor of the nonmoving party should summary judgment be granted.”).
15

The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The moving party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which [the nonmoving] party will bear the burden of proof at
trial.” Id. at 322.
In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). Thus, a court’s duty in reviewing a motion for summary
judgment is “carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV.

DISCUSSION
Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” § 12132. In order to establish a violation of that statute, a plaintiff must demonstrate
“‘(1) that she is a qualified individual with a disability; (2) that she was excluded from
participation in a public entity’s services, programs[,] or activities or was otherwise
16

discriminated against by a public entity; and (3) that such exclusion or discrimination was due to
her disability.’” Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016) (quoting Fulton v. Goord, 591
F.3d 37, 43 (2d Cir. 2009).
Through § 12134(a) of the ADA, Congress authorized the Attorney General to
“promulgate regulations . . . that implement” the Act. Pursuant to that grant of authority, the
Attorney General issued 28 C.F.R. § 35.130, which established an integration principle
“requiring a ‘public entity [to] administer . . . programs . . . in the most integrated setting
appropriate to the needs of qualified individuals with disabilities.’” Conn. Office of Prot. &
Advocacy for Persons with Disabilities v. Conn., 706 F. Supp. 2d 266, 275 (D. Conn. 2010)
(alterations in original) (quoting § 35.130(d)). “[T]he most integrated setting appropriate to the
needs of qualified individuals with disabilities” is one that “enables individuals with disabilities
to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p.
450 (1998). Nevertheless, while a state must “make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid discrimination,” it need
not do so if it “can demonstrate that making the modifications would fundamentally alter the
nature of the service, program, or activity.” § 35.130(b)(7). Further, the Attorney General
specified that, while “[a] public entity may not administer a licensing or certification program in
a manner that subjects qualified individuals with disabilities to discrimination on the basis of
disability,” “[t]he programs or activities of entities that are licensed or certified by a public entity
are not, themselves, covered by this part.” § 35.130(b)(6).
In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court interpreted
the so-called integration principle as establishing that the “unjustified institutional isolation of
17

persons with disabilities” constitutes a prohibited “form of discrimination.” Id. at 600; see also
id. at 607 (Stevens, J., concurring in part and concurring in the judgment) (“Unjustified disparate
treatment, in this case, ‘unjustified institutional isolation,’ constitutes discrimination under the
Americans with Disabilities Act of 1990.”). In a subsequent interpretation of the Olmstead
decision by the Department of Justice—which is “controlling unless plainly erroneous or
inconsistent with the regulation,” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation
marks omitted)—the Department wrote that a plaintiff could successfully establish a “sufficient
risk of institutionalization to make out an Olmstead violation if a public entity’s failure to
provide community services . . . will likely cause a decline in health, safety, or welfare that
would lead to the individual’s eventual placement in an institution.” U.S. Dep’t of Justice,
Statement of the Department of Justice of Enforcement of the Integration Mandate of Title II of
the Americans with Disabilities Act and Olmstead v. L.C., Q. 6 (last updated June 22, 2011),
available at https://www.ada.gov/olmstead/q&a_olmstead.htm. Referencing that interpretation,
the Second Circuit has confirmed that “a plaintiff may state a valid claim for disability
discrimination by demonstrating that the defendant’s actions pose a serious risk of
institutionalization for disabled persons.” Davis, 821 F.3d at 263.
A. Plaintiff’s Risk of Institutionalization
Defendant argues that the Court should grant its motion for summary judgment because
“there is not a likelihood that [P]laintiff’s health will decline to such an extent that she is likely to
face institutionalization,” much less that she faces a “serious” risk of being institutionalized.
Def.’s Mem. at 10; Davis, 821 F.3d at 263. As evidence, Defendant points to the state programs
to which Plaintiff has been provided access, and which have provided her with “extensive
18

adaptive equipment and extensive services to allow her to remain in her own apartment.” Id.
at 10–11.
Plaintiff, on the other hand, contends that “[d]uring the time she has not received the
required [aide services, her] treating physicians [have] note[d] increasing disability in several
areas . . . crucial to the provision of self[-]care.” Pl.’s Mem. at 4. Specifically, Plaintiff points to
the recent worsening of her shoulder, wrist, and hand conditions as impeding her ability to care
for herself, and references Dr. Mead’s 2016 treatment note (which recommended a short-term
rehabilitation stay in a nursing home) as proving that she has suffered “significant deterioration
of health and functional ability.” Id. Plaintiff therefore argues that Defendant’s failure to provide
in-home care has placed her at risk of institutionalization in a manner sufficient to constitute
discrimination under Olmstead as a matter of law. Id. at 5.
The Court disagrees with both Plaintiff and Defendant. The parties’ conflicting
characterizations of Plaintiff’s health status and the risk that she may be institutionalized present
a classic dispute of material fact. On the one hand, the record indicates that Plaintiff suffers from
a variety of debilitating medical conditions, many of which would appear to necessitate her
ongoing reliance on an in-residence nurse or aide. See, e.g., Pl.’s SMF ¶ 4; Pl.’s Undated Aff.
at 5–6; Pl.’s 2018 Aff. ¶¶ 12–15; 2018 Waters Ltr., Yaseen Letter; Waters Mar. 2018 Treatment
Note; Mead Treatment Note. But on the other hand, Defendant’s twice-annual assessments of
Plaintiff’s health and risk factors indicate that her condition has actually improved over the last
few years, implying that she may be at less risk of institutionalization now than three years ago.
Uniform Assessment Reports.

19

Weighing those opinions and reports against one another to determine whether Plaintiff
faces “a serious risk of institutionalization,” Davis, 821 F.3d at 263 (emphasis added), lies
outside the Court’s purview at the summary judgment stage, see Gallo, 22 F.3d at 1224 (a court’s
duty in reviewing a motion for summary judgment is “carefully limited” to finding genuine
disputes of fact, “not to deciding them”). Accordingly, the Court will not grant Defendant’s SJM
on those grounds, and must deny Plaintiff’s SJM in its entirety, since she cannot show that she is
entitled to judgment as a matter of law.
B. Defendant’s Involvement in Plaintiff’s Alleged Injury
Defendant also argues that Plaintiff’s ADA claim must be dismissed because it was
Plaintiff’s own behavior, not Defendant’s, that has led to her alleged increased risk of
institutionalization. Def.’s Mem. at 10. Namely, Defendant contends that it “has done everything
it can legally to provide [P]laintiff with personal care aides,” including by “provid[ing]
[P]laintiff’s doctor with a form to identify her need for services; . . . send[ing] nurses to
[P]laintiff’s home to create a plan for services; . . . regularly notif[ying] the licensed providers of
[P]laintiff’s need for services;” and standing ready “to authorize payment for those services at
legally mandated rates.” Id. at 9. However, Plaintiff “is not getting service because of the poor
relationships between [her] and the [licensed] providers”—private entities over which Defendant
has no control, id.—and because of her “mistreat[ment of] their staff,” id. at 9–10. Finding
Defendant liable, it contends, would thus result in a “catch-22” whereby it would be required “to
provide personal care aide services even [though it could] not actually provide the service
because there are no available licen[s]ed providers.” Id.

20

The ADA’s integration mandate applies to contexts where a state uses private entities to
deliver services to people with disabilities. Disability Advocates, Inc. v. Paterson, 598 F. Supp.
2d 289, 317 (E.D.N.Y. 2009); Radaszewski v. Maram, 383 F.3d 599, 614 (7th Cir. 2004). “An
Olmstead claim concerns a public entity’s obligation to make reasonable modifications to its
service system to enable individuals with disabilities to receive services in the most integrated
setting appropriate to their needs.” Patterson, 598 F. Supp. 2d at 317. Public entities are required
under the ADA 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)
(emphasis added). Defendant administers the county Medicaid program, deems individuals
eligible for in-home aides, refers those eligible to private entities licensed to provide PCS, and
then authorizes payments for benefits. Given this public administration, Title II applies. It is
immaterial that Plaintiff receives the actual services via private agencies. Roland v. Cellucci, 52
F. Supp. 2d 231, 237 (D. Mass. 1999).
However, Defendant cannot be held responsible under Title II for actions of private actors
themselves unless discrimination by those private actors is the result of the state’s policies. See
28 C.F.R. § 35.130(b)(6) (“The programs or activities of entities that are licensed or certified by a
public entity are not, themselves, covered by this part”). See also Dep’t of Justice, ADA
Technical Assistance Manual II–3.7200 (noting that “[t]he State is not accountable for
discrimination in the . . . practices of a licensee if those practices are not the result of
requirements or policies established by the State. Although licensing standards are covered by
[T]itle II, the licensees’ activities themselves are not covered. An activity does not become a
‘program or activity’ of a public entity merely because it is licensed by the public entity.”).
21

Defendant has notified the licensed agencies about Plaintiff’s needs, and is prepared to
authorize payment. The refusal of service for Plaintiff that she claims puts her at risk of
institutionalization results from decisions by the private personal aide agencies based on
interactions with Plaintiff, and were not caused by any discriminatory methods of administration
on the part of Defendant. Accordingly, Defendant cannot be held responsible under Title II for
this alleged risk of institutionalization, and Plaintiff’s claim must be dismissed.
It is presumably within Defendant’s power, assuming licensure can be obtained from the
state, to create a new home aide service run directly by the state, without outside private
agencies, to serve Plaintiff. See Pl. Mem. (seeking a mandate requiring Defendant “to provide an
aide immediately”). But such an expansion of services goes beyond Title II’s mandate, which
only requires states to “adhere to the ADA’s nondiscrimination requirement with respect to the
services they actually provide.” Olmstead, 527 U.S. at 603 n.14. The goal of the Americans with
Disabilities Act is to “assure that disabled individuals receive ‘evenhanded treatment’ in relation
to the able-bodied.” Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998). The ADA does not require
that disabled persons be accommodated with new public benefits currently unavailable to
anyone: “Even [when] plaintiffs have demonstrated that they are entitled to a reasonable
accommodation, an accommodation that served as a grant of special substantive rights would not
constitute appropriate relief.” Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003). If a
program’s public services or benefits are available to all qualified individuals on an equal basis,
no ADA claim stands: “The ADA requires only that a particular service provided to some not be
denied to disabled people.” Rodriguez, 197 F.3d at 618. The ADA “does not mandate provision

22

of new benefits” id. at 619, nor does it “establish an obligation to meet a disabled person's
particular needs . . .” Pfrommer, 148 F.3d at 83.
Defendant administers PCS services using multiple private providers. The ADA does not
require Defendant to create or establish a relationship with a new provider to serve Plaintiff
alone.
Accordingly, Plaintiff’s claim must be dismissed.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Summary Judgment (Dkt. No. 61) is DENIED; and it is

further
ORDERED, that Defendant’s Summary Judgment (Dkt. No. 62) is GRANTED; and it
is further
ORDERED, that Plaintiff’s Amended Complaint (Dkt. No. 11) is DISMISSED; and it is
further
ORDERED, that the Clerk is directed to close this case; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.

IT IS SO ORDERED.
DATED: March 28, 2019
Albany, New York

23