Opinion
Index No. 400082/12 Motion Sequence No. 001
04-19-2013
NORMAN BLOOMFIELD, individually and on behalf of all persons similarly situated, Plaintiff, v. VINCENT CANNAVO, in his official capacity as Program Director of the Adult Care Facility Program of the Metropolitan Area Regional Office of the New York State Department of Health, MARY HART, in her official capacity as Director of the Division of Assisted Living, and NIRAV R. SHAH, in his official capacity as Commissioner of the New York State Department of Health, Defendants.
MARCY S. FRIEDMAN, J.:
This is a class action brought by plaintiff, Norman Bloomfield (Bloomfield), a resident of the Surf Manor Home for Adults (Surf Manor), on behalf of himself and all other similarly situated current and future residents of adult homes in New York City, against defendants Vincent Cannavo and Mary Hart, Directors of the New York State Department of Health, and Nirav Shah, its Commissioner (collectively Department of Health or Department). Plaintiff seeks a declaratory judgment and injunctive relief based on the claim that defendants' procedures regarding inspections of adult homes violate the New York State Constitution, the New York State Administrative Procedures Act (SAPA §§ 202 et seq.). and the Americans with Disabilities Act (ADA 42 USC §§ 12131 et seq.). The Department of Health moves to dismiss the complaint, pursuant to CPLR 3211(a)(2) and (7), on the ground, among others, that plaintiff lacks standing based on the pleaded allegations.
The relevant facts, as alleged in the complaint and conceded to be true for purposes of this motion, are as follows: Plaintiff Bloomfield is a resident of Surf Manor, and also serves as the president of the Surf Manor Residents' Council. (Complaint, ¶¶ 166, 170.) Surf Manor is an "impacted" adult home that houses approximately two hundred residents. (Id., ¶¶ 167, 168.) The Department defines "impacted homes" as facilities in which at least twenty-five residents or twenty-five percent of the residents have a mental illness-based disability. (Mental Hygiene Law § 45.09(a), 45.10(a); Complaint, ¶ 32.) The individual defendants are state employees or officials responsible for ensuring that adult homes comply with the New York Social Services Law and regulations. (Complaint, ¶ 9.) Defendants' positions involve, in varying degree, overseeing the Department's inspection of adult homes, promulgating regulations that govern adult homes, and reviewing inspection reports. (Id., ¶¶ 34-36.)
Regulatory Framework
The Social Services Law (SSL §§ 460 et seq.) and implementing regulations (18 NYCRR §§ 485 et seq.) set forth detailed procedures for the Department of Health's oversight of adult homes. Section 460 of the Social Services Law, entitled "Declaration of policy and statement of purpose," provides:
"In order to more effectively protect and assure the life, health, safety and comfort of adults and children who must be cared for away from their own homes, the department of social services acting directly or through social services districts, and with the cooperation of other state agencies, shall have the comprehensive responsibility for the development and administration of programs, standards andThe Department of Health is responsible for "promulgat[ing] and may alter or amend regulations effectuating the provisions of this title, including but not limited to establishing fiscal, administrative, architectural, safety, nutritional and program standards which apply to all adult care facilities subject to its inspection and supervision." (SSL § 461 [1].)
methods of operation, and all other matters of state policy, with respect to residential care programs for children and adults and all facilities and agencies, whether public or private, which are subject to the provisions of this article."
As of April 1, 1997, the Department of Health replaced the New York State Department of Social Services as regulator of adult care facilities. (Social Services Law § 122 [e], as amended by L 1997, ch 436.)
Section 461-a further provides that the Department "shall be responsible for the inspection and supervision of all adult care facilities. . . ." The statute requires the Department to "conduct a minimum of one unannounced inspection" of each adult care facility at least every twelve or, in some instances, eighteen months. (Id., § 461-a [2][a][2].) The Commissioner of the Department of Health "may provide for more frequent inspections of any such facilities." (Id.) The implementing regulations similarly provide minimums for unannounced inspections every year. (18 NYCRR § 486.2[b].) The statute states that the purpose of inspection is "to determine compliance with requirements of applicable provisions of law and regulations of the department," and provides for inspections to include "examination of the medical, dietary and social services records of the facility as well as the minimum standards of construction, life safety standards, quality and adequacy of care, rights of residents, payments and all other areas of operation." (SSL § 461-a [2][b].) The regulations define inspection as "a process of inquiry and investigation which shall include, but need not be limited to, announced and unannounced onsite investigations, private interviews with residents, review and investigation of the books and records of the facility, gathering of written, photographic or other physical evidence, and such collateral contacts as the department deems necessary for the purpose of determining compliance with applicable laws and regulations." (18 NYCRR § 486.2[a].)
Both the statute and regulations require an inspection report to be made following each inspection. (SSL § 461-a [2][c]; 18 NYCRR § 486.2[h].) The adult care facility must maintain the inspection report as public information available for public inspection, and must post a summary of the inspection in a "prominent position" in the facility. (SSL §§ 461-e [1], [3][a]; 18 NYCRR § 486.2[1].) The statute and regulations also provide for notification to the operator of the results of the inspection, and for the notification, when applicable, to contain directions to correct violations and comply with applicable laws. (SSL § 461-a [2][c]; 18 NYCRR § 486.2[i].)
An investigative and hearing process is detailed in both the statute and regulations. The Commissioner or his designee may investigate the "affairs and management of any facility" and is empowered to "issue compulsory process for the attendance of witnesses and the production of papers, to administer oaths and to examine persons under oath, and to exercise the same powers in respect to the conduct of such an investigation as belong to referees appointed by the supreme court." (SSL § 460-d [1]; 18 NYCRR § 486.1[f].) Following the Department's investigation, a facility's operating certificate "may be revoked, suspended or limited upon a determination by the department that the facility has failed to comply with the requirements of state or local laws or regulations applicable to the operation of such facility." However, absent an imminent danger to health or safety, a hearing must be held, before revocation, suspension, or limitation of a facility's operating certificate, in accordance with the Department's regulations set forth in 18 NYCRR § 493. (See SSL § 460-d [4][a], [b]; 18 NYCRR §§ 485.5[1], 486.4[c].) A civil penalty against an adult care facility also may not be assessed without a hearing held in accordance with 18 NYCRR § 493. (18 NYCRR § 486.5[a][6].) The Department may "commence an administrative action against an operator or respond to a request for a hearing made by an operator, by delivering a proposed statement of charges" to the operator. (Id., § 493.3[a].) At the hearing, the operator, its representatives and counsel, witnesses, and "any other person" may be present. (Id., § 493.9[a].) Following the hearing, the Department's decision with respect to the charges against the adult care facility "must be issued by the commissioner or by the commissioner's designee and must be based exclusively on the record of the hearing." (Id. § 493.13[a].)
As further provided in the statute and regulations, the Department, in addition to conducting the annual mandated inspections, may conduct "complaint inspections" regarding the care afforded to residents. (SSL § 461-o; 18 NYCRR § 486.2[e][4].) To this end, the Department is responsible for establishing "procedures governing the receipt and investigation of complaints regarding the care afforded to residents of adult care facilities." The statute specifies that "[sjuch procedures shall include . . . the procedures for reporting complaints, either in writing or orally to the department, and the time frames governing the investigation of any such complaints submitted to the department. . . . Upon the conclusion of the investigation by the department, the operator and the complainant shall be notified in writing of the results of such investigation." (SSL § 461-o.) The regulations set forth additional procedures regarding complaint investigations, including the following: "When a complaint investigation is being conducted, the department shall advise the operator of the complaint, review, findings, and prescribe corrective action. However, the operator shall not be advised of the conduct of a complaint investigation if such notice would jeopardize the complainant's confidentiality or when potential criminal wrongdoing is involved." (18 NYCRR § 486.2[n].) Upon completion of the complaint investigation, "the department shall advise the complainant [i.e., adult care resident] of the findings and corrective action, if any. However, a complainant shall not be advised of the outcomes of an investigation which is being contested by an operator or when civil or criminal action might be compromised by such notice." (18 NYCRR § 486.2[o].)
As of 2004, the Department of Health implemented additional procedures regarding complaint investigations. (Complaint, ¶¶ 61, 64.) These procedures, which are the subject of this action, are known as the Inspection Review Process (IRP). As set forth in the Department's Administrator Letter (DAL: HCBC 06-13, dated Sept. 12, 2006 [P.'s Aff. In Opp., Ex. E]), the IRP was adopted to afford adult home operators an opportunity to "request an informal inspection review meeting after issuance of an inspection report but prior to the posting of the report on the Department's website." (Id. at 1.) The IRP cannot be used, however, to dispute a violation classified as an endangerment as defined in 18 NYCRR § 486.5(a)(4). (Id.) The IRP provides for inspection reports issued by the Department following an investigation to include "notification that the facility may request a meeting with inspectors to discuss any violations or findings in the report other than endangerments." (Id.) The IRP also provides that where the operator requests a meeting, it is not required to post the inspection report until after the meeting has been held and the Department gives notice of the outcome of the meeting, (id.)
It is noted that the IRP provides, however, that even where an operator has requested a meeting and posting of the report is deferred, the Department must provide a copy of the report in response to a Freedom of Information Law request, (id.)
Plaintiff's Challenge to the IRP
Plaintiff challenges the IRP on two main grounds. First, plaintiff contends that the IRP is a rule that was required to be promulgated after public notice and hearing, pursuant to SAPA. (See Complaint, ¶¶ 12, 65, 208-215.) He alleges that "[d]efendants' failure to officially promulgate rules regarding the 1RP . . . are unjustified and have caused members of the [p]laintiff class to suffer harm." (Id. , ¶¶ 209, 215.) Second, plaintiff claims that the IRP violates the ADA by excluding [adult home residents] from the process. (Complaint, ¶¶ 13, 228.) More particularly, he alleges that "defendants' policies deny [him] and other adult home residents the opportunity to request an IRP or another method to challenge the Department's finding that a complaint was 'unsubstantiated'" (id., ¶ 203) or "to appeal complaint investigation outcomes." (Id., ¶¶ 190-196.) He similarly alleges that "[d]efendants deny plaintiff and other class members: (1) the right to obtain detailed information about corrective action orders and violations at the close of investigations; (2) the right to appeal investigation outcomes; and (3) an opportunity to challenge the inadequacy of the Department's enforcement measures." (Id., ¶ 13.)
Plaintiff pleads numerous objections to the inspection process. Thus, he alleges, for example, that "defendants' opaque rules allow adult home operators to stall or undermine the complaint inspection process." (Id., ¶ 228.) He further alleges that the Department "reviews the information submitted by the adult home during an IRP in a light most favorable to the adult home operator," and that the "IRP is just one of several complaint-related procedures put into place by the Department to promote the financial and other interests of adult home operators." (Id., ¶¶ 68, 84.) In addition, plaintiff pleads that "[d]efendant Cannavo routinely refuses to issue violations against adult homes, even when MARO [Metropolitan Area Regional Office] investigators find evidence to substantiate residents' complaints," and "defendants infrequently commence enforcement actions against adult homes and rarely impose civil penalties on adult home operators for violating residents' rights." (Id.,¶¶ 101, 110.)
Standing
Defendant moves, pursuant to CPLR 3211(a)(2) and (7), to dismiss plaintiff's complaint for lack of standing. CPLR 3211(a)(2) provides for a motion to dismiss based on lack of subject matter jurisdiction, Standing is not a matter of subject matter jurisdiction but "an aspect of justiciability which, when challenged, must be considered at the outset of any litigation." (Society of Plastics Indus, v County of Suffolk, 77 NY2d 761, 769 [1991].) CPLR 3211(a)(7) provides for dismissal for failure to state a cause of action.
The issue, then, is whether plaintiff demonstrates standing based on the allegations pleaded in the complaint. In determining this issue, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]. See also 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002].) However, "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts." (Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]. See also Water St. Leasehold LLC v Deloitte & Touche LLP, 19 AD3d 183 [1st Dept 2005], lv denied 6 NY3d 706 [2006].)
As a threshold matter, defendant claims that plaintiff lacks standing because his complaints were made on behalf of other residents, and because plaintiff does not plead that any of his complaints was the subject of an IRP. (Ds.' Memo. In Support at 7.)
Plaintiff's complaint does not specifically indicate whether any of the complaints he made to the Department resulted in the adult home operator's request for an IRP or whether an IRP was conducted with respect to any of his complaints that he alleges did not result in a violation. The complaint also does not specifically state whether any of the complaints he made was for harm that he himself suffered as opposed to harm other residents suffered. (See e.g. Complaint, ¶ 171 [generally alleging complaints addressing "unsanitary conditions, rights violations, and a variety of other complaints at Surf Manor"; ¶ 174 [alleging that plaintiff made 35 complaints "regarding rights violations and hazardous conditions impacting Surf Manor residents"]; ¶¶ 175-184.)
As the complaint must be accorded the benefit of every favorable inference for purposes of this motion to dismiss, the court assumes that plaintiff's complaints were subject to the IRP and included complaints made on plaintiff's own behalf. The court accordingly turns to the issue of whether plaintiff pleads the remaining elements for standing - most importantly, "injury in fact." (See Society of Plastics Indus., 77 NY2d at 772.)
It is noted that a plaintiff acting in an associational or representational capacity may assert standing where three requirements are met: 1) one or more members of the association must have standing to sue; 2) the association must demonstrate that the interests it asserts are germane to its purposes so that it is an appropriate representative of those interests; and 3) assertion of the claim must not require the participation of an individual member, (Society of Plastics Indus., 77 NY2d at 775; compare Matter of Martha Washington Tenants Assn. v Roberts, 292 AD2d 225 [1st Dept 2002], lv denied 99 NY2d 529 [finding tenants' association had standing to challenge issuance of certificate of no harassment] with Cambridge House Tenants' Assn v Cambridge Dev., L.L.C., 2010 NY Slip Op 30117U [Sup Ct, NY County 2010][finding tenants' association lacked standing where claims were not common to all members of the association].)
Defendant argues that plaintiff does not plead the requisite "injury-in-fact." (Ds.' Memo. In Support at 6.) Defendant reasons that plaintiff does not have standing to challenge the "[Department's] decision not to issue violations or bring enforcement proceedings against an adult home, because he is not faced with any legal sanction by that decision," and it would be "sheer conjecture whether, or how, plaintiff's lack of opportunity to appeal [the Department's] exercise of its enforcement powers against Surf Manor would affect any injury that he purportedly suffered." (Id., at 11.) Defendant further argues that "[p]laintiff's claim that he has a stake in [the Department's] proceedings against an adult home is analogous to an individual seeking to compel the government to prosecute or investigate another individual." (Id., at 10.)
In response, plaintiff argues that "[a]ny citizen of New York would have standing to challenge the Department's unlawful administrative procedures." (P.'s Memo. In Opp. at 1.) He claims that "[p]laintiff and the proposed class are precisely the individuals who should seek judicial review of [d]efendants' conduct because they are persons with disabilities who are subjected to [d]efendants' regulatory scheme." (Id.) It is plaintiff's position that "[he] need not allege or establish that he has a legal right 'at stake' when the Department brings regulatory proceedings against an adult home [ ] in order to have standing to assert his claims ... and that [he] must simply show that he has a direct interest in this [c]ourt's resolution of his claims and that he falls within the 'zone of interests' protected under SAPA and the ADA. . . ." (Id., at 5-6.) According to plaintiff, [he] "is a person with a disability whose living conditions are directly impacted by [defendants' failure to adhere to their obligations under SAPA and the New York Constitution." (Id., at 4.) He further claims that "there can be no serious dispute that [he] has suffered an 'injury-in-fact' as a result of the Department's extra-regulatory activities and thus has 'a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution.'" (Id., at 5.)
Standing is a threshold issue requiring that a litigant have "something truly at stake in a genuine controversy." (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003]. In the analysis of standing, '"injury in fact' has become the touchstone during recent decades." (Society of Plastics, 77 NY2d at 772 [internal citations omitted].) "The existence of an injury in fact - an actual legal stake in the matter being adjudicated - ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute 'in a form traditionally capable of judicial resolution.'" (Id. [internal citation omitted].) To establish "injury in fact," a plaintiff must show that he or she "will actually be harmed by the challenged administrative action." (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004].) As the term "injury in fact" implies, "the injury must be more than conjectural." (Id., at 211.) The "injury in fact" requirement is closely aligned with the court's policy not to render advisory opinions. (Society of Plastics, 77 NY2d at 773.) "To this essential principle of standing, the courts have added rules of self-restraint, or prudential limitations; a general prohibition of one litigant raising the legal rights of another; a ban on adjudication of generalized grievances more appropriately addressed by the representative branches; and the requirement that the interest or injury asserted fall within the zone of interests protected by the statute invoked." (Id. [internal citation omitted].)
The courts have found the "injury in fact" necessary for standing where a plaintiff challenges a policy or procedure that has been "directly applied" to the plaintiff or directly affects his or her rights. (See e.g. Matter of Schwartfigure v Hartnett, 83 NY2d 296, 301 [1994] [holding that "petitioner, to whom the [unemployment benefits recoupment] policy is being directly applied, has standing to challenge respondent's noncompliance with the State Administrative Procedure Act" in promulgating policy]; Matter of District Attorney of Suffolk County, 58 NY2d 436, 443 [1983] [holding that respondents/targets of Grand Jury have standing to challenge disclosure to District Attorney of confidential Grand Jury minutes for use in civil proceeding].) In contrast, the courts have not found "injury in fact" where the harm to the plaintiff from application of the policy was speculative. (See e.g. New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d at 214 [rejecting standing of association of nurse anesthesiologists to challenge Department of Health guidelines as having been promulgated without authority, where harm was speculative because guidelines "might, or might not, actually affect [i.e., limit] the employment" of such nurses]; Rudder v Pataki, 93 NY2d 273,279 [1999] [rejecting standing of association of social workers to challenge executive order as having been promulgated in violation of SAPA, where allegations of specific injury to individual members were speculative].)
Here, plaintiff's allegation that the IRP process has caused or will cause harm to him and the other residents of adult care facilities is in effect founded on speculation that the outcome of the Department's enforcement action would be more favorable to the residents if they had the ability to be present at IRP meetings where adult home operators contest violations placed by the Department, or if they had the ability to prosecute their own appeals from the Department's decisions not to place violations in response to their complaints. Clearly, however, plaintiff cannot predict the effect, if any, of a resident's presence at the meetings or of the resident's ability to appeal a Department's decision.
Plaintiff also appears to allege that the failure of the Department to promulgate the IRP pursuant to SAPA (see Complaint, ¶¶ 209, 215) was itself the cause of harm to him and other residents. This allegation is also insufficient to plead "injury in fact." Indeed, if failure to comply with SAPA were itself the injury, standing would be established in every case in which a party was subject to a policy or procedure that was implemented without SAPA compliance. The courts, however, predicate standing on actual harm. (See New York State Assn. of Nurse Anesthetists v Novello. 2 NY3d at 214 [holding that standing may not be based on "hypothesized harm," and that "[p]laintiff's speculation about the future course the Guidelines might take [i.e., the future injury their application might cause to plaintiff] cannot supply the missing ingredient of in-fact injury."].)
To the extent that plaintiff alleges that the harm to him and other residents is the lack of a right to be present at the operator's IRP meeting or of a right to prosecute his own appeal, plaintiff also fails to allege "injury in fact." As neither the statute nor any implementing regulation confers such rights on plaintiff, the failure to provide the rights cannot constitute the harm. Plaintiff acknowledges as much in affirmatively representing that he does not "ask this Court to issue an order declaring his right to appeal the Defendants' orders." (P.'s Memo. In Opp. at 9.)
Finally, plaintiff's complaint pleads numerous allegations that the Department has failed to issue violations even when investigators have found that residents' rights were infringed (Complaint, ¶¶ 185-189); that its procedures are biased in that "the purpose of an IRP is to review information in a light most favorable to adult home operators, not adult home residents" (id., ¶¶ 53, 68); and that the procedures do not afford complainants an opportunity to challenge revisions made to corrective orders, at the request of adult home operators, as a result of an IRP. (Id., ¶ 82)
Although plaintiff pleads these allegations, he does not seek relief based upon them, and affirmatively represents that he "does not seek to compel any specific decision-making by the Department." (P.'s Memo. In Opp. at 9.) Nor could he do so, as it is well settled that "statutory enforcement authority under [Social Services Law] section 460-d is expressly vested only in the Department (Carrier v Salvation Army, 88 NY2d 298, 303 [1996]), and a private right of action does not exist to compel a public officer to perform an act as to which the officer may exercise discretion. (See e.g. Matter of Mullen v Axelrod, 74 NY2d 580, 583 [mandamus does not lie to challenge Commissioner's discretionary decision not to impose penalties against nursing home]; Sassower v Commission on Jud. Conduct of State of N.Y.,289 AD2d 119 [1st Dept 2001], appeal dismissed 98 NY2d 720 [2002], lv denied 99 NY2d 504 [2002][mandamus does not lie to challenge Commissioner's discretionary determination not to investigate complaint of judicial misconduct.)
Put another way, the courts have repeatedly held that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." (See Linda R.S. v Richard D., 410 US 614, 619 [1973]; United States of America v Grundhoefer, 916 F2d 788, 792 [2d Cir 1990].) In reaching this result, courts have reasoned that "[b]ecause it is the subject of the prosecution who suffers 'the direct injury,' required for standing, 'a private citizen generally lacks standing 'to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.'" (Weisshaus v State of New York, 2009 WL 2579215 * 3 [SD NY 2009], quoting Grundhoefer. id.; Matter of Morrow v Cahill, 278 AD2d 123 [1st Dept 2000], appeal dismissed 96 NY2d 895 [2001] [holding that petitioner does not have standing to challenge Departmental Disciplinary Committee's determination not to institute proceedings against petitioner's former counsel "since there is no direct and harmful effect on him.")
Other courts have reached the same result - that a private citizen lacks standing to object to the failure to investigate or prosecute an accused, but have reasoned that the failure to investigate is not the cause of the complainant's injury. (See Weisshaus v State of New York, 2009 WL 2579215, supra * 3 [and cases cited therein].)
Here, similarly, plaintiff's allegations as to the failure of the Department of Health to prosecute (i.e., to issue violations against adult home operators) or to provide for the input of residents in the process cannot serve to state a cognizable claim of direct injury.
The court has considered plaintiff's remaining contentions as to standing and finds them to be without merit.
ADA
Plaintiff also alleges that the Department has discriminated against them in violation of the ADA by: "(i) excluding them from participation or denying them a benefit or service by reason of their disability and have otherwise discriminated against [p]laintiffs by reason of their disability; (ii) imposing burdens upon adult home residents with disabilities that are not imposed upon non-disabled adult home operators who participate in [d]efendants' complaint investigation and enforcement program; and (iii) conducting biased administrative appeals in place that undermine the purpose of the complaint inspection process." (Complaint, ¶ 228.) In addition, plaintiff claims that "[d]efendants' policies have a discriminatory impact on members of the [p]laintiff class by affording adult home operators an opportunity to challenge the Department's actions with respect to the complaint review process through administrative appeals while denying members of the [p]laintiff class the opportunity to protect their rights through that same administrative appeal process." (Id., ¶ 242.) Plaintiff seeks injunctive relief and attorney's fees on the ADA claim.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (42 USC § 12132.) Section 12131 (2) defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." (42 USC § 12131.)
In applying the ADA, the court's initial inquiry is whether plaintiff, who is a disabled person, is eligible for the benefit he seeks. (See Matter of Rivera v New York City Hous. Auth., 60 AD3d 509, 509-510 [2009].) Plaintiff is not eligible for participation in the IRP because, as held above (supra at 13), the statute and implementing regulations do not confer the right to participate in the IRP upon residents. Plaintiff's ADA claim must accordingly be dismissed.
Conclusion
As the court has concluded that the complaint must be dismissed, it does not reach the issue of whether the Department was required to promulgate the IRP pursuant to SAPA. However, the court cannot ignore the existence of a serious question in this regard.
The IRP was implemented in response to a 2004 proceeding in which adult home operators challenged the Department's complaint inspection process - in particular, the lack of an opportunity to respond to inspection reports finding violations prior to posting of the reports -as violative of their due process rights. The court granted the petition in part and afforded the Department an opportunity "to create an alternate process" addressing this due process concern. (Matter of Empire State Association of Adult Homes Inc. v Novello (Sup Ct, Albany County, Sept. 15, 2004, Kavanagh, J., Index No. 3211/03 [P.'s Aff. In Opp., Ex. B at 3].) The court subsequently adopted the Department's proposal "to replace the existing regulations regarding the DOH's inspections of adult homes" and directed the Attorney General to notify the court "at the time the new regulations have been put in place." (Id., Nov. 3, 2005 Decision [P.'s Aff. In Opp., Ex. D.) In response, the Department subsequently issued the September 12, 2006 Dear Administrator Letter which sets forth the IRP. (See supra at 6.) Following the issuance of the IRP, there was correspondence to the court about the implementation of the IRP, in which the Attorney General took the position that the IRP was not "subject to formal rulemaking requirements." (Letter to Court from Jeffrey Dvorin, AAG, dated June 27, 2007, at 2, 9 [P.'s Aff. In Opp., Ex. F].) There was also apparently a related proceeding involving a supplemental IRP. (Letter to Court from Jeffrey Dvorin, AAG, dated Nov. 5, 2007 [P.'s Aff. In Opp, Ex. G].) The record does not indicate that the Albany court issued any further orders with respect to the applicability of S APA. However, the court initially directed replacement of existing regulations with new regulations, and thus appears to have contemplated formal rulemaking.
Moreover, the IRP appears to be qualitatively similar to inspection procedures which have been subject to rulemaking. SAPA § 202(l)(a) provides in pertinent part: "Prior to the adoption of a rule, an agency shall submit a notice of proposed rule making to the secretary of state for publication in the state register and shall afford the public an opportunity to submit comments on the proposed rule." Section 102(2)(a)(I) defines "rule" as: "the whole or part of each agency statement, regulation or code of general applicability that implements or applies law. . . ." Section 102(2)(b) provides that "rules" does not include, among others, (i) "rules concerning the internal management of the agency which do not directly and significantly affect the rights of or procedures or practices available to the public," and (iv) "forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory."
If a policy is to be "invariably applied across-the-board . . . without regard to individualized circumstances or mitigating factors, . . . [it] falls plainly within the definition of a 'rule' for [SAPA] purposes." (Matter of Schwartfigure, 83 NY2d at 301-302. See also Matter of Cordero v Corbisiero, 80 NY2d 771, 772-773 [1992].) The distinction that the Court of Appeals notes when identifying a "rule" is "between ad hoc decision making based on individual facts and circumstances, and rulemaking, meaning any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future." (Matter of Alca Indus, v Delanev, 92 NY2d 775, 778 [1999][internal quotation marks & citation omitted].) A rule is to be distinguished from an "interpretation or explanation of a preexisting rule," although there is not a "clear bright line" between the two. (Cubas v Martinez, 8 NY3d 611, 621 [2007].)
As discussed in the section of this decision on the regulatory framework, the Social Services Law and implementing regulations set forth in extensive detail across-the-board procedures for investigations, including time frames for investigation, requirements for posting of reports of concluded investigations, and instructions for the conduct of hearings in connection with enforcement proceedings. The IRP sets forth across-the-board procedures for notice to operators of their right to request a meeting with the Department to discuss violations, procedures for posting of reports of concluded investigations where a meeting is requested by an operator, and provisions as to the conduct of the meeting, including who may be present. The procedures of the IRP are thus applied without regard to individualized circumstances and appear to be substantially similar in kind to the procedures for inspections that have previously been implemented by the Department pursuant to SAPA.
Under these circumstances, although the court is constrained to dismiss the action for lack of standing, it is suggested that the Department should consider submitting the IRP for SAPA review. The SAPA process would afford a valuable opportunity for public comment on inspection procedures which affect the living standards of persons who are among the most vulnerable citizens of New York.
It is accordingly hereby ORDERED that defendants' motion to dismiss the complaint is granted.
This constitutes the decision and order of the court. Dated: New York, New York
April 17, 2013
_____________________
MARCY FRIEDMAN, J.S.C.