Qualifying For Handicapped Permit: Diabetes not Approved Matter of Jacobson v New York City Dept. of Transp.

In this Article 78 proceeding, petitioner, who undisputedly has type 1 diabetes, challenges the determinations of the New York City Department of Transportation (DOT) and the New York City Department of Health and Mental Hygiene (DOHMH) denying his application for a Parking Permit for People with Disabilities (PPPD). He alleges that the determinations made by these two entities were arbitrary and capricious and contrary to law. He seeks to have a PPPD issued to him.

BACKGROUND

Petitioner submitted an application dated April 23, 2009 for a PPPD, which would allow him special parking privileges in New York City. His application was based on the fact that he undisputedly has type 1 diabetes. In accordance with DOT regulations, petitioner was seen by a doctor appointed by DOHMHwho was contracted to perform evaluations for the DOT for PPPDs. Based on the doctor’s examination, petitioner’s request was denied by letter dated June 27, 2009.

By letter dated June 30, 2009, petitioner subsequently appealed the denial. In his appeal letter, petitioner argued that he required the use of a private vehicle for transportation because, in order to effectively manage his diabetes, he must carry supplies on his person at all times, and he asserted that it is too much to carry on public transportation. (Verified Answer, Ex. A.) He also indicates that according to the Americans with Disabilities Act (ADA), type 1 diabetes is a permanent disability. His primary reason for requesting a PPPD is that he has allegedly recurring periods of hypoglycemia whereby his “ability to move or be coherent is severely restricted.” (Id.) He states that when he is suffering from hypoglycemia he must pull over and treat the condition immediately, and sometimes must remain pulled over for upwards of 30 minutes while stabilizing his hypoglycemia. As a result of this, he claims that his mobility can be impaired at any moment. (Verified Petition ¶ 6.) His appeal was denied by letter dated September 22, 2009.

In response to the denial of his appeal, petitioner wrote a letter dated December 1, 2009 to the Deputy Commissioner of the DOHMH appealing the decision. He appealed on the same grounds as he did on the first appeal. (Verified Answer, Ex. A.) Despite the fact that the DOT’s denial letter of September 22, 2009 stated that petitioner may not appeal the final decision, the DOHMH reviewed the medical information provided by petitioner and the results of the examinations in response to his December 1 letter. (Id.) The DOHMH again determined that petitioner did not qualify for a PPPD. (Id.)

By application dated June 24, 2010, petitioner re-applied for a PPPD on the ground of his type 1 diabetes. On August 31, 2010 petitioner was examined by another doctor, Dr. Sheila Horn, D.O., appointed by DOHMH. Based on her examination of petitioner, she denied disability certification. She determined that petitioner did not have a permanent disability that seriously impaired his mobility. (Verified Answer, Ex. C.)

By letter dated September 14, 2010, DOT informed petitioner of its denial of his second PPPD application. The letter stated that

“the New York City physician at the Department of Health and Mental Hygiene (DOHMH) or its designee has ruled that your disability does not qualify for a New York City Parking Permit for People with Disabilities. The Department of Transportation may not issue a New York City disability parking permit without an approval certification by DOHMH or its designee.” (Id., Ex. D.)

By letter dated October 4, 2010, petitioner appealed this second denial on the grounds that Dr. Horn was a “DO and not an MD.” (Id., Ex. E.) Additionally, DOHMH received inquiries from Council Member Gale A. Brewer’s office on behalf of petitioner. (Id., Ex. F.)

In response to his appeal, petitioner was scheduled for another examination by Dr. Ashok K. Sinha, MD, which was held on March 8, 2011. Dr. Sinha noted that petitioner did not have any difficulty walking, but that petitioner had been in a motor vehicle accident and reported that he occasionally experienced lower back pain as a result. (Id., Ex. G, H.) Dr. Sinha requested that petitioner submit medical documentation regarding the accident. Dr. Donald Milione, D.C. submitted the requested documents. (Id., Ex I.) Dr. Sinha reviewed the documents and determined that petitioner’s mobility had not been impaired as a result of the motor vehicle accident. (Id., Ex H.) By letter dated March 21, 2011, DOT notified petitioner that his second appeal had been denied. The denial letter again stated that the “New York City physician…has ruled that your disability does not qualify for a New York City Parking Permit for People with Disabilities.” (Id., Ex K.) By Notice of Petition and Verified Petition dated July 12, 2011, petitioner commenced this Article 78 proceeding.

I.

The DOHMH and the DOT are administrative agencies and thus have broad discretionary power when making determinations on matters within their purview. Pursuant to CPLR 7803, an agency’s determination may be reviewed only if it was arbitrary and capricious, an abuse of discretion or contrary to law. “[T]he only issue for consideration by the court is whether the administrative determination… was arbitrary and capricious or an abuse of discretion.” (Matter of Fondacaro v Kelly, 234 AD2d 173, 177 [1st Dept 1996].) “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts…the proper test is whether there is a rational basis for the administrative orders.” (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974].) “A reviewing court in passing upon this question of law may not substitute its own judgment of the evidence for that of the administrative agency, but should review the whole record to determine whether there exists a rational basis to support the findings upon which the agency’s determination is predicated.” (Matter of Purdy v Kreisberg, 47 NY2d 354, 358 [1979].) Moreover, “[i]t is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.” (Matter of Howard v Wyman, 28 NY2d 434, 438 [1971].)

II.

The DOT is authorized by the New York City Charter § 2903 (a) (15) (a) to grant PPPDs to persons who have a proven disability within the parameters set forth in Chapter 16 of Title 24 of the RCNY. The Charter grants the commissioner of the DOT authority to issue a PPPD to a

“New York City resident who requires the use of a private automobile for transportation… when such person has been certified by the department of health and mental hygiene or a provider designated by the department…who shall make such certification in accordance with standards and guidelines prescribed by the department or the department of health and mental hygiene, as having a permanent disability seriously impairing mobility.” (NYC Charter § 2903 [a] [15] [a].)

24 RCNY §16-01 provides that “[t]his rule establishes criteria for the issuing of Special Vehicle Identification Parking Permits [SVIPP], also known as Parking Permits for People with Disabilities [PPPD], pursuant to § 2903[a][15][a] of the New York City Charter, to or on behalf of disabled persons who have a permanent disability seriously impairing mobility and authorizes the use of physicians designated by the Department [of Health and Mental Hygiene]…to make the decisions as to the eligibility of such persons for these special permits.”

The regulations require an applicant for a PPPD to be examined by a doctor designated by DOHMH to perform examinations for PPPDs.

“The Department [of Health and Mental Hygiene] may use physicians, made available for this purpose by the Health & Hospitals Corporation pursuant to a contract entered into by the Department with the Health & Hospitals Corporation and the Department of Transportation, to perform medical certifications of Special Vehicle Identification Parking Permit applications submitted to the Department of Transportation. Such physicians…shall be qualified to certify persons for a Special Vehicle Identification Parking Permit as possessing a “permanent disability seriously impairing mobility.” (24 RCNY § 16-03.)

Doctors so designated certify that the applicant either does or does not have a “permanent disability seriously impairing mobility.” “The Physician Certification Form shall state that, after a review of the SVIPP application and any accompanying documentation furnished by the applicant’s personal physician, it has been determined that the applicant does or does not have a permanent disability seriously impairing mobility.'” (24 RCNY § 16-04.) These doctors then report their findings to the DOT which either issues the permit or denies the application.

24 RCNY § 16-02 sets forth conditions which qualify as permanent disabilities which seriously impair mobility. The conditions listed are ones which seriously affect a person’s physical ability to move on a day to day basis. They include conditions such as

“(a) Complete monoplegia or paraplegia of lower extremities.

(b) Above ankle amputation of lower extremities, at the discretion of the examining physician. Well-fitted below the knee prosthesis with normal ambulatory gait should not routinely be regarded as mobility impaired.

(c) Arthritis of two major weight bearing joints of the lower extremities with clearly substantial X-rays changes and/or MRI changes, such as loss of joint space, severe degenerative changes plus one or more of the following:

(1) Objective finding of sizable effusion of joint(s) detected by clinical examination

(2) Gross instability or valgus/varus deformities of joint(s) detected by clinical examination

(3) Ankylosis or contracture of major joint(s) to such a degree as to preclude stair climbing. Joint replacement does not qualify by itself unless accompanied by one or more of the above criteria

(d) Severe atrophy of one or both lower extremities (or discrepancy in leg lengths greater than three inches) which clearly and seriously impairs mobility.

(e) Spinal column abnormalities of severe degree with unequivocal motor involvement not amenable to bracing or surgery which would seriously and permanently impair mobility. X-ray evidence of arthritis of the spine with or without pain is insufficient reason for approval. CT Scan, MRI and/or EMG results must be available for review prior to a decision.

(f) Neurological conditions, such as multiple sclerosis, myasthenia gravis, myopathies, Parkinsonism and Alzheimer’s Disease, affecting both lower extremities that would seriously impair mobility. Objective documentation, (i.e. MRI, EMG, nerve conduction studies, et al.) must be submitted, where appropriate, by the applicant.

(g) Cardiovascular and peripheral vascular disease of severe degree resulting in mobility impairment. Cardiovascular disease must meet ADA Class III or IV criteria; stress test, echocardiogram, Doppler or other diagnostic studies must support evidence of significant pathology and/or disability.

(h) Pulmonary disease with documented evidence of severe obstructive or restrictive disease on pulmonary function testing. Evidence of use of supplemental oxygen for more than twelve hours per day may also be acceptable evidence of impairment.

(i) Renal insufficiency requiring frequent renal dialysis with significant objective finding of neural or hemic abnormalities.

(j) Malignancies of any category that require chemotherapy and/or radiation therapy or other medical interventions which continuously and seriously impair mobility.

(k) Post-polio syndrome that on examination clearly and seriously impairs mobility.

(l) AIDS related conditions, including peripheral neuropathy, wasting syndrome, dementia, which clearly seriously impair mobility on physical examination.

(m) Mental conditions resulting in mental retardation of a severe nature documented by appropriate psychological evaluation, which permanently and seriously impair mobility.

(n) Congenital diseases of any type that clearly result in permanent serious mobility impairment, including cerebral palsy, spina bifida, and Down syndrome.

(o) Any other permanent disability that in the specific circumstances, would seriously impair the mobility of the applicant.” (24 RCNY §16-02.)

Petitioner’s condition, type 1 diabetes, is not listed in 24 RCNY § 16-02 (a)-(n), and therefore, is not among the conditions defined as a permanent disability seriously impairing mobility, neither is hypoglycemia.

Petitioner argues that his type 1 diabetes falls under catch-all provision in 24 RCNY § 16-02 (o), “[a]ny other permanent disability that in the specific circumstances, would seriously impair the mobility of the applicant.” Respondent does not dispute that when petitioner suffers from hypoglycemia, his ability to move is impaired.

Although petitioner’s type 1 diabetes is a permanent condition, the record indicates that his type 1 diabetes does not seriously impair his mobility on a continuous basis. Petitioner was examined several times by doctors designated by DOHMH to perform examinations for PPPDs. Each of these doctors found that petitioner’s type 1 diabetes did not affect his motor skills. Dr. Sheila Horn noted that the only problem petitioner exhibited was an inability to walk on his toes. (Verified Answer, Ex. C.) Although respondents do not dispute that petitioner’s hypoglycemia apparently seriously impairs petitioner’s mobility, petitioner’s intermittent, manageable episodes of hypoglycemia are not a permanent condition like the other conditions listed in the regulations that qualify as disabilities seriously impairing mobility. Therefore petitioner’s argument that his type 1 diabetes is covered by 24 RCNY § 16-02 (o) is unavailing.

Petitioner argues that because of his condition he must carry equipment with him at all times to manage his diabetes. He argues that he cannot travel by public transportation because his equipment is very cumbersome, therefore, he must travel by personal vehicle. However, the DOHMH determined that petitioner “DOES NOT REQUIRE USE OF A PRIVATE VEHICLE FOR TRANSPORTATION.” (Verified Answer, Ex. A.) On the basis of that determination and the examination by the doctor which showed that petitioner’s mobility is not impaired by his disability, the DOT informed petitioner that “the New York City physician a the Department of Health (DOH) or its designee, the Bellevue Hospital Center (BHC), has ruled that your disability does not qualify for a New York City Parking Permit for People with Disabilities. The Department of Transportation may not issue a New York City disability parking permit without an approval certification by DOH or BHC.” (Id.)

Thus, it was determined that it is unnecessary for petitioner to travel by private vehicle and therefore, he is ineligible for a PPPD.

The agency’s final determination denying petitioner’s PPPD was reasonable and was supported by the record taken as a whole. The DOT may issue PPPDs only if the applicant was certified by an examining physician contracted by the DOHMH to perform examinations for PPPDs as having a “permanent disability seriously impairing mobility.” Petitioner was examined by several doctors contracted to perform examinations for PPPDs. Based on the examinations, none of the doctors who examined petitioner certified him as having a “permanent disability seriously impairing mobility.” On the basis of the information presented by the examining physicians, DOT denied petitioner’s application for a PPPD and his subsequent appeal. This decision was rational and reasonable because it was based on objective information provided by doctors authorized to perform examinations for PPPDs. Thus, his applications were denied, as were his subsequent administrative appeals. The decisions to deny petitioner’s applications and appeals were rational and reasonable given that the doctors who examined petitioner did not certify him as having a “permanent disability seriously impairing mobility” as required by the NYC Charter § 2903 (a) (15) (a) and Chapter 16 of Title 24 of the RCNY.

Petitioner further argues that his condition is considered a disability by the Americans with Disabilities Act (ADA) and cites the ADA and Fraser v Goodale, 342 F3d 1032 (9th Cir 2003), for the proposition that type 1 diabetes is a disability that limits one or more major life activities. This argument fails. PPPDs are not issued to applicants based on the definition of disability in the ADA, but instead are issued based on criteria established by 24 RCNY §16-02. Respondents do not argue that type 1 diabetes is not a permanent disability. However, based on the criteria established by the DOT and the DOHMH, petitioner does not qualify for a PPPD because his disability does not seriously impair his ability to move on a day to day basis, as required by regulations.

CONCLUSION

For the forgoing reasons, it is ADJUDGED, that the petition is denied and the proceeding is dismissed.