A Legal Settlement for the Mentally Ill, 14 Years in the Making, Nearly Falls Apart
55-year-old Maria Derner spent about eight years in adult homes. The first one was Rockaway Manor in Queens.
“Oh god, to tell you the truth, I really was not happy,” Derner said. “I think it added to my depression a lot more than anything else.”
Adult homes are like nursing homes but typically have no nurses or other skilled staff. A 2002 expose by the New York Times revealed that the homes were rundown, violent and subjected residents to unnecessary medical procedures. That led to a class action lawsuit and a legal settlement that required the state to move mentally ill residents out of the homes and into their own apartments, with services attached, if they wanted to leave. Derner jumped at the opportunity and so did her friend Barbara Rogers.
Today, both women live within blocks of each other in Staten Island. The two have similar back-stories. Derner suffers from serious anxiety and depression. Rogers has schizophrenia. They both spent years rotating between psychiatric hospitals and homeless shelters before getting discharged into adult homes.
Now they enjoy simple freedoms like being able to make a cup of tea at 2 a.m. when insomnia sets in, or choosing the food they eat.
“I like it when I’m in my house and I’m cooking,” said Rogers. “I make all kinds of things, oxtail peas and rice, roast turkey stuffed with stuffing.”
The class-action lawsuit alleged that adult homes violate a federal law that says the disabled, including the mentally ill, have the right to receive services in a community, surrounded by all types of people, not just others like them. Nearly 500 people have moved from adult homes since the settlement was signed.
Rogers says living more independently improved her mental health and made her less hostile.
“I can handle myself in a manner and a way where others can accept me,” she said. “I can show my case manager and my manager that I know how to make good decisions...which I wasn’t able to do before. You know, I needed help from everybody.”
It was expected that up to five times as many people would have transitioned into what’s called supportive housing by now. There’s been complaints that homes make it difficult to carry out the process. This spring, the entire settlement nearly blew up in a series of back-room legal maneuvers by the for-profit operators and their state regulators.
The settlement riled the operators because the state adopted rules that limit the number of mentally ill people allowed to live in their homes. The rules were meant to prevent the type of institutionalization that was discredited decades ago. The operators started suing to stop them.
Jota Borgmann, who represented the mentally ill as a lawyer from Mobilization for Justice, said at least four cases have been filed challenging the settlement. One of them involves an anonymous man who left an adult home in Coney Island to live on his own but then wanted to return. There are ways for the state to accommodate people like him, but instead his lawyer, Jeff Sherrin, sued Howard Zucker, the state health commissioner, and got a state judge in Albany to lift the restrictions on discharges into adult homes.
The judge’s action triggered a clause in the federal case that requires the parties to re-negotiate modifications – and if they can’t agree, the entire settlement gets thrown out.
“A restraining order was entered to address the situation of one man when it had this impact on 4,000 people,” said Borgmann
None of the lawyers involved told the Albany judge this could happen, including state health department lawyers, according to their own statements in court. They also didn’t tell the federal judge, Nicholas Gaurafis, who’s overseeing the settlement from his bench in Brooklyn. It was a serious breach of their duties, said Stephen Gillers, an NYU law professor and legal ethics expert.
“Both judges are doing something we call the administration of justice. They’re spending their time deciding motions and helping to resolve claims,” Gillers said. “By keeping them in ignorance you are interfering or prejudicing the administration of justice.”
In addition, instead of fighting the restraining order to protect the legal settlement it had agreed to, the health department agreed to the restraining order over lunches with Sherrin, according to documents uncovered by lawyers for the class.
Judge Gaurafis was appalled. In open court, he accused the state of pretending to support the settlement in his court while working to undermine it in Albany. He questioned whether the state and adult home operators were colluding to sabotage it.
Sherrin declined to be interviewed for this story, but via email, he wrote that the two sides were not colluding but negotiating. His lawsuits maintain that people with serious mental illness should be allowed to live wherever they want, including in an adult home.He argued that the restriction in the settlement amounts to discrimination.
The state also refused to talk, but a spokesman wrote that the state is working to meet the settlement requirements and also ensuring that people have a right to choose where they live. He called negotiations with Sherrin routine.
But what happened next was far from routine.
Normally, state agencies are represented by the Attorney General’s office when they get sued. But in a document written this February, Kent Stauffer, a high ranking lawyer from the Attorney General’s office, asked to be removed as counsel for the state. Stauffer accused state agencies of agreeing to the restraining order behind the back of the AG's office, and the AG's office wanted out. Gillers called the request "remarkable."
“He no longer had a client who was listening to him but was rather acting in a way that compromised his credibility before the federal court in Brooklyn,” Gillers said. “And quite properly, as any lawyer would, wished to extricate himself from that mess.”
Ultimately, the Attorney General’s office stayed on as counsel in federal court but not in the Albany case, where the state is now represented by a private law firm.
All the court room drama will ultimately determine the future of thousands of mentally ill people eligible to move out of adult homes, or who get discharged from psychiatric hospitals and other places each year and have no place to go. When left with no options, these are often the people seen deteriorating on the street.
The adult home industry argues the mentally ill people they serve are too high need and won’t do well living on their own. Lawyers for the class argue that their clients, like 44-year-old Dawn Peters deserve the chance to find out.
Peters has schizophrenia and lives at Oceanview Manor, an adult home in Coney Island. She’s been there four years and would like to move on.
“I just don’t want to lay there and just give up,” she said. “I want to keep it going, keep it going.”
Many people expect adult homes to be a temporary stop and then find themselves living there for decades. By then they’ve become so reliant on the homes, it’s difficult to leave. Their families often encourage them to stay and so do adult home staff.
Prior to Oceanview Manor, Peters lived in public housing, where she had a used washing machine and TV.
“I was really just beginning to survive,” she said. “Getting ready to rise up. I would love that chance again. And it would show me the dont’s and the do rights. That’s how I feel about it.”
According to an independent court monitor, only 10 out of 491 people who left adult homes have returned. Some transitions were rough — some residents had conflicts with roommates, others went without food stamps and medications — but the problems were eventually resolved, the monitor said. Peters will need several services in place before she leaves, including someone to help manage her money.
The federal judge wants the state to move faster to move people out. The settlement remains in place after both sides agreed to remove the clause that threw it into question.
In Albany, a judge will decide later this month whether the adult home industry can admit as many mentally ill patients as they want, without restriction.
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