                                In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 14-2850
ILLINOIS LEAGUE OF ADVOCATES FOR THE DEVELOPMENTALLY
DISABLED, et al.,
                                      Plaintiffs-Appellants,

                                  v.

ILLINOIS DEPARTMENT OF HUMAN SERVICES, et al.,

                                                Defendants-Appellees.

                     ____________________

             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 13 C 1300 — Marvin E. Aspen, Judge.
                     ____________________

  ARGUED SEPTEMBER 9, 2015 — DECIDED OCTOBER 15, 2015
                ____________________

   Before POSNER, MANION, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge. This lawsuit charges violations of
42 U.S.C. § 12132, a provision of Title II of the Americans
with Disabilities Act which states that “no qualified individ-
ual with a disability shall, by reason of such disability, … be
subjected to discrimination by any [public] entity,” and of
2                                                     No. 14-2850


Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which
has identical application to this case. See Jaros v. Illinois Dept.
of Corrections, 684 F.3d 667, 671–72 (7th Cir. 2012).
    The suit was filed two years ago on behalf of the resi-
dents of Warren G. Murray Developmental Center, an SODC
(state-operated developmental center). Located in Centralia,
a small city in south-central Illinois, the Murray Center is
one of seven SODCs in the state. Its residents (approximately
200 in number) are severely disabled, some having the men-
tality of an infant or toddler. Many not only are develop-
mentally disabled but also have serious behavioral problems
(often aggressive, or self-destructive as in the case of pica
disorder—attempting to eat inedible objects).
    The state’s seven SODCs have in the aggregate about
1800 residents. A much larger number of persons (roughly
10,000) with severe developmental disabilities live in com-
munity-based (also called community-integrated) facilities,
which are houses or apartments in residential settings that
can accommodate between one and eight residents. The Di-
vision of Developmental Disabilities in the Illinois Depart-
ment of Human Services provides services (such as housing
and medical care) to approximately 25,000 developmentally
disabled persons. Another 23,000 or so are on a waiting list
to receive services, of whom 6000 are considered to be in
emergency situations yet do not receive even essential ser-
vices from the State of Illinois.
     Since 2012 Illinois has been trying to shift the residents of
the SODCs to community-based facilities, in accordance
with a national trend—and a dramatic one, which has left
Illinois a laggard outlier, with a higher number of SODC res-
idents than any states except New Jersey and Texas. In 2013
No. 14-2850                                                      3


Illinois had the second lowest percentage of developmental-
ly disabled persons living in apartments that house six or
fewer persons (Mississippi had the lowest percentage), while
13 states were no longer funding state-operated institutions
designed to house 16 or more persons. David Braddock et
al., The State of the States in Intellectual and Developmental Dis-
abilities: Emerging from the Great Recession 21, 27, 31 (10th ed.
2015).
     This trend that Illinois seeks to join reflects the financial
distress of many states (of which Illinois may be the most
distressed)—community-based facilities are cheaper than
SODCs—but also a belief, supported both by evidence and
by academic studies, that even persons who are severely
disabled mentally or behaviorally or both do better in com-
munity-based facilities than in SODCs because they feel less
isolated. The district judge in this case noted for example
that “community programs are considered the best practice
standard by the majority of professionals in the field. Com-
munity programs have been developing for at least 50 years
and are not a fad” (citations omitted). The judge cited testi-
mony that overall “people with intellectual disabilities do
better in community programs.” For illustrative academic
studies that support these conclusions see Charlie Lakin et
al., “Behavioral Outcomes of Deinstitutionalization for Peo-
ple with Intellectual and/or Developmental Disabilities:
Third Decennial Review of U.S. Studies, 1977–2010,” 21(2)
Policy Research Brief 1 (2011); Roger J. Stancliffe et al., “Satis-
faction and Sense of Well Being Among Medicaid ICF/MR
and HCBS Recipients in Six States,” 47 J. Intellectual & Devel-
opmental Disabilities 63 (2009); Marguerite Brown et al., Eight
Years Later: The Lives of People Who Moved from Institutions to
Communities in California (2001); Valerie J. Bradley et al., Re-
4                                                  No. 14-2850


sults of the Survey of Current and Former Belchertown Residents
and Their Families: The Belchertown Follow-Project (1992); Sher-
yl A. Larson & K. Charlie Lakin, “Deinstitutionalization of
Persons with Mental Retardation: Behavior Outcomes,” 14 J.
Association for Persons with Severe Handicaps 324 (1989); James
W. Conroy & Valerie J. Bradley, The Pennhurst Longitudinal
Study: A Report of Five Years of Research and Analysis 48–65
(1985); see also U.S. Senate Comm. on Health, Education,
Labor and Pensions, Separate and Unequal: States Fail to Fulfill
the Community Living Promises of the Americans with Disabili-
ties Act (2013); National Council on Disability, Deinstitution-
alization: Unfinished Business (2012).
    One reason the residents of community-based facilities
do better, at least on average, is less crowding. Fewer than 20
percent of the Murray Center’s residents have their own
room, and some rooms house as many as four residents. A
resident of a community-based facility is more likely to have
his or her own room. Residents of community-based facili-
ties also have readier access to stores, restaurants, movie
theaters, parks, etc. than do residents of SODCs. They may
be too disabled to visit any of these places by themselves,
but they benefit emotionally from being able to go out into
the community—expand their horizons, as it were—albeit
under close supervision by nurses or other medical staff, ra-
ther than being isolated in a large medical center. To be “in-
stitutionalized,” whether in a prison, a madhouse, or a
“state-operated developmental center,” is to be frozen out of
society—a situation that even a severely developmentally
disabled person can experience as deprivation. See Olmstead
v. L.C. ex rel. Zimring, 527 U.S. 581, 600–01 (1999).
No. 14-2850                                                   5


    Not that community-based facilities are a panacea. The
plaintiffs presented evidence that some community-based
facilities have problems of short staffing and staff mistakes.
But the record contains evidence of such problems at Murray
and other SODCs, as well.
    Early in 2012 Illinois launched a program to reduce the
number of residents of SODCs by roughly a third. Two of
the eight SODCs would be closed—and one of them was to
be Murray. Scheduled to be closed in 2013, it remains open
only because of this litigation. The other one scheduled to be
closed, Jacksonville Developmental Center, has closed.
    What will happen to the Murray residents when, as is
bound to happen sooner or later, Murray is closed? Most
will be placed in community-based facilities; those too disa-
bled or otherwise unfit to reside in such facilities will be
transferred to one of the remaining SODCs. Each current
Murray resident is to be “assessed” for his or her suitability
for community-based versus institutional residence. One
goal of this lawsuit is to stop the assessment process. All res-
idents of the Murray Center have a guardian (usually a rela-
tive of the resident), and a number of the guardians don’t
want their wards transferred to community-based facilities.
They are the plaintiffs, and they moved the district judge to
issue a preliminary injunction against the assessment and
transfer of the plaintiffs’ wards. The judge denied the mo-
tion, precipitating this appeal. 28 U.S.C. § 1292(a)(1). He not-
ed that a resident will not be transferred to a community-
based facility without his or her guardian’s consent; and
since Murray has not been closed, this means that any resi-
dent will continue, for the time being at any rate, to reside
there if that is the guardian’s wish. If and when Murray is
6                                                  No. 14-2850


closed, other SODCs will remain and there will be places in
them for those residents of the Murray Center whose guard-
ians don’t think them suited to reside in community-based
facilities. There will be places for such wards because most
residents of SODCs will be transferred to community-based
facilities (that’s the trend, remember), leaving room in the
remaining SODCs for those few whose guardians don’t
think they are fit for community placement.
     The plaintiffs say that residents of community-based fa-
cilities are treated worse on average than residents of institu-
tional facilities. But they have not substantiated their claim
by a systematic comparison of residents of the two types of
facility. Cf. Amundson ex rel. Amundson v. Wisconsin Dept. of
Health Services, 721 F.3d 871, 874–75 (7th Cir. 2013). Their
claim is undermined, indeed vitiated, by their refusal to rec-
ognize a tradeoff between possibly better staff assistance in
an institutional facility and the greater freedom—the closer
approach to normality—of life in a community-based facili-
ty. They’ve also failed to substantiate their claim that their
wards are mistreated relative to individuals with other types
of disability. Remember that the plaintiffs have been granted
veto power over the transfer of their wards to community-
based facilities. True, they deny this, but the district court
explained that while the plaintiffs “contend that DHS [the
Illinois Department of Human Services] is forcing them to
accept [community-based] placements as the only choice,
stripping them of their right to consent to such placements[,]
on the whole … the facts in the record—including uncontro-
verted written evidence—do not support a finding that De-
fendants are impeding or would impede Plaintiffs’ right to
consent to, or reject, community placement” (emphasis add-
ed). Their “right to reject” is properly regarded as in lieu of
No. 14-2850                                                 7


preliminary relief—relief now even though the litigation is
continuing in the district court. The guardians’ veto power
over the transfer of their wards to community-based facili-
ties is a compelling ground for affirming the district court’s
denial of a preliminary injunction; with no danger of irrepa-
rable harm, which is to say harm that can’t be prevented by
the final judgment, there is no need or occasion for the issu-
ance of a preliminary injunction.
    We are mindful that as the population of the Murray De-
velopmental Center shrinks in consequence of the decision
of some (maybe many) guardians to permit their wards to be
transferred to community-based facilities, a point will be
reached at which the cost of operating the Center will exceed
the benefits because there will be so few residents remain-
ing. Keeping the Center open will then be like trying to
maintain a 100-room hotel only one room of which is occu-
pied. And so the Center will be closed and the remaining
handful of residents transferred either to other SODCs or to
community-based facilities. That will not be a discriminatory
outcome. The handful not transferred until Murray closes
will not be treated worse than residents transferred earlier.
The plaintiffs concede that they have no right to their wards’
being housed at Murray—that they would have no cause to
complain were their wards to be transferred to another
SODC that provided services equivalent to those provided
by Murray.
   There is more that is wrong with the appeal than the ab-
sence of any showing of discrimination. To obtain a prelimi-
nary injunction the movant must show not only that its de-
nial will cause harm to him that a final judgment will not be
able to rectify—in other words, as we noted earlier, that the
8                                                  No. 14-2850


denial will cause irreparable harm—but also that this harm,
discounted by the probability of the plaintiff’s failing to ob-
tain a favorable final judgment, will exceed the harm that the
preliminary injunction would do to the defendant. See Ro-
land Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380,
386–88 (7th Cir. 1984). Let’s pause on this second require-
ment for a moment. Suppose the plaintiff has a 60 percent
chance of obtaining a favorable final judgment, and will suf-
fer an irreparable harm of $1 million if his motion for a pre-
liminary injunction is denied. There is therefore a 60 percent
chance that if the preliminary injunction is granted he will
justly be spared a $1 million loss, and so the injunction
should be granted unless the defendant can show that he is
at a higher risk of loss than the plaintiff if the injunction is
granted. Suppose that if it’s granted the defendant will lose
$2 million. We know there’s a 40 percent chance that the de-
fendant is in the right (for remember that we are assuming
that the plaintiff has a 60 percent chance of prevailing in the
litigation). That means that if the preliminary injunction is
granted he will suffer an expected unjust loss of $800,000
(40% of $2 million), which will exceed the plaintiff’s parallel
expected unjust loss if the preliminary injunction is denied,
which is $600,000 (60% of $1 million). Therefore the prelimi-
nary injunction should be denied.
    We don’t have neat numbers in this case that would ena-
ble us to measure loss and probability, as in our hypothetical
case. But we don’t need them. The plaintiffs are seeking to
enjoin the state from assessing the capacity of residents of
the Murray Center to reside in community-based facilities in
the absence of guardian consent to the assessment, and to
prevent Murray from being closed during this litigation. If
granted, the injunction would impose costs on the state, be-
No. 14-2850                                                  9


cause the institutional facilities are more costly than the
community-based ones, as we’ve said. In addition, unas-
sessed residents of Murray could not be offered transfer to
community-based facilities, for the purpose of the assess-
ment is to determine what kind of facility the disabled per-
son requires. (Whether a resident could be transferred to an-
other SODC without an assessment is unclear.)
    So even if a preliminary injunction were limited to en-
joining assessment, it could prevent Murray from being
closed though only a handful of residents remained, and
though on average developmentally disabled persons as-
sessed as being suitable for residence in a community-based
facility would be better off if in such a facility than if they
remained in an institution. So there would be costs to the
state (the costs of continuing to operate Murray) if a prelimi-
nary injunction were granted, and these costs could not be
recouped. But it doesn’t seem that refusing to issue the in-
junction can impose costs on anyone, because the guardians
(the plaintiffs) remain empowered to prevent their wards
from being transferred to community-based facilities even if
the “assessors” conclude that those wards would be better
off in such facilities. The grant of the preliminary injunction
sought by the plaintiffs would impose irreparable harm on
the state, but, as we’ve seen, the denial of it would impose
no irreparable harm on the plaintiffs, thus making the case
against the injunction airtight.
    The plaintiffs’ refusal to allow their wards to be assessed
during this litigation also collides with 42 U.S.C.
§ 1396n(c)(2)(B), which provides that a state accepting feder-
al funds under section 1915(c) of the Social Security Act,
which waives some limitations imposed by the Medicaid Act
10                                                 No. 14-2850


on home and community-based provision of medical ser-
vices, must “provide … for an evaluation of the need for in-
patient hospital services.” See also 59 Ill. Admin. Code
§ 120.80(a).
    Yet the plaintiffs claim that the Medicaid Act entitles
them to insist that their wards remain in an SODC. (Because
neither party argues otherwise, we assume for purposes of
this appeal that 42 U.S.C. § 1983 supplies a private right of
action to enforce claims under the relevant provision of the
Act, which is 42 U.S.C. § 1396n(c)(2)(C); cf. Bertrand ex rel.
Bertrand v. Maram, 495 F.3d 452, 456–58 (7th Cir. 2007).) The
claim is academic, since as we’ve explained the guardians
can (and this regardless of the Medicaid Act) insist that their
wards remain in an SODC (though they cannot insist on a
particular SODC). It is also meritless. The Act allows a state
to provide community-based living arrangements to people
who would otherwise be institutionalized if the state applies
for and receives a waiver under the statutory provision that
we cited earlier. See Radaszewski ex rel. Radaszewski v. Maram,
383 F.3d 599, 601 (7th Cir. 2004). For the state to be eligible
for the waiver, it must make sure that the individuals likely
to need institutional care “are informed of the feasible alter-
natives, if available under the waiver, at the choice of such
individuals, to the provision of inpatient hospital services,
nursing facility services, or services in an intermediate care
facility for the mentally retarded.” 42 U.S.C. § 1396n(c)(2)(C).
The state must also have a plan for “allowing beneficiaries to
choose either institutional services or home and community-
based services.” 42 C.F.R. § 441.303(d); see also id.,
§ 441.302(d). But choice is limited to “feasible” options
“available” under the waiver. Bertrand ex rel. Bertrand v.
Maram, supra, 495 F.3d at 459, explains that the statute does
No. 14-2850                                                  11


not require a state to offer any particular option; it “just re-
quires the provision of information about options that are
available.” Cf. Bruggeman ex rel. Bruggeman v. Blagojevich, 324
F.3d 906, 910–11 (7th Cir. 2003). The plaintiffs have present-
ed no evidence that their wards would be denied the lawful-
ly required level of care even if Illinois were to close all its
SODCs.
   The urgency required for emergency relief has not been
shown. The denial of a preliminary injunction is therefore
                                                     AFFIRMED.
