Fair Housing Justice Center, Inc. et al v. Cuomo et al

Filing 151

OPINION AND ORDER: For the foregoing reasons, Plaintiff's motion for a preliminary injunction is GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff's motion is granted with respect to her request that I direct Defendant Village H ousing to permit her to return to her apartment unless and until a warrant of eviction is issued by a New York City court and executed by a New York City marshal. That relief is subject to Plaintiff's application to and enrollment in a Manage d Long-Term Care Program that provides adequate care and services to Plaintiff in her VillageCare apartment. The parties shall use their best efforts to have Plaintiff evaluated for a Managed Long-Term Care Program within three (3) weeks of the ent ry of this Opinion & Order. Plaintiff's motion is denied with respect to her request that I direct Defendant Village Housing to reenroll Plaintiff in its ALP and provide services pursuant to 18 NYCRR § 494.5. Should the relief granted pr esent difficulties for either party that make it unworkable, the parties shall submit a joint letter of no more than five (5) pages within one (1) week of the entry of this Opinion & Order outlining in detail the reasons why they believe the relief granted is unworkable. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/10/2018) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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L'SDC SDNY
OOCUMENT
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FAIR HOUSING WSTICE CENTER, INC.,
JANE DOE and JOHN DOE,
Plaintiffs,
- against -

OPINION & ORDER

ANDREW M. CUOMO, in his official
capacity as Governor of the State of New
York, HOWARD A. ZUCKER, in his official
capacity as Commissioner of the New York
State Department of Health, THE NEW YORK:
STATE DEPARTMENT OF HEALTH, ELM
YORK LLC, MADISON YORK ASSISTED
LIVING COMMUNITY, LLC, MADISON
YORI( REGO PARK LLC, and VILLAGE
HOUSING DEVELOPMENT FUND
CORPORATION,
Defendants.

---------------------------------------------------------X
Appearances:
Jota L. Borgmann
Kevin M. Cremin
Tanya Kesler
Mobilization for Justice
New York, New York
Counsel for Plaintiff
Susan A. Silverstein
Iris Y. Gonzalez
AARP Foundation
Washington, DC
Counsel for Plaintiff

18-CV-3196 (VSB)

I

David T. Luntz
Hinman Straub, P.C.
Albany,NY
Counsel.for D~fendant
Village Housing Development Fund Corporation
VERNON S. BRODERICK, United States District Judge:
Before me is Plaintiff Jane Doe's Motion for a Preliminary Injunction seeking: (!) to
prohibit Defendant Village Housing Development Fund Corporation ("Village Housing") from
preventing Plaintiff from returning to her apartment unless and until a warrant of eviction is
issued by a New York City comi and executed by a New York City marshal; and (2) to direct
Village Housing to reenroll her in its Assisted Living Program and provide services pursuant to
the relevant New York City Code sections. For the reasons stated below, Plaintiffs preliminary
injunction motion is GRANTED IN PART and DENIED IN PART.

I.

Background 1
A.

VillageCare

Village Housing operates VillageCare at 46 & Ten ("VillageCare"), which is an adult
care facility ("ACF"). (See Freeland Aff. ~ 1.)2 ACFs were established by statute in New York
to provide housing and services to people who, due to age or disability, are unable to live
independently. ACFs come in one of two forms: Adult Homes or Enriched Housing Programs.

See N.Y. Comp. Codes R. & Regs. ("NYCCRR") tit. 18, Parts 487,488. VillageCare is an
Enriched Housing Program. (Freeland Aff. ~I.) Enriched Housing Programs provide long-term
residential care to adults over sixty-five in community-integrated settings resembling

1

The background section is based upon testimony during the evidentiary hearing and the various declarations and
exhibits submitted by the parties, including those submitted for the evidentiary hearing.
2

"Freeland Aff." refers to the Affidavit in Opposition of Sandy Freeland, filed May 29, 2018. (Doc. 60.)

2

independent honsing units. NYCCRR tit. 18, § 488.2(a).
Village Housing also operates an assisted living program ("ALP") within VillageCare. 3
(Freeland Aff.

~

I.) ALPs are Medicaid-reimbursed programs that provide a greater level of

services than pure Enriched Housing Programs, and are intended to serve people who would
otherwise require placement in a nursing home. ALPs are required to provide or arrange to
provide "personal care services ... home health aide services; personal emergency response
services; nursing services; physical therapy; occupational therapy; speech therapy; medical
supplies and equipment not requiring prior authorization; and adult day health ca1e." NYCCRR
,
tit. 18, § 494.S(b). A person is eligible for an ALP if he or she requires more care or services
than can be directly provided by an ACF; is eligible for a nursing home, but can be appropriately
cared for at an ALP; and has a stable medical condition and is able, with direction, to take action
sufficient to assure self-preservation in an emergency. See N.Y. Soc. Serv. Law§ 461-1 (I )(d).
One of the assessment tools VillageCare uses to determine eligibility is called a Uniform
Assessment System evaluation ("UAS"). (See Freeland Direct Aff. ~ 15.)4 The UAS is intended
to be an independent evaluation of whether an individual meets general eligibility criteria for a
particular program or level of care. (Moroz Direct Aff. ~ 2.) 5 It typically includes an in-person

,
assessment lasting between one-and-a-half to three hours. (Id.) The results of the assessment are
used to calculate a Nursing Facility Level of Care ("NFLOC") score. (Id.) According to Sandy

3

VillageCare contains one hundred beds, eighty of which are dedicated to residents enrolled in the ALP, (Freeland
Aff. ~ 7.) All of the apartments at VillageCare are located on the third floor or higher. (Id.~ 8.)

4

"Freeland Direct Aff." refers to the Affidavit of Sandy Freeland for Evidentiary Hearing on Plaintiffs Motion for a
Prelimina1y Injunction, filed July 3, 2018, and submitted in redacted form. (Doc. 98-4.) An unredacted version of
this document was filed under seal.

5 "Moroz Direct Aff." refers to the Affidavit ofMaYa Moroz for Evidentiary Hearing on Plaintiffs Motion for a
Preliminary Injunction, filed July 3, 2018, and subnl.itted in redacted form. (Doc. 98-6.) An unredacted version of
this document was filed under seal.

3

Freeland-the Vice President of Program Operations and the Administrator of Village
Housing-the "primary purpose [of the UAS] is to detennine whether the individual has an
NFLOC score of at least 5 and is, thus, potentially eligible for an ALP [because] an NFLOC of 5
or more indicates nursing home eligibility." (Freeland Direct Aff. ,i 15; see also Ex. DJ 1.) 6
VillageCare considers an NFLOC score of above 15 "as an indicator that the extent of an
applicant's physical, supervisory and psycho-social needs cannot be safely met in the
VillageCare ALP." (Freeland Direct Aff. ,i 21.) The average NFLOC score of cmTent
VillageCare residents is 9.17, and the highest NFLOC score of any cull'ent resident is 14. (Tr.

268:18-24.)7
All ofVillageCare's cmTent residents qualify for placement in a nursing home. As such,
all residents have physical or mental conditions that require some degree of assistance with
activities of daily living, such as bathing, dressing, and grooming. (Charles Direct Aff. ,i 10.) 8
In addition, they have inte1111ittent nursing and other skilled needs, which are provided through a
contractor. (Id.) Some residents use wheelchairs and rollators, (id.), but the three residents who
currently use wheelchairs use them for convenience, such as for attending appointments outside
of the facility or outings with family, (Freeland Direct Aff. ,iii 31-32). However, VillageCare
does not admit individuals who require continual contact assistance with ambulation, and none of
VillageCare's current residents rely on wheelchairs for ambulation. (Freeland Direct Aff. ,i,i 13-

6

Exhibits marked "D" indicate Defendant's exhibits entered into evidence during the evidentiary hearing and filed
on the docket in redacted form on Aµgust 3, 2018. (Doc. 118.) Unredacted version of these documents were filed
under seal.
7

"Tr." refers to the transcript for the evidentiary hearing on Plaintiffs preliminary injunction motion, held over the
span of three days on July JO, 17, and 23.

8
"Charles Direct Aff." refers to the Affidavit of Peter·Clrnrles for Evidentiary Hearing on Plaintiff's Motion for a
Preliminaty Injunction, filed July 3, 2018, and submitted in redacted form. (Doc. 98-5.) An unredacted version of
this document was filed under seal.

4

14, 30, 32, 33.) In addition, no current residents require continual assistance with all activities of
daily living, nor are they under a plan of care that involves contact guard assistance, a toileting
schedule, or nighttime services while in bed. (Charles Direct Aff.

'ii IO; Tr. 262: 1-10, 264: 13-

265: I 5.) According to Freeland, VillageCare is not equipped to provide continnal assistance
with ambulation or toileting. (Freeland Direct Aff.

'ii 29.)

Each day, VillageCare has approximately five personal care aides on site between 7:00
a.m. and 3:00 p.m., three personal care aides on site between 3:00 p.m. and 11 :00 p.m., and two
personal care aides on site between I 1:00 p.m. and 7:00 a.m. (Id.) This staffing model allows
residents to receive, on average, between two and four hours of personal care services per day,
(id.), though some residents receive less than two hours and some receive more than four hours,

(Tr. 191:19-192:5). 9 Nursing services are available on an intermittent basis through a contracted
certified home health agency. (Freeland Direct Aff.

'ii 29.)

The eligibility requirements for admission to the VillageCare ALP include being able,
with direction, to self-preserve in the case ofan emergency. (Id.

'ii 13; see also Ex. D2.)

According to VillageCare's Disaster and Emergency Plan (the "Plan"), all cmTeht residents are
classified as "Ambulatory," which includes individuals who use rollators to ambulate. (Exs. D5,
D6; Tr. 303: 14-18.) No current residents are considered chronically chairfast. (Tr. 199:5-10.)
Several residents require "supervision" during an evacuation, which means that VillageCare staff
must be present with the resident during an evacuation-including on the stairs-to assist the

9

Assuming eighty residents require an average of just two hours per day of personal care, VillageCare ALP
residents would require a total of 160 hours of aide· time per day. However, there are only a total of ten aides in a
twenty-four hour period. Assuming the VillageCare ALP operates at full capacity, each aide would have to work
sixteen hours. This is inconsistent with Freeland's testimony that each aide works an eight hour shift. (Freeland
Direct Aff. il 29.) I am unable to resolve this issue based upon the record before me and therefore do not make a
specific finding, but it suggests One or more of the-Soll owing: (1) that Freeland's estimates are incorrect; (2) that
VillageCare is not operating at full capacity; (3) that multiple residents may receive personal care by an individual
aide simultaneously; and/or (4) that each aide is working at more than maximum capacity.

5

resident and ensure that the resident does not fall. (Exs. D5, D6; Tr. 304: 15-305:2, 312: 17-22.)
Freeland testified that the way VillageCare determines whether a resident can selfpreserve during an emergency is whether she can safely go down two flights of stairs "without
someone having to be with her at all times, directing her, [and] telling her, 'Hold on to the
railings, step down, go down."' (Tr. 300: 13-301: I I.) Charles testified that the Plan provides
that residents are evacuated using emergency slides on the stairs or elevators, which has been
approved by the fire department. (Tr. 77:18-78:5.) Freeland testified that the fire department has
not pre-approved use of the elevators to evacuate, but rather that the fire department would
detennine whether elevator use was appropriate on a case-by-case basis during the emergency.
(Tr. 299:11-300:12.)
B.

Jane Doe's Admission to and Stay at VillageCare

After submitting an application and participating in a thirty minute interview and
assessment, (John Doe Direct Aff. ii 41), 10 Plaintiff was admitted to VillageCare's ALP in 2012
and occupied a third-floor apartment at VillageCare through April 2017, (id. ,i,i 6-7). At the
time of her admission, Jane Doe had "difficulty walking [and] urinary incontinence" and needed
assistance with some activities of daily living, "including stairs [and] bathing." (Ex. D7, at 1112.) However, she was able to perform many tasks mostly independently, including ambulating,
transferring, toileting, dressing, and grooming. (Id. at 38-42.) Jane Doe did not utilize a
wheelchair at the time that she was admitted, or at any time that she resided at VillageCare. (Id.;
John Doe Direct A ff. ,i,i 21, 23.)
While she lived at VillageCare, Plaintiff decorated her apartment with her personal

io "John Doe Direct Aff." refers to-the Affidavit of Direct Testimony by John Doe in Support of Motion for
Preliminaty Injunction, filed July 3, 2018, and submitted in redacted fom1. (Doc. 98-3.) An unredacted version of
this document was filed under seal.

6

belongings, hosted visitors in herapartment, read books and newspapers, and engaged in social
and cultural activities with the other residents at VillageCare. (John Doe Direct Aff.
She was well-liked by VillageCare staff and administration, (Freeland Direct Aff.

'il'il 10-15.)

'ii 3), and she

had an active social life that revolved around her family and friends, (John Doe Direct Aff.

'ii 10).

VillageCare performed periodic medical and mental evaluations of Plaintiff while she
lived at VillageCare. A July 27, 2012 Patient Review Instrnment ("PR!") indicated that Jane
Doe required "intermittent supervision" with eating, mobility, and transfe1Ting-including
requiring verbal cueing and physical assistance with difficult maneuvers such as stairs. (Ex. D7,
at 86.) Similarly, an October 15, 2013 medical evaluation indicated that Jane Doe "need[ed]
assistance grooming, bathing, showering, with laundry, shopping, transpmiation, toileting, and
food prep." (Id. at 51.) Jane Doe experienced falls on multiple occasions while residing at
VillageCare, at least in part due to a gait abnormality, which required Jane Doe to receive
physical and occupational therapy. (See id. at 60, 51, 158, 161, 178.)
Beginning in approximately 2014, VillageCare also perfonned periodic UAS assessments
of Jane Doe. (See Freeland Direct Aff.

'ii 22; Ex. D7, at 91-105.) Jane Doe received an NFLOC

score of below 14 on each of her evaluations through March 2017. (Freeland Direct Aff.

'ii 22.)

Jane Doe's July 12, 2014 UAS indicated that Jane Doe's cognitive skills for daily decisionmaking were "[i]ndependent," that her "[d]ecisions [were] consistent, reasonable and safe," and
that her short-term memmy and procedural memory were "OK." (Ex. D7, at 91.) With respect
to her physical capabilities, the UAS indicated that Plaintiff needed "[m]aximal assistance" 11

11

"Maximal assistance" indicates that an individual needs "[h]elp throughout [the] task, but performs less than 50%
of the task on [her] own." (Ex. D7, at 91.)

7

with managing a full flight of stairs; "[l]imited assistance" 12 with bathing; "snpervision" 13 with
dressing her upper and lower body; and "[n]o physical assistance" with locomotion, transfening
to the toilet, or using the toilet. (Id. at 91-92.) It also noted that she was incontinent of bladder
with "no control present." (Id. at 92.) JaneDoe received an NFLOC score of 10 on her July 12,
2014 UAS. (Id.) Jane Doe's August 8, 2016 UAS was substantially the same, except it did not
evaluate her ability to manage stairs, and Jane Doe now required "[ e]xtensive assistance" 14 with
bathing and "[l]imited assistance" with dressing her upper and lower body. (Id. at 101.) Jane
Doe received an NFLOC score of 11 on her Angnst 8, 2016 UAS. (Id.) Jane Doe's January 21,
2017 UAS was also substantially the same, except she now also needed "[e]xtensive assistance"
with dressing her upper and lower body. (Id. at I 03.) She received an NFLOC score of 11 on
this assessment. Finally, Jane Doe's March 27, 2017 UAS was substantially the same, except
she was now "[i]nfrequently incontinent" ofbowel. 15 (Id. at 106.) She received an NFLOC
score of 13 on this assessment.
Beginning in the second half of 2016, Jane Doe's health began to decline. She suffered
several falls from approximately June 2016 through March 2017. (Freeland Direct Aff. '1['1[ 2325; see also Ex. D7, at 64, 208, 209.) She also exhibited signs of cognitive decline, her
incontinence issues worsened, and she lost a significant amount of weight. (Freeland Direct Aff.
'1['1[ 26-27; Ex. D7, at 203-12.) Jane Doe's declining health occmTed following the loss of her

12 "Limited assistance" indicates that an individual needs "[g]uided maneuvering of limbs, [and] physical guidance
without taking weight." (Ex. D7, at 91.)

13

"Supervision" indicates that an individual needs "[o]versight/cueing." (Ex. D7, at 91.)

14 "Extensive assistance" indicates that an individual needs "[w]eight-bearing support (including lifting limbs) by 1
helper where [the] person still performs 50% or more of subtasks." (Ex. D7, at JOI.)
15 "Infrequently incontinent" is defined as "[n]ot incontinent over [the] last 3 days, but does have incontinent
episodes." (Ex. D7, at 106,) This likely refers to:two episodes of bowel incontinence in Febmaiy and March 2017
while Jane Doe was using stool softeners. (Id. at 212-~13.)

8

which had a significant emotional impact on Jane Doe. (Ex. D7, at 203,

mother in

211.) Jane Doe was diagnosed with depression for the first time in July 2016. (See id. at 77.) In
January 2017, Jane Doe began taking Ensure, a nutritional supplement, to address her weight
loss, after which she reported feeling stronger. (Id. at 211-12.) She did not suffer another fall
until March 4, 2017, when she slipped in the shower with an aide. (Id. at 209-14.) She fell
again on March 28, 2017, days before she was hospitalized for treatment of a urinary tract
infection. (Id. at 215.)
C.

Jane Doe's April 2017,Hospitalization

On April 1, 2017, Jane Doe was hospitalized due to complications from a urinmy tract
infection. (John Doe Direct Aff.

i1,r 21-22; Freeland Direct Aff. ,r,r 27-28.)

After spending

several days in a hospital bed, Jane Doe had difficulty walking and was discharged t o a nursing home for temporaty
rehabilitation. (John Doe Direct Aff. ii 23; freeland Direct Aff.

,r 28.)

As part of her

rehabilitation, Plaintiff began using a wheelchair for mobility. (John Doe Direct Aff.

,r 23.)

Plaintiff now uses both a rollator and a wheelchair to get around. (Id.) Plaintiff completed her
rehabilitation and wants to return to her apartment and the ALP at VillageCare. (Jane Doe Deel.

,r 7.)16
D.

The June 2017 Assessment and Notice of Termination

In June 2017, while she was still in rehabilitation, Jane Doe underwent a medical
evaluation b y - a n d a visual assessment by VillageCare. (Freeland Direct Aff.

,r 39.)

The nurse perfonning the visual assessment noted that Jane Doe was initially observed sitting in

16

"Jane Doe Deel." refers to the DeGlaration of Jane Doe in Support of Plaintiffs Motion for a Preliminary
Injunction, filed May 18, 2018, and submitted in redacted form. (Doc. 48.) An unredacted version of this document
was filed under seal.

9

a wheelchair. (Ex. D7, at 218.) He also noted that Jane Doe could "independently transfer from
chair to walker (with supervision)," had an "unsteady gait and almost fell as she was just
standing," and "was able to slowly ambulate (with supervision and on/off contact guard)." (Id.)
The nurse did not note that Plaintiff had any skilled nursing needs. (Id.)
Based on the evaluation and visual assessment, Village Housing determined that Plaintiff
required "supervision and/or assistance with ambulation, transferring, dressing, grooming,
toileting and bathing," which VillageCare's ALP was not equipped to provide. (Ex. P2; see also
Freeland Direct Aff. ~ 38.) 17 Around the same time, a VillageCare staff member informed John
Doe, Jane Doe's brother who had power-of-attorney for his sister, that Plaintiff was not mobile
enough to continue living at VillageCare. (John Doe Direct Aff.

~~

3, 24.) Village Housing

thereafter issued a Notice of Termination to Plaintiff. (Ex. P2; Freeland Aff.

~~

27-29.)

Freeland testified that the fact that Jane Doe could not ambulate without continnons use of a
wheelchair was a factor in VillageCare's decision to terminate her admission. (Tr. 311: 12-20.)
John Doe submitted a written appeal of the Notice of Termination on Jane Doe's behalf
in July 2017. (Ex. P3; John Doe Direct Aff.

~

27.) VillageCare denied Jane Doe's appeal on

August 11, 2017, and informed her that she would have to reapply for admission if she wanted to
return to the ALP. (Exs. P4, PS.) On August 18, 2017, Village Housing commenced an eviction
proceeding in New York City Housing Court to tenninate Plaintiffs admission to VillageCare.
(See Ex. P6.) Village Housing's petition was dismissed without prejudice due to a service defect

on May 22, 2018. (Ex. PS.)

17 Exhibits marked "P" indicate Plaintiffs exhibits entered into evidence during the evidentiary hearing and filed on
the docket in redacted form on August 3, 2018. (Doc. 118.) Unredacted version of these documents were filed
under seal.

10

E.

Jane Doe's Applicatio11 for Reatl111issio11 anti Reew1/uatio11

Jane Doe submitted an application for readmission to VillageCare in October 2017 with
the help of John Doe and the staff a t -18 (John Doe Direct Aff. '1[ 31.) Jane Doe's
application included medical and mental health evaluations performed by physicians at
- a s well as physical and occupational therapy notes. (Ex. P7.) Jane Doe's physical
therapy notes indicated that she could ambulate 125 feet with contact guard assistance, an
improvement from 15 feet less than two months earlier. (Id. at 46.) 19 Her medical evaluation,
performed on October 19, 2017, indicated that Plaintiff needed "constant" supervision and/or
assistance with bathing, grooming, and dressing; "intermittent" supervision and/or assistance
with transferring, ambulation, and toileting; and no assistance with eating. 20 (Ex. P7, at 41.) The
physician performing the medical evaluation certified that Plaintiff was "medically appropriate
to be cared for in an Adult Home, Enriched Housing Program or an ALP." (Id.) In addition, a
psychologist at-certified that Plaintiff was "mentally suited for care" at VillageCare.
(Id. at 30.)
Peter Charles, a nurse manager at VillageCare, reviewed the evaluations and therapy
notes submitted by Jane Doe. (Charles Direct Aff. '1[ 4.) Charles also reviewed a November 29,
2017 medical evaluation of Plaintiff. (Id. '1[ 8.) The November 29 medical evaluation was
substantially identical to the October 19 medical evaluation, noting the same levels of

18 Plaintiff also submitted an application to another nursing home, which rejected her because they did not have beds
available, and because she was too high functioning. (John Doe Direct Aff.1! 34.)

19 Plaintiffs Village Care application begins on page 28 of 54, with page numbers in the upper right hand comer.
(See generally Ex. P7.) Citations to her application reference those page numbers.
20

The medical evaluation indicated that Plaintiff did not need a 24/7 toileting program to maintain continence.
Contrary to Charles's testimony, (Charles Direct Aff.1! 5), !he medical evaluation indicated that Plainliffneeded
"intermittent" assistance with toileting 1 rather than ",continuali" (Ex. D7, at 231 ).

11

supervision and/or assistance Plaintiff required for various activities and again including a
physician's certification that Plaintiff was "medically appropriate to be cared for in an Adult
Home, Enriched Housing Program or an ALP." (Tr. 69:9-16; Ex. D7, at 247--48.) A mental
health evaluation of Plaintiff performed by a psychologist on December 5, 2017 similarly
indicated that she was "mentally suited for care" at VillageCare. 21 (Ex. D7, at 250.)
As patt of his assessment, Charles also performed a nursing assessment of Plaintiff at
- o n October 24, 2017. (Charles Direct Aff. ,i 4.) When Charles first walked into the
facility, he observed Plaintiff sitting in a wheelchair. (Tr. 67: 16-19.) During the assessment,
Charles requested a rolling walker to assess Plaintiffs ability to ambulate without contact guard
assistance. (Charles Direct Aff.

ii 4.)

Charles observed that Plaintiff needed verbal reminders on

how to stand up properly, could only ambulate about two feet before becoming unsteady, and
required continuous assistance throughout the assessment. (Id.)
On December 22, 2017, Plaintiff appeared at VillageCarc for a screening and assessment
to determine whether VillageCare could meet her needs. (Freeland Aff. ,i 35.) Plaintiff was first
interviewed for over an hour by three staff members of VillageCare, including Charles and
Freeland. (John Doe Direct Aff. ,i 37.) The staff members observed Plaintiff enter the building
and ambulate about eighty feet using her rollator. (Id.; Charles Direct Aff. ,i 6; Ex. D7, at 227.)
Charles testified that Plaintiff needed constant cuing when transferring from standing to sitting
and required Charles's assistance to sit, (Charles Direct Aff. ,i 6), but the VillageCare case notes
entered by the social worker indicated that Plaintiff "was able to transfer from a chair to her
rollator during the screening," (Ex. D7, at 227). Charles also testified that Plaintiff would

21

It should be noted that none'ofthese evaluatiolls indicated an awareness of the level of care provided by the
VillagcCare ALP, and the part-ies do not explain or point to evidence in the record concerning ,vhether these
evaluations are specific to theVillageCare ALP or to ALPs in general. Therefore, I am unable to resolve this issue
based upon the record before me and do not make a specific finding.

12

occasionally veer towards the wall on her right side while nsing the rollator. (Charles Direct Aff.
'1] 6.) John Doe testified that the rollator was defective, and that the VillageCare staff members

commented on the fact that it was defective. (John Doe Direct Aff. '1]'1] 37, 44.) On cross
examination, Charles testified that that the rollator was not defective, but he admitted that he had
not checked it for defects. (Tr. 73:22-74:4.)
After being interviewed by VillageCare's staff, Plaintiffpaiticipated in a UAS
assessment conducted by Maya Moroz, a registered nurse for ANR Staffing Solutions, an
independent organization unaffiliated with VillageCare. 22 (Moroz Direct Aff. '1] l.) Moroz
testified that it was difficult to communicate with Plaintiff due to her impaired cognitive
capabilities. (Id. '1] 4.) Moroz had to constantly repeat and explain questions and cue Jane Doe.

(Id.) Moroz observed that Jane Doe "appeared extremely frail and weak, and had very little
strength in her arms and legs." (Id.) Moroz observed that Jane Doe was dete1111ined to walk
using her rollator, but because one of Jane Doe's legs dragged behind her, she almost tripped and
fell several times. (Id.) Moroz also testified that John Doe was present at the assessment and
implored Moroz to repeat aspects of the assessment so Jane Doe could complete the tasks. (id.

'I] 5.) John Doe testified that Moroz's "questions [to Jane Doe] seemed like rapid cross
examination." (John Doe Direct Aff. '1] 38.) Moroz testified that she gave Jane Doe additional
opportunities to respond to questions. (Tr. 60: 15-23; Moroz Direct Aff. '1] 4). The UAS took
between two-and-a-half to three hours, (Moroz Direct Aff.

ii 5), and together with the interview,

Jane Doe was at VillageCare for about four hours, (John Doe Direct Aff.

ii 39).

According to

John Doe, the assessment was "grueling" and "designed to result in failure." (Id. '1]'1] 39, 40.)
However, there is no evidence in the record that Moroz altered how she conducted her interview

22

Moroz was not present for the interview of Plaintiff by the VillageCare staff members. (Tr. 225-6-11.)

13

or evaluation of Jane Doe from what she typically does in connection with UAS evaluations.
(See Tr. 55:10-17.)

Plaintiff received an NFLOC score of25 on the December 22, 2017 UAS assessment.
(Ex. PIO, at 20.) With respect to her cognitive capabilities, the UAS indicated that Plaintiffs
cognitive skills for daily decision-making were "[m]oderately impaired," that her "[d]ecisions
[were] consistently poor or unsafe," that she needed "cues/supervision ... at all times," that her
short-tenn memory was "OK," and that she had a "[m]emory [p ]roblem" with her procedural
memmy. (Id. at 2.) She was usually able to make others understand her and usually understood
others. (Id.) With respect to her physical capabilities, the UAS assessment indicated that
Plaintiff needed "[m ]aximal assistance" with managing stairs, "[ e]xtensive assistance" with
· bathing, "[l]imited assistance" with dressing her upper body, "[e]xtensive assistance" with
dressing her lower body, "[ e]xtensive assistance" with walking, "[ e]xtensive assistance" with
locomotion, "[ e]xtensive assistance" with transferring onto and off of the toilet, and "[e]xtensive
assistance" with using the toilet. (Id. at 5.) The UAS noted that Plaintiffs primaty mode of
locomotion indoors was walking using assistive devices, and using a wheelchair. (Id. at 6.) The
UAS also noted that Plaintiff"[a]mbulates using rollator with a slow and vety unsteady gait,"
that she was "[n]ot able to stand on her own [without] holding to a rollator," and that she
"[r]equires extensive human assistance to ambulate indoor[s]." (Id.) Finally, Plaintiff was
described as having "[n]o control present" over her bladder continence and as being
"[i]nfrequently incontinent" as to her bowel. (Id.) Nevertheless, the UAS assessment indicated
that it was not the case that "[a]dequate informal suppotts for assistance and/or emergency backup are not available [or that Jane Doe] cannot be left alone." (Ex. D7, at 131.)
At the end of the in-person assessment, Moroz discussed placement options with Jane and

14

John Doe and recommended that Plaintiff be placed in an ALP. (Moroz Direct Aff.

ii 6; Ex. PS,

at 20.) Moroz claims that her understanding was that she was only supposed to identify
placement options in which the individual expressed interest. (Moroz Direct Aff. ~ 6.) Because
Jane and John Doe only expressed interest.in an ALP, that was the only option Moroz
recommended. (Id.; Tr. 55:18-56:4.) 011 cross examination, Moroz testified that her
recommendation was wrong, and that Plaintiff was not appropriate for placement in an ALP at
that time. (Tr. 54: 14-23.) In Moroz's opinion, two to four hours of personal care would not be
sufficient to care for Jane Doe. (Tr. 62:1-3.) Moroz believed Plaintiff might become appropriate
for ALP placement in the futnre after additional physical therapy. (Tr. 54:24-55:9.) Ultimately,
Moroz was not responsible for making eligibility detenninations for any of the placement
options listed on the UAS. (Moroz Direct Aff.

~

6.)

Based on the UAS, VillageCare's in-person interview and assessment, and the medical
and mental evaluations, Village Housing declined to readmit Jane Doe. (See Freeland Aff. ~ 42.)
The decision to decline Jane Doe readmission was made by Freeland, Charles, and a social
worker who participated in the interview of Jane Doe on December 22, 2017. (Tr. 284:4-25.)
Charles and Freeland testified that, based on the assessments of Jane Doe and her medical
evaluations and therapy notes, 23 Jane Doe required more care and services than VillageCare
could provide. (Charles Direct Aff. ~ 9; Tr. 284:16-25.) Freeland testified that providing for
Jane Doe's medical needs would require VillageCare to provide a one-on-one companion for all
or most of the day. (Freeland Direct Aff. ~ 57.) According to Freeland, because VillageCare did
not provide such services, VillageCare would have had to hire additional staff and modify the

23

Freeland testified that when reviewing an application for admission, she does not review the UAS form, but rather
reviews only !he applicant's NFLOC score. (Tr. 218:20-219:25.)

15

nature and extent of the services it offers in order to accommodate Jane Doe. (Id.~ 58.)
F.

The March 2018 VAS

Jane Doe participated in another UAS on March 9, 2018, performed by Eunice Hsu. (See
Charles Aff.
~

~

12; Ex. D8.) Plaintiff received an NFLOC score of29 on that UAS. (Charles Aff.

12; Ex. D8.) The evaluation results were substantially the same as her December 22, 2017

UAS, except that Jane Doe now had a "[m]emory [p]roblem" with her shoti-term memory and
required "[m]aximal assistance" with bathing, "[e]xtensive assistance" with dressing her upper
body, "[m]aximal assistance" with dressing her lower body, "[m]aximal assistance" with
locomotion, "[m]aximal assistance" with transferring onto and off of the toilet, and "[m]aximal
assistance" with using the toilet. (Ex. D8, at 2, 5.) In addition, the UAS noted that Plaintiff's
primary mode oflocomotion indoors was using a wheelchair. (Id. at 11, 12.)
The nurse perfo1rning the UAS recommended placement in a Managed Long Tetrn Care
program ("MLTC"). (Id. at 21.) A MLTC provides long-term care services to Medicaid-eligible
individuals at home in order to assist them in remaining in the community. (Deetz Deel. ii 19.)24
A MLTC may provide services up to and including 24-hour home health aide services. (Def.'s
Opp. 8.) 25 According to Freeland, residents in VillageCare's Enriched Housing Program-which
constitutes nine of the one hnndred beds at VillageCare-can receive home and personal care
services through a MLTC, as long as they are not participants in the ALP. (Tr. 242: 11-24.)
VillageCare offered Jane Doe the opportunity to be reassessed for the ALP, (Tr. 243:20-244:6),
· but there is nothing in the record indicating that Plaintiff was offered the oppmiunity to return to
her apartment and patiicipate in a MLTC, or to be reassessed for a MLTC. The DOH is

24

"Deetz Deel." refers to the Declaration of Valerie Deetz, filed May 29, 2018. (Doc. 62.)

25 "Def.'s Opp." refers to the Memorandum of Law of Defendant Village Housing Development Fund Corporation
in Opposition to Plaintiff Jane Doe's Motion for a Preliminary Injunction, filed May 29, 2018. (Doc. 58.)

16

currently scheduled to transition all ALPs into MLTC plans by the end of 2018. (Tr. 244:14-23.)

G.

Dr. Nie/to/s's Evahwtions

Jane Doe's medical expert, Dr. Jeffrey Nichols, conducted two evaluations of her needs
and abilities and reviewed pmtions of her medical records. (Nichols Direct Aff. ,i 10.)26 He
asserts that Jane Doe is an "excellent candidate" to return to assisted living. (Id. ,i 21.)
During his first evaluation on April 9, 2018, Dr. Nichols spent about forty-five minutes in
direct contact with Jane Doe and an additional thirty minutes reviewing her nursing chart. (Id.

,i,i 13-14.) He also reviewed the materials she submitted with her application for readmission.
(Id. ,i 15.) Dr. Nichols observed that Jane. Doe "was alert and responded appropriately to
questions," could "raise[] her arms overhead independently," "stood up from her wheelchair
using her own strength," and "put on her shoes." (Id.

'II'II 16, 18.) Based on his observations, Dr.

Nichols concluded she could put on her top clothes independently, (id. ,i 18), although he did not
observe her do so, (Tr. 138:23-139:4). He also concluded that Jane Doe did not require any
skilled nursing services. (Nichols DirectAff. ,i 19.)
Dr. Nichols perfonned his second evaluation on June 18, 2018. (Id.

ii 23.)

He perfonned

the evaluation just after 5 :00 p.m., which he testified tends to be the hour when older patients
operate at their lowest functional level. (Id.
minutes. (Id.

'II 24.) This second assessment lasted forty-five

'II 25.) Dr. Nichols observed Jane Doe-without physical assistance, direction, or

cueing-transfer from her wheelchair to her rollator, walk with her rollator, maneuver around a

26

Dr. Nichols has nearly 40 years of experience in the fields oflong-tenn care and geriah·ic care. (Nichols Direct

Aff. ~ 3.) He currently serves as Chief Medical Otncer at Gouverneur Skilled Nursing Facility, a 295-bed facility in
New York City. (Id. "ii 4.) He has served as medical director at several nursing homes, home care agencies, a
hospice, and assisted living facilities. (Jd. "ii 6.) I:Ie has served as the physician member of the NYS Board of
Examiners of Nursing Home Administrators under t\vo different governors. (Id. "ii 8.) He has written extensively
about long-term care. (Id.~ 7.) "Nichols Direct Aff." refers to the Affidavit of Direct Testimony by Jeffrey Norman
Nichols, M.D, in Support of Jane Doe's Motionifor Preliminary Injunction, filed July 3, 2018, and submitted in
redacted form. (Doc. 98.) An unredacted versiotl of this document was filed under seal.

17

corner, turn around, walk back to her wheelchair, and transfer from her rollator to her
wheelchair. (Id.~ 26.) She walked approximately twenty-five feet on her rollator. (Id.) While
she walked, she stopped to take rests and would stand in place. (Id.) She was able to ask
someone to spot her, but never needed the assistance. (Id.)
Counsel for Jane Doe recorded a three-minute video of Jane Doe ambulating during Dr.
Nichols's June 2018 assessment. 27 The video depicts Jane Doe walking a shmt distance using
her rollator and transferring from her rollator to a wheelchair. 28 Although Jane Doe walks
independently in the video-without contact assistance-her co\msel and Dr. Nichols stood near
her while she was walking, apparently to provide support should Jane Doe require assistance. At
one point, Jane Doe requested that someone spot her to ensure she did not fall. Her arms
appeared to shake while clutching the rollator. Dr. Nichols provided instructions to Jane Doe
with respect to where to walk and where to 'sit. At times, Jane Doe stopped to rest. The video
appears to support Dr. Nichols's conclusimi that Jane Doc currently needs the presence of
another individual whenever she is ambulating. (Tr. 91: 10-21.)
Dr. Nichols's second evaluation did.not change his opinion that Jane Doe does not
require skilled nursing services. (Id.

ii 32.), In Dr. Nichols's opinion, Jane Doe's maximum

personal care needs include: (a)- "some supervision29 and assistance with bathing and dressing in
the morning and evening"; (b) "supervision to contact guard assistance 30 at times to walk with
her rollator"; (c) "wheelchair transport for distances beyond 30-40 feet or outside her reside_ncc";

27

The video was filed under seal to protect the identity of Jane Doe.

28

Although Plaintiff claims that Dr. Nichols is not relying on this video, the video depicts Jane Doe's use of the
rollator for several feet, which Dr. Nichols observed in person and relied on to form his opinions. (See Nichols
Direct Aff. ,r 26.)
29

Dr. Nichols defines "supervision" as "having someone available to help if needed." (Nichols Direct Aff.

,r 35.)

Jo Dr, Nichols defines "contact guard assistance" as "the helper keeps contact with the person to be ready to help if
needed, but does not otherwise assist in performing a functional task." (Nichols Direct Aff. 'ii 35.)

18

and (d) "snpervision to contact guard with toileting or using a bedside commode." (Id. , 34.)
Furthermore, Dr. Nichols believes that Jane Doe requires approximately two hours of personal
care per day, which includes: (a) "15 minutes of assistance with toileting and dressing in the
morning"; (b) "30 minutes (10 minutes each trip three times per day) contact guard assistance for
three trips to and from the dining room"; (c) ".15 minutes for assistance undressing and toileting
bedtime;" and (d) "20 minutes for two additional toileting episodes per day." (Id., 36.) In Dr.
Nichols's opinion, Jane Doe, in her current state, needs the presence of another individual
whenever she is ambulating and toileting, though she may not need it at all times of the day.
(Tr. 91:19-92:2, 137:23-138:1.)
Finally, Dr. Nichols testified that several of the findings noted in Jane Doe's December
22, 2017 UAS did not align with his observations of Jane Due during his assessments in April
and June 2018. First, he did not find that Jane Doe needed "[c]ues/supervision ... at all times."

(Id.,, 42-44.) During his visits, neither he nor anyone at the nursing home provided Jane Doe
cues or supervision for any tasks. (Id. ,, 44--45.) He also observed that Jane Doe does not have
"supervision at all times" at the nursing home; and that she spends time in her room and in the
hallway without any staff supervising her. (Id. ,,146-47.) Dr. Nichols found that Jane Doe has
no difficulty expressing herself or understanding others, but rather that she needs slightly more
time than others to finish her thoughts or understand others. (Id.,, 49-51, 54.) He also found
that Jane Doe has difficulty remembering ce1iain details of her past, but does not have problems
that would present issues for providing ALP services. (Id., 52.) With respect to her
incontinence, Dr. Nichols observed that.Jane Doe has functional incontinence-a condition
where the person is usually aware of the need to urinate but is unable to get to the bathroomwhich is common in women over seventy. (Id.,, 57, 61.) Finally, Dr. Nichols believes Jane

19

Doe is capable of self-preserving in an emergency, as she has no difficulty following directions,
and she presents no additional emergency or evacuation risk beyond that of other VillageCare
residents. (Id.

,r,r 73, 80.)

Although Dr. Nichols concludes that Jane Doe may be safely

readmitted to the VillageCare ALP, he is unfamiliar with the VillageCare facility, Plaintiffs
apartment, specific staffing and services pi'ovided at VillageCare, as well as the specifics of Jane
Doe's living arrangements at VillageCare. (Tr. 86:9-87:19, 102:1-24.)
H.

VillageCare's Wheelclrnir Policies

Jane Doe claims that VillageCare's termination of her admission and rejection of her
readmission application stem from a blanket policy whereby VillageCare declines admission to
any individual nsing a wheelchair. Plaintiff Fair Housing Justice Center ("FHJC") perf01111ed
tests ofVillageCare in October and November 2017 by smTeptitiously recording interactions
between VillageCare staff and investigators posing as individuals inquiring about placement.
(See Dungee Deel.

,r,r 9-20.) 31

VillageCare staffers, including an admissions coordinator, stated

to FHJC testers that VillageCare "do[ es] not admit residents on wheelchairs," that even if an
applicant could "get around and get off the [wheel]chair and transfer and all that, [VillageCare]
could not accept anyone in a wheelchair," and that VillageCare's wheelchair prohibition stems
from legal requirements imposed by DOH regulations. (Id.

,r,r 17-19; Ex. PIS; see also Tr.

47:20-49:1.) In particular, an admissions coordinator listed that the ability to ambulate without a
wheelchair was an express criteria to begin the application process. (Ex. PIS.)
Freeland confinned that prior to certain emergency amendments issued by DOH in May
2018, VillageCare told applicants that they would not be accepted into VillageCare's ALP if they

31

"Dungee Deel." refers to the Declaration of Alaine Dungee in Support of Plaintiff Jane Doe's Motion for

Preliminary Relief, filed May I 8, 2018. (Doc. 52.)

20

used a wheelchair. (Tr. 307: 13-20.) She also testified that cmTent VillageCare residents are only
allowed to use wheelchairs in common areas if their care plan necessitated it, or if VillageCare
permits it on a case-by-case basis. (Tr. 291:25-292:21.) A resident is not permitted to use a
wheelchair outside of his or her residence without the permission ofVillageCare. (Tr. 292:2225.) On May 25, 2018, DOH issued emergency amendments to the regulations governing
eligibility to ALPs. (Deetz Deel.~ 7.) The amendments eliminate the phrase "chronically
chairfast" from the regulations and add the following provision:
An operator shall not exclude an individual on the sole basis that such individual is
a person who primarily uses a wheelchair for mobility, and shall make reasonable
accommodations to the extent necessaiy to admit such individuals, consistent with
the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the
provisions of this section.

(Id.~ 8, Ex. A.) The new regulations became effective immediately. (Id. ~ 7.) VillageCare has
subsequently altered its policies and procedures regarding wheelchairs. (Tr. 307:21-308:2.)
However, Freeland testified that VillageCare still is not permitted to admit individuals who are
chronically in need of the physical assistance of another person to climb or descend stairs, which
includes those who are chronically chairfast. (Tr. 198:13-199:4.)

l.

Jane Doe's Current Circu111sta11ces at tlte Nursing Ho111e

Jane Doe is currently residing in the long-term. care floor at the nursing home where she
completed rehabilitation. (Nichols Direct Aff. ~ 82.) Plaintiff describes the nursing home as
similar to a hospital. (Jane Doe Deel.~ 16.) :The only separation between her bed and her
roommate's is a curtain. (Id.) There is no space for personal items. (John Doe Direct Aff. ~ 52.)
She is confined to her wheelchair or her bed almost all of the time. (Id.~ 60.) She is forbidden
from physical movement without the assistance of a private aid, and she is prohibited from using
her rollator. (Id.~~ 48-49.) Plaintiff has very little social interaction because few of the other

21

residents at the nursing home function at a level sufficient to hold conversation. (Id.

,r,r 53, 55.)

Plaintiff claims that her physical and mental health is deteriorating daily at the nursing
home due to the confinement and lack of social activity. She has begun to lose physical dexterity
and strength, as well as her enthusiasm for life. (Id.

,r,r 48-49, 61.)

Dr. Nichols claims that Jane

Doe may experience "excess deterioration" if she remains in a nursing home, which means she
will experience "the functional loss beyond what wonld be expected from [her] medical
condition due to failure to use and practice the abilities that the patient still retains." (Nichols
Direct Aff.

,r 74.)

In particular, "she is at high risk of losing the ability to dress herself, walk

with a walker, get in and out of chairs or bed, or the other instrumental activities of daily living
which she still retains. (Id.

ii 75) She is also "at risk of accelerated cognitive decline," (id. ,r 76),

and "at significant risk of emotional decompensation and relapse," (id.

,r 81 ).

Ultimately, Dr.

Nichols believes that "Ms. Doe's life could be shorter in the nursing home." (Nichols Deel.

,r

21.)32
On the other hand, Dr. Nichols believes that with a regular exercise program and more
opportunities to walk, 33 Jane Doe could potentially fully dress herself, walk longer distances than
she did during his June 2018 evaluation, and use her rollator without contact guard assistance.
(Nichols Direct Aff.

,r,r 27-28.)

32

"Nichols Deel." refers to the Declaration of Jeffrey Nonnan Nichols, M.D. in Support of Jane Doe's Motion for
Prelimina1y Injunction, filed May 18, 2018. (Doc. 50.)
33 - o f f e r s

physical and occupational therapy to residents, but Jane Doe is not currently receiving those
services. (Tr. 97:15-21.)

22

II,

Procedural History

Plaintiffs filed this action on April 12, 2018. (Doc. 1.) Jane Doe filed her motion for a
preliminaiy injunction on May 18, 2018, (Doc. 47), along with supporting declarations, (Docs.
48-52), and a memorandum of law, (Doc. 53). Defendant Village Housing filed its opposition
and supporting affidavits on May 29, 2018. (Docs. 58-60.) The State Defendants filed their
opposition and supporting declaration on the same day. (Docs. 61-62.) Plaintiff filed her reply
memorandum and affinnation on May 30, 2018. (Docs. 67-68.) The State Defendants filed a
supplemental declaration on June 8, 2018, (Doc. 73), and Jane Doe filed a response to that
declaration on June 11, 2018, (Doc. 74).
I held oral argument on Plaintiffs preliminaiy injunction motion on June 12, 2018. After
hearing the parties' arguments, I denied Plaintiffs motion with respect to the relief requested as
to the State Defendants for the reasons stated on the record, and I reserved my decision on
Plaintiffs motion with respect to the reliefrequested as to Village Housing, pending the parties'
presentation of proof at an evidentiary hearing. I held an evidentiary hearing over the course of
tluee days-July I 0, July 17, and July 23___:during which the parties presented evidence and
argued their positions.
Ill,

Legal Standards

"A preliminmy injunction is an extraordinary remedy never awarded as of right." Winter

v. Natural Res. Def Council, 555 U.S. 7, 24 (2008). A party seeking a preliminary injunction
must show: (I) a likelihood of success on ·the merits; (2) a likelihood of irreparable harm in the
absence of the injunction; (3) that the balance ofhardships tips in the movant's favor; and (4) that
the public interest is not disserved by the issuance of the injunction. Salinger v. Co/ting, 607
F.3d 68, 79-80 (2d Cir. 2010). A court can also grant a preliminary injunction "in situations

23

where it cannot determine with certainty that the moving party is more likely than not to prevail
on the merits of the underlying claims, but where the costs outweigh the benefits of not granting
the injunction." Citigroup Global Mlcts., Inc.

\I.

VCG Special Opportunities Master Fund Ltd.,

598 F.3d 30, 35 (2d Cir. 2010). The party seeking the injunction must demonstrate "by a clear
showing" that the necessary elements are satisfied. Mazurek v. Armstrong, 520 U.S. 968, 972
( 1997) (internal quotation marks and emphasis omitted); see also Juicy Couture, Inc. v. Bella
Int'/ Ltd., 930 F. Supp. 2d 489,498 (S.D.N.Y. 2013). A plaintiff seeking an injunction that is
mandatory-that is, that will alter rather than maintain the status quo-"must show a 'clear' or
'substantial' likelihood of success." Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.
2004) (quoting Tom Doherty Assocs., Inc. v. Saban Entm 't, Inc., 60 F.3d 27, 34 (2d Cir. 1995)).
The threat of irreparable harm is the sine qua 11011 for justifying a preliminary injunction.
Naden v. Nwnerex C01p., 593 F. Supp. 2d 675,680 (S.D.N.Y. 2009) (citingBirffa/o Forge Co. v.
Ampco-Pittsburgh C01p., 638 F.2d 568,569 (2d Cir. 1981)); see also Jayaraj v. Scappini, 66
F.3d 36, 38-39 (2d Cir. 1995) ("Perhaps the single most important prerequisite for the issuance
of a preliminaiy injunction is a demonstration that if it is not granted the applicant is likely to
suffer irreparable harm .... " (quoting Citibank N.A. v. City/rust, 756 F.2d 273, 275 (2d Cir.
1985))). "Irreparable harm is 'injury that is neither remote nor speculative, but actual and
imminent and that cannot be remedied by an award of monetaiy damages."' Forest City Daly
Hous., Inc. v. Town ofN. Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (quoting Rodriguez v.
DeBuono, 162 F.3d 56, 61 (2d Cir. 1998)).
"A preliminary injunction is a specific equitable remedy and thus, must be framed in such

a way as to strike a delicate balance between competing interests. By necessity, the scope of the
injunction must be drawn by reference to the facts of the individual case, reflecting a careful

24

balancing of the equities." Sunward Elecs., Inc., 362 F.3d at 26 (quoting Joseph Scott Co. v.

Scott Swimming Pools, Inc., 764 F.2d 62, 67 (2d Cir. 1985)).

IV.

Discussion
A.

Likelihood of Success 011 the Merits

Plaintiff brings claims under the Fair Housing Act ("FHA"), Rehabilitation Act ("RA"),
and Affordable Care Act ("ACA") for discrimination against Village Housing. I address
Plaintiffs FHA claims below, but because discrimination claims under each statute are analyzed
pursuant to effectively the same framework, my reasoning applies to Plaintiffs claims under
each statute. See Reg'/ Econ. Cm()'. Action:Program, Inc. v. City of'Middletown, 294 F.3d 35, 48
(2d Cir. 2002) (FHA and RA); Se. Pa. Transp. Auth. v. Gilead Scis., Inc., 102 F. Supp. 3d 688,
699 (E.D. Pa. 2015) (RA and ACA). 34
1. Applicable Li1w

The FHA makes it unlawful "[ t Jo discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buy.er or renter because of a handicap of ... that buyer or
renter," 42 U.S.C.A. § 3604(f)(l), and "[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities
in connection with such dwelling, because of a handicap of ... that person,'' id § 3604(f)(2).
"[D]iscrimination includes ... a refusal to make reasonable acco1mnodations in rules, policies,
practices, or services, when such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling." Jd. § 3604(f)(3).

34

However, unlike the FHA, the RA requires that a plaintiff show that the defendant acted "solely because of the
disability" to make a prima facie case. Reg'/ Econ. C,nty. Action Program, 294 F.3d at 49 (internal quotation marks
omitted).
·

25

A plaintiff has three available theories on which he or she may base a discrimination
claim under the FHA: (I) disparate treatment (also referred to as intentional discrimination); (2)
disparate impact; and (3) failure to make a reasonable accommodation. Reg 'I Econ. Onty.

Action Program, 294 F.3d at 48. Plaintiff here proceeds under theories of disparate treatment
and failure to make a reasonable accommodation.
Where a plaintiff presents direct evidence of discrimination, the familiar burden-shifting
framework, announced in McDonnell Douglas v. Green, 411 U.S. 792 (1973), does not apply.

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22 (1985). "Direct evidence of
discriminatory treatment is evidence showing a specific link between the alleged discriminatory
animus and the challenged decision, sufficient to support a fo,ding by a reasonable fact finder
that an illegitimate criterion actually motivated the adverse action." United States v. Hylton, 944
F. Supp. 2d 176, 187 (D. Conn. 2013) (internal quotation marks omitted), aff'd, 590 F. App'x 13
(2d Cir. 2014). If a plaintiff sets forth direct evidence of discrimination, "the burden of proof
shifts to the defendants to show that they would have made the same decision regardless of
discriminatory animus." Id.
Where a plaintiff is unable to marshal direct evidence of discrimination, the McDonnell

Douglas burden-shifting framework applies. See Olsen v. Stark Homes, Inc., 759 F.3d 140, 152
(2d Cir. 2014). To make out a prima facie case of discrimination on the basis of disability under
the FHA, a plaintiff must show that (1) she is a member of a protected class, (2) she sought and
was qualified to purchase or rent the housing, (3) she was rejected, and (4) the housing
opportunity remained available to other renters or purchasers. Mitchell v. Shane, 350 F.3d 39, 47
(2d Cir. 2003 ).
Jfa plaintiff makes out a prima facie case, the burden of production shifts to the

26

defendant to produce a legitimate, nondiscriminatory reason for its decision. Olsen, 759 F.3d at
152. If a plaintiff then "makes a substantial showing that the defendants' proffered explanation
was false, it is permissible for the trier of fact to infer the ultimate fact of discrimination." Id. at
152-53 (quoting Reg 'I Econ. C,nty. Action Program, 294 F.3d at 49). "Where the evidence
supports a conclusion that both permissible and impe1111issible factors motivated the adverse
action, ... the plaintiff meets his or her burden of proof by 'showing that the adverse action was
motivated, at least in part, by an impennissible reason."' Mazzocchi v. Windsor Owners Corp.,
204 F. Supp. 3d 583, 615-16 (S.D.N.Y. 2016) (quoting Mhany Mgmt., Inc. v. Cty. ofNassau,
819 F.3d 581,616 (2d Cir. 2016)). A defendant may then prevail "ifit sustains its burden of
proving its affirmative defense that it would have taken the adverse action on the basis of the
pennissible reason alone." Mhany, 819 F.3d at 616 (quoting Cabrera v. Jakabovitz, 24 F.3d 372,
383 (2d Cir. 1994)).
A plaintiff may establish a reasonable accommodation claim under the FHA by showing:
"(1) that the plaintiff ... had a handicap within the meaning of§ 3602(h); (2) that the defendant

knew or reasonably should have been expected to know of the handicap; (3) that the
accommodation was likely necessmy to afford the handicapped person an equal opportunity to
use and enjoy the dwelling; (4) that the accommodation requested was reasonable; and (5) that
the defendant refused to make the reqnested accommodation." Olsen, 759 F.3d at 156.

2. Application ,
Plaintiff contends that VillageCare discriminated against her when it terminated her
admission agreement in June 2017 and when it rejected her application for readmission in
December 2017. In particular, Plaintiff argues that she has presented direct evidence of
VillageCare's discriminatory conduct against her through, among other things, evidence of

27

VillageCare's explicit policy against admitting individuals using wheelchairs, VillageCare's
termination of Plaintiffs admission after conducting a visual assessment during which she was
seen using a wheelchair, and oral communication to John Doe that Jane Doe's difficulties
ambulating prevented her return to VillageCare. (See Pl. 's Mem. 14.)35 Village Housing does
not dispute that the FHA applies to the facts alleged here. Instead, Village Housing contends that
Plaintiff fails to establish discriminatoty animus because VillageCare's determination to
tenninate her admission was based on its effotis to comply with DOH regulatory requirements,
not a result of discriminatmy animus. (Def. 's Opp. 11-16.) For the reasons that follow, I find
that Plaintiff is likely to succeed on her claim that VillageCare discriminated against her when it
terminated her admission agreement in June 2017.
The record contains the following evidence that VillageCare terminated Jane Doe's
admission agreement, at least in part, due to its policy against wheelchairs: (!) statements of
VillageCare's Admissions Coordinator that applicants "must ambulate with walker/rolling
walker or cane," that VillageCare "do[ es] not admit residents on wheelchairs," that even if an
applicant could "get around and get off the [wheel]chair and transfer and all that, [VillageCare]
could not accept anyone in a wheelchair," and that VillageCare's wheelchair prohibition stems
from legal requirements imposed by DOH fogulations regarding emergency evacuations,
(Dungee Deel.

~~

17-19; Ex. Pl 5); (2) Freeland's testimony that prior to the DO H's May 2018

emergency amendments, VillageCare informed applicants that they would not be accepted into
the ALP if they used a wheelchair, (Tr. 307': 13-20); (3) the June 8, 2017 visual assessment of
Jane Doe by a VillageCare nurse-while Jane Doe was still in rehabilitation-which noted Jane

35 "Pl. 's Mem." refers to the Memorandum of Law in Support of Jane Doe's Motion for Preliminary Injunction,
dated May 18, 2018. (Doc. 53.)

28

Doc's use ofa wheelchair and focused primarily on her ability to ambulate, (Ex. D7, at 218); (4)
the June 16, 2017 Notice of Tennination, which was based, in pait, on the June 8 visual
assessment, (Ex. P2); (5) John Doe's testimony that, around the time of the visual assessment, a
VillageCare staff member infonned him that Jane Doe was not mobile enough to continue living
at VillageCare, (John Doe Direct Aff. ~ 24); and (6) Freeland's admission that the fact that Jane
Doe could not ambulate without continuous use of a wheelchair was a factor in VillageCare's
decision to terminate her admission, (Tr. 311: 12-20).
Taken together, the evidence indicates that Plaintiff is likely to establish that VillageCare
had a policy of not admitting individuals who used wheelchairs, and after conducting a visual
assessment indicating that Jane Doe used a wheelchair and had difficulties with her mobility,
tenninated Jane Doe's admission on the basis of her wheelchair use. 36 See Short v. Manhattan

Apartments, Inc., 916 F. Supp. 2d 375,397 (S.D.N.Y. 2012) (finding direct evidence of
discrimination where FHJC testers elicited evidence of discriminatory policy, which was
coll'oborated by witness testimony indicating discriminatory policy was applied to plaintiff).
Defendant contends that Plaintiff fails to establish discriminatory animus because
VillageCare's determination to terminate her admission was a result of its efforts to comply with
DOH regulatory requirements, not a result of discriminatory animus. (Def.'s Opp. 11-16.)
Specifically, Defendant argues that Plaintiff failed to meet the criteria for admission to the
VillageCare ALP because: (1) Plaintiff failed to meet the general eligibility criteria established
by DOH regulation for ALPs due to her inability, with direction, to take action sufficient to
assure self-preservation in an emergency, and (2) even if she did meet those criteria,

36

The fact that Jane Doe \Vas attempting to return to WillageCare rather than initially submitting an application does
not materially alter my analysis, since the evidence supports a finding that VillageCare applied the same no
wheelchair policy when she sought to return.

29

VillageCare's legally mandated individualized assessment revealed that Plaintiff's needs
exceeded the level of care and services VillageCare provides. (Def. 's Opp. 12-16.) I evaluate
both of these arguments in turn.
None of the contemporaneous evidence indicates that emergency evacuation concerns
played a role in tenninating Plaintiffs admission and sending her the Notice of Termination.
Neither the nurse's notes from Plaintiffs June 8, 2017 visual assessment, (Ex. D7, at 218), nor
the Notice of Termination, (Ex. P2), indicates that Plaintiffs ability to self-preserve in an
emergency was a factor in terminating her admission. Similarly, Defendant's August 11, 2017
denial of Jane Doe's appeal of the Notice of Termination does not reference her ability to
evacuate. (Ex. PS.) Nor do any of these documents describe any cognitive impairments that
would limit Jane Doe's ability to follow instrnctions. (See Exs. P2, PS; Ex. D7, at 218.) Village
Housing raised these arguments for the first time well after it issued the Notice of Termination.
Therefore, there is no direct evidence that Plaintiffs ability to self-preserve in an emergency
played a role in terminating her admission.
More importantly, it is not clear from the evidence presented what VillageCare's
eligibility requirements are for self-preservation in an emergency, or how those requirements are
applied and enforced. According to Freeland's own definition of being able to self-preserve in
an emergency, many existing residents ofVillageCare did not meet the eligibility criteria that
pmportedly disqualified Jane Doe. All VillageCare residents live on the third floor of the
building or above. (Freeland Aff. ,i 8.) Freeland testified that the way VillageCare determines
whether a resident can self-preserve during an emergency is whether she can safely go down two
flights of stairs "without someone having to be with her at all times, directing her, [and] telling

30

her, 'Hold on to the railings, step down, go down."'37 (Tr. 300:13-301: 11.) However,
VillageCare's resident evacuation assistance rosters as of April 2017 and June 2018 indicate that
numerous residents required assistance, cueing, and supervision in evacuating. (Exs. D5, D6.)
This included residents on the sixth floor, who required "[a]ssist[ance] walking/side by side."
(Exs. D5, D6.) The evacuation assistance rosters also note that several residents utilize devices
such as walkers, canes, and rollators to assist in ambulating, (Exs. D5, D6), suggesting that they
would not be able to descend multiple flights of stairs without continuous assistance. 38 The
rosters characterize some residents as "memormy impared [sic]" or "hearing impared [sic],"
(Exs. D5, D6), indicating that they may have,some cognitive or hearing challenges requiring
assistance in evacuating, (Tr. 312:23-313 :6). This suggests that many existing VillageCare
residents would require significant assistance descending multiple flights of stairs, and thus do
not meet the eligibility criteria described by Freeland.
Jane Doe herself, at various points during her residency at VillageCare, required
assistance going down stairs. At the time of her admission in 2012, Jane Doe had "difficulty
walking" and needed assistance with some activities of daily living, "including stairs." (Ex. D7,
at 11-12; see also id. at 80.) In July 2014, Jane Doe's UAS noted that she needed "[m]aximal
assistance" with managing one full flight of stairs, meaning that she needed "[h]elp throughout
[the] task, but perfmm[ed] less than 50% of the task on [her] own." (Id. at 91.) This would.
appear to violate VillageCare's criteria, as defined by Freeland, that residents should be able to

37 Charles testified that "self-direct" in the context of evacuation meant that, after being notified that there is a fire, a
resident would be "able to get to the necessaiy place without assistance," (Tr. 78:7-11.)
38 Freeland testified that a comment on the roster for one of the residents stating "Cane/Supervision" meant that "the
resident ambulates with a cane and we would want to make sure that someone is in the room with the resident, or if
they were going to go down the stairs that someone, the staff will be placed at different intervals to make sure that
they're there in case there is a fall." (Tr. 304:15-25.) Freeland fm1her testified that the tenn "Supervision" on the
rosters meant that a resident would need assistance going down stairwells. (Tr. 312: 17-22.)

31

descend two flights of stairs without continuous assistance. Nevertheless, VillageCare did not
terminate Jane Doe's admission for being unable to self-preserve in an emergency until after her
hospitalization when she began using a wheelchair during her rehabilitation in 2017.
Perhaps because of the difficulties VillageCare residents would experience in evacuating
by stairs, the evidence suggests that residents would not, in practice, actually use the stairs in the
case of an emergency. Charles testified that if there were a disaster or fire requiring evacuation,
residents would use emergency slides or the elevators to evacuate, which has been approved by
the fire depaiiment. (Tr. 77: 18-78:5.) This is consistent with VillageCare's Emergency
Management and Evacuation Plan, which contemplates using evacuation sleds or elevators if
approved by the fire department. (See EX:. D4, at 10, 29.) Given the alternatives to descending
the stairs that are available in the case of an emergency at VillageCare, coupled with the
numerous residents who do not appear to be able to descend the stairs without assistance, I find
that Defendant is unlikely to succeed in proving that Jane Doe's iiiability to self-preserve in an
emergency was the reason it tenninated her admission agreement in June 2017.
Defendant argues that even if Jane Doe met the general eligibility criterion of being able
to self-preserve in an emergency, VillageCare was justified in terminating her admission because
it determined that it was unable to meet Jane Doe's service and care needs. Defendant points to
the admission and retention standards forALPs established by DOH, which state that "[b ]efore
an operator admits an individual to an assisted living program, a detennination must be made
that the assisted living program can supp011 the physical, supervisory and psycho-social needs of
the resident." NYCCRR tit. 18, § 494.4(e). The regulation goes on to state that the
determination must be based on several evaluations, including a medical evaluation, an
interview, a preassessment screening by the operator, and a mental health evaluation. Id.

32

§ 494.4(f). Defendant contends that VillageCare made an individualized determination that Jane
Doe had a variety of deficits in her capabilities-including cognitive impainnents, unmanaged
incontinence, high risk of falls, and inability to ambulate and transfer independently-that
required services and care that VillageCare could not provide. (Def.'s Opp. 14-16.)
Here again, the contemporaneous evidence does not indicate that these purported deficits
played a role in VillageCare's decision to tenninate Plaintiffs admission. As an initial matter,
VillageCare-based upon its interpretation of the DOH regulations in force at the time-had a
policy ofrejecting applicants who used wheelchairs. In addition, VillageCare's termination
decision was not informed by the full panoply of assessments outlined in§ 494.4(f). While it
does not appear that VillageCare was under an obligation to conduct such extensive assessments
before tenninating Plaintiffs admission, see NYCCRR tit. 18, § 494.4(e) (requiring an
individualized determination "[b ]efore an operator admits an individual"), it cannot be said that
the termination decision was based upon the type of individualized assessment contemplated in
the regulation.
Rather, the Notice of Termination was based upon a medical evaluation perfmmed by
-

which does not appear to be in the record before me-and a visual assessment

performed by VillageCare's nurse. (Freeland Aff. ,i,i 27-28; Ex. P2.) The notes of the visual
assessment focus primarily on Jane Doe's ability to ambulate and transfer, specifically noting
that Jane Doe utilized a wheelchair. (See Ex. D7, at 218.) It does not appear that the nurse
conducting the assessment observed or tested Jane Doe's cognitive capabilities or her needs with
respect to her incontinence. (See id.) Although the Notice ofTennination stated that Jane Doe
"require[d] supervision and/or assistance with ambulation, transfen-ing, dressing, grooming,
toileting and bathing," (Ex. P2), the notes of the visual assessment do not reference Jane Doe's

33

capabilities with respect to dressing, grooming, toileting, or bathing, apart from a general
reference to Jane Doe's ability to complete "ADLs," or activities of daily life, (see Ex. D7, at
218). The visual assessment notes do indicate.that Jane Doe's physical and occupational
therapists at-believed she needed mrndditional three weeks of therapy to safely return
to VillageCare and that there was room for Jane Doe to improve, (id.), but rather than providing
Jane Doe time to improve and complete her rehabilitation, VillageCare terminated her admission
based on an internal deadline to provide eviction notices. Based on the record before me, I do
not find a likelihood that defendant will "sustain[) its burden of proving its affinnative defense
that it would have taken the adverse action on the basis of ... permissible reasons alone."

Mhany, 819 F.3d at 616 (quoting Cabrera, 24 F.3d at 383).
Defendant takes the position that Plaintiff may only prevail on the likelihood o_f success
prong by demonstrating that VillageCare discriminated against her in terminating her admission
and in rejecting her application for readmission. 39 (Tr. 356: I 0-21.) However, Defendant does
not provide a legal basis for that position, nor have I found one. The FHA makes it unlawful to
"make unavailable or deny" a dwelling on the basis of a disability and to "discriminate ... in the
tenns, conditions, or privileges of sale or rental of a dwelling" on the basis of a disability. 42
U.S.C. § 3604(f)(l)-(2). The plain terms of the statute encompass the termination of Jane Doe's
admission agreement, which effectively denies her access to her dwelling. Moreover, without
the termination of her admission, Jane Doe would not have needed to apply for readmission; as a
result, requiring her to demonstrate discrimination iii the reapplication process would effectively

39

In an order filed on July 13, 2018, I asked the parties to address during their closing arguments, among other
things, whether "[i]n order to prevail on the likelihood of success prong, does Plaintiff have to show that both the
termination of Plaintiffs admission in June 2017 and the denial of her readmission at the end of 2017 were
motivated by discrimination?" (Doc. 107 at 1-2.) Neither party specifically addressed this issue by citing to case
law either in their prehearing papers or during closing arguments.

34

allow Village Housing to benefit from its discrimination in tem1inating Plaintiffs admission
agreement. Therefore, I do not address whether or not Plaintiff is likely to succeed on the merits
of her discrimination claim with respect to VillageCare's rejection of her application for
readmission, or with respect to whether VillageCare refused her a reasonable accommodation.
However, as discussed below, the evidence related to Jane Doe's application for readmission are
relevant to the detem1ination of what remedy is appropriate.
B.

Irrepamble Hmw

Plaintiff contends that she will suffer irreparable hann because: (1) she will continue to
be subjected to discriminatimi by not being allowed back into her apaiiment; (2) her physical and
mental health will continue to deteriorate in the nursing home; and (3) she will continue to be
unnecessarily institutionalized in the nursing home. (Pl.' s Mem. 10-12.) She argues that the
injunctive reliefrequested-returning to her apartment and re-enrolling in VillageCare's ALPwill allow her to avoid suffering ineparable harm. (Id.) Defendant disagrees, arguing that the
harms Plaintiff claims she will suffer are speculative, and even if they were not, she could avoid
them by pursuing alternative housing options. (Def. 's Opp. 8-10.) Plaintiff has established that
she will suffer irreparable harm by not being permitted to return to her apartment.
As the Second Circuit has noted, "[t]here is some support for the proposition that where a
plaintiff demonstrates a likelihood of success on the merits of a fair housing claim, irreparable
harm may be presumed." Forest City Daly Hous., Inc. v. Town of'N Hempstead, 175 F.3d 144,
153 (2d Cir. 1999); accord Rogers v. Windmill Pointe Viii. Club Ass 'n, Inc., 967 F.2d 525, 528
(11th Cir. 1992) (explaining that "irreparable injury may be presumed from the fact of
discrimination and violations of fair housing statutes" (citation omitted)). Because Jane Doe has
shown a likelihood of success on her FHA claim, there is at least a presumption of irreparable

35

hatm. See Rogers, 967 F.2d at 528 (explaining that "[w]hen housing discrimination is shown it
is reasonable to presume that irreparable injury flows from the discrimination," but "such a
presumption, may be rebutted by evidence that any injury that may occur is not irreparable"
(citation omitted)).
Whether or not Plaintiff may be afforded a presumption of irreparable hatm, I find that
she has set fo1th sufficient evidence to establish i1rnparable harm. Jane Doe presented evidence
that her living situation at VillageCare was unique, and Defendants have not presented evidence
to the contrary. At VillageCare, much of Jane Doe's daily activities revolved around interacting
and socializing with her friends who also resided at VillagcCare. (See John Doe Direct Aff.
,i,i I 0-15.) She participated in numerous activities with her friends, including hosting them in

her apartment, watching television in their apartments, eating meals inside and outside of
VillageCare, discussing politics and current events, attending theater events, and visiting
museums and botanical gardens. (Id.)
In contrast, at the nursing home, Jane Doe experiences minimal social interaction, as
other nursing home residents do not function at a level sufficient to interact with her. (Id. ,i,i 53,
55.) Dr. Nichols testified that the "lack of routine social interaction with others at [Jane Doe's]
functional and intellectual level places her at risk of accelerated cognitive decline." (Nichols
Direct Aff. ,i 76.) Although he has not presented concrete medical evidence supporting this
assertion, I credit Dr. Nichols's testimony oh this issue.
Defendant contends that Dr. Nichols'ss opinions are speculative, (Def. 's Opp. 8), but
Defendant has not presented any evidence to contradict his opinions. Indeed, there is no dispute
that after being substantially bedridden in the hospital, Jane Doe's physical abilities deteriorated,
including her ability to ambulate, requiring lier to undergo physical therapy. This lends some

36

support to Dr. Nichols's opinion that Jane Doe's largely sedentmy lifestyle in the nursing home
will be deleterious to her physical condition and capabilities. Rather than presenting evidence to
contradict Dr. Nichols's opinions, Defendant contends that Jane Doe has alternative housing
options available to her, such as enrollment in an MLTC outside ofVillageCare or another ALP.

(Id. at 8-9.) The fact that there might be alternative places Jane Doe could live does not
diminish the unique nature of her living environment at VillageCare. Moreover, as Dr. Nichols
explained, "[i]t is an axiom of Geriatrics that patients do better in their own home with familiar
sunoundings whenever possible." (Nichols Direct Aff.

~

83.) Jane Doe had lived at VillageCare

for several years before being hospitalized. She had developed a routine at the facility and had
created a home in her apatiment, containing her valued possessions, including over 100 books
that she enjoyed reading. (John Doe Direct Aff.

~~

10, 13.) Returning to her specific apartment

and the community at VillageCare would reintroduce Jane Doe into a familiar and suppmiive
environment that would "encourage the preservation of 'over-learned' behaviors." (Nichols
Direct Aff.

~~

81, 83.) As such, I find that Jane Doe has established that she will suffer

i1Teparable hann if she does not return to her apartment at VillageCare. See Liddy v. Cisneros,
823 F. Supp. 164, 174 (S.D.N.Y. 1993) (finding irreparable harm where plaintiff would suffer "a
further deterioration of her physical and mental health" absent injunctive relief); see also Long v.

Benson, No. 4:08CV26-RH/WCS, 2008 WL 4571903, at *2 (N.D. Fla. Oct. 14, 2008) (finding
that "because of the very substantial difference in [plaintiffs] quality of life in the apartment as
compared to the nursing home, each day he is required to live in the nursing home will be an
irreparable harm"), aff'd, 383 F. App'x 930 (11th Cir. 2010).
In addition, returning to VillageCare would permit Plaintiff to be more independent than
she is permitted to be at the nursing honie, allowing her to regain ce1iain abilities that have

37

deteriorated. Jane Doe currently resides on the long-tenn care floor a t - (Nichols Deel.

,i 24.) She is confined to her wheelchair or bed almost all of the time, and is forbidden by
nursing home staff from using her rollator and from physical movement without an aide's
assistance. (John Doe Direct Aff. ,i,i 48-49, 60.) As such, she has little opportunity to exercise
or maintain and develop her strength. (Nichols Direct Aff. ,i 75.) Dr. Nichols testified that these
circumstances create a likelihood that Jane Doe will suffer "excess deterioration," meaning she is
likely to experience "the functional loss beyond what would be expected from [her] medical
condition due to failure to use and practice the abilities which [Jane Doe] still retains." (Id.

,i 74.) In fact, in Dr. Nichols's opinion, Jane Doe has already begun to experience excess
deterioration due to the limitations they place on Jane Doe's ability to perfom1 basic daily tasks.

(Id. ,i 77.) Dr. Nichols believes that, in the nursing home, Jane Doe "is at high risk oflosing the
ability to dress herself, walk with a walker, get in and out of chairs or bed, or perform the other
instrnmental activities of daily living that she still retains." (Id. ,i 75.) Further, "[p]rolonged
institutionalization [at the nursing home] places her at significant risk of emotional
decompensation and relapse." (Id.

ii 81.)

Ultimately, Dr. Nichols believes that Jane Doe's "life

could be shorter in the nursing home." (Nichols Aff. ,i 21.) Again, Defendant claims Dr.
Nichols' s opinions are speculative, but Defendant has not contradicted them. As such, based
upon the totality of the facts and Dr. Nichols's opinions, I find that Plaintiff has established
iJTeparable harm.
C.

Balance of the Equities and the Public Interest

The balance of the equities in this matter clearly tips in favor of Jane Doe with respect to
the requested relief ofbeing'allowed to re-enter her apartment. As discussed above, her housing
situation is unique and substantially contributes to her quality oflife. In addition, the evidence

38

presented indicates that she will continue to experience excess deterioration in the context of her
nnrsing home, and returning to the familiarity of her apmiment will contribute to the recovery of
her mental and physical capabilities. Defendant-other than by generally asserting it will need
to increase its staff should Jane Doe return to VillageCare-has not demonstrated through
testimony or documents that it will suffer significant hardship by simply permitting Jane Doe
back into her apartment. Indeed, the evidence suggests that VillageCare would either not incnr
additional costs or could recoup any additional costs associated with Jane Doe's return. (See Tr.
I 07:21-108:9, 293 :4-294:20; see also id. at 262: 11-263:5.)
However, Jane Doe has not established.that she is entitled to the second prong of her
requested relief-being readmitted into the VillageCare ALP-in pmi due to her Cut1'ent
condition as evidenced by her recent NFLOC scores and, relatedly, whether the VillageCare
ALP can adequately care for Jane Doe without materially transforming its service model. As Dr.
Nichols has acknowledged, and as Jane Doe's'two most recent NFLOC scores confirm, her
condition has deteriorated since she was hospitalized for treatment related to her nrinary tract
infection. (See Nichols Direct Aff.

'i! 77.)

Jane Doe received an NFLOC score of29 on her most

recent UAS, perfo1111ed on March 9, 2018, (Charles Aff.

'ii 12; Ex. D8), which is more than

double the NFLOC score of any current VillageCare ALP resident, (Tr. 268:18-24), and is
almost double the NFLOC score that VillageCare considers as the indicator for requiring
services beyond those VillageCare's ALP can provide, (Freeland Aff.

'ii 19).

Plaintiff's March

2018 UAS revealed that she required significantly more assistance with tasks-including
dressing, transferring, and toileting-than she did while she resided at VillageCare. (See Ex.
D8.) The parties strongly dispute whether VillageCare's ALP is equipped to provide Jane Doe
the services and care she needs. Based on the.record before me, I cannot at this stage conclude

39

that VillageCare's ALP would be able to provide the services Jane Doe needs. Therefore, the
appropriate remedy here does not include directing Defendant to re-enroll Jane Doe in the
VillageCare ALP. The question, then, becomes whether there is an equitable remedy available
to ensure that Jane Doe receives the necessary services in her apartment at VillageCare.
During the course of litigating this motion, each party has acknowledged that enrolling
Jane Doe in an ML TC while she lives in her VillageCare apaitment would be an agreeable
resolution to this dispute. During oral argument, counsel for Defendant explained that ten of the
I 00 beds at VillageCare are not allocated either to the ALP or the Enriched Housing Program,
and that Jane Doe "could live in one of those, enroll in a managed long-term care program, and
receive whatever services and personal care services that she is determined to need up to and
including 24 hours a day that would be paid by Medicaid." (Oral Arg. Tr. 60:8-14.)40 During
closing arguments, counsel for Jane Doe indicated that enrolling Jane Doe in a MLTC while she
lived in her apartment at VillageCare woald be "a way to resolve" the dispute between the
parties. (Tr. 351: 1-25.) During her in-co,urt testimony, Freeland testified that residents in
VillageCare's Enriched Housing Program can receive services through a MLTC, as long as they
are not enrolled in the ALP. (Tr. 242:8-24.) Valerie Deetz, the Director of the Division of Adult
Care Facilities and Assisted Living Surveillance at the DOH, (Deetz Deel. ,i I), suggested that if
she met the eligibility requirements, an MLTC would be a viable option for Jane Doe, should
VillageCare allow her to return to her apartment but refose to provide care, (id. ,i 18). The nurse
performing Jane Doe's March 2018 UAS recommended an MLTC as an appropriate placement
for Plaintiff. (Ex. D8.) Thus, it appears that allowing Jane Doe to return to her VillageCare

40

"Oral Arg. Tr.'' Refers to the transcript for oral argument on Plaintiffs preliminary injunction motion, which was
held on June 12, 2018. (Doc. 109.)

40

apartment and enrolling her in a ML TC-assuming she meets the eligibility requirements-is a
remedy that would achieve the appropriate balance of the equities and advance, or at least not
hinder, the public interest. 41
However, recognizing that there may be administrative or regulatory barriers
complicating Village Housing's ability to permit Jane Doe to re-enter her apartment and receive
ML TC services, I will allow the parties to inform me in a joint letter within one week of the
entry of this Opinion & Order of any reasons why the relief granted is unworkable.

V.

Conclusion

For the foregoing reasons, Plaintiffs motion for a preliminary injunction is GRANTED
IN PART and DENIED IN PART. Specifically, Plaintiffs motion is granted with respect to her
request that I direct Defendant Village Housing to permit her to return to her apartment unless
and until a warrant of eviction is issued by a New York City court and executed by a New York
City marshal. That relief is subject to Plaintiffs application to and enrollment in a Managed
Long-Term Care Program that provides adequate care and services to Plaintiff in her VillageCare
apartment. The paiiies shall use their best efforts to have Plaintiff evaluated for a Managed
Long-Term Care Program within three (3) weeks of the entry of this Opinion & Order.
Plaintiffs motion is denied with respect to her request that I direct Defendant Village Housing to
reenroll Plaintiff in its ALP and provide services pursuant to 18 NYCRR § 494.5.
Should the relief granted present difficulties for either party that make it unworkable, the
paiiies shall submit a joint letter ofno more than five (5) pages within one (1) week of the entry
of this Opinion & Order outlining in detail the reasons why they believe the relief granted is

41
I note that VillageCare's ALP residents will transition into and be covered by MLTC plans by the end of this year.
(Tr. 244:14-23.)

41

unworkable.
SO ORDERED.
Dated: September 10, 2018
New York, New York

~~~
Vernon S. Broderick

United States District Judge

42