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November 30, 1995

LYNDA BROOKS; VERNA HOBSON; GERALDINE BAVARO; HARRIET EATON; JANE DOE; and RICHARD DOE, as parents and guardians of, respectively, Michael Brooks; Theresa Hobson; Lisa Bavaro; Jill Eaton; Joe Doe; and Rachel Roe, Plaintiffs, against GEORGE E. PATAKI, as Governor of the State of New York; RUDOLPH W. GIULIANI, as Mayor of the City of New York; THOMAS A. MAUL; JOEL A. DVOSKIN; MARY GLASS; MARVA LIVINGSTON HAMMONS, as Commissioners of, respectively, the New York State Office of Mental Retardation and Developmental Disabilities; the New York State Office of Mental Health; the New York State Department of Social Services, and the New York City Human Resources Administration, Child Welfare Administration; and NEW YORK CITY, Defendants.

The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 In this action brought by eighteen severely disabled individuals with multiple handicaps and eight others who seek to intervene, Shafran-Torres v. Pataki, 95-CV-3803, this court, on November 16, 1995, issued a preliminary injunction ordering the Governor of the State of New York and his Commissioners of the Office of Mental Retardation and Developmental Disabilities (OMRDD), the Office of Mental Health (OMH), and the Department of Social Services (DSS) to fund present placements until orderly transfer of the plaintiffs from their current out-of-state placements to appropriate in-state placements is completed. Plaintiffs and intervenors are New York City residents who were placed in out-of-state residential facilities as children because no suitable in-state placements were available.

 By letter dated November 22, 1995, the State defendants have requested this court to stay the preliminary injunction, pending appeal. The application for a stay is denied. The State will, as explained below, suffer no real prejudice if the stay is denied, while the harm to the plaintiffs resulting from a stay would be palpable and unquestionable.


 The controlling test on whether a stay should be granted has been stated by the Second Circuit as follows:

A party seeking a stay of a lower court's order bears a difficult burden. We consider (1) whether the movant will suffer irreparable injury absent a stay; (2) whether a party will suffer substantial injury if the stay is granted; (3) whether the movant has established a substantial possibility, which need not be a likelihood, of appellate success; and (4) the public interest.

 United States v. Private Sanitation Industry Association of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1994) citing Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir. 1992).

 1. Irreparable Harm to Movant Absent a Stay

 The State argues that it will suffer irreparable harm through its inability to recoup the funds should it prevail on appeal, thereby diverting its "scarce resources in this time of fiscal austerity" from "other good uses." This argument has no merit and borders on the disingenuous. There is no dispute with regard to the following facts: the availability of budgeted and unexpended Transitional Care Funding (TCF) *fn1" intended for these and other City residents, the inability of this court to order retrospective relief and the necessity of institutionalization of the plaintiffs and the State's commitment to providing it.

 The 1995-96 State budget already contains funds for 60% of the costs of out-of-state care for the plaintiffs. None of these funds, budgeted to pay for out-of-state placements, have been used for the benefit of the plaintiffs from June 1 to the date of this court's order, a period of five and one-half months. In addition, under Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974), this court may not award retroactive relief. Therefore, in the remaining four and one half months of the State fiscal year, there should be more than ample funds to cover the full costs of placement of the greatly diminished group of New York City residents still in out-of-state placements. (Fifty-eight of the 108 eligible individuals identified by New York City in January 1995 were placed by OMRDD into in-state facilities prior to June 1, 1995.) OMH has apparently failed to place any of the unspecified number of persons for which it is responsible. (OMH is responsible for eight of the named plaintiffs and at least one of the intervening plaintiffs.) Further, the State represents in its letter that it is "committed to offering and providing appropriate in-State placements."

 These facts do not demonstrate a financial (or any other) hardship for the State. Funding for plaintiffs' out-of-state placements will be replaced by comparable funding for their in-state placements (which the State is committed to providing), either precipitously, if the State were to prevail, or, pursuant to this court's order, when transfer plans based on professional judgment are developed, carefully reviewed, and implemented. The incremental cost, if any, of out-of-state residential placement above that of in-state residential placement for the plaintiffs is not likely to be substantial. No budgetary basis for preferring in-state to out-of-state placements has been asserted by the State defendants nor was one given in the TCF Statute Legislative History as a reason for gradually ending out-of-state placements. See Tr. at 48, Legislative History: Assembly Mem., City Mot. Ex. D at 000012. In fact, plaintiffs have alleged, and State defendants have not contested, that out-of-state placements were in some instances, at least, substantially less costly than in-state placements. Pltf. Mot. Ex. 8, Brooks Aff.

 In addition, any incremental costs that may accrue would be incurred only for the relatively limited time required to propose, review and accomplish the plaintiffs' transition to appropriate in-state placements. OMRDD asserted, in its opposition to plaintiffs' state court action for a declaratory judgment, that "a declaratory judgment concerning a potential funding gap should not be permitted because it is (a) premature and thus not a justiciable controversy . . ." and "because OMRDD is presently seeking to place the individuals, including petitioners, now receiving that funding in appropriate in-state facilities prior to [June 30, 1995], the 'potential funding gap' may never occur." State Mem. of Law at 2, 6. Although this has been proved to be overly optimistic, nonetheless, as noted above, OMRDD did succeed, by June 1995, in transferring to in-state placements fifty of the 108 individuals in out-of-state placement identified by the City in January 1995. Instead of proceeding with the transfer process that it had embarked upon and promised that it would follow, for some inexplicable reason, the State brought the entire procedure to an abrupt end six weeks after the City withdrew from the program.

 2. Substantial Injury to Non-Moving Party if Stay Granted

 The State's assertion that a stay will not injure plaintiffs "because the State defendants are committed to offering and providing appropriate in-State placements" ignores the harm that may result from abrupt transition and provides no basis for evaluating how "appropriate" the offered placements are. Testimony and affidavits presented by the plaintiffs certainly raised serious questions about the "appropriateness" of placements offered by OMH during the crisis at the beginning of July. *fn2" It should be noted that plaintiffs' current placements were approved by the State of New York only upon a showing that there were no appropriate placements for them within the state.

 It is unquestionable that retaining the status quo with respect to plaintiffs' current placements is the only way to protect the plaintiffs' due process rights to necessary safe conditions and freedom from undue restraint, pursuant to Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) and Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1246 (1984). Balancing the very lives and functioning of these fragile individuals ...

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