OPINION & ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Four months after initiating this case without seeking emergency relief, Plaintiffs filed a motion for a preliminary injunction. Plaintiffs are individuals with intellectual and developmental disabilities who currently live in institutions and are awaiting placements in community residences, along with other Medicaid-funded support services. There is no dispute that Plaintiffs are free to leave the institutions, although they might not receive appropriate care if they do so. Plaintiffs assert statutory and constitutional claims against Defendants based on their failures thus far to find placements for Plaintiffs. Defendants are the New York State Department of Health (“DOH”), Mary Bassett in her official capacity as Commissioner of DOH, the New York State Office for People with Developmental Disabilities (“OPWDD”), and Kerri Neifeld in her official capacity as Commissioner of OPWDD. Both sides agree that each plaintiff is eligible and entitled to move to a community-based Certified Residential Opportunity (“CRO”) and receive services funded by the Medicaid Home and Community Based Services Waiver (“HCBS Waiver”). Once an individual is deemed eligible for a placement in a community residence, OPWDD makes referrals on behalf of that individual to a network of voluntary and state-operated residential providers. A key fact in this case is that a residential provider, whether voluntary or state-operated, must agree to accept a particular individual. The gravamen of Plaintiffs’ case is that Defendants have taken an unreasonably long time to provide the placements and services to which Plaintiffs are entitled. As discussed below, the Medicaid Act requires States to provide services to those who are eligible with reasonable promptness. Plaintiffs allege that there are thousands of vacancies in community residences and that OPWDD has an enormous budget. Yet Plaintiffs have remained in institutions, awaiting placements, for long periods — from eight months to, in one case, five years — after Defendants deemed Plaintiffs eligible to move. Plaintiffs contend it is unreasonable of Defendants to maintain a system in which providers with vacancies, including state-operated providers, may refuse to accept individuals for placements. Defendants respond that OPWDD has made diligent efforts to place each plaintiff in an appropriate community residence. Defendants offer evidence that Plaintiffs present with complex clinical needs, behavioral challenges, medical requirements, and geographic preferences that must be taken into account. In many instances, a provider has concluded that it could not accept a given plaintiff and keep its other residents safe. Defendants stress that meeting Plaintiffs’ demand for immediate placements in community residences would require a fundamental alteration of the State’s system because it would require the State to override providers’ professional judgments. As discussed below, the law is clear that an individual with a disability is entitled to receive services in the most integrated setting appropriate to his or her needs, but a State is not required fundamentally to alter the nature of its program to accommodate that individual. Defendants also stress that their placement efforts are ongoing. Indeed, Defendants have found placements for three of the ten named plaintiffs who have appeared in this action. For the reasons set forth below, Plaintiffs’ motion for a preliminary injunction is DENIED. However, it is not reasonable for Defendants to fail indefinitely to find placements for Plaintiffs. Accordingly, by January 30, 2023, Defendants must file an affidavit detailing what further steps they have taken to place each plaintiff since November 2022. I. BACKGROUND A. Procedural History 1. Plaintiffs Initiate this Action Without Seeking Emergency Relief. Plaintiffs initiated this putative class action by filing a complaint on June 16, 2022 [ECF No. 1]. Plaintiffs did not seek emergency relief at that time. Nor did Plaintiffs assert constitutional claims when they filed the original complaint. As noted above, most of the plaintiffs are individuals with intellectual and developmental disabilities, although an organization named Disability Right New York (“DRNY”) is also appearing as a plaintiff. Several of the individual plaintiffs are appearing through a next friend. Shortly after filling the original complaint, Plaintiffs filed an unopposed motion for the individuals with disabilities and their next friends to proceed anonymously, and the Court granted that motion [ECF Nos. 30, 42]. The original complaint named as plaintiffs: (1) T.C., appearing through his next friend D.S.; (2) A.H., appearing through her next friend E.H.; (3) R.D., appearing through her next friend M.D.; (4) J.D., appearing through his next friend D.D.; (5) H.L.; (6) A.B.; (7) J.S.; and (8) M.L, as well as DRNY. On August 12, 2022, Defendants filed a pre-motion letter seeking leave to file a motion to partially dismiss the original complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the claims against the individual defendants are duplicative, DRNY lacks standing, and Plaintiffs fail to state claims under the Medicaid Act [ECF No. 31]. Plaintiffs first filed a letter responding to Defendants’ arguments in the pre-motion letter [ECF No. 32]. Plaintiffs then filed another letter informing the Court of their intention to file an amended complaint as of right [ECF No. 34]. 2. Plaintiffs File the Amended Complaint. On October 14, 2022, Plaintiffs filed the Amended Complaint [ECF No. 35 ("AC")]. The Amended Complaint removed Plaintiffs T.C. and M.L. from this lawsuit because — as Plaintiffs later acknowledged — OPWDD had by then placed T.C. and M.L. in community residences. The Amended Complaint added two new plaintiffs, J.C.M. and L.P., appearing through her next friend C.P. Plaintiffs also added two constitutional claims, asserting that Defendants are denying Plaintiffs a hearing and imposing restraints on Plaintiffs’ liberty in violation of the Due Process Clause of the Fourteenth Amendment. AC
432-445. Plaintiffs assert nine causes of action in the Amended Complaint. First, Plaintiffs allege that Defendants’ failures thus far to provide Plaintiffs, and a putative class, with Certified Residential Opportunities and HSBC Waiver services (which cannot be provided while Plaintiffs remain in institutions) violate the “reasonable promptness” provision of the Medicaid Act, 42 U.S.C. §1396a(a)(8), and 42 U.S.C. §1983. AC
