Case 3:09-cv-01170-MMH-JRK Document 1 Filed 12/02/09 Page 1 of 13 PageID 1
FILED

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JACQUELINE JONES,

2009 DEC -2 PH 12: 49

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Plaintiff,

v.
THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Case No.
3:DQ-cv- 11'70-1- 3'1 1£1\

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants.

COMPLAINT INTRODUCTION
1. Jacqueline Jones is a 35 year old woman who, as a result of a car accident in 1991, broke her spine and now has quadriplegia. Ms. Jones resides with her 74 year old father and 67 year old mother, who for a number of years after her accident were her primary caregivers. As her parents have aged, their health has deteriorated, and they can no longer provide the attendant services Ms. Jones requires to survive.
2. Ms. Jones is eligible for and receives Medicaid. For more than four years, Ms. Jones has applied for Medicaid's home health services, but Defendants have not provided her with any home and community-based services. Instead they have placed her

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on a "wait list." Recently, Defendants have acknowledged that Ms. Jones is at imminent risk of being institutionalized in a nursing home in order to receive the same services she
has requested and needs to continue living in the community. Defendants have Medicaid funded services which would permit Ms. Jones to continue to live successfully at home and to participate in church, family and community life.
3. Defendants violate the Americans with Disabilities Act (ADA), Title II, 42 U.S.C. § 12132, and its implementing regulations, and Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulations. Among other things, these laws require the Department to administer its services and programs, including Medicaid, "in the most integrated setting appropriate" to the needs of the individual with disabilities.
4. Plaintiff Jones seeks declaratory and injunctive relief to receive Medicaid services which will allow her to continue to reside in the community and not require her institutionalization. JURISDICTION AND VENUE
5. The Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs' causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794(a).
6. Venue is proper because a substantial part of the actions and omissions of which Plaintiff alleges occurred in this District. 28 U.S.C. § 1391(b).
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DEFENDANTS

7.

Thomas Arnold, is the Secretary of the Florida Agency for Health Care

Administration (AHCA), and is sued in his official capacity. AHCA is the chief health

policy and planning entity for the state and is responsible for administering Florida's

Medicaid Program. Fla. Stat. § 20.42(3) (2006). AHCA is the "single state agency" that

operates Florida' Medicaid program, see 42 U.S.C. § 1396a(a)(5), and is the state agency

responsible for administering Florida's nursing home and community-based long-term

care system for people with disabilities. Secretary Arnold is responsible for the

oversight, supervision and control of AHCA and its divisions, and is ultimately

responsible for ensuring that AHCA's services for people with disabilities are provided in

conformance with federal law.

8. Defendant Dr. Anna Viamonte Ross is the Secretary of Florida's

Department of Health (DOH) and is sued in her official capacity. DOH is the primary

state agency responsible for administering the Medicaid Traumatic Brain Injury/Spinal

Cord Injury Waiver program for persons who require long-term care in the community. It

recommends legislative budget requests for programs and services for the state's

population who have spinal cord injuries. The Traumatic Brain Injury/Spinal Cord Injury

Waiver is supposed to prevent unnecessary institutionalization of persons like the

Plaintiff who have quadriplegia.

PLAINTIFF JACQUELINE JONES

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9. Plaintiff Jacqueline Jones is 35 years old. In November, 1991, when she was 17 years old, she was a driver in a car accident which resulted in her breaking her spine and being paralyzed in her hands and from her breast area down through her feet.
10. Miss Jones was born in Florida and in 1979 she and her parents moved to Jacksonville, where they continue to reside.
11. Miss Jones' car accident occurred in her senior year in high school. She graduated from high school in 1993 and attended community college for two years.
12. She uses a motorized wheelchair which enables her to ambulate. 13. As part of the car accident settlement, the damages pennitted her and her family to make their house fully accessible for a person who uses a wheelchair. 14. Miss Jones is an active member of the community. She is a Jehovah Witness and in her wheelchair is able to do her community ministry. She attends Kingdom Hall of Jehovah Witnesses twice a week and also conducts bible study once a week at another person's home. 15. She goes out to dinner with friends, goes to the movies, and frequently goes to mall with friends. 16. Miss Jones regularly visits friends for supper at their homes. 17. She receives Social Security Disability in the amount of $505 a month and manages her own money. Miss Jones is eligible for and receives both Medicaid and Medicare. 18. As a result of her paralysis, she requires physical therapy several times a week which Medicare covers.
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19. Every day, Miss Jones requires assistance transferring from her bed to her wheelchair and from the wheelchair back to her bed. She also requires assistance dressing, grooming, toileting, personal hygiene, food preparation, and cleaning her room. These activities of daily living require several hours a day of assistance.
20. Miss Jones also requires assistance several times a day with her supra pubic urinary catheter and several times a week for a bowel program.
21. These activities require a number of hours per week of assistance. 22. In order to prevent decubitus ulcers, Miss Jones should be turned twice a night. 23. From 1991, when she became paralyzed, until about 2007, Plaintiff Jones' parents, Mr. Jack Jones and Mrs. Charmaine Jones, were able to provide the assistance and care she required. 24. Mr. Jack Jones was a printer and also worked in maintenance. Mrs. Charmaine Jones was a housewife. 25. Several years ago, Mrs. Charmaine Jones was diagnosed with degenerative arthritis, which has gotten worse in the past year, and she was also diagnosed with an inoperable tumor near her kidneys. She can no longer assist in transferring, bathing, dressing or bowel care for her daughter. 26. In the past year, Mr. Jones has developed back, shoulder and knee pains, all of which make it much more difficult for him to assist his daughter in dressing, turning at night and transferring. 27. For the past eight months, Medicare has paid for a home health aide three times a week for one hour each session.
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28. Plaintiff Jones initially applied to Defendants for Home and CommunityBased Medicaid Waiver services on July 15,2005.
A. On June 6, 2006, Defendants conducted a telephone interview of Miss Jones during which they completed a "Priorization Screening Instrument." Defendants issued a ''Notice of Decision" which stated: "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation." Defendants noted that Ms Jones was not "at risk of nursing home placement within the next 30 to 60 days."
B On March 7, 2007, Defendants conducted another telephone interview of Miss Jones during which they completed a "Priorization Screening Instrument." Defendants' March 7, 2007 "Notice of Decision" stated: "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation." Defendants wrote that she had been "placed on the TBI/SCI Waiver waiting list: Date of Referral: 7-15-05." Defendants noted that Ms Jones was not "at risk of nursing home placement within the next 30 to 60 days."
C. On July 28, 2009, Defendants sent Ms. Jones another ''Notice of Decision" which stated "You have been placed on the TBI/SCI Waiver waiting list" and "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation."
D. On October 8, 2009, Defendants conducted another telephone interview of Miss Jones during which they completed a "Priorization Screening Instrument." Defendants' October 8, 2009 Notice of Decision stated: "No
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openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation." 29. However, on the October 8, 2009 "Priorization Screening Instrument," Defendants noted that Ms. Jones was "at risk of nursing home placement within the next 30 to 60 days." 30. Despite Defendants knowing that Ms. Jones was at imminent risk of institutionalization, they have never offered her any Medicaid services so she could remain in the community. THE AMERICANS WITH DISABILITIES ACT 31. Title II of the Americans with Disabilities Act (ADA) provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by such entity." 42 U.S.C. § 12132. 32. Regulations implementing Title II of the ADA require that a public entity administer its services, programs and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d). 33. Regulations implementing Title II provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity's program with respect to individuals with disabilities...." 28 C.F.R. § 35. I30(b)(3).
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34. Defendants ACHA and DOH are public entities under Title II of the ADA

and its implementing regulations.

SECTION 504 OF THE REHABILITATION ACT

35.

Section 504 of the Rehabilitation Act of 1973 provides

No otherwise qualified individual with a disability in the United States..., shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance .... "

29 U.S.C. § 794a. 36. Regulations implementing Section 504 reqUIre a recipient of federal

financial assistance to administer its services, programs, and activities in "the most

integrated setting appropriate" to the needs of qualified individuals with disabilities. 28

C.F.R. § 41.51(d).

37. Regulations implementing Section 504 prohibit recipients of Federal

financial assistance from

[u]tiliz[ing] criteria or methods of administration... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the...effect of substantially impairing accomplishment of the recipients' program with respect to handicapped persons.

45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i).

38. Defendants' Medicaid program receives Federal financial assistance under

Section 504 and its implementing regulations. Federal Medicaid funds pay for

approximately 55% of the cost of the Florida's Medicaid program.

MEDICAID

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39. In 1965, Congress enacted Title XIX of the Social Security Act, 42 U.S.C. § 1396-1 396v, establishing Medicaid, a medical assistance program cooperatively funded by the federal and state governments. The purpose of Medicaid is to furnish, as far as practicable, "medical assistance on behalf of...aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services" and "to help such families and individuals to attain or retain capability for independence or self-care...." 42 U.S.C. § 1396 (emphasis added).
40. The Secretary of Health and Human Services administers the Medicaid program at the federal level through the Centers for Medicare & Medicaid Services (CMS), which has urged states pursuant to the ADA to avoid unnecessary institutionalization of person with disabilities in nursing facilities.
41. State participation in Medicaid is voluntary. Once a state elects to participate, it must adhere to the federal legal requirements, as provided by the Medicaid Act, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 (Section 504).
42. The Medicaid Act allows states to provide coverage of home health nursing and personal attendant services, for persons who are otherwise entitled to receive nursing home services, if they meet the state's nursing home "level of care" requirements, e.g., need assistance with a certain number of activities of daily living. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(7), (8), (22). Based on information and belief, the Plaintiff meets Defendants' "level of care" for a nursing facility.
43. The Medicaid Act also authorizes states to obtain Home and CommunityBased Service (HCBS) waivers from CMS to provide for alternatives to nursing home
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care and services. Waiver programs cover a range of home-based services for Medicaid recipients. See 42 U.S.C. § 1396n(c).
44. Defendants have received a CMS Waiver entitled the "Traumatic Brain Injury/Spinal Cord Waiver" for which Miss Jones has been on a waiting list since she originally applied in 2005.
45. Defendant ACHA is designated as the "single state agency" responsible for the administration and supervision of Florida's Medicaid Program under Title XIX of the Social Security Act.
46. Under the Medical Assistance Act, the Defendants are required to administer the Florida's Medicaid program in conformity with federal law, including the ADA and Section 504.
FIRST CLAIM FOR RELIEF Title II of the Americans with Disabilities Act 47. Plaintiff Jacqueline Jones is an individual with disabilities in that she has physical and other impairments that substantially limit one or more of her major life activities, including but not limited to breathing, walking, bathing, speaking, and standing. 48. Plaintiff Jones is a qualified person with disabilities in that she is capable of safely living at home with necessary services and she meets the essential eligibility requirements for the receipt of services from and participation in the State Medicaid program with reasonable modification to the rules, policies, and practices of that program, 42 U.S.C. §12131(2).
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49. Without reasonable modification of the rules, policies, and procedures governing the Florida's Medicaid program, Plaintiff will be forcibly isolated and segregated into an institutional setting. This is against her will, and she does not want to be placed into a nursing home.
50. Defendants' denial of Medicaid funding for the in-home health services that Plaintiff requires to avoid segregation in an institution and remain in the integrated home settings that is appropriate to her needs, constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 130.51(d).
51. Defendants have utilized criteria and methods of administration that subject Plaintiff to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiff to remain in the community and (2) failing to ensure that Plaintiff has access to Medicaid-covered services that will meet her needs in the community, in violation of Title II of the ADA and implementing regulations.
SECOND CLAIM FOR RELIEF Section 504 of the Rehabilitation Act 52. Plaintiff is a "qualified person with disabilities" within the meaning of Section 504, because she has physical and/or mental impairments that substantially limit one or more major life activities, and she meets the essential eligibility requirements for long term care under Florida's Medicaid program. 53. Defendants' denial of Medicaid funding for the in-home health services that Plaintiff requires to avoid segregation in an institution and remain in the integrated
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home settings that is appropriate to her needs constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulation, 28 C.F.R. §41.51(d).
54. Defendants have also utilized criteria and methods of administration that subject Plaintiff to discrimination on the basis of disability, including risk of unnecessary institutionalization, by (I) failing to assess properly the services and supports that would enable Plaintiff to remain in the community and (2) failing to ensure that Plaintiff has access to Medicaid-covered services that will meet her needs in the community, thereby violating Section 504 and its implementing regulations.
RELIEF REOUESTED WHEREFORE, Plaintiff Jones respectfully requests that the Court grant the following relief: A. Declare that the Defendants' denial of funding for Plaintiffs necessary and appropriate Medicaid in-home nursing services constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. B. Grant preliminary and permanent injunctions enjoining the Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from denying Plaintiff Medicaid in-home nursing services "in the most integrated setting," her home, including to the extent to which Plaintiffs' service needs can and will be met by enrolling her in the existing Home and Community-Based Services waiver.
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C. Waive the requirement for the posting of a bond as security for the entry of preliminary relief.
D. Award the Plaintiff the costs of this action and reasonable attorney's fees pursuant to 29 U.S.C. § 794a and 42 U.S.C. § 12133 and any other applicable provision of law.
F. All such other and further relief as the Court deems to be just and equitable.
Dated: December £'If", 2009
Respectfully submitted,
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com (Applicationfor admission pro hac vice to befiled)
& DODD, P.L.
f}
est Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counsel for the Plaintiff
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 Case 3:09-cv-01170-MMH-JRK Document 2 Filed 12/02/09 Page 1 of 8 PageID 14
FILED
IN THE UNITED STATES DISTRICT COURT 2009 DEC -2 PM 12: 49
FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
JACQUELINE JONES, Plaintiff,
v.
THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.
PLAINTIFF JACOUELINE JONES' MOTION FOR PRELIMINARY INJUNCTION AND EXPEDITED HEARING AND MEMORANDUM IN SUPPORT
Pursuant to Fed. R. Civ. P. 65, individual Plaintiff Jacqueline Jones, through her counsel, moves for a preliminary injunction to enjoin Defendants from denying her with Medicaid home and community-based services ("HCBS"), in order to prevent Plaintiff Jones's unnecessary and imminent institutionalization into a nursing home. Due to the emergency nature of her situation, Plaintiff Jones further moves for an expedited hearing. As grounds therefore, Plaintiff Jones states:
1. This action is brought on behalf of a Florida resident who is on Medicaid and has a severe disability that has paralyzed her. Plaintiff Jones desires to continue residing in her community instead of a nursing facility. She could reside in the community with appropriate
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services provided with Medicaid funds. She is at imminent risk of being unnecessarily

institutionalized because of Defendants' failure to administer their Medicaid services, programs

and activities in an appropriate, integrated community setting.

2.

Jacqueline Jones is a named plaintiff in this action. She was born on January 17,

1974, and is thirty-five years old.

3. Plaintiff Jones lives in her parents' fully accessible home in Jacksonville, Florida.

She has resided with her parents since November, 1991. When she was 17 and a senior in high

school, she broke her spine as a result of a car accident. The injuries left her paralyzed in her

hands and from her breast area down through her feet.

4. Ms. Jones graduated from high school in 1993 and attended community college

for two years.

5. Ms. Jones has quadriplegia. She uses a motorized wheelchair which enables her

to ambulate.

6. Ms. Jones is a Jehovah Witness and in her wheelchair she is able to do her

community ministry. She attends Kingdom Hall of Jehovah Witnesses twice a week and also

conducts a bible study once a week at another person's home.

7.

She goes out to dinner with friends, goes to the movies, and frequently goes to

mall with friends. Miss Jones regularly visits friends for supper at their homes.

8.

She receives Social Security Disability in the amount of $505 a month and

manages her own money.

9. Miss Jones' father is now 74 and her mother is 67. Since her accident, her

parents have been her primary caregivers. As her parents have aged, their health has

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deteriorated, and they can no longer provide the additional attendant services which Ms. Jones requires in order to continue residing in the community.
10. Ms. Jones is eligible for and receives Medicaid. For more than four years, Ms. Jones has applied for Florida's Medicaid home health services for persons who have a spinal cord injury, but Defendants have not provided her with any home and community-based services. Instead, defendants have placed her on a "wait list."
11. Due to her quadraplegia, Miss Jones requires assistance with activities of daily living, including transferring from her bed to her wheelchair and from the wheelchair back to her bed. She also requires assistance dressing, grooming, toileting, personal hygiene, and food preparation. These activities of daily living require numerous hours a day of assistance.
12. Miss Jones also requires assistance several times a day with her supra pubic urinary catheter and assistance several times a week for a bowel program. These activities require a number of hours per week of assistance. Plaintiff Jones does not require extensive nursing care or any other oversight. Any health care and services she requires has been and can be provided in the community.
13. In order to prevent decubtus ulcers, a dangerous breakdown of the skin, Ms. Jones should be turned twice a night.
14. From 1991, when she became paralyzed, until about 2007, Plaintiff Jones' parents, Mr. Jack Jones and Mrs. Charmaine Jones, were able to provide the assistance she required for these activities of daily living.
15. Several years ago, Mrs. Charmaine Jones was diagnosed with degenerative arthritis, which has gotten worse in the past year, and she was also diagnosed with an inoperable
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tumor near her kidneys. She can no longer assist in transferring, bathing, dressing or bowel care for her daughter.
16. In the past year, Mr. Jones has developed back, shoulder and knee pains, all of which make it much more difficult for him to assist his daughter in dressing, turning at night and transferring.
17. For the past eight months, Medicare has paid for a home health aide three times a week for one hour each session. This is insufficient. Ms. Jones requires much more assistance with activities of daily living.
18. Plaintiff Jones initially applied to Defendants for Home and Community-Based Medicaid Waiver services on July 15,2005.
19. On June 6, 2006, Defendants conducted a telephone interview of Miss Jones during which they completed a "Priorization Screening Instrument." Defendants issued a Notice of Decision which stated: "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation."
20. In the June 6, 2006 Notice, Defendants noted that Ms Jones was not "at risk of nursing home placement within the next 30 to 60 days."
21. On March 7, 2007, Defendants conducted another telephone interview of Miss Jones during which they completed a second "Priorization Screening Instrument." Defendants' March 7, 2007 Notice of Decision stated: "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation. "
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22. In the March 7t 2007 Noticet Defendants wrote that Miss Jones had been "placed on the TBI/SCI [Traumatic Brain Injury/Spinal Cord Medicaid] Waiver waiting list: Date of Referral: 7-15 _05.'t
23. In this Noticet Defendants noted that Ms Jones was not "at risk of nursing home placement within the next 30 to 60 days.tt
24. On July 28, 2009, Defendants sent Ms. Jones another "Notice of Decision" which stated "You have been placed on the TBUSCI Waiver waiting list" and "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation."
25. On October 8, 2009, Defendants conducted a third telephone interview of Miss Jones during which they completed the third "Priorization Screening Instrument." Defendants' October 8, 2009 Notice of Decision stated: "No openings at this time. We will be calling you from time to time. Meanwhile, please keep us advised of changes to your condition or situation."
26. However, on the October 8, 2009 "Priorization Screening Instrument." Defendants noted that Ms. Jones was "at risk of nursing home placement within the next 30 to 60 days."
27. Despite Defendants knowing that Ms. Jones was at imminent risk of institutionalization, they have not offered her any Medicaid services so she could remain in the community.
28. Ms. Jones has been eligible for Florida's Medicaid nursing home services since she broke her spine in 1991. She still meets Florida's level of care for nursing home eligibility.
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29. If Ms. Jones were to enter a nursing home, Florida's Medicaid nursing home reimbursement is approximately $178 per diem.
30. Defendants have a community-based Medicaid Traumatic Brain Injury/Spinal Cord Medicaid Waiver but has limited the number of slots to 375.
31. Defendants have certified to the federal Medicaid agency, the Centers for Medicare and Medicaid Services, that for each person Florida diverts from the nursing home and provides Waiver services in the community, the State and the federal government save approximately $20,000 a year.
32. Despite these savings and knowing that Plaintiff Jones is in imminent risk of nursing home placement, Defendants have refused to provide Miss Jones with services in her home.
33. Plaintiff Jones needs Defendants' Medicaid HCBS benefits and assistance with activities of daily living. These services could be provided to Plaintiff Jones either pursuant to "waiver" services or "personal care services," see 42 U.S.C. §§1396n(c) and 1396d(a)(24), both of which are part of the Florida's Medicaid program. Unfortunately, waiver services have not been made available to Plaintiff Jones, even though she applied for home and community-based services and is on a waiting list. The personal care option service is limited in Florida to persons with disabilities who reside only in assistive living facilities - not their own apartments or houses.
34. To obtain the necessary services, Defendants require that Plaintiff Jones leave the community and enter a Medicaid-funded nursing facility setting. Defendants' Medicaid program will only provide the services she requires by paying for her institutionalization in a nursing
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facility. 35. Plaintiff Jones will imminently have no option other than to enter into a nursing
home where Defendants' Medicaid program will pay for the same services she can and has received in the community.
36. Defendants' refusal to offer her the services in the community and instead require her to enter a nursing facility to receive the same services violates both the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ('·ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 794a ("Section 504"), and their implementing regulations, in particular the "integration mandate," which requires that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R.§ 35. 130(d).
37. Counsel for Plaintiff Jones consulted with Defendants' counsel and requested services for Plaintiff Jones, but no services have been provided.
38. Jacqueline Jones telephoned Defendants' Jacksonville Medicaid Waiver office regarding waiver services, but none have been provided and no one could tell her when services would be provided for her in the community.
WHEREFORE Plaintiff Jones seeks a preliminary injunction to enjoin Defendants from denying her services in the community to assist her with her daily living activities.
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Respectfully submitted,
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 stevegoldada@cs.com (Application for admission pro hac vice to be filed) SPOHRER & DODD, P.L.
• Howanitz, Esq. a Bar No. 0020967 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counselfor the Plaintiff
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 Case 3:09-cv-01170-MMH-JRK Document 3 Filed 12/02/09 Page 1 of 20 PageID 22
FILED

IN THE UNITED STATES DISTRICT CO~ DEC - 2 PH 12: 49
FOR THE MIDDLE DISTRICT OF FLORIDA ,. : - . ('• • i '::;-.-~ JACKSONVILLE DIVISION ; I~.,,,_;. , ;,,1 ',;:" j (~' ,I oi~j/, JACj\S~I/'. ilL:..E:FLORlIlAi,.Ir\
JACQUELINE JONES,

Plaintiff,

v.

Case No.

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants.

PLAINTIFF JACQUELINE JONES' MEMORANDUM OF LAW IN SUPPORT OF HER MOTION FOR A PRELIMINARY INJUNCTION I. Plaintiff Meets the Standards for a Preliminary Injunctive Relief The criteria for granting a preliminary injunction are (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest. Schiavo Ex Rei. Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005). The grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probability of ultimate success at final shearing with the consequences of immediate irreparable injury, which could flow from the denial of preliminary relief. Siegal v. Lepore, 234 F.3d 1163, 1178 (11 th Cir. 2000). If the other factors weigh in favor of granting

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relief, Plaintiff has only to show a substantial case on the merits of the claim. Schiavo, 403 F.3d at 1226.
In the instant caset Plaintiff Jones raises a very strong likelihood of ultimate success on the merits under the Americans with Disabilities Actt 42 U.S.C. § 12101 et seq. ("ADNt)t and the Rehabilitation Act of 1973t 29 U.S.C. § 794a ("Section 504")t and their implementing regulations; a very strong probability of irreparable injury; and both the balance of hardships and public interests weigh significantly for her. AccordinglYt Plaintiff Jones is entitled to preliminary injunctive relief II. Likelihood of Success
A. Defendants' Responsibilities under the HCBS TBIISCI Waiver Medicaid is a joint federal/state program authorized by Title XIX of the Social Security Act. 42 U.S.C. §§ 1396-1396v. It provides medical assistance to low income individuals who meet certain eligibility requirements. States are not required to participate in the Medicaid program. If a state elects to participatet howevert it is required to comply with all applicable federal statutory and regulatory requirements. 42 U.S.C. § 1396a; Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498. 502 (1990); Florida Ass'n of Rehab. Facilities, Inc. v. Florida Dep't of Health & Rehab. Servs., 225 F.3d 1208t 1211 (lIth Cir. 2000). Medicaid home and community-based services (HCBS) waiver I programs are authorized by 42 U.S.C. § 1396n(c) and governed by 42 C.F.R. §§ 441.300-.310. Waiver programs enable
States that opt to provide waiver services may "waivett the requirements of statewideness, comparability and income requirements for which a state's other Medicaid services and programs must otherwise comply with 42 U.S.C.§1396n(c)(3). The Secretary of the Department of Health and Human Services has approved nine waivers in Florida for people who would otherwise require care in a nursing facility. Ms. Jones meets the eligibility criteria for Florida's Traumatic Brain Injury/Spinal Cord Injury Waiver ("TBI/SCI").
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states to provide home and community-based services to individuals with disabilities who would otherwise need the level of care provided in the institutional nursing home. 2 Personal care assistant services (PCA) is one of the services that can be provided through a waiver. 42 U.S.C. § l396n(c)(4)(6). Medicaid waiver programs must, in the aggregate, be cost-neutral, in that the total average cost of providing care for program participants in the home and community based setting must not exceed the estimated total average cost of providing care in the institutional setting that these participants would require. 42 U.S.C. §1396n(c)(2)(D), 42 C.F.R. §441.302(e).
Florida's Medicaid waiver program is one of the two Medicaid programs which could prevent Mr. Jones's imminent institutionalization. The other Medicaid program is the "personal care services" benefits. 42 U.S.C. § l396n(a)(24). Under the program, states like Florida provide personal attendant services such as Plaintiff Jones requires. However, Florida has opted to limit its personal care services benefits to persons who reside in its Medicaid funded assisted living facilities and does not provide these services to persons who reside in their own apartments or homes.
B. The ADA and Section 504 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a ("Section 504") is "commonly known as the civil rights bill of the disabled," Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989) (en bane), and prohibits disability-based discrimination by federal funding recipients, such as Defendants. 29 U.S.C. § 794(a). Extending the prohibitions of Section 504, Congress enacted the Americans with

2

The Florida Medicaid per diem reimbursement is $178.45 on average for

an annual average reimbursement 0 f $ 65, l34.25. See

http://www.fdhc.state.fl.us?Medicaidlcost_reimlnh_fates.shtml.

3

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Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), in 1990 to prohibit discrimination by all public entities, regardless of whether they receive federal funding. H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 472. Like Section 504, Title II of the ADA broadly prohibits discrimination by public entities, such as Defendants. 42 U.S.C. §§ 12131(1), 12132. The ADA and Section 504 are analyzed together since "there is no significant difference in the analysis of rights and obligations created by the two." Zulke v. Regents of the Univ. of Calif, 166 F.3d 1041, 1045 n.ll (9th Cir. 1999). The ADA provides that the "remedies, procedures, and rights set forth in [Section 504] shall be the remedies, procedures and rights [applicable to ADA claims]." 42 U.S.C. § 12133. Section 504 and the ADA reflect Congress' recognition of the pervasiveness of disability-based discrimination in society. Congress specifically found that "discrimination against individuals with disabilities persists in such critical areas as ... health services ...." 42 U.S.C. § 12101(a)(3) (ADA) (emphasis added); see also 29 U.S.C. § 701(a)(5) (Section 504).
The concept of "discrimination" under these Acts encompasses more than disparate treatment of people with disabilities vis-A-vis individuals without disabilities. See Olmstead v. L.e., 527 U.S. 581, 598 (1999) (ADA); Alexander v. Choate, 469 U.S. 287, 297, 300-01 (1984) (Section 504); Shelen L. v. DiDario, 46 F.3d 325, 333, 335 (3d Cir.), cert. denied, 516 U.S. 813 (1995) (ADA); Nathanson v. Medical College of Penn., 926 F.2d 1368, 1384 (3d Cir. 1991) (Section 504). The Supreme Court in Olmstead made it clear that the state cannot discriminate between people with disabilities while providing such care for "categorically needy" persons. 3

3

The ADA also prohibits discrimination against different categories of people

between people with disabilities while providing such care for "categorically needy" persons

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Title II of the ADA prohibits public entities from discriminating against persons with disabilities. 42 U.S.C. § 12132.4 A "qualified individual with a disability" is a person who "with or without reasonable modifications to rules, polices or practices" meets the "essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12132(2). Defendants do not dispute that Plaintiff Jones is a qualified person with a disability who meets the eligibility requirements for Florida's Medicaid nursing home "level of care" as well as for its waiver and Medicaid programs.
C. The ADA and Section 504's Integration Mandate Under both the ADA and Section 504, the Attorney General was directed to promulgate implementing regulations. 42 U.S.C. § 12134(a); 29 U.S.C. § 794(a). See Helen L., supra. Congress further directed that the regulations promulgated under Title II of the ADA be consistent with the regulations adopted under Section 504. 42 U.S.C. §12134(b). For purposes of implementing Title II of the ADA, the Attorney General promulgated a regulation requiring

with disabilities. Townsendv. Quasim, 328 F.3d 511 (9th Cir. 2003), Helen L., supra. In Townsend, the plaintiffs alleged that the state was using Medicaid's home and community based waiver services ("HCBS") to provide essential long term care to some residents with disabilities, but not to others. The Court held that the state violated the ADA by denying community-based long term care for "medically needy" persons.

4

Similarly, Section 504 prohibits the recipients of federal funds from

discriminating on the basis of disability:

No otherwise qualified individual with a disability...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. §794(a).

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public entities to "administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The regulation was based upon virtually identical regulatory language promulgated to implement Section 504 with respect to federal financial recipients. 28 C.F.R. § 41.5 1(d). These two regulations, known as the "integration mandate," are construed and applied in the same manner. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1179 n.3 (lOth Cir. 2003).
The integration mandate was analyzed and interpreted by the United States Supreme Court in the landmark decision of Olmstead v. L.e., 527 U.S. 581 (1999). The Olmstead plaintiffs were individuals with mental disabilities who were confined in Georgia's state psychiatric institutions, but who wanted to live in the community. Plaintiffs asserted that the state's refusal to pay for them to live in community settings violated the integration mandate of Title II of the ADA and its implementing regulations. The Court was thus presented with the question of whether the proscription of disability discrimination may require the placement of individuals with disabilities in community settings rather than institutions. Id at 587.
The Court began its analysis by citing the relevant Congressional findings that serve as the underpinnings for the ADA:
(2) historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive societal problem;
(3) discrimination against individuals with disabilities persists in such critical areas as...institutionalization...;
(5) individuals with disabilities continually encounter various forms of discrimination. including outright intentional exclusion.. failure to make reasonable modifications to existing facilities and practices. [and] segregation ...
42 U.S.C. §12101(a)(2), (3) & (5) (emphasis added) (quoted in Olmstead, 527 U.S.at 588-89).
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The Court's decision was premised on the DOJ integration regulation:
A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
28 C.F.R.§ 35.130(d).
After noting the comprehensive scope of discrimination embraced by the ADA, the
Olmstead Court explained the nature of discrimination prohibited by Title II of the ADA in the
context of the integration mandate:
Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities ofindividuals, including family relations. social contacts, work options, economic independence. educational advancement and cultural enrichment. Dissimilar treatment exists in the key respect: In order to receive needed medical services, persons with ... disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [such] disabilities can receive the medical services they need without similar sacrifice.
527 U.S. at 600-601 (citations omitted; emphasis added). Accordingly, the Court concluded,
more than nine years ago, that "unjustified isolation, we hold, is properly regarded as
discrimination based on disability." Id at 597.
The facts of the case at bar clearly demonstrate that Plaintiff Jones will suffer
discrimination. By living at home and participating in the community, she has been able to
experience and benefit from church activities, family relations, social contacts, educational
advancement, and cultural enrichment of which the Supreme Court spoke. Being forced
unnecessarily to move to a nursing home solely to receive the personal attendant care services
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that Plaintiff Jones needs for her activities of daily living constitutes discrimination. Defendants' refusal to provide Medicaid funds for her in the community and its policies and failure to grant a reasonable modification for her to its existing Medicaid programs plainly falls within the disability discrimination condemned by the Supreme Court in Olmstead. It also illustrates Judge Ferguson's conclusion that "underfunding of the Home and Community-Based Waiver program compels institutionalization, thus negating a meaningful choice." Cramer v. Chiles, 33 F.Supp.2d 1342, 1353 (S.D. Fla. 1999).
Plaintiff Jones is at imminent risk of being forced into a nursing home. She will lose independence in order to receive the necessary services so she can meet her activities of daily living. Such an outcome would both violate the ADA and Section 504, and result in irreparable injury to her right to live in the "the most integrated setting appropriate" to her needs. She would be forced to leave her friends and family behind. In a nursing home, she will lose her independence. In a nursing home, she will not be able to participate as intensively or regularly with her religious activities and will likely be further removed from her parents with whom she presently resides.
To prevent discrimination, both the ADA and Section 504 integration mandate requires services "in the most integrated setting appropriate." There can be no doubt that for Plaintiff Jones that setting is her own home. The ADA and Section 504 prohibit conditioning receipt of a public service or program on a person being institutionalized. That was the bedrock of the Olmstead decision.
The risk of institutionalization that Plaintiff Jones faces is discrimination. In Fisher v. Oklahoma Health Care Auth., 335 F. 3d 1175 (lOth Cir. 2003), Oklahoma had changed its
8

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Medicaid prescription program so that persons in the community would be entitled to receive no more than five prescriptions per month. However, if persons resided in a nursing facility, they could receive whatever nwnber of prescriptions they required. The Fisher Circuit emphasized that "failure to provide Medicaid services in a community-based setting may constitute a form of discrimination." Id. at 1182. The Tenth Circuit noted that the protections in the ADA's "integration regulation," 28 C.F.R. §35.130(d),
would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discrimination law or policy that threatens to force them into segregated isolation. [W]hile it is true that plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA's integration requirements. Id. at 1181. See also Radaszewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004), Crabtree v. Goetz, 2008 U.S.Dist. LEXIS 103097 (MD IN, December 19, 2008). This same principle applies to Plaintiff Jones. In the community, she currently receives no Medicaid-funded personal attendant care services to assist her with her activities of daily living. If she is forced to enter a nursing home in order to receive these services, she will be "unnecessarily institutionalized," precisely the type of discrimination that Congress intended to end with the enactment of the ADA and Section 504. By requiring Plaintiff Jones to move to a nursing facility to receive the same services she could receive in the community, Florida is conditioning the receipt of these Medicaid services to a setting, i.e., the nursing facility, which is segregated, instead of providing them to her in the community. D. Defendants Violate the ADA and Section 504 by Failing to Make Reasonable Modifications and Accommodations in their Policies. Practices. and Procedures
9

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Section 504 and the ADA prohibit actions by covered entities that have a discriminatory effect on people with disabilities. See Alexander v. Choate, 469 U.S. at 297; Frederick L. v. Department of Public WeI/are, 364 F.3d 487 (3d Cir. 2004),422 F.3d 151 (3d 2005). Both the ADA and Section 504 affirmatively require that covered entities make reasonable modifications and accommodations to their policies and practices when necessary to accommodate individuals with disabilities, see Olmstead, 527 U.S. at 592; Alexander. 469 U.S. at 301, and require that people with disabilities have "meaningful access" to covered entities' programs. Id.; Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 857 (lOth Cir. 2003).
In the present action, Defendants' failure to make reasonable modifications and accommodations results in Plaintiff Jones not having "meaningful access" to either Florida's Medicaid waiver programs or its Medicaid personal care services benefits. Because Florida has restricted its Medicaid personal care services benefits, 42 USC § 1396d(a)(24), to persons residing in assisted living facilities, Plaintiff Jones is not able to benefit from either Florida's Medicaid waiver program or its Medicaid personal care services program. Similarly, because Florida has capped its TBI/SCI waiver and has not increased it to meet Ms. Jones' needs in the community, an accommodation that is easy to accomplish, Florida's Medicaid program refuses to make the reasonable modification and accommodation in this program which will ensure Ms. Jones remains in her home and is not discriminated against.
Beginning with Southeastern Community College v. Davis, 442 U.S. 397,410 (1979), the courts have recognized that Section 504 requires publicly funded programs to provide reasonable modifications and accommodations when needed to assure that people with disabilities have meaningful access to its programs and services. See Alexander. 469 U.S. at 300-01 & n.20-21.
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Title II of the ADA requires: A public entity shall make reasonable modifications in policiest practicest or procedures when the modifications are necessary to avoid discrimination on the basis of disabilityt unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the servicet program or activity.
28 C.F.R. § 35.130(b)(7) (authorized by 42 U.S.C. § 12134(b)). The concept of reasonable modification recognizes that strictly "equaltt treatment of
people with disabilities will not assure meaningful access. See Henrietta D. v. Bloombergt 331 F.3d 26C 273 t 274-75 (2d Cir. 2003). AccordinglYt the ADA and Section 504 require accommodations assuring that otherwise neutral policies and practices do nott in practicet discriminate against people with disabilities by denying them meaningful access to the covered entity's programs and services. Id.; see also US Ainvays, Inc. v. Barnettt 535 U.S. 391 t 397 (2002) (in ADA employment discrimination case, "preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal"). For examplet Section 504 and the ADA also prohibit discrimination on the basis of the severity of a personts disability. In Jackson v. Fort Stanton Hosp. & Training Schoolt 757 F. Supp. 1243 (D.N.M. 1990)t rev'd on other grounds, 964 F.2d 980 (lOth Cir. I 992)t plaintiffs with developmental disabilities challenged their exclusion from the state's community services program because of the severity of their disabilities. In that caset people with severe disabilities were precluded from living in community settings because the programs lacked amenities that could be reasonably furnished that were necessary to accommodate their serious needs. The Court found that "Defendants' failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory." Id at 1299. It concluded that:
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modifications of the existing community service system in New Mexico would not require an excessive financial burden and that the accommodations would enable severely handicapped residents of [residential facilities] to realize the benefits of community settings. AccordinglYt the defendants should require those community programs that receive federal assistance funds to make reasonable accommodations for those severely handicapped residents [of facilities] whose IDTs have determined that a community program could be appropriatet if reasonably modified.
[d. at 1299. See also Williams v. Wasserman, 937 F. Supp. 524,530 (D. Md. 1996) ("while the
ADA does not place an affirmative obligation on the state to create or fundamentally alter a
program of community-based treatment options, the ADA does oblige the defendants to make
those options available to otherwise qualified individuals without regard to the severity ... of
their disabilities"); Marlin v. Voinovich, 840 F. Supp. 1175, 1192 (S.D. Ohio 1993)
("Defendants' failure to accommodate the severely handicapped in existing community programs
while serving less severely handicapped peers is unreasonable and discriminatory").
A recent reasonable accommodation case from the Seventh Circuit is quite instructive. In Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), plaintiff sought 24 hour private duty
nursing care under the HCBS waiver program, a service he alleged he would require in a hospital
or nursing facility if forced to move there. The State argued that it did not provide that level of
service under its waiver, and that plaintiff could only receive $4,593 per month - the equivalent
of five hours a day of private-duty nursing care. However, the court found that the state already
provided for some private duty nursing care, and further that
the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings.... If variations in the way services were delivered in different settings [home vs. institution, or assisted living facility vs. an apartment] were enough to defeat a demand for more community integrated care, then the integration mandate of the ADA and the Rehabilitation Act would mean very little.
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Id at 611. On remand, the district court found that the state's failure to fully fund at home, private
duty nursing for the young man under the Medicaid-funded HCBS constituted disability discrimination, and that the state was obligated to provide treatment in the most integrated setting - his home. It rejected the state's claim that such an outcome would result in a fundamental alteration of the state's program. Radaszewski v. Maram, 2008 WL 2097382, *15 (N.D. Ill., March 26, 2008); see also Grooms v. Maram 2008 WL 2271492, *16 (N.D. Ill., May 30,2008).
E. Plaintiff Jones's Modification Requests Are Reasonable. It is well-established that the ADA and Section 504 both require Defendants to make reasonable modifications and accommodations to their policies, practices, and procedures when necessary to avoid discrimination. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(7) (ADA). In a reasonable accommodation and modification claim, it is the plaintiffs obligation to articulate a modification that "seems reasonable on its face." US Airways, Inc. v. Barnett, 535 u.S. 391, 401 (2002); see also Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001) ("plaintiff bears only the burden of identifying an accommodation, the costs of which do not clearly exceed its benefits," i.e., that is not "clearly ineffectively or outlandishly costly"). If the plaintiff articulates a reasonable modification, then the burden shifts to the defendant to prove that the proposed modification would impose an undue burden on its resources or a fundamental alteration of its program. Olmstead, 527 U.S. at 603; Frederick L., 364 F.3d at 492 n.4. Defendants have ignored this obligation to Plaintiff Jones by not providing her with personal attendant care services either through their Medicaid TBI/SCI waiver or through their
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Medicaid personal care services program. Defendants obtained pennission from the federal Centers for Medicare and Medicaid (CMS) to have a Medicaid TBI/SCI waiver which pennitted Florida with the option under Medicaid of providing home and community based services, including in-home care provided by personal attendants, to a person who would otherwise require nursing home level care. 42 U.S.C. § 1396n( c)(I) ("but for the provision of such [waiver] services the individuals would require the level of care provided in ... a nursing facility... the cost of which would be reimbursed under the State plan"). When Defendants obtained this Medicaid waiver, they took on the mandatory obligation to provide such in-home care to qualifying individuals such as Plaintiff Jones. Defendants have failed to increase the number of Medicaid TBI/SCI waiver slots so that Plaintiff Jones could reside in the community instead of in a nursing facility. Similarly, Defendants have restricted their Medicaid personal care services benefits, 42 USC § 1396d(a)(24), to persons residing in assisted living facilities. Defendants could easily expand this program to persons who reside in their own homes and apartments.
Plaintiff Jones has done all she can to live integrated into the community. She has received attendant care services from her parents for as long as they could provide the care and services. She does not have money to pay for personal care services.
The reasonableness of a particular accommodation "depends on the individual circumstances of each case" and "requires a fact-specific, individualized analysis of the disabled individual's circumstances and accommodations that might allow her to meet the program's standards." Wong v. Regents o/the Univ. o/Cal.,192 F.3d 807, 818 (9th Cir. 1999).
Plaintiff Jones has identified the specific program modifications and accommodations she
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seeks. She has asked Defendants, as a reasonable accommodation of her disability, to provide Medicaid payments, under either their Medicaid TBI/SCI waiver or Medicaid personal care services programs, for care and services with her daily living activities. Were she to enter a nursing home, Defendants' per diem reimbursement to Medicaid nursing facilities is $178.45 a day or $5,353.50 a month. Under the federal requirements for a waiver, a state must assure the federal agency that the waiver is "cost effective," that is, on the average, the amount spent on community-based services "will not exceed the amount of such medical assistance provided for such individual [in the nursing facility] if the waiver did not apply." 42 USC § 1396n(c)(4)(A). If Defendants were to provide her with services under the TBI/SCI waiver, they would save more than $20,000 a year. The reasonable accommodations that Plaintiff Jones requests fall squarely within the existing duties already assigned to Florida under the HCBS Waiver.
Similarly, under Florida's Medicaid program that provides personal care services, see 42 U.S.C. §1396d(a)(24), Defendants limit these services to persons who reside in an assisted living complex. The reasonable accommodation Plaintiff Jones requests is that the same service be provided to her in her own home instead of in an assisted living facility. That would allow her to hire and pay with Medicaid funds personal attendants who would provide the level of care that she needs. As this is a practice that Defendants have approved for persons who reside in assisted living facilities, it could not be an undue burden to extend the practice so that Plaintiff Jones can continue to reside in her home.
III. Irreparable Injury It is well established that the loss of Medicaid benefits constitutes irreparable harm.
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Indeed, "[t]he nature of the claim - a claim against the state for medical services - makes it impossible to say that any remedy at law could compensate" plaintiffs. McMillan v. McCrimon. 807 F. Supp. 475,479 (C.D. III. 1992). See also Maine Ass'n ofInterdependent Neighborhoods v. Petit. 647 F. Supp. 1312, 1315 (D.Me. 1986) (court found that absent the requested injunction plaintiff would be forced to leave her family and enter a nursing home, irreparably injuring her physical and mental health). Accord Edmonds v. Levine, 417 F. Supp. 2d 1323, 1342 (S.D. Fla. 2006) (denial of medical benefits, and resulting loss of medical services, constitutes irreparable harm); Mitson v. Coler, 670 F. Supp. 1568, 1577 (S.D. Fla. 1987)(potential denial of nursing home service constituted irreparable injury since many in class would be deprived of essential medical care); Kai v. Ross, 336 F.3d 650, 656 (8th Cir. 2003) (denial of Medicaid benefits constitutes "a danger to plaintiffs' health, even their lives"); Massachusetts Ass'n ofOlder Amer. v. Sharp, 700 F.2d 749, 753 (1st Cir. 1983) (termination of benefits that causes individuals to forgo medical care is clearly irreparable harm); Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982) (irreparable injury is shown when enforcement of a Medicaid rule "may deny [plaintiffs] needed medical care"); Caldwell v. Blum. 621 F.2d 491, 498 (2d Cir. 1980), cert. denied, 452 U.S. 909 (1981) (Medicaid applicants established harm where they would "absent relief, be exposed to the hardship of being denied essential medical benefits").
If a preliminary injunction is not issued, Plaintiff Jones will not be able to continue to live at home. She will have no option other than to enter to a nursing home and suffer all the injuries listed in Olmstead. Such discrimination and irreparable injury are unnecessary, if defendants would only authorize Mr. Jones personal attendant services either under its Medicaid waiver or Medicaid personal care services programs. The irreparable injury includes more than a violation
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of her civil rights under the ADA and Section 504. The irreparable injury is that she will be institutionalized in a setting that demeans her by taking away her independence and dignity. IV. Balance of Hardships
The Court must weigh the harm to Plaintiff Jones against possible damage to Defendants. Micshel-Trapaga v. City of Gainesville, 907 F. Supp. 1508, 1513 (N.D. Fla. 1995). While Plaintiff Jones is threatened with institutionalization, Defendants' only possible damages are monetary. The harm to Plaintiff Jones here clearly outweighs any harm to Defendants. See, e.g., Edmonds, 417 F. Supp. 2d at 1342 (harm to plaintiffs of being deprived of essential medical services outweighs any harm to state); Illinois Hosp. Ass'n v. Illinois Dep't ofPublic Aid, 576 F. Supp. 360, 371 (N.D. III. 1983) ("once a state has voluntarily elected to participate in the Medicaid program ... [it cannot] characterize its duty to comply with the requirements of [the program] as constituting a hardship to its citizens"); Kansas Hosp. Ass'n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D. Kan. 1993) (threatened injuries to plaintiffs outweighed any harm to defendant that would result from issuing the temporary restraining order because changing Medicaid coverage "significantly alters the status quo to the detriment of the individual plaintiffs, while its positive budgetary impact on state coffers is negligible in a relative sense").
The balance of hardships clearly favors Plaintiff Jones in this case. All that she is asking is that Defendants spend less of their Medicaid funds and permit her to continue to reside in her home with the personal attendants she needs to accomplish her activities of daily living. Providing the requested accommodation falls squarely within the duties imposed upon Defendants by either the Medicaid waiver or the Medicaid personal care option.
By contrast, if Plaintiff Jones must leave her home and go to a nursing facility,
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Defendants will expend more Medicaid funds than they would were she in the community. Further, Plaintiff Jones would be institutionalized despite the fact that she has successfully resided in the community since she became disabled nearly 18 years ago..
Plainly, the balance of hardships tips in favor of Plaintiff Jones.
v. The Public Interest
A preliminary injunction to provide services to Plaintiff Jones to avoid institutionalization is not adverse to the public interest. In determining whether the public interest will be disserved by the granting of a request for preliminary injunction, courts may look to the legislative intent in enacting the statute sought to be enforced. As the Eleventh Circuit found in Johnson v. US.D.A .• 734 F.2d 774, 788 (11 th Cir.l984), cost to the government "alone" is not a reason to deny a preliminary injunction as being against the public interest. In a case challenging foreclosure procedures, the court looked at the legislative purposes of the Housing Act of 1949 and found that the public interest of providing decent housing would be served by preventing premature foreclosures. ld
The public interest also will be served by an order granting a preliminary injunction for Plaintiff Jones. There is a strong public policy expressed in the ADA and Section 504. Congress found that discrimination against people with disabilities is a serious and pervasive social problem, and that people with disabilities have been subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such persons to participate in and contribute to society. 42 U.S.C. §1210l. The purpose of the ADA's passage was to provide a clear and comprehensive
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national mandate for elimination of discrimination against individuals with disabilities. Accordingly, it serves the public interest to issue the requested preliminary injunctive relief. VI. Waiving the Bond Requirement
Plaintiffs should be exempted from the bond requirement of Fed. R. Civ. P.65(c). The amount of required security is within the discretion of the trial court. Bell South, 425 F.3d at 971; Caterpillar, Inc. v. Nationwide Equipment, 877 F.Supp. 611, 61 7 (M.D. Fla. 1994); Baldree v. Cargill, Inc., 758 F.Supp. 704 (M.D. Fla. 1990), affd, 925 F.2d 1474 (lIth Cir. 1991). The court may also waive all payment.
Courts have used their discretion to waive the bond requirement for indigent plaintiffs. E.g., Bass v. Richardson, 338 F. Supp. 478, 490 (E.D.N.Y. 1971) ("It is clear that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c)"); Denny v. Shealth & Social Servo Bd. a/State a/Wis., 285 F. Supp. 526, 527 (E.D. Wis. 1968) ("Poor persons ... are by hypothesis unable to furnish security as contemplated in Rule 65(c), and the court should order no security in connection with the preliminary
injunction."). See also Maine Ass'n 0/ Interdependent Neighborhoods, 647 F. Supp. at 1319
(court granted waiver of bond, noting impecunious status of plaintiffs, and based on plaintiffs strong case on the merits).
Plaintiff Jones is indigent and seeks injunctive relief to receive services in the community that Defendants already provide in nursing homes. The case implicates the public interest and the balance of hardships tips sharply in favor of the Plaintiff. This Court should not require Plaintiff Jones to give security. VII. Conclusion
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For the reasons and on the authority cited above, Plaintiff respectfully requests that this Honorable Court grant her preliminary injunctive relief. She has demonstrated a substantial likelihood of success on the merits; that she will suffer irreparable injury in the event emergency relief is denied; and that the balance of hardships tip in her favor.
Respectfully submitted,
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 stevegoldada@cs.com (Application for admission pro hac vice to be filed)
& DODD,P.L.
n;?!-
Howanitz, Esq. a Bar No. 0020967 01 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counselfor the Plaintiff
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 Case 3:09-cv-01170-MMH-JRK Document 25 Filed 12/29/09 Page 1 of 17 PageID 143

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

CASE NO. 3:09-CV-1170-J-34JRK

THOMAS ARNOLD, in his official Capacity as the Secretary of Florida Agency for Health Care Administration

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health

Defendants.
_________________________________________/

DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT

The Defendants, THOMAS ARNOLD, in his official capacity as the Secretary of

the Florida Agency for Health Care Administration, and DR. ANNA VIAMONTE ROSS,

in her official capacity as Secretary, Florida Department of Health, by undersigned

counsel, hereby move pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. P., to dismiss this

cause for lack of subject matter jurisdiction, failure to state a claim upon which relief can

be granted, and because the claims are barred by issue or claim preclusion. As grounds

therefore, Defendants state as follows:

1. On December 15, 2009, Plaintiff Jones filed an amended complaint, which

was served on Defendants on the same date via the CM/ECF system (Amended

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Case 3:09-cv-01170-MMH-JRK Document 25 Filed 12/29/09 Page 2 of 17 PageID 144
Complaint). The Amended Complaint alleges that Defendants violate Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (ADA), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (Rehab Act) by denying in-home health services to Plaintiff Jones and a putative class of similarly-situated persons.1
2. This Court should dismiss Plaintiffs‟ Amended Complaint. Plaintiff Jones‟ case is moot, because Defendants are currently in the process of enrolling Plaintiff Jones in the Traumatic Brain Injury / Spinal Cord Injury Medicaid Waiver Program (TBI/SCI Waiver Program). Affidavit of Kristen Russell. Because the named plaintiff‟s case became moot prior to certification of the class2, the action is moot and must be dismissed.
3. This Court should dismiss the Amended Complaint pursuant to pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. P..
4. Even if this Court were to find that Plaintiff Jones‟ case is not moot, or that the mootness of Plaintiff Jones‟ case does not render the entire action moot, the Amended Complaint should still be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P., because the Amended Complaint fails to state a claim upon which relief can be granted.
1 The putative class consists of Florida disabled residents with a spinal cord injury who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid-funded services; and are at risk of being forced to enter a nursing home because Defendants do not provide adequate community-based services. ¶ 34 of Amended Complaint. 2 Plaintiff Jones‟ case became moot prior even to any motion for certification of the putative class.
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5. Plaintiffs‟ claim for the provision of community-based personal care services exceeds the scope of the ADA, because the applicable statute and implementing regulations do not require provision of the services sought by the Amended Complaint.
6. Plaintiffs‟ requested class remedy would result in a fundamental alteration of the Florida Medicaid Program, which the ADA does not require.
7. Plaintiff‟s claims, both individually and on behalf of a putative class, are barred by issue or claim preclusion (or collateral estoppel) in that, by the Settlement Agreement and Final Order in Dubois v. Levine, Case No. 4:03-CV-107-SPM, Plaintiff impermissibly seeks to relitigate issues disposed of in that class action litigation.
8. As further support for this Motion, the Defendants direct this Court to the following Memorandum of Law, which is attached hereto and incorporated herein by reference.
MEMORANDUM OF LAW I. The Amended Complaint Should Be Dismissed Because Plaintiff Jones’ Case
is Moot Plaintiff Jones‟ case is moot. According to the December 18, 2009, Affidavit of Kristen Russell, the Medicaid Waiver Administrator for the State of Florida‟s TBI/SCI Waiver Program, Defendants are currently in the process of enrolling Plaintiff Jones onto the TBI/SCI Waiver Program. A home visit was conducted by TBI/SCI Waiver Program personnel with Plaintiff Jones to discuss her needs on December 17, 2009. Affidavit of Kristen Russell, ¶ 2.C. On December 18, 2009, TBI/SCI Waiver Program personnel mailed documents to Plaintiff Jones to be completed by her physician, so that a formal
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determination of her eligibility for TBI/SCI Waiver Program services could be made by the Department of Elder Affairs, Comprehensive Assessment and Referral for Long Term Care Services program (CARES), the entity responsible for determinations of eligibility for community based services in lieu of nursing home services. Id., ¶ 2.D. Once such a determination is made, TBI/SCI Waiver Program personnel will develop a plan of care and authorize services based upon Plaintiff Jones‟ needs and the service limitations of the TBI/SCI Waiver Program established by rule and law. Id. It is anticipated that CARES will generate a Notification of Level of Care within 15 business days of receipt of the completed documentation from Plaintiff Jones‟ physician, and that Plaintiff Jones can expect to begin receiving services within 5 business days of Defendants‟ receipt of a positive CARES Notification of Level of Care. Id., ¶ 2.E. Ms. Russell stated that she is “unaware of any factors that would suggest that Ms. Jones will not be placed in the [TBI/SCI Waiver Program]” once the required processes have been completed. Id., ¶ 2.F.
Even though Plaintiff Jones is not yet receiving services from the TBI/SCI Waiver Program as of the date of this Motion, her case is moot now. Even if the Court were to order Defendants to place Plaintiff Jones on the TBI/SCI Waiver Program, the standard process of determination of eligibility, assessment of needs, and authorization of services would still have to take place. Defendants are already doing what Plaintiff Jones is asking the Court to order them to do: assessing the services and supports that would enable Plaintiff Jones to remain in the community and ensuring that Plaintiff Jones has access to Medicaid-covered services (for which she is eligible) that will meet her needs in
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the community. Amended Complaint, ¶ 51, 54. There is no case or controversy before the Court with respect to Plaintiff Jones. As such, her case is moot.
In a class action proceeding, once the class has been certified mootness of the class representative‟s claim does not necessarily moot the entire action. Sosna v. Iowa, 419 U.S. 393 (U.S. 1975). However, where, as here, the named plaintiffs‟ case is mooted before the class is duly certified in accordance with Rule 23, Fed. R. Civ. P., the entire action is moot. Board of School Comm'rs v. Jacobs, 420 U.S. 128, 129 (U.S. 1975). This is the law in the Eleventh Circuit. See Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir. Ala. 1987) (“In a class action, the claim of the named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiff's claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot”). In the instant case, the named plaintiff‟s case was mooted before any motion to certify was even filed with the Court. As such, there is no case or controversy before the Court at this time and the Court should dismiss pursuant to Rule 12(b)(1), Fed. R. Civ. P. II. Plaintiffs’ Claims for Community-Based Personal Care Services under the
ADA and the Rehab Act Fail to State a Claim Upon Which Relief Can Be Granted Because the ADA Does Not Require a Public Entity to Provide Services of a Personal Nature The entire premise of the Amended Complaint is undermined by the fact that the regulations promulgated pursuant to Title II of the ADA specifically provide that public entities do not have to provide services of the nature which Plaintiff is demanding. The specific services the Plaintiff is demanding in her Amended Complaint include assistance
5

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transferring from her bed to her wheelchair and from her wheelchair back to her bed, assistance dressing, grooming, toileting, personal hygiene, food preparation, cleaning her room, and assistance being turned twice a night to prevent decubitus ulcers. Amended Complaint, ¶¶ 21, 24. Plaintiff contends that both the ADA and Rehab Act require the provision of personal care services. This is not the case.
Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II also prescribes remedies available for a violation of the above provision and authorizes the Attorney General to promulgate implementing regulations. 42 U.S.C. §§ 12133, 12134.
Several regulatory provisions promulgated pursuant to Title II of the ADA are of particular relevance in this case. First, there is the “integration mandate” of 28 C.F.R. § 35.130(d), upon which Plaintiff heavily relies, which states that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Second, 28 C.F.R. § 35.130(b)(7), states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Finally, and most importantly, 28 C.F.R. § 35.135 states that the ADA regulations do “not require a public
6

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entity to provide to individuals with disabilities…services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added).
Plaintiff wants the Courts to enforce one regulatory provision while ignoring another that specifically excludes the requested services from the scope of the first. Florida is required to administer its services “in the most integrated setting appropriate,” but this cannot be read to require the Florida Medicaid Program to provide “services of a personal nature,” which is precisely the kind of services Plaintiff is requesting here.3 The ADA does not require the provision of these services.
It is anticipated that Plaintiff will argue that 28 C.F.R. § 35.135 only operates if the state is not already providing personal care services in institutions. Once a state provides personal care services in an institution, according to the anticipated argument, the “integration mandate” of 28 C.F.R. § 35.130(d) kicks in and requires the state to provide those services in the community. However, that is not what the regulation actually says. It says that “[t]his part,” meaning Title 28, Part 35, Code of Federal Regulations, which includes the “integration mandate,” “does not require a public entity to provide to individuals with disabilities… services of a personal nature including assistance in eating, toileting, or dressing.” 28 C.F.R. § 35.135. This regulation is not ambiguous. There are no disputed terms. As such, the regulation is not subject to interpretation by the Court or any administrative agency. It must be given its plain meaning. As the Eleventh Circuit stated in Charter Fed. Sav. & Loan Ass‟n v. Office of
3 While the TBI/SCI Waiver Program does indeed provide “services of a personal nature,” it is not required to do so by the ADA‟s integration mandate.
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Thrift Supervision, 912 F.2d 1569, 1580-1 (11th Cir. 1990), “where the language selected by the drafters is clear and unequivocal, the courts are bound to give effect to the plain meaning of the chosen words [of a regulation] and no duty of interpretation arises.” Id., citing KCMC, Inc. v. FCC, 600 F.2d 546, 549 (5th Cir. 1979).
The appendix to 28 C.F.R. § 35.130 clarifies that a public entity is not required to provide personal care services “except in special circumstances, such as where the individual is an inmate of a custodial or correctional institution.” 28 C.F.R. Pt. 35, App. A, Subpart B, §35.130. Would the Plaintiff argue that a state that provides personal care services in a correctional institution is required by the integration mandate to provide such services in the community? This would be an absurd result, completely nullifying 28 C.F.R. § 35.135 of any effect.
The entire premise of Plaintiff‟s Amended Complaint, which is that the Florida Medicaid Program is required to provide personal care services as a result of the integration mandate, is undermined by 28 C.F.R. § 35.135. The Amended Complaint thus fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. III. Plaintiffs’ Requested Class Remedy Fails to State a Claim Upon Which Relief
Can Be Granted Because It Would Result in an Impermissible Fundamental Alteration to the Florida Medicaid Program in Violation of the ADA The State of Florida has no obligation to provide the putative class of plaintiffs with personal care services either by adding personal care services to its Medicaid State Plan or through its TBI/SCI Waiver Program, to the extent there are no unfilled slots.
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Medicaid is a joint federal-state venture created by federal statute, Title XIX of the Social Security Act of 1965, as amended. 42 U.S.C. § 1396 et seq. (Medicaid Act). In order to participate in Medicaid, a state must submit a plan to the federal government outlining its program to fund medical services for the poor and needy in accordance with the federal Medicaid Act. If the federal government approves the plan, it “then subsidizes a certain portion of the financial obligations which the state has agreed to bear.” Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997) (citing Silver v. Baggiano, 804 F.2d 1211 (11th Cir. 1986). Currently, with the addition of stimulus funds pursuant to the American Recovery and Reinvestment Act of 2009, the federal government provides 67.64% of the money in Florida‟s Medicaid program for the Fiscal Year 2009. 74 Fed. Reg. 6469764700.
The federal Medicaid Act defines “medical assistance” to mean payment for all or part of the services listed in 42 U.S.C. § 1396d(a)(1) through (28). 42 U.S.C. § 1396d(a). Only seven of the twenty-eight services listed are mandatory, meaning that a state must include such in its state plan in order to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services for adults over the age of 21 include inpatient hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nurse-midwife services, and certified nurse practitioner services. See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to provide at least the services listed in § 1396d(a)(1) through (5), (17) and (21)). Thus, Florida is required by federal law to make nursing facility services available and, if these services are medically necessary for the
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putative class members, they are entitled to them as a matter of federal law. See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
Florida may include any of the twenty-one services listed in 42 U.S.C. § 1396d(a), including personal care services. However, it is essential to note that Florida is not required to provide such services to comply with the Medicaid Act, and, to the extent that Florida opts not to provide any of these twenty-one other services, Florida‟s Medicaid recipients to do not have an entitlement to those services.
In addition to the Medicaid services offered under a state‟s Medicaid State Plan, a state may also enter into an agreement with the federal government to offer services under a waiver program, such as the TBI/SCI Waiver Program. See 42 U.S.C. § 1396n(c). Under home and community-based waiver programs such as the TBI/SCI Waiver Program, the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). Most importantly for the purposes of this case, the Medicaid Act permits waiver of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). Id. This provision requires state plans to offer the services in 42 U.S.C. § 1396d(a) to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396a(a)(10)(B). By providing for a waiver of the comparability requirement, the Medicaid Act permits states to discriminate on the basis of disability.
The Medicaid Act also permits waiver of Medicaid requirements with respect to limiting the number of persons receiving waiver services and eliminating the statewideness requirement. While a state must provide services under its State Plan to
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everyone who meets the state‟s Medicaid eligibility requirements, the waiver law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Waiver of statewideness means that states can limit the provision of HCBS services to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3).
It is important to note that while the federal Medicaid Act permits states to create home and community-based waiver programs, it does not require states to do so. As the Medicaid Act states, “a State plan approved under this subchapter may include as „medical assistance‟ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by” the federal government. 42 U.S.C. § 1396n(c)(1) (emphasis added). Neither does the Medicaid Act require the federal government to approve states‟ home and community-based waiver programs. The Secretary of the Department of Health and Human Services “may by waiver” allow states to create home and community-based programs. Id. (emphasis added).
The Florida Medicaid Program does not provide in-home personal care services for adults like the putative class member plaintiffs. While Florida does provide in-home personal care assistance through its TBI/SCI Waiver Program, Florida has opted to place a cap on the number of persons enrolled in this program. The TBI/SCI Waiver Program does not have adequate openings at this time to accommodate all members of the putative class. The Amended Complaint does not allege that Florida has violated the Medicaid Act by failing to provide in-home personal care assistance. However, it does request that
11

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the Court order Defendants to provide such services to members of the putative class. Such an order would effectively nullify one or more provisions of the Medicaid Act, thus forcing modifications that would “fundamentally alter” the Medicaid Program in violation of ADA regulations. 28 C.F.R. § 35.130(b)(7).
By ordering the provision of such services, the Court would invalidate the Medicaid Act‟s explicit statement that the only mandatory services are those found at 42 U.S.C. § 1396d(a)(1) through (5), (17), and (21) by converting personal care assistance from an optional service to a mandatory service. 42 U.S.C. § 1396a(a)(10)(A). This would require Florida to undertake a massive program expansion to ensure the provision of personal care assistant services to Medicaid recipients, fundamentally altering the program in the process.
In the alternative, such an order would invalidate the provision in 42 U.S.C. § 1396n(c)(1) declaring that home and community-based waiver programs are optional for states and that states can cap enrollment in such programs. The TBI/SCI Waiver Program does not have adequate numbers of qualified community providers to sustain the significant increase in capacity that would come from invalidating enrollment caps. Requiring Defendants to transfer large numbers of persons onto the TBI/SCI Waiver Program would fundamentally alter it in the process.
In summary, no state is required to offer personal care assistance services as part of its Medicaid State Plan, and Florida has not opted to do so. Every state is required to provide nursing facility services as part of its Medicaid State Plan, and Florida provides such services to eligible Medicaid recipients. Florida offers personal care services within
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nursing facilities to Medicaid recipients who require them, both disabled and nondisabled. No state is required to create home and community-based waiver programs. Florida has created and received federal approval for several such waivers, including the TBI/SCI Waiver Program. Florida offers personal care services as part of the TBI/SCI Waiver Program. Florida has capped the enrollment in the TBI/SCI Waiver Program to 375, which is permitted under the Medicaid Act and has been approved by the federal government. The relief requested in the Amended Complaint would fundamentally alter Florida‟s Medicaid Program by requiring Defendants to either offer personal care services as part of the Medicaid State Plan or uncap or increase enrollment in the TBI/SCI Waiver Program. It should be noted that Florida is not able to take either of these measures without approval from the federal government.
Because the relief requested under the ADA would fundamentally alter the Florida Medicaid Program, it is not required by the ADA and Plaintiffs have failed to state a claim upon which relief can be granted. This Court should dismiss the Amended Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. IV. Issue or Claim Preclusion Bars This Action
In Dubois v. Levine, supra, the Federal District Court for the Northern District of Florida addressed a claim on behalf of a statewide class of persons with brain and spinal cord injuries that the State Defendants, the secretaries of the Florida Agency for Health Care Administration and the Department of Health (the same defendants in the case sub judice) engaged in a “systemic and continuing failure to provide the named Plaintiffs and alleged
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class members (Plaintiffs) with medically necessary home and community based services” in violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, Title XIX of the Social Security Act, and all implementing regulations. See Complaint, attached as Exhibit A.
The Court certified as a class “all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive services from Florida‟s Medicaid Waiver Program for persons with traumatic brain and spinal cord injuries and have not received such services.” (Emphasis added.) See Settlement, attached as Exhibit B. This Settlement was approved by the Court and the Court dismissed the action with prejudice pursuant to the Settlement‟s terms on January 4, 2007. See Order of Dismissal with Prejudice, attached as Exhibit C. There is no question Plaintiff Jones (as well as any other representative plaintiff who may be chosen) is within the scope of the class.
From these documents, it is self-evident that the issues and claims Plaintiff and the putative class seek to litigate here have been litigated to conclusion in Dubois. The law is clear that the doctrine of issue preclusion (or collateral estoppel) bars a party from what is tantamount to a collateral attack on a settlement issued in a prior class action asserting essentially the same claims or issues. Reyn‟s Pasta Bella, LLC v. Visa USA, Inc., 442 F. 3d 741 (9th Cir. 2006); Carter v. Rubin, 14 F. Supp. 2d 22 (D.C. D.C. 1998).
There are four core issues that are addressed in applying issue preclusion or collateral estoppel: (1) identity of issues; (2) prior adjudication resulting in a final judgment on the merits; (3) whether Plaintiff here was a party or in privity with a party to
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the prior adjudication; and (4) whether that party had a full and fair opportunity to litigate the issue in the prior proceeding. 47 Am. Jur. 2d, Judgments, sec. 489. In the case at bar, the issues are identical—the provision of Medicaid Waiver Services to BSCIP persons who are on a wait list and therefore not receiving those services and are at risk for institutionalization. The prior adjudication in Dubois case resulted in a final judgment on the merits. Further, the parties are identical because Plaintiff here is necessarily included in the definition of the class in Dubois. And finally, as a member of the Dubois class, Plaintiff had every opportunity through class counsel to litigate her issues in the prior proceeding. (In fact, Plaintiff here makes no challenge to the correctness, propriety or fairness of the Dubois proceeding.)
The federal courts generally follow a three-step process in determining whether issue preclusion applies: (1) the identification of issues in the two actions to determine whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) the examination of the record of the prior case to decide whether the issue was litigated in the first case; and (3) the examination of the record in the prior proceeding to ascertain whether the issue was necessarily decided in the first case. Id. Here, there is no doubt the issues are sufficiently similar and sufficiently material to justify invoking the doctrine; and the issues were both litigated and necessarily decided in Dubois. Accordingly, the doctrine of issue preclusion (or claim preclusion or collateral estoppel) applies to bar this action.
CONCLUSION
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This Court should dismiss the Amended Complaint as moot, or, in the alternative, for failure to state a claim upon which relief can be granted, or because the claims are barred by issue or claim preclusion.
Respectfully submitted this 29th day of December, 2009. AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: sheerana@ahca.myflorida.com DEPARTMENT OF HEALTH
BY: /s George Waas George Waas Special Counsel Fla. Bar No. 129967 Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 (850) 414-3662; (850) 488-4872 Fax E-mail: george.waas@myfloridalegal.com
CERTIFICATE OF SERVICE
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Case 3:09-cv-01170-MMH-JRK Document 25 Filed 12/29/09 Page 17 of 17 PageID 159 I HEREBY CERTIFY that a true and correct copy of the foregoing has been
served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 29th day of December, 2009.
s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
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 Case 3:09-cv-01170-MMH-JRK Document 28 Filed 01/06/10 Page 1 of 5 PageID 337

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

v.

Case No. 3:09-CV-1170-J34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants. ________________________________________

MOTION FOR CLASS CERTIFICATION

Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiff Jones, through her

counsel, submits this Motion for Class Certification.

1. Plaintiff respectfully request the Court to certify the case to proceed on behalf of the

following class:

Florida disabled residents with a spinal cord injury who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid-funded services; and are at risk, as determined by the recipient’s treating physician or other treating health professional, of being forced to enter a nursing home because Defendants do not provide adequate community-based services.

2. Plaintiffs seek declaratory and injunctive relief under the Americans With Disabilities

Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) to require Defendants to comply

Case 3:09-cv-01170-MMH-JRK Document 28 Filed 01/06/10 Page 2 of 5 PageID 338
with federal statutory law and federal regulations. 3. The named Plaintiff, Jacqueline Jones, seeks certification of this case as a class
action pursuant to Fed. R. Civ. P. 23(b)(2) to pursue an efficient and just resolution of all class members’ claims.
4. The proposed class consists of: Florida residents who currently, or at any time during this litigation: (1) are Medicaid eligible adults with spinal cord disabilities; (2) reside in the community and want to continue residing in the community and not in a nursing facility; (3) are at risk of institutionalization if they do not receive appropriate community-based Medicaid-funded services and (4) could reside in the community with appropriate Medicaid-funded community-based services.
5. Numerosity: The Plaintiff class is so numerous that joinder of all its members is impracticable. According to the recently released Kaiser Commission “Medicaid Home and Community-Based Service Programs: Data Update,” at Table 11, there were 434 people with spinal cord injuries on Florida’s “wait list” in FY 2008 for Medicaid community-based services. In December 2008, based on a document prepared by one of the Defendants, the Florida Medicaid waiting list for persons with spinal cord injuries had increased to 554 people. [Attachment “A.] By applying for community-based services, these people have indicated that they would rather live in the community. Joinder is impracticable because class members lack the knowledge and financial means to maintain individual actions.
6. Commonality: There are questions of law and fact that are common to all named Plaintiff, as well as to all putative class members, including whether Defendants failure to increase the number of people served in the community violates the Americans with Disabilities Act and the
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Rehabilitation Act of 1973. 7. Typicality: The claims of the named Plaintiff is typical of the claims of the class
as a whole in that the plaintiff and class members currently are at risk of institutionalization if Defendants do not provide appropriate community-based services.
8. Adequate representation: The named Plaintiff will fairly represent and adequately protect the interests of members of the class as a whole. The named Plaintiff does not have any interests antagonistic to those of other class members. By filing this action, the named Plaintiff has displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The relief sought by the named Plaintiff will inure to the benefit of members of the class generally. The named Plaintiff is represented by counsel who are skilled and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, practice and procedure in the federal courts and the prosecution and management of class action litigation.
9. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b)(2). Although the specific disabilities of the class members vary, they share a common need for health and personal care services. A class action is superior to individual lawsuits for resolving this controversy.
10. The proposed class definition is adequate and includes identifiable class members. Any member of the proposed class would have the requisite standing to sue on his or her own behalf or in his or her own right.
WHEREFORE, Plaintiffs respectfully request that this court certify this case as a class action pursuant to Fed. R. Civ. P. 23(b)(2).
3

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Respectfully submitted,
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
SPOHRER & DODD, P.L.
s/ Jay M. Howanitz Jay M. Howanitz, Esq. Florida Bar No. 0020967 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com
Counsel for the Plaintiff
LOCAL RULE 3.01 (g) CERTIFICATION
The undersigned counsel has attempted to discuss the matters raised with counsel for Agency for Health Care Administration and Florida Department of Health and has been informed by their office that they object to the relief sought herein.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183
stevegoldada@cs.com
4

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing, to the following: Andrew T. Sheeran, Agency for Health Care Administration, Office of the General Counsel, 2727 Mahan Drive, Building 3, MS #3, Tallahassee, Florida 32308; George L. Waas, Florida Department of Health, Office of the Attorney General, PL01 The Capitol, Tallahassee, Florida 32399, this 6th day of January, 2010.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183
stevegoldada@cs.com
5

 
 Case 3:09-cv-01170-MMH-JRK Document 29 Filed 01/06/10 Page 1 of 12 PageID 347

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

v.

Case No. 3:09-CV-1170-J34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants.

.

_________________________________________

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiff Jacqueline Jones, through her counsel, submits this Memorandum of Law in support

of the Motion for Class Certification. Plaintiff respectfully requests the Court to certify the case to

proceed on behalf of the following class:

Florida disabled residents with a spinal cord injury who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid-funded services; and are at risk, as determined by the recipient’s treating physician or other treating health professional, of being forced to enter a nursing home because Defendants do not provide adequate community-based services.

While the Plaintiffs bear the burden of showing that the requirements of Rule 23 have been

met, “[f]or the purposes of class certification ... the Court accepts the Plaintiffs’ substantive

allegations as true.” In Re Carbon Dioxide Antitrust Litig., 149 F.R.D. 229, 232 (M.D. Fla. 1993).

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In addition, “[t]he Court resolves any doubt in favor of class certification.” Id. See also Jackson v. Motel 6 Multipurposes, Inc., 175 F.R.D. 337, 340 (M.D. Fla. 1997). Finally, the court is not to conduct an inquiry into the merits of the Plaintiffs’ claim as part of the class certification proceedings. As stated by the Supreme Court in Eisen v. Carlyle & Jacquelin, 417 U.S. 156, 178 (1974): “in determining the propriety of a class action, the question is not whether ... plaintiffs have stated a cause of action or will prevail on the merits but rather whether the requirements of Rule 23 are met.”
Class certification requires that the class meet the four Rule 23(a) requirements of numerosity, commonality, typicality, and adequate representation, and the two Rule 23(b)(2) requirements that the Defendants “acted or refused to act on grounds equally applicable to the class,” and that final relief of an injunctive nature or corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole is appropriate. Fed. R. Civ. P. 23(b)(2). As shown below, the prerequisites are met in this case. I. THE PROPOSED PLAINTIFF CLASS MEETS RULE 23(a) CERTIFICATION
REQUIREMENTS. A. Numerosity Rule 23 requires that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Plaintiffs need not know the exact number in the class, but they must “proffer some evidence of the number in the purported class or a reasonable estimate.” Leszcynski v. Allianz Ins., 176 F.R.D. 659, 669 (S.D. Fla. 1997). The court may then make a “common sense assumption in order to find support for numerosity.” Evans v. U.S. Pipe & Foundry, 696 F. 2d 925, 930 (11th Cir. 1983). In this Circuit, “generally less than twenty-one is inadequate, more than forty adequate, with numbers in between varying according to other factors.” Cox v. American Cast Iron

Case 3:09-cv-01170-MMH-JRK Document 29 Filed 01/06/10 Page 3 of 12 PageID 349
Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Other factors that the Court should consider include the geographical dispersion of the class members, judicial economy, and the ease of identifying the members of the class and their addresses. See Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 598-99 (S. D. Fla. 1991).
The proposed class is so numerous that joinder of all the members is impracticable. Cox, 784 F.2d at 1553; see also Haymons v. Williams, 795 F. Supp. 1511 (M.D. Fla. 1982) (certifying class of 178 Medicaid-eligible individuals residing in adult congregate living facilities to challenge failure to provide notice and opportunity for hearing concerning termination of home health care services).
According to the recently released Kaiser Commission “Medicaid Home and CommunityBased Service Programs: Data Update,” at Table 11, there were 434 people with spinal cord injuries on Florida’s “wait list” in FY 2008 for Medicaid community-based services. In December 2008, based on a document prepared by one of the Defendants, the Florida Medicaid waiting list for persons with spinal cord injuries had increased to 554 people. [Attachment “A”]. By applying for community-based services, these people have indicated that they would rather live in the community. Joinder is impracticable because class members lack the knowledge and financial means to maintain individual actions. Thus, while the precise number of people is not known, for purposes of numerosity the number of members of the representative class vastly exceeds 40 and is more appropriately estimated at 450 to 550 class members.
Joinder of the proposed class members is also impracticable because of class members’ limited resources, physical disabilities and geographic dispersion. Armstead v. Pingree, 629 F. Supp. 273, 279 (M.D. Fla. 1986). Class members are located across the entire state of Florida and have limited ability to prosecute their cases individually due to their limited income and disability status. Further, there is judicial economy in rendering a classwide decision on the requested injunctive and

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declaratory relief. In the instant case, the numerosity of the proposed class far exceeds the number of class
members which have been certified as a sufficiently numerous class in other cases. See, e.g., Custom v. Trainor, 74 F.R.D. 409 (N.D. Ill. 1977), (permitting a class of welfare recipients numbering in excess of 62 members); National Ass’n of Radiation Survivors v. Walters, 111 F.R.D. 595, 598 (N.D.Cal. 1986), rev’d on other grounds sub nom., National Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583 (9th Cir. 1992) (conditionally certifying class, stating that if 40 benefit claimants could meet the class description, the class would be sufficiently large); Phillips v. Joint Legislative Comm’n, 637 F.2d 1014 (5th Cir. 1981)1 (holding that 33 class members satisfied numerosity); Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974) (certifying class of 51); Lawson v. Wainwright, 108 F.R.D. 450, 454 (S.D. Fla. 1986) (certifying class of 59).
In sum, there are approximately 500 individuals in the purported class and all relevant factors support a finding of numerosity.
B. Commonality Rule 23 also requires that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Allegations of a “policy” or “practice” of treating the entire class unlawfully generally satisfy the commonality requirement. International Bd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (finding commonality where racial discrimination was the company’s standard operating procedure – the regular rather than the unusual practice); see also Cooper v. Federal Reserve, 467 U.S. 867, 878 (1984); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557-58
1 Decisions of the United States Court of Appeals for the Fifth Circuit, as the court existed on September 30, 1981, handed down by that court prior to the close of business on that date, are binding as precedent on the Eleventh Circuit of Appeals, established October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

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(11th Cir. 1986). Where a common scheme is alleged, common questions of law or fact will exist. See Murray v. Auslander, 244 F.3d 807, 813 (11th Cir. 2001) (class certified to challenge State’s policy of “capping” the per person amount under Florida’s Developmental Disabilities Medicaid Waiver Program).
The threshold for commonality is not high. Forbush v. J.C. Penny Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1990). The Rule does not require complete identity of legal claims among class members. Johnson v. American Credit Co. of Ga., 581 F.2d 526, 532 (5th Cir. 1978).
In this case, the named Plaintiff and purported class are Medicaid recipients who are at risk of unnecessarily institutionalized because of Defendants’ failure to cover services and support in appropriate, integrated community settings as required by the ADA. The Amended Complaint lists the challenged practices with specificity. (See Dkt. ¶¶ 57-61).
Common questions of fact and law for all class members include whether Defendants violate the “integration mandate” of the ADA and Section 504 by requiring named Plaintiff and class members to be institutionalized in nursing facilities in order to receive long-term care services, rather than providing those services in appropriate settings in Plaintiff’s homes and communities. This common issue satisfies commonality.
While the circumstances of class members vary in terms of the extent and intensity of the community services needed, this does not affect commonality. As stated in Pottinger v. City of Miami, 720 F. Supp. 955 (S.D.Fla. 1989): “It is only necessary to find at least one issue common to all class members.” (citing Slaughter v. Levine, 598 F. Supp. 1035,1044 (D. Minn.1984)).
The fact that there may be minor factual differences in the extent and intensity of the community services needed does not defeat the maintenance of a class action if there are common questions of law. Id. at 958; Coley v. Clinton,635 F.2d 1364,1378 (8th Cir. 1980). In the instant

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case, the fact that class members may require different and varying levels of services and support to live in the community does not negate commonality. Further, any difference in the medical conditions of the class members is irrelevant as to whether there is commonality as all class members seek common relief.
C. Typicality Rule 23 further requires that the claims or defenses of the representative parties be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A representative’s claim is typical “[1] if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and [2] if his or her claims are based on the same legal theory.” H. Newberg, 1 Newberg on Class Actions §3.13, at 3 (4th ed. 2007). This Circuit has stated that typicality exists when there is: [A] nexus between the class representative’s claims or defenses and the common questions of fact or law which unite the class. A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. Typicality however, does not require identical claims or defenses. A factual variation will not render a class representative's claim atypical unless the factual position of the representative markedly differs from that of other members of the class. Kornberg v. Carnival Cruise Lines, 741 F.2d 1332, 1337 (11th Cir. 1984). The claims of the named Plaintiff and proposed class members are based on the ADA and Section 504, which require that Defendants not unnecessarily confine persons with disabilities in segregated settings such as nursing homes. The class representative, like the class members, is challenging Defendants’ failure to provide the class with meaningful choice of community-based long-term care alternatives to nursing facilities. The legal claims and relief sought by the named Plaintiff and the putative class – declaratory and injunctive relief – are identical. The named Plaintiff does not seek individual relief.

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As with commonality, the incidental variations in Plaintiffs’ factual situations do not defeat typicality, because the basic nature of the injury and the legal theory of recovery is typical for the entire class. See Miles v. Metropolitan Dade County, 916 F.2d 1528, 1534 (11th Cir. 1990); Kornberg v. Carnival Cruise Lines, Inc.,741 F.2d 1332 (11th Cir. 1984), Goodman v. Lukens Steel Co., 777 F.2d 113, 123 (3d Cir. 1985) (typicality satisfied despite fact that “in a number of areas the class representatives’ specific allegations are distinct from those of the class as a whole”), aff’d on other grounds, 482 U.S. 656 (1987); Edmonds v. Levine, 233 F.R.D. 638, 641 (S.D. Fla. 2006) (differences in medical conditions and prescriptions “irrelevant for purposes of the typicality requirement” because the action of Medicaid agency to deny the service and the underlying rationale for the denial were identical for the named plaintiff to those of each proposed class member).
As stated in Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985): subsection a(3) [typicality] primarily directs the district court to focus on whether named representatives’ claims have the same essential characteristics as the claims of the class at large...the typicality requirement may be satisfied even if there are factual distinctions between the claims of the named Plaintiffs and those of other class members... Thus courts have found that a strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences.
In Appleyard, the court focused on the similarity of relief, stating that all class members were similarly interested in the requested relief, that the court “declare the policies and customs of the Defendants invalid” and “enjoin the defendants from determining any member of the class to be ineligible without full compliance with applicable federal law.” Id. at 958. Similarly, in the present case, the complaint requests the same declaratory and injunctive relief for all class members.
D. Adequacy of Representation Further, Rule 23 requires that the class representatives be persons who “will fairly and

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adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In determining whether named plaintiffs will adequately represent a potential class pursuant to the requirements of Rule 23(a)(4), the Court should consider (1) “whether plaintiffs’ counsel are qualified, experienced and generally able to conduct the proposed litigation and ... (2) whether plaintiffs have interests antagonistic to those of the rest of the class.” Kirkpatrick v. Bradford & Co. , 827 F.2d 718, 726 (11th Cir. 1987) (quoting Griffin v. Carlin, 755 F.2d 1516, 1532 (11th Cir. 1985).
Each concern is satisfied here. The proposed class representatives share the interest of the putative class in bringing an end to the unlawful practice of Defendants and in obtaining relief for the violations of Plaintiff’s rights. There is no sense in which named Plaintiff’s interests can be said to conflict with the interests of other members of the proposed class. The common allegations of Defendants’ practices, the nature of the relief sought, and the legal theories advanced demonstrate the required congruity of interests. The second requirement for adequacy is also satisfied. The named Plaintiff has obtained experienced counsel who are skilled and knowledgeable about civil rights litigation, Americans With Disabilities Act, Medicaid law, practice and procedure in the federal courts and the prosecution and management of class action litigation.
Stephen F. Gold is private practitioner who has been practicing law since 1971 and has dedicated most of his career to representing children and adults with disabilities. He has litigated over 50 cases under the Americans With Disabilities Act and Section 504, and dozens of other cases on behalf of persons with disabilities under other statutes. See, e.g., Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003)(holding the ADA’s “integration mandate” was violated by requiring people with disabilities to be segregated in nursing homes to receive appropriate community services, i.e., unlimited prescriptions); Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert denied, 116 S.Ct. 64 (1995) sub nom. Secretary of DPW of Pa. v. Idell S. (DPW’s unnecessary

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segregation of persons in a nursing home and its failure to provide attendant care in “most integrated setting appropriate,” instead of only in a nursing home, violated ADA); Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983), aff’d, 732 F.2d 146 (3d Cir. 1984), cert denied, 105 S.Ct. 955 (1985) (Department of Public Welfare violated Section 504 by not providing blind employees with reasonable accommodations, including readers – Cited with approval by Congress in the legislative history to define the scope of the ADA); American Disabled For Accessible Pub. Transp. (ADAPT) v. Skinner, 676 F. Supp. 635 (E.D. Pa. 1988), 867 F.2d 1471 (3d Cir. 1989), 881 F.2d 1184 (3d Cir. 1989) (en banc) (federal regulation which permitted transportation authorities to cap funds expended on disabled persons violated minimum service criteria; required U.S. DOT to promulgate new regulations – Concurrence opinion cited with approval by Congress in legislative history of ADA); Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004) (challenged Medicaid services’ delivery under “reasonable promptness”).
Plaintiff’s counsel bring substantial relevant experience to the prosecution of this case. The common interests of the proposed class will be fairly and adequately represented.
E. Defendants Have Acted Or Refused To Act On Grounds Generally Applicable To The Class Making Final Injunctive And Declaratory Relief Appropriate For The Class As A Whole
Certification under Rule 23(b)(2) further requires a finding that the defendant “acted or refused to act on grounds equally applicable to the class” and “final relief of an injunctive nature or a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole,” is appropriate. Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) was intended primarily to facilitate civil rights class actions, where, as here, “the class representatives typically seek broad injunctive or declaratory relief against Defendants’ discriminatory practices.” Penson, 634 F.2d 989, 993 (11th Cir. 1981); see also Ass’n for Disabled Am., 211 F.R.D. 457, 465 (S.D. Fla. 2002)

Case 3:09-cv-01170-MMH-JRK Document 29 Filed 01/06/10 Page 10 of 12 PageID 356
(certifying class of persons with disabilities alleging failure to meet accessibility requirements under ADA).
The focus of this litigation is on Defendants’ failure to provide the class with appropriate community-based long-term care alternatives to nursing facilities. Injunctive or declaratory relief settling the legality of Defendants’ behavior with respect to the class as a whole is appropriate. Class actions pursuant to Fed. R. Civ. P. 23(b)(2) are especially appropriate where the Plaintiff class seeks declaratory or injunctive relief from unlawful and/or discriminatory policies and practices in government benefit programs. See Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998) (concerning certified class of individuals with developmental disabilities waiting for intermediate care facility services); Hernandez, 209 F.R.D. 665 (certifying class of current and future Medicaid recipients who have or will have prescription drug coverage denied without due process); Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) (challenging failures in provision of mental health counseling services to deaf clients by therapists fluent in sign language); Haymons, 795 F. Supp. at 1522 (certifying class where Defendants refused to grant reinstatement, notice and hearing to Medicaid recipients whose home health care benefits were terminated). See also Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974).
Plaintiff has met the requirements of Rule 23(a) and (b)(2). As such, the proposed class should be certified. II. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court certify the Plaintiff class pursuant to Rule 23(a)&(b)(2).
Respectfully submitted,

Case 3:09-cv-01170-MMH-JRK Document 29 Filed 01/06/10 Page 11 of 12 PageID 357
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
SPOHRER & DODD, P.L.
s/ Jay M. Howanitz Jay M. Howanitz, Esq. Florida Bar No. 0020967 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com
Counsel for the Plaintiff
LOCAL RULE 3.01 (g) CERTIFICATION
The undersigned counsel has attempted to discuss the matters raised with counsel for Agency for Health Care Administration and Florida Department of Health and has been informed by their office that they object to the relief sought herein.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183
stevegoldada@cs.com

Case 3:09-cv-01170-MMH-JRK Document 29 Filed 01/06/10 Page 12 of 12 PageID 358
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing, to the following: Andrew T. Sheeran, Agency for Health Care Administration, Office of the General Counsel, 2727 Mahan Drive, Building 3, MS #3, Tallahassee, Florida 32308; George L. Waas, Florida Department of Health, Office of the Attorney General, PL01 The Capitol, Tallahassee, Florida 32399, this 6th day of January, 2010.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183
stevegoldada@cs.com

 
 Case 3:09-cv-01170-MMH-JRK Document 34 Filed 01/20/10 Page 1 of 11 PageID 405

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

CASE NO. 3:09-CV-1170-J-34JRK

THOMAS ARNOLD, in his official Capacity as the Secretary of Florida Agency for Health Care Administration

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health

Defendants.
_________________________________________/

DEFENDANTS’ RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

The Defendants, THOMAS ARNOLD, in his official capacity as the Secretary of the

Florida Agency for Health Care Administration, and DR. ANNA VIAMONTE ROSS, in

her official capacity as Secretary, Florida Department of Health, by undersigned counsel,

pursuant to Rule 23, Fed. R. Civ. P., and Rule 3.01(b), Local Rules, United States District

Court, Middle District of Florida, submit this response and memorandum of law in

opposition to Plaintiff’s Motion for Class Certification. As grounds therefore, Defendants state as follows:

INTRODUCTION Plaintiff brings this putative class action lawsuit pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (ADA), and Section 504 of the
1

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Rehabilitation Act, 29 U.S.C. § 794(a) (Rehab Act). In the Amended Complaint, filed December 15, 2009, Plaintiff claims that she and the members of the putative class are Medicaid-eligible disabled Florida residents with a spinal cord injury who reside in the community, wish to continue to reside in the community, and are at risk of being institutionalized in a nursing facility if not provided community-based services through the Medicaid program. Plaintiff claims that Defendants’ failure to provide in-home services through the Medicaid program constitutes unlawful discrimination under both the ADA and the Rehab Act.
On December 29, 2003, Defendants filed their Motion to Dismiss Plaintiff’s Amended Complaint for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and because the claims are barred by issue or claim preclusion. In brief: (1) the named Plaintiff’s case is moot as she is already in the process of being enrolled in the in the Traumatic Brain Injury / Spinal Cord Injury Medicaid Waiver Program (TBI/SCI Waiver Program); (2) the mooting of the named Plaintiff’s claim prior to the filing of a motion to certify the class renders the entire action moot; (3) Plaintiff’s claim for the provision of personal care services exceeds the scope of the ADA, because the applicable statute and implementing regulations do not require the provision of such services; (4) the requested class remedy would result in a fundamental alteration of the Florida Medicaid Program, which the ADA does not require; and (5) the claims are barred by issue or claim preclusion (or collateral estoppel).
2

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On January 6, 2010, Plaintiff filed her Motion for Class Certification (Motion) and Memorandum of Law in Support of the Motion (Memorandum). Plaintiff Jones contends that a putative class exists which is described as:
Florida disabled residents with a spinal cord injury who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid-funded services; and are at risk, as determined by the recipient’s treating physician or other treating health professional, of being forced to enter a nursing-home because Defendants do not provide adequate community-based services. Motion ¶ 1. Defendants oppose Plaintiff’s Motion because Plaintiff has not met her burden of satisfying the requirements of Rule 23(a) and Rule 23(b)(2), Fed. R. Civ. P.
MEMORANDUM OF LAW I. Plaintiff has failed to establish her burden of proving all the requisite elements
under Rule 23(a), Fed. R. Civ. P. In order for a class action to proceed, all four of the threshold conditions in Rule 23(a), Fed. R. Civ. P., must be met: (1) the class must be so numerous that joinder of all members is impracticable (numerosity); (2) there must be questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class (typicality); and (4) the representative parties must fairly and adequately protect the interests of the class (adequacy of representation). Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir. Fla. 2000); Fed. R. Civ. P. 23(a). In addition, the class action must fall into one of the three categories set forth in Rule 23(b)(1), (2), and (3), Fed. R. Civ. P. Amchem Prods. v. Windsor, 521 U.S. 591 (U.S.
3

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1997). Here, Plaintiff alleges that the Defendants have acted or refused to act on grounds generally applicable to the class, thereby making injunctive relief appropriate with respect to the class as a whole, and that the action satisfies thus Rule 23(b)(2), Fed. R. Civ. P.
The party seeking class certification has the burden of proof on the Rule 23, Fed. R. Civ. P., requirements. Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. Fla. 2003); Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228, 1233 (11th Cir. Fla. 2000). Furthermore, it is insufficient for the Plaintiff to rely on pleading allegations alone to satisfy her burden of proof. Walker v. Jim Dandy Co., 747 F.2d 1360, 1365 (11th Cir. Ala. 1984).
The Plaintiff has failed to meet her burden of proof as to the class certification. First and foremost, the class action should not be certified because the one named plaintiff has no justiciable claim. In the Amended Complaint, Plaintiff alleges that Defendants have failed to assess properly the services and supports that would enable Plaintiffs to remain in the community and to ensure that Plaintiff has access to Medicaid-covered services that will meet her needs in the community. But the Defendants are currently in the process of assessing Plaintiff Jones’ needs and the services and supports that would meet those needs in order to ensure that she receives the Medicaid-covered services for which she is eligible. See December 18, 2009, Affidavit of Kristen Russell (Docket number 24). The Defendants are already doing what Plaintiff Jones is asking this Court to order them to do. As such, her claims are moot.
Furthermore, because the provision of personal care services is not required under the ADA, and because the Plaintiff’s requested relief would require a fundamental alteration
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of the Florida Medicaid Program, Plaintiff fails to state a claim upon which relief can be granted. A named plaintiff who fails to state a claim on his or her own behalf cannot maintain a class action on behalf of others. See Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir. Fla. 1997).
Lacking a valid plaintiff representative, the Court cannot make a determination that the requirements in Rule 23(a), Fed. R. Civ. P., have been met. Given the Plaintiff’s vague definition of the class, the Court cannot determine whether the numerosity requirement is met without a plaintiff representative to serve as an example of, among other things, what it means to be “at risk’ of being forced into a nursing home. Without a plaintiff representative, the commonality and typicality requirements cannot be established. Obviously, where there is no valid plaintiff representative, there is no showing of adequacy of representation.
. As shown below, the facts alleged in Plaintiff’s Amended Complaint and Motion for Class Certification do not sufficiently demonstrate that the requirements of Rule 23(a) and Rule 23(b)(2), Fed. R. Civ. P., are met, and the Motion for Class Certification should therefore be denied.
A. Plaintiff has failed to demonstrate that the class is so numerous that joinder of all members is impracticable
Plaintiff alleges that the putative class is so numerous that joinder of all its members is impracticable. To support this, Plaintiff alleges in the Motion and Memorandum that a recent report shows that were “434 people with spinal cord injuries” on the wait list for Florida’s Traumatic Brain Injury / Spinal Cord Injury Medicaid Waiver Program (TBI/SCI Waiver Program) in FY 2008. Motion ¶ 5; Memorandum p 2. Plaintiff further alleges in
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the Motion and Memorandum that a document prepared by the Florida Medicaid Program shows that the “waiting list for persons with spinal cord injuries had increased to 554 people.” Id. These documents do not support this allegation of numerosity.
The mere fact that someone is on the waiting list for the TBI/SCI Waiver Program does not demonstrate that such person falls into the putative class. First, the mere fact that someone is on the waiting list does not mean that person has a spinal cord injury. A person who suffered a traumatic brain injury that did not damage his or her spinal cord could still be eligible for the TBI/SCI Waiver Program. See Affidavit of Kristen Russell, attached as Exhibit A.
Second, the mere fact that someone is on the waiting list for the TBI/SCI Waiver Program does not mean that such person currently resides in the community. Not everyone on the waiting list currently resides in the community. See Id.
Finally, the mere fact that someone is on the waiting list for the TBI/SCI Waiver Program does not show that such person is at risk of being forced to enter a nursing home. This element of the class definition, which is essential for the class members to even have standing, is not sufficiently described. What does it mean to be “at risk, as determined by the recipients’ treating physician or other treating health professional, of being forced to enter a nursing home”? What standards do the treating professionals use? How imminent must the risk be?
Plaintiff Jones is a prime example. A person must be at least 18 years old to qualify for the TBI/SCI Waiver Program. Had Ms. Jones applied and been placed on the waiting list at age 18, would she have been considered “at risk” of being forced to enter a nursing
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home? If so, then such “risk” is devoid of meaning, as Ms. Jones as managed to remain in the community for an additional 17 years after age 18 without receiving any services from the TBI/SCI Waiver Program. If Ms. Jones would not have been considered “at risk” of being forced to enter a nursing home at age 18, this clearly demonstrates that simply being on the TBI/SCI Waiver Program waiting list does not show that a person is part of the putative class.
B. Plaintiff has failed to show that there are question of law or fact common to the class
Plaintiff alleges that there “are questions of law and fact that are common to all named Plaintiff (sic), as well as to all putative class members.” Motion ¶ 6. However, given that the Court no longer has a justiciable controversy before it with respect to the named Plaintiff, and this was the case even prior to the filing of the Motion, there are no questions of law or fact before the Court at all. See Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir. Ala. 1987) (“In a class action, the claim of the named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiff's claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot”). How can the Court conclude that there is an entire class with common issues of law or fact when there is not even a valid Plaintiff representative before the Court? See Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 158 (U.S. 1982) (commonality requirement tends to merge with typicality and adequacy of representation).
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C. Plaintiff has failed to demonstrate that her claims are typical of the claims of the class
To maintain a class action, the Plaintiff must demonstrate that her claims are typical of the claims of the class. Rule 23(a)(3), Fed. R. Civ. P. This elements requires that the named plaintiff be a proper member of the class. Taliaferro v. State Council of Higher Education, 372 F. Supp. 1378, 1387 (E.D. Va. 1974). In the instant case, the named Plaintiff has no justiciable claims. The Defendants are in the process of assessing her needs in order to enroll her in the TBI/SCI Waiver Program pending a determination of her eligibility. See December 18, 2009, Affidavit of Kristen Russell (Docket number 24). This is precisely what the Defendants would have to do if the Court were to issue an order in accordance with Plaintiff’s requests in the Amended Complaint. As such, her claims are moot and she is not a member of the putative class. The Plaintiff has thus failed to meet her burden of proof in showing that the typicality requirement has been fulfilled.
Even if the Court were to determine that Plaintiff Jones case is not moot, she has still failed to show that her claims are typical of the claims of the class because of the numerous possible variations associated with determinations by treating physicians or other treating health professionals of the risk “of being forced to enter a nursing home.” Motion ¶ 1. There is any number of reasons that a person may enter a nursing home, and not all of them are based on medical indications. Plaintiff Jones is a good example. Her alleged “risk” of being forced to enter a nursing home is not based on any change in her medical condition, but rather upon changes in her overall life circumstances; namely, the abilities of her parents to care for her in the home.
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D. Plaintiff has failed to demonstrate that she is an adequate representative of the class
Plaintiff is required to show that she will fairly and adequately protect the interests of the putative class. Rule 23(a)(4), Fed. R. Civ. P. As set forth above, Plaintiff has failed to establish that the putative class exists, and thus has also failed to establish that she will represent that class adequately. Even if the Court were to determine that the putative class exists, Plaintiff still fails to show that she will fairly and adequately protect its interests. Since Plaintiff Jones is herself already in the process of being enrolled in the TBI/SCI Waiver Program, she has no personal stake in seeing that the program is opened up to other members of the putative class. See Docket number 24. As such, Plaintiff is not “interested enough to be a forceful advocate” on behalf of the putative class. Shulman v. Ritzenberg, 47 F.R.D. 202, 207 (D.D.C. 1969). Put another way, Plaintiff’s interests are not “sufficient to induce vigorous advocacy” on behalf of the class. Wyandotte Nation v. City of Kansas City, 214 F.R.D. 656, 661 (D. Kan. 2003). Plaintiff has failed to show that she is an adequate representative of the class. II. Plaintiff has failed to establish her burden under Rule 23(b), Fed. R. Civ. P.
In her Motion, Plaintiff alleges that Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole under Rule 23(b)(2), Fed. R. Civ. P. Motion ¶ 9. Plaintiff has failed to meet her burden to demonstrate that a class action may be maintained pursuant to Rule 23(b), Fed. R. Civ. P.
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It is especially important for courts to ensure that the named Plaintiff is a member of the putative class in Rule 23(b)(2), Fed. R. Civ. P., cases because of the necessity of “cohesiveness” in such cases. Mays v. Scranton City Police Dep't, 87 F.R.D. 310, 314 (M.D. Pa. 1979). Here, the named Plaintiff is not a member of the putative class. Plaintiff Jones is already in the process of being enrolled in the TBI/SCI Waiver Program. See Docket number 24. There is no action or inaction of the Defendants on grounds applicable to even the named Plaintiff, much less to an entire putative class.
CONCLUSION For the reasons stated above, this Court should deny the Motion for Class Certification.
Respectfully submitted this 20th day of January, 2010. AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: sheerana@ahca.myflorida.com DEPARTMENT OF HEALTH
BY: /s/ George Waas George Waas Special Counsel 10

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Fla. Bar No. 129967 Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 (850) 414-3662; (850) 488-4872 Fax E-mail: george.waas@myfloridalegal.com
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 20th day of January, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
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 Case 3:09-cv-01170-MMH-JRK Document 33 Filed 01/13/10 Page 1 of 21 PageID 374

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
AT JACKSONVILLE

JACQUELINE JONES,

Plaintiff,

v.

Case No. 3:09-CV-1170-J34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Class Action

Defendants.

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Defendants assert that because they will provide services to Jacqueline Jones, the named

Plaintiff, they are entitled to a motion to dismiss. Defendants‟ motion should be dismissed

because a judicial determination of her substantantive claims is necessary to avoid, at a

minimum, any future injury to Miss Jones. This decision is necessary since Miss Jones needs for

community-based services will certainly increase and change in the future as her parents age and

become weaker. Defendants have not and cannot assure this Court that Defendants will provide

her with appropriate community-based services for the inevitable increase in her needs.

Therefore, Miss Jones‟ action is not moot. To date, Miss Jones has not been provided or

guaranteed any services. It is difficult to envision how Defendants can argue that Miss Jones‟

claim is moot, when she remains at home without any services or certainty as to whether

Defendants will actually provide services. In addition, since there are more than 500 putative

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class members, limited discovery should be permitted to determine if any of the putative class members wish to become a named class representative. II. PROCEDURAL POSTURE
On September 26, 2007, then Deputy Secretary for Florida Medicaid Thomas W. Arnold, wrote to the federal Centers for Medicare and Medicaid Services, stating that the “Total Number Unduplicated Number of Participants” in Defendants‟ Traumatic Brain Injury/Spinal Cord Injury Waiver [“TBI/SCI” Waiver] would be a maximum of 375 per year for the five years of the waiver application. [Attachment “A”]. 1 Regardless of the actual number of otherwise eligible and needy people with spinal cord injuries who need and apply for the waiver or who may be on a waiting list for this waiver, Defendants have capped the number at 375.
The Kaiser Commission of Medicaid and the Uninsured recently issued a report entitled “Medicaid Home and Community-Based Service Programs: Data Update.” The Kaiser data was based on Defendants‟ data for FY 2008. At Table 11 the Kaiser Commission reported that there were 434 people on Florida‟s TBI/SCI waiting list for services. [Attachment “B”]. On December 4, 2008, Defendants wrote a report stating that, as of November 1, 2008, there were 554 people on the TBI/SCI Waiver wait list. [Attachment “C”]. These 434 to 554 people are the putative class members of the instant action.
Plaintiff Jones has been on Defendants‟ Spinal Cord Injury waiting list for a number of years. She is one of the 434 to 554 people who exceeded the maximum 375 available slots which Defendants have in their SCI waiver. Approximately once a year, Defendants telephoned Miss Jones, asked her questions and then mailed her a “Notice of Decision.” Each year, the Notice was virtually the same: “You have been placed on the TBI/SCI Waiver waiting list....

1

Year 1 was July 1, 2007 - June 30, 2008; Year 2 - July 1, 2008 - June 30, 2009; Year 3 -

July 1, 2009 - June 30, 2010; Year 4 - July 1, 2010 - June 30, 2011; and Year 5 - July 1, 2011 -

June 30, 2012.

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Reason(s) for placement on waiting list: No openings at this time.” On July 28, 2009, Miss Jones received another Notice of Decision from Defendants which stated same reason for denial of SCI Waiver services - “No openings at this time.” [Attachment “D.”] Similarly, on October 17, 2009, less than six weeks before she filed the instant action, she received a Notice of Decision stating again “No openings at this time.” [Attachment “E”.]
Miss Jones filed her complaint on December 2, 2009. [Dkt.1] She simultaneously filed her motion for a preliminary injunction. [Dkt. 2]. During the first week of December, 2009, counsel learned of the 434 people from the Kaiser report who were similarly situated as Miss Jones. Counsel then obtained Defendants‟ report which stated there were 554 people on the waiting list. These two documents indicated the existence of a putative class. Defendants do not and cannot realistically dispute that there are hundreds of persons are on waiting lists -- many have waited for years -- for Medicaid services in Defendants‟ SCI waiver. Nor can they dispute that the SCI waiver is capped at 375 through June 30, 2012, so that, but for a judicial finding in the instant action, no more than 375 people with SCI will receive communitybased services.
On December 15, 2009, an amended complaint was filed alleging a class. [Dkt.16]. Miss Jones was not contacted by defendants until after her amended complaint was filed. Defendants filed their motion to dismiss on December 29, 2009. [Dkt. 25]. Defendants make four arguments in support of their motion to dismiss. On January 6, 2010, a motion for the class was filed. [Dkt 28]. III. ARGUMENT
A. MOOTNESS i. Defendants Have Failed to Meet Their Heavy Burden to Demonstrate that Plaintiff’s Request for Injunctive and Declaratory Relief is Moot.
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Defendants cannot prevail on their claim of mootness because defendants have failed to
satisfy their “heavy burden” to demonstrate mootness with “absolute clarity.” Indeed, the
Supreme Court has made clear that the party asserting mootness bears the heavy burden of
proof that the plaintiffs‟ claims are moot. See Friends of the Earth, Inc., et al., v.
Laidlaw.Environmemtental Serv. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693 (2000).
A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. . . The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.
(Internal quotations omitted) (emphases added).
Given this standard, a party who voluntarily stops an illegal activity may not simply
assert that its cessation of the challenged activity is sufficient to render injunctive relief
moot. Rather, the party must make it absolutely clear that the illegal activity could not and
will not reasonably recur.
The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways…. A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. But here we have only appellees‟ own statement that it would be uneconomical for them to engage in any further joint operations. Such a statement, standing alone, cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellees’ shoes.
U.S. v. Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364
(1968) (internal. quotations and citations omitted) (emphasis added); See also U.S. v. W T.
Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894 (1953) (“voluntary cessation of allegedly illegal
conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not
make the case moot.”); United States v. Phosphate Export Assn., 393 U.S. 199, 203
(1968)(“[m]ere voluntary cessation of allegedly illegal conduct does not moot a case”); City
of Erie, et al., v. Pap’s A.M Kandyland, 529 U.S. 277, 287, 120 S.Ct. 382 (2000).
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Further, the Eleventh Circuit, in Secretary of Labor v. Burger King Corp., 955 F.2d. 681, 684 (11th Cir. 1992), recognized that courts have a duty to beware of a party‟s last minute efforts to defeat injunctive relief.
Because of the possibility that the defendant could merely return to his old ways, the test for mootness in cases such as this is a stringent one. A case might become moot if subsequent events made it, absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. As the Supreme Court has noted, it is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption. (Internal quotations and citations omitted) (emphasis supplied). See Reich v. Occupational Safety & Health Review Commission, 102 F. 3d. 1200 (11th Cir.1997) (employer‟s cessation of business did not render proceeding moot since existence of case or controversy did not depend on employer‟s post-violation acts). Though the Defendants argue that Plaintiff‟s claims are moot, Defendants have failed to meet their burden to demonstrate that the named Plaintiff (let alone class plaintiffs) will not, in the future, be subject to the same illegal denial of community-based services. See Friends of the Earth, supra. Defendants cannot meet their burden because they admit there is a waiting list of more than 500 people and that at least until 2012 they plan to serve in their Spinal Cord Waiver no more than 375 people. Moreover, given the waiting list, Defendants cannot in good faith say that Plaintiff Jones will not be forced to again wait for community-based services when her needs for services increase. It is undisputed that Miss Jones has significant disabilities and currently relies on her aging and infirm parents for whatever assistance the family can provide. As Miss Jones‟ needs increase in the future, Defendants cannot assert “there is no reasonable expectation the wrong will not be repeated.” Grant, supra at 633. Defendants current offer to provide her with Spinal Cord Injury Waiver services will, by necessity, take into account the services which her parents
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presently are able to provide her, e.g., cooking her meals and other assistance with activities of daily living. However, it is a certainty that Miss Jones‟ needs will change in the future as her parents age, pass away or become frailer than they presently are. Sometime in the near future, her parents will not be able to provide her with any assistance or with less assistance then the presently able to provide. Defendants cannot assure the Court that when Miss Jones‟ needs increase that Defendants will increase her services. Whether they can increase her services will depend on how many other people are receiving services, costs of other people, and many other factors. If Defendants are capped out when Miss Jones‟ needs increase, they may not be able to provide her with increased services. In the future, plaintiff will be forced to wait for needed services to make up for what her parents provide her at the present. Defendants cannot assure this Court they will be able to provide her with those services. 4
Because Defendants have failed to meet their burden of proof, Plaintiffs‟ claims remain justiciable. Without appropriate equitable relief, Plaintiff will be forced to undergo another seemingly endless wait on Defendants‟ waiting list. If Defendants are not barred from discriminating against Miss Jones in the future, the exact same controversy will present itself to this Court. See Vitek v. Jones, 445 U.S. 480, 487 (1980).
ii. Defendants’ Motion Should Be Denied Due to the Pendency of Plaintiff’s Motion for a Class Action
In their motions to dismiss, Defendants do not -- and cannot -- argue that the named Plaintiff does not have an interest in the relief sought in this case. Likewise, Defendants do not - and cannot -- assert that no putative class member has an interest in the outcome of Plaintiff‟s request for class certification. Consequently, Defendants‟ recent indication that it will provide Miss Jones services does not divest this Court of its jurisdiction over Plaintiff‟s request for class certification. The continuing nature of the controversy falls within the

4

This likelihood of reoccurrence of injury to Miss Jones distinguishes Defendants‟ reliance on Tucker v.

Phyfer, 819 F.2d 1030 (11th Cir. 1987),

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“narrow class of cases in which the termination of a class representative‟s claim does not moot the claims of the unnamed members of the class.” Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975)(noting there was a “constant existence of a class of persons suffering deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.”) In the instant case, there are approximately 545 other class members who suffer discrimination. Defendants should not be allowed to “pick off” a named plaintiff to escape their obligation to end discriminating against people with disabilities.
It is well settled that once a class has been certified, mooting a class representative‟s individual claim does not moot the entire action, because the class “acquire[s] a legal status separate from the interest asserted by [the named plaintiff].” Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553 (1975). Significantly, this principle also addresses litigation where, as here, although a class certification has been sought prior to Miss Jones actually receiving services, a determination as to certification has not yet been made. Thus, even though the named Plaintiff‟s present claims may have remedied, a class action may still be appropriate, and a named plaintiff will retain his or her standing to pursue the action as a class representative.
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to `relate back‟ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review. Id. at 402, n.11. In Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1.03,0 (5th Cir. 1981), 4 the Fifth Circuit applied the principles i n S o s n a w hen it held that a plaintiff in a putative class

4

A three-judge panel o f the Fifth Circuit: decided the Zeidman case on July 27, 1981.

Accordingly, this opinion is binding precedent in the Eleventh Circuit until it is overruled by

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action whose individual claims became moot prior to class certification may still have standing to pursue the class action if he has filed a motion for class certification and vigorously pursued it. In Zeidman, the defendant made a tender of relief to the named plaintiffs after they filed for class status, but before the district court‟s final certification decision. The district court dismissed the action based on defendant‟s argument that Article III standing required a named plaintiff to maintain individual standing until the class is certified. The Fifth Circuit reversed, holding that under the circumstances presented a district court‟s decision to certify a class could “relate back” to the filing of the motion for class certification. Id. at 1050-1051. Because the named plaintiffs‟ claims were not moot when they filed their motion for class certification, the defendant‟s subsequent offer of settlement did not cause the putative class action to become moot. Id.
The Circuit also explained the important policy arguments behind its holding. Where it is financially feasible for a defendant to “pick off” the named plaintiffs by providing relief prior to class certification, defendants would have the option to “preclude a viable class action from ever reaching the certification stage.” Id. at 1050. Because such a “result is precisely what the relation back doctrine of Sosna.... condemns,” the court refused to distinguish between mootness “caused by the defendant‟s purposive acts" and that which is caused "by the naturally transitory nature of the controversy.” Id. Accordingly, the court held that “a suit brought as a class action should not be dismissed for mootness upon tender to the named plaintiffs of their personal claims, at least when ... t he r e is pending before the district court a timely filed and diligently pursued motion for class certification.” Id, at 1051.
Zeidman has been characterized, not as an exception to Article III standing, but rather as a guide for evaluating whether an action remains a live controversy in the class action
the Eleventh Circuit en banc. See Bowler v. City of Prichard, 661 F.2d 120&, 1209 (11''' Cir. 1981).
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context - when the named plaintiff receives full compensation for his individual claims prior to class certification. Under the circumstances existing in Zeidman the controversy remains live notwithstanding the pre-certification satisfaction of plaintiffs‟ individual claims. District courts within the Eleventh Circuit have continued to apply Zeidman. See Bishop’s Property & Investments, LLC v. Protective Life Insurance Company, 463 F.Supp.2d 1375 (M.D. Ga. 2006) (defendant‟s tender of refund to named plaintiff before class could be certified did not render controversy moot); Candy H. v. Redemption Ranch, Inc., 563 F. Supp. 505 (D. Ala. 1983) (Named plaintiffs allowed to pursue class representation. even though the requested immediate injunctive relief was moot with respect to the named plaintiffs as both named plaintiffs had been released by defendants and did not plan to return.).
Defendants‟ conduct amounts to nothing more than an attempt to “pick off” the named plaintiff to avoid class liability. Defendants offered a potential for waiver services to Jacqueline Jones only after she filed both her original complaint and the amended complaint alleging a class and seeking class relief. Such timing suggests that Defendants have engaged in purposive acts designed to avoid the class litigation.
In the instant action, there has been no change in Defendants‟ policy with regards to the provision of services under their Spinal Cord Waiver program. Defendants have not stated they will end discriminating against people with spinal cord injuries who are on the waiting list. In fact, Defendants‟ own documents show there are more than 500 people like Miss Jones who need services. Defendants have not made any policy or program-wide changes to ensure that class members will not have to endure lengthy waits for communitybased services. The waiting list continues to exist, evincing the continuing controversy in this matter. Defendants have given no reason for their decision to disregard other people on the Spinal Cord Injury Waiver waiting list and to not provide them with community-based
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services. Defendants cannot be allowed to artificially moot this action before the Court has had the opportunity to rule on Plaintiff‟s Motion for Class Certification.
B. REASONABLE MODIFICATION AND FUNDAMENTAL ALTERATION Defendants Cannot Not Meet Their Burden to Prove A Fundamental Alteration Defense Given the Cost Savings that Florida Will Realize by Serving Ms. Jones and the Class in the Community Instead of in Nursing Homes
Plaintiff Jones and class members want to reside in the community. Despite meeting the level of care for a nursing home, the community by definition is “the most integrated setting” in which to provide them with services as required by both the Americans with Disabilities Act, 42 U.S.C. § 12132 and 28 CFR § 35.130(d)(the integration mandate) and the Rehabilitation Act of 1973, Section 504, 29 U.S.C. § 794(a) and 28 CFR § 41.51(d). Plaintiff Jones and the class allege that Defendants refusal to provide them with services in the community, but instead to provide them with the same services but only in nursing facilities, violates the “most integrated setting” mandate.
A reasonable accommodation, i.e., the provision of assistance with daily living activities in the community to persons with spinal cord injuries, is obviously feasible. Defendants already provide these services to some people with spinal cord injuries in the community in both their Medicaid Spinal Cord Injury Waiver and their Medicaid Personal Care Option programs. Named and class plaintiffs request only that these same community-based programs be expanded, instead of requiring named and class plaintiffs to receive the same services in an institution. This is precisely what the “most integrated setting” mandate requires. See Olmstead, 527 U.S. 581, 602-03, 607, 119 S.Ct. 2176 (1999).
To avoid liability under the integration mandate, the burden shifts to the Defendants to establish that the requested accommodation of Medicaid services in the community instead in a nursing home would constitute an undue burden or fundamental alteration of its programs.
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Olmstead, 527 U.S. at 602-03, 607; Frederick L.. v Department of Public Welfare, 364 F.3d 487, 492 n.4 (3rd Cir. 2004), Townsend v. Quasim, 328 F.3d 511, 520(9th Cir. 2003). Defendants cannot meet that burden in the instant action.
First, Defendants cannot argue that the costs of community-based waiver services will be more costly than these services in a nursing home. By federal statute, the costs of the Spinal Cord Waiver must be “cost neutral,” 42 U.S.C. §1396n(c)(4)(A). The federal Medicaid Act requires that the total costs for all the people in a waiver program cannot exceed the costs of the same number of people in a nursing home.
Courts in ADA integration cases have afforded relief to allow individuals with disabilities to receive community services. For example, the Court of Appeals for the Tenth Circuit rejected Oklahoma‟s argument that its limitation on a prescription drugs for people receiving services through a Medicaid HCBS waiver in the community (while providing unlimited prescriptions to nursing home residents) was necessary because of the state‟s fiscal crisis. Oklahoma‟s desire to save funds, even if reasonable, “does not constitute a defense” to the ADA‟s integration mandate. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003). In Fisher, the court noted “[T]he fact that Oklahoma has a fiscal problem, by itself, does not lead to an automatic conclusion that preservation of unlimited medically-necessary prescription benefits ...will result in a fundamental alteration .... If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA‟s integration mandate would be hollow indeed. Id. at 1182-83; Pennsylvania Protection Advocacy, Inc. v. Department of Welfare, 402 F.3d 374, 381 (3d Cir. 2005); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 601, 613-15 (7th Cir. 2004); Crabtree v. Goetz, 2008 WL 5330506 at *26 (M.D. Tenn. Dec. 19, 2008).
In fact, courts have held that the ADA‟s integration mandate requires states to provide far more costly in-home services than those afforded to Miss Jones in this case. In Crabtree, the
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court granted judgment in an ADA integration mandate case to an individual who needed inhome care at a cost of nearly $21,000 per month. The court granted a preliminary injunction to require the state to continue to provide up to 24 hours per day of skilled care to individuals who faced institutionalization in nursing homes absent such care. In Radaszewski and Grooms v. Maram, 563 F. Supp. 2d 840.859-63(N.D. Ill. 2008) (granting judgment to provide in-home care at cost of more than $16,000 per month to person with disability to avoid institutionalization), plaintiffs were permitted to seek extensive in-home nursing and home health services.
Second, this is not a case in which Defendants would have to create “new” services for Miss Jones or class members. Defendants currently provide the personal care services both in nursing homes and in the community. As such, the provision of in-home personal care services would not fundamentally alter Defendants‟ program by forcing them to develop a new service for Miss Jones. See Fisher, 335 F.3d at 1183 (noting that the plaintiffs were “simply requesting” a service that the state provided in a nursing home (unlimited prescriptions) to be provided in the community and, thus, “are not demanding a separate service or one not already offered by the state”); Radaszewski, 383 F.3d at 611 (holding that it is not a fundamental alteration to require states to simply adapt the location of where services are provided from institutions to the community).
Third, Defendants do not have a “waiting list that move[s] at a reasonable pace” for community services. Olmstead at 2189. Defendants‟ Spinal Cord Injury Waiver program caps the number of people who will receive services in the community at 375 through June 30, 2012, regardless of: (1) the number of people with spinal cord injuries who are waiting for services; (2) how long they will have to wait for services; and (3) the injury this waiting causes them and their families. Despite knowing how many individuals like Miss Jones have been on the “waiting list” for the Spinal Cord Injury Waiver, Defendants, have not sought to expand the number beyond 375. Defendants do not have a waiting list for community services that can
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move at a reasonable pace because, as their own documents show, the number of people on the waiting list had not decreased but has increased from 434 to 554 .
Fourth, modification of a State‟s Medicaid Plan is not a fundamental alteration. Defendants argue that Plaintiffs seek a fundamental alteration in service because in order for them to comply they would have to modify their Medicaid program. This argument is legally unsound. The mere fact that Defendants would have to amend its Medicaid Spinal Cord Injury Waiver to expand the number of persons eligible to serve Miss Jones and the class is simply not a fundamental alteration. There is nothing in Olmstead or its progeny that amending a Medicaid plan to comply with the ADA is a fundamental alteration.
Defendants fail to explain how modification of a Medicaid waiver – in the abstract or specifically in this case -- would rise to a fundamental alteration under Olmstead. This is not surprising since modifying either its Medicaid waiver or the Personal Care Option would not be difficult, costly, or otherwise a fundamental alteration. States have discretion in designing their Medicaid HCBS waivers and have authority to seek amendments from CMS. See Grooms, 563 F. Supp. 2d at 857. Since there is no law or similar barrier that precludes Defendants from seeking a modification of the Spinal Cord Injury Waiver, it cannot possibly be a “fundamental alteration.” More importantly, courts have held that it is not a fundamental alteration under the ADA‟s integration mandate to require states to modify their Medicaid HCBS waivers to provide services to individuals with disabilities in the community. In Grooms, the court rejected a fundamental alteration defense in a case filed by an individual with complex disabilities to secure extensive in-home services and avoid institutionalization. Grooms, 563 F. Supp. 2d at 856-63. The court specifically rejected the state‟s assertion that it would be a fundamental alteration to serve the plaintiff in the community because, to do so, the state would have to extend its HCBS Waiver to serve individuals who were eligible for hospital-level care in addition to those eligible for nursing facility level of care. Id. at 856-57.
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[R]equiring the State to submit an amendment need not fundamentally alter the ... Medicaid waiver program. ... Defendant here presents no basis to believe that the federal government would deny the State‟s application for an amendment in this case and the court will not concoct one. ... Accordingly, the requirement that [Defendant] amend its waiver does not constitute a fundamental alteration in the ... program.
Id. at 857; accord Radaszewski, 2008 WL 2097382 at *10, *15 (noting that federal government
has always approved state‟s waiver amendments, court held that the state “could modify or alter
the waiver ... to meet the community integration contemplated by Olmstead”).
Finally, Congress‟ and CMS‟ policies undermine Defendants‟ argument that it would be
a per se fundamental alteration to require a state to amend an HCBS waiver. As the Olmstead
Court recognized, the enactment of the HCBS waiver program, 42 U.S.C. § 1396n(c), in 1981,
constituted a reversal in the prior congressional Medicaid policy that preferred institutional over
community care. Olmstead, 527 U.S. at 601. “[T]he United States points out [as amicus curiae]
that the Department of Health and Human Services ... „has a policy of encouraging States to take
advantage of the waiver program ....” Id. Especially following Olmstead, “[t]he federal
government encourages states to use [HCBS] waivers to attempt to achieve community
integration.” Grooms, 563 F. Supp. 2d at 857.
More specifically, CMS made clear to state Medicaid directors that the simple fact that
the federal Medicaid law allows them to cap HCBS waiver services will not relieve them of
liability under the ADA‟s integration mandate:
May a State establish a limit on the total number of people who may receive services under an HCBS waiver?
Yes. Under 42 U.S.C. § 441.303(f)(6), States are required to specify the number of unduplicated recipients to be served under the HCBS waivers. ... The State does not have an obligation under Medicaid law to serve more people in the HCBS waiver than the number requested by the State and approved by the Secretary. If other laws (e.g., ADA) require the State to serve more people, the State may do so using non-Medicaid funds or may request an increase in the number of people permitted under the HCBS waiver. ... Failure to seek or secure Federal Medicaid funding does not generally relieve the State of an obligation
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that might be derived from other legislative sources (beyond Medicaid), such as the ADA). CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001) (emphasis in original and added), available at http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf. CMS has recognized, once a state has decided to provide services, it must provide those services in the most integrated setting appropriate to the needs of the individual -- even if it requires the state to change its Medicaid program by expanding its “optional” community programs. In other words, the state‟s Medicaid program is not exempt from compliance with the ADA any more than it is exempt from other civil rights laws. C. PERSONAL SERVICES
When a State Operates a Program that Includes the Provision of Personal Services to Individuals with Disabilities, the ADA’s Title II Regulations Require the State to Provide those Services In the Most Integrated Setting Appropriate Defendants argue that the ADA‟s implementing regulations preclude ordering a state to provide personal care assistance as a program modification or reasonable accommodation. In support of this argument, Defendants point to 28 C.F.R. 35.135, entitled ”Personal Devices and Services,” which provides that the regulations do not: require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing. According to Defendants, this regulation categorically exempts public entities from having to provide any personal services (such as the types of services Miss Jones and other people with spinal cord injuries require to reside in the community) to a qualified individual with a disability as part of a program modification. However, Defendants over-read this regulation. The personal devices and services regulation is intended to make clear that public entities are not generally required to provide personal devices and services to individuals with
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disabilities, where the provision of such devices and services is not otherwise a part of the program or service the entity provides. In the instant matter, Defendants‟ Spinal Cord Injury Waiver already provides precisely the personal care services Ms. Jones and class plaintiffs request. Defendants already provide these personal services via their Medicaid program in their Waivers, nursing homes and Personal Care Option in assisted living facilities. Plaintiffs are not requesting a service that is not presently provided. Where a public entity, like Defendants, already operate a program or provide a service that includes the provision of personal services – such as a program providing waiver services and nursing home services – it cannot discriminate against individuals with disabilities in the provision of those services.
The personal services regulation does not alter the State‟s obligations under the integration regulation. The two provisions must be read together. In order to have the force of law, the regulations implementing Title II – including the personal devices and services regulation – must reasonably enforce Title II‟s nondiscrimination mandate. The Supreme Court has already held that the prohibition on discrimination in the statute itself encompasses a ban on unjustified isolation or segregation. Olmstead, 527 U.S. at 597, 600, 119 S. Ct. at 2185, 2187.
The personal devices and services regulation cannot, therefore, exempt the State from Title II‟s requirement that public entities provide programs and services in a setting that is neither isolated nor segregated. Indeed, every ADA integration mandate decision involved the provision of personal services to the plaintiffs. In Olmstead, supra, Radaszewsk, supra, Fisher, supra, Crabtree, supra, and Grooms, plaintiffs all sought extensive in-home nursing and home health services. In Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied, 516 U.S. 813 (1995), the plaintiff sought precisely the same in-home attendant care services that Miss Jones and the other class members seek.
It is true that Title II would not require the State to provide personal services if the State did not already include such services as part of its program. However, Florida already provides
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personal services to individuals in need of such services in nursing homes, to almost 375 individuals in need of such services who are living in the community and are enrolled in the State‟s Spinal Cord Waiver program, and to persons in assisted living facilities who require these services.
The issue in this case is whether, and to what extent, the integration mandate requires Florida to provide services (including personal services) in the community to plaintiff class members who would otherwise receive such services only in nursing homes. Because the integration mandate requires that the personal services provided in nursing homes be provided to class members in the community, the personal services regulation does not bar relief.
D. RES JUDICATA The Dubois Settlement Agreement Is Not Res Judicata and Does Not Preclude the Instant Action
Defendants argue that the settlement agreement, class definition and order of dismissal in Dubois v. Levine, CA. No. 4:03-cv-107 (N.D. Fla.)(attached to Defendants‟ motion) raises issue or claim preclusion that bars the instant action. The class definition in Dubois was “all individuals with traumatic brain or spinal cord injuries who the state has already determine or will determine to be eligible to receive services from Florida‟s Medicaid Waiver Program for persons with traumatic brain and spinal cord injuries and have not received such services.”
Defendants never discuss the actual terms of the Settlement Agreement, but rather argue that all persons with spinal cord injuries who are or may anytime in the future be eligible for waiver services are barred in perpetuity from litigating claims of discrimination. Defendants‟ argument consumes all people with a spinal cord injury, whether or not they had had a spinal cord injury when the Dubois Settlement Agreement was signed by counsel on October 3, 2006 or when the Court signed the Order of Dismissal on January 4, 2007.
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A review of the actual terms of the Settlement Agreement does not support Defendants‟
broad interpretation. Rather, the explicit terms show that the class and Settlement Agreement
were time-limited. By its terms, the Dubois Settlement Agreement ended at the end of FY 2008-
2009, i.e., June 30, 2009. Specifically, ¶C(1) of the Settlement Agreement states:
DOH shall make it a priority to seek funding that will be sufficient to expand the TBI/SCI Waiver program by a minimum of 50 slots for FY 2006-07, 75 slots for FY 2007-08 and 75 slots for FY 2008-09. DOH shall use its best efforts to have its legislative budget request, with each of these stated waiver slot increases for each year, included as part of the Governor‟s recommended budget and to obtain the necessary legislative support and funding for this expansion of waiver slots. DOH shall support this request and shall use its best efforts to obtain legislative approval of the expansion in each of these fiscal years. (Emphases added.)
Defendants have no legal duty under the Settlement Agreement terms after FY 2008-09.
Any failure to provide Medicaid services to Miss Jones or anyone else beyond FY 2008-09 was
neither covered nor contemplated by the Dubois terms. Certainly, until the end of FY 2008-09,
persons with a spinal cord injury who were members of the class could not bring individual
actions for discrimination. However, there is nothing in the Dubois agreement to preclude Miss
Jones, or anyone else, from litigating after FY 2008-09. Defendants‟ argument would prevent
anyone with a spinal cord injury in 2020 or anytime in the future from ever litigating a claim of
discrimination.
Other references to dates in the Settlement Agreement also show that the parties intended
that the Dubois agreement have a limited or set application for a set period of time:
at ¶B(5), it was agreed that “[t]hrough January 2009, DOH shall provide Plaintiffs‟ counsel with a copy of any proposed changes to IOPs [Internal Operating Procedures] at least 30 days prior to their authorization;”
at ¶B(6), “[t]hrough January 2009, DOH shall provide Plaintiffs‟ counsel with a copy of any proposed changes to the brochures at least 30 days prior to authorization;”
at ¶B(9), “Plaintiffs agree that all requirements upon Defendants of copies or notice that run through January 2009 contained in this agreement are fully complied by Defendants by sending such copies or notice to Southern Legal Counsel, Inc. At the address supplied below;” and
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at ¶C(3), “through June 2009, AHCA agrees to provide Plaintiffs‟ counsel with copies of any approved amendments or renewals, to the state‟s current TBI/SCI Waiver Program application (approved as of June 2002) within 30 days of notification of approval by CMS (for approved amendments), including but not limited to any amendments to the number of waiver slots, applied for and approved by CMS.” (Emphases added.) The terms of the Settlement Agreement do not suggest that it would continue in perpetuity or that persons would be barred after the terms expired. To the contrary, Defendants had no legal duties under the Dubois Settlement Agreement after the FY 2008-09 ended. Nevertheless, Defendants now argue that members of the class are somehow bound forever. “[A] prior judgment is res judicata only as to suits involving the same cause of action.” Lawlor v. Nat’l Screen Service Corp., 349 U.S. 322, 329 (1955). While a “judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been ruled upon in the previous case.” Id. at 328. Thus, the resolution of the Dubois action does not bar a subsequent lawsuit that challenges the conduct that occurred after resolution of the first lawsuit. A new claim of discrimination is created as the conduct continues since a claim cannot be asserted based on facts not yet in existence. See, e.g., Lawlor, 349 U.S. at 327-29; Arizona v. California, 530 U.S. 392, 414 (2000)(class action settlement agreements cannot result issue preclusion when the issues are not adjudicated on the merits), United States v. International Bldg. Co., 345 U.S. 502 (1953). Courts may bar the litigation of subsequent claims that were not formally presented to the court only if the settlement reflects an intention to preclude such later and/or unrelated claims (e.g., through a broad release). 18 Federal Practice & Procedure § 4443 at 386-87; e.g., In re Prudential Ins. Co. of America Sales Practice Litig., 261 F.3d at 366-67. The Dubois Settlement Agreement contains no release whatsoever, let alone a release suggesting that the putative class members relinquished claims beyond the terms of the Settlement Agreement. What makes Defendants‟ claim and issue preclusion arguments even more absurd is that the parties explicitly
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recognized and stated that “the execution of this Agreement by Defendants and/or approval of the same [by the Court] shall not operate in any manner to confer continuing jurisdiction.” (¶C(7) (Emphasis added).
CONCLUSION For the above reasons, Defendants‟ motion to dismiss should be denied.

January 13, 2010

Respectfully submitted,
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
SPOHRER & DODD, P.L.
Jay M. Howanitz, Esq. Florida Bar No. 0020967 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com
Counsel for the Plaintiff

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing, to the following: Andrew T. Sheeran, Agency for Health Care Administration, Office of the General Counsel, 2727 Mahan Drive, Building 3, MS #3, Tallahassee, Florida 32308; George L. Waas, Florida Department of Health, Office of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399, this 13h day of January, 2010.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway
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Case 3:09-cv-01170-MMH-JRK Document 33 Filed 01/13/10 Page 21 of 21 PageID 394 Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183
stevegoldada@cs.com
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 Case 3:09-cv-01170-MMH-JRK Document 48 Filed 02/23/10 Page 1 of 3 PageID 500

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

Case No. 3:09-cv-1170-J-34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.

_____________________________________/

ORDER1 THIS CAUSE is before the Court on Plaintiff’s Notice of Status Regarding Plaintiff’s Preliminary Injunction (Doc. No. 47; Notice ), filed on February 22, 2010. On January 6, 2010, the parties filed a notice advising the Court that Defendants were awaiting a notification of the level ofcare from Comprehensive Assessment and Referral for Long Term Care Services, a prerequisite to aut horizing services for Plaintiff. See Notice of Parties’ Agreed Briefing Schedule and Hearing Date (Doc. No. 27) at 1. The parties represented that they would file a status report on February 1, 2010, regarding Plaintiff’s requested services.

1

This is a “written opinion” under § 205(a)(5) of the E-Government Act and therefore is

available electronically. However, it has been entered only to decide the motion addressed herein and

is not intended for official publication or to serve as precedent.

Case 3:09-cv-01170-MMH-JRK Document 48 Filed 02/23/10 Page 2 of 3 PageID 501
See id. at 2. However, the parties failed to file a status report by that date. See February 8, 2010 Order (Doc. No. 44) at 1.
Based upon the representations in Plaint iff’s Motion for Leave to Amend First Amended Class Action Complaint ( Doc. No. 36) and Defendants’ Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Leave to Amend First Amended Class Action Complaint (Doc. No. 42), it appeared to the Court that the issues raised in Plaintiff Jacqueline J ones’ Motion for Pre liminary Injunction and Expedited Hearing and Memorandum in Support (Doc. No. 2; Motion) were moot. See id. Nevertheless, out of an abundance of caution, the Court directed the parties to file a notice on this matter. See id. at 1-2. Plaintiff has comp lied with the Court’s directive and indicates that she has been placed in the TBI/SCI Waiver Program and is currently receiv ing the community-based services she requested. See Notice at 1. Accordingly, Plaintiff agrees with the Court’s assessment that the Motion is moot. See id.
In light of the foregoing, it is hereby ORDERED: Plaintiff Jacqueline Jones’ Motion for Preliminary Injunction and Expedited Hearing and Memorandum in Support (Doc. No. 2; Motion) is DENIED as MOOT. DONE AND ORDERED in Jacksonville, Florida, this 23rd day of February, 2010.
-2-

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 Case 3:09-cv-01170-MMH-JRK Document 52 Filed 04/15/10 Page 1 of 26 PageID 542

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

v.

Case No. 3:09-CV-1170-J34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and
Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants. ____________________________________
PLAINTIFF MICHELE HADDAD’S MOTION FOR PRELIMINARY INJUNCTION, EXPEDITED HEARING AND MEMORANDUM OF LAW IN SUPPORT
Pursuant to Fed. R. Civ. P. 65, individual Plaintiff Michele Haddad, through her counsel, moves
for a preliminary injunction to enjoin Defendants from denying her with Medicaid home and
community-based services (“HCBS”), in order to prevent Plaintiff Haddad’s unnecessary
institutionalization in a nursing home. Due to the emergency nature of her situation, Plaintiff Haddad
further moves for an expedited hearing. As grounds therefore, Plaintiff Haddad states:
1. This action is brought on behalf of a Florida resident who has quadriplegia as a result of a
car accident. Plaintiff Haddad is on Medicaid. Plaintiff Haddad has successfully lived in the community
since the accident and desires to continue to reside in her own home and community instead of having to
enter a nursing facility. S he could continue to reside in the community with appropriate services

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provided with Medicaid funds. She is at imminent risk of being unnecessarily institutionalized because of Defendants’ failure to administer their Medicaid services, programs and activities in an appropriate, integrated community setting.
2. Michele Haddad is a named plaintiff in this action. She was born on August 1, 1960 and is forty-nine years old. See Declaration of Michelle Haddad, attached hereto as exhibit 1.
3. Plaintiff Haddad lives in a fully accessible home in Jacksonville, Florida. When she was 47, on September 7, 2007, s he was in a motor cycle accident caused by an intoxicated car driver. She broke her spine as a result of the accident. Id.
4. On or about November, 2007, when she was still hospitalized in Brooks Rehabilitation, Ms. Haddad applied to Defendants’ Brain and Spinal Cord Injury Program to receive home health care through the Spinal Cord Injury Medicaid Waiver. She has been on the “wait list” for in-home Waiver services nearly three years. Id.
5. Miss Haddad was recently contacted by the Spinal Cord Injury Waiver and told they have no funds to provide her with services. However, if she would enter a nursing home for 60 d ays, then Defendants would provide her with 10 hours a day of attendant care services in the community. Id.
6. Miss Haddad does not want to live in a nursing home but wants services in the community. Id.
7. She is unable to open her right hand and she cannot close her left hand. As a result she has minimal manual dexterity. Id.
8. Ms. Haddad uses a motorized wheelchair for ambulation. Id. 9. Between January 2008, w hen Ms. Haddad was discharged from Brooks Rehabilitation Hospital, and March 2010, Ms. Haddad’s husband was her primary caregiver. In November, 2009, after
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24 years of marriage, the Haddads divorced. Mr. Haddad remained in the family home and continued to

serve as her primary caregiver until March 2010, when he left the home. Id.

10.

O ne of Ms. Haddad’s two adult sons, Anthony, 24, ha s left his home in Miami to

temporarily move in with his mother to provide her with the care she requires in order to remain in the

community. See Declaration of Michelle Haddad.

11. Ms. Haddad’s son Anthony now is responsible for the tasks that her husband had

provided since the accident: transferring her out of bed to a wheelchair, bathing her, helping her with her

hygiene needs, dressing her, shopping for food, preparing meals, assisting her with eating, and at the end

of the day performing the same functions to assist her to get into bed. Id.

12. Further, Ms. Haddad uses a catheter and requires a bowel program. H er husband was

responsible for these toilet needs. Since March, when Ms. Haddad’s husband left the house, her son,

Anthony, has had to perform the exact same very personal care for her. Id.

13. In early March, 2010, Ms. Haddad again contacted Defendants’ Brain and Spinal Cord

Injury Program. She notified the Program that her husband and primary caregiver had moved out and

she desperately required Medicaid Waiver services because the only help she was receiving was from

her son, Anthony. Id.

14. Anthony cannot continue to provide services to his mother and has only temporarily

returned home from Miami. Anthony recently graduated from Florida International University in

December, 2009, m ajoring in international relations and marketing. Anthony only returned home to

care for his mother due to the exigent circumstances -- his parents’ divorce, his father leaving the house,

and his mother having no one to care for her. Anthony intends to move back to Miami, and without the

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services he has been providing in the home, Ms. Haddad will be forced to enter an unnecessarily segregated setting. See Declaration of Michelle Haddad.
15. Ms. Haddad does not want to go into a nursing home; instead, she wants to continue residing in the community, where she has an active life. Id.
16. In the community, she attends church, goes to the movies, visits friends and goes shopping. She uses the gymnasium at Brooks Rehabilitation Hospital’s out-patient unit for exercise. Id.
17. She does not think it is appropriate for her son to provide the activities of daily living which she requires (including very private tasks). Id.
18. She owns her house which is accessible with a ramp, roll-in shower, and a hoyer lift. Her sole source of income is her monthly Social Security Disability Insurance, and she is eligible for and receives both Medicare and Medicaid. Id.
19. Without community-based Spinal Cord Waiver services, Ms. Haddad is at risk of being institutionalized, even though she desperately does not want to reside in a nursing facility. Ms. Haddad has lost her primary caregiver and lacks the natural supports that she previously relied on in order to live in the community. Id.
20. Despite Defendants knowing that Ms. Haddad is at imminent risk of institutionalization, they have not offered her any Medicaid services so she could remain in the community. Id.
21. Ms. Haddad has been eligible for Florida’s Medicaid nursing home services since she broke her spine in 2007. She still meets Florida’s level of care for nursing home eligibility. Id.
22. Florida’s Medicaid nursing home reimbursement is approximately $178 per diem. 23. Defendants have a community-based Medicaid Traumatic Brain Injury/Spinal Cord Medicaid Waiver but its capacity is limited, providing 375 slots. Id.
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24. Defendants have certified to the federal Medicaid agency, the Centers for Medicare and Medicaid Services, that for each person Florida diverts from the nursing home and provides Waiver services in the community, the State and the federal government save approximately $20,000 a year. Id.
25. Despite these savings and knowing that Plaintiff Haddad is in imminent risk of nursing home placement, Defendants have refused to provide Miss Haddad with services in her home. Id.
26. Plaintiff Haddad needs Defendants’ Medicaid HCBS benefits to assist her with activities of daily living. These services could be provided to Plaintiff Haddad either pursuant to “waiver” services or “personal care services,” see 42 U.S.C. §§1396n(c) and 1396d(a)(24), both of which are part of the Florida’s Medicaid program.
27. Unfortunately, Waiver services have not been made available to Plaintiff Haddad, even though she applied for home and community-based services and is on a waiting list. Michele Haddad’s advocates have telephoned Defendants’ Jacksonville Medicaid Waiver office regarding waiver services, but none have been provided and no one could tell her when services would be provided for her in the community.
28. Further, the personal care option service under the state plan is currently unavailable to Ms. Haddad in her community placement because the service is limited in Florida to persons with disabilities who reside only in assistive living facilities (not to individuals who live in their own apartments or houses).
29. To obtain the necessary services, Defendants require that Plaintiff Haddad leave the community and enter a Medicaid-funded nursing facility setting. Defendants’ Medicaid program will only provide the services she requires by paying for her institutionalization in a nursing facility.
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30. Plaintiff Haddad will imminently have no option other than to enter into a nursing home where Defendants’ Medicaid program will pay for the same services she can and has received in the community.
31. Defendants refuse to offer her the services in the community and instead are requiring her to enter a nursing facility to receive those services, in violation of both the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 794a (“Section 504"), and their implementing regulations, in particular the “integration mandate,” which requires that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R.§ 35.130(d).
WHEREFORE Plaintiff Haddad seeks a preliminary injunction to enjoin Defendants from denying her services in the community to assist her with her daily living activities. I. Plaintiff Meets the Standards for Preliminary Injunctive Relief
The criteria for granting a preliminary injunction are (1) a strong likelihood of success on t he merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest. Schiavo Ex Rel. Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005). The grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probability of ultimate success at final hearing with the consequences of immediate irreparable injury, which could flow from the denial of preliminary relief. Siegal v. Lepore, 234 F.3d 1163, 1178 (11th Cir. 2000). If the other factors weigh in favor of granting relief, Plaintiff has only to show a substantial case on the merits of the claim. Schiavo, 403 F.3d at 1226.
In the instant case, Plaintiff Haddad raises a very strong likelihood of ultimate success on t he
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merits under the Americans with Disabilities Act, 42 U .S.C. § 12101 et seq. (“ADA”), and the Rehabilitation Act of 1973, 29 U .S.C. § 794a (“Section 504”), and their implementing regulations; a very strong probability of irreparable injury; and both the balance of hardships and public interests weigh significantly in her favor. Accordingly, Plaintiff Haddad is entitled to preliminary injunctive relief. II. Likelihood of Success
A. Defendants’ Responsibilities under the HCBS TBI/SCI Waiver Medicaid is a joint federal/state program authorized by Title XIX of the Social Security Act. 42 U.S.C. §§ 1396 -1396v. It provides medical assistance to low income individuals who meet certain eligibility requirements. States are not required to participate in the Medicaid program. If a state elects to participate, however, it is required to comply with all applicable federal statutory and regulatory requirements. 42 U .S.C. § 1396a ; Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502 (1990); Florida Ass'n of Rehab. Facilities, Inc. v. Florida Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1211 ( 11th Cir. 2000). Medicaid home and community-based services (HCBS) waiver 1 programs are authorized by 42 U.S.C. § 1396n( c) and governed by 42 C.F.R. §§ 441.300-.310. Waiver programs enable states to provide home and community-based services to individuals with disabilities who would otherwise need

1

States that opt to provide waiver services may “waive” the requirements of statewideness,

comparability and income requirements for which a state’s other Medicaid services and programs must

otherwise comply with 42 U.S.C.§1396n(c)(3). The Secretary of the Department of Health and Human

Services has approved nine waivers in Florida for people who would otherwise require care in a nursing

facility. Ms. Haddad meets the eligibility criteria for Florida’s Traumatic Brain Injury/Spinal Cord

Injury Waiver (“TBI/SCI”).

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the level of care provided in the institutional nursing home.2 Personal care assistant services (PCA) is one of the services that can be provided through a waiver. 42 U.S.C. § 1396n(c)(4)(6). Medicaid waiver programs must, in the aggregate, be cost-neutral, in that the total average cost of providing care for program participants in the home and community based setting must not exceed the estimated total average cost of providing care in the institutional setting that these participants would require. 42 U.S.C. §1396n(c)(2)(D), 42 C.F.R. §441.302(e).
Florida’s Medicaid waiver program is one of the two Medicaid programs which could prevent Ms. Haddad’s imminent institutionalization. The other Medicaid program is the “personal care services” benefits, a/k/a “personal care option.” 42 U.S.C. § 1396n(a)(24). Under the program, states like Florida provide personal attendant services such as Plaintiff Haddad requires. However, Florida has opted to limit its personal care services benefits to only those persons who reside in its Medicaid funded assisted living facilities and does not provide these services to persons who reside in their own apartments or homes.
B. The ADA and Section 504 Section 504 of the Rehabilitation Act of 1973, 29 U .S.C. § 794a (“Section 504”) is “commonly known as the civil rights bill of the disabled,” Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner, 881 F.2d 1184, 1187 ( 3d Cir. 1989) (en banc), and prohibits disability-based discrimination by recipients of federal funding, such as Defendants. 29 U.S.C. § 794(a). Extending the prohibitions of Section 504, in 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), to prohibit discrimination by all public entities, regardless of whether they receive federal funding. H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 472.

2

The Florida Medicaid per diem reimbursement is $178.45 on average for an annual

average reimbursement o f $ 65, 134.25. See, www.fdhc.state.fl.us?Medicaid/cost_reim/nh_fates.shtml.

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Like Section 504, T itle II of the ADA broadly prohibits discrimination by public entities, such as Defendants. 42 U .S.C. §§ 12131(1), 12132. The ADA and Section 504 are analyzed together since “there is no significant difference in the analysis of rights and obligations created by the two.” Zulke v. Regents of the Univ. of Calif., 166 F .3d 1041, 1045 n.11 ( 9th Cir. 1999). The ADA provides that the “remedies, procedures, and rights set forth in [Section 504] shall be the remedies, procedures and rights [applicable to ADA claims].” 42 U .S.C. § 12133. Section 504 a nd the ADA reflect Congress’ recognition of the pervasiveness of disability-based discrimination in society. Congress specifically found that “discrimination against individuals with disabilities persists in such critical areas as ... health services ....” 42 U.S.C. § 12101(a)(3) (ADA) (emphasis added); see also 29 U.S.C. § 701(a)(5) (Section 504).
The concept of “discrimination” under these Acts encompasses more than disparate treatment of people with disabilities vis-à-vis individuals without disabilities. See Olmstead v. L.C., 527 U .S. 581, 598 (1999) (ADA); Alexander v. Choate, 469 U.S. 287, 297, 300-01 (1984) (Section 504); Shelen L. v. DiDario, 46 F .3d 325, 333, 335 ( 3d Cir.), cert. denied, 516 U .S. 813 (1995) (ADA); Nathanson v. Medical College of Penn., 926 F .2d 1368, 1384 (3d Cir. 1991) (Section 504). The Supreme Court in Olmstead made it c lear that the state cannot discriminate between people with disabilities while providing such care for “categorically needy” persons. 3
Title II of the ADA prohibits public entities from discriminating against persons with disabilities.

3

The ADA also prohibits discrimination against different categories of people between

people with disabilities while providing such care for “categorically needy” persons with disabilities.

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), Helen L., supra. In Townsend, the plaintiffs alleged

that the state was using Medicaid’s home and community based waiver services (“HCBS”) to provide

essential long term care to some residents with disabilities, but not to others. The Court held that the

state violated the ADA by denying community-based long term care for “medically needy” persons.

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42 U.S.C. § 12132.4 A “qualified individual with a disability” is a person who “with or without reasonable modifications to rules, polices or practices” meets the “essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12132(2). Defendants do not dispute that Plaintiff Haddad is a qualified person with a disability who meets the eligibility requirements for Florida’s Medicaid nursing home “level of care” as well as for its waiver and Medicaid programs.
C. The ADA and Section 504’s Integration Mandate Under both the ADA and Section 504, the Attorney General was directed to promulgate implementing regulations. 42 U .S.C. § 12134( a); 29 U .S.C. § 794(a). See Helen L., supra. Congress further directed that the regulations promulgated under Title II of the ADA be consistent with the regulations adopted under Section 504. 42 U.S.C. §12134(b). For purposes of implementing Title II of the ADA, the Attorney General promulgated a regulation requiring public entities to “administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The regulation was based upon virtually identical regulatory language promulgated to implement Section 504 with respect to federal financial recipients. 28 C.F.R. § 41.51(d). These two regulations, known as the “integration mandate,” are construed and applied in the same manner. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1179 n.3 (10th Cir.

4

Similarly, Section 504 prohibits the recipients of federal funds from discriminating on the

basis of disability:

No otherwise qualified individual with a disability...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. §794(a).

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2003). The integration mandate was analyzed and interpreted by the United States Supreme Court in the
landmark decision of Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead plaintiffs were individuals with mental disabilities who were confined in Georgia’s state psychiatric institutions, but who wanted to live in the community. Plaintiffs asserted that the state’s refusal to pay for them to live in community settings violated the integration mandate of Title II of the ADA and its implementing regulations. The Court was thus presented with the question of whether the proscription of disability discrimination may require the placement of individuals with disabilities in community settings rather than institutions. Id. at 587.
The Court began its analysis by citing the relevant Congressional findings that serve as the underpinnings for the ADA:
(2) historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive societal problem;
(3) discrimination against individuals with disabilities persists in such critical areas as...institutionalization...;
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion...failure to make reasonable modifications to existing facilities and practices, [and] segregation...
42 U.S.C. §12101(a)(2), (3) & (5) (emphasis added) (quoted in Olmstead, 527 U.S.at 588-89). The Court’s decision was premised on the DOJ integration regulation:
A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R.§ 35.130(d). After noting the comprehensive scope of discrimination embraced by the ADA, the Olmstead Court explained the nature of discrimination prohibited by Title II of the ADA in the context of the
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integration mandate:
Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an i nstitution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and c ultural enrichment. Dissimilar treatment exists in the key respect: In order to receive needed medical services, persons with ... disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [such] disabilities can receive the medical services they need without similar sacrifice.
527 U.S. at 600-601 (citations omitted; emphasis added). Accordingly, the Court concluded, more than
nine years ago, that “unjustified isolation, we hold, is properly regarded as discrimination based on
disability.” Id. at 597.
The facts of the case at bar clearly demonstrate that Plaintiff Haddad will suffer discrimination.
There can be no doubt that for Plaintiff Haddad that the “most integrated setting” for her is her own
home. By living at home and participating in the community, she has been able to experience and
benefit from church activities, family relations, social contacts, educational advancement, and cultural
enrichment of which the Supreme Court spoke. Being forced to move to a nursing home solely to
receive the personal attendant care services that Plaintiff Haddad needs for her activities of daily living
is exactly the sort of discrimination recognized in Olmstead (recognizing discrimination where “[i]n
order to receive needed medical services, persons with [] disabilities must, because of those disabilities,
relinquish participation in community life they could enjoy given reasonable accommodations, while
persons without [] disabilities can receive the medical services they need without similar sacrifice. See
Brief for United States as Amicus Curiae 6-7, 17.” Olmstead, 527 U.S. at 601. Defendants’ refusal to
provide Medicaid funds for her in the community and its failure to grant a reasonable modification to its
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existing Medicaid programs that would allow her to remain in the community plainly falls within the disability discrimination condemned by the Supreme Court in Olmstead. T he ADA and Section 504 clearly prohibit conditioning receipt of a public service or program on a person being institutionalized. That was the bedrock of the Olmstead decision. It also demonstrates Judge Ferguson’s conclusion that “underfunding of the Home and Community-Based Waiver program compels institutionalization, thus negating a meaningful choice.” Cramer v. Chiles, 33 F.Supp.2d 1342, 1353 (S.D. Fla.1999).
Plaintiff Haddad is at imminent risk of being forced into a nursing home. Due to Defendants’ failure to provide services in the most integrated setting, she will be forced to relinquish her independence in order to receive necessary assistance with her activities of daily living. Ms. Haddad’s unjustified isolation triggers the concerns driving the Court in Olmstead, of (1) “perpetuat[ing] unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and (2) “severely diminish[ing]” plaintiff’s “everyday life activities…including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead, 527 U.S. at 601. Forcing Ms. Haddad to receive services in a nursing home setting will cut her off from the community activities she enjoys, including attending church, going to the movies, visiting friends, going shopping, and exercising.
Further, Plaintiff Haddad need not wait until she enters the nursing home to bring a suit under Olmstead: the risk of institutionalization that plaintiff faces is itself discrimination. In Fisher v. Oklahoma Health Care Auth., 335 F . 3d 1175 ( 10th Cir. 2003), Oklahoma had changed its Medicaid prescription program so that persons in the community would be entitled to receive no more than five prescriptions per month. However, if persons resided in a nursing facility, they could receive an unlimited number of prescriptions. The Fisher Circuit emphasized that “failure to provide Medicaid
13

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services in a community-based setting may constitute a form of discrimination.” Id. at 1182. The Tenth Circuit noted that the protections in the ADA’s “integration regulation,” 28 C.F.R. §35.130(d),
would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discrimination law or policy that threatens to force them into segregated isolation. [W]hile it is true that plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements. Id. at 1181. See also Radaszewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004), Crabtree v. Goetz, 2008 U.S.Dist. LEXIS 103097 (M.D. Tenn. 2008). This same principle applies to Plaintiff Haddad. In the community, she currently receives no Medicaid-funded personal attendant care services to assist her with her activities of daily living. If she is forced to enter a nursing home in order to receive these services, she will be “unnecessarily institutionalized,” precisely the type of discrimination that Congress intended to end with the enactment of the ADA and Section 504. By requiring Plaintiff Haddad to move to a nursing facility to receive the same services she could receive in the community, Florida is conditioning the receipt of these Medicaid services on l iving in an institutional setting, i.e., the nursing facility, which is segregated, instead of providing them to her in the community. D. Defendants Violate the ADA and Section 504 b y Failing to Make Reasonable
Modifications and Accommodations in their Policies, Practices, and Procedures Section 504 and the ADA prohibit actions by covered entities that have a discriminatory effect on people with disabilities. See Alexander v. Choate, 469 U .S. at 297; Frederick L. v. Department of Public Welfare, 364 F.3d 487 (3d Cir. 2004), 422 F.3d 151 (3d 2005). Both the ADA and Section 504 affirmatively require that covered entities make reasonable modifications and accommodations to their policies and practices when necessary to accommodate individuals with disabilities, see Olmstead, 527
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U.S. at 592; Alexander, 469 U.S. at 301, a nd require that people with disabilities have “meaningful access” to covered entities’ programs. Id.; Chaffin v. Kansas State Fair Bd., 348 F .3d 850, 857 (10th Cir. 2003); Crabtree, supra.
In the present action, Defendants’ failure to make reasonable modifications and accommodations results in Plaintiff Haddad being denied “meaningful access” to either Florida’s Medicaid waiver programs or its Medicaid personal care services benefits. Because Florida has restricted its Medicaid personal care services benefits, 42 USC § 1396d(a)(24), to persons residing in assisted living facilities, Plaintiff Haddad is not able to benefit from either Florida’s Medicaid waiver program or its Medicaid personal care services program. Similarly, because Florida has capped its TBI/SCI waiver and has not increased it for a number of years to meet the needs of people on the wait list generally, including Ms. Haddad’s needs in the community, an accommodation that is easy to accomplish, Florida’s Medicaid program refuses to make the reasonable modification and accommodation in this program which will ensure Ms. Haddad remains in her home and is not discriminated against.
Beginning with Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979), the courts have recognized that Section 504 requires publicly funded programs to provide reasonable modifications and accommodations when needed to assure that people with disabilities have meaningful access to its programs and services. See Alexander, 469 U.S. at 300-01 & n.20-21. Title II of the ADA requires:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on t he basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity. 28 C.F.R. § 35.130(b)(7) (authorized by 42 U.S.C. § 12134(b)). The concept of reasonable modification recognizes that strictly “equal” treatment of people with disabilities will not assure meaningful access. See Henrietta D. v. Bloomberg, 331 F.3d 261, 273, 274-75
15

Case 3:09-cv-01170-MMH-JRK Document 52 Filed 04/15/10 Page 16 of 26 PageID 557
(2d Cir. 2003). Accordingly, the ADA and Section 504 require accommodations assuring that otherwise neutral policies and practices do not, in practice, discriminate against people with disabilities by denying them meaningful access to the covered entity’s programs and services. Id., see also US Airways, Inc. v. Barnett, 535 U .S. 391, 397 ( 2002) (in ADA employment discrimination case, “preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal”). For example, Section 504 and the ADA also prohibit discrimination on t he basis of the severity of a person’s disability. In Jackson v. Fort Stanton Hosp. & Training School, 757 F . Supp. 1243 (D.N.M. 1990), rev’d on other grounds, 964 F.2d 980 (10th Cir. 1992), plaintiffs with developmental disabilities challenged their exclusion from the state’s community services program because of the severity of their disabilities. In that case, people with severe disabilities were precluded from living in community settings because the programs lacked amenities that could be reasonably furnished that were necessary to accommodate their serious needs. The Court found that “Defendants’ failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory.” Id. at 1299. It concluded that:
modifications of the existing community service system in New Mexico would not require an excessive financial burden and that the accommodations would enable severely handicapped residents of [residential facilities] to realize the benefits of community settings. Accordingly, the defendants should require those community programs that receive federal assistance funds to make reasonable accommodations for those severely handicapped residents [of facilities] whose IDTs have determined that a community program could be appropriate, if reasonably modified. Id. at 1299. See also Williams v. Wasserman, 937 F. Supp. 524, 530 (D. Md. 1996) (“while the ADA does not place an affirmative obligation on the state to create or fundamentally alter a program of community-based treatment options, the ADA does oblige the defendants to make those options available to otherwise qualified individuals without regard to the severity ... o f their disabilities”);
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Martin v. Voinovich, 840 F. Supp. 1175, 1192 ( S.D. Ohio 1993) (“Defendants’ failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory”).
A recent reasonable accommodation case from the Seventh Circuit is quite instructive. In Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), plaintiff sought 24 hour private duty nursing care under the HCBS waiver program, a service he alleged he would require in a hospital or nursing facility if forced to move there. The State argued that it did not provide that level of service under its waiver, and that plaintiff could only receive $4,593 per month - the equivalent of five hours a day of privateduty nursing care. However, the court found that the state already provided for some private duty nursing care, and further that
the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings.... If variations in the way services were delivered in different settings [home vs. institution, or assisted living facility vs. an apartment] were enough to defeat a demand for more community integrated care, then the integration mandate of the ADA and the Rehabilitation Act would mean very little. Id. at 611. On remand, the district court found that the state’s failure to fully fund at home, private duty nursing for the young man under the Medicaid-funded HCBS constituted disability discrimination, and that the state was obligated to provide treatment in the most integrated setting - his home. It rejected the state’s claim that such an outcome would result in a fundamental alteration of the state’s program. Radaszewski v. Maram, 2008 WL 2097382, *15 (N.D. Ill., March 26, 2008); see also Grooms v. Maram 2008 WL 2271492, *16 (N.D. Ill., May 30, 2008), Long v. Benson, 2008 WL 4571904 (N.D. Flo, Oct. 14, 2008), on appeal; Disability Advocates Inc. v. Paterson. 598 F.Supp.2d 289 (E.D.N.Y.2009).
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E. Plaintiff Haddad’s Requests for Modifications Are Reasonable. It is well-established that the ADA and Section 504 both require Defendants to make reasonable modifications and accommodations to their policies, practices, and procedures when necessary to avoid discrimination. 42 U .S.C. § 12132; 28 C.F.R. § 35.130(b)(7) (ADA). In a reasonable accommodation and modification claim, it is the plaintiff’s obligation to articulate a modification that “seems reasonable on its face.” US Airways, Inc. v. Barnett, 535 U .S. 391, 401 ( 2002); see also Skerski v. Time Warner Cable Co., 257 F .3d 273, 284 ( 3d Cir. 2001) (“plaintiff bears only the burden of identifying an accommodation, the costs of which do not clearly exceed its benefits,” i.e., that is not “clearly ineffectively or outlandishly costly”). If the plaintiff articulates a reasonable modification, then the burden shifts to the defendant to prove that the proposed modification would impose an undue burden on its resources or a fundamental alteration of its program. Olmstead, 527 U.S. at 603; Frederick L., 364 F.3d at 492 n.4. Defendants have ignored this obligation to Plaintiff Haddad by not providing her with personal attendant care services either through their Medicaid TBI/SCI waiver or through their Medicaid personal care services program. Defendants obtained permission from the federal Centers for Medicare and Medicaid (CMS) to have a Medicaid TBI/SCI waiver which permitted Florida with the option under Medicaid of providing home and community based services, including in-home care provided by personal attendants, to a person who would otherwise require nursing home level care. 42 U.S.C. § 1396n( c)(1) (“but for the provision of such [waiver] services the individuals would require the level of care provided in ... a nursing facility... the cost of which would be reimbursed under the State plan”). When Defendants obtained this Medicaid waiver, they took on the mandatory obligation to provide such in-home care to qualifying individuals such as Plaintiff Haddad. Despite the significant increase in the
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number of people on the wait list for the TBI/SCI waiver, Defendants have failed to increase the number of Medicaid TBI/SCI waiver slots so that Plaintiff Haddad could reside in the community instead of in a nursing facility.5
Courts have held that increasing expenditures and increasing the numbers of people who receive waiver services in the community is not an unreasonable accommodation. See e.g., Radaxzewski, 383 F.3d at 613-15; Frederick L. v. Dept’t of Public Welfare, 364 F.3d 487, 500 (3rd Cir. 2004); Fisher , 335 F. 3d at 1182-83, and Makin v. Hawaii, 114, F. Supp. 2d 1017, 1034 (D. Haw. 1999).
Plaintiff Haddad has done all she can to live integrated into the community. She has received attendant care services from her parents and from her husband (now ex-husband) for as long as they could provide the care and services. She does not have money to pay for personal care services and without services provided through Defendants’ programs, she will be forced to enter an unnecessarily segregated setting to receive needed services.
The reasonableness of a particular accommodation “depends on the individual circumstances of each case” and “requires a fact-specific, individualized analysis of the disabled individual’s circumstances and accommodations that might allow her to meet the program’s standards.” Wong v. Regents of the Univ. of Cal.,192 F.3d 807, 818 (9th Cir. 1999).
Plaintiff Haddad has identified the specific program modifications and accommodations she seeks. She has asked Defendants, as a reasonable accommodation of her disability, to provide Medicaid payments, under either their Medicaid TBI/SCI waiver or Medicaid personal care services programs, for care and services with her daily living activities. W ere she to enter a nursing home, Defendants’ per

5

Similarly, Defendants have restricted their Medicaid personal care services benefits, 42 USC §

1396d(a)(24), to persons residing in assisted living facilities. D efendants could easily expand this

program to persons who reside in their own homes and apartments.

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diem reimbursement to Medicaid nursing facilities is $178.45 a day or $5,353.50 a month. Under the federal requirements for a w aiver, a state must assure the federal agency that the waiver is “cost effective,” that is, on the average, the amount spent on community-based services “will not exceed the amount of such medical assistance provided for such individual [in the nursing facility] if the waiver did not apply.” 42 U SC § 1396n(c)(4)(A). If Defendants were to provide her with services under the TBI/SCI waiver, they would save more than $20,000 a year. The reasonable accommodations that Plaintiff Haddad requests fall squarely within the existing duties already assigned to Florida under the HCBS Waiver.
Similarly, under Florida’s Medicaid program that provides personal care services, see 42 U.S.C. §1396d(a)(24), Defendants limit these services to persons who reside in an assisted living complex. The reasonable accommodation Plaintiff Haddad requests is that the same service be provided to her in her own home instead of in an assisted living facility. That would allow her to hire and pay with Medicaid funds personal attendants who would provide the level of care that she needs. As this is a practice that Defendants have approved for persons who reside in assisted living facilities, it could not be an undue burden to extend the practice so that Plaintiff Haddad can continue to reside in her home. III. Irreparable Injury
Courts have recognized irreparable injury as a result of institutionalization in a nursing facility. Ms. Haddad will irreparably suffer if she is must go into an institution. Forcing her to go into a nursing home, even for 60 days, will have a very negative emotional impact. Courts have recognized that institutionalization “will inflict an enormous psychological blow. Also, because of the very substantial difference in [plaintiff’s] perceived quality of life in the apartment as compared to the nursing home, each day [s]he is required to live in the nursing home will be an irreparable harm.” Long v. Benson, No.
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08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008). Institutionalization has been recognized will also negatively impact on her care - “forcing … Plaintiff[] into nursing homes … would be detrimental to [her] care, causing, inter alia, mental depression, and …, a shorter life expectancy or death.” Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506 *25 (M.D. Tenn. Dec. 19, 2008)(Haynes, J.)
It is also well established that the loss of Medicaid benefits constitutes irreparable harm. Indeed, “[t]he nature of the claim - a claim against the state for medical services - makes it impossible to say that any remedy at law could compensate” plaintiffs. McMillan v. McCrimon, 807 F. Supp. 475, 479 (C.D. III. 1992). See also Maine Ass’n of Interdependent Neighborhoods v. Petit, 647 F. Supp. 1312, 1315 (D.Me. 1986) (court found that absent the requested injunction plaintiff would be forced to leave her family and enter a nursing home, irreparably injuring her physical and mental health). Accord Edmonds v. Levine, 417 F. Supp. 2d 1323, 1342 (S.D. Fla. 2006) (denial of medical benefits, and resulting loss of medical services, constitutes irreparable harm); Mitson v. Coler, 670 F. Supp. 1568, 1577 ( S.D. Fla. 1987)(potential denial of nursing home service constituted irreparable injury since many in class would be deprived of essential medical care); Kai v. Ross, 336 F.3d 650, 65 6 (8th Cir. 2003) (denial of Medicaid benefits constitutes "a danger to plaintiffs' health, even their lives"); Massachusetts Ass'n of Older Amer. v. Sharp, 700 F.2d 749, 753 (1st Cir. 1983) (termination of benefits that causes individuals to forgo medical care is clearly irreparable harm); Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982) (irreparable injury is shown when enforcement of a Medicaid rule “may deny [plaintiffs] needed medical care”); Caldwell v. Blum, 621 F.2d 491, 498 (2d Cir. 1980), cert. denied, 452 U.S. 909 (1981) (Medicaid applicants established harm where they would "absent relief, be exposed to the hardship of being denied essential medical benefits").
If a preliminary injunction is not issued, Plaintiff Haddad will not be able to continue to live at
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home. She will have no option other than to enter to a nursing home and suffer all the injuries listed in Olmstead. Such discrimination and irreparable injury are unnecessary, if defendants would only authorize Ms. Haddad personal attendant services either under its Medicaid waiver or Medicaid personal care services programs. The irreparable injury includes more than a violation of her civil rights under the ADA and Section 504. The irreparable injury is that she will be institutionalized in a setting that demeans her by taking away her independence and dignity. IV. Balance of Hardships
The Court must weigh the harm to Plaintiff Haddad against possible damage to Defendants. Micshel-Trapaga v. City of Gainesville, 907 F. Supp. 1508, 1513 ( N.D. Fla. 1995). While Plaintiff Haddad is threatened with institutionalization, Defendants’ only possible damages are monetary. The harm to Plaintiff Haddad here clearly outweighs any harm to Defendants. See, e.g., Edmonds, 417 F. Supp. 2d at 1342 (harm to plaintiffs of being deprived of essential medical services outweighs any harm to state); Illinois Hosp. Ass'n v. Illinois Dep’t of Public Aid, 576 F. Supp. 360, 371 ( N.D. III. 1983) (“ once a state has voluntarily elected to participate in the Medicaid program ... [it cannot] characterize its duty to comply with the requirements of [the program] as constituting a hardship to its citizens”); Kansas Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548, 1552 -53 (D. Kan. 1993) (threatened injuries to plaintiffs outweighed any harm to defendant that would result from issuing the temporary restraining order because changing Medicaid coverage “significantly alters the status quo t o the detriment of the individual plaintiffs, while its positive budgetary impact on state coffers is negligible in a relative sense”).
The balance of hardships clearly favors Plaintiff Haddad in this case. All that she is asking is that Defendants spend less of their Medicaid funds and permit her to continue to reside in her home with the
22

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personal attendants she needs to accomplish her activities of daily living. Providing the requested accommodation falls squarely within the duties imposed upon Defendants by either the Medicaid waiver or the Medicaid personal care option.
By contrast, if Plaintiff Haddad must leave her home and go to a nursing facility, Defendants will expend more Medicaid funds than they would were she in the community. Further, Plaintiff Haddad would be institutionalized despite the fact that she has successfully resided in the community since she became disabled nearly 18 years ago. Plainly, the balance of hardships tips in favor of Plaintiff Haddad. V. The Public Interest
A preliminary injunction to provide services to Plaintiff Haddad to avoid institutionalization is not adverse to the public interest. In determining whether the public interest will be disserved by the granting of a request for preliminary injunction, courts may look to the legislative intent in enacting the statute sought to be enforced. As the Eleventh Circuit found in Johnson v. U.S.D.A., 734 F.2d 774, 788 (11th Cir.1984), cost to the government “alone” is not a reason to deny a preliminary injunction as being against the public interest. In a case challenging foreclosure procedures, the court looked at the legislative purposes of the Housing Act of 1949 and found that the public interest of providing decent housing would be served by preventing premature foreclosures. Id.
The public interest also will be served by an order granting a preliminary injunction for Plaintiff Haddad. There is a strong public policy expressed in the ADA and Section 504. C ongress found that discrimination against people with disabilities is a serious and pervasive social problem, and that people with disabilities have been subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of
23

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such persons to participate in and contribute to society. 42 U.S.C. §12101. The purpose of the ADA’s passage was to provide a clear and comprehensive national mandate for elimination of discrimination against individuals with disabilities. A ccordingly, it serves the public interest to issue the requested preliminary injunctive relief. VI. Waiving the Bond Requirement
Plaintiffs should be exempted from the bond requirement of Fed. R. Civ. P.65(c). The amount of required security is within the discretion of the trial court. Bell South, 425 F.3d at 971; Caterpillar, Inc. v. Nationwide Equipment, 877 F.Supp. 611, 61 7 (M.D. Fla. 1994); Baldree v. Cargill, Inc., 758 F.Supp. 704 (M.D. Fla. 1990), aff'd, 925 F.2d 1474 (11th Cir. 1991). The court may also waive all payment.
Courts have used their discretion to waive the bond requirement for indigent plaintiffs. E.g., Bass v. Richardson, 338 F. Supp. 478, 490 ( E.D.N.Y. 1971) ("It is clear that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c)"); Denny v. Shealth & Social Serv. Bd. of State of Wis., 285 F. Supp. 526, 527 ( E.D. Wis. 1968) ("Poor persons ... are by hypothesis unable to furnish security as contemplated in Rule 65(c), and the court should order no security in connection with the preliminary injunction."). See also Maine Ass'n of Interdependent Neighborhoods, 647 F. Supp. at 1319 ( court granted waiver of bond, not ing impecunious status of plaintiffs, and based on plaintiff's strong case on the merits).
Plaintiff Haddad is indigent and seeks injunctive relief to receive services in the community that Defendants already provide in nursing homes. The case implicates the public interest and the balance of hardships tips sharply in favor of the Plaintiff. This Court should not require Plaintiff Haddad to give security.
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VII. Conclusion For the reasons and on the authority cited above, Plaintiff Haddad respectfully requests that this
Honorable Court grant her preliminary injunctive relief. She has demonstrated a substantial likelihood of success on the merits; that she will suffer irreparable injury in the event emergency relief is denied; and that the balance of hardships tip in her favor.
Respectfully submitted,
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 stevegoldada@cs.com SPOHRER & DODD, P.L. s/ Jay M. Howanitz Jay M. Howanitz, Esq. Florida Bar No. 0020967 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counsel for the Plaintiff
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LOCAL RULE 3.01 (g) CERTIFICATION
The undersigned counsel has attempted to discuss the matters raised with counsel for Agency for Health Care Administration and Florida Department of Health and has been informed by their office that they object to the relief sought herein.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Third Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183
stevegoldada@cs.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing, to the following: Andrew T. Sheeran and William T. Blocker, II, Agency for Health Care Administration, Office of the General Counsel, 2727 Mahan Drive, Building 3, MS # 3, Tallahassee, Florida 32308; George L. Waas and Enoch J. Whitney, Florida Department of Health, Office of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399, this 15th day of April, 2010.
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 Telephone: (215) 627-7100, ext 227 Facsimile: (215) 627-3183 stevegoldada@cs.com
26

 
 Case 3:09-cv-01170-MMH-JRK Document 52-1 Filed 04/15/10 Page 1 of 5 PageID 568

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JACQUELINE JONES, on behalf of herself and all others similarly situated,

Plaintiff,

v.

Case No. 3:09-CV-ll70-J34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants.

PLAINTIFF MICHELE HADDAD'S DECLARATION IN SUPPORT OF HER MOTION FOR A PRELIMINARY INJUNCTION
I, Michele Haddad, hereby verify the following statements pertinent to my motion for a preliminary injtmction are true and correct, to the best of my lmowledge, information and belief. I tmderstand that false statements are made subject to the penalties of28 U.S.C. § 1746 relating to unsworn falsification to authorities. Pursuant to 28 U.S.C. § 1746 and Local Rule 4.06(b), I, Michele Haddad, declare as true the following:
1.. I am a named plaintiff in this action. 2. I was born on August 1, 1960 and an1 forty-nine years old. 3. I live in a fully accessible home in Jacksonville, Florida. 4. When I was 47, on September 7, 2007, I was in a motor cycle accident caused by an intoxicated car driver.

Case 3:09-cv-01170-MMH-JRK Document 52-1 Filed 04/15/10 Page 2 of 5 PageID 569
5. I broke my spine as a result of the accident. 6. On or about November, 2007, when I was still hospitalized in Brooks Rehabilitation, I applied to Defendants' Brain and Spinal Cord Injury Program to receive home health care through the Spinal Cord Injury Medicaid Waiver. 7. I have been on the "wait list" for in-home Waiver services nearly three years. 8. I was recently contacted by the Defendants' Spinal Cord Injury Waiver and told Defendants have no funds to provide me with services. However, if I would enter a nursing home for 60 days, then Defendants would provide me with 10 hours a day of attendant care services in the community. 9. I do not want to live in a nursing home but want services in the conununity. 10. I an1 tmable to open my right hand and cannot close my left hand. As a result I have minimal manual dexterity. 11. I use a motorized wheelchair for ambulation. 12. Between January 2008, when I was discharged from Brooks Rehabilitation Hospital, and March 2010, my husband was my primary caregiver. In November, 2009, after 24 years of marriage, my husband and I divorced. My husband remained in our home and continued to serve as my primary caregiver until March 2010, when he left the home. 13. One of my adult sons, Anthony, 24, who had been living in Miami has temporarily move in with me to provide me with the care I require in order to remain in the community. 14. Anthony now is responsible for the tasks that my husband had provided since the accident: transferring me out of bed to a wheelchair, bathing me, helping me with my hygiene

Case 3:09-cv-01170-MMH-JRK Document 52-1 Filed 04/15/10 Page 3 of 5 PageID 570
needs, dressing me, shopping for food, preparing meals, assisting me with eating, and at the end of the day performing the same functions to assist me to get into bed.
15. Further, I use a catheter and require a bowel program. My husband was responsible for these toilet needs. Since March, when my husband left the house, my son, Anthony, has had to perform the exact same very personal care for me.
16. In early March, 2010, I contacted Defendants' Brain and Spinal Cord Injury Program. I notified the Program that my husband and primary caregiver had moved out and I desperately required Medicaid Waiver services because the only help I was receiving was from my son, Anthony.
17. Earlier tlris week, I received a telephone call from the Spinal Cord Injury Program and was told tl1ere were no funds for community-based services, but if I would move into a nursing home for 60 days tl1en I could receive 10 hours a day of services in tl1e commwrity.
18. Anthony cannot continue to provide services to me and has only temporarily returned home from Miami. Anthony recently graduated from Florida International University in December, 2009, majoring in international relations and marketing. Anthony only retwned home to care for me due to tl1e exigent circumstances -- tl1e divorce, Iris fatl1er leaving the house, and I had no one to care for her. Anthony intends to move back to Miami, and without the services he has been providing in tl1e home, I will be forced to enter an UJ111ecessarily segregated setting.
19. I do not want to go into a nursing home; instead, I want to continue residing in the conm1UJ1ity, where I have an active life.
20. In the community, I attend church, go to tl1e mov1es, visits friends and go shopping. I use tl1e gy=asiUJU at Brooks Rehabilitation Hospital's out-patient w1it for exercise.

Case 3:09-cv-01170-MMH-JRK Document 52-1 Filed 04/15/10 Page 4 of 5 PageID 571
21. I do not think it is appropriate for my son to provide the activities of daily living which she requires (including very private tasks).
22. My sole source of income is my monthly Social Security Disability Insurance, and I am eligible for and receive both Medicare and Medicaid.
Without community-based Spinal Cord Waiver services, I am at risk of being institutionalized, even though I desperately does not want to reside in a nursing facility.
24. Despite Defendants !mowing that I am at imminent risk of institutionalization, they have not offered me any Medicaid services so I can remain in the community.
25. Defendants have a community-based Medicaid Tramnatic Brain Injury/Spinal Cord Medicaid Waiver but its capacity is limited, providing 375 slots.
26. Defendants have certified to the federal Medicaid agency, the Centers for Medicare and Medicaid Services, that for each person Florida diverts from the nursing home and provides Waiver services in the community, the State and the federal government save approximately $20,000 a year.
27. Despite these savings and knowing that I am in imminent risk of nursing home placement, Defendants have refused to provide me with services in my home.
28. Unfortunately, Waiver services have not been made available, even though I applied for home and community-based services and have been on a waiting list. In early March, 2010, my advocates have telephoned Defendants' Jacksonville Medicaid Waiver office regarding waiver services, but none have been provided and no one could tell them when services would be provided for me in the community.

Case 3:09-cv-01170-MMH-JRK Document 52-1 Filed 04/15/10 Page 5 of 5 PageID 572
29. To obtain tbe necessary services, Defendants require tbat I leave tbe community and enter a Medicaid-funded nursing facility setting. Defendants' Medicaid program will only provide the services I require by paying for my institutionalization in a nursing facility. Dated tllis )C:day of April, 2010.

_L{_ Sworn to (or affirmed) and subscribed before me tllis

day of April, 2010,

MICHELE HADDAD, a person of lawful age, who is personally known to me or who

~~~d

~~~~an~

No ·yPublic My Commission Expires:
NM!CY L. O'GRADY
Nallry Public, State of Florida
My comm.BXJJ. Dec. 17, 2010 Comm. No. DO 623000

 
 Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 1 of 19 PageID 593

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

CASE NO. 3:09-CV-1170-J-34JRK

THOMAS ARNOLD, in his official Capacity as the Secretary of Florida Agency for Health Care Administration

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health

Defendants.
_________________________________________/

DEFENDANTS’ RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO MICHELE HADDAD’S MOTION FOR PRELIMINARY INJUNCTION

The Defendants, THOMAS ARNOLD, in his official capacity as the Secretary of the

Florida Agency for Health Care Administration, and DR. ANNA VIAMONTE ROSS, in

her official capacity as Secretary, Florida Department of Health, by undersigned counsel, submit this response and memorandum of law in opposition to Michele Haddad‟s Motion for

Preliminary Injunction. As grounds therefore, Defendants state as follows:

BACKGROUND On December 2, 2009, Plaintiff in the above-captioned matter filed a lawsuit alleging violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (ADA) and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (Rehab Act). In her Complaint, the Plaintiff Jacqueline Jones alleges that she is a Medicaid-eligible adult
1

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suffering from quadriplegic paralysis who is at imminent risk of institutionalization due to Defendant‟s failure to provide personal care assistance in her home through the Medicaid program. The Plaintiff expresses a desire to remain in the community and alleges that she could do so with the appropriate services.
On December 15, 2009, Plaintiff amended her Complaint to allege class action violations. The putative class consists of “Florida disabled residents with a spinal cord injury who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid-funded services; and are at risk, as determined by the recipient‟s treating physician or other treating health professional, of being forced to enter a nursing home because Defendants do not provide adequate community-based services.” Amended Complaint, ¶ 34. On January 6, 2009, Plaintiff filed her Motion for Class Certification, which the Defendants oppose and which has not been ruled on as of the filing of this Response.
On December 29, 2009, Defendants filed their Motion to Dismiss Amended Complaint based upon the mootness of Plaintiff‟s case and the Plaintiff‟s failure to state a claim upon which relief can be granted. In the Motion to Dismiss, Defendants pointed out that the Plaintiff was already in the process of being enrolled in the Traumatic Brain Injury / Spinal Cord Injury Medicaid Waiver Program (TBI / SCI Waiver Program) and that the case was therefore moot.1 In addition, Defendants explained that the ADA does not require the provision of personal care services, the requested class action relief would result in a fundamental alteration of the Florida Medicaid program in violation of the ADA, and the
1 Plaintiff Jones began receiving in-home services in the TBI/SCI Waiver Program on February 2, 2010.
2

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claims in the Amended Complaint are barred by issue or claim preclusion (or collateral estoppel). As of the filing of this Response, the Court has not ruled on Defendants‟ Motion to Dismiss Amended Complaint.
On January 27, 2010, Plaintiff filed a Motion for Leave to Amend First Amended Class Action Complaint. The proposed Second Amended Complaint, which was attached to the motion, would add three new named plaintiffs to this case: Dwayne Davidson, Nigel De La Torre and Luis Cruz. The Court has not ruled on this motion, which the Defendants oppose.
On April 12, 2010, the Plaintiff filed an untimely Motion for Leave to File Third Amended Class Action Complaint, which would add Michele Haddad as an additional named plaintiff in this matter. The Defendants oppose this Motion and filed on the same date a Motion to Stay Proceedings in light of the pending motions in this case. In addition, on April 15, 2010, Plaintiff filed a motion styled Plaintiff Michele Haddad‟s Motion for Preliminary Injunction, Expedited Hearing and Memorandum of Law in Support. Defendants oppose this Motion for Preliminary Injunction because Ms. Haddad is not a plaintiff in this matter and because Ms. Haddad cannot demonstrate that she meets the requirements for injunctive relief.
As further support, Defendants direct this Court to the following Memorandum of Law, which is attached hereto and is incorporated herein by reference.
MEMORANDUM OF LAW
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I. Ms. Haddad is Not a Plaintiff in This Matter Ms. Haddad is not a plaintiff in this matter. While there is significant jurisprudence
regarding the circumstances under which an injunction will affect non-parties, there is scant law on whether a non-party may seek an injunction. What law there is, however, militates against issuing an injunction in favor of a non-party. In Piambino v. Bailey, 757 F. 2d 1112, 1137 fn. 62 (11th Cir. 1985), the following is found:
As a nonparty, what (the nonparty) was actually seeking was an injunction ... directing Lead Counsel to restore their attorney‟s fee and reimbursed expenses to ..the court and (as to a settlement) directing the parties to take no steps toward its execution….the district court, having denied (the nonparty‟s intervention), had to deny his application for injunctive relief. In Travelers Insurance Co. v. St. Judge Hospital of Kenner, La, Inc., 1990 WL 136742 (E. D. La. 1990), the court found that Travelers was not the real party in interest and was therefore not entitled to seek a preliminary injunction. The court further noted that in two instances in which a non-party sought injunctive relief, “an injunction could not issue.” It thus appears that the question of whether a non-party can seek an injunction is so self-evident, there is no need for expansive jurisprudence on this point. Moreover, Ms. Haddad is not likely to become a plaintiff in this case. The Court should deny the Motion for Leave to File Third Amended Class Action Complaint because it was not timely filed. On February 1, 2010, the parties jointly filed a Case Management Report in which the parties agreed that the deadline for Motions to Add Parties or Amend Pleadings should be March 29, 2010. On February 5, 2010, this Court issued a Case Management and Scheduling Order setting March 29, 2010, as the deadline for Motions to
4

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Add Parties or Amend Pleadings. By filing the Motion for Leave to File Third Amended Class Action Complaint two full weeks after this deadline, the Plaintiff is in direct violation of this Court‟s Order. As such, the Plaintiff‟s Motion for Leave to File Third Amended Class Action Complaint is “distinctly disfavored.” Case Management and Scheduling Order, ¶ 5. Moreover, as Defendants demonstrated in their Response and Memorandum of Law in Opposition to Plaintiff‟s Motion for Leave to Amend First Amended Class Action Complaint, Plaintiff‟s case is moot and the amendment of the complaint would be futile as this third attempt to amend does not fix the deficiencies demonstrated in Defendants‟ Motion to Dismiss. II. Ms. Haddad Cannot Meet the Requirements for a Preliminary Injunction
In order to obtain the requested preliminary injunctive relief, Ms. Haddad would have to demonstrate that (1) she has a substantial likelihood of prevailing on the merits; (2) she will suffer irreparable harm unless the injunction issues; (3) the threatened injury to Ms. Haddad outweighs whatever damage the proposed injunction may cause the Defendants; and (4) the injunction, if issued, would not be adverse to the public interest. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. Ga. 2005). Ms. Haddad has the burden of persuasion in all of the four requirements for preliminary injunctive relief, which burden, due to the “‟extraordinary and drastic‟” nature of the remedy, Ms. Haddad must “clearly carry.” United States v. Lambert, 695 F.2d 536, 540 (11th Cir. Fla. 1983) (citing Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir. 1975)); See also Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. Fla. 1974).
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As demonstrated below, Ms. Haddad, even if she were a proper plaintiff in this matter, could not and cannot clearly carry the burden of persuasion on the four requirements for preliminary injunctions. As such, Ms. Haddad‟s Motion for Preliminary Injunction should be denied. III. Ms. Haddad Cannot Demonstrate Substantial Likelihood of Prevailing on the
Merits Ms. Haddad cannot show that she has a substantial likelihood of prevailing on the merits in this case. The entire premise of the proposed Third Amended Complaint is undermined by the fact that the regulations promulgated pursuant to Title II of the ADA specifically provide that public entities do not have to provide services of the nature which Ms. Haddad is demanding. Neither are states required to provide the demanded services under the Federal Medicaid Act. To the extent that states choose to provide such services pursuant to a Medicaid home and community-based services waiver program (HCBS), federal Medicaid law permits states to cap enrollment in such programs and to discriminate on the basis of geography and disability. The accommodations that Ms. Haddad is requesting would require Florida to fundamentally alter its Medicaid program, which the ADA does not require. Finally, Ms. Haddad‟s interpretation of federal regulations under the ADA would both alter the federal Medicaid statute and create a private right of action, which no regulation can do.
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Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 7 of 19 PageID 599
A. The ADA and Rehab Act Do Not Require a Public Entity to Provide Personal Care Services
The specific services the Ms. Haddad is demanding in the proposed Third Amended Complaint and Motion for Preliminary Injunction include assistance transferring from her bed to her wheelchair and from her wheelchair back to her bed, assistance dressing, grooming, toileting, and other activities of daily life. Proposed Third Amended Complaint, ¶ 44-45. Plaintiff and Ms. Haddad contend that both the ADA and Rehab Act require the provision of personal care services. This is not the case.
Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II also prescribes remedies available for a violation of the above provision and authorizes the Attorney General to promulgate implementing regulations. 42 U.S.C. §§ 12133, 12134.
Several regulatory provisions promulgated pursuant to Title II of the ADA are of particular relevance in this case. First, there is the “integration mandate” of 28 C.F.R. § 35.130(d), upon which Plaintiff heavily relies, which states that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Second, 28 C.F.R. § 35.130(b)(7), states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would
7

Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 8 of 19 PageID 600
fundamentally alter the nature of the service, program, or activity.” Finally, and most importantly, 28 C.F.R. § 35.135 states that the ADA regulations do “not require a public entity to provide to individuals with disabilities…services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added).
The Plaintiff and Ms. Haddad want the Courts to enforce one regulatory provision while ignoring another that specifically excludes the requested services from the scope of the first. Florida is required to administer its services “in the most integrated setting appropriate,” but this cannot be read to require the Florida Medicaid program to provide “services of a personal nature,” which is precisely the kind of services Ms. Haddad is requesting here. The ADA does not require the provision of these services. This is all the more true when it is considered that the provision of personal care services to Ms. Haddad would require more than “reasonable modifications” to policies, practices, or procedures, but would in fact require Florida to “fundamentally alter” its Medicaid program.
B. The Requested Relief Would Constitute a Fundamental Alteration of Florida’s Medicaid Program
The State of Florida has no obligation to provide the Plaintiff with personal care assistance either through its HCBS Traumatic Brain Injury/Spinal Cord Injury Waiver Program (TBI/SCI Waiver) or by adding personal care assistance services to its Medicaid State Plan.
Medicaid is a joint federal-state venture created by federal statute, Title XIX of the Social Security Act of 1965, as amended. 42 U.S.C. § 1396 et seq. In order to participate in Medicaid, a state must submit a plan to the federal government outlining its program to
8

Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 9 of 19 PageID 601
fund medical services for the poor and needy in accordance with the federal Medicaid Act. If the federal government approves the plan, it “then subsidizes a certain portion of the financial obligations which the state has agreed to bear.” Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997) (citing Silver v. Baggiano, 804 F.2d 1211 (11th Cir. 1986)). Currently, with the addition of stimulus funds pursuant to the American Recovery and Reinvestment Act of 2009, the federal government provides approximately 68% of the money in Florida‟s Medicaid program. When the stimulus period ends at the end of 2010, the federal contribution will likely return to approximately 55%.
The federal Medicaid Act defines “medical assistance” to mean payment for all or part of the services listed in 42 U.S.C. § 1396d(a)(1) through (28). 42 U.S.C. § 1396d(a). Only seven of the twenty-eight services listed are mandatory, meaning that a state must include such in its state plan in order to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services for adults over the age of 21 include inpatient hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nurse-midwife services, and certified nurse practitioner services. See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to provide at least the services listed in § 1396d(a)(1) through (5), (17) and (21)). Thus, Florida is required by federal law to make nursing facility services available and, if these services are medically necessary for Plaintiff or Ms. Haddad, they are entitled to them as a matter of federal law. See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
Florida may include any of the twenty-one services listed in 42 U.S.C. § 1396d(a), including personal care services. However, it is essential to note that Florida is not required
9

Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 10 of 19 PageID 602
to provide such services to comply with the Medicaid Act, and, to the extent that Florida opts not to provide any of these twenty-one other services, Florida‟s Medicaid recipients to do not have an entitlement to those services.
In addition to the Medicaid services offered under a state‟s Medicaid State Plan, a state may also enter into an agreement with the federal government to offer services under a waiver program, such as the HCBS waivers. See 42 U.S.C. § 1396n(c). Under waiver programs such as the TCI/SCI Waiver, the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). Most importantly for the purposes of this case, the Medicaid Act permits waiver of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). Id. This provision requires state plans to offer the services in 42 U.S.C. § 1396d(a) to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396a(a)(10)(B). By providing for a waiver of the comparability requirement, the Medicaid Act permits states to discriminate on the basis of disability.
The Medicaid Act also permits waiver of Medicaid requirements with respect to limiting the number of persons receiving waiver services and eliminating the statewideness requirement. While a state must provide services under its State Plan to everyone who meets the state‟s Medicaid eligibility requirements, the waiver law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Waiver of statewideness means that states can limit the provision of HCBS services to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3).
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It is important to note that while the federal Medicaid Act permits states to create HCBS waiver programs, it does not require states to do so. As the Medicaid Act states, “a State plan approved under this subchapter may include as „medical assistance‟ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by” the federal government. 42 U.S.C. § 1396n(c)(1) (emphasis added). Neither does the Medicaid Act require the federal government to approve states‟ HCBS waiver programs. The Secretary of the Department of Health and Human Services “may by waiver” allow states to create HCBS programs. Id. (emphasis added).
It is not disputed that the Florida Medicaid program does not provide in-home personal care assistance for adults like Plaintiff. While Florida does provide in-home personal care assistance through its TCI/SCI Waiver, Florida has opted to place a cap on the number of persons enrolled in this program. The TCI/SCI Waiver program had no available opening at the time Plaintiff applied and she was thus placed on a waiting list. In the Amended Complaint and Motion for Preliminary Injunction, Plaintiff and Ms. Haddad do not allege that Florida has violated the Medicaid Act by failing to provide them with inhome personal care assistance. However, in both the Amended Complaint and Motion for Preliminary Injunction they are requesting the Court to order Defendant to provide them with such services. Such an order would effectively nullify one or more provisions of the Medicaid Act, thus forcing modifications that would “fundamentally alter” the Medicaid Program in violation of ADA regulations. 28 C.F.R. § 35.130(b)(7).
In granting Ms. Haddad‟s Motion for Preliminary Injunction, the Court would invalidate the Medicaid Act‟s explicit statement that the only mandatory services are those
11

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found at 42 U.S.C. § 1396d(a)(1) through (5), (17), and (21) by converting personal care assistance from an optional service to a mandatory service. 42 U.S.C. § 1396a(a)(10)(A). This would require Florida to undertake a massive program expansion to ensure the provision of personal care assistant services to Medicaid recipients, fundamentally altering the program in the process.
In the alternative, an injunction order would invalidate the provision in 42 U.S.C. § 1396n(c)(1) declaring that HCBS waiver programs are optional for states and that states can cap enrollment in such programs. The HCBS waiver programs do not have adequate numbers of qualified community providers to sustain the significant increase in capacity that would come from invalidating enrollment caps. Requiring Defendant to transfer large numbers of persons onto such waiver programs would constitute a fundamental alteration to the programs.
The case law Plaintiff cites in the Motion for Preliminary Injunction regarding reasonable modifications is instructive here. In Alexander v. Choate, 469 U.S. 287 (U.S. 1985), the U.S. Supreme Court made clear that while state Medicaid programs may not discriminate against the disabled, neither are such programs bound to provide specialized services to the disabled that are not available to other Medicaid recipients, “as long as care and services are provided in „the best interests of the recipients.‟” Alexander v. Choate, 469 U.S. 287, 303 (U.S. 1985) (Citing 42 U. S. C. § 1396a(a)(19)). The Rehab Act, the Court held, does not require states to alter the “definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs.” Id., at 304. Here,
12

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Plaintiff is essentially asking the Court to order Defendant to redefine the benefits offered under the Florida Medicaid program to meet the heightened needs of the disabled.
In summary, no state is required to offer personal care assistance services as part of its Medicaid State Plan, and Florida has not opted to do so. Every state is required to provide nursing facility services as part of its Medicaid State Plan, and Florida provides such services to eligible Medicaid recipients. Florida offers personal care assistance services within nursing facilities to Medicaid recipients who require them, both disabled and nondisabled. No state is required to create HCBS waiver programs. Florida has created and received federal approval for several HCBS waivers, including the TBI/SCI Waiver. Florida offers personal care assistance services as part of several HCBS waivers, including the TBI/SCI Waiver. Florida has capped the enrollment in the TBI/SCI Waiver program to 375, which is permitted under the Medicaid Act and has been approved by the federal government. The issuance of the preliminary injunctive relief would fundamentally alter Florida‟s Medicaid program by requiring Defendant to either offer personal care assistance services as part of its Medicaid State Plan or uncap or increase enrollment in the TBI/SCI Waiver. It should be noted that Florida is not able to take either of these measures without approval from the federal government. IV. Ms. Haddad Will Not Incur Any Irreparable Harm
In order to qualify for a preliminary injunction, Ms. Haddad would have to show that she will suffer irreparable harm. Mony Secs. Corp. v. Vasquez, 238 F. Supp. 2d 1304 (M.D. Fla. 2002). An injury is irreparable only if it cannot be undone by monetary
13

Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 14 of 19 PageID 606
remedies. Cate v. Oldham, 707 F.2d 1176 (11th Cir. Fla. 1983). Plaintiff fails to show that any harm she would incur by entering a nursing facility would be irreparable.
The case law cited by Plaintiff is inapplicable to the present situation. She cites McMillan v. McCrimon, 807 F. Supp. 475 (C.D. Ill. 1992), for the principle that the loss of Medicaid benefits constitutes irreparable harm. In McMillan, the district court found that the plaintiffs in that case would not receive the services and care they required in a nursing facility. McMillan, at 479. In the instant case, Plaintiff does not contend that she would not receive the medical services she needs if she were institutionalized in a nursing facility. Rather, she claims that the fact that such a facility is the only place she can receive the services she needs constitutes a failure of the Defendant to provide services in the most integrated setting pursuant to ADA regulations. McMillan does not stand for the principle that receipt of services in a less integrated setting constitutes irreparable harm.
Plaintiff likewise cites Edmonds v. Levine, 417 F. Supp. 2d 1323 (S.D. Fla. 2006), to show that the denial of medical benefits, and the resulting loss of services, constitutes irreparable harm. In the Edmonds case, the state had discontinued coverage of the prescription drugs that the plaintiffs were already receiving. Edmonds, at 1326. The Court held that the this denial of medical services constituted irreparable harm. Id., at 1342. This is not the situation in the instant case. Ms. Haddad is not being denied medical services. To the extent that she needs personal care assistance, she would receive such services in a nursing facility.
Plaintiff also cites Mitson v. Coler, 670 F. Supp. 1568 (S.D. Fla. 1987), which held that a preliminary injunction was appropriate where plaintiffs risked losing their medical
14

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services, in this case nursing facility services. The irreparable harm in Mitson, being forced out of a nursing facility, is the exact opposite of the irreparable harm that Plaintiff is alleging: being forced to enter a nursing facility. Unlike the plaintiffs in Mitson, Ms. Haddad does not risk losing any services she is currently receiving. Her complaint is that she cannot receive the services in the setting of her choice.
Even if Ms. Haddad did enter a nursing home, this harm would not be “irreparable” as Ms. Haddad would be eligible after 60 days for the nursing home transition program, which is funded and which would allow Ms. Haddad to be transferred to the TBI/SCI Waiver. See April 29, 2010, Affidavit of Kristen Russell. V. The Balance of Hardships Weighs in Favor of the Defendants
The Court must balance the harms in determining whether a preliminary injunction should issue. Plaintiff contends that the threatened harm to Ms. Haddad outweighs any harm to Defendant. Contrary to Plaintiff‟s assertions, she is not asking the Defendants to simply spend less of their Medicaid funds and permit her to continue to reside in her home. To the extent that the Plaintiff is asking the Court to make personal care assistance services mandatory for Florida or to “uncap” the TCI/SCI Waiver, the state would be forced to assemble a massive personal care assistance provider network.
The case law cited by Plaintiff in this Motion is inapposite. She cites Edmonds as finding that the “harm to plaintiffs of being deprived of essential medical services outweighs any harm to state.” In fact, the defendants in Edmonds never claimed that they would incur any hardship. Since the plaintiffs did claim they would incur hardship, the Court concluded
15

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that the balance of hardships weighed in their favor. Edmonds, at 1342. Here, the Defendants would incur significant harm if a preliminary injunction is issued.
Plaintiff also cites Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F. Supp. 360 (N.D. Ill. 1983), for the principle that a state cannot characterize its duties to comply with the requirements of an under an elective program such as Medicaid as constituting a hardship. Id. However, this does not describe the Defendants in the instant case. Defendants are not claiming that any of the duties imposed by the Medicaid program constitute a hardship. Rather, Defendants contend that the additional burdens that the Court would be imposing by granting the requested injunctive relief, burdens that go beyond the requirements of the Medicaid program, would constitute a hardship. Furthermore, Illinois Hospital Asso. is not an example of a court weighing burdens in favor of plaintiffs, as the defendant in that case did not claim any hardship. VI. The Public Interest Will Be Harmed if Ms. Haddad is Granted a Preliminary
Injunction Plaintiff / Ms. Haddad has the burden of showing that the preliminary injunctive relief they seek would serve the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. Fla. 2005). Plaintiff claims that the public interest will be served by an order granting a preliminary injunction in Ms. Haddad‟s favor. However, the only person such a preliminary injunction would serve would be Ms. Haddad. To the extent that the preliminary injunction required the State of Florida to add personal care services to its Medicaid State Plan or “uncap” enrollment in its TBI/SCI Waiver, Florida would be required to divert funds from other sources, potentially injuring other Medicaid recipients.
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To the extent that the preliminary injunction required Defendants to “jump” Ms. Haddad to
the head of the TBI/SCI Waiver waiting list, the state would be required to deny or delay
benefits to recipients who had been higher on the waiting list. Such a result would be
catastrophic, not to mention inequitable and contrary to the public interest. Plaintiff fails to
address this problem in her Motion.
CONCLUSION
For the reasons stated above, this Court should deny the Motion for Preliminary
Injunction.
Respectfully submitted this 30th day of April, 2010.
AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
BY: /s/ William M. Blocker II William M. Blocker II Fla. Bar No. 295700 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: blocker@ahca.myflorida.com
17

Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 18 of 19 PageID 610
DEPARTMENT OF HEALTH
BY: /s/ George Waas George Waas Special Counsel Fla. Bar No. 129967 Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 (850) 414-3662; (850) 488-4872 Fax E-mail: george.waas@myfloridalegal.com
BY: /s/ Enoch Jonathan Whitney Enoch Jonathan Whitney Fla. Bar No. 13063 Office of the Attorney General 400 S Monroe St # PL-01 Tallahassee, Florida 32399-6536 (850) 414-3672; (850) 488-4872 Fax Email: Jon.Whitney@myfloridalegal.com
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 30th day of April, 2010.
/s/ Andrew T. Sheeran 18

Case 3:09-cv-01170-MMH-JRK Document 58 Filed 04/30/10 Page 19 of 19 PageID 611 ANDREW T. SHEERAN ATTORNEY
19

 
 Case 3:09-cv-01170-MMH-JRK Document 62 Filed 05/07/10 Page 1 of 3 PageID 668

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

Case No. 3:09-cv-1170-J-34JRK

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.

_____________________________________/

ORDER

THIS CAUSE is before the Cour t on the motion fo r preliminary injunction filed by

Michele Haddad (“Haddad”) on April 15, 2010. See Plaintiff [sic] Michele Haddad’s Motion

for Preliminary Injunction, Expedited Hearni g and Memorandum of Law in Support (Doc. No.

52; Motion for Prelim inary Injunction). In the Motion for Preliminary Injunction, Haddad

represents that she is a “named plani tiff” in this litigation. Seeid. at 2. While it appears that

Haddad is a potential member of the class that Plaintiff, Jacqueline Jones, seeks to certify

and is a proposed class representative and named plaintiff, see Motion for Leave to File

Third Amended Class Action Complaint (Doc. No. 49;Motion to Amend Complaint) at 2, the

Court has yet to resolve either Plaintiff’s Motion for Class Certification (Doc. No. 28) or the

Motion to Amend Complaint. An unnamed “class member” in an uncertified class, Haddad

Case 3:09-cv-01170-MMH-JRK Document 62 Filed 05/07/10 Page 2 of 3 PageID 669
is not a party to this case and lacks standing here to seek the relief requested in the Motion for Preliminary Injunction. See Piambino v. Bailey , 757 F.2d 1112, 1137 n.62 (11th Cir. 1985) (explaining that appellant, “not being a party to the proceedings, lacked standing to move the court to court to set aside the fee disbursement and to stay the execution of the final judgment”; that nonparty was “actually seeking” an injunction; and that, having denied his motion to intervene, the district court “ had to deny his application for such injunctive relief”); E.E.O.C. v. E. Airlines, Inc., 736 F.2d 635, 637 (11th Cir. 1984) (holding that district court properly denied nonparty’s motion to intervene and thus lacked jurisdiction to rule on nonparty’s substantive motion, recognizing that the nonparty’s “right to move to vacate the consent decree was, of necessity, predicated on her ability to intervene successfully in the EEOC case. Otherwise, . . . as a non-party to the EEOC suit, [she] would lack standing to move to vacate the consent decree, or to make any other motion, in the EEOC case.”); cf. McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997)(“The fundamental problem with this injunction is that pl aintiffs lack standing to seek—and the district court therefore lacks authority to grant—relief that benefits third parties. . . . Because a class has not been certified, the only interests at stake are those of the named plaintiffs. . . . [A] court may [not] grant relief to non-parties.”) (internal citation s omitted); Goldstein v. Home Depot U.S.A., Inc., 609 F. Supp. 2d 1340, 1349 (N.D. Ga. 2009) (“Inujnctions may not be issued to provide relief for non-parties.”) (citation omitted).
Accordingly, it is hereby ORDERED:
-2-

Case 3:09-cv-01170-MMH-JRK Document 62 Filed 05/07/10 Page 3 of 3 PageID 670 Plaintiff [sic] Michele Haddad’s Motion for Preliminary Injunction, Expedited Hearing
and Memorandum of Law in Suppor t (Doc. No. 52; Motion for Preliminary Injunction) is DENIED without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 7th of May, 2010.
lc9 Copies to: Counsel of Record
-3-

 
 Case 3:09-cv-01170-MMH-JRK Document 84 Filed 09/10/10 Page 1 of 15 PageID 760

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

____________________________________

JACQUELINE JONES, on behalf of herself )

and all others similarly situated,

)

)

Plaintiff,

)

)

)

v.

)

)

THOMAS ARNOLD, in his official

)

capacity as Secretary, Florida Agency for )

Health Care Administration, and

)

)

Dr. ANA VIAMONTE ROS,

)

in her official capacity

)

as Secretary, Florida Department of

)

Health,

)

)

Defendants.

)

____________________________________)

Case No. 3:09-CV-1170-J34-JRK Class Action

UNITED STATES’ MOTION TO INTERVENE The United States hereby moves this Court for leave to intervene in this action as of right, pursuant to Federal Rule of Civil Procedure 24(a)(2) or, alternatively, in permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). As grounds therefore, the United States states as follows: 1. The United States’ Motion to Intervene is timely because the litigation is in its early stages. The defendants’ motion to dismiss and the plaintiff’s motion for class certification are pending, and the United States’ intervention will not create any delay.

Case 3:09-cv-01170-MMH-JRK Document 84 Filed 09/10/10 Page 2 of 15 PageID 761
Thus, intervention by the United States at this juncture will not prejudice the existing parties. 2. The United States has a substantial legal interest in the subject matter of the action because it involves claims asserted under title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. The United States Department of Justice is the agency with primary regulatory and enforcement responsibilities under title II of the ADA and, as such, plays a unique role in enforcing and interpreting the statute and its implementing regulations on behalf of the broad public interest. It also has a significant interest in enforcing the Supreme Court case, Olmstead v. L.C., 527 U.S. 581 (1999), which held that unnecessary institutionalization violates the ADA and the Rehabilitation Act. 3. Disposition of the action without the United States’ participation may impede its enforcement and regulatory interests. Because there are relatively few cases interpreting Olmstead, the outcome of this case implicates stare decisis concerns that warrant the United States’ intervention. 4. The United States’ interests are not adequately protected by the existing parties to the litigation. Because the United States represents the public interest on a national scale, its interests do not necessarily align with the interests represented by private plaintiffs. 5. The United States also satisfies the requirements for permissive intervention because its claims against the defendant have questions of law and fact in common with the claims and facts at issue in the main action, and the action involves the interpretation
2

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of statutes that the Attorney General is entrusted by Congress to administer. See Fed. R. Civ. P. 24(b)(2). 6. Pursuant to Local Rule 3.01(g), counsel for the United States conferred with counsel for the defendant by telephone on August 19, 2010 concerning the United States’ motion to intervene. Counsel for defendant did not consent to the United States’ request for intervention. Counsel for plaintiff consents to the United States’ Motion to Intervene. 7. As further support for this Motion, the United States respectfully directs the Court to the following Memorandum of Law, which is attached hereto and incorporated herein by reference.
MEMORANDUM OF LAW IN SUPPORT OF UNITED STATES’ MOTION TO INTERVENE

I.

INTRODUCTION

The proposed Complaint in Intervention alleges that the State of Florida fails to provide necessary community-based services so that Medicaid-eligible individuals with spinal cord injuries who are at risk of institutionalization may be served in the “most integrated setting appropriate to their needs.”1 The State continues to fund costly, institutional care, rather than provide sufficient community-based services to persons with spinal cord injuries, placing them at risk of unnecessary institutionalization. As a result, Florida is in violation of title II of the Americans with Disabilities Act (ADA), 42

1 Pursuant to Fed. R. Civ. P. 24(c), the proposed Complaint in Intervention is attached hereto as Exhibit 1.
3

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U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and their implementing regulations (as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999)).
Congress enacted the ADA in 1990 “to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). As Congress stated in the Findings and Purposes of the ADA, “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities, including discrimination in the form of segregation. Olmstead v. L.C., 527 U.S. 581, 588 (1999).
Congress sought “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(2), and explicitly stated that one of the purposes of the ADA was “to ensure that the Federal Government plays a central role in enforcing the standards established [in the Act] on behalf of individuals with disabilities….” 42 U.S.C. § 12101(b)(3). The United States’ prominent enforcement role is reflected in the statutory authorization given the Attorney General to commence a legal action when discrimination prohibited by the ADA takes place. 42 U.S.C. § 12133.
The Department of Justice thus has a unique role in enforcing and interpreting title II and its implementing regulations on behalf of the broad public interest. This case directly implicates the United States’ interest in enforcing title II of the ADA and the
4

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Department’s goal of ensuring that the integration mandate of Olmstead is met. The United States also has a substantial interest in ensuring that recipients of federal financial assistance, such as the defendant, do not violate Section 504’s similar prohibition of disability discrimination.
The private lawsuit was filed on December 2, 2009, in the U.S. District Court for the Middle District of Florida, on behalf of Jacqueline Jones, a 35-year old woman with quadriplegia, who alleged that the State of Florida failed to provide her with home and community-based services. The denial of community-based services put her at risk of institutionalization in violation of title II of the ADA and Section 504 of the Rehabilitation Act.2 Shortly after filing the Complaint on behalf of the individual plaintiff, the Complaint was amended to include class claims. The proposed class consists of Florida residents with disabilities resulting from
spinal cord injur[ies] who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid-funded services; and are at risk, as determined by the recipient’s treating physician or other treating health professional, of being forced to enter a nursing home because defendants do not provide adequate community-based services. (Amended Complaint at ¶34.) On December 29, 2009, defendants moved to dismiss the Amended Complaint and on January 6, 2010, plaintiffs filed a motion for class certification. The motion to dismiss and motion for class certification remain pending. On June 14, 2010, the Court
2 The private lawsuit names in their official capacities, Thomas Arnold, the Secretary of the Florida Agency for Health Care Administration (AHCA) and Dr. Ana Viamonte Ros, Secretary of Florida’s Department of Health (DOH), as defendants. Thomas Arnold resigned from his position in August 2010, and Elizabeth Dudek is serving as Interim Secretary of AHCA.
5

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issued an order granting a joint motion to extend discovery and expert witness disclosure deadlines. On August 25, 2010, the parties filed another joint motion to extend the discovery deadlines. Accordingly, very little discovery has occurred to date, and the proceedings are at an early stage.

II.

ARGUMENT

A. The United States Satisfies the Requirements for Intervention of Right

Federal Rule of Civil Procedure Rule 24(a) provides that upon timely application,
anyone shall be permitted to intervene in an action:
When the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Fed. R. Civ. P. 24(a)(2). Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302-03 (11th Cir.
2008) (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989)); see also
Stone v. First Union Corp., 371 F. 3d 1305, 1308-09 (11th Cir. 2004).
Here, the United States’ request for intervention satisfies the requirements of Rule
24(a)(2) for intervention as of right. The United States has a substantial legal interest in
the subject matter of the action because this case directly implicates the United States’
responsibility for enforcing title II of the ADA and Section 504 of the Rehabilitation Act.
The United States is timely seeking to intervene in this action, as the case is still in its
early stages, and its intervention will not disrupt the proceedings or prejudice either party.
Moreover, the United States Department of Justice—as the agency with primary

6

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regulatory and enforcement responsibilities under title II of the ADA—has direct and significant interests in this action that cannot be adequately protected by private parties.
1. The United States’ Motion to Intervene is Timely The Eleventh Circuit has identified several factors relevant to determining whether a request for intervention is timely:
(1) the length of time during which the proposed intervenor knew or reasonably should have known of the interest in the case before moving to intervene; (2) the extent of prejudice to the existing parties as a result of the proposed intervenor’s failure to move for intervention as soon as it knew or reasonably should have known of its interest; (3) the extent of prejudice to the proposed intervenor if the motion is denied; and (4) the existence of unusual circumstances militating either for or against a determination that their motion was timely. Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242, 1259 (11th Cir. 2002) (quoting Chiles, 865 F.2d at 1213). The Supreme Court has emphasized that “[t]imeliness is to be determined from all the circumstances.” NAACP v. New York, 413 U.S. 345, 366 (1973). This Circuit has also recognized that the requirement of timeliness “must have accommodating flexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interest of justice.” U.S. Army Corps of Engineers, 302 F.3d at 1259 (citing McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970). In Chiles v. Thornburgh, a motion to intervene was held to be timely where the motion “was filed only seven months after [the plaintiff] filed his original complaint, three months after the government filed its motion to dismiss, and before any discovery had begun.” Chiles, 865 F.2d at 1213; see also Diaz v. Southern Drilling Corp., 427 F.2d
7

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1118, 1125-26 (5th Cir. 1970) (motion to intervene more than a year after the action was commenced was timely when there had been no legally significant proceedings other than the completion of discovery and intervention would not cause any delay in the process of the overall litigation).
Applying these factors to the instant case, the United States’ application for intervention is timely. Since the filing of the initial complaint in December 2009, the parties have engaged in only limited discovery. Under the current scheduling order, discovery is not scheduled to close until December 2010, and the parties recently filed a joint motion to extend the discovery deadlines. Thus, this litigation remains at an early stage and the United States’ decision to intervene at this point will not prejudice either party.3 Davis v. Southern Bell Tel. & Tel. Co., 149 F.R.D. 666, 670 (S.D. Fla. 1993) (allowing intervention “[a]lthough the case has been pending for more than two years, discovery on the merits has not been completed and dispositive motions have not been filed. As a consequence, there is no indication that this litigation is close to conclusion.”).
While the existing parties to the litigation will not be prejudiced by the United States’ intervention, the United States will be prejudiced if its request for intervention is denied. Its interests in enforcing title II of the ADA and the integration mandate will undoubtedly be impaired if it is not permitted to intervene in this action. Moreover, the Department of Justice’s extensive experience with the statutes at issue will benefit the existing parties in presenting facts and arguments that will help frame the issues. By
3 Because the pending motions to dismiss and for class certification are fully briefed, the United States does not seek to participate in the briefing of those motions.
8

Case 3:09-cv-01170-MMH-JRK Document 84 Filed 09/10/10 Page 9 of 15 PageID 768
avoiding multiple lawsuits and coordinating discovery, intervention will lend efficiency to the proceedings.
2. The United States has a Substantial Legal Interest in this Litigation
For an applicant’s interest in the subject matter of the litigation to be cognizable under Rule 24(a)(2), it must be “direct, substantial and legally protectable.” U.S. Army Corps of Engineers, 302 F.3d at 1249. See also Chiles, 865 F.2d at 1212-13 (noting that the focus of a Rule 24 inquiry is “whether the intervenor has a legally protectable interest in the litigation.”) The inquiry on this issue “is ‘a flexible one, which focuses on the particular facts and circumstances surrounding each [motion for intervention].’” Chiles, 865 F.2d at 1214 (quoting United States v. Perry County Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978)).
The United States has a legally protectable interest in this litigation. As the agency with primary regulatory and enforcement responsibilities under title II of the ADA, the United States Department of Justice has significant interests in enforcing and interpreting title II and ensuring that the integration mandate of Olmstead is met. Olmstead, 527 U.S. at 607. Accordingly, the Department of Justice has recently brought, intervened in, or participated as an amicus or an interested party in Olmstead litigation in cases in Connecticut, Florida, Georgia, Illinois, New York, New Jersey, North Carolina, California, Arkansas, Pennsylvania, and Virginia. Similarly, the Department of Justice has the authority to coordinate the implementation and enforcement of Section 504 of the Rehabilitation Act. Executive Order 12250, “Leadership and Coordination of
9

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Nondiscrimination Laws,” Nov. 2, 1980; 28 C.F.R. Pt. 41, App. A. The central issues of this case are critical to the Department of Justice’s efforts to advance national goals of community integration and enforce the civil rights of persons with disabilities. Thus, the United States’ interest in the pending litigation merits intervention as of right.
3. The Disposition of the Instant Litigation May Impair the United States’ Ability to Protect Its Interest
The United States’ ability to protect its substantial legal interest would be impaired absent intervention. Because the ADA is a relatively young statute, federal decisions interpreting and applying the provisions of the Act are an important enforcement tool. Specifically, because there has been relatively little case law defining the contours of a state’s fundamental alteration defense under Olmstead, an unfavorable disposition of this case may, as a practical matter, impair the United States’ interest in eliminating unnecessary segregation. The outcome of this case, including the potential for appeals by existing parties, implicates stare decisis concerns that warrant the United States’ intervention. See Stone, 371 F. 3d at 1309-10 (recognizing that potential for a negative stare decisis effect “may supply that practical disadvantage which warrants intervention of right.”) (citing Chiles, 865 F.2d at 1214); see also United States v. City of Los Angeles, Cal., 288 F.3d 391, 400 (9th Cir. 2002) (holding that amicus curiae status may be insufficient to protect the rights of an applicant for intervention “because such status does not allow [the applicant] to raise issues or arguments formally and gives it no right of appeal”).
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4. The Existing Parties Do Not Adequately Represent the United States’ Interests
The fourth and final element to justify intervention of right is inadequate representation of the proposed intervenor’s interest by existing parties to the litigation. This element is satisfied if the proposed intervenor “shows that representation of his interest ‘may be’ inadequate.” Chiles, 865 F.2d at 1214 (citing Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10 (1972)). The burden on the proposed intervenor to show that existing parties cannot adequately represent its interest is “minimal.” Stone, 371 F.3d 1311; U.S. Army Corps of Engineers, 302 F.3d at 1259 (citing Trbovich, 404 U.S. at 538 n. 10). Any doubt concerning the propriety of allowing intervention should be resolved in favor of the proposed intervenors because it allows the court to resolve all related disputes in a single action. Lloyd v. Alabama Dep’t of Corrections, 176 F.3d 1336, 1341 (11th Cir. 1999); Federal Sav. and Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).
In this case, the United States’ interest is in enforcing the ADA and Section 504 to advance the public interest in eliminating discrimination in the form of unjustified institutionalization from a state’s failure to provide adequate home and community-based services. The private plaintiff cannot and does not represent the Department’s views on the proper interpretation and application of title II and Section 504, and will not be able to make all the arguments that the United States will make if allowed to intervene. As the Ninth Circuit recognized in a case allowing private parties to intervene alongside government agency defendants, “[t]he interest of government and the private sector may diverge.” Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 823-24 (9th
11

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Cir. 2001); see also San Juan County v. U.S., 503 F.3d 1163, 1228-29 (10th Cir. 2007); Scotts Valley Band of Pomo Indians of the Sugar Bowl Rancharia v. United States, 921 F.2d 924, 926-27 (9th Cir. 1990) (recognizing that city government’s interest could not be adequately represented by another entity).
B. The United States Meets the Requirements for Permissive Intervention
Rule 24(b) of the Federal Rules of Civil Procedure provides an alternative basis for the United States’ intervention in this action. Rule 24(b) states, in relevant part:
Upon timely application anyone may be permitted to intervene in an action …when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon t imely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Fed. R. Civ. P. 24(b). The Eleventh Circuit has established a two-part test to guide the Court’s discretion as to whether a party may intervene pursuant to Rule 24(b)(2): the applicant must show that “(1) his application to intervene is timely; and (2) his claim or defense and the main action have a question of law or fact in common.” Chiles, 865 F.2d at 1213 (citing Sellers v. United States, 709 F.2d 1469, 1471 (11th Cir. 1983)). As discussed above, the United States’ application for intervention in this litigation is timely and the United States’ participation would neither unduly delay the proceedings nor prejudice the adjudication of the rights of the original parties. Additionally, the United States’ claims against the Defendant—namely, that its failure to
12

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provide adequate community-based services to individuals with spinal cord injuries renders them at risk of institutionalization in violation of the ADA and the Rehabilitation Act—share common questions of law and fact with the private plaintiffs’ claims.
Additionally, Federal Rule of Civil Procedure 24(b)(2) permits intervention by a government agency if a party’s claim is based on a statute administered by the agency. As the agency tasked with enforcing title II of the ADA, the Department of Justice’s intervention falls squarely within the language of Rule 24(b)(2). See Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 92 (3d Cir. 1979) (rev’d on other grounds) (stating that Rule 24(b)(2) makes “specific provision for intervention by governmental agencies interested in statutes, regulations or agreements relied upon by the parties in the action”); Disability Advocates, Inc. v. Paterson, No. 03-3209, 2009 WL 4506301 at *2 (E.D.N.Y. Nov. 23, 2009) (permitting intervention by the United States under Fed. R. Civ. P. 24(b)(2) in an action based on title II’s integration mandate). Accordingly, the United States meets the requirements for permissive intervention.
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III.

CONCLUSION

For the foregoing reasons, the Court should grant the United States’ motion to intervene (i) as a matter of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure or, in the alternative, (ii) permissively pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.

Dated: September 10, 2010

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
__/s/ Anne S. Raish________________ JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief ANNE S. RAISH, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, D.C. 20530 Telephone: (202) 305-1321 Facsimile: (202) 307-1197 Anne.Raish@usdoj.gov
Counsel for Plaintiff-Intervenor United States of America

14

Case 3:09-cv-01170-MMH-JRK Document 84 Filed 09/10/10 Page 15 of 15 PageID 774
CERTIFICATE OF SERVICE I hereby certify that on September 10, 2010 a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103; Jay M. Howanitz, Spohrer & Dodd, P.L., 701 West Adams Street, Suite 2, Jacksonville, FL 32204; Enoch Jonathan Whitney, Office of the Attorney General, 400 South Monroe St. # PL-01, Tallahassee, FL 32399; and Andrew T. Sheeran, Agency for Health Care Administration, 2727 Mahan Drive, Building MS#3, Tallahassee, FL 32308.
/s/ __Anne S. Raish_____________ Anne S. Raish, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, D.C. 20530 Telephone: (202) 305-1321 Facsimile: (202) 307-1197 Anne.Raish@usdoj.gov
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 Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 1 of 18 PageID 775
EXHIBIT 1

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 2 of 18 PageID 776

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JACQUELINE JONES, on behalf of

)

herself and all others similarly situated, )

)

)

Plaintiff,

)

)

and

)

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor, )

v.

)

)

STATE OF FLORIDA

)

)

Defendant.

)

Case No. 3:09-cv-1170-J-34JRK

UNITED STATES' COMPLAINT IN INTERVENTION 1. Plaintiff-Intervenor United States alleges, upon information and belief, that the State of Florida fails to provide sufficient community-based services so that Medicaideligible individuals with spinal cord injuries who are at risk of institutionalization may be served in the "most integrated setting appropriate to their needs." As set forth more fully below, Florida is in violation oftitle II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and their implementing regulations (as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999)). The State continues to fund more costly, institutional care, rather than provide adequate community-based services to persons with disabilities resulting from

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 3 of 18 PageID 777
spinal cord injuries, in violation of Olmstead and the integration mandate. The unmet need for community-based services puts individuals with disabilities at risk ofbeing forced to "relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [] disabilities can receive the medical services they need without similar sacrifice." Olmstead, 527 U.S. at 601. Indeed, the State improperly conditions receipt of community-based services in its Traumatic Brain Injury/Spinal Cord Injury Medicaid Waiver Program ("TBIISCI Waiver Program") on institutionalization in a nursing home. 2. The United States brings this action to enforce title II ofthe ADA and Section 504 of the Rehabilitation Act because unjustified isolation is a recognized form of discrimination that goes to the heart of the ADA and Congress' intent to eliminate the segregation and isolation of individuals with disabilities. As Congress stated in the Findings and Purposes of the ADA: "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2). Congress' purpose in enacting the ADA was thus "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," including discrimination in the form of segregation, Olmstead, 527 U.S. at 589 (citing 42 U.S.C. § 12101(b)(l)), and Congress intended the Attorney General to enforce the statute. See 42 U.S.C. § 12101(b)(3).
2

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JURISDICTION AND VENUE 3. This Court has jurisdiction of this action under title II of the ADA, 42 i:J.S.C. §§ 12131-12132, Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a) and 28 U.S.C. §§ 1331 and 1345. The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201 and 2202. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391, given that a substantial part of the acts and omissions giving rise to this action occurred in the Middle District ofFlorida. 28 U.S.C. § 1391(b).
PARTIES 5. The proposed plaintiff class consists of
Florida disabled residents with a spinal cord injury who are Medicaid recipients; reside in the community; desire to continue to reside in the community instead of a nursing facility; could reside in the community with appropriate Medicaid- · funded services; and are at risk, as determined by the recipient's treating physician or other treating health professional, ofbeing forced to enter a nursing home because Defendants do not provide adequate community-based services. See Motion for Class Certification ~1, Jan. 6, 2010, ECF No. 28. 6. Members of the proposed plaintiff class have spinal cord injuries that substantially limit one or more major life activities, including personal care activities such as bathing, toileting, and preparing meals. They are therefore. individuals with disabilities for purposes of the ADA and the Rehabilitation Act. 7. Plaintiff-Intervenor is the United States of America. The United States brings this action to enforce the rights of Medicaid-eligible individuals with disabilities resulting from spinal cord injuries to receive adequate services in the community so that they will not be unnecessarily segregated in institutions. -
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8. Defendant State of Florida is a "public entity'' within the meaning ofthe ADA, 42

U.S.C. § 12131(1), 28 C.F.R. § 35.104, and is therefore subject to title II ofthe ADA, 42

U.S.C. §§ 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.

9. At all times relevant to this action, Defendant has been, and is, a "recipient" of

I

"Federal financial assistance," and is therefore subject to Section 504 of the

I
~ .
Rehabilitation Act, 29 U.S.C. §794, and the relevant implementing regulations. See

Defs.' Mot. to Dismiss Amended Complaint at 9-10, Dec. 29,2009, ECF No. 25

(acknowledging that defendants receive Federal financial assistance through Medicaid).

10. Defendant State ofFlorida administers services to individuals with spinal cord

injuries through two state agencies: the Florida Agency for Health Care Administration

(AHCA) and the Florida Department of Health (DOH). See Home and Community-

Based Services (HCBS) Waivers,

http://ahca.myflorida.com/medicaidlhcbs waivers/index.shtml (last visited 8/23/201 0);

Florida Department ofHealth, Brain and Spinal Cord Injury Program,

http://www.doh.state.fl.us/DEMO/BrainSC/index.html (last visited 8/23/201 0).

11. AHCA is the chief health policy and planning entity for the State and is

responsible for administering Florida's Medicaid services. Fla. Stat. § 20.42(3) (2006).

AHCA is the "single state agency" that operates Florida's Medicaid program, see 42

U.S.C. § 1396a(a)(5), and is responsible for administering Florida's nursing home and

community-based long-term care system for people with disabilities. See Florida

Medicaid, http://ahca.myflorida.com/medicaid/flmedicaid.shtml (last visited 8/23/2010).

12. DOH is the primary state agency responsible for administering the Medicaid-

funded TBIISCI Waiver Program for persons who require long-term care in the

4

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community. See Brain and Spinal Cord Injury Program, BSCIP Home, http://www.doh.state.fl.us/demo/BrainSC/index.html (last visited 8/23/2010); Fla. Stat. § 381.75 (2009).
FACTS 13. Congress enacted Title XIX ofthe Social Security Act, 42 U.S.C. §§ 1396-1396v, in 1965, thereby establishing the Medicaid program, a medical assistance program cooperatively funded by the federal and state governments. State participation in Medicaid is voluntary, but once a state elects to participate in the Medicaid program, it is required to administer the Medicaid program in accordance with all federal laws, including the ADA and the Rehabilitation Act. 14. Florida participates in the Medicaid program. One source estimates that for each dollar that Florida has spent in 2010 on services in the Medicaid program, it received $2.09 in federal funding. See Kaiser Foundation, Medicaid: A Primer, at 38 (2010), available at http://www.kff.org/medicaid/7334.cfm (last visited 8/23/2010). 15. The Medicaid Act authorizes states to obtain Home and Community-Based Services ("HCBS") waivers from the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services ("CMS") to provide alternatives to nursing home care and services. See 42 C.F.R. § 441.300 ("Section 1915(c) ofthe [Medicaid] Act permits states to offer, under a waiver of statutory requirements, an array of home and community-based services that an individual needs to avoid institutionalization."). Waiver programs reimburse state participants' costs for a range ofhome-based services provided to Medicaid recipients. See 42 U.S.C. § 1396n(c).
5

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16. Florida provides community-based services to a limited number of individuals with spinal cord injuries through its TBI/SCI Waiver Program. This waiver program was implemented in 1999 with the express purpose of"provid[ing] Medicaid-eligible clients who meet nursing home level of care with long-term, community-based services and supports necessary to live safely and independently in the community." See Medicaid Waiver Programs, http://www.doh.state.fl.us/Workforce/BrainSC/Medicaid/medicaidhome.html (last visited 8/23/201 0). 17. To be eligible for the TBIISCI Waiver Program, an individual must meet certain income and asset criteria, as well as medical criteria which would qualify them for nursing home "level of care." 42 U.S.C. § 1396n(c) & (d); 42 C.P.R. §441.301; see also Fla. Admin. CodeR. 65A-1.710(4). Florida residents who have sustained moderate to severe traumatic brain or spinal cord injury and are medically stable and at risk of nursing home care are eligible for the program. See Medicaid Waiver Program, http://www.doh.state.fl.us/demo/BrainSC/Medicaid/medicaidhome.html (last visited 8/23/2010). 18. States determine the number of individuals to be served under a particular Medicaid waiver. The State of Florida has limited the TBI/SCI Waiver Program to 375 recipients through 2012. See Brain and Spinal Cord Injury Program, Core Services Under the Waiver, http://www.doh.state.fl.us/demo/BrainSC/Medicaid/providers.html (last visited 8/23/201 0). 19. While a state typically gains waiver approval for a period oftime spanning several years, a state may seek amendments or modifications from CMS to increase the
6

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 8 of 18 PageID 782
number of individuals served under a particular waiver and such requests are typically granted by CMS in a timely fashion. See Knowles v. Horn, No. 08-CV-1492, 2010 WL 517591 (N.D. Tex., Feb. 10, 2010) (citing to Grooms v. Maram, 563 F. Supp. 2d 840, 857 (N.D. Ill. 2008). 20. Expansion of the TBI/SCI Waiver Program would be a reasonable modification of the program. Nonetheless, Florida has maintained the current limit on waiver services in the TBI/SCI Waiver Program despite the long-standing waiting list for services: a January 2010 report reflected that, as ofDecember 2009, 605 individuals were on the wait list for the TBI/SCI Waiver Program. See Profile ofFlorida's Medicaid Home and Community-Based Services Waivers, Florida Legislature Office of Program Policy Analysis & Government Accountability, Report No. 10-10, January 2010, at 11, available at http://www.oppaga.state.fl.us/summary.aspx?reportnum=10-1 0 (last visited 8/23/201 0). 21. Upon information and belief, the limitation on the number of individuals who can receive services in the Waiver Program means that many individuals with disabilities resulting from spinal cord injuries who want to remain living in their communities are at risk of placement in unnecessarily segregated settings despite being qualified to receive services in the State's community-based, Medicaid funded programs. 22. Named Plaintiff Jacqueline Jones, a 35-year-old woman with quadriplegia, became at risk of institutionalization when her parents' health deteriorated, and they were no longer able to provide all attendant care services Ms. Jones requires to survive. (Affidavit of Jacqueline Jones, ECF No. 12, ~~1, 3-4.) Despite her eligibility to receive.
7

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 9 of 18 PageID 783
services in the State's TBIISCI Waiver Program, she remained on the wait list for four years. 1 23. Luis Cruz, a 52 year-old man with quadriplegia, is at risk of institutionalization because the in-home services he receives through the State's Medicaid plan are inadequate, and he has been hospitalized several times since January 2010.2 (Declaration ofLuis J. Cruz, Cruz, et al. v. Arnold, et al., No. 10-23048 (S.D. Fla.), Aug. 18, 2010, ECF No. 3, ("Cruz Decl.") ,-[,-[ 2, 5) Mr. Cruz applied to receive services in the State's Waiver Program in January 2006, but he remains on the waiting list. (ld. ,-[ 8.) 24. Nigel De La Torre, a 27 year-old man with quadriplegia, is at risk of institutionalization due to planned changes in his caregiver circumstances and the inadequacy of in-home services provided through the State's Medicaid program. (Declaration ofNigel De La Torre, Cruz, et al. v. Arnold, et al., No. 10-23048 (S.D. Fla.), Aug. 18, 2010, ECF No.4 ("De La Torre Decl.") ,-[,-[ 2 & 3.) He applied for the State's Waiver Program in October 2007, but he remains on the waiting list. (De La Torre Decl.
,-r,-r 5-6.)
1 After Ms. Jones filed her amended complaint asserting class claims, the defendants began the process of assessing her for enrollment in the TBIISCI Waiver Program. (See Affidavit of Kristen Russell, dated December 18,2009, ECF No. 24, ~ 2(C); Pltf.'s Mem. in Opp. to Motion to Dismiss, dated January 13, 2010, ECF No. 33, at 3.) Nonetheless, Ms. Jones's claims remain justiciable under well-settled law.
Friends ofthe Earth, Inc. v. Laidlaw Environmental Service, Inc., 528 U.S. 167, 189-91 (2000); Secretary
ofLaborv. Burger King Corp., 955 F.2d 681,684 (11th Cir. 1992). 2 On January 27,2010, the plaintiff filed a motion to amend the amended complaint to add Mr. Cruz, Nigel De La Torre and Dwayne Davidson as named plaintiffs in this action. On August 13,2010, the motion to amend was denied without prejudice because it raised identical issues presented in the motion to dismiss the amended complaint currently pending before the Court. In light of this Court's May 7, 2010 order, holding that unnamed class members in an uncertified class do not have standing to seek preliminary injunctive relief, a motion for preliminary injunctive relief was filed on August 18, 2010 in a separate action on behalf of Mr. Cruz and Mr. De La Torre. Cruz, et al. v. Arnold, et al., No. 10-725 (M.D. Fla.). On August 23, 2010, that action was transferred to the Southern District of Florida where it has been docketed as Cruz, et al. v. Arnold, et al., No. 10-23048 (S.D. Fla.).
8

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25. Michele Haddad, a 49 year-old woman with quadriplegia, became at risk of unnecessary institutionalization when her caregiver situation changed in 2009. (See Haddad Decl. In Support ofMot. for Prelim. Inj., Haddad v. Arnold, No. 10-414 (M.D. Fla.), ECF No. 2-1 ("Haddad Decl.") ~~ 2, 10, 45.) She applied for the State's Waiver Program in November 2007 and remained on the waiting list until this Court granted her request for preliminary injunctive relief on June 23, 2010. (Id. ~ 6; June 23, 2010 Order, Haddad v. Arnold, No. 10-414 (M.D. Fla.), ECF No. 46.) 26. Defendant has no comprehensive, effectively working plan in place to address unnecessary institutionalization ofpersons with disabilities resulting from spinal cord injuries. The waiting list for community-based services experiences very little turnover and fails to move at a reasonable pace. Indeed, when Ms. Haddad was on the wait list, the State informed her that few people will be moved off of the waiting list, and that she should seek services elsewhere due to the lack of capacity within the waiver program. See January 8, 2010 Letter to Michele Haddad, Ex. J ofPls.' Response to Defs.' Mem. In Opp. to Preliminary Injunction, Haddad v. Arnold, 10-414 (M.D. Fla. June 6, 2010), ECF No. 29-10, stating:
[p]resently, the Department of Children and Families does not have funds available (or available openings) to serve additional individuals through these programs.... Placement on the waiting list does not ensure future eligibility. Funding is very limited in these programs, and the amount of funding allocated to these programs has not been increased in many years. Unfortunately, moving individuals off the waiting list into these programs does not occur frequently, therefore, we encourage you to continue seeking services from other programs. 27. Instead of developing a plan to address unnecessary institutionalization, the State is offering to fund community-based services only after an individual relinquishes his or her ties to the community and enters a nursing home. See Affidavit of Kristen Russell,
9

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dated June 2, 2010, Haddad v. Arnold, 10-414 (M.D. Fla.), ECF No. 27-1 at ,-r 2D ("If
Ms. Haddad were to enter a nursing facility, she would be eligible after 60 days for the nursing home transition program, which is funded and which would allow Ms. Haddad to be transferred to the TBIISCI Waiver Program."); Affidavit of Kristen Russell, dated
September 9, 2010, Cruz v. Dudek, No. 1:10-cv-23048 (S.D. Fla.), ECF No. 34-1 ,-r 15
("If Messrs. Cruz and De La Torre were to enter a nursing home, I estimate they would be transitioned to the TBI/SCI Waiver program after 60 days of nursing home residency, or very soon thereafter."); see also Transcript of June 15,2010 Preliminary lnj'n. Hr'g. at 104, Haddad v. Arnold, 10-414 (M.D. Fla.) ("If somebody is going to spend 60 days in a nursing home, that makes it much more likely that they would have had to, without these services, go into a nursing home. It's essentially an assessment of need.") 28. Defendant also delivers personal care assistance services to Florida residents through an Assistive Care Services ("ACS") program, an optional State Medicaid plan service. The Medicaid program allows states considerable discretion in developing personal care service programs and determining what services will be covered. 42 C.P.R. 441. Defendant chooses to restrict eligibility for these services to Medicaid-eligible individuals living in assisted living facilities, qualified residential treatment facilities, or adult family-care homes (preventing individuals in the community from accessing these ser\rices). See Florida Agencyfor Health Care Administration, Assisted Care Services, available at: http://ahca.myflorida.com/medicaid/asc/index.shtml (last visited 8/23/2010). Defendant could modify this eligibility restriction to allow individuals with disabilities resulting from spinal cord injuries, who reside in the community, to receive these services.
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29. The average per capita rate at which Medicaid reimburses nursing homes for Medicaid services is $209.20 per day, or roughly $6276 per month. See AHCA Nursing Home Rates, http://ahca.my.florida.com/Medicaid/cost_reimb. In contrast, the State reported that the average monthly per capita cost of services in the TBIISCI waiver program during fiscal year 2008-2009 was $2,361.47. See Profile ofFlorida's Medicaid Home and Community-Based Services Waivers, Florida Legislature Office of Program Policy Analysis & Government Accountability, Report No. 10-10, January 2010, at 11. 30. The State continues to fund costly, unnecessary nursing home placements, while it could instead provide community-based services at a lower cost. The state continues to fund these placements despite the fact that it has admitted that "[i]n most cases, when a Medicaid recipient is diverted or transitioned from a nursing facility to an [in-home services] waiver program, costs to Medicaid for providing care to that individual are reduced." Affidavit of Michele Hudson, AHCA Bureau Chief for Medicaid Program Analysis, dated June 2, 2010, Haddad v. Arnold, 10-414 (M.D. Fla.), ECF No. 26-1 ~15.
COUNT I VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
31. The allegations ofParagraphs 1 through 30 ofthe Complaint in Intervention are hereby realleged and incorporated by reference. 32. Title II of the ADA, 42 U.S.C.§ 12132, prohibits public entities from discriminating against any qualified individual with a disability and from excluding any qualified individual with a disability from "participation in or the benefits of the services,
11

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programs or activities of the public entity" on the basis of disability. 42 U.S.C. §§ 12131-12132. 33. Title II requires a public entity to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.P.R.§ 35.130(d). "[U]ndue institutionalization," "unjustified institutional isolation," and "unjustified segregation" constitute discrimination under the ADA. Olmsteadv. L.C., 527 U.S. 581,597,600 (1999). 34. Defendant State ofPlorida is a "public entity" within the meaning ofthe ADA, 42 U.S.C. § 12131(1), 28 C.P.R.§ 35.104. Defendant is subject to title II of the ADA, 42 U.S.C. §§ 12131 et seq., and its implementing regulations, 28 C.P.R. Part 35. 35. Defendant discriminates against "qualified individual[s] with a disability," in violation of the ADA by administering its Medicaid program, including its TBIISCI Waiver Program, in a manner that denies individuals with disabilities the opportunity to receive services in the most integrated setting appropriate to their needs, placing them at risk of unnecessary institutionalization. 36. Providing adequate community-based services to qualified individuals with disabilities resulting from spinal cord injuries so that they can remain living in the community is a reasonable modification of the State's Medicaid program. 37. Defendant's actions constitute discrimination in violation of title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 CPR§ 35.130.
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COUNT II VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 38. The allegations ofParagraphs 1 through 37 ofthe Complaint in Intervention are hereby realleged and incorporated by reference. 39. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) provides: No otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity... 40. The Rehabilitation Act requires recipients of federal financial assistance to "administer programs or activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51(d); see also 45 C.F.R. § 84.4. .. 41.- . -The State of Florida receives federal financial assistance. 42. Defendant discriminates against "qualified individual[s] with a disability," in violation of the Rehabilitation Act by administering its Medicaid program, including its TBIISCI Waiver Program, in a manner that denies individuals with disabilities the opportunity to receive services in the most integrated setting appropriate to their needs, placing them at risk of unnecessary institutionalization. 43. Providing adequate community-based services to qualified individuals with disabilities resulting from spinal cord injuries so that they can remain living in the community is a reasonable modification of the State's Medicaid program. 44. Defendant's actions constitute discrimination in violation of section 504 ofthe Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations, 28 C.F.R. § 41.51(d); 45 C.F.R. § 84.1 et seq.
13

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 15 of 18 PageID 789
PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the Court: A. Grant judgment in favor of the United States on its Complaint in Intervention and declare that Defendant has violated title II of the ADA, 42 U.S.C. § 12131, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and all relevant implementing regulations; B. Enjoin Defendant (1) from discriminating against plaintiffs and other members of the public in the administration ofits Medicaid services, including the TBI/SCI Waiver Program, in a manner that puts individuals with disabilities at risk of unnecessary institutionalization, and (2) to administer its Medicaid services in the most integrated setting appropriate to the needs of the individuals with disabilities. Relief may include, but is not necessarily limited to:
1. Immediately discontinue the practice of requiring that individuals enter an institutional setting, such as a nursing home, in order to receive communitybased services;
2. Expand the Traumatic Brain Injury/Spinal Cord Injury Waiver Program to provide sufficient, periodic increases in Waiver Program slots and community-based services to additional eligible individuals, specifically including persons who are at risk of institutionalization, and eliminating the unreasonable length of the waiting list; and either in combination or alternatively;
3. Expand personal care services, including, but not limited to, the Assistive Care Services program, to provide sufficient home and community-based services to individuals who reside in the community, rather than restricting such services
14

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 16 of 18 PageID 790 to individuals residing in assisted living facilities, qualified residential treatment facilities, adult family-care homes or other similar facilities; C. Order Defendant to modify its policies, practices and procedures as necessary to bring the State into compliance with title II of the ADA, 42 U.S.C. § 12131, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and all relevant implementing regulations; and D. Order such other appropriate relief as the interests ofjustice may require.
15

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 17 of 18 PageID 791

Respectfully submitted,
ERIC H. HOLDER, JR. Attorney General of the United States
C\__ L-~
THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division

--~ --

JOHN L. WODATCH, Chief ----PHILIP L. BREEN, Special Legal Counsel
RENEE M. WOHLENHAUS, Deputy Chief ANNE S. RAISH, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W.- NYA Washington, D.C. 20530 Telephone: (202) 305-1321 Facsimile: (202) 307-1197 Anne.Raish@usdoj .gov Counsel for Plaintiff-Intervenor United States of America

16

Case 3:09-cv-01170-MMH-JRK Document 84-1 Filed 09/10/10 Page 18 of 18 PageID 792
CERTIFICATE OF SERVICE
I hereby certify that on September 10, 2010 a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103; Jay M. Howanitz, Spohrer & Dodd, P.L., 701 West Adams Street, Suite 2, Jacksonville, FL 32204; Enoch Jonathan Whitney, Office of the Attorney General, 400 South Monroe St.# PL-01, Tallahassee, FL 32399; and Andrew T. Sheeran, Agency for Health Care Administration, 2727 Mahan Drive, Building MS#3, Tallahassee, FL 32308.
/s/ Anne S. Raish
AnneS. Raish, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W.- NYA Washington, D.C. 20530 Telephone: (202) 305-1321 Facsimile: (202) 307-1197 Anne.Raish@usdoj .gov

 
 Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 1 of 8 PageID 798

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

CASE NO. 3:09-cv-1170-J-34JRK

ELIZABETH DUDEK1, in her official Capacity as the Interim Secretary of Florida Agency for Health Care Administration

DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health

Defendants. ______________________________/

DEFENDANTS’ RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO THE UNITED STATES’ MOTION TO INTERVENE

The Defendants, ELIZABETH DUDEK, in her official capacity as the

Interim Secretary of the Florida Agency for Health Care Administration

(AHCA), and DR. ANA VIAMONTE ROS, in her official capacity as

Surgeon General, Florida Department of Health, by and through the

undersigned counsel, hereby submit this response in opposition to the

1

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 2 of 8 PageID 799
United States’ Motion to Intervene. The Court should deny this motion because the original case is moot, the interests of the United States are adequately represented, and the United States seeks to improperly change defendants. As further support therefore, Defendants submit the following Memorandum of Law, which is attached hereto and is incorporated herein by reference.
MEMORANDUM OF LAW I. The Original Case is Moot
This lawsuit was filed by Jacqueline Jones in December, 2009. On February 1, 2010, Jacqueline Jones was enrolled in the Florida Medicaid Traumatic Brain Injury / Spinal Cord Injury Waiver Program (TBI / SCI Waiver). At that time, this case became moot as Plaintiff Jones then received all the relief she sought in her Amended Complaint. On January 6, 2010, Plaintiff filed her Motion for Class Certification, which is still pending.
Where the named plaintiff’s case is mooted before a motion for class certification has been filed, the motion for class certification should be denied because there is no underlying case or controversy under Article III of
1 Pursuant to Rule 25, Fed. R. Civ. P., Elizabeth Dudek is automatically substituted as named Defendant
2

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 3 of 8 PageID 800
the U.S. Constitution. See Sosna v. Iowa, 419 U.S. 393, 403, 95 S. Ct. 553, 559, 42 L. Ed. 2d 532 (1975) (“A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court”). Some courts would permit a class action to proceed even where the named plaintiff’s case becomes moot prior to class certification, so long as the plaintiff’s case was not moot at the time the motion for class certification was filed. See e.g., Cavallo v. Utica-Watertown Health Ins. Co., Inc., 191 F.R.D. 342 (N.D.N.Y. 2000). However, the Eleventh Circuit follows the law in Sosna, and a class action is moot where the putative class representative’s case is no longer live at the time of class certification. See Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir. Ala. 1987) (“In a class action, the claim of the named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiff's claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot”).
Because the underlying action was moot at the time the United States filed its Motion to Intervene, the motion should be denied. The United
as the successor in office of Thomas W. Arnold.
3

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 4 of 8 PageID 801
States claims to have a substantial legal interest in the subject matter of the action, but given that the action is moot, there is no action to have a substantial legal interest in. Intervention by the United States would only serve to “breathe life into a non-existent suit.” Schulz v. Lotter, 528 F. Supp. 675, 677 (E.D. Wis. 1981) (quoting McKay v. Heyison, 614 F.2d 899, 906 (3rd Cir. 1980)). II. The Interests of the United States are Adequately Represented by
the Existing Parties. The United States claims that its interests are not adequately represented by existing parties. However, in its motion, the United States made no attempt whatsoever to distinguish its interests from those of the existing Plaintiff. Indeed, in two other actions brought by plaintiffs who have previously sought to become named plaintiffs in the instant action, the United States has filed Statements of Interest that demonstrate its interests coincide with the existing plaintiff exactly. See Haddad v. Arnold, No. 10414 (M.D. Fla.), ECF No. 10; Cruz v. Dudek, No. 10-23048 (S.D. Fla.), ECF No. 40. In neither of these documents does the Department of Justice distinguish its views or positions from those of the private plaintiffs. Rather, the Department simply reiterates the arguments of these plaintiffs.
4

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 5 of 8 PageID 802
The Department of Justice indicates that the Plaintiff “will not be able to make all the arguments that the United States will make if allowed to intervene.” To the contrary, Plaintiff is represented by eminently competent counsel who is more than capable of making every relevant argument on Plaintiff’s behalf (and, because Plaintiff’s interests are identical to those of the Department of Justice, these include all argument that the Department of Justice would make). Plaintiff’s attorney, Stephen F. Gold, has litigated over 50 cases under the Americans With Disabilities Act and Section 504, and dozens of other cases on behalf of persons with disabilities under other statutes. See, e.g., Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003); Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert denied, 116 S.Ct. 64 (1995); sub nom. Secretary of DPW of Pa. v. Idell S.; Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983), aff’d, 732 F.2d 146 (3d Cir. 1984), cert denied, 105 S.Ct. 955 (1985); American Disabled For Accessible Pub. Transp. (ADAPT) v. Skinner, 676 F. Supp. 635 (E.D. Pa. 1988), 867 F.2d 1471 (3d Cir. 1989), 881 F.2d 1184 (3d Cir. 1989) (en banc) (federal regulation which permitted transportation authorities to cap funds expended on disabled persons violated minimum service criteria; required U.S. DOT to promulgate new regulations –
5

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 6 of 8 PageID 803
Concurrence opinion cited with approval by Congress in legislative history of ADA); Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004). Importantly, Mr. Gold has litigated all the above-listed cases without the aid of the Department of Justice as an intervening party.2 In fact, in the ADAPT v. Skinner case, Mr. Gold prevailed against the Department of Justice, which represented the Secretary of Transportation. III. The United States Seeks To Improperly Change Defendants
The Amended Complaint was brought by Plaintiff Jones against Thomas Arnold, in his official capacity as Secretary of the Florida Agency for Health Care Administration and Dr. Ana Viamonte Ros, in her official capacity as Secretary3 of the Florida Department of Health. The United States’ Complaint in Intervention lists only one defendant: the State of Florida. This is an attempt to utterly transform the case. The Plaintiff brought suit against certain defined defendants, and now the Department of Justice is attempting to pull the rug out from under the Plaintiff’s feet by changing the parties to this action. Furthermore, replacing Defendants with the State of Florida would be unfair to this new defendant. While the
2 In the Helen L. case, the Department of Justice filed an amicus brief. 3 The case style has been amended to reflect the Surgeon General’s correct title.
6

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 7 of 8 PageID 804
Secretary of AHCA and the Surgeon General have had an opportunity to, for
example, oppose Plaintiff’s Motion for Class Certification, the State of
Florida, as an independent party, has had no such opportunity. Finally, the
Court has no personal jurisdiction over the State of Florida.
CONCLUSION
For the reasons set forth above, the United States’ Motion to Intervene
should be denied.
Respectfully submitted this 7th day of October, 2010.
AGENCY FOR HEALTH CARE ADMINISTRATION BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 412-3630; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
DEPARTMENT OF HEALTH BY: /s/ Enoch Jonathan Whitney
Enoch Jonathan Whitney Assistant Attorney General Fla. Bar No. 130637 Office of the Attorney General 400 S Monroe St # PL-01 Tallahassee, Florida 32399-6536
7

Case 3:09-cv-01170-MMH-JRK Document 87 Filed 10/07/10 Page 8 of 8 PageID 805
(850) 414-3672; (850) 488-4872 Fax Email: Jon.Whitney@myfloridalegal.com
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of filing, to the following: Stephen F. Gold, Esq., 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, Jay M. Howanitz, Esq., SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204, and Anne S. Raish, Trial Attorney, Disability Rights Section, Civil Rights Division, U. S. Department of Justice, 950 Pennsylvania Avenue, N.W. – NYA, Washington, D.C. 20530, this 7th day of October, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
8

 
 Case 3:09-cv-01170-MMH-JRK Document 88 Filed 12/30/10 Page 1 of 2 PageID 806

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

v.

Case

No. 3:09-CV-1170-J34JRK

ELIZABETH DUDEK, in her official capacity as Interim Secretary, Florida Agency for Health Care Administration, and

Dr. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health,

Defendants. __________________________________

STIPULATION OF DISMISSAL OF CLASS ACTION CLAIMS WITHOUT PREJUDICE

Plaintiff, Jacqueline Jones, and Defendant s, Elizabeth Dudek and Ana Viam onte Ros,

through their respect ive undersigned counsel, and pursuant to Federal Rule of Civil Procedure

41(a)(1)(A)(ii), hereby file this Stip ulation of Dismissal, without prejudice, of all claims relating

to the uncertified class allegations. (Doc. No. 16). As grounds, the parties state the following:

1. Plaintiff Jacqueline Jones is receiving services under Defendants’ Spinal Cord

Injury Waiver and has no injunctive or other claim

s outstanding against

Defendants.

2. Plaintiff Jones has not previously dism issed an action based on, or including, the

dismissed class allegations.

3. Defendants stipulate to the dismissal of Plaintiff Jones and the class allegations.

1

Case 3:09-cv-01170-MMH-JRK Document 88 Filed 12/30/10 Page 2 of 2 PageID 807

4. There are no other parties to this case, and no determination has been made as to

whether this is a viable class action.

5. All parties stipulate that the dismissal of the class allegations is without prejudice.

6. All parties will be resp onsible for bearing their own fees and costs related to the

class allegations.

7. The parties stipulate to the entry of the proposed Order for Dism issal without

prejudice attached hereto as Exhibit A.

CERTIFICATION

All parties certify that they are in agreement with the relief stated above.

/s/ Stephen F. Gold

STEPHEN F. GOLD

ENOCH

Pennsylvania Bar No.: 09880

1709 Benjamin Franklin Parkway

Philadelphia, PA 19103

Telephone: (215) 627-7100, ext 227

Facsimile: (215) 627-3183

Email: stevegoldada@cs.com

/s/ Enoch Jonathan Whitney JONATHAN WHITNEY
Florida Bar No.: 130637 Office of the Attorney General Second Floor PL-01 The Capitol Tallahassee, Florida 32399 Telephone: (850) 414-3662 Facsimile: (850) 488-4872 Email: Jon.Whitney@myfloridalegal.com Counsel for Defendant Department of Health

/s/ Jay M. Howanitz JAY M. HOWANITZ Florida Bar No.: 0020967 Spohrer & Dodd, P.L. 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counsel for Plaintiffs

/s/ Andrew T. Sheeran ANDREW T. SHEERAN Florida Bar No.: 0030599 Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 Telephone: (850) 922-0158 Facsimile: (850) 921-0158 Email: sheerana@ahca.myflorida.com Counsel for Defendant Agency for Health Care Administration

2

 
 Case 3:09-cv-01170-MMH-JRK Document 90 Filed 01/03/11 Page 1 of 2 PageID 814

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

JACQUELINE JONES,

Plaintiff,

vs.

Case No. 3:09-cv-1170-J-34JRK

ELIZABETH DUDEK, in her official capacity as Interim Secretary, Florida Agency for Health Care Administration, and

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.

_____________________________________/

ORDER OF DISMISSAL This matter is before the Court on the Stpiulation of Dismissal of Class Action Claims Without Prejudice (Dkt. No. 89; Stipulation) filed on December 30, 2010. In the Stipulation, the parties state that they agree to the dismissal of Plaintfif and the class allegations without prejudice. See Stipulation at 1. Accordingly, it is hereby ORDERED: 1. This case is DISMISSED without prejudice. 2. Each party shall bear its own fees and costs.

Case 3:09-cv-01170-MMH-JRK Document 90 Filed 01/03/11 Page 2 of 2 PageID 815 3. The Clerk of the Court is directed to terminate all pending motions and close
the file. DONE AND ORDERED in Jacksonville, Florida, this 3rd day of January, 2011.
ja Copies to: Counsel of Record
-2-

 
 Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 1 of 9
CLOSED, MEDIATION
U.S. District Court Middle District of Florida (Jacksonville) CIVIL DOCKET FOR CASE #: 3:09−cv−01170−MMH−JRK

Jones v. Arnold et al Assigned to: Judge Marcia Morales Howard Referred to: Magistrate Judge James R. Klindt Cause: Americans with Disabilities Act
Plaintiff Jacqueline Jones

Date Filed: 12/02/2009 Date Terminated: 01/03/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by Jay M. Howanitz Spohrer &Dodd, PL Suite 2 701 W Adams St Jacksonville, FL 32204 904/309−6500 Fax: 904/309−6501 Email: jhowanitz@sdlitigation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. Gold Law Office of Stephen F. Gold 2nd Floor 1709 Benjamin Franklin Pkwy Philadelphia, PA 19103 215/627−7100 Fax: 215/627−3183 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Thomas Arnold in his official capacity as Secretary, Florida Agency for Health Care Administration

represented by Andrew T. Sheeran Florida Agency for Health Care Administration Bldg 3 − MS 3 2727 Mahan Dr Tallahassee, FL 32308−5407 850/412−3630 Fax: 850/921−0158 Email: sheerana@ahca.myflorida.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Enoch Jonathan Whitney Office of the Attorney General* PL−01 − The Capitol Tallahassee, FL 32399−1050 850/414−3672 Fax: 850/488−4872 Email: Jon.Whitney@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Lee Waas George Waas 3797 Sally Lane

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 2 of 9

Tallahassee, FL 32312−1018 850/414−3390 Fax: 850−488−4872 Email: waas01@comcast.net TERMINATED: 06/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay M. Howanitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Michael Blocker , II Agency for Health Care Administration Mail Stop 3 2727 Mahan Dr Tallahassee, FL 32308−5407 850/421−3634 Fax: 850/921−0158 Email: blockerw@ahca.myflorida.com TERMINATED: 08/05/2010 ATTORNEY TO BE NOTICED

Defendant
Doctor Anna Viamonte Ross in her official capacity as Secretary, Florida Department of Health

represented by Andrew T. Sheeran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Enoch Jonathan Whitney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Lee Waas (See above for address) TERMINATED: 06/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay M. Howanitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Michael Blocker , II (See above for address) TERMINATED: 08/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant USA

represented by Anne Skeels Raish US Department of Justice − Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 202/305−1321 Email: Anne.Raish@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Wodatch

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 3 of 9
US Department of Justice − Civil Division* 950 Pennsylvania Ave NW Washington, DC 20530 202−305−8454 Fax: 202−616−6862 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip L. Breen US Department of Justice − Civil Division* 950 Pennsylvania Ave NW Washington, DC 20530 202/305−8454 Fax: 202/616−6862 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Renee M. Wohlenhaus US Department of Justice − Civil Division* 950 Pennsylvania Ave NW Washington, DC 20530 202/305−8454 Fax: 202/616−6862 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R. Bagenstos US Department of Justice − Civil Rights Division* 950 Pennsylvania Ave NW − NYA Washington, DC 20530 202/305−1321 Fax: 202/307−1197 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas E. Perez US Department of Justice − Civil Division* 950 Pennsylvania Ave NW Washington, DC 20530 202/305−1321 Fax: 202/307−1197 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/02/2009 12/02/2009 12/02/2009 12/02/2009 12/02/2009

# Docket Text
1 COMPLAINT against Thomas Arnold, Anna Viamonte Ross (Filing fee $ 350 receipt number J33929) filed by Jacqueline Jones.(DH) (Entered: 12/02/2009)
2 MOTION for preliminary injunction by Jacqueline Jones. (DH) (Entered: 12/02/2009)
3 MEMORANDUM in support re 2 Motion for preliminary injunction filed by Jacqueline Jones. (DH) (Entered: 12/02/2009)
Summons issued as to Thomas Arnold, Anna Viamonte Ross. (DH) (Entered: 12/02/2009)
4 AMENDED STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Jacksonville Divisional Judges on 5/25/2005. (DH) (Entered:

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 4 of 9

12/02/2009
12/03/2009 12/07/2009
12/07/2009 12/07/2009 12/08/2009 12/09/2009 12/09/2009
12/10/2009 12/10/2009 12/11/2009 12/15/2009 12/16/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009
12/18/2009 12/21/2009

12/02/2009)
5 ORDER taking under advisement 2 Plaintiff Jacqueline Jones Motion for Preliminary Injunction and Expedited Hearing and Memorandum in Support. See Order for details. Signed by Judge Marcia Morales Howard on 12/2/2009. (SJH) (Entered: 12/03/2009)
6 NOTICE of designation under Local Rule 3.05 − track 2. Signed by Deputy Clerk on 12/3/2009. (Attachments: # 1 Consent Letter and Form)(JW) (Entered: 12/03/2009)
7 MOTION for Stephen F. Gold to appear pro hac vice by Jacqueline Jones. (Howanitz, Jay) Motions referred to Magistrate Judge James R. Klindt. Modified on 12/8/2009 (Counsel notified to refile with case number)(TS). (Entered: 12/07/2009)
8 RETURN of service executed on 12/3/2009 by Jacqueline Jones as to Thomas Arnold. (Howanitz, Jay) (Entered: 12/07/2009)
9 RETURN of service executed on 12/3/2009 by Jacqueline Jones as to Anna Viamonte Ross. (Howanitz, Jay) (Entered: 12/07/2009)
10 AMENDED MOTION for Stephen F. Gold to appear pro hac vice by Jacqueline Jones. (Howanitz, Jay) Motions referred to Magistrate Judge James R. Klindt. Modified on 12/9/2009 (to edit text)(TS). (Entered: 12/08/2009)
11 ORDER granting 10 Plaintiff's Motion for Admission Pro Hac Vice of Stephen F. Gold and Written Designation and Consent to Act. See Order for details. Signed by Magistrate Judge James R. Klindt on 12/9/2009. (JDF) (Entered: 12/09/2009)
12 AFFIDAVIT of Jacqueline Jones in Support of Her Motion for a Preliminary Injunction by Jacqueline Jones. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Howanitz, Jay) Modified on 12/10/2009 (Counsel notified to file certificate of service) (TS). (Entered: 12/09/2009)
13 NOTICE by Jacqueline Jones Certificate of Service (Howanitz, Jay) (Entered: 12/10/2009)
14 NOTICE of Appearance by George Lee Waas on behalf of Anna Viamonte Ross (Waas, George) (Entered: 12/10/2009)
15 NOTICE of Appearance by Andrew T. Sheeran on behalf of Thomas Arnold (Sheeran, Andrew) (Entered: 12/11/2009)
16 AMENDED COMPLAINT against Jacqueline Jones filed by Jacqueline Jones.(Howanitz, Jay) (Entered: 12/15/2009)
17 Emergency MOTION for clarification by Thomas Arnold. (Sheeran, Andrew) (Entered: 12/16/2009)
18 PROOF OF SERVICE on 12/10/2009 by Jacqueline Jones as to Thomas Arnold. (Howanitz, Jay) Modified text on 12/18/2009 (DH). (Entered: 12/17/2009)
19 PROOF OF SERVICE on 12/10/2009 by Jacqueline Jones as to Anna Viamonte Ross. (Howanitz, Jay) Modified text on 12/18/2009 (DH). (Entered: 12/17/2009)
20 NOTICE OF TELEPHONIC HEARING on 17 Emergency Motion for Clarification: Motion Hearing set for 12/17/2009 at 02:30 PM before Judge Marcia Morales Howard. See Notice for additional details. (JW) (Entered: 12/17/2009)
22 Minute Entry for proceedings held before Judge Marcia Morales Howard: Telephonic Motion Hearing held on 12/17/2009; granting 17 Emergency Motion for Clarification. Preliminary Injunction Hearing set for December 22, 2009, at 3:00 p.m. Court Reporter: L. Marie Splane (JW) (Entered: 12/18/2009)
21 NOTICE by Jacqueline Jones of Sufficient Resolution (Howanitz, Jay) (Entered: 12/18/2009)
23 ORDER taking under advisement 2 Plaintiff's Motion for Preliminary Injunction. The parties shall confer and notify the Court on or before Wednesday, January 6,

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 5 of 9

12/29/2009 12/29/2009 12/29/2009
01/06/2010 01/06/2010 01/06/2010 01/07/2010 01/12/2010 01/12/2010 01/13/2010 01/20/2010
01/22/2010 01/27/2010 01/29/2010 02/01/2010 02/01/2010 02/01/2010 02/02/2010

2009, of a mutually agreed upon briefing schedule and hearing date for the resolution of the Motion. The hearing currently set for December 22, 2009, at 3:00 p.m. is cancelled. Signed by Judge Marcia Morales Howard on 12/21/2009. (JW) (Entered: 12/21/2009)
24 NOTICE of Filing Affidavit of Kristen Russell by Thomas Arnold. (Attachments: # 1 Affidavit)(Sheeran, Andrew) Modified on 12/30/2009 (to edit text) (TS). (Entered: 12/29/2009)
25 MOTION to dismiss Amended Complaint by Thomas Arnold. (Sheeran, Andrew) (Entered: 12/29/2009)
26 NOTICE of Filing Exhibits to Motion to Dismiss by Thomas Arnold re 25 MOTION to dismiss Amended Complaint (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sheeran, Andrew) Modified on 12/30/2009 (to edit text) (TS). (Entered: 12/29/2009)
27 Notice of Parties' Agreed Briefing Schedule And Hearing Date by Jacqueline Jones, Thomas Arnold, Anna Viamonte Ross. (Howanitz, Jay) (Modified on 1/26/2010 to edit text) (DSY). (Entered: 01/06/2010)
28 MOTION to certify class by Jacqueline Jones. (Attachments: # 1 Exhibit)(Gold, Stephen) (Entered: 01/06/2010)
29 MEMORANDUM in support re 28 Motion to certify class filed by Jacqueline Jones. (Attachments: # 1 Exhibit)(Gold, Stephen) (Entered: 01/06/2010)
30 First MOTION to stay Class Certification Pending Disposition of Plaintiff's Status and Ruling on Pending Motion to Dismiss by Thomas Arnold, Anna Viamonte Ross. (Waas, George) (Entered: 01/07/2010)
31 ORDER denying without prejudice 30 Motion to Stay Class Certification for failure to comply with Local Rules. See Order for details. Signed by Judge Marcia Morales Howard on 1/12/2010. (BMR) (Entered: 01/12/2010)
32 Amended MOTION to stay Class Certification Pending Disposition of Plaintiff's Status and Ruling on Pending Motion to Dismiss by Thomas Arnold, Anna Viamonte Ross. (Waas, George) (Entered: 01/12/2010)
33 MEMORANDUM in opposition re 25 Motion to dismiss filed by Jacqueline Jones. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Gold, Stephen) (Entered: 01/13/2010)
34 RESPONSE in opposition re 28 MOTION to certify class Defendants' Response and Memorandum of Law in Opposition to Plaintiff's Motion for Class Certification filed by Thomas Arnold. (Attachments: # 1 Affidavit)(Sheeran, Andrew) (Entered: 01/20/2010)
35 RESPONSE in opposition re 32 Motion to stay filed by Jacqueline Jones. (Gold, Stephen) Modified on 1/22/2010 (to edit text) (TS). (Entered: 01/22/2010)
36 MOTION to amend/correct Complaint by Jacqueline Jones. (Attachments: # 1 Exhibit)(Gold, Stephen) (Entered: 01/27/2010)
37 NOTICE of Appearance by William Michael Blocker, II on behalf of Thomas Arnold (Blocker, William) (Entered: 01/29/2010)
38 MOTION for leave to file Reply Brief to Defts' Response and Memorandum in Opposition to Plfs' Motion for Class Certification by Jacqueline Jones. (Howanitz, Jay) Modified on 2/3/2010 (STRICKEN per Order 41 )(TS). (Entered: 02/01/2010)
39 CASE MANAGEMENT REPORT. (Howanitz, Jay) (Entered: 02/01/2010)
40 First MOTION to strike 38 MOTION for leave to file Reply Brief to Defts' Response and Memorandum in Opposition to Plfs' Motion for Class Certification by Thomas Arnold, Anna Viamonte Ross. (Waas, George) (Entered: 02/01/2010)
41 ORDER striking 38 Motion for Leave to File Reply; denying as moot 40 Motion to Strike. See Order for details. Signed by Judge Marcia Morales Howard on

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 6 of 9

02/03/2010 02/05/2010
02/08/2010
02/16/2010 02/16/2010 02/22/2010 02/23/2010 04/12/2010 04/12/2010 04/14/2010 04/15/2010
04/15/2010 04/23/2010
04/23/2010 04/23/2010 04/26/2010

2/2/2010. (BMR) (Entered: 02/02/2010)
42 RESPONSE in opposition re 36 MOTION to amend/correct Complaint Response and Memorandum of Law in Opposition to Plaintiff's Motion for Leave to Amend filed by Thomas Arnold. (Sheeran, Andrew) (Entered: 02/03/2010)
43 CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 9/7/2010. Dispositive motions due by 10/4/2010. Mediate by 11/5/2010. Pretrial statement due by 12/27/2010. Final Pretrial Conference set for 1/18/2011 at 10:00 AM in Jacksonville Courtroom 10 B before Judge Marcia Morales Howard. Bench Trial set for trial term commencing on 2/1/2011 at 09:30 AM in Jacksonville Courtroom 10 B before Judge Marcia Morales Howard. Signed by Judge Marcia Morales Howard on 2/5/2010. (JW) (Entered: 02/05/2010)
44 ORDERED: On or before February 22, 2010, the parties shall file a notice advising the Court of whether the issues raised in Plaintiff's Motion for Preliminary Injunction (Dkt. No. 2) are moot. Signed by Judge Marcia Morales Howard on 2/8/2010. (JW) (Entered: 02/08/2010)
45 CERTIFICATE of interested persons and corporate disclosure statement by Thomas Arnold. (Sheeran, Andrew) (Entered: 02/16/2010)
46 CERTIFICATE of interested persons and corporate disclosure statement by Jacqueline Jones. (Howanitz, Jay) (Entered: 02/16/2010)
47 STATUS REPORT re Preliminary Injunction by Jacqueline Jones. (Howanitz, Jay) (Entered: 02/22/2010)
48 ORDER denying as moot 2 Motion for preliminary injunction. See Order for details. Signed by Judge Marcia Morales Howard on 2/23/2010. (BMR) (Entered: 02/23/2010)
49 MOTION to amend/correct complaint by Jacqueline Jones. (Attachments: # 1 Exhibit proposed Third Amended Complaint)(Howanitz, Jay) (Entered: 04/12/2010)
50 MOTION to stay Consideration of Plaintiff's Motion for Leave to file Third Amended Complaint by Thomas Arnold, Anna Viamonte Ross. (Waas, George) (Entered: 04/12/2010)
51 NOTICE of Appearance by Enoch Jonathan Whitney on behalf of Anna Viamonte Ross (Whitney, Enoch) (Entered: 04/14/2010)
52 MOTION for preliminary injunction and Expedited Hearing with Memorandum of Law in Support thereof by Jacqueline Jones. (Attachments: # 1 Exhibit Michele Haddad Declaration in Support of her Motion for a Preliminary Injunction)(Howanitz, Jay) (Entered: 04/15/2010)
53 MOTION to stay Plaintiff's motion for preliminary injunction as to a non−party by Thomas Arnold, Anna Viamonte Ross. (Waas, George) (Entered: 04/15/2010)
54 RESPONSE in opposition re 50 MOTION to stay Consideration of Plaintiff's Motion for Leave to file Third Amended Complaint filed by Jacqueline Jones. (Howanitz, Jay) Modified on 4/27/2010 (Incorrect PDF attached. Counsel refiled as doc. 57 ) (TS). (Entered: 04/23/2010)
55 RESPONSE in opposition re 53 MOTION to stay Plaintiff's motion for preliminary injunction as to a non−party filed by Jacqueline Jones. (Howanitz, Jay) (Entered: 04/23/2010)
56 ORDER directing Defendants to respond to the 52 Motion for Preliminary Injunction no later than 4/30/2010. See Order for details. Signed by Judge Marcia Morales Howard on 4/23/2010. (BMR) (Entered: 04/23/2010)
57 RESPONSE in opposition re 50 MOTION to stay Consideration of Plaintiff's Motion for Leave to file Third Amended Complaint filed by Jacqueline Jones. (Howanitz, Jay) (Entered: 04/26/2010)

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 7 of 9

04/30/2010 04/30/2010 05/03/2010
05/03/2010 05/07/2010 05/11/2010 05/13/2010 05/14/2010 05/14/2010 05/20/2010 05/21/2010 05/27/2010 06/04/2010
06/10/2010 06/14/2010

58 RESPONSE in opposition re 52 MOTION for preliminary injunction and Expedited Hearing with Memorandum of Law in Support thereof filed by Thomas Arnold. (Sheeran, Andrew) Modified text on 5/3/2010 (DH). (Entered: 04/30/2010)
59 NOTICE by Thomas Arnold, Anna Viamonte Ross, of Filing Affidavit of Kristen Russell (Attachments: # 1 Affidavit of Kristen Russell)(Sheeran, Andrew) Modified text/filers on 5/3/2010 (DH). (Entered: 04/30/2010)
60 NOTICE of Filing Declaration of Jeffery S. Johns, M.D by Jacqueline Jones re 52 MOTION for preliminary injunction (Attachments: # 1 Exhibit Declaration of Dr. Johns in Support of Michele Haddad's Motion for Preliminary Injunction)(Howanitz, Jay) Modified on 5/4/2010 (to edit text)(TS). (Entered: 05/03/2010)
61 MOTION to compel Initial Request for Production by Jacqueline Jones. (Attachments: # 1 Exhibit 1st RFP to Deft Arnold, # 2 Exhibit 1st RFP to Deft Ross, # 3 Exhibit Defts Joint Response to RFP)(Howanitz, Jay) Motions referred to Magistrate Judge James R. Klindt. (Entered: 05/03/2010)
62 ORDER denying without prejudice 52 Plaintiff [sic] Michele Haddad's Motion for Preliminary Injunction, Expedited Hearing and Memorandum of Law in Support. Signed by Judge Marcia Morales Howard on 5/7/2010. (JW) (Entered: 05/07/2010)
63 ORDER denying as moot 53 Motion to Stay. See Order for details. Signed by Judge Marcia Morales Howard on 5/11/2010. (BMR) (Entered: 05/11/2010)
64 NOTICE of supplemental authority re 25 MOTION to dismiss Amended Complaint by Thomas Arnold (Attachments: # 1 Supplement AAPD v Holland)(Sheeran, Andrew) (Entered: 05/13/2010)
65 NOTICE of withdrawal of motion by Jacqueline Jones re 49 MOTION to amend/correct complaint (Howanitz, Jay) Modified on 5/17/2010 to create docket entry relationship. (DH). (Entered: 05/14/2010)
66 RESPONSE in opposition re 61 MOTION to compel Initial Request for Production and Memorandum of Law in Support filed by Thomas Arnold. (Sheeran, Andrew) (Entered: 05/14/2010)
67 RESPONSE re 64 Notice of Supplemental Authority by Jacqueline Jones. (Gold, Stephen) Modified on 5/21/2010 (to edit text) (TS). Modified on 5/25/2010 (STRICKEN per Order 68 )(TS). (Entered: 05/20/2010)
68 ORDER striking 67 Plaintiff's Response to Notice of Supplemental Authority. See Order for details. Signed by Judge Marcia Morales Howard on 5/21/2010. (BMR) (Entered: 05/24/2010)
69 Joint MOTION for extension of time to complete discovery and expert witness disclosure deadlines nd memorandum of law by Thomas Arnold, Jacqueline Jones, Anna Viamonte Ross. (Howanitz, Jay) Motions referred to Magistrate Judge James R. Klindt. (Entered: 05/27/2010)
70 ORDER taking under advisement 69 Joint Motion to Extend Discovery and Expert Witness Disclosure Deadlines and Memorandum of Law; staying deadline for Plaintiff's disclosure of expert reports, deadline for Defendant's disclosure of expert reports, and discovery deadline; setting telephonic status hearing for 6/10/2010 at 2:00 p.m. See Order for details and instructions. Signed by Magistrate Judge James R. Klindt on 6/4/2010. (JDF) (Entered: 06/04/2010)
73 Minute Entry. Proceedings held before Magistrate Judge James R. Klindt: Telephonic Status Hearing held on 6/10/2010. (DIGITAL) (DNL) (Entered: 06/15/2010)
71 ORDER granting 69 Joint Motion to Extend Discovery and Expert Witness Disclosure Deadlines and Memorandum of Law. The Case Management deadlines are adjusted as follows: Plaintiff's Disclosure of Expert Reports by 9/2/2010; Defendant's Disclosure of Expert Reports by 10/4/2010; Discovery Deadline set for 12/6/2010; Mediate by 2/3/2011; Dispositive Motions due 1/3/2011; Joint Final Pretrial Statement due 3/28/2011; All Other Motions due 4/4/2011. Final Pretrial Conference set for 4/18/2011 at 10:00 AM in Jacksonville Courtroom 10 B before

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 8 of 9

06/14/2010 06/17/2010
06/18/2010 06/29/2010 07/22/2010 07/22/2010 07/23/2010 08/05/2010
08/13/2010 08/13/2010
08/25/2010 09/10/2010 09/24/2010 09/29/2010
10/07/2010 12/30/2010

Judge Marcia Morales Howard. Bench Trial set for trial term commencing on 5/2/2011 at 09:30 AM in Jacksonville Courtroom 10 B before Judge Marcia Morales Howard. See Order for details. Signed by Magistrate Judge James R. Klindt on 6/14/2010. (JDF) (Entered: 06/14/2010)
72 MOTION for George Waas to withdraw as attorney by Anna Viamonte Ross. (Waas, George) Motions referred to Magistrate Judge James R. Klindt. (Entered: 06/14/2010)
74 ORDER taking under advisement 72 Motion to Withdraw as Counsel; directing counsel to serve copy of Order on Defendant; any response due 6/25/2010 or the request will be treated as unopposed. Signed by Magistrate Judge James R. Klindt on 6/17/2010. (KAW) (Entered: 06/17/2010)
75 RESPONSE to motion re 72 MOTION for George Waas to withdraw as attorney filed by Anna Viamonte Ross. (Whitney, Enoch) (Entered: 06/18/2010)
76 ORDER granting 72 Motion to Withdraw as Counsel. Signed by Magistrate Judge James R. Klindt on 6/29/2010. (KAW) (Entered: 06/29/2010)
77 NOTICE to the Court by Thomas Arnold, Anna Viamonte Ross(Sheeran, Andrew) Modified on 7/23/2010 (to edit text) (TS). (Entered: 07/22/2010)
78 MOTION for William M. Blocker II to withdraw as attorney by Thomas Arnold. (Blocker, William) Motions referred to Magistrate Judge James R. Klindt. (Entered: 07/22/2010)
79 ORDER taking under advisement 78 Motion to Withdraw as Counsel; any response due 8/4/2010 or the request will be treated as unopposed. Signed by Magistrate Judge James R. Klindt on 7/23/2010. (KAW) (Entered: 07/23/2010)
80 ORDER granting 78 Motion to Withdraw as Counsel; directing Clerk to terminate William M. Blocker, Esq. as counsel of record for the State of Florida, Agency for Health Care Administration. Signed by Magistrate Judge James R. Klindt on 8/5/2010. (KAW) (Entered: 08/05/2010)
81 ORDER denying without prejudice 36 Motion for Leave to Amend First Amended Class Action Complaint. See Order for details. Signed by Magistrate Judge James R. Klindt on 8/13/2010. (JDF) (Entered: 08/13/2010)
82 ORDER denying as moot 50 Defendants' Thomas Arnold's [and] Anna Viamonte Rosss Motion to Stay Consideration of Filing Third Amended Complaint. See Order for details. Signed by Magistrate Judge James R. Klindt on 8/13/2010. (JDF) (Entered: 08/13/2010)
83 Joint MOTION for extension of time to complete discovery and for expert witness disclosure by Thomas Arnold, Jacqueline Jones, Anna Viamonte Ross. (Howanitz, Jay) Motions referred to Magistrate Judge James R. Klindt. (Entered: 08/25/2010)
84 MOTION to intervene by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit U.S. Complaint in Intervention)(Raish, Anne) Motions referred to Magistrate Judge James R. Klindt. (Entered: 09/10/2010)
85 Unopposed MOTION for extension of time to file response/reply as to 84 MOTION to intervene by Thomas Arnold, Anna Viamonte Ross. (Whitney, Enoch) (Entered: 09/24/2010)
86 ORDER granting 85 Defendants' Unopposed Motion For Extension of Time in Which to Respond to United States' Motion to Intervene; Defendants shall file a response by 10/7/2010. Signed by Magistrate Judge James R. Klindt on 9/29/2010. (WLG) (Entered: 09/29/2010)
87 RESPONSE in opposition re 84 MOTION to intervene filed by Thomas Arnold. (Sheeran, Andrew) (Entered: 10/07/2010)
88 STIPULATION of Dismissal Without Prejudice by Thomas Arnold, Jacqueline Jones, Anna Viamonte Ross. (Attachments: # 1 Exhibit proposed order)(Howanitz, Jay) (Entered: 12/30/2010)

Case: 3:09-cv-1170 As of: 10/26/2012 11:34 AM EDT 9 of 9

12/30/2010 01/03/2011

89 STIPULATION of Dismissal Without Prejudice by Thomas Arnold, Jacqueline Jones, Anna Viamonte Ross. (Attachments: # 1 Proposed Order)(Howanitz, Jay) Modified on 1/3/2011. Incorrectly docketed as a motion. (Duplicate filing of Doc. 88, Proposed Order modified). (DH). (Entered: 12/30/2010)
90 ORDER dismissing case without prejudice. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 1/3/2011. (JW) (Entered: 01/03/2011)