GARNET HEALTH MEDICAL CENTER CATSKILLS v. CENTER FOR DISCOVERY INC (2022)

An Order to Show Cause having been filed by Garnet Health Medical Center-Catskills (hereinafter referred to as “Garnet”) on January 28, 2022 requesting, inter-alia, that this Court declare that the refusal of the Center for Discovery (hereinafter “CFD”) to accept the return of J. G., a long-time resident, constitutes a “discharge” of J. G. as provided by 14 NYCRR §§ 633.12; 633.99, to declare that CFD is required to accept J. G. at its facilities and provide services pending administrative proceedings, and, to declare that CFD is required to afford J. G. his due process rights as set forth in applicable regulations; and

A Notice of Motion having been filed by the Center for Discovery, Inc. on February 4, 2022, requesting that the matter be dismissed based upon, inter-alia, a lack of standing; and

Affirmations in Opposition and Memoranda of Law having been submitted by counsel; and

Amended pleadings having been filed by D. G. on behalf of J. G. wherein D. G. joined in the relief requested by Garnet, D. G. being J. G.'s natural parent and legal guardian; and

The Court having conducted an evidentiary hearing on February 18, 2022, and February 22, 2022.

NOW, for the reasons set forth herein, the Notice of Motion filed by CFD is hereby denied and the Order to Show Cause is hereby granted.

 Findings of Fact

J. G. is a twenty-four-year-old resident of CFD, a certified provider of services for the Office of People with Developmental Disabilities (hereinafter referred to as “OPWDD”)¹ . J. G. has resided at CFD for a period in excess of fifteen years. At the age of four, J. G. had a craniotomy. J. G. is wheelchair bound and has a longstanding history of midbrain glioma, seizure disorders, behavioral disorders, chronic hypertension, and Attention Deficit Hyperactivity Disorder. In addition, J. G. has significant gastrointestinal issues, a history of malnutrition, and a left chest mediport and tubular insertions.²

On November 17, 2021, J. G. was admitted to Garnet for septic shock, acute renal failure, lethargy, low blood pressure, tachycardia, constant diarrhea and weight loss.”³ At the time of admission, CFD Medical Director P. W. informed Garnet that CFD was unable to take J. G. back when he was discharged from the hospital. On or about December 22, 2021, Garnet advised CFD that J.G. was medically stable and ready to be discharged to CFD. CFD refused to permit J. G. to return to his home, insisted that he was not medically stable and maintained that J. G.’s medical needs exceeded the level of care that could be provided at CFD.⁴

Thereafter, a conference was held between Garnet, CFD and the regional director of OPWDD regarding CFD's refusal to allow J. G. to return to his home. In follow up to the conference, on December 23, 2021, J. V., the regional director for OPWDD, wrote to CFD. Ms. J. V. advised CFD that their refusal to accept J. G.'s return constituted a constructive discharge and that this triggered J. G.'s right to a due process hearing pursuant to 14 NYCRR 633.12. CFD was also provided a copy of an OPWDD memorandum from L. F., the Deputy Commissioner, entitled “Due Process and Inappropriate Discharge from Residential Programs and Services”. CFD was advised that “[t]he inappropriate discharge memo specifically includes that an agency not allowing an individual to return to his residence following a hospitalization and an agency refusing to allow an individual to return to his residence because the agency feels it can no longer provide appropriate care to the individual is an inappropriate discharge.”⁵

Nevertheless, CFD did not accept J. G. back at the facility, they did not adhere to the administrative regulations that they were advised as applicable to their actions, and they did not afford J. G. the due process rights set forth in 14 NYCRR 633.12.

As noted above, the instant petition was filed on January 28, 2022.

As of this writing, J. G. remains at Garnet, he is essentially inactive in a hospital bed, and he is not receiving the type of day-to-day ancillary services that the record clearly establishes that he needs. Given CFD's insistence that J. G. has not actually been “discharged”, no further steps have been taken by CFD to facilitate any type of due process hearing or other administrative process to determine whether a change in J. G.'s placement is appropriate.

 Motion to Dismiss

The motion filed by CFD argues, inter-alia, that Garnet does not have standing to bring this proceeding. According to CFD, “[w]hile OPWDD regulations include a procedure for discharging residents of housing licensed by OPWDD, the relevant OPWDD regulation does not list a hospital like Garnet as a party that can invoke that regulation to object to an alleged discharge and seek a hearing”.

In a further effort to escape judicial oversight over this matter, CFD argues that J. G.'s placement was arranged by contract through the State of New Jersey, and the contract indicates that New Jersey law will apply.⁶ Contrary to CFD's argument, the issue of which State's law applies to the controversy is separate and distinct from the issue of which state has jurisdiction over the matter. If there is a legitimate conflict of law issue, this Court could apply New Jersey law in a proceeding in New York State.⁷

Since the filing of the Notice of Motion and responses, D.G. formally joined as a Petitioner in this matter. In a memorandum of law submitted to the Court on February 14, 2022, counsel for CFD recognizes the possibility of this occurrence but makes the conclusory assertion that nevertheless “[t]he Court does not have the jurisdiction to direct a facility to take a particular resident.”⁸

The Court has considered CFD's arguments regarding jurisdiction and finds the arguments to be without merit. With regard to standing, D. G. undeniably has standing to bring this proceeding and his filing ameliorates any prior jurisdictional defect that may have existed. In reaching this determination, this Court is not specifically addressing the question of Garnet's standing as that issue has become moot.

With regard to CFD's argument that this Court does not have the power or jurisdiction to order CFD, as a private institution, to allow J. G. to return to CFD, CPLR § 3001 provides in relevant part that “[t]he Supreme Court may render a declaratory judgment having the effect of a final judgement as to the rights and other legal relations of the parties to a justiciable controversy whether or not further reliefis or could be claimed”.

“A motion to dismiss the complaint in an action for a declaratory judgment presents for consideration only the issue of whether a cause of action for declaratory action is set forth, not the question of whether the plaintiff is entitled to a favorable declaration (DiGiorgio v. 1109-1113 Manhattan Avenue Partners, LLC, 102 AD3d 725 (2nd Dept., 2013) (internal citations and punctuation omitted). See also, Tilcon NY, Inc. v. Town of Poughkeepsie, 87 AD3d 1148 (2nd Dept., 2011)).

Here, it is clear that there is a justiciable controversy before the Court wherein the parties have requested a clarification of the rights and legal relations of the parties. Garnet and J. G.'s father have requested declaratory relief that squarely falls within the scope of the Court's authority pursuant to CPLR § 3001.

CFD also argues that Garnet and D. G. have not exhausted their administrative remedies ⁹ . This argument fails insofar as it would be CFD's notification of the discharge that would trigger the right to object and the resultant hearings and administrative review. As CFD has not provided notification of the discharge, objections could not be filed. Moreover, CFD's arguments regarding the failure to exhaust administrative remedies misstates the administrative burdens in this matter. CFD is a licensed facility governed and operated under the oversight of OPWDD. Extensive regulations have been promulgated regarding the operation of OPWDD facilities and these regulations clearly outline a process to ensure the due process rights of residents. The recipients of services from OPWDD are clearly some of our most vulnerable individuals, and the protection of their due process rights must be of paramount importance.

As addressed below, the record is clear that the applicable regulations contemplate due process protections for residents such as J. G. J. G. and his family have been unable to challenge CFD's decisions because CFD has chosen to ignore OPWDD's determination that J. G. has been constructively discharged. As such, it is CFD that has failed to exhaust their own administrative remedies with regard to what is clearly a dispute between themselves and OPWDD rather than a dispute with Garnet and/or J. G. or his family.

Finally, CFD cites to Brooklyn Psychological Rehabilitation Institute v. Goldstein, 103 AD2d 829 (2nd Dept., 1984) and argues that it is controlling in this matter and supports CFD's conclusory challenge to this Court jurisdiction. Therein, the Appellate Division, Second Department held that the Supreme Court could not act at the request of the Department of Probation to prevent a discharge of a resident from a voluntary facility. The Appellate Court found that while Supreme Court had jurisdiction over the terms and conditions of probation, the Court could not direct “a private institution to retain a person sentenced to a term of probation when that institution determines that the person should be discharged”.

This Court finds that CFD is not in a comparable position in this litigation as the facility in Brooklyn Psychological. Most notably, in Brooklyn Psychological, the issue before the Court was the Court's jurisdiction to act on behalf of Probation to compel the continued placement of an individual in a facility. There was no allegation that the facility failed to comply with the applicable regulations regarding discharges as alleged herein. Moreover, Brooklyn Psychological addressed a request pursuant to CPLR Article 78 rather than a request for a declaratory judgment under CPLR § 3001. For these reasons, among others, Brooklyn Psychological is not controlling.

For the foregoing reasons, the Notice of Motion filed by CFD on February 4, 2022 is hereby denied in all respects.

 Order to Show Cause

The record is clear and essentially uncontroverted that most of J. G.'s acute illnesses predate his admission. The testimony is also clear that J. G. was receiving care for these illness at CFD for years prior to his admission to the hospital. He was admitted to the hospital to address three specific issues and the testimony is unrebutted that these issues have been addressed. This Court has considered the credible testimony of both expert witnesses and notes that the testimony of the experts was fundamentally consistent with regard to these factual issues.

While the opinions of the experts differ regarding whether J. G. actually is ready to be discharged, this disagreement is not fact based. Rather, it is based upon different definitions and standards applied by the experts. The definitions and standards that the experts applied are consistent with and further the positions that they have advocated in these proceedings. When evaluating the opinions of the two experts, the Court has considered and herein rejects CFD's attempt to interject J. G.'s pre-existing conditions into this Court's determination of whether J. G. is currently ready for discharge. It is the finding of the Court that the specific acute illness that led to admission have been addressed and J. G.'s pre-existing acute illnesses are not controlling in this proceeding.

CFD continues to assert that when and if J. G. is discharged from the hospital, he will inevitably suffer a further deterioration that necessitates a return to the hospital. They argue that this Court should essentially rule that these foreseeable incidents should be considered as a basis to simply leave J.G where he is. This Court has considered and finds this argument to be unpersuasive. Garnet is an acute medical facility. It is not an appropriate location to hold an individual with chronic health issues in anticipation of a foreseeable event that could result in hospitalization. Garnet is not J. G.'s home; it is not a permanent residence, and this Court will not treat it as such. If CFD does not believe that CFD is an appropriate permanent residence for J. G., it is obligated to follow applicable regulations to secure an alternate placement. Rather than pursuing its administrative remedies through OPWDD, CFD appears before this Court and argues that J. G. should simply flounder in a hospital and be denied of his present home while his due process rights to an administrative determination regarding his placement are ignored.

CFD now argues that while they are not allowing J. G. to return home, they are “holding” his place at CFD and therefore he is not actually being discharged. This argument has been rejected by OPWDD and it was clearly interjected by CFD in response to these proceedings. It is also rejected by this Court which is disturbed by the timing of CFD adopting this argument. At this stage of these proceedings, absent CFD pursuing their administrative remedies regarding the finding of a discharge, this Court will defer to the licensing agency. Nevertheless, on its face, this Court finds CFD's argument to be unpersuasive. Under the circumstances, this Court will not countenance this clear attempt by CFD to evade its obligation to provide for a due process hearing as required in applicable OPWDD regulations.

 Due Process Right to Object to Discharge

According to 14 NYCRR 633.99 (aj), “[a]s used in that context, [discharge] means the release of a person from a facility and the termination of programs/services at the facility ․ However, discharge also takes place when a facility or day program determines, in conformance with its policies/procedures, that it can no longer provide programming/services, even if it has been incapable of making alternative provisions for programs or services. In this instance, objection to discharge shall be processed pursuant to section 633.12 of this Part”.

14 NYCRR 633.12 provides in relevant part that “[o]bjections ․ may be initiated regarding (i) any plan of services ․ or part thereof and proposed changes thereto; ii) plans for placement ․ (iii) a proposal initiated by the agency/facility to discharge ․ and (iv) a proposal to reduce, suspend or discontinue HCBS waiver services ․ [t]he following parties may initiate an objection: adult persons receiving services; parents; guardians, correspondents, and advocates of persons receiving services; and the Mental Hygiene Legal Service”.

Finally, 14 NYCRR 633.12 (a)(8)(i) specifically requires that during the period of an objection, the individual shall participate in mutually agreeable services, and every effort shall be made to maintain the individual in at least his or her current level of programming. Most relevant to the instant proceeding, regulations specifically require that while an objection is undergoing administrative review, “relocation or discharge shall only take place with the commissioner's approval”.

Petitioners argue that CFD's actions constitute a constructive discharge ofJ. G. and cite to written communications and memorandum from OPWDD as support for this position. CFD responds by disagreeing with the interpretation of OPWDD regarding this issue and argue that this interpretation of the applicable regulations is arbitrary and capricious. CFD further argues that it is Petitioners who have failed to exhaust their administrative remedies. Notably, by making these arguments, CFD is merely reinforcing the conclusions reached herein.

While CFD is free to disagree with OPWDD's determination that the action at issue constituted a constructive discharge, that argument would be ripe in a proceeding brought by CFD against OPWDD. CFD is not free to simply ignore the determination. If, and when, such a proceeding is filed, a Court would be charged with reviewing whether OPWDD's determination was arbitrary and capricious. Until such time, it is CFD that has failed to exhaust its administrative remedies rather than Petitioners.

There is no indication that J. G.'s present condition and the need for additional medical services was unexpected or unforeseeable. In this regard, the testimony established that while J. G.'s has several significant medical conditions, for a substantial period of time, CFD has been able to provide for his medical care. While he has been transported to the emergency room for treatment on numerous occasions, there is no evidence in the record to establish that this is atypical for a resident like J. G.

The record is also clear that CFD has been exploring alternate treatment alternatives for J. G. for at least two years and have discussed and consulted with Gastroenterologists regarding treatment options. In addition, long before J. G.'s most recent hospitalization, steps were taken by CFD to address J. G.'s habit of removing his tubes. The record is clear that J. G.'s behavioral issues are longstanding, they directly impact the potential medical interventions and CFD certainly could have addressed potential services and potential alternate placements that were necessary to address these issues through the applicable administrative processes.

Setting aside the uncontested evidence in the record that J. G.'s longstanding medical issues pre-date his admission to Garnet, given the fact that Garnet notified CFD that J. G. was ready for discharge on December 22, 2021, there clearly was sufficient time for CFD to have conducted a due process hearing at any time prior to the filing of these proceedings.

In this regard the procedures set forth in § 633.12 are specifically intended to protect the due process rights of the developmentally disabled, a group that undeniably deserves the greatest protections. Here, the record is clear that CFD's calculated refusal to accept J. G. back at their facility deprived J. G. of his procedural due process rights as set forth in applicable regulations and as specifically interpreted by the Commissioner.

While CFD is certainly entitled to disagree with this determination, until and unless CFD pursues its administrative remedies, this Court has no authority to intervene. Insofar as no due process hearing has been held, and J. G.'s father is clearly opposed to a discharge, the matter is not ripe for any further judicial review.

As such, the Order to Show Cause is hereby granted and the Motion to Dismiss is hereby denied.

The application to seal these proceeding is hereby granted; and

Pursuant to CPLR § 3001, this Court hereby declares that:

1) J. G. does not suffer from an acute illness which currently requires hospitalization; and

2) Absent a reversal in an administrative proceeding or in a proceeding under Article 78 of the CPLR, the determination of OPWDD that CFD refusal to accept J. G.'s return to the center constitutes a discharge pursuant to 22 NYCRR 633.99 (aj), is binding on the parties; and

3) Pending further administrative determinations pursuant to applicable regulations, CFD is obligated and is hereby Ordered to immediately accept the return of J. G. to CFD and to provide necessary services until all administrative proceedings are exhausted.

This shall constitute the Decision and Order of the Court.

SO, ORDERED.

FOOTNOTES

1.   According to its own memorandum, CFD provides residential programs and services for people with intellectual and developmental disabilities and is licensed by OPWDD. As such, it is required to comply with the administrative provisions set forth in 14 NYCRR 633.12 and is subject to the oversight of OPWDD.

2.   The above recitation of J. G.'s pre-existing conditions is set forth in the petition. While CFD has not filed a formal answer to the petition, the pleadings that they have submitted, including the motion to dismiss, have not contradicted any of the factual assertions made by Petitioner regarding these longstanding medical issues and the testimony elicited at the hearing confirmed that the issues outlined in the petition are basically accurate.

3.   Petition, para. 10.

4.   Dr. Philip Wilken, the Medical Director at CFD conceded when he testified that as of December 22, 2021, these specific conditions that resulted in J. G.'s hospitalization had been addressed. Dr. Wilken's testimony focused on J. G.'s longstanding pre-existing conditions, CFD's perceived inability to address these pre-existing conditions and CFD's belief that J. G. needs to be transferred to a tertiary care facility.

5.   See, Petitioner's Exhibit A (NYSCEF document 4).

6.   See Steven Morenson, General Counsel, CFD, affirmation in support, NYSCEF document 12.

7.   While CFD argues that this Court should apply the laws of New Jersey rather than New York, CFD has not articulated any substantive difference between the two jurisdictions that would be applicable in the case at bar.

8.   See, Memorandum of Law for the Center for Discovery, Inc. (NYSCEF document 35)

9.   See, Memorandum of Law for the Center for Discovery, Inc. (NYSCEF document 35)

Kevin R. Bryant, J.