Qualifying for handicapped permit: diabetes not approved: matter of Jacobson v New York City Dept. of Transp.

• Author: Rogak, Lawrence N.

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 DOHMH who 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 he 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...